Mr Joshua L Foster

Profession: Operating department practitioner

Registration Number: ODP34938

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 07/09/2020 End: 17:00 09/09/2020

Location: Hearing taking place virtually

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While registered as an Operating Department Practitioner with the Health and Care Professions Council, you:

1. On or around 5 August 2017, communicated with Person A, who you believed to be a minor, by:

a) engaging in text message communication with Person A;

b) arranging to meet Person A.

2. Your communication with Person A on or around 5 August 2017 was:

a) sexually explicit; and/or

b) with the intention of engaging in sexual activity with Person A.

3. On or around 6 August 2017, you attempted to meet Person A with the intention of engaging in sexual activity.

4. You knew, or ought to have known, that the purported age of Person A was under the age of consent for sexual activity.

5. Your actions in paragraph 1 and/or 2 amounted to the grooming, for sexual purposes, of a person whom you believed to be a minor.

6. Your actions in paragraph 1 and/or 2 and/or 3 and/or 5 were sexually motivated.

7. The matters set out in paragraph 1 - 6 amount to misconduct.

8. By reason of that misconduct, your fitness to practise is impaired.

 

Finding

Preliminary Matters
Apparent Bias
1. At the start of the hearing the Panel was made aware that one of its members (the registrant member, who had been substituted on the Panel on the last working day before the hearing) had already sat on an Investigating Committee Panel (ICP) in this case. The Panel considered whether the Panel, or at least that member of it, should recuse themselves because of apparent bias.

2. The Panel conducted a full enquiry into the role of the registrant member in the ICP.

3. The Panel also contacted the Registrant, who had notified the Panel that he did not intend to attend the hearing, to notify him that this issue had arisen in case it caused him to change his mind about attending the hearing or he wished to make further written submissions.

4. The Panel ascertained that on 16 August 2019, the registrant member sat on an ICP which took no decisions about the case except to amend the allegation in a way that better reflected the evidence. It made no findings about the evidence.

5. The Panel also looked at whether any information was before that panel which was not before this Panel and should not be before it. The Panel found that there were two matters revealed to the ICP which have not been revealed to the Panel. First, the Registrant had been subject to an interim order until his acquittal by the Crown Court, when the order was lifted. Secondly, he had been dismissed from his employment following the allegations made against him.

6. Mr Millin adopted a neutral position on behalf of the HCPC.

7. The Registrant sent a short email to the Hearings Officer in which said he had no objection to the registrant member of the Panel “Provided it will not make a substantive impact on proceedings”.

8. The Panel heard the advice of the Legal Assessor, which it accepted and has followed in this decision.

9. The Panel had regard to the test set out in the House of Lords decision in Magill v Porter [2001] UKHL 67: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

10. It also had regard to the directions given about the characteristics of that observer: “The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious…. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased.”

11. The Panel concluded that no issue of bias arose in this case for the following reasons. First, the matters revealed to the ICP, namely the fact of an interim order now revoked and the fact that the Registrant had been dismissed from his employment were matters that commonly came to be known by a substantive panel and the impartial and informed observer would know that panels are able to put those matters out of their mind.

12. Secondly, the Panel considered carefully the role of the ICP in August 2019 and concluded that no issue of bias arose because that panel had not made any findings of fact or expressed any opinions about the witnesses in this case. The role of the ICP had been confined to making amendments to the allegation in order that the particulars better reflected the evidence. This is something that a substantive panel could do without subsequently recusing itself. The Panel was satisfied that the independent and informed observer would know and understand that, and would not conclude that there was a real danger that the Panel was biased as a result of the role played by the registrant member in the ICP.

Proceeding in the absence of the Registrant
13. At the outset of the proceedings the Registrant was neither present by video link or telephone, nor was he represented.

14. The Chair invited the Hearings Officer to set out the steps that had been taken to serve notice of the hearing on the Registrant.

