Mr Oyewumi A Aderibigbe
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(As amended on day 1 of the hearing, namely, 12 February 2020)
While registered with the Health and Care Professions Council as a Biomedical Scientist:
1. In relation to Colleague A:
a. On one or more occasions, on dates on or before 2 February 2018, you asked Colleague A if she had milk in her breasts or words to that effect.
b. On a date shortly before 5 February 2018, you asked Colleague A for her telephone number.
c. On or around 2 February 2018, you Said to Colleague A “I’ve had dreams about sucking on your boobs and milk coming out” or words to that effect.
d. On or around 5 February 2018, you:
i. Said to Colleague A “I wanted to suck on your boobs to see if any milk came out” or words to that effect.
ii. Said to Colleague A “are you sure you have no milk in your boobs?” or words to that effect.
iii. Put your hand on Colleague A’s waist.
iv. Felt Colleague A’s breasts one or more times.
v. Felt Colleague A’s bottom one or more times.
2. In relation to Colleague B, on or around 25 December 2017, you:
a. Attempted to touch Colleague B’s bottom.
b. Attempted to put your hand(s) down Colleague B’s pants.
c. Touched Colleague B’s breasts.
d. Touched Colleague B’s bottom.
e. Touched Colleague B’s waist.
3. On an unknown date you said to Colleague B “oh are you going to rub it for me now?” or words to that effect.
4. Your actions as set out in paragraphs 1 – 3 were sexually motivated
5. The matters set out in paragraphs 1 – 4 amount to misconduct.
6. By reason of your misconduct, your fitness to practise is impaired.
Application to Amend the Allegation
1. The Presenting Officer, on behalf of the HCPC, applied for amendments to be made to the Allegation to properly reflect the HCPC’s evidence. Notice of the proposed amendments had been sent to the Registrant on 12 September 2019. The HCPC submitted that the proposed amendments were minor in nature, better reflected the HCPC’s evidence and specified more clearly the comments that the HCPC alleged the Registrant had made to Colleague A. The Presenting Officer submitted that the proposed amendments did not affect the substance of the Allegation and included the removal of particular 1(c)(i) on the basis that the HCPC offered no evidence.
2. The Registrant was present at the hearing by telephone and represented himself. The Registrant did not object to the proposed amendments. He stated that he strongly denied all of the allegations against him and that minor amendments to them were of little consequence to him.
3. The Panel accepted the Legal Assessor’s advice that it should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendments could be made without injustice. The Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced. It was up to the Panel whether to accept all, none, or some of the amendments proposed by the HCPC.
4. In the Panel’s judgment, the proposed amendments were fair and clarified what was alleged. The Panel considered that they did not change the substance of or increase the seriousness of the Allegation and would not cause injustice to the Registrant. Accordingly, the Panel acceded to the Presenting Officer’s application and allowed the amendments to be made. The amended Allegation is as set out above.
Hearing in private
5. There were references to the health and personal circumstances of the Registrant in the evidence. Rule 10 of the HCPC (Conduct and Competence Committee) (Procedure) Rules (the Rules) enabled whole or part of the hearing to be held in private for the protection of the private life of the Registrant or witnesses. The Panel determined that any references to the health or private life of the Registrant should be heard in private.
6. The Panel received a bundle of documents from the HCPC, comprising a case summary, witness statements and exhibits.
7. The Registrant submitted a number of documents which included a witness statement (undated), various documents relating to the workplace investigation and documents submitted to the HCPC for the purposes of the Registrant’s regulatory proceedings to date.
8. At the outset of the hearing, the Registrant denied all of the particulars of the Allegation.
9. The Registrant is registered as a Biomedical Scientist. When the matters which are the subject of the Allegation came to light, the Registrant was employed as a Band 5/6 Biomedical Scientist by a NHS Foundation Trust (the Trust), where he had been employed since November 2015.
10. Whilst in this role, the Registrant worked alongside Colleague A and Colleague B.
11. On 5 February 2018, Colleague A disclosed to the Registrant’s Supervisor, Witness 3, that the Registrant had felt her breasts and bottom. Colleague A also alleges that, during the incident, the Registrant asked, “are you sure you have no milk in your boobs?” or words to that effect. Colleague A further alleges that, earlier that day, the Registrant had told Colleague A that, “[he] wanted to suck on [her] boobs to see if any milk came out” or words to that effect.
12. Colleague A disclosed previous incidents that had occurred with the Registrant. It is alleged that, on or before 2 February 2018, the Registrant asked Colleague A if she had milk in her breasts, or words to that effect. It is further alleged that prior to 5 February 2018, the Registrant asked Colleague A for her telephone number.
13. As a result of the issues raised by Colleague A in relation to the Registrant’s conduct, an internal investigation was initiated by the Trust. During the course of this investigation, towards the end of February 2018, a further allegation was made by a second female colleague, Colleague B.
14. It is alleged that, on or around 25 December 2017, the Registrant attempted to touch Colleague B’s bottom and attempted to touch her inappropriately. It is further alleged that during this incident, the Registrant touched Colleague B’s breasts, bottom and waist.
15. Colleague B also disclosed an incident that occurred with the Registrant prior to the incident on 25 December 2017. It is alleged that, on an unknown date, the Registrant said to Colleague B, “oh are you going to rub it for me now?” or words to that effect, when Colleague B accidentally knocked into the Registrant’s lower body with a specimen trolley.
16. Following the conclusion of the Trust’s internal investigation, this matter was referred to the HCPC on 16 March 2018.
Decision on the Facts:
17. The HCPC called 8 witnesses, all of whom attended the hearing in person. Only Colleagues A and B were direct witnesses to the alleged incidents with the Registrant. Sexual misconduct was alleged in this case and, in accordance with Rule 10A of the Rules, Colleagues A and B were cross-examined by a legal representative, appointed by the HCPC on behalf of the Registrant.
18. The other 6 witnesses provided hearsay evidence, either speaking to the demeanour of Colleague A, who reported the alleged incidents at the time, or giving evidence in relation to the Trust’s internal investigation. The following are key points from their evidence.
19. Colleague A, the first complainant, gave evidence in respect of particular 1. She confirmed the content of her witness statement as representing a true account, save for one amendment. Colleague A said that on 5 February 2018, the Registrant moved his hands up twice to her breast, not once as detailed in her statement. She told the Panel that she prepared and typed her “Statement of Events” prior to her interview at the Trust on 20 March 2018.
20. Colleague A said that she was employed as a team leader at the Trust. The Registrant worked in the chemistry department and Colleague A would go into the chemistry department to deliver samples to be analysed or to resolve any issues within the department. Colleague A said that although she did not work directly with the Registrant, she would work alongside him and that she would describe herself as being friends with the Registrant at work.
