Stephen P Luff

Profession: Radiographer

Registration Number: RA54211

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/06/2021 End: 09:30 18/06/2021

Location: This hearing will be held virtually

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

As Amended
As a registered Radiographer (RA54211) your fitness to practise is impaired by reason of misconduct in that:
1. In or around August 2019, you accessed and viewed a picture of a topless woman on a work computer whilst working at Nuffield Health Wolverhampton Hospital (the Hospital).

2. On or around 10 and/or 11 September 2019, you used an adult internet chat room namely ‘Chatiw’ during work on a work computer at the Hospital.

3. The matters set out in 1 and 2 above constitute misconduct.

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters
Application to amend the Allegation
1. Mr Tarbert applied to amend Particulars 1 and 2 of the Allegation to better reflect the evidence to be called at this hearing. Mr Tarbert indicated that the Registrant had been given notice of the proposed amendments by email dated 8 July 2020. The Registrant does not object to any of the proposed amendments.

2. Following legal advice which it has accepted, the Panel has considered each proposed amendment separately. The Panel notes that the Registrant does not object to any of the proposed amendments. In relation to Particular 1, the Panel is satisfied that the proposed amendments clarify the nature and number of pictures it is alleged the Registrant viewed and the ownership of the computer on which it is said he did so. The Panel is satisfied that the proposed amendments do not prejudice the Registrant or cause any unfairness and so it has decided to grant the application in respect of Particular 1.

3. In relation to Particular 2, the Panel is satisfied that the proposed amendments clarify the dates on which the Registrant is alleged to have used an adult chat room and that he did this whilst at work at the relevant hospital. The Panel is satisfied that the proposed amendments do not prejudice the Registrant or cause any unfairness, and so it has decided to grant the application in respect of Particular 2.

Background
4. The Registrant is a registered Radiographer who was employed at Nuffield Health Wolverhampton Hospital (the Hospital) from 14 March 2018 until his resignation on 11 September 2019. Initially, the Registrant was employed as an Agency Radiographer before being employed as a Bank Radiographer. His role involved performing x-rays, conducting image intensifying procedures when required in theatre, transferring patients from the ward to the Radiology Department for post-operative x-rays and assisting with some administrative tasks. The administrative tasks included importing and exporting patient images to other hospitals using the Image Exchange Portal (IEP), entering patient details on the system, and booking appointments, when required. The Registrant worked with a range of patients, including those attending the Hospital as inpatients and outpatients, anaesthetized, paediatric, and geriatric patients.

5. On 11 September 2019, due to concerns being raised about the Registrant’s use of a work computer during working hours, an internal investigation was opened by the Hospital. The Registrant was interviewed that day, admitted his inappropriate use of the computer and resigned with immediate effect.

6. On 25 September 2019, the Hospital referred the Registrant to the HCPC due to concerns about his inappropriate use of a work computer during working hours which had been reported by colleagues. The Panel heard evidence from four witnesses called by the HCPC together with documentary evidence adduced by the HCPC. The Registrant gave evidence.

Decision on Facts
Evidence
7. LWn is a Radiology Assistant (RA) employed by the Hospital. Her role involves assisting patients to get ready for their x-ray scans and checking their ID and documentation. LWn also assists in completing Magnetic Resonance Imaging (MRI) scans and assists the doctors when completing ultrasound scans. LWn gave evidence in relation to Particular 2 of the Allegation and only in relation to events on 10 September 2019. LWn told the Panel that she had had a good working relationship with the Registrant, and it appeared to the Panel that LWn had genuinely liked working with him. The Panel found LWn to be an honest and credible witness who had no motive to make up or embellish the events about which she was giving evidence.

8. SC is a Radiology Assistant (RA) employed by the Hospital At the time of her witness statement, SC was pregnant and so was dealing with mainly administrative duties. She was assisting with MRI scans and was the IEP Lead, responsible for the importing and exporting of patient images to and from other hospitals. SC gave direct evidence in relation to Particular 2 of the Allegation and mainly in relation to events on 11 September 2019. SC also gave evidence of what LWn had told her about what she had seen on 10 September 2019. The Panel found SC’s evidence to have been reliable and credible. It considers that SC was candid in her use of language. For example, SC told the Panel that having heard from LWn what she had allegedly seen on the computer being used by the Registrant on 10 September 2019, SC said she had wanted to “catch him out” when she had seen him using the same computer on 11 September 2019. The Panel is satisfied that SC bore the Registrant no malice and had no ulterior motive which impacted on the veracity of her evidence.

