Mr Paul J Bromley

Preliminary Matters

Service

1.The Panel heard that Notice in respect of this hearing was sent by email to the Registrant’s registered email address on 15 May 2020 in accordance with rules 3 and 6 of the Conduct and Competence Procedure Rules 2003 (the Rules).
 
2.The Panel heard and accepted the advice of the Legal Assessor and determined that the Notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant

3.Ms Sheridan informed the Panel that the only communications received from the Registrant this year had been 2 emails dated 27 May 2020 where he confirmed his identity and agreed to accept documents via email; and a further email dated 28 May 2020 where he confirmed that he had been able to access the bundle of documents. There had been no response to the 14 January 2020 Notice of Allegation or to the 15 May 2020 Notice of Hearing.

4.Ms Sheridan referred the Panel to the guidance contained in the HCPTS Practice Note on Proceeding in the Absence of the Registrant and invited the Panel to proceed with the Hearing.

5.Ms Sheridan submitted that, by reason of his lack of engagement, it appeared that the Registrant had chosen not to attend this hearing and had waived the right to be present. Ms Sheridan submitted that the public interest in the expeditious disposal of the allegation outweighed any disadvantage to the Registrant in proceeding in his absence. In the circumstances, she submitted that it was appropriate for the Panel to exercise its discretion to proceed with the Hearing.

6.The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones [2002] UKHL5, Adeogba v the General Medical Council [2016] EWCA Civ 162 and Davies v HCPC [2016] EWHC 1593 (Admin).

7.The Panel recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. It would run counter to that objective if a Registrant could effectively frustrate the process by deliberately failing to engage.

8.The Panel was satisfied that the Registrant is aware of today’s hearing, had voluntarily absented himself and had waived the right to be present. The Panel noted that the Registrant had not sought an adjournment and the Panel had no reason to believe that adjourning the hearing was likely to result in his attendance on a future occasion. The Panel balanced the public interest in the timely disposal of the allegation with the disadvantage to the Registrant should the hearing proceed in his absence.

9.On the basis of the information before it, the Panel determined that it would be fair and in the interests of justice to proceed in the absence of the Registrant.

Background

10.The Registrant is registered with the HCPC as a Radiographer. Between 28 March 2019 and 03 April 2019, the Registrant engaged in communication of a sexual nature with a person who purported to be a 13 year old girl. This person was in fact an undercover Police Officer.

11.During the course of the communication, the Registrant arranged to meet the child on 3 April 2019, and made it clear that he would like to engage in sexual activity with her. Upon his arrival at the meeting location, the Registrant was arrested by the Police. The Registrant’s phone was confiscated and a number of indecent images were discovered when the Police interrogated the device.

12.On 19 August 2019, the Registrant appeared before Preston Crown Court and was convicted of the offences detailed within the allegations. On 4 October 2019, the Registrant was sentenced to 12 months imprisonment, and was made subject to a Sexual Harm Prevention order for 10 years and required to sign the Sex Offenders Register for 10 years.

13.Ms Sheridan opened and summarised the Council’s case. She referred the Panel to the Registrant’s Certificate of Conviction and submitted that, in accordance with Rule 10 (1) (d) of the Rules, the Panel should accept the Certificate of Conviction from the Crown Court at Preston as conclusive proof of the convictions themselves and the underlying facts.

Decision on Facts

14.The Panel was mindful that the burden of proving the facts is on the Council, that the Registrant is not required to prove anything and that any fact alleged is only to be found proved if the Panel is satisfied on the balance of probabilities that it is correct.
15. In reaching its decision, the Panel had careful regard to the submissions of Ms Sheridan, and the HCPTS Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that it could not go behind the convictions and was required by Rule 10 (1) (d) of the Conduct and Competence Committee procedure Rules 2003 to accept the Certificate of Conviction from the Crown Court at Preston as conclusive proof of the convictions themselves and the underlying facts.