15. The Hearings Officer put before the Panel an email dated 23 June 2020 and headed “Notice of Conduct and Competence Committee Hearing”. She also put before the Panel a certificate dated 23 June 2020 and a document headed “proof of service” which, taken with the heading of the email, demonstrated that the document had been sent to the email address of the Registrant held by the HCPC on the Operating Department Practitioner part of the HCPC register, on 23 June 2020.

16. The notice set out the date and time of the hearing and indicated that it would be held “via video conference”. It set out the powers of the Panel and said that “if you do not attend, the committee may proceed with the hearing in your absence…” It contained contact details so that the Registrant could make arrangements to attend the hearing.

17. She also showed the Panel a further email from herself dated 21 August 2020 reminding the Registrant of the time and date of the hearing, explaining that the hearing would take place via “Microsoft Teams” and inviting him to contact her to make arrangements to attend. The Panel also saw a further email from the Hearings Officer dated 25 August 2020 and an email reply from the Registrant, dated 4 September 2020, saying “I am not intending to attend on the hearing date due to a lack of legal council [sic] and insufficient time to find proper new council [sic]. I am attempting to formulate a written submission for the hearing.”

18. Mr Millin, on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.

19. He submitted first that the Panel was entitled to proceed in the absence of the Registrant because, although the HCPC had not served notice of the hearing strictly in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), it had taken all reasonable steps to serve notice on the Registrant in the circumstances brought about by the Covid-19 emergency. The HCPC had sent a copy of a notice of hearing in the correct form to the email address held by the HCPC on the Register and used by the Registrant to communicate with the HCPC, and in particular the Hearings Officer.

20. He submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because all the evidence indicated that he knew of the hearing and had voluntarily absented himself.

21. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.

22. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.

23. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the Rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a registrant is entitled to 28 days’ notice of the hearing. Finally, it had regard to Rule 11 which provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.

24. Having regard to the Covid-19 emergency and the restrictions that had been placed on regulators, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by sending a notice to the email address held by the HCPC on the appropriate register, particularly in circumstances where the address was used by the Registrant to communicate with the HCPC.

25. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence. The Panel saw another email from the Registrant dated 6 September 2020, attaching written representations for the Panel and stating:
“Dear HCPC, TS,
Apologies for the delay is sending. Attached is the written submission outlining my response and position with regards to the allegations. I am happy for the proceedings to carry on in my absence. My apologies for not being able to be present this is explained in the representations.
Regards Joshua Foster”

26. The Panel had regard to the guidance given in the Practice Note, “Proceeding in the absence of the Registrant" dated September 2016 and to the House of Lords in R v Jones [2002] UKHL 5. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care. It should look at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. On this question the Panel noted the email from the Registrant dated 6 September 2020 indicating he would not attend the hearing and stating “I am happy for the proceedings to carry on in my absence”.

27. The Panel also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance.

28. The Panel accepted that a registrant may suffer prejudice by not being able to present his case. Nevertheless, the Panel balanced that against the public interest in allowing the HCPC to do its work protecting the public. The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”

29. In this case the HCPC had secured the attendance of a witness who is already required to recall events that occurred over three years ago. Although his evidence is based upon contemporary material, further delay risks having a detrimental effect upon the quality of his evidence and causing inconvenience to him.

30. In all the circumstances the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant because all the evidence pointed to the Registrant having voluntarily absented himself while there was a strong public interest in proceeding with the case so that it will be concluded without any further delay.

Background
31. The Registrant is a registered Operating Department Practitioner, who
was employed by the North Bristol NHS Trust in August 2017.

32. On 5 August 2017 Person A, who was an adult male in his early 20s, acting as a self appointed “paedophile hunter”, posted an advert on a website known as ‘Craigslist’ under the Personal Adverts section. The advert purported to be from a girl seeking to meet someone and possibly engage in sexual relations.

33. The Registrant responded to the advert and entered into a texting and social messaging conversation with Person A, who pretended throughout to be a girl called ‘Lou’. At an early stage of the conversation, Person A, pretending to be Lou, informed the Registrant that “she” was 14 years old. The Registrant entered into a sexually explicit conversation with Person A and arranged to meet Person A on 6 August 2017 in Bath at the railway station.