9. NM-C is a Radiology Assistant (RA) who began her employment at the Hospital on 1 May 2019. As part of her role, she is responsible for managing the Reception Desk in the Radiology Department, welcoming patients, ensuring that all the authorisation numbers and patient information are correct and assisting when completing ultrasound and MRI scans.

10. NM-C gave her evidence to the Panel via a telephone link due to technical issues with the video camera on her computer. While NM-C could see the various parties in the virtual Hearing Room, none of the parties could see her. In view of the technical difficulties, Mr Tarbert applied for NM-C’s evidence to be heard via telephone link. He reminded the Panel that the Registrant had admitted Particular 1 about which NM-C was to give evidence. The Registrant did not oppose the application.

11. The Panel, having received and accepted legal advice, decided that there was no prejudice to the Registrant in NM-C giving her evidence via telephone link because the Registrant had admitted Particular 1 of the Allegation and it was unlikely that the Panel needed to assess NM-C’s demeanour to assess her credibility. The Panel noted that although it is always preferable for witnesses to be visible when giving evidence, there are rare occasions when for technical reasons, this is not possible. The Panel was satisfied in this case that it would be able to judge NM-C’s evidence without the need to see her.

12. The Panel found NM-C to be a credible, honest, and reliable witness who gave evidence about Particular 1 of the Allegation. The Panel is satisfied that NM-C had no motive to be anything other than honest about what she had seen and indeed, NM-C corrected an error in her witness statement in effect in the Registrant’s favour. The Panel notes that NM-C had a very positive view of the Registrant. She considered that they had a very good working relationship and described the Registrant as an exceptional colleague who had helped her settle into the Radiology Department at the Hospital. The Panel notes that NM-C did not report any concerns about what she had witnessed in August 2019 until after the events alleged to have occurred on 10 and 11 September 2019. The Panel accepts NM-C’s explanation that she was relatively new to the Radiology Department at the time and had been a bit naïve about what she had seen.

13. The Panel notes that LWn, SC and NM-C each described events which had taken place on a work computer being used by the Registrant in a small room known as the “Green Room” which was near the Reception Desk in the Radiology Department. Each witness was asked supplementary questions about the dimensions of the Green Room, where the desk was positioned, where the computer was, and how far away from the computer screen they had been when they witnessed the events about which they were giving evidence. The Panel notes that these witnesses gave similar and consistent evidence on these points to the effect that the desk was to the right-hand side of the door and at a distance of about 1 metre from the door. The computer was on the desk and there was nothing obstructing their view of the computer screen on entering the room. The Panel has accepted their evidence on this point.

14. LWx is the Radiology Manager in the Hospital. In addition to clinical duties in the MRI department, LWx is responsible for the general management of the Radiology Department including operational management, Human Resources (HR), resource management, business development, process improvement and professional development. LWx was the Registrant’s Line Manager. This involved organising the Registrant’s shift rotas, confirming which shifts he had been allocated and confirming his availability. LWx had known the Registrant for less than a year when the concerns regarding his use of the work computer were raised. She had worked with him two or three times a week during that time.

15. LWx explained that she had been appointed to investigate the concerns raised by LWn and SC in relation to 10 and 11 September 2019. LWx told the Panel of her meeting with the Registrant on 11 September 2019 when she raised with him the concerns referred to by LWn and SC. LWx said the Registrant had admitted inappropriate use of the computer, he had apologised and when told that he would have to leave the Hospital pending investigation, he had resigned with immediate effect. LWx explained that under the Hospital’s policies, the Registrant’s resignation brought an end to the internal investigation. LWx also told the Panel of two previous meetings she had had with the Registrant when she had told him that he needed to do more in terms of assisting with administrative tasks during downtime between patients.

16. The Panel found LWx to be a credible and honest witness who, as a manager, dealt with the concerns raised with her and investigated these appropriately. This included LWx trying to obtain as part of the referral to the HCPC, the Registrant’s internet browser history for the relevant time. The Panel accepts LWx’s evidence that it was not possible to obtain this information firstly because the Registrant’s internet browsing history setting had been set to delete this each time he logged out of the system. It was also not possible for the IT department to obtain this information as it was only kept for a short period which may have expired by the time it was requested. The Panel found LWx’s evidence on the Hospital’s policies and her expectations of staff in the Department to have been balanced and helpful. LWx told the Panel that all members of staff were expected to do administrative tasks in the downtime between patients. She also told the Panel that the Registrant would have been aware of the Hospital’s Standard Operating Procedure on Emails, Internet and Social Media as part of his induction. This document was available to staff on the Hospital’s intranet.

