Mr Kevin Edward Hatt

Profession: Operating department practitioner

Registration Number: ODP22393

Interim Order: Imposed on 13 Nov 2020

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 13/11/2020 End: 17:00 13/11/2020

Location: Virtual Hearing

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Amended Allegation

As a registered Operating Department Practitioner (ODP22393) your fitness to practise is impaired by reason of conviction. In that:

1. On 20 November 2019, at Teesside Magistrates Court, you were convicted of:

(a) Three (3) counts of making indecent photographs / pseudo-photographs of a child;
(b) One (1) count of possession of a prohibited image of a child;
(c) Three (3) counts of distribution of an indecent photograph / pseudo-photograph of a child.

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

Finding

Preliminary matters

Service of the Notice of hearing

1. The Panel noted that the Notice of Hearing letter dated 7 September 2020 was sent by first class post to the Registrant in prison, where he is serving a custodial sentence. The Notice contained the date and time of today’s hearing, the fact that it would be conducted remotely via video conference and invited the Registrant to participate.

2. The Panel had sight of the postal tracking reference number, confirming the sending of the Notice of Hearing on 8 September 2020 to the Registrant. The Panel also had before it an email dated 12 June 2020 from the Prisoner Location Service, providing details to the HCPC of the prison that the Registrant is residing in and his allocated Prisoner Number.

3. The Panel noted that the HCPC’s statutory requirements for service under Rule 3(1)(b) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) - that the Notice of Hearing be sent to the Registrant’s address as it appears on the HCPC register – had not been satisfied in this case. Upon further enquiry, the Panel was provided with an email from the Registrant to the HCPC dated 30 July 2019 in which the Registrant set out his significant concerns about the HCPC sending a letter to his home address via “normal post”, rather than recorded delivery and asked that the HCPC “do not send me any more post.” In determining how to serve the Notice of hearing in this case, the HCPC undertook a formal risk assessment on 25 August 2020 and decided to send the Notice only to the Registrant’s prison address, marked with his individual Prisoner Number.

4. In light of all the information available to it, the Panel was satisfied that the HCPC had taken all reasonable steps to serve the Notice of Hearing on the Registrant.

Proceeding in the Absence of the Registrant

5. The Registrant was not present or represented at the hearing. The Panel was informed by the Presenting Officer, on behalf of the HCPC, that there had been no communication from the Registrant with the HCPC since 30 July 2019.

6. The Presenting Officer applied for the hearing to take place in the Registrant’s absence. She submitted that the Registrant knew about the hearing, had waived his right to attend and that it was in the public interest to proceed in his absence.

7. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note of September 2018 on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba/Visvardis [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence under Rule 11 is not unfettered and must be exercised with the utmost care and caution, and with the fairness of the hearing at the forefront of its mind.

8. The Notice of Hearing dated 7 September 2020 informed the Registrant of the date and details of the Conduct and Competence Committee hearing, and of his right to attend remotely and be represented. He was also advised of the Panel’s power to proceed with the hearing in his absence if he did not attend and of how he could apply for an adjournment of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find his fitness to practise to be currently impaired. The Registrant had not requested a postponement or adjournment of the hearing.

9. Taking all the above circumstances into account, the Panel concluded that it was unlikely that an adjournment would secure the Registrant’s attendance on a future date. The Panel took the view that the Registrant had not engaged with his regulatory proceedings, that he had voluntarily waived his right to attend and that adjourning this hearing would serve no purpose. The Panel took account of the public interest in the expeditious resolution of regulatory allegations, and the impact of cost and delay caused by an adjournment upon other cases. Following the guidance in the case of Adeogba/Visvardis, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

Application to Amend the Allegation

10. At the outset of the hearing, the Presenting Officer, on behalf of the HCPC, applied for one amendment to be made to the Allegation to accurately reflect the evidence that the Registrant had been convicted in the Magistrates Court rather than the Crown Court.

11. The Registrant had been notified by letter of 26 June 2020 that the HCPC intended to apply formally to amend Particular 1 in this way. The Registrant had not responded.

12. The Panel accepted the advice of the Legal Assessor, who advised that the Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced and consider whether the requested amendment can be made without injustice.

13. The Panel considered that the proposed amendment did not change the substance of the allegation, corrected it and would not cause injustice. Accordingly, the Panel acceded to the Presenting Officer’s application and allowed the amendment to be made. The amended Allegation is as set out above.