34. The Registrant travelled from Bristol to Bath railway station on 6 August 2017 and waited on a bench. Person A attended outside the station and filmed the encounter between himself and the Registrant. He detained the Registrant until the police arrived. The Registrant was arrested and taken to the police station where he was interviewed under caution. He declined to answer effectively all questions asked of him by the police, which the Registrant said during his Crown Court trial was as a result of the advice given to him by his solicitor at the police station.

35. The Registrant informed his line manager of his arrest on 6 August 2017 and she referred the Registrant to the HCPC on 9 August 2017.

36. He was charged with an offence under the Sexual Offences Act 2003 and sent for trial at the Bristol Crown Court on 20 August 2018. The jury were discharged by the judge after they had retired because it was agreed that the judge had misdirected them on the law. The Crown Prosecution Service subsequently decided not to proceed with a retrial and a verdict of not guilty was entered by a judge of the Crown Court.

The evidence adduced by the HCPC

37. The HCPC’s case rested upon the messages exchanged between the Registrant and Person A and on the video taken by Person A of his meeting with the Registrant, together with the evidence of Person A given to the Panel. Person A adopted written statements he had made both to the HCPC and to the police.

38. In 2017, Person A was a freelance journalist who also carried out the activities of a self appointed “paedophile hunter”. He explained that this involved him posting advertisements on websites which led to people engaging in sexual conversations via messages and then arranging to meet for sexual activity with people they believed to be children. He copied the messages which formed the conversations and filmed any subsequent attempts to meet the person they believed to be a child, and handed the individual and the material over to the authorities.

39. On 5 August 2017, Person A placed an advertisement on a website called Craigslist, in the following terms: under the heading “Parents away, free house until Thursday”. He had written “my parents have gone away so I got a free house and wanna chat and maybe meet someone. I’m a virgin but not sure if I wanna lose it or not haha. Message me for my number or my Kik.”

40. Over the advertisement was a photograph of a female half of whose face was obscured. This was someone who Person A knew and who had agreed for photographs of her to be used in this way. The Panel formed the view that it was impossible to ascertain her age from the photograph in the advertisement. They formed the view that all they could discern was that it was neither a photograph of a small child nor of a middle-aged person.

41. Person A produced the records of a conversation which took place online, partly by way of text messages and partly by Kik messages from around 17:00 hours on 5 August 2017. The Panel is satisfied that there is no dispute that these are the records of the conversation which took place between the Registrant and Person A.

42. The Panel saw a record of the message conversation and saw that within a few moments of the conversation starting, Person A wrote “Ur probably get put off I’m 14 years old but quiet [sic] mature x is that okay.”

43. There followed a conversation in which the Registrant first discussed the form of contraception which Person A would like and then discussed explicitly the form of sexual contact he intended to have with her, including full sexual intercourse.

44. During the conversation he asked if she was “happy to delete my contact details after we met” and then added “And I can’t stress that enough if something were to happen I could end up in jail you understand that right? I’m putting a lot of trust in you”.

45. The Panel saw that the Registrant and Person A exchanged photographs. The Panel saw further photographs of the person in the advertisement. The conversation concluded with an additional discussion about the sort of sex they would have and an arrangement to meet the following day outside the railway station in Bath.

46. Person A told the Panel that he had gone the following day to Bath railway station and found the Registrant sitting on a bench outside the station. He recognised the Registrant from the photograph he had sent. Person A played a contemporaneous video that he had made of the meeting and it showed him confronting the Registrant and accusing him of attending the station in order to have sex with a child.

47. The Panel could see that the Registrant was upset but it could also see that Person A was neither violent nor aggressive. He did not threaten or touch the Registrant although he told him that he would restrain him by bringing him to the ground if he tried to leave. Person A told him that he had called the police and the Registrant waited on the bench.