21. Colleague A said that, following her return from maternity leave, the Registrant would “look me up and down”. She said that the first time that the Registrant asked her about whether she was still breastfeeding and “if I still had milk in my boobs”, she did not regard this as untoward as she was aware that the Registrant and his wife were trying for a baby. She said that she thought it was a “genuine, innocent question”. Colleague A said that the Registrant told her that he would like to see her new baby and that he would like to visit, along with Witness 2, when Colleague A’s husband was not at home. Colleague A thought that the Registrant “just felt uncomfortable” because he had not met her husband before.
22. Colleague A said that on 2 February 2018, when she was standing by the sample sorter in the chemistry room, the Registrant told her that he had had “dreams of sucking on your boobs and milk coming out.” She said that his comment came “out of the blue”, she was disgusted and walked away, without saying anything to the Registrant. She said that she did not raise her concerns with anyone else, as “words were words”, it was the Registrant’s word against hers and she did not wish the working relationship to be awkward or for there to be an uncomfortable atmosphere.
23. Colleague A told the Panel that, a few days later on 5 February 2018, Witness 6 told her that the Registrant had come downstairs and asked for her. The Registrant later ran downstairs again and said to Colleague A, “I wanted to show you something upstairs.” When she went upstairs, she asked the Registrant why he had called her upstairs and that the Registrant said to her, “I wanted to have a suck on your boobs and see if milk came out.” Colleague A said that she felt shocked, told the Registrant to shut up and that she walked away. Colleague A said that she told Witness 6 what the Registrant had just said to her. Colleague A said that, again, she did not report the incident as “words were words” and she “just shrugged it off.”
24. Colleague A’s evidence was that towards the end of the shift on 5 February 2018, the Registrant asked her where she had parked, but that she did not specifically say. Colleague A said that, as she was leaving for the day, the Registrant approached her as she was walking down the corridor, placed his left arm across her stomach, although not in a forceful way and asked, “Do you really not have milk in your boobs?” She said that he moved his hand up her body and cupped her left breast through her clothing and that she responded, “No, get off”, moved the Registrant’s hand off and that she walked away quite quickly. Colleague A said that she heard someone running behind her and that, as she put her pin code into the door, the Registrant approached from behind and touched her bottom twice through her dress.
25. Colleague A had agreed to meet Witness 2, as usual, as they would walk to the same car park together at the end of their shifts. Colleague A told Witness 2 what had just happened and she then reported the incident to Witness 3 some 20 minutes later.
26. In cross-examination, Colleague A accepted that she got on well with the Registrant at work. She denied that she had offered her mobile number to the Registrant. Colleague A said that, on one occasion, she had worn a dress to work and that this was unusual for her. She said that she saw the Registrant looking at her and had asked him, “Do I look ok?” She denied that she and the Registrant ever discussed her weight following her return from maternity leave. Colleague A denied that, when she went upstairs to meet the Registrant in the electro room, she asked him how she looked; she further denied that she asked the Registrant for a hug. She also denied that she had hugged the Registrant as she was leaving her shift on 5 February 2018. Colleague A accepted that, in terms of greeting the Registrant at the beginning of a shift, “I might put my arm on his shoulder and then pat, that’s it.” In answer to a question from the Panel, Colleague A said that she would sometimes put her arm around the Registrant’s shoulder “now and again” but she denied that her behaviour towards him was flirtatious.
27. Colleague A confirmed under cross examination that she was clear as to her recollection of the words said to her by the Registrant, that she had heard them clearly and had been shocked by them. She told the Panel that she felt uncomfortable with his repeated questions about whether she had milk in her breasts but that it was not until the Registrant had gone to look for her on 5 February 2018 that she “felt he had intentions.”
28. Witness 2 was the witness to whom Colleague A made the initial disclosure. Witness 2 was interviewed as part of the Trust’s investigation and provided a handwritten statement, made on the night of 5 February 2018. Witness 2 readily accepted the hearsay nature of her witness statement, in that she was relaying what Colleague A had told her. Witness 2’s recollection was that Colleague A did not go into the chemistry lab after the alleged incidents of 5 February 2018 as she was too scared to do so. Witness 2 confirmed that she had never had any concerns about the Registrant’s conduct prior to these incidents but said that she had not worked directly with him.
29. Witness 3, to whom Colleague A disclosed that the Registrant had felt her bottom and breasts was the Registrant’s manager, but not his direct line manager. Witness 3 told the Panel that he was walking back to his office from the lab on 5 February 2018 at around 17.35/17.40 and that he saw two individuals, Colleague A and Witness 2, standing outside the office, talking in low voices. They said that they were waiting for Colleague JA, Colleague A’s line manager and with whom Witness 3 shared an office, but that Colleague JA had left for the day. Witness 3 told the Panel that Colleague A “was obviously distraught”, seemed confused, saying that she and the Registrant were good friends and kept asking, “Why would he do that to me?” Witness 3 said that he could not sleep that night and wrote an email to his manager, Witness 4, at 04.00 on 6 February 2018 and sent it at 06.00.
30. Witness 3 said that, to his mind, Colleague A and the Registrant “were close friends as work colleagues”; they would “chat a lot”. In cross-examination Witness 3 agreed that there were occasions when the Biomedical Scientists would have reason to use the computers upstairs. Witness 3 denied any knowledge of previous incidents of male staff from the chemistry lab being forced to resign due to similar allegations being made by female medical laboratory staff. His perception was that there was a good working relationship between MLA and laboratory staff and that “from the bits I could see, female MLAs hugged chemistry lab staff, generally when they came in in the morning.” He said that he did not see the Registrant hugging MLAs or Colleague A hugging anyone. Witness 3 described the Registrant as a “well-respected member of staff.”
31. Witness 4 was the manager who conducted the initial interviews with Colleague A and the Registrant. Witness 4 confirmed that the Registrant was not told in advance of the investigatory meeting of 6 February 2018 why he had been called to the meeting; she acknowledged that this was her decision. She accepted that this was the first time that she had undertaken an investigatory meeting and that no minutes of the meeting were taken. In cross-examination, Witness 4 accepted that it might have been an error of judgement on her part not to have shown the Registrant Witness 3’s email, so that the Registrant understood the allegations that he was facing.
32. Witness 5 was the Investigating Officer; she interviewed a number of people in the course of the Trust’s investigation. In cross-examination, Witness 5 denied that the investigation was one-sided.
33. Witness 6 was the eyewitness to whom Colleague A reported the Registrant’s alleged conduct at particular 1(a) and 1(d)(i). He said that at the end of January 2018, he was standing talking with Colleague A when the Registrant asked to speak to her. Witness 6 said that Colleague A returned after a matter of minutes and that she appeared “shocked and shook up.” He said that Colleague A reported to him that the Registrant had asked her if her “boobs still produced milk and that he wanted to suck them.” Witness 6 said that Colleague A seemed shocked that she had been asked the question. In relation to the alleged incidents of 5 February 2018, Witness 6 said that he was on the specimen reception when he received a call from the Registrant, asking for Colleague A to go upstairs to the electro room. Witness 6 said that he told the Registrant that Colleague A was on a break but that he would let her know when she returned. In cross-examination, it was put to Witness 6 that he had originally stated that it was Colleague A who was on a break in the electro room. In cross-examination, Witness 6 accepted that he was not aware that BMS staff would sometimes use the computer upstairs. When asked about the atmosphere in the team, Witness 6 referenced “tension” and “awkwardness” between the MLAs and chemistry staff.