Particular 1 a) and b) - Found Proved

1) On 19 August 2019 in the Preston Crown Court you were convicted of;
a)  Adult attempt to engage in sexual communication with a child.
b)  2 x Attempt to cause / incite a girl 13 to 15 to engage in a penetrative sexual activity – offender 18 or over.
16. The Panel gave careful consideration to the Certificate of Conviction in the name of the Registrant, which was signed by an Officer of the Court on 22 October 2019. The Panel accepted the Certificate of Conviction as conclusive evidence that, in the Crown Court at Preston on 19 August 2019, the Registrant was tried and convicted of one count of Adult attempt to engage in sexual communication with a child and two counts of Attempt to cause / incite a girl 13 to 15 to engage in a penetrative sexual activity – offender 18 or over.

17.Based on the Certificate of Conviction, the Panel was satisfied that the facts as set out in Particular 1a) and b) had been proved.

Decision on Grounds

18.The Panel had no doubt that, by their nature, the Registrant’s convictions as set out above, are extremely serious. The Panel was satisfied that Conviction as a potential ground of impairment had been established.

Decision on Impairment 

19.The Panel went on to consider whether the Registrant’s fitness to practise is impaired by reason of his convictions. It had careful regard to all the evidence before it, including the Police Report, the Registrant’s pre-conviction letter to the HCPC and the Judge’s sentencing remarks.

20.The Panel had careful regard to the submissions of Ms Sheridan, and in particular her submission that the imposition on the Registrant of a 10 year Sexual Harm Prevention Order rendered his continued presence on the HCPC Register incompatible with the HCPC’s obligation to protect the public.

21.The Panel had no doubt that, by reason of his convictions, the Registrant presents a risk to the public, has breached fundamental tenets of the profession of Radiography and brought the profession into disrepute.

22.The Panel had careful regard to the sentencing remarks of Her Honour Judge Lunt after the Registrant had been convicted:

•“Very late in the day and in the face of overwhelming evidence you pleaded guilty...The defence that you purported to raise during the course of your trial defied common sense and you should have pleaded guilty an awful lot earlier...

•You believed you were communicating with a 13 year old girl, your suggestions are sexually explicit and persistent especially when she seems to want to disengage and your suggestions included having sexual intercourse with her and performing oral sex upon her, you being 56 and believing that she was 14...

•It is difficult to understand why at 56 and never having been in trouble with the police before you should behave in such a sexually perverted manner at this age. The result for you is life changing, I accept that, you have lost your wife, it will be difficult to retain the same relationship with other members of your family I am sure and once released you will have no home to go to but that is all your fault, nobody else’s.

•I have to consider the sentencing guidelines and...to reflect the fact that no actual harm was caused here because there was no actual child victim...The exchanges show that there was grooming behaviour by you towards what you believed was this child but it was for a brief period being about 11 days...my judgment would have been one of 15 months imprisonment. I reduce it a little for credit for your guilty plea and the sentence is that you will go to prison for 12 months in respect of each count...they will be concurrent with each other, a total of 12 months...You serve half of that sentence, then you will be released and you will be on licence. During that licence you must do what probation tell you to do...or you can be returned to custody and serve the whole of the sentence.

23.The Panel accepted the advice of the Legal Assessor and had careful regard to the HCPTS Practice Note entitled Finding that Fitness to Practise is “Impaired”.

24.In addressing the personal component of impairment, the Panel considered whether the Registrant was liable, now and in the future, to repeat conduct of the kind which led to his convictions. In reaching its decision, the Panel had particular regard to the issues of insight, remediation and the Registrant’s history.

25.The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”

26.The Panel had careful regard to the Registrant’s letter of 19 May 2019 from prison to the HCPC in which he stated: “I am informing you to take me off the Radiographer’s List immediately as I am resigning from my position...with immediate effect. *N.B. This is NOT an admission of guilt because I am not guilty of what I am being accused of irrespective of what the outcome of my upcoming trial may be.” Although he did ultimately plead guilty to the charges set out above, the Panel noted that the Registrant had initially entered pleas of not guilty.