48. The Panel could hear what was said between Person A and the Registrant. Initially the Registrant denied that he was there to have sex with a child. He was shown evidence of the online conversation and said “it’s not something that I would normally do”. He added, “I didn’t even know if I was really going to go through with it”. Person A then asked him “alright but you’re still here to meet a child for sex today, correct?” To which the Registrant replied “yeah”.

49. The Panel could also see that when the Registrant opened the bag he had with him, Person A immediately pointed out a packet of condoms in the bag.

50. The Panel also saw the transcript of the Registrant’s evidence to the Crown Court. He told the Court that Craigslist was a site upon which anyone using the site and posting material had to declare they were an adult. For that reason, he thought the person he was speaking to was an adult and that view was confirmed by the picture he saw and the fact that the person he was speaking to said they were using contraception.

51. The Registrant was asked during his evidence in Court why he had said, “and I can’t stress that enough, if something were to happen I could end up in jail you understand that right” and he replied “I don’t know exactly why I said that specifically” and asked if there was any other explanation he could give other than that he thought he was corresponding with a 14-year-old girl he replied, “not presently, I’m afraid”.
52. The Registrant told the jury that he thought that nobody would be there to meet him and if there was anyone it would be an adult. In any event, he had had a change of heart on the train.

Evidence adduced by the Registrant

53. The Panel also read a document headed “written representations of registrant Joshua Foster”, in which the Registrant explained his position in relation to each charge. The Panel will refer to his representations under the headings to which they relate.

Witnesses

54. Before turning to the particulars of the Allegation, the Panel noted that it had an opportunity to see Person A give evidence as well as reading his statement. It found that he was an honest and straightforward witness who did not embellish the matters set out in the contemporaneous documents. On the contrary, he was fair to the Registrant when questions were put to him and confirmed that Craigslist was indeed a site on which only adults were meant to register and the photograph he had posted on the website was not of someone aged 14 but 21. When asked, he confirmed that the Kik messages had been copied by screenshot and agreed that screenshots could be altered. He was clear that he had not altered the screenshots and the Panel accepted his evidence. The Panel was satisfied that his manner at Bath railway station had not been either aggressive or intimidating.

55. Although the Registrant did not attend the hearing, the Panel drew no adverse inference from this and paid close attention to both his evidence in the Crown Court and his written representations. The Panel could not give them the same weight as sworn evidence because neither had been tested in front of them. The Panel also noted that his explanations had not always been consistent and refers to certain of those inconsistencies below.

Submissions and advice

56. The Panel heard the submissions of Mr Millin who set out the law and reminded the Panel of the evidence of Person A, supported by the contemporaneous records. He also reminded the Panel that although they should not draw an adverse inference against the Registrant because he has not attended, the material he had put before the Panel could not have the same weight as sworn evidence and was not entirely consistent with what he had said in the past.

57. The Panel also heard the advice of the Legal Assessor which it accepted and has followed in the decision set out below.

Decision on Facts
58. The Panel bore in mind that at this stage the burden of proving each paragraph of the Allegation rests upon the HCPC. The Registrant does not have to prove anything. It reminded itself that the standard of proof is the civil standard, that is to say the balance of probabilities.
1. On or around 5 August 2017, communicated with Person A, who you believed to be a minor, by:
a) engaging in text message communication with Person A;
b) arranging to meet Person A.
Found proved

59. The Panel found that there was no dispute that the Registrant had communicated with Person A by text messages (or similar) on 5 August 2017. It saw that, towards the end of the conversation, the Registrant made an arrangement to meet the person he thought was Lou at Bath railway station and posted a picture of the front of the station to facilitate a meeting. There is no dispute that the person Lou did not exist and that by making this arrangement, the Registrant was arranging to meet Person A.

60. The Panel considered the question of whether the Registrant believed Person A, adopting the identity of Lou, was a minor. It bore in mind that he told the Crown Court that he believed that the person he was speaking to was not under age and has repeated this in his written representations.

