Mr Jason Payne

Profession: Radiographer

Registration Number: RA65143

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/02/2020 End: 17:00 21/02/2020

Location: Health and Care Professions Tribunal Service, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While registered with the Health and Care Professions Council as a radiographer:

1. On 22 February 2019, at the Willesden Magistrates’ Court you were convicted of;

a) making indecent photographs of a child (Category A)

b) making indecent photographs of a child (Category B)

c) making indecent photograph of a child (Category C)

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

Finding

Preliminary Matters

Notice of Hearing

1. The Panel had sight of information that the Notice of Hearing dated 12 December 2019 was sent by first class post on the same date to the Registrant’s address on the HCPC Register.

2. The Panel accepted the advice of the Legal Assessor and was satisfied that good service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in Absence

3. Mr Olphert, on behalf of the HCPC, applied for the hearing to take place in the Registrant’s absence. He referred to an email from the Registrant to the HCPC dated 26 February 2019 in which he stated:

“I will not be attending this or any other further hearings”.

4. Mr Olphert submitted that the Registrant has waived his right to attend and that an adjournment would be unlikely to result in the Registrant’s attendance in the future. On the basis of these circumstances Mr Olphert submitted that, taking into account the public interest in proceeding expeditiously, the Panel should proceed.

5. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor.

6. The Panel considered the information before it. The Registrant has clearly expressed that he does not wish to attend any hearing. He has not applied for an adjournment. The Panel therefore decided that he had voluntarily waived his right to attend. Taking into account the public interest in expeditiously hearing this case, the Panel was satisfied that it is fair to proceed in the Registrant’s absence.

7. The Panel therefore decided to proceed today.

Background

8. The Registrant is a registered Radiographer. He was previously employed by the University Hospitals Birmingham NHS Foundation Trust (UHB).

9. The HCPC received referrals from UHB and the Metropolitan Police, both dated 18 July 2018, that the Registrant was being investigated for being in possession of indecent images of children.

10. On 22 February 2019, the Registrant pleaded guilty at Willesden Magistrates’ Court to three counts of making indecent images of children in categories A, B, and C.

11. On 16 April 2019, at Harrow Crown Court, the Registrant was sentenced to 10 months’ imprisonment suspended for 24 months. He was also made subject to a 10-year notification requirement, subject to a sexual harm prevention order for 5 years, ordered to carry out unpaid work for 120 hours before 15 April 2020, made the subject of a Rehabilitation Activity Requirement for 30 days, a victim surcharge order of £140, and an order for forfeiture and destruction of his computer.

12. The Registrant was sentenced on the basis of the following images as set out in the charges to which he pleaded guilty:

• Category A – 80 moving images involving penetration of children, 33 still images;

• Category B – 43 moving images, 41 still images;

• Category C – 357 moving images, 340 still images.

Decision on Facts

13. The Panel took into account the submissions of Mr Olphert and read his skeleton argument dated 20 February 2020. The Panel was aware that the burden of proof in respect of fact is on the HCPC to the civil standard, namely the balance of probabilities.

14. The Panel took into account the HCPTS Practice Note entitled “Conviction and Caution Allegations”, and accepted the advice of the Legal Assessor.

15. The Panel took into account Rule 10(1)(d) of the Rules, which provides that where a Registrant has been convicted of a criminal offence, a certified copy of the Certificate of Conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based.

16. The Panel had sight of both the Memorandum of Entry in the register of Willesden Magistrates’ Court for 22 February 2019, as well as the signed Certificate of Conviction issued by Harrow Crown Court on 3 June 2019.

17. On the basis of these documents, the Panel was satisfied that the factual particulars were proved.

Decision on Impairment

18. Having found the factual particular proved, which, as a conviction, forms the statutory ground upon which a finding of impairment may be based, the Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired.

19. The Panel considered all of the documents before it in the HCPC’s hearing bundle, including the Judge’s unredacted sentencing remarks.

20. The Panel took into account the submissions of Mr Olphert that the Registrant’s fitness to practise is currently impaired on the basis of the personal and public components.