27.The Panel noted the limited mitigation put forward on the Registrant’s behalf at Preston Crown as follows: “[The Registrant], whilst accepting his act and the fact that he behaved in such a way that was grossly inappropriate and offensive, struggles with an explanation as to how he came to be engaged in this act...I do advance remorse on his behalf although I have to accept that I cannot offer a complete explanation...”

28.The Registrant’s engagement with the HCPTS process has been minimal. As a consequence, the Panel has not had the benefit of live evidence or a reflective piece from the Registrant. For this reason, the Panel concluded that it had received no evidence which might enable it to conclude that the Registrant has demonstrated meaningful insight into his failings.

29.The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that panels should take account of:

• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.

30.The Panel recognised that where there have been findings of fact which relate to sexual misconduct, the efforts made by a practitioner to address his problems and to reduce the risk of recurrence are likely to be of limited significance. In the absence of meaningful engagement from the Registrant, the Panel has received no information which might enable it to conclude that the Registrant has made any such efforts.

31.In relation to the Registrant’s history, the Panel noted that the Registrant has no previous convictions. It had received no information to suggest there had been any previous issues in respect of his fitness to practise as a registered Radiographer.

32.In the absence of meaningful insight or remediation, the Panel was unable to conclude that the Registrant is unlikely to repeat matters of the kind which led to his convictions.

33.The Panel had careful regard to the critically important public policy issues identified by Silber J in the case of Cohen when he said:
  “Any approach to the issue of whether .... fitness to practise should be  regarded as ‘impaired’ must take account of ‘the need to protect the  individual patient, and the collective need to maintain confidence in the  profession as well as declaring and upholding proper standards of   conduct and behaviour.”

34.While the Panel recognised that the conduct which led to the convictions in this case did not result in harm to a child, this was a consequence of the under-cover police operation and not of any restraint or limitation of intent on the part of the Registrant who believed himself to be communicating with a child. Further, the Registrant’s actions were so serious that Her Honour Judge Lunt considered it necessary to impose substantial concurrent sentences of imprisonment for the offences. The Panel noted that the conduct was not a single isolated act on a single occasion but was a course of conduct pursued over a period of time.

35.In all the circumstances, the Panel was unable to conclude that the Registrant would not pose a danger to female children he might encounter in the course of his professional life. As a consequence, the Panel decided that a finding of current impairment in respect of the personal component is necessary.

36. In addition, the Panel had no doubt that the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and performance would be undermined if it did not make a finding of current impairment of fitness to practise on public interest grounds. In the Panel’s view, reasonable members of the public, provided with the information which had been put before the Panel would be appalled if a finding of impairment was not made.

37.For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his convictions, in terms of both the personal and public component. Accordingly, the Panel found the Allegation well founded.

Decision on Sanction

38.The panel next considered what, if any, sanction to impose on the Registrant’s registration.

39.The Panel had careful regard to all the evidence put before it, and also to the submissions of Ms Sheridan who drew the Panel’s attention to the HCPC’s Sanctions Policy and took the Panel through the relevant paragraphs in terms of the type of offence and the options open to it.

40.The Panel accepted the advice of the Legal Assessor.

41.The Panel had particular regard to those parts of the Sanctions Policy which appear under the headings “Sexual misconduct”, “Sexual abuse of children” and “Sex offender”.

42.The Panel noted the provisions of Paragraphs 79 and 85 of the Policy which state:

“79. Sexual abuse of children, whether physical or online, is intolerable, seriously damages public safety and undermines public confidence in the profession. Any professional found to have participated in sexual abuse of children in any capacity should not be allowed to remain in unrestricted practice.”
“85. Although inclusion on the sex offenders’ database is not a punishment, it does serve to protect the public from those who have committed certain types of offences. A panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database.”

43.In reaching its decision the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.