61. Nevertheless, the Panel found that he did believe she was 14 for the following reasons: –
a. At a very early stage in the conversation she told him twice that she was 14;
b. He reacted to this in a manner that was entirely consistent with believing that she was 14 that is to say by asking her to delete his messages and telling her he could go to prison;
c. The Registrant has never disputed that he agreed with Person A at Bath railway station that he (the Registrant) had come to the station to have sex with a child.

62. The Panel did not find the reasons he advanced for believing Person A was over 16, to be convincing. The Panel found the photograph he was sent was not a strong enough indicator of the person’s age to override what she had told him, without further enquiries. Nor did the Panel find that his explanation that she must be over 16 because she was using contraception and had placed an advert on an adult only site to be persuasive. Accordingly, the Panel rejected these explanations.

2. Your communication with Person A on or around 5 August 2017 was:
a) sexually explicit;
Found proved

63. The Panel has read the communications between Person A and the Registrant and recorded some of the detail above. The messages include explicit sexual descriptions and set out in detail the forms of sexual activity he intended to have with Person A. The Registrant accepts, in his representations that they are “sexually explicit”.

b) with the intention of engaging in sexual activity with Person A.
Found proved

64. The Panel has seen that not only did the Registrant engage in a sexually explicit conversation with Person A, he also made arrangements to meet ‘her’ and described the sexual activity he wished to engage in. The Panel is satisfied that arranging a meeting is clear evidence that the Registrant intended to meet Person A for sexual activity and not merely to have a conversation online.

3. On or around 6 August 2017, you attempted to meet Person A with the intention of engaging in sexual activity.
Found Proved

65. The Panel found that on 6 August 2017, the Registrant travelled from Bristol to Bath railway station and in his bag, he had condoms and gel. He went to the place where he had arranged to meet Person A. That evidence taken together with the messages which preceded him going to that meeting, led the Panel to find that on 6 August 2017 he attempted to meet Person A with the intention of engaging in sexual activity.

66. The Panel has noted the Registrant’s written representation that he had gone there to tell the person that he did not intend to have sex with her and to “let her down gently”. The Panel finds that this is not consistent with the messages he sent, the preparations he made, the admission he made to Person A at the railway station nor the account he gave in the Crown Court, which was that he had changed his mind on his journey to Bath. Accordingly, the Panel rejects that explanation.

67. In his written representations, the Registrant stated that “the reason my bag contained condoms and arousal gel was coincidental. I had been on a night out a few weeks prior and had not used the bag since that night. They were present in the bag but were not placed there with any intent.” The Panel rejected this account. The Panel found it was wholly incredible that the condoms and gel had not been placed in the bag for use on 6 August 2017 having read the messages he sent on 5 August 2017 describing clear intent to engage in sexual activity with Person A and use a condom.

4. You knew, or ought to have known, that the purported age of Person A was under the age of consent for sexual activity.
Found Proved

68. The Panel has already found that the Registrant believed that the person he was to meet, Person A, was 14 years of age. It follows from that, that he knew that person to be under the age of consent for sexual activity. The Panel notes again that in the text conversation, the Registrant said that he risked going to prison.

5. Your actions in paragraph 1 and/or 2 amounted to the grooming, for sexual purposes, of a person whom you believed to be a minor.

69. With regard to the question of “grooming”, the Panel has accepted the advice of the Legal Assessor that grooming is derived from the Sexual Offences Act 2003 and has been held to be any communication with a child with intent to engage in sexual activity. The Panel has already found that the communication with Person A on 5 August 2017 was for that purpose and was with someone the Registrant believed was 14 years old. The Panel notes that this paragraph adds nothing to what it has already found but, for the sake of completeness, finds that it is proved.