34. Witness 8 was the witness to whom Colleague A reported the Registrant’s alleged conduct at particular 1(d)(i)-(iv). Witness 8 readily accepted that his evidence was hearsay evidence.
35. Witness 8 described that there was “banter” within peer groups, which he described as small groups who would see each other outside of work. He said that Colleague A and the Registrant were not in the same peer group. He told the Panel that he worked on a daily basis with the Registrant and that he never saw him act inappropriately towards Colleague A. He said that Colleague A, who was his Supervisor, disclosed the incident to him at 09.30 on 6 February 2018 (the morning after the alleged incident) and that he was shocked. He said that Colleague A was asking for Witness 8’s advice as to whether or not she should report it, as she would worry that she would “start a ball rolling.” He said that he recommended that she did. Witness 8’s evidence was that Colleague A seemed “shocked, dumbfounded” and that “we felt similar.” He said that she also told him about other comments the Registrant had made to her of a sexual nature. Witness 8 said that Colleague A had once mentioned it previously and that he had regarded it as “laddish, ill-thought-out humour.”
36. Colleague B, the second complainant, gave evidence in respect of particulars 2 and 3. She confirmed the truth of her witness statement and the conduct she alleged against the Registrant. Colleague B told the Panel that she had a good professional relationship with the Registrant. In relation to the stock trolley and the alleged comment made to her by the Registrant, Colleague B explained that she was returning from the basement with stocks on the trolley and that she nudged the Registrant with the edge of the trolley, by mistake. She said that the Registrant asked her, “Are you going to rub it for me now?”, a comment which she regarded as “slightly inappropriate.” Colleague B explained to the Panel that she thought the Registrant was just joking, that he had a “jokey personality”, that she did not pay particular attention to the comment and did not feel the need to take any action in relation to it. In cross-examination, Colleague B was asked whether the trolley could have nudged the Registrant’s leg. She replied, “I don’t know exactly, somewhere in that area.” When it was put to Colleague B that the Registrant did not recall the incident and that it did not happen, Colleague B maintained that it did happen.
37. In relation to the alleged incident on 25 December 2017, Colleague B said that she was on shift from 13:00 – 21:00. She explained that, some time after 20.00, she went down to the basement to collect more racks. She described the racks as being about 1 metre in length and about 30cm wide. She told the Panel that it is normal for someone to come and help and that when the Registrant asked if he should accompany her to the basement, she did not think anything of it and said, “Yes, not a problem.” Colleague B said that “we got the racks... As we were coming back up, he [the Registrant] tried to grope my bottom.” Colleague B said that she tried to run up to the landing and that “[the Registrant] ran after me and tried to grab me. The racks had dropped to the floor.” Colleague B said that the Registrant tried to grab her bottom again, twice, that she tried to push him away and tried to pick up the racks. She said that the Registrant put his hands around her and around her breasts and that she could not move. She said, “I told him to stop and leave me alone. He replied, saying “Please let me” and tried to lift my shirt up.” Colleague B said that she picked up the racks and walked back to the lab and that “[the Registrant] followed behind me.” Colleague B said that she left work shortly afterwards at around 20:45, when the night-shift member of staff arrived.
38. In cross-examination, Colleague B was questioned about the use of the phrase “I believe” in her witness statement in relation to her allegation of the Registrant’s conduct in the basement; Colleague B maintained her position that the Registrant acted as detailed in her witness statement. When asked why she did not cry for help if she was frightened for her safety, Colleague B said that she was shaken up, that she did not know what to do and that there was no-one else there at the time. She said that the Registrant did not try to kiss her. When asked why she went back to pick up the racks that she had dropped, Colleague B said that she was not in the right state of mind. She said that although she didn’t see, as the Registrant was behind her, she thought that the Registrant must have put his racks down in order to grope her because he used both his hands to touch her breasts.
39. When asked why she did not report her concerns either to the Trust or to the police, Colleague B said that she was scared and that “it was his word against mine.” She said that she confided in a family member on the same day. Colleague B said that, after the incident, she would see the Registrant when she took samples into the lab and that, “he was completely normal with me, as if nothing had happened.” Colleague B said that his actions had a huge impact on her and that she found it hard to focus on work. When asked by a member of the Panel about the Registrant’s assertion that there had been a previous altercation between Colleague B and the Registrant, in which he had raised his voice at her and she had responded, “I will sort you out”, Colleague B said that she did not recollect the incident, that she had never had a disagreement with the Registrant and that she “didn’t say anything of the sort.”
40. Colleague B agreed that Colleague A was her friend and that they would message each other outside of work. She said she made a report to the Trust after Colleague A spoke to her while Colleague B was on holiday and “it came up that something had happened at work.” Colleague B explained to the Panel, “Obviously something had happened; I needed to report what had happened to me.” Colleague B described the atmosphere in the lab as being friendly. She said that she had never been hugged by the Registrant prior to the events of 25 December 2017.
The Registrant’s evidence
41. The Registrant gave sworn evidence to the Panel over the telephone, was cross-examined by the Presenting Officer and answered questions from the Panel. During his evidence, the Registrant dealt with each of the factual particulars alleged in the HCPC’s case and maintained his denial of every factual particular. The Registrant strongly denied that he had made any of the comments alleged by Colleagues A or B, or that he had acted as alleged. He said that he had never faced any allegations of this sort previously and that he had always acted in a professional manner and with integrity in his workplace and in life. The Registrant referred to a number of other places where he had previously worked and said that no complaints had ever been brought against him, other than in respect of these complaints from these 2 young women who were friends.
42. He told the Panel of the importance to him of his HCPC registration, that he would never have acted so as to put that registration in jeopardy, that he was a man of good character and was married with a young child. He reminded the Panel of the character references included in the bundle, attesting to his good character.
43. The Registrant told the Panel that he understood how serious the allegations were, that the alleged comments and conduct would have been “awful and horrible” and that he was aware of the negative impact that such alleged actions would cause to victims. He told the Panel of the impact of the allegations upon him and that he had not been able to support his wider family for the last 2 years.
44. The Registrant was asked why he thought the 2 colleagues had complained about him. He told the Panel that, to his mind, the allegations were lies and the result of a conspiracy between management at the Trust and Colleagues A and B to get rid of him and that this was a case of “people conniving against me.” The Registrant explained to the Panel that there had been instances where he had challenged management in relation to new processes and his increased workload and that he believed he was therefore “a victim of a conspiracy to get rid of me.” He referred to another colleague who had resigned when faced with allegations but that he would not resign because he hadn’t done anything wrong.
