Mr Robbie Fegan

Preliminary Matters

Service

1. The Panel is satisfied that there has been good service of the Notice of Hearing. The notice was sent to the Registrant’s registered email address on 17 December 2020.

Proceeding in Absence

2. The Registrant did not attend the final hearing. The HCPC applied to proceed in the absence of the Registrant. The Panel first considered whether it ought to exercise its discretion to continue with this hearing in the absence of the Registrant. The Panel concluded that it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence” having taken the Legal Assessor’s advice, and considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba, R v Hayward [2001] EWCA Crim 168 and GMC v Visvardis [2016] EWCA Civ 162, for the following reasons:

(a) The Panel is satisfied that the Registrant had notice of the hearing;
(b) The Registrant has not engaged in these proceedings. The Registrant has not chosen to submit any documentation or to make any written submissions. The Panel saw an email from the Registrant dated 29 June 2018, in which he stated: “My plan had has [sic] always been to retire from healthcare next year as I no longer wish to work in healthcare. Recent events have brought that forward so I’m resigning from both my registration and the council.”
(c) The Registrant has not sought an adjournment;
(d) The Panel concluded that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion;
(e) The Panel was satisfied that the Registrant has deliberately chosen not to attend this hearing, and that this amounted to a deliberate voluntary waiver of his right to appear.
(f) The Panel determined that it was reasonable and in the public interest to proceed today in the circumstances, given that the relevant events date back to between 2016 and 2018. The Panel considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant.

Background

3. The Registrant is a registered Operating Department Practitioner.

4. On 15 February 2018 the HCPC were notified by North Yorkshire Police that the Registrant had been arrested, on 31 January 2018, on suspicion of making indecent images of children/pseudo-photograph of a child, following the allegation that he had uploaded 33 category C Indecent Images of Children to Flickr on 07 November 2016.

5. When interviewed by the police on 31 January 2018, the Registrant denied that he had uploaded Category C indecent images of children to the internet via his Flicker on 07 November 2016, including images of European females between the ages of 10 and 12. He further denied that any of his devices contained indecent images of children. He answered, “no comment” to the question as to whether he had come across any indecent images of children on any of his devices in the past one to two years.

6. It was apparent from the interview that the Registrant had deleted the content of his devices, back to factory settings. He maintained that this was a “refresh update” and denied that he had deleted data, following a telephone call from his wife, whilst he was at work, requesting that he return home, as the police were there.

7. The Panel has been provided with a Streamlined Forensic Digital Report SFR Stage1 Forensic Result. The Registrant’s ASUS tablet was examined and there was no data found relating to the distribution of indecent images of children on the device. However, Chrome downloads indicative of sourcing indecent images of children were located. Applications with the ability to remove system artefacts and sore medial files within a passcode protected environment were also located and media files identified which were deemed to be indicative of indecent images of children. In addition, one media file indicative of an indecent image of a child was identified on an Amazon Kindle device. The report identifies 1147 still Category C and 2 Category B “inaccessible” images.

8. The majority of Category C images were installed in a “Safe Gallery (Media Lock)” application. There was also evidence of internet searches for pornography relating to “teen” and “young” females.

9. The categories of images derive from the Sentencing Council guidelines first published on 01 April 2014. Category B images depict non-penetrative sexual activity. Category C images depict non-sexual activity, but are indecent because, for example, they depict exposed genitalia.

10. The age range of the children depicted ranged from approximately 6 to 17 years of age.

11. When the Registrant was subsequently re-interviewed by the police on 30 June 2019, after his tablet/devices had been forensically examined, he admitted the offences. The Registrant stated that he had inadvertently uploaded indecent images. He denied having a sexual interest in young children, and maintained that “it’s just a completely stupid phase.” He did admit searching for a 12-year-old model. He further alleged that “…a lot of these thing are a hazy because I sort of drank heavily at the time. Sexual part of it. There has never been any sexual for me at all. It kind of gave me a bit of peace I suppose…” He added: “…It wasn’t sexual gratification. If I was to do this now or look at these pictures now I’d probably be disgusted.”

12. The Registrant admitted to consuming four to five pints of beer a night with two to three cans on top of that which “made him forgetful about things.” He confirmed that he had kept the images in a safe gallery with a media lock, so that he could keep them private, as he knew he should not have had them.

13. As noted above, the Registrant informed the HCPC on 29 June 2018 that he wished to retire and remove himself from the HCPC register. Given that the criminal matter had not concluded and there was an ongoing fitness to practice case, it was not possible to remove the Registrant from the register.