6. Your actions in paragraph 1 and/or 2 and/or 3 and/or 5 were sexually motivated.
Found Proved

70. The Panel accepted the advice of the Legal Assessor that conduct is “sexually motivated” if it is either done for sexual gratification or in the hope of a future sexual relationship. The Panel has had regard to the content of the messages, the arrangements that the Registrant made to meet Person A, the purpose of the meeting that he discussed in those messages (namely to have sexual intercourse) and the preparations he made in the form of taking condoms and gel to the meeting. In those circumstances, the Panel is satisfied that the Registrant’s acts were sexually motivated in both senses in that he derived sexual gratification from the conversation and intended a sexual relationship with Person A when he met ‘her’.

Decision on Grounds
71. Having found the facts proved, as set out above, the Panel considered whether they amounted to misconduct.

72. The Panel had regard to the submissions of Mr Millin who referred the Panel to The Queen (on the Application of Remedy UK) v GMC [2010] EWHC 1245 (Admin) and reminded the Panel that misconduct was not limited to conduct in the course of a registrant’s practice. It can also be conduct outside his practice but which brings disgrace upon the practitioner and thereby “prejudices the reputation of the profession”. The court held that “conduct will fall into the second limb if it is dishonourable or disgraceful or attract some kind of opprobrium that may be sufficient to bring the profession… into disrepute.”

73. The Panel also had regard to the written representations of the Registrant who reminded the Panel that the matters alleged (and now proved) against him did not relate to his practice.

74. The Panel also had regard to the Standards of conduct, performance and ethics of the HCPC and in particular paragraph 9.1 which provides “you must make sure that your conduct justifies the public trust and confidence in you and your profession.”

75. The Panel heard the advice of the Legal Assessor, which it accepted and has followed in its decision. It had particular regard to the decision of the High Court set out above and reminded itself that misconduct was not limited to conduct in the course of a registrant’s practice.

76. The Allegation found proved against the Registrant amounts to a finding that he engaged in a sexually explicit online conversation with somebody he believed to be 14 and then arranged to meet that person for a sexual purpose. The Panel also found that he travelled from Bristol to Bath with the intent to engage in sexual activity with that person.

77. The Panel accepts that the matters proved did not arise in the course of the Registrant’s practice but has no doubt that it is conduct which members of the public would regard as “dishonourable or disgraceful”. It falls far below conduct which “justifies the public trust and confidence” in the Registrant and the profession.

78. Accordingly, the Panel finds that the matters proved amount to misconduct.

Decision on Impairment
79. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct.

80. The Panel had regard to the submissions of Mr Millin who drew the Panel’s attention to the relevant authorities and tests including that set out in NMC v CHRE v NMC and P Grant [2011] EWHC 927 (Admin).

81. The Panel also had regard to the written representations of the Registrant and in particular his observations that the misconduct did not relate to his practice and was an isolated incident. He referred the Panel to the case of R (Vali) v General Optical Council [2001] EWHC 310 (Admin). He also reminded the Panel that his misconduct did not result in a criminal conviction.

82. He wrote that he was “extremely embarrassed for the situation I find myself in and I know that I made an error in judgement. I also regret the potential disrepute I have brought on the profession.” He told the Panel “I did seek out a counsellor and psychotherapist to help me better understand how I got into this situation to begin with. This has also helped with the significant anxiety I have faced as a result of this incident”. He gave no other details.

83. The Panel heard and accepted the advice of the Legal Assessor which it followed in the decision set out below.

84. The Panel is aware that impairment is a matter for its own professional judgement. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the misconduct found proved and public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect.

85. The Panel also bore in mind that it was concerned with whether the Registrant’s fitness to practise is currently impaired and focused on the need to protect the public and the wider public interest now and in the future.

86. The Panel bore in mind that a finding of impairment is separate from the finding of misconduct and that a finding of misconduct does not automatically mean that a registrant’s fitness to practise is impaired.

87. The Panel had at the forefront of it mind that over three years have elapsed since the Registrant’s misconduct and there is no evidence that the Registrant has committed similar misconduct either before or since the matters proved.