17. The Registrant gave evidence to the Panel who found him to be open and willing to accept the evidence of all the witnesses called by the HCPC. The Panel considers that the Registrant’s evidence was generally credible and honest. The Registrant repeated the admissions that he had made at the outset of the hearing. He told the Panel that he did not know how to do many of the administrative tasks and would use the Green Room to do IEP work so as not to be on the Reception Desk where the computers were always in use. He told the Panel that he was the only male member of staff in the Radiology Department and that he felt isolated. He also found the pace of work at the hospital to be slower than he would have liked resulting in a lot of downtime which he said could have affected his judgment. He was not using this as an excuse for his conduct but, on reflection, was offering this as a possible explanation for why he had acted this way. He said he did not find the position a good fit for him and was considering finding a new post which aided his decision to resign when interviewed by LWx. The Registrant told the Panel that he did not know that his resignation would bring the internal investigation to an end.

Particular 1 – found proved
18. The Panel accepts the evidence of NM-C that on an unknown date in August 2019, she entered the Green Room where the Registrant was using the computer. NM-C said she had knocked on the door and walked straight in. NM-C said she had an unobstructed view of the computer screen. This was from a distance of about 1 metre and for about 1 – 2 seconds. In that time, she had seen a picture of a lady who had been naked from the waist up. The Registrant had closed the picture. NM-C told the Panel that she had asked the Registrant what he was doing but he had not replied. They had then discussed a work-related matter before she had left the room.

19. The Panel also accepts the Registrant’s admission in respect of Particular 1 which he made at the outset of these proceedings and which he repeated in his evidence. The Registrant told the Panel that he had been in the Green Room and was supposed to have been doing IEP work when NM-C had walked in. Instead, he had been using the work computer to access an email from a friend. The image of the topless woman was an attachment to that email which he had just opened when NM-C had walked in. The Registrant said that he had not known what the attachment was before he opened it. He admitted that he had been startled when NM-C had walked in. The Registrant explained that he had not responded to NM-C’s question as they had quite a jovial relationship and he had thought NM-C had understood that it was a mistake. The Registrant explained that he had realised it was inappropriate to have the attachment open at work and he had not had time to shut it down when NM-C had walked in. The Registrant explained that he had not told his Line Manager [LWx] about this incident at the time. The Registrant explained that this was because he had thought, on some level, that it was a matter between himself and NM-C, and it was also because he had decided that he was not going to access personal emails at work in the future and so there would be no recurrence of the incident.

20. The Panel is satisfied that in August 2019, the Registrant accessed and viewed a picture of a topless woman on a work computer whilst working at the Hospital and accordingly, the Panel finds Particular 1 proved.

Particular 2 – found proved in relation to both 10 and 11 September 2019
21. The Panel first considered the events of 10 September 2019. The Panel accepts the evidence of LWn that on that date she had entered the Green Room and had seen the Registrant seated at the desk using the computer. LWn explained that the door to the Green Room had been closed and she had simply walked in without any warning. LWn described that the Registrant had appeared to be startled by her presence and had closed the internet page that had been open on the computer screen. LWn had not seen what had been open on the screen. LWn told the Panel that while she was talking to the Registrant about a work-related matter, she noticed that something flashed at the bottom of the screen indicating that a new message had been received. At that time, LWn did not know the source of that new message. Shortly after this, LWn had left the Green Room.

22. LWn went on to tell the Panel that she went back to speak to the Registrant again not long after this and she had then noticed a red icon on the computer which read “Chat iw”. LWn did not recognise this as being a work-related internet site. LWn also saw the message icon flashing whilst she spoke with the Registrant at this time. The Panel accepts that LWn later reported what she had seen to SC and to another colleague, SR from whom the Panel has not heard evidence. The Panel accepts the evidence of both LWn and SC that they looked up “Chat iw” using the Google website on one of their phones to see what sort of chat room it was, and that they had discovered it was an adult chat room for single people.

23. The Panel then considered the events of 11 September 2019. The Panel accepts the evidence of SC that on that date, she too had entered the Green Room when the Registrant was using the computer. SC said she always moved quickly and that she had in effect burst into the room. She explained that the Registrant had shut down whatever he had had open on the screen and so she had not seen what it was at that time. SC told the Panel that SR had gone to the Green Room to ask the Registrant to discuss the work rota with her and that the Registrant and SR had left the Green Room to do this. SC told the Panel that she had then gone into the Green Room and had noticed that the Registrant had not logged out of the computer. SC decided to check to see what he had been doing. SC told the Panel that she noticed that an internet page was open but had been minimised. SC opened this and then checked on the website tab at the top of the computer which shows the internet browser history. This showed that the Registrant had accessed the “Chat iw” website. SC took a screenshot of the internet history on her phone as well as two further screenshots of the log in page for the “Chat iw” website. The Panel has seen all three screenshots and is satisfied from these that they confirm that the Registrant had used the “Chat iw” adult internet chat room on 11 September 2019 and that “Chat iw” users were able to choose different chat rooms including ones titled “dirty chat” and “flirty chat”.