45. In relation to the alleged comments made to Colleague A, he denied that there had ever been any such discussions, that he had “no idea where she got it from” and that she had “made the story up.” He described Colleague A as a friend at work, saying “we just talked.” The Registrant described how Colleague A would come into the chemistry lab where he was working and ask him whether he thought she had lost weight. His evidence was that, “each time she’d say it.” The Registrant said that he asked Colleague A, “Aren’t you breastfeeding?” because, to his mind, he could not understand why she would want to lose weight if she was still breastfeeding. He said that Colleague A replied that she was no longer breastfeeding and that “that was the extent of the conversation.” He said that he would not mind apologising to Colleague A if she was offended by him talking about breastfeeding with her. In relation to the allegations of touching Colleague A, the Registrant maintained that this did not happen, that these were false allegations, stating, “I never touched Colleague A, no matter what the friendship is, she’s not my woman.” He said that Colleague A hugged him when she was going home on 5 February 2018.
46. In respect of Colleague B, the Registrant said that he could not comprehend these allegations and that he did not and would not touch Colleague B. He recalled that he was on late shift on 25 December 2017 and that there were 3 people on shift, Colleague B, himself and one other, who was in a separate room. He said that Colleague B asked him if he would go down to the basement with her to collect more sample racks and he thought that this was because she was scared. He said that, on the way back up from the basement, he was carrying between 8 and 12 sample racks and a bottle of reagent. The Registrant said that Colleague B remained in the building until the end of her shift after the alleged incident, bringing samples to the chemistry lab and that he could not understand the logic of her remaining on shift if she had been subjected to the conduct alleged.
47. The Registrant denied any occasion involving Colleague B bumping into him with a trolley. He said that if there was such an occasion, and he had made such a comment, Colleague B had taken it out of context and that “it could have been my knee or foot” being referred to.
48. The Registrant stated that he believed that Colleague B’s motive in making these allegations against him was one of revenge, following the Registrant speaking sharply to her about her work on one occasion previously. He also believed that she was making the allegations in support of her friend, Colleague A.
49. The Presenting Officer, on behalf of the HCPC, reminded the Panel that the burden of proof was on the HCPC. His submission was that the evidence of Colleagues A and B was credible, consistent and truthful. They had maintained their accounts under cross-examination. He submitted that there was no evidence to support the suggestion of the Registrant that Colleagues A and B had conspired together to make up allegations against the Registrant. Furthermore, there was no credible evidence of any motive they might have to make false allegations against him. The Presenting Officer accepted that the Registrant was of otherwise good character and had not been the subject of other complaints but submitted that this did not prevent the Registrant from acting as alleged. There was no criticism in the HCPC case of his competence as a Biomedical Scientist, in fact witnesses called by the HCPC who were part of management at the Trust, spoke highly of the Registrant. He told the Panel that the HCPC was not relying on the Trust’s investigation, which he described as “flawed.” He invited the Panel to disregard the Registrant’s purported admissions during the investigation on the basis that these were unreliable and unfair.
50. The Presenting Officer acknowledged that the Registrant had also been consistent throughout in maintaining his total denial of the allegations and, given the conflicting accounts, the Panel would have to decide who was not telling the truth. The Presenting Officer submitted that it was the Registrant who had not told the truth and refused to accept that he acted as alleged. The Presenting Officer submitted that if the Panel found the factual particulars proved, it would necessarily find sexual motivation proved as there was no plausible alternative explanation.
51. In his closing submission, the Registrant submitted that he had been consistent throughout that none of these incidents had happened. He asked the Panel to take into account the evidence of his good character, the absence of any previous complaints and the impact of these allegations upon him over the last 2 years. He asked the Panel to consider how the witnesses involved in this case were all loyal to Colleague A – that Colleague A was telling everyone what to say, that Witness 2 was a close friend of Colleague A’s and that Colleague B had acted in support of Colleague A and to strengthen Colleague A’s case. He submitted that Colleague B’s account was not credible and that she could have run away from the Trust building, had she been scared, rather than remain on shift. The Registrant told the Panel that if he had done as alleged, he would have resigned from the Trust as had been offered to him but that “I will never admit to what I haven’t done.”
52. The Panel accepted the advice of the Legal Assessor and applied the relevant principles. She advised the Panel on the approach to facts and that the applicable civil burden of proof, the balance of probabilities, rested on the HCPC. It was not for the Registrant to prove his innocence. She reminded the Panel of the Registrant’s previous good character and that such evidence was relevant in the assessment of the evidence.
53. Insofar as the documents before it contained hearsay evidence, the Legal Assessor advised the Panel that the admission of such evidence was fair in the circumstances of this case. In deciding what weight to give to the hearsay evidence, the Panel should consider in particular whether or not the maker of the statement had any reason not to give an honest account and the extent to which the statement had been made contemporaneously with the events to which it related.
54. The Panel was reminded that if it found proved any of the factual particulars referred to in particular 4 (i.e 1(a-d), (2(a-e), 3) it should then go on to consider whether it found that the Registrant’s conduct in each was sexually motivated. The Panel was advised to give the term “sexual motivation” its common English language meaning. Some helpful guidance had been given in the case of Basson v GMC  EWHC 505 that sexual motive means that the conduct was done either in pursuit of sexual gratification, or in pursuit of a sexual relationship. The Panel was reminded that comments or actions may be inappropriate, but it does not automatically follow that inappropriate comments or actions are sexually motivated. These are separate issues for the Panel to determine.
55. On the issue of finding “sexual motivation”, the Legal Assessor referred the Panel to the guidance in the case of Arunkalaivanan v GMC  EWHC 873 (Admin) to the effect that if the Panel considered there was no direct evidence of sexual motivation, it could consider whether it was possible to prove sexual motivation by way of inference. The Panel would have to be satisfied on the balance of probabilities that sexual motivation should be inferred from an assessment of the primary facts and all the circumstances, including evidence of the Registrant’s character.
56. The Panel carefully considered all the documentary and oral evidence and the submissions of both parties. It gave careful consideration to the context in which these allegations arose. The Panel assessed the evidence of each witness and the reliability of their testimony.
57. The Panel found Colleague A clear, balanced and consistent in her evidence and that she was credible. Her oral evidence at the hearing was consistent with her earlier accounts of the events. She maintained her account under cross-examination. Colleague A had told Witness 2 immediately about the alleged conduct at the end of her shift on 5 February 2018, recounted the events to Witness 3 shortly after and then to management the next day and Witness 6 a few days later. The Panel found that her account and what she was accusing the Registrant of were not exaggerated, she did not seek to embellish her account, and that this tended to strengthen her credibility. The Panel did not perceive any malice towards the Registrant on her part, nor any motive to make false allegations against him.
58. The Panel found that Colleague B had a less clear recollection of the detail of her evidence but that she was believable. Any inconsistencies between her written and oral evidence were of a minor nature. The Panel did not find that the fact that she did not report the alleged incident of 25 December 2017, or that she remained until the end of her shift, made her less credible. The Panel accepted her evidence that she told a family member of the incident on the day.