44.The Panel had in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The Panel considered the options open to it in light of the guidance provided in the case of General Dental Council & Fleischmann (2005) EWHC 87 (Admin) that:                                                                                
“where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence.”

45.On 4 October 2019, the Registrant received a 12 month prison sentence, albeit that he was to be released on licence after 6 months subject to recall during the remaining 6 months. In these circumstances, the Registrant is not scheduled to complete his sentence until 4 October 2020. The Panel considered that the so-called ‘Fleischmann Principle’ does apply in this case, and concluded that the only options open to it at this time are to impose a suspension order of up to 12 months or to impose a striking off order.

46.In reaching its decision on sanction, the Panel had regard to all the circumstances, including the following aggravating and mitigating features of the case:

Aggravating -

•The conduct which led to the convictions was so serious it could only be dealt with at Crown Court by the imposition of a sentence of immediate imprisonment.
•The conduct which led to the convictions involved 3 counts of attempted sexual misconduct with a minor, was clearly predatory and included “grooming behaviour” over a period of 11 days.
•The Registrant has demonstrated no meaningful insight or remediation.

Mitigating –

•The Panel was unable to identify any mitigating features.

47.The Panel first considered the imposition of a Suspension Order. It gave careful consideration to Paragraphs 39-45 of the Indicative Sanctions Policy. Given its findings in respect of seriousness, insight and the risk of repetition, the Panel had no doubt that this case does not meet the criteria set out in the Sanctions Policy for the imposition of a Suspension Order.

48.In the Panel’s view, the seriousness of this case is such that a Suspension Order would be insufficient to protect the public, or to uphold public confidence in the Radiography profession, and in the regulatory process. The Panel concluded that the seriousness of the convictions are such that a suspension order would be wholly disproportionate and would actively undermine public confidence in the regulatory process.

49.The Panel next considered the imposition of a striking off order. It had no doubt that this case fulfils the criteria for striking off as set out in the Sanctions Policy (i.e. Sexual misconduct and conviction for a serious offence). Having concluded that a lesser sanction in the form of a period of suspension would not provide adequate public protection, and would not be sufficient in the public interest, the Panel determined that a striking-off order is the only appropriate and proportionate response.

50.In the Panel’s view, the Registrant’s actions are entirely incompatible with his continued presence on the Register, and members of the public would be shocked if he were to be permitted to remain. The Panel had no doubt that public confidence in the profession, the regulator and the Register would be seriously undermined if the Registrant were permitted to remain on the Register.

51.For this reason, the Panel determined to impose a Striking Off Order.

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

Interim Order:

1. The Panel heard an application from Ms Sheridan to cover the appeal period by imposing an 18 month Interim Suspension Order on the Registrant’s registration. She 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 noted that the Registrant had been informed, in the Notice of Hearing dated 15 May 2020, that if this Panel found proved the allegation against him and imposed a sanction which removed, suspended or restricted his right to practise, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider Ms Sheridan’s application.

3. The Panel had careful regard to Paragraphs 133-135 of the Sanctions Policy which deals with Interim Orders. It 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. The Panel took into consideration the impact such an order would be likely to have on the Registrant. However, the Panel was mindful of its findings in relation to the lack of insight and remediation and that there is a risk of repetition of conduct of the kind which led to the convictions.

4. In the circumstances, the Panel considered that there is a serious and on-going risk to service users or the public from the Registrant’s conduct. In addition, the convictions are so serious that public confidence in the profession or the regulatory process would be seriously harmed if the registrant was not made subject to an interim order during the appeal period. In the Panel’s view, not to impose an order would be inconsistent with its finding that a substantive Striking Off order is required.

5. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

6. The Panel recognised that if the Registrant were to appeal against its substantive order the period of 18 months might well elapse before the appeal could be heard and determined. The Panel noted that if the Registrant does not lodge an appeal within the 28 day appeal period, any interim order which this Panel imposes will automatically expire. For these reasons the Panel was satisfied that the duration of the Interim Order should be 18 months.

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7. 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 Paul J Bromley