88. On this issue, the Panel noted in particular the observations of Silber J in Cohen v GMC [2008] EWHC 581 (Admin):

“There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner’s fitness to practise has been impaired.”

89. The Panel also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin): "Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the …..profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

90. The Panel also had regard to the passage from the Cohen case above and cited by Cox J which reminds panels that there may need to be a finding of impairment in the public interest, even if the misconduct can be characterised as an isolated incident:

“Any approach to the issue of whether a doctor's 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 of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the (profession)” [sic].

91. The Panel reminded itself that the over arching objective involves acting
a. to protect, promote and maintain the health, safety and wellbeing of the public
b. to maintain public confidence in the profession
c. to promote and maintain proper professional standards and conduct for members of that profession.

92. The Panel found that the Registrant’s misconduct has brought the profession into disrepute and breached a fundamental tenet of the profession, by attempting to engage in sexual activity with a minor.

93. Looking to the future, the Panel considered the personal component of fitness to practise. It examined the material it had received from the Registrant to ascertain whether there was any evidence that he had developed insight into his misconduct and taken steps to ensure that it was not repeated.

94. The Panel concluded that the Registrant had displayed only the most superficial insight and given only a brief and general account of the help he had sought. He has not provided any independent verification of this and the extent to which it has helped him address his misconduct. He told the Panel nothing of what, if anything, he had learned during the last three years.

95. The Panel’s view is that remediation is difficult in a case such as this but not impossible. However, it is also satisfied that it cannot be effected unless the Registrant develops some understanding of his own problems and is willing to accept help.

96. The Panel found that, far from achieving insight during the three years since his misconduct, the Registrant repeated his denials and, in his written representations has put forward matters in his defence that he appears to have thought of since the Crown Court trial. The Panel noted in particular his representation that condoms and gel were in his bag when he went to meet Person A, not because of a sexual intent, but simply as a result of coincidence.

97. For these reasons, the Panel found that there remains a significant risk of repetition and with it the risk that the Registrant will bring the profession into disrepute in the future.

98. Turning to the public component of impairment, the Panel is satisfied that a finding of impairment is necessary in order to maintain public confidence in the profession and maintain proper standards of conduct by sending a clear message that the profession takes seriously misconduct of the sort proved in this case.

99. Accordingly, the Panel determined that the Registrant’s fitness to practise is impaired.
Decision on Sanction

100. Having found the Registrant’s fitness to practise impaired, for the reasons set out above, the Panel considered what, if any, sanction it should impose on the Registrant.

101. The Panel has heard submissions from Mr Millin on the issue of sanction. The Panel has also accepted the advice of the Legal Assessor and had regard to the HCPC’s Sanctions Policy (SP).

102. The Panel is aware that the purpose of sanction is not to be punitive but to protect the public and the wider public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the profession and the regulatory process.

103. The Panel also bore in mind the principle of proportionality and balanced the Panel’s duty to protect the public and the wider public interest against the rights of the Registrant.

104. The Panel had regard to the following mitigating factors:
a. The Registrant admitted Particular 2b) of the Allegation;
b. The misconduct is a single isolated incident;
c. There are no other regulatory matters recorded against the Registrant;
d. The Registrant has acknowledged to a limited extent the damage he has done to the reputation of the profession.

105. The Panel also considered the following aggravating factors:
a. The misconduct proved was of a serious sexual nature;
b. It was directed at a child to whom serious harm risked being done;
c. The Registrant has demonstrated almost no insight;
d. The Registrant has produced no evidence of remediation.

106. Having considered both the aggravating and mitigating factors in this case, the Panel found that the effect of the aggravating features taken together, far outweighed that of the mitigating features because the mitigating features were insufficient to either reduce the potential harm of the misconduct or reassure the Panel that repetition is less likely.

107. The Panel considered the sanctions available to it in ascending order of severity.

108. The Panel considered that to take no action or to impose mediation or a caution would not be appropriate given the serious nature of the misconduct found. Any such course was not sufficiently restrictive to protect the wider public interest.