59. The Panel considered the evidence given by the Registrant. In considering the credibility of his evidence, the Panel took into account his previous good character. The Registrant had been consistent throughout his evidence, adamant that none of the incidents alleged had occurred and that he would not have acted as alleged. He did not seek to suggest to the Panel that there was any mistake on the part of Colleagues A or B, or that he had made comments that had been misinterpreted by them. His case was that Colleagues A and B had made up untrue allegations against him. He said that he and Colleague A enjoyed a good working relationship and he had no idea why she would make the allegations, but that he had had a previous altercation with Colleague B and that this was her motive to act against him. The Panel, however, found Colleagues A and B to be credible and truthful and did not find any credible evidence to support the suggestion of a conspiracy or collusion between them or that Colleagues A or B’s intentions were ill-motivated or malicious. Accordingly, the Panel rejected the Registrant’s account and preferred the evidence of Colleagues A and B.
60. Witness 2’s evidence was hearsay evidence, limited in scope to what Colleague A had told her. The Panel found her to be frank, consistent and credible, becoming animated during cross-examination. The Panel found that it could place weight on her testimony.
61. Witness 3 did his best to assist the Panel but the Panel noted a number of inconsistencies in his documentary evidence, for example in the meeting of 6 February 2018 when Witness 3’s view changed in relation to what he thought that the Registrant understood about what specifically was being alleged. The Panel did not find any malice towards the Registrant in Witness 3’s evidence; in fact, as the Registrant’s manager, he was positive about the Registrant as a Biomedical Scientist.
62. Witness 4, who conducted the initial interviews with the Registrant and Colleague A, was a straightforward, credible witness, who accepted that the meeting on 6 February 2018 was not well-managed. The Panel considered that this was to her credit. The Panel considered there to be significant flaws in this initial investigation meeting and was of the view that it was inadequate in establishing the facts. It therefore placed no reliance on the reports of the meeting.
63. Witness 5, the Investigating Officer at the Trust, was a clear and straightforward witness who gave consistent and credible evidence. She explained her rationale for the way in which the investigations were undertaken and why the Trust decided to interview the Registrant’s section managers.
64. The Panel considered Witness 6 to be clear, forthright and a reliable witness. His evidence was limited in scope to a small part of the allegations regarding Colleague A. The Panel considered that he was measured in his recollection of events and did not seek to embellish his evidence.
65. The Panel found Witness 8 to have a clear recollection of what was reported to him by Colleague A. The Panel considered that he did not demonstrate any malice to the Registrant.
Particular 1 – Proved in its entirety
In relation to Colleague A:
a. “On one or more occasions, on dates on or before 2 February 2018, you asked Colleague A if she had milk in her breasts or words to that effect.”
66. Colleague A’s evidence was that for the first few weeks after she returned from maternity leave, the Registrant would look her up and down. She said that the Registrant began asking her general questions about breastfeeding and if “I still had milk in my boobs.” Colleague A said that she was aware that the Registrant and his wife were trying for a baby and that she thought it was a “genuine, innocent question.” She said that she replied that she was no longer breastfeeding and that, therefore, “lactation stops.” Colleague A’s evidence was that the Registrant asked her similar questions on a number of occasions although she could not remember when the comments started or remember any further examples.
67. The Registrant denied that he had any such discussion with Colleague A.
68. The Panel preferred and accepted Colleague A’s account, finding that her oral evidence was clear, detailed and consistent with her written statements. It was of the view that there is a very different connotation in this memorable question of whether Colleague A still had milk in her breasts, as opposed to the question of whether or not she was still breastfeeding and that is why Colleague A would have remembered it. The Panel preferred her evidence that, initially, she thought these were genuine questions from the Registrant because of his own family circumstances, over the Registrant’s total denial that he asked the question. The Registrant had been asked what motive he believed Colleague A had for making a false allegation against him and he was not able to give one other than that it was part of a conspiracy against him. On the evidence before it, the Panel found that it was more likely than not that the Registrant had asked Colleague A about whether she still had milk in her breasts.
b. On a date shortly before 5 February 2018, you asked Colleague A for her telephone number.
69. Colleague A told the Panel that a couple of weeks before 5 February 2018, the Registrant asked for her mobile number. She said that the Registrant said that he wanted to visit her new baby at her home, together with their colleague, Witness 2, but wanted to come when Colleague A’s husband was not at home. Colleague A said that she didn’t think that the Registrant meant anything by this, just that she thought he felt uncomfortable as he and her husband had never met.
70. The Registrant denied that he had asked for Colleague A’s number. He told the Panel that a mutual friend and colleague was unwell and that when Colleague A wrote a mobile number on a scrap of paper to give to him, he had thought that it was the ill colleague’s number but that Colleague A had said, “No, it’s my number.” He said that he had no need for Colleague A’s number as they did not message or speak outside of work. He told the Panel that the fact was that he had never used her mobile number.
71. The Panel was not persuaded by the Registrant’s version of events and found Colleague A’s evidence more compelling. Accordingly, the Panel found this particular proved on the balance of probabilities.
c. On or around 2 February 2018, you said to Colleague A, “I’ve had dreams about sucking on your boobs and milk coming out” or words to that effect.
72. Colleague A said that on 2 February 2018, she was performing a task in the biochemistry laboratory when the Registrant approached her and said, “Can I ask you a question, do you still have milk in your boobs?” She said that she thought this was a strange question for the Registrant to ask but she presumed that he wanted to know as he and his wife were trying for a baby. She said that she wanted to believe that this was an innocent question. Colleague A said that she explained to the Registrant that she was no longer breastfeeding and that this caused lactation to stop. Colleague A said that the Registrant then said to her, “I’ve had dreams about sucking on your boobs and milk coming out.” She said that she thought this was a disgusting thing to say and that she walked away, back to Specimen Reception, without saying anything. Colleague A explained that “words were words” and she didn’t want there to be an uncomfortable atmosphere. She frankly accepted that she did not report this incident at the time.
73. The Registrant strongly denied this particular, stated that he had never said anything like this, had no idea where Colleague A would have got this from and maintained that Colleague A had “ganged up” against him in collaboration with management.
74. The Panel considered the context of this allegation and the evidence presented. It preferred Colleague A’s evidence, which it found clear, plausible and persuasive, accepting her evidence that this comment was made in the context of the previous question that the Registrant had just asked about whether she still had milk in her breasts. It found her description of her reaction, that she felt disgusted and walked away, to be credible. The Registrant’s case was a blanket denial. He had been asked what motive he believed Colleague A had for making a false allegation against him and he was not able to give one other than that she was acting as part of a conspiracy against him. The Panel was satisfied by the evidence of Colleague A that it was more likely than not that the Registrant did make this comment to her and found the sub-particular proved on the balance of probabilities.
d. On or around 5 February 2018, you:
i. Said to Colleague A “I wanted to suck on your boobs to see if any milk came out” or words to that effect.