24. The Panel also accepts the Registrant’s admission in respect of Particular 2 which he made at the outset of these proceedings and which he repeated in his evidence. The Registrant told the Panel that in September 2019 he had used an internet adult chat room called “Chat iw” using the work computer in the Green Room during working hours. He said that he had done so as a friend had suggested he try it to make friends. The Registrant explained that he did not make friends easily. He accepted that this was an inappropriate use of the work computer during working hours. The Panel notes that the Registrant admitted he had used the “Chat iw” chat room when asked about this by LWx as part of her internal investigation.

25. The Panel is satisfied that on 10 and 11 September 2019, the Registrant used an adult internet chat room “Chat iw” during work on a work computer at the Hospital and accordingly, the Panel finds Particular 2 proved in relation to both 10 and 11 September 2019.
Decision on Grounds
26. In reaching its decision on the statutory ground of misconduct, the Panel has taken note of the submissions of both parties. It has received and accepted legal advice.

27. Mr Tarbert submitted that the Registrant had, on three occasions, used a work computer inappropriately during working hours. He submitted that whilst there was no evidence of what was in the “Chat iw” messages, the menu of the available types of chat rooms together with the image viewed in August 2019, suggests some undertones of sexual content. Mr Tarbert submitted that the Registrant’s conduct had breached both the HCPC’s Standards of conduct, performance and ethics (2016) as well as the Hospital’s Standard Operating Procedure 5 which relates to the Use of Email, Internet and Social Media.

28. The Registrant accepted that what he had done had fallen below his own standards but submitted that his conduct did not amount to serious misconduct.

29. The Panel is satisfied that the Registrant’s conduct in accessing inappropriate content on a work computer during working hours as found proved in Particulars 1 and 2, fell far below the high standards to be expected of a Radiographer. The Panel considers the Registrant’s surreptitious behaviour in quickly minimising or shutting down the images on the computer screen when his colleagues had entered the Green Room indicates he knew at the time that what he was doing was wrong. The Panel notes that even after he had been seen viewing a picture of a topless woman in August 2019, the Registrant still went on to use an adult internet chat room on two consecutive days very shortly after this in September 2019.

30. The Panel considers that the Registrant’s conduct impacted adversely on his colleagues in the Radiology Department at the Hospital. As LWx said in her evidence which the Panel accepts, the Registrant should have been engaged on administrative tasks which meant that his colleagues would either have to complete those tasks, or the tasks would not have been completed by the next day and staff on duty then would have to complete them.

31. The Panel notes that the relevant Hospital Standard Operating Procedure permits staff to use a work computer for personal business, but that staff should act responsibly when doing so and preferably not in working hours. The Panel is of the view that the content of what the Registrant was accessing on the work computer during working hours was wholly inappropriate and was such that fellow professionals would find his conduct to have been unacceptable and not the sort of conduct expected of a Radiographer. The Panel is concerned that the Registrant’s inappropriate use of the computer was in the downtime between treating patients. It considers that patients would feel uncomfortable to know what the Radiographer had been doing immediately prior to treating them. The Panel has no hesitation in finding that the facts found proved in both Particulars 1 and 2, amount to serious misconduct.

32. In reaching its decision on misconduct, the Panel has had in mind the HCPC Standards of conduct, performance and ethics (2016) and has concluded that the following standards are engaged and have been breached:
Standard 2 Communicate appropriately and effectively
Social media and networking websites
2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
Standard 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.

33. The Panel is satisfied that the Registrant’s use of the work computer during working hours was neither appropriate nor responsible. The Panel is also satisfied that the Registrant failed to make sure that his conduct justified the public’s trust and confidence in him, and in the Radiography profession when he used a work computer during working hours to view a picture of a topless woman and used an adult internet chat room “Chat iw”.

34. The Panel has also had in mind the Hospital’s Standard Operating Procedure which the Registrant said he was aware of as part of his induction and which he had access to on the Hospital’s intranet. Standard Operating Procedure 5 which relates to the Use of Email, Internet and Social Media states:

“3.10 The internet service is predominately available for matters relating to the business of Nuffield Health. Nuffield Health accepts that there will be occasions when workers need to access internet services for personal use. This should be used with discretion and all users are expected to act responsibly and access this facility preferably in their own time and out of working hours….”
and
“3.15 The following practices are strictly prohibited and may be subject to disciplinary action, up to and including dismissal:
3.15.2 Downloading, printing, creating or distributing pornographic or any other material of a sexual nature”.