21. There were no submissions from the Registrant before the Panel. There has been no substantive communication from him to the HCPC since his email dated 26 February 2019 in which he stated he did not wish to attend any hearing.

22. The Panel accepted the advice of the Legal Assessor, who referred to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Panel took into account the HCPTS Practice Note entitled “Finding that Fitness to Practise is ‘Impaired’”. The Panel was aware that impairment is a matter for its own independent judgment and that public protection and the wider public interest should be considered.

23. The Panel took into account that the Registrant was found by the Judge to have been suffering from a health condition at the time of committing the offences and the Panel was aware of that condition.

24. The Panel also took into account the Registrant’s plea of guilty at the earliest opportunity, which suggests a degree of insight. The Registrant’s resignation from UHB also demonstrated a degree of insight in the form of an understanding that his conviction was incompatible with continuing to work with UHB. However, the Panel was of the view that the insight shown was extremely limited.

25.  There is no evidence before the Panel as to his progress in undertaking the rehabilitation requirement of his sentence. The lack of such information, as well as the silence from the Registrant with regard to any reflection upon the conviction, led to the Panel deciding that there was no evidence of remediation before it.

26. The Panel also took into account that the offending was serious, noting that the sentencing Judge remarked on the high number of Category A images. Also relevant to the Panel’s consideration was that the suspension of the custodial sentence continues to run until April 2021.

27. The Panel took into account the questions formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of Grant, and decided that from the material before it there was no evidence that the Registrant had in the past acted so as to put patients at unwarranted risk of harm. Given the nature of the offending, the Panel was of the view that it could be said that it is possible that the Registrant may put child patients at risk of harm in the future, while in practice, however, on the basis of the evidence, it could not be said that there was a real risk that he would do so.

28. Considering the other questions of Dame Janet Smith, the Panel was of the view that the Registrant had in the past brought the profession into disrepute by his actions, and that he had breached the following fundamental tenet of the profession:

HCPC standards of conduct, performance and ethics (2016)

9  Be honest and trustworthy

Personal and professional behaviour

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

29. In light of the extremely limited insight and the lack of remediation demonstrated by the Registrant, the Panel was satisfied that there was a real risk of repetition of the Registrant’s offending, and therefore the Registrant is liable to bring the profession into disrepute and breach fundamental tenets in the future.

30. The role of a Radiographer incorporates a responsibility in maintaining high professional and personal standards which are necessary for public confidence in the professional exercising that role. The conviction of making indecent photographs of children undermines confidence in the Registrant as a professional, particularly where the Registrant has not yet finished serving his sentence. The conviction also undermines confidence in the wider profession.

31. For the reasons set out above, in the Panel’s view, it would also undermine confidence in the regulator if no action was taken by the Panel. As such, the Panel was of the view that the need to uphold proper professional standards and maintain public confidence in the profession, and also the regulator, would be undermined if a finding of impairment were not made in the particular circumstances of this case concerning serious criminal convictions.

32. The Panel therefore found the Registrant’s current fitness to practise to be impaired on the basis of both the personal and public components.

Decision on Sanction

33. The Panel heard the submissions of Mr Olphert, read the HCPC’s Sanctions Policy (SP), and accepted the advice of the Legal Assessor. The Panel was aware that the aim of any sanction is not to be punitive. Rather, in this case, the aim is to uphold the public interest. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction, which means that the right to practice should not be restricted any more than is necessary to address the risks to public confidence in the profession arising out of the Registrant’s registration.

34. The Panel identified the following mitigating factors:

• no previous regulatory findings or convictions;

• early guilty plea;

• the Registrant suffered a medical condition at the time of the commission of the offences.
 
35. The Panel identified the following aggravating factors:

• limited evidence of insight;

• no evidence of remediation;

• no apology or remorse;

• high number of Category A images of penetration of children.

36. The Panel took into account the case of GDC v Fleischmann [2005] EWHC 87 and has already noted that the suspension of the Registrant’s custodial sentence continues to run until April 2021.The Panel also took into account the other orders made by the Crown Court when considering the need to maintain public confidence in the profession and uphold proper standards.