75. Colleague A recalled that during her shift on 5 September 2018, she went on her break between 3.30 p.m. and 3.50 p.m. She said that when she returned from her break, Witness 6 told her that the Registrant had called looking for her and had asked for her. Later in her shift, she said that she was walking back into the laboratory when the Registrant approached her and said that he had been looking for her. She said that she asked him what he had wanted and the Registrant replied, “I wanted to have a suck on your boobs and see if milk came out.” Colleague A said that this made her feel very uncomfortable, that she thought she remembered telling the Registrant to shut up and that she walked away. Colleague A said that she did not report the incident to management and that she just shrugged the incident off, reasoning again that “words were words”. Colleague A said, though, that she immediately told Witness 6 what had just happened. Witness 6 confirmed to the Panel that Colleague A reported to him that the Registrant had just made that comment to her.
76. The Registrant vehemently denied this particular and any conversation of the sort. He maintained that the only conversation he had had with Colleague A concerning her breastfeeding was around Colleague A’s desire to lose weight before her birthday. The Registrant said that he simply asked Colleague A if she was still breastfeeding as it was his understanding that a woman shouldn’t want to lose weight if breastfeeding.
77. The Panel considered the context of this allegation and the evidence presented. Again, Colleague A provided the only direct evidence of these matters, but there was some support for Colleague A’s evidence in that she immediately reported to Witness 6 what the Registrant had said. The Panel preferred Colleague A’s evidence, which it found clear and plausible, to that of the Registrant, and was satisfied that it was more likely than not that the incident occurred as described by Colleague A.
ii. Said to Colleague A “are you sure you have no milk in your boobs?” or words to that effect.
iii. Put your hand on Colleague A’s waist.
iv. Felt Colleague A’s breasts one or more times.
v. Felt Colleague A’s bottom one or more times.
78. The incidents alleged in sub-particulars 1(d)(ii-v), involving touching Colleague A on various parts of her body and asking her if she was sure she did not have milk in her breasts, are alleged to have occurred on one occasion, as a single incident, at the end of Colleague A’s shift on 5 February 2018. Colleague A again provided the only direct evidence of these matters. The Panel considered her to be clear and consistent in her account and found her evidence convincing.
79. The Panel noted that the Registrant denied the allegations, said that they were all “false allegations” but accepted that he said goodbye to Colleague A at that time. He maintained that Colleague A had hugged him but that “I did not touch her at all.”
80. In relation to the comment alleged at particular 1(d)(ii), the Panel accepted Colleague A’s evidence that this comment followed on from the comment made to her by the Registrant earlier in the day around his dreaming of sucking on her breasts. She stated in evidence that he made the comment alleged at 1(d)(ii) while he was moving his hand up her body and cupping her left breast. It noted that the Registrant categorically denied making the comment, maintaining that he would not ask this of a married woman. The Panel was mindful, though, that the Registrant had accepted that he had had a conversation with Colleague A on that day about breastfeeding.
81. The Panel considered the context of this allegation and the evidence presented. It preferred Person A’s evidence, which it found clear, detailed and plausible. It bore in mind that Colleague A had reported these incidents immediately to Witness 2, some moments later, and then to Witness 3 soon after that, in the absence of Colleague A’s own supervisor. Both Witnesses 2 and 3 gave evidence as to Colleague A’s demeanour and that she appeared shocked. The Panel was satisfied that it could give weight to this tested hearsay evidence.
82. The Panel found that it was more likely than not that the Registrant did make the comment at 1(d)(ii) to Colleague A and that he touched her body as alleged at 1(d)(iii), (iv) and (v) and found these particulars proved.
Particular 2 – Proved in its entirety
In relation to Colleague B, on or around 25 December 2017, you:
a. Attempted to touch Colleague B’s bottom.
b. Attempted to put your hand(s) down Colleague B’s pants.
c. Touched Colleague B’s breasts.
d. Touched Colleague B’s bottom.
e. Touched Colleague B’s waist.
83. The incidents alleged in the sub-particulars to particular 2, involving touching Colleague B on various parts of her body, are alleged to have occurred on one occasion, as a single incident, on the evening of 25 December 2017. Colleague B provided the only direct evidence of these matters.
84. The Panel noted that the Registrant accepted that he was on late shift with Colleague B on this date and that he accepted that he had gone downstairs to the basement with Colleague B, although he stated that Colleague B had asked him to accompany her, rather than the other way round.
85. Colleague B’s written statement provided clear detail as to what was a prolonged attempt by the Registrant to touch Colleague B. She detailed how, when the Registrant initially tried to put his hand down the back of her trousers, she dropped the plastic racks, which scattered onto the floor and that she later went back to pick them up. The Panel found that, in oral evidence, she gave a generally consistent account of this incident and did not seek to embellish her account. The Panel noted that Colleague B’s evidence was that the Registrant did not repeat the conduct on other occasions and that he was otherwise professional in his dealings with her.
86. The Registrant’s evidence was that none of this happened and he denied any alleged physical contact. He maintained that he had simply accompanied Colleague B downstairs at her request, and they had both brought empty racks up from the basement.
87. On balance, the Panel preferred Colleague B’s evidence to that of the Registrant. The Panel did not find that the fact that she didn’t report it at the time, as she didn’t know what to do, undermined her credibility. The Panel accepted that Colleague B was taken aback by what the Registrant had done to her and was concerned how she might be viewed if she reported the incident. The Panel accepted Colleague B’s evidence and was satisfied that the Registrant did move behind her and touch her body as alleged in particulars 2(a)-(e). It found particular 2 proved in its entirety on the balance of probabilities.
Particular 3 – Proved
On an unknown date you said to Colleague B “oh are you going to rub it for me now?” or words to that effect.
88. In her written statement, Colleague B’s evidence was that whilst pushing a trolley she nudged the bottom half of the Registrant’s body, which she further clarified as being near to his “crotch”. In cross examination, she accepted that it could have been the Registrant’s leg that she nudged with the trolley. Colleague B stated that she had a clear recollection of this comment made to her by the Registrant and was clear that he had used the word “rub”. The Panel noted that Colleague B did not try to embellish her evidence on this point and considered that the fact that Colleague B said that she regarded it at the time as a “jokey comment” that was “slightly inappropriate” and did not take any action in relation to it, added to her credibility.
89. The Registrant had no recollection of making the comment but maintained that, if he had made such a comment, Colleague B had “taken it out of context.” He said in evidence that it could have been his foot or knee that had been knocked.
90. The Panel accepted Colleague B’s evidence and was satisfied that it was more likely than not that the Registrant had made the comment as alleged. It therefore found particular 3 proved on the balance of probabilities.
Particular 4 - Proved
Your actions as set out in paragraphs 1-3 were sexually motivated.