14. On 10 March 2020 the Registrant pleaded guilty to two offences of making indecent images on children, category B (2 images) and Category C (1147 images). He was remanded on unconditional bail, pending the preparation of a Pre-Sentence Report. The sentencing hearing was subsequently delayed due to the Covid-19 pandemic.

15. On 13 November 2020 the Registrant was sentenced to a community order, with a rehabilitation activity requirement of 50 days until 12 November 2023. In addition, he was ordered to pay CPS costs of £85 and a victim surcharge of £60. The Registrant was also required to remain on the sexual offences register for a period of 5 years.

16. The HCPC did not call any live evidence, but instead relied on the documentation in the bundle which ran to 71 pages and made oral submissions at the hearing.

Decision on Facts and Grounds

17. The Panel has seen the Certificate of Conviction from North Yorkshire Magistrates Court dated 13 November 2020.

18. The Health and Care Professions Council (Conduct & Competence Committee) (Procedure) Rules 2003, Rule 10(1)(d) provide that a certified copy of certificate of conviction is admissible as proof of the conviction and the findings of fact upon which it was

19. Accordingly the Panel was satisfied that particulars 1(i) and (ii) and the grounds are well founded.

Decision on Impairment

20. The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s conviction, having regard to the HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’ and the Practice Note on ‘Conviction and Caution Allegations’. The Panel’s task to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence.

21. The Panel is mindful of the forward-looking test for impairment and the need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the professional concerned into disrepute or may undermine public confidence in the profession.

22.The Panel heard submissions on the issue of impairment from the HCPC. It was submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired on both the public and private components of impairment, based on the following factors:

(a) The serious nature of the criminal offence for which the Registrant was convicted;
(b) The Registrant’s lack of engagement, and hence lack of evidence of insight, remediation and hence there remains an ongoing risk of repetition;
(c) The Registrant has brought the profession into disrepute and breached a fundamental tenet of the profession.
(d) Public confidence would be undermined in the profession if there was not a finding of impairment. A reasonably well-informed member of the public would be shocked if there was no finding of impairment on the facts of this case.

23. The Panel has been provided with a Reflective Piece written by the Registrant, dated 12 June 2020. He states:

“Since January 2018 I have not worked. Owing to the circumstances I decided to remove myself from any kind of work so as not to muddy any water as would be fit any individual signed up to a professional body with standards to maintain. Obviously, finances have been affected, friends have disappeared, future opportunities lost, my home and the village in which I reside will be under threat very soon and, more importantly, my reputation shattered. A reputation nurtured over thirty years both in the Army and civilian life. A reputation where I was always relied upon, always turning up for work, always going that extra mile not only for the team but especially those service users that always received the best possible care. There have never been complaints levelled against me in fact, quite the opposite with many glowing reports. However. I'm still waiting to be punished. A wider audience would be puzzled as to why it took eighteen months for HPC to spring into action with an eventual Interim Order banning me from work for a year and a half that I had not done anyway for eighteen months. Also in November 2018 I intended that my registration should run out (retirement) but HPC kept me on the register for another seven months! Another seven months where in theory I could have kept on working in any clinical setting. In conclusion, life will be very different from now on. I have lost many things but what I still have is my wife and family who are standing by me. That is all that matters.”

24. The Panel concluded that the Registrant’s current fitness to practise was impaired, both at the time of the offences and remains currently impaired, having regard to the personal component and the following factors:

(a) The nature of the Registrant’s offence was very serious. It involved a large volume of indecent images of children with repeated behaviour over a two-year period. The Registrant’s integrity is significantly compromised by his offending behaviour.
(b) Although the Registrant pleaded guilty at the first opportunity, he was left with limited options, once his devices had been forensically examined. The Registrant initially denied the allegations in interview and there is some evidence that he sought to delete the images before they were seized by the police.
(c) Although the Registrant produced a reflective piece, there is no recognition as to the harm that was caused to the victims, who were children. The focus is very much upon the effect on the Registrant rather than the serious nature of his offending behaviour.
(d) The Registrant has not engaged in these proceedings. There is therefore little or no evidence that he has developed insight into his offending behaviour or that he has reflected on the harm caused to the child victims or sought to remediate his actions in any way. The Panel cannot have any confidence that there would not be a repetition of his offending behaviour in the future.