37. The Panel took the view that the offences were extremely serious, involving the exploitation of children.

38. The Panel was of the view that mediation is not appropriate in light of the nature of the case.

39. The Panel discounted taking no further action because there is a real risk of repetition, and taking no action would not satisfy the public interest in this case.

40. With regard to a caution, the SP states at para. 101:

A caution order is likely to be an appropriate sanction for cases in which:

• 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.

41. The Panel was of the view that none of these criteria were met in this case and such a sanction would not uphold the wider public interest.

42. The Panel next considered a Conditions of Practice Order, but was satisfied that this would not be appropriate because there are no concerns with regard to the Registrant’s clinical practice. In any event, conditions would not be sufficient to uphold the wider public interest in light of the seriousness of the conviction.

43. The Panel next considered a Suspension Order and considered para. 121 of the SP:

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.

44. The convictions represent a very serious breach of the standards of conduct as set out above. The Panel has already determined that the Registrant has demonstrated only limited insight and no remediation, and that there is a real risk of repetition of the criminal behaviour in question. In light of the Registrant’s lack of engagement with the regulatory process, he is either unable or unwilling to take the necessary steps to demonstrate sufficient insight and remediation. The Panel considered the level of seriousness of the criminal conduct and its sexually motivated nature, involving the exploitation of children. All these factors led the Panel to conclude that suspension would not be appropriate or sufficient to uphold the wider public interest.

45. The Panel considered paragraphs 130 and 131 of the SP:

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…

• criminal convictions for serious offences…

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

• is unwilling to resolve matters.

46. In the Panel’s view, the Registrant committed serious criminal offences involving the sexual exploitation of children. The Panel took into account the lack of any sufficient evidence of insight and the lack of evidence of any remediation, as well as the ongoing real risk of repetition of the criminal conduct. The Registrant is either unable or unwilling to demonstrate real insight or remediation. The Panel took into account the high number of Category A images of penetration of children. All of these factors led the Panel to decide that any lesser sanction would undermine confidence in the profession and the regulatory process. Striking off is the only way in which the wider public interest can be upheld.

47. In coming to its decision, the Panel took into account the principle of proportionality and the impact that such a sanction will have on the Registrant’s right to practise his profession, as well as the likely reputational and financial impact. However, the Panel decided that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

48. The Panel therefore decided to impose a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mr Jason Payne from the Register on the date this order comes into effect.

Notes

Application for an Interim Order to cover the appeal period

49. The Panel heard an application from Mr Olphert for an 18-month Interim Suspension Order to cover the appeal period. He submitted that such an Order is in the public interest.

50. The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as paragraphs 133-5 of the SP. The Panel accepted the advice of the Legal Assessor.

51. The Panel decided whether or not to hear the application for an Interim Order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of Hearing dated 12 December 2019, that if this Panel found the allegation proved and imposed a sanction which removed, suspended, or restricted his right to practise, the Panel may impose an Interim Order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate, and in the interests of justice to hear the application for an Interim Order.

52. The Panel took into account its previous findings and, adopting its reasons, the Panel came to the conclusion that an Interim Order is in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. In light of the seriousness of the convictions, public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an Interim Order during the appeal period.

53. The Panel was mindful of its decision at the sanction stage to impose a Striking Off Order. The Panel considered that not to impose an Interim Suspension Order would be inconsistent with its finding that a substantive sanction of Striking Off is required.

54. The Panel recognised that it must take into consideration the impact of such an Interim Order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to uphold the public interest. The Panel considered those matters. However, in the circumstances of the case, the Panel was satisfied that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

55. The Panel carefully considered what the duration of the Interim Order should be. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate in order to allow any appeal which the Registrant may bring to be concluded.

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being 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.

Hearing History

History of Hearings for Mr Jason Payne

Date Panel Hearing type Outcomes / Status
21/02/2020 Conduct and Competence Committee Final Hearing Struck off