91. The Panel considered the case law carefully. The Panel had in mind the definition of ‘sexually motivated’ given in Basson v GMC  EWHC 505 in which Mostyn J stated that a sexual motive may be inferred from conduct done in pursuit of sexual gratification. In making such a finding, the Panel must have regard to inference or deduction from the surrounding circumstances and the evidence as a whole. It reviewed the guidance in the case Arunkalaivanan v GMC. It was mindful of the need to consider and assess all the evidence, including the character evidence. It considered all the circumstances of the case. It bore in mind that it may find sexual motivation only if it finds, on the balance of probabilities, that there was sexual motivation from direct evidence or where it can reasonably draw inferences of sexual motivation from the evidence.
92. In relation to particulars 1, 2 and 3, the Panel asked itself what motivated the Registrant, who has a long career as a Biomedical Scientist and is of good character, to touch and make statements to Colleagues A and B as has been found proved. In respect of all the particulars and sub-particulars except for 1(b) and 3, the Panel was satisfied that, from all of the circumstances, the Registrant was pursuing his own sexual gratification. It considered that, on its own, particular 1(b) and asking for Colleague A’s mobile number did not necessarily indicate sexual motivation but the Panel gave careful consideration to its context. Further in respect of particular 3, the Panel considered the use of the word “rub” and was of the view that, in this context, there was a sexual meaning behind it.
93. The Panel considered that the nature of the conduct it has found proved in particulars 1, 2 and 3 and indeed, in the Panel’s view, it being a pattern or course of conduct, was such that a reasonable member of the public would consider that the conduct in each sub-particular found proved must have been done with a view to sexual gratification. The Panel determined that there was no other plausible explanation for the Registrant’s actions in particulars 1, 2 or 3 either, other than that they were sexually motivated. The Panel considered that the comments made, and the touching found proved in each of particulars 1 and 2 and the statement made in particular 3 were in pursuit of sexual gratification and that it could properly infer a sexual motive. The Panel therefore determined that particular 4 was proved in relation to particulars 1, 2 and 3 on the balance of probabilities.
Decision on Grounds and Impairment:
94. The Panel considered whether the facts it had found proved amounted to misconduct and if so, whether the Registrant’s fitness to practise was currently impaired. The Panel considered these issues in two separate stages. The Panel considered the submissions of both parties. It accepted the advice of the Legal Assessor and was referred to the HCPTS Practice Note, Finding that Fitness to Practise is Impaired.
95. In respect of misconduct, the Panel was advised that this was a matter for its own judgement, rather than the application of a legal standard of proof. The Panel had in mind the definition of misconduct in Roylance v General Medical Council  1 AC 311 to the effect that misconduct is “some act or omission which falls short of what is proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.” The Panel was advised that in order to find misconduct, the Panel must be satisfied that the falling short is serious and that the necessary degree of seriousness has been described as “conduct which would be regarded as deplorable by fellow practitioners” Nandi v GMC  EWHC 317 (Admin).
96. In considering whether the ground of misconduct was made out, the Panel reviewed each of its individual findings of fact against the Registrant. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious to amount to misconduct. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved. The Panel has found that the Registrant inappropriately touched Colleagues A and B and behaved towards them in a manner that was sexually motivated. The facts found proved took place in a professional work environment.
97. In reaching its decision on misconduct, the Panel had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and concluded that the following standards were engaged and breached:
Standard 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
98. The Panel, exercising its own professional judgement, concluded that the conduct found proved in each individual particular, and the subsequent findings of sexually motivated conduct in relation to each, fell seriously short of what would be proper in the circumstances and amounted to misconduct. The Registrant’s behaviour towards Colleagues A and B, involving sexual touching and suggestive comments, was deliberate and intentional and, in relation to Colleague B, took place when she was alone with him in the basement. It indicated a pattern of inappropriate behaviour that was wholly unacceptable and caused emotional harm to Colleagues A and B. Overall, the Panel considered that the Registrant’s conduct lacked professional integrity and was of the view that fellow registrants would consider it to be nothing short of deplorable.
99. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as anything other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC. Therefore, the statutory ground of misconduct has been established.
100. The Panel next considered the issue of current impairment. It heard submissions from both parties, accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on Finding that Fitness to Practise is Impaired.
101. The Panel recognised that there is no burden or standard of proof and that this is a matter for the Panel’s independent judgment. Whether fitness to practise is impaired has to be assessed at today’s date. The Panel’s task is not to “punish for past misdoings” but it does need to take account of past acts or omissions in determining whether the Registrant’s fitness to practise is impaired. As required, the Panel considered the matter from the perspective of both the personal and public components. It bore in mind the guidance in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant  EWHC 927. The Panel’s duty is not only to protect patients and colleagues but to maintain public confidence in the profession and the regulatory process, which includes the declaring and upholding of proper standards of conduct and behaviour. Biomedical Scientists occupy a position of privilege and trust in society and are expected at all times to be professional.
102. In reaching its decision, the Panel considered the evidence of how the Registrant has conducted himself as a Biomedical Scientist in the past. The established misconduct in this case is serious as it involves repeated sexually motivated behaviour, through which Colleagues A and B suffered emotional harm. It was clear from character references provided to the Panel, and from oral evidence from some of the HCPC witnesses at the Trust who were aware of the allegations, that the Registrant is a competent Biomedical Scientist in a clinical setting. However, this case is not concerned with clinical issues. The Panel balanced the evidence before it from the Registrant’s colleagues that he is otherwise appropriate in his professional dealings with colleagues, with the conduct found proved in this case.
103. In considering the personal component of current impairment and whether the Registrant’s conduct poses a risk to others, the Panel considered the areas of insight, remorse and remediation. In light of the sexually motivated misconduct in this case, which the Panel considered to be attitudinal in nature, the Panel was of the view that whilst the misconduct was potentially remediable it would be difficult to do so. In any event, the Registrant has denied these matters throughout and has not taken any steps towards addressing or remediating the misconduct. He had not shown any remorse or acknowledged the impact of his behaviour on Colleagues A and B. The Panel did however acknowledge that the Registrant had shown some degree of insight by stating that, although he could not and would not admit to what was alleged, he understood absolutely the severity of the allegations and of the harm that would be caused to a victim subjected to such behaviour. Given the Registrant’s denial of his past misconduct and his lack of insight, balanced against the repeated misconduct in this case towards two colleagues, the Panel could not be reassured that the risk of recurrence was low. The Panel was of the view that the Registrant has in the past acted and/or is liable in the future to bring the profession into disrepute and to have in the past breached and/or is liable to breach one of the fundamental tenets of the profession. In this instance the Registrant’s conduct was a breach of trust. For all of these reasons, the Panel concluded that the Registrant’s fitness to practise was impaired under the personal component.
104. The Panel also reminded itself of the public component in Cohen v General Medical Council  EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.” In relation to the wider public interest, the Panel was in no doubt that an informed member of the public would consider that public confidence in the Biomedical Scientist profession would be seriously undermined if there was no finding of impairment in this case. The nature of the misconduct, involving repeated sexually motivated conduct towards two colleagues, is such that public confidence and trust in the profession would be gravely diminished if no finding of impairment were made. The Panel also took the view that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in the Biomedical Scientist profession if it did not find impairment in this case. Biomedical Scientists should be in no doubt that this sort of behaviour is unacceptable.