Documents

14. The Panel received a bundle of documents from the HCPC comprising a Case Summary, the Notice of Hearing and Exhibits. Included in the bundle of Exhibits were the Certificate of Conviction, the Transcript of Crown Court proceedings, the Judge’s sentencing remarks, the Police MG11 and the Police case summary. The Presenting Officer also provided written Skeleton Submissions to the Panel.

15. No documentation had been received from the Registrant.

Background

16. The Registrant is registered with the HCPC as an Operating Department Practitioner. 

17. On 19 October 2018, Cleveland Police wrote to the HCPC to confirm that the Registrant had been arrested on 18 October 2018 on suspicion of possessing indecent images of children.

18. The Registrant was arrested at his home address, following intelligence provided to Cleveland Police from another police force. The Registrant admitted that he had engaged in activity related to possessing indecent images of children. The Police seized the Registrant’s electronic devices and discovered 7,765 Category A images, 10,919 Category B images and 105,715 Category C images, in addition to a large volume of videos in each category.

19. On 20 November 2019 the Registrant pleaded guilty at Teesside Magistrates Court to three counts of making indecent images of children, one count of possessing a prohibited image of a child and three counts of distributing indecent images of children.

20. On 14 January 2020, at Teesside Crown Court, the Registrant was sentenced to 3 years’ imprisonment, was placed on the Sex Offender Register indefinitely and was made subject to a Sexual Harm Prevention Order for an indefinite period.

Decision on Facts and Ground

21. The Panel took into account the submissions of the Presenting Officer and read her skeleton argument dated 13 November 2020. The Panel was aware that the burden of proof in respect of fact is on the HCPC to the civil standard, namely the balance of probabilities.

22. The Panel also took into account the HCPTS Practice Note ‘Conviction and Caution Allegations’ and accepted the advice of the Legal Assessor. The Panel took into account Rule 10 (1)(d) of the Rules which provides that, where a registrant has been convicted of a criminal offence, a certified copy of the Certificate of Conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based.

23. The Panel had before it both the Memorandum of Entry in the register of Teesside Magistrates Court for 20 November 2019, as well as the signed Certificate of Conviction issued by Teesside Crown Court on 10 March 2020 setting out that the Registrant was sentenced to a period of imprisonment of 3 years, having been convicted for the above offences and that he would be placed on the Sex Offender Register indefinitely and under a Sexual Harm Prevention Order indefinitely. The Panel had also been provided with a certified copy of the transcript of the sentencing hearing on 14 January 2020.

24. The above documents set out clearly the offences for which the Registrant was convicted, and the sentence imposed upon him. On the basis of these documents, which the Panel determined to be reliable evidence of the convictions, and in accordance with Rule 10(1)(d) of the Rules, the Panel was satisfied that the HCPC had discharged the burden of proving that the convictions were recorded against the Registrant. Accordingly, the Panel found that the factual particulars were proved.


Decision on Impairment

25. Having found the factual particular approved which, as convictions, form the statutory ground upon which a finding of impairment may be based, the Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of the convictions.

26. The Presenting Officer submitted that the Registrant’s fitness to practise is currently impaired on both the personal and public components. In relation to the personal component, the Presenting Officer asked the Panel to consider whether, on the information before it, the Registrant has demonstrated an understanding of the seriousness of his conduct, the impact of his conduct on his victims and his profession, and of the causes of his behaviour and how to address those causes. In relation to the public component, she submitted that being convicted of a sexual offence is conduct which must be decried by the regulator and which, if public confidence in the profession is to be maintained, must be marked.

27. There were no submissions from the Registrant before the Panel.

28. The Legal Assessor reminded the Panel that its role was not to go behind the conviction, nor was it to seek to retry the criminal case. She advised the Panel that its task was to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the criminal offences concerned. 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. She referred the Panel to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Legal Assessor also advised the Panel that it should bear in mind the principle of public protection in its broadest sense.

29. The Panel was advised that it could take into consideration that the Registrant pleaded guilty to the offences and that a guilty plea entered at the first reasonable opportunity is indicative of greater insight on the part of the Registrant than one entered at the last moment.

30. The Panel recognised that there is no burden or standard of proof and that this is a matter for its independent judgment. The Panel has taken into account the HCPTS Practice Notes ‘Conviction and Caution Allegations’ and ‘Finding that Fitness to Practise is Impaired.’ It has accepted the advice of the Legal Assessor. As required, the Panel considered the matter from the perspective of both the personal and public components.