109. The Panel also considered that a Conditions of Practice Order would not be appropriate given the nature of the Registrant’s conduct. Even if conditions could be formulated that addressed the Registrant’s misconduct, the Panel could have no confidence that they would be workable because there is no evidence that the Registrant has sufficient insight and commitment to addressing the causes of his misconduct. Nor would a conditions order be sufficient to protect the wider public interest.

110. In reaching this conclusion the Panel had regard to paragraph 107 of the Sanctions Policy which provides:

“107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.”

111. The Panel also had regard to paragraph 108 which provides that “conditions are also less likely to be appropriate in more serious cases, for example those involving…sexual misconduct.”

112. The Panel next considered a Suspension Order. The Panel considered paragraph 121 of the Sanctions Policy which provides:

“121. 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.”

113. The Panel found that the Registrant has neither developed insight nor engaged in significant remediation. Accordingly, there is no evidence to suggest the Registrant is likely to be able to resolve or remedy the issues raised in this case and the Panel can have no confidence that the misconduct is unlikely to be repeated. The Panel accepted the advice of the Legal Assessor that it is not appropriate to impose a Suspension Order to give the Registrant an opportunity to develop insight. In any event, the Panel found that if the Registrant has not developed inside over three years there is no reason to believe that he will do so in future. His written representations are not sufficient to reassure the Panel.

114. Accordingly, the Panel next considered a Striking Off Order. The Panel had regard to paragraph 130 of the Sanctions Policy which provides that:

“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving

• (among other things) sexual misconduct”

115. The Panel had particular regard to paragraph 131 of the Sanctions Policy which provides:

“131. 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;
• … or
• is unwilling to resolve matters.”

116. The Registrant has not developed insight nor sought significant help despite the passage of three years. The Panel is satisfied for the reasons set out above, that there is no realistic prospect that he will do so. For those reasons and because of the gravity of the misconduct itself, the Panel is satisfied that public confidence in the profession would be significantly undermined if the Registrant were allowed to remain upon the Register, because that course would give the impression to the public that the profession did not take sufficiently seriously an attempt to commit a serious sexual offence against a child.

117. The Panel recognises that a Striking Off Order will inevitably have a serious effect upon the Registrant. Nevertheless, the Panel is satisfied that no other course is consistent with its duty to protect the public and the wider public interest.

118. Accordingly, the Panel imposes a Striking Off Order.

Order

The Registrar is directed to strike the name of Mr Joshua L Foster from the Register on the date this order comes into effect.

Notes

Interim Order
Application for an Interim Order

1. Following the announcement of the sanction and the Registrant’s right of appeal, Mr Milin applied for an Interim Suspension Order. He submitted that an order was necessary for the protection of the public and otherwise in the public interest.
2. The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed by the notice of hearing sent to him by email on 23 June 2020 that such an application might be made, and he has not responded with regard to that warning. The Panel found that all the conclusions that it reached at the outset of the hearing when considering the application to proceed in the absence of the Registrant still apply.
3. The Panel has considered whether it should impose an Interim Suspension Order pursuant to Article 31 of the Order which will apply during the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress.
4. The Panel has had regard to paragraphs 133- 135 of the Sanctions Policy and reminded itself that it should only impose such an order if it is satisfied “that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the registration of that person to be suspended”.
5. The Panel had regard to paragraph 135 of the Sanctions Policy which provides that:

“135. An interim order is likely to be required in cases where:
• the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.”

6. Having decided that the Registrant would undermine public confidence in the profession if he were allowed to practise, the Panel is satisfied that an order is necessary in order to protect the public and is required in the public interest.
7. The Panel decided that the appropriate length of such an order is 18 months in order to cover the period in which any appeal by the Registrant is likely to be disposed of.
8. 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.
9. This order will expire: (if no appeal is made against the Panel’s decision and order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mr Joshua L Foster

Date Panel Hearing type Outcomes / Status
07/09/2020 Conduct and Competence Committee Final Hearing Struck off