105. The decision of the Panel that the Registrant’s fitness to practise is impaired upon consideration of both personal and public components, has the consequence that the Panel must consider the issue of sanction.
Decision on Sanction:
106. The Presenting Officer reminded the Panel of the principles to be applied when deciding on the appropriate sanction and addressed the Panel in relation to relevant paragraphs of the HCPC Sanctions Policy, as revised in March 2019.
107. The Registrant addressed the Panel in relation to his personal circumstances and financial hardship. He assured the Panel that he understood the gravity of what had been alleged and its potential impact on Colleagues A and B if he had done what had been alleged. He went on to state that he recognised the negative impact upon his profession and the HCPC. He submitted that he would ensure that there would be no room for anyone to make such allegations against him in the future.
108. The Panel considered the HCPC Sanctions Policy and accepted the advice of the Legal Assessor.
109. The Legal Assessor reminded the Panel that it should consider any sanction in ascending order and apply the least restrictive sanction necessary to protect the public in its broadest sense. She referred the Panel to the case of Arunachalam v General Medical Council  EWHC 758, which involved sexually motivated conduct towards two colleagues. She advised that sexual misconduct cases should not be regarded as leading to automatic strike-off and require proper consideration of the least serious sanction required to protect the public and maintain confidence, just as any other category of misconduct does. In answer to a question from the Panel, the Legal Assessor confirmed that the referenced case involved the unwanted touching of a junior colleague, which included tickling, nudging and, on one occasion, hugging and kissing the colleague on the top of her head.
110. The Panel began its deliberations by identifying and evaluating the mitigating and aggravating factors, before reaching a final decision on sanction.
111. The mitigating factors are as follows:
• The Registrant is of previous good character with no previous concerns about his conduct prior to the incidents which were the subject of the present Allegation.
• There was evidence from a number of HCPC witnesses, including from the Registrant’s manager, that he acted professional and appropriately in his usual dealings with colleagues. A number of positive character references had also been submitted by the Registrant.
• Although the Registrant has continued to deny the allegations, he has demonstrated some insight into the gravity of the allegations.
• The Registrant has engaged fully throughout these regulatory proceedings.
• The incidents did not involve direct harm or risk of harm to public safety or to patients.
112. The aggravating factors are as follows:
• The conduct proved includes repeated and prolonged sexually motivated conduct towards two junior colleagues, indicative of an attitudinal issue. The Registrant’s conduct towards Colleague A was a premeditated course of behaviour.
• The conduct involved a breach of trust within the workplace.
113. There was no evidence of remorse or remediation, with a consequent risk of repetition of the misconduct.
114. The Panel then considered the available sanctions and the principles in the Sanctions Policy. It had in mind that the purpose of the sanction was to protect the public and to maintain public confidence in the profession and the regulatory process. The Panel also had regard to the principle of proportionality in determining the appropriate sanction. The Panel gave careful consideration to the case of Arunachalam (referenced above). It considered that the sexually motivated touching that it had found proved in this case, involving touching two colleagues’ breasts and bottoms and attempting to put his hand down Colleague B’s pants, was more serious than the touching found proved in Arunachalam. The Panel considered that the sexually motivated conduct it had found proved was towards the top end of seriousness of cases of this nature.
115. The Panel had regard to paragraphs 76-77 of the Sanctions Policy. Paragraph 76 states: Sexual misconduct is a very serious matter, which has a significant impact on the public and public confidence in the profession. Paragraph 77 states: Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning. The Panel was mindful that the Registrant had continued to deny the allegations. There was no evidence of understanding from the Registrant about what he did wrong or evidence of any attempt to address the wrongdoing.
116. The Panel approached the ladder of sanction, beginning with the least restrictive sanction first. The allegations found proved are serious and deliberate; they involve a breach of trust, which is a fundamental tenet of the profession, and findings of sexual motivation. It determined that such findings are too serious to make no order (or to consider mediation).
117. The Panel then considered and discounted a Caution Order, deciding that it was also inappropriate in this case, because of the sexually motivated misconduct which was sustained and deliberate, and the limited evidence of insight and no remediation.
118. The Panel next considered a Conditions of Practice Order. The Panel took into account paragraph 108 of the Sanctions Policy which states that Conditions are less likely to be appropriate in more serious cases, for example those involving sexual misconduct. In light of its findings, the Panel did not consider that a Conditions of Practice Order would be an adequate or proportionate sanction and would not satisfy the public interest. Further, in light of its findings of sexually motivated conduct, the Panel was of the view that there were no suitable conditions of practice that could be formulated or that would be workable and proportionate.
119. The Panel considered whether a Suspension Order was appropriate after taking into account the guidance at paragraph 121 of the Sanctions Policy. The Panel has found that the Registrant’s actions were serious and deliberate and involved a breach of trust and a serious breach of professional standards. In addition, the matter of sexual misconduct requires a more serious sanction as a matter of principle. The Panel has found that the Registrant has shown limited insight and no evidence of remediation. The Panel was mindful that sanction is primarily about public safety, that the public interest is important and that suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight. Given its findings as to the nature and gravity of the misconduct in this case, coupled with the limited insight and no remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate. Suspension would fail to adequately address the public interest and the need to send an appropriate deterrent message to the profession.
120. The Panel considered the Registrant’s interests. It bore in mind that the Registrant would continue to suffer serious financial hardship, as would his wider family dependents. However, in light of its findings, the Panel considered that the need to protect the public and the public interest, by sending a clear message and upholding and declaring proper standards, outweighs the Registrant's interests.
121. The Panel considered paragraph 130 of the Sanctions Policy and noted that this is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):…sexual misconduct… The Panel determined that any lesser sanction than a Striking Off Order would fail to reflect the nature and gravity of the misconduct, it would lack the necessary deterrent effect on the profession and would not provide the necessary protection for the public in its broadest sense. The Panel accordingly determined to impose a Striking Off Order.
Order: The Registrar is directed to strike the name of Mr Oyewumi Aderibigbe from the Register on the date this Order comes into effect.
Determination on Interim Order:
1. The Panel heard an application from the Presenting Officer for the imposition of an 18 month interim suspension order on the Registrant’s registration to cover the appeal period. He submitted that such an order is necessary to protect the public and is otherwise in the public interest.
2. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the SP and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.
3. The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Striking Off Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the misconduct in this case and the risk of repetition.
4. The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001. The Panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest to maintain confidence in this regulatory process. The Panel has had regard to the nature and gravity of the conduct it has found proved, namely sexually motivated misconduct, and the resulting public protection concerns and the full reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as a Biomedical Scientist during the appeal period.
5. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.
6. If no appeal is made, then the interim order will be replaced by the Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.
7. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
8. 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.
History of Hearings for Mr Oyewumi A Aderibigbe
|Date||Panel||Hearing type||Outcomes / Status|
|12/02/2020||Conduct and Competence Committee||Final Hearing||Struck off|