31. The Panel considered all of the documentation before it in the HCPC’s hearing bundle, including the judge’s sentencing remarks. From the remarks of the sentencing judge, who described this as “a desperately serious case,” it is clear that in addition to the significant number of indecent images (nearly 128,000), there were some 164 hours of video length involving images of Category A child abuse, involving children aged between 8 months to ten years, some of whom were drugged or intoxicated, and were being orally, anally and vaginally raped by their abusers. The judge described ten specifically aggravating features, including the age and vulnerability of the children; the systemic searching for images portraying young children; the large number of different victims and that some images depicted children who had been drugged or intoxicated. It is also apparent from the remarks of the sentencing judge that the Registrant had been accessing the material over a period of around ten years. The sentencing judge stated that, “it is clear that [the Registrant’s] motivation throughout has been sexual.”

32. So far as the personal component is concerned, the Panel agreed with the sentencing judge’s comment that the offences were very serious and noted that there were a significant number of abusive images downloaded over a lengthy period. Also relevant to the Panel’s consideration was that the custodial sentence continues to run until January 2023. In considering whether he would be liable in the future to act in a similar way again, the Panel had careful regard to matters of insight, remorse and remediation. The sentencing judge described the Registrant as having “taken some active steps to try and lessen the risk of offending in the future” by engaging with support services but there is no information before the Panel about what progress the Registrant has made, since he was sentenced, to address his offending behaviour. The Panel also took into account the Registrant’s plea of guilty at the earliest opportunity, which suggests a degree of insight. However, the Panel was of the view that the insight shown was extremely limited. There is no evidence before the Panel from the Registrant as to any reflection upon the convictions or of the impact of his conduct on his victims or his profession. This lack of evidence of reflection led to the Panel deciding that there was no evidence of remediation before it. In the circumstances the Panel was not able to conclude that there is at the present time anything other than a risk that the Registrant would repeat behaviour of the sort that resulted in the convictions.

33. The Panel next considered the public component and the serious impact of the Registrant’s actions, and resulting seven convictions, upon the reputation of the profession. The Panel took into account the questions (“limbs (a) - (d)”) formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of Grant.

34. In relation to limb (a), from the material before the Panel, there was no evidence that the Registrant had in the past acted so as to put patients at unwarranted risk of harm. Given the nature of the offending, the Panel was of the view that it could be said that it is possible that the Registrant may put child patients at risk of harm in the future, while in practice, however, on the basis of the evidence, it could not be said that there was a real risk that he would do so. In relation to limb (d), there was no evidence of dishonesty in this case.

35. Considering the other questions of Dame Janet Smith, the Panel was satisfied that limbs (b) and (c) were engaged. The Panel was of the view that the Registrant had in the past brought the profession into disrepute by his actions, and that he had breached the following fundamental tenet of the profession:
HCPC standards of conduct, performance and ethics (2016)
9 Be honest and trustworthy
Personal and professional behaviour
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
The Panel determined that the Registrant’s actions, which resulted in the criminal convictions, had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession not to behave in this manner and not to transgress the laws of the land. The Panel determined that the convictions of the Registrant related to very serious criminal offences and had clear implications in terms of the wider public interest in maintaining public confidence in the profession. The Panel determined that other practitioners would consider that the Registrant’s actions were abhorrent and would attract public opprobrium. The Panel determined that the convictions were such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made.

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

Decision on Sanction

37. The Presenting Officer said that the HCPC adopted a neutral stance in relation to the sanction to be imposed but invited the Panel to consider the aggravating and mitigating features of the case.

38. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. She advised that the full range of sanctions is available to the Panel as this was a case involving criminal convictions, and she reminded the Panel that it was not to go behind those convictions. The Legal Assessor also reminded the Panel of its over-arching objective and advised that, whilst the Panel was entitled to take into consideration the sentence that the Criminal Court imposed upon the Registrant, the sentence imposed is not necessarily a good indicator of the type of sanction that should be applied in this case.

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

40. The Panel had close regard to the HCPC’s Sanctions Policy (SP) document in reaching its decision on sanction. It took account of paragraph 79 of the SP which provides, “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.” It also paid particular attention to paragraphs 87-89 of the SP, dealing with “Offences related to indecent images of children.” Paragraph 89 states, “Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter. In particular, it undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction.”

41. The Panel reminded itself that the purpose of a sanction is not to punish. Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. To ensure this approach the Panel reminded itself to first consider whether its findings require the imposition of any sanction at all. If it does, then the available sanctions must be considered in ascending order of seriousness until one that satisfies the factors already identified is reached. The Panel confirms that it has followed this approach in the present case.