25. The Panel also concluded that the Registrant’s fitness to practise was impaired, having regard to the public component:

(a) The Panel concluded that the Registrant had breached a fundamental tenet of the profession and has brought the profession of being an Operating Department Practitioner into dispute.
(b) A reasonably well-informed member of the public would form the view that the Registrant’s offending behaviour had harmed the reputation of the profession as a whole, and would be shocked, if there was no finding of impairment in this case.
(c) The Panel also had regard to the need to uphold the proper standards of behaviour. The Panel concluded that confidence in the profession and the regulatory process would be undermined if there was no finding of impairment, given the seriousness of the criminal offence.

Decision on Sanction

26. The Panel has heard submissions on sanction on behalf of the HCPC. It has paid regard to the HCPC’s Sanctions Policy (March 2019) and has accepted the advice of the Legal Assessor. The Panel had particular regard to the principal of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant.

27. The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public and to maintain high standards amongst registrants and public confidence in the profession concerned.

28. The Panel has had regard to the aggravating and mitigating circumstances in this case.

29. The aggravating features are:

(a) The seriousness of the criminal offences which the Registrant was convicted of and the fact he remains subject to a community order until 2023 and he is on both the Sexual Offences Register until 2025 and subject to a Sexual Harm Prevention Order until 2025;
(b) The repeated nature of the criminal behaviour over a two-year period and large number of indecent images found on his devices;
(c) The lack of evidence of reflection, insight or remediation, and in particular the lack of insight into the fact that vulnerable children are being exploited in the images.
(d) The Panel has concluded that the Registrant has breached fundamental tenet of the profession
(e) The lack of engagement in these proceedings.

30.The mitigating features are:

(a) The Registrant pleaded guilty at the first opportunity;
(b) The Panel has seen no evidence of any prior fitness to practice or regulatory concerns.

31. The Panel considered the specific guidance in the Sanctions Policy in relation to criminal offences (paragraphs 80-84), Community Sentences (paragraphs 90-92), Sex offender notification (85-86) and Sexual Abuse of Children (including indecent images) (paragraphs 78-79) and Offences related to incident images of children (paragraph 87-89).

32. In particular, the Panel notes that any indecent image of a child involves some degree of exploitation and that a conviction is a serious matter which undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction.

33. In light of the above factors, the Panel determined that given the nature of the Registrant’s conviction, that to take no action, make a Caution Order or a Conditions of Practice Order, would not be in the public interest, and would not retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing any of these sanctions, given the seriousness of the conviction.

34. In addition, the Panel was unable to identify any suitable or workable conditions which could be imposed, in light of the Registrant’s offending behaviour and his lack of engagement in these proceedings.

35. The Panel next considered whether to make a Suspension Order. The Sanctions Policy (paragraph 121) suggests that a Suspension Order is appropriate where there are serious concerns, but which do not require the registrant to be struck off. The cases which are likely to be suitable for a Suspension Order are where the registrant has insight, there is unlikely to be repetition and there is evidence that the registrant is likely to be able to resolve or remedy their failings.

36. In light of the Panel’s finding that there remains an ongoing risk of repetition and a lack of insight, this is not a suitable or appropriate sanction. The Panel also concluded that a Suspension Order would not be an appropriate sanction to both protect the public and to address the wider public interest concerns which the Panel identified.

37. The Panel was then left with a Striking Off Order. The Sanctions Policy states that striking off is a sanction of last resort for serious, persistent, deliberate or reckless acts involving, amongst others sexual misconduct (paragraph 130).

38. 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 (paragraph 131). There is also reference to where the Registrant lacks insight or is unwilling to resolve matters.

39. The Panel concluded that a Striking Off Order was the appropriate sanction in light of the serious nature of the Registrant’s conviction and his lack of insight. The Panel also concluded that any lesser sanction would be insufficient to protect the public, to retain public confidence in the profession and public confidence in the regulatory process.

ORDER: The Registrar is directed to strike the name of Mr Robbie Fegan from the Register on the date this order comes into effect.

Application for Interim Order

1. The HCPC applied for an interim suspension order to have effect during the appeal period, either when that period expires or if the appeal is made, when the appeal is concluded or withdrawn and to proceed with this application in the absence of the Registrant. The Panel took advice from the Legal Assessor and decided to proceed in the absence of the Registrant, for the same reasons as are set out above.    

2. The Panel concluded that it was appropriate to make such an interim order, in light of the findings set out above and the sanction imposed because the proven allegation is so serious that public confidence in the profession would be seriously harmed if the Registrant was allowed to remain in unrestricted practice.

Interim Order

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. 

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 Robbie Fegan