42. The Panel identified the following as aggravating features of this case:

• The nature and severity of the conduct leading to the convictions and the actual harm and distress caused to young, very vulnerable children
• The significant number of images and videos, including a high number of Category A images of children being raped
• There is limited evidence of insight on the part of the Registrant and no evidence of remediation. The Panel considered there to be a risk of repetition.

43. The Panel took into account the following as mitigating features of this case:

• The Registrant pleaded guilty at the earliest opportunity
• The limited information before the Panel is that the Registrant was engaging with support services at the time of his criminal sentencing.

44. In this case, the aggravating factors significantly outweigh the mitigating factors.

45. In considering the matter of sanction, the Panel started with the least restrictive moving upwards. The Panel considered the offences to be extremely serious, involving the sexual exploitation of children. The Panel also took into account the ancillary orders made by the Crown Court when considering the need to maintain public confidence in the profession and uphold proper standards.

46. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offences, this would be wholly inappropriate and insufficient to declare and affirm proper standards of conduct and behaviour, or to maintain public confidence in the profession.

47. The Panel then considered whether to make a caution order. The Panel determined that circumstances of the criminal offences are such that a caution order is not appropriate for the same reason as set out above.

48. The Panel next considered the imposition of a Conditions of Practice Order but determined that this is not a case that is suitable for the imposition of such. There are no concerns with the Registrant’s clinical practice or competency as an Operating Department Practitioner. In any case, the serious nature of the criminal offences makes a Conditions of Practice Order inappropriate as a sanction for the same reasons as set out above.

49. The Panel then considered whether a period of suspension would be a sufficient and proportionate response in order to maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. The Panel also considered the public interest in allowing a skilled Operating Department Practitioner to return to practice at the completion of his criminal sentence. The Panel considered paragraph 121 of the SP:
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

50. The convictions represent a very serious breach of the standards of conduct as set out above. The Panel has already determined that the Registrant has demonstrated only limited insight and no remediation, and that there is a risk of repetition of the criminal behaviour in question. In light of the Registrant’s lack of engagement with the regulatory process, he is either unable or unwilling to take the necessary steps to demonstrate sufficient insight and remediation. The Panel considered the level of seriousness of the criminal conduct and its sexually motivated nature, involving the exploitation of children. Having weighed all the above considerations, the Panel determined that the matter before it was so serious that a Suspension Order, even for the maximum duration, would not be sufficient to maintain and declare proper standards of conduct and behaviour, nor to maintain the reputation of the profession, nor to maintain public confidence in the profession and the regulatory process.

51. The Panel therefore went on to consider striking the Registrant’s name off the HCPC register of Operating Department Practitioners. The Panel considered paragraphs 130 and 131 of the SP:
A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
• sexual abuse of children or indecent images of children…
• criminal convictions for serious offences…
A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct … or
• is unwilling to resolve matters.

52. In the Panel’s view, the Registrant committed serious criminal offences involving the sexual exploitation of children. The Panel took into account the lack of any sufficient evidence of insight and the lack of evidence of any remediation, as well as the ongoing risk of repetition of the criminal conduct. The Registrant is either unable or unwilling to demonstrate real insight or remediation. The Panel took into account the high number of Category A images of the rape of children and concluded that this was such a serious departure from the standards of behaviour expected from an Operating Department Practitioner that only a striking off order would be sufficient to maintain and declare proper standards of conduct and behaviour, to maintain the reputation of the profession, and to maintain public confidence in the profession and the regulatory process. The seriousness of the Registrant’s convictions demands the ultimate sanction of a striking off order.

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

54. In light of the above, the Panel is satisfied that the appropriate and proportionate response to protect the public and otherwise in the public interest in these circumstances is to make a Striking-Off Order.

Order

Registrar is directed to strike the name of Mr Kevin Edward Hatt from the Register on the date this order comes into effect.

Notes

Determination on Interim Order

The Panel heard an application from the Presenting Officer 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.

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.

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 the Registrant. The Panel was, however, mindful of its findings in relation to the convictions in this case and the risk of repetition.

The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health 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 convictions it has found proved, 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 an Operating Department Practitioner during the appeal period.

The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.

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.

That concludes this determination.

Hearing History

History of Hearings for Mr Kevin Edward Hatt

Date Panel Hearing type Outcomes / Status
13/11/2020 Conduct and Competence Committee Final Hearing Struck off