35. The Panel considers that the Registrant did not act responsibly or exercise appropriate discretion when using the work computer during working hours for personal matters. The Panel is concerned that in relation to Particular 1 the Registrant downloaded by opening an attachment of a picture of a topless woman which could be described as being pornographic or of a sexual nature in relation to Particular 2, while the Panel acknowledges that there is no evidence of the nature of the chat messages on “Chat iw”, given the names of the chat rooms available on that internet site, there is the potential for these to have been of a sexual nature.

36. Accordingly, the Panel finds that the Registrant’s conduct in Particulars 1 and 2 falls seriously short of what would have been proper in the circumstances and amounts to misconduct.

Decision on Impairment
37. Before the Panel considered whether the Registrant’s fitness to practise is impaired by reason of his misconduct, it received from the HCPC a further documentary exhibit. This document was the determination of previous regulatory proceedings taken against the Registrant in 2011 in relation to similar concerns to those before the Panel in this hearing. All parties were given time to read the new documentation before the Registrant was recalled and gave further evidence.

38. The Registrant told the Panel that since 2019, he had made great efforts to be in a position where he would never behave in a similar way again. Since September 2019, he had been employed as a Radiographer by the NHS and in this role, he had been working very hard. He had made sure that he was “patient centred”, he did not work alone, he did not use a work computer unnecessarily, and only accessed personal emails before or after work, or on his own device. The Registrant said he was very remorseful and very disappointed in himself for getting into this situation. The Registrant told the Panel that by taking these steps he has ensured that his behaviour cannot resurface and that he would continue to ensure this in the future. He indicated that he would like to remain as a Radiographer.


39. When he was cross-examined by Mr Tarbert, the Registrant acknowledged that his misuse of the work computer during working hours had the potential to impact on his colleagues by creating extra work for them. He also said that he had been reflecting on the impact of his misconduct on his colleagues and said that he believed they might have seen it as out of character. He added that they might have been surprised. The Registrant said patients aware of his misconduct would have been shocked and that it had the potential to undermine the trust and confidence which the public places in him as a Radiographer. The Registrant agreed that his misconduct would reflect badly on the Hospital. When asked by Mr Tarbert why he had behaved in 2019 in a similar way to how he had behaved in 2011, the Registrant repeated that he had got himself into a position where his “habits” had recurred at a time when he was not satisfied with his role in the Hospital. The Registrant said he needed to look at the reasons why he behaved in the way he did, and promised never to act in the same way again. The Registrant referred to control measures he had in place and confirmed that his wife was fully aware of the situation and was supporting him.

40. In answer to Panel questions, the Registrant said he had reflected on what triggered his behaviour but did not believe there was a specific trigger. He repeated that the misconduct had occurred when he had had excessive downtime between patients and when he did not feel valued in his role. Since the matters in 2011, the Registrant said he had kept himself very busy and he had managed his behaviour very well and it had only resurfaced when he was in a “not ideal” role at the Hospital. He stated that he had not yet made proper enquires into appropriate counselling, but he would be prepared to do so. He explained that his wife’s support was to help him find employment which minimises the risk of recurrence and she notices when his mood alters. The Registrant told the Panel that he had told his wife that his “habits” had resurfaced and that this was why he was looking for new employment before the misconduct in this case arose.

Decision
41. In reaching its decision on impairment, the Panel has had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. The Panel has taken account of the submissions of Mr Tarbert and the Registrant. It has received and accepted legal advice. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

Submissions
42. Mr Tarbert submitted that the Registrant’s fitness to practise is impaired on both personal and public component grounds. He submitted that as this was now the Registrant’s second referral to the HCPC for similar conduct, the main concern must be the likelihood that the misconduct will be repeated. Mr Tarbert reminded the Panel of the evidence of LWx that she had on two previous occasions spoken to the Registrant about his use of downtime when he had been observed watching television in the reception area. LWx had told the Registrant that any downtime should not be used for personal activities but rather should be used to carry out administrative tasks within the Department. Mr Tarbert submitted that despite those clear warnings, the Registrant had used downtime in August 2019 to view an inappropriate picture of a topless woman and again in September 2019 had gone on to access the “Chat iw” internet site which was inappropriate. Mr Tarbert pointed out that the Registrant had continued to use the work computer during working hours inappropriately despite being caught out by a colleague in August 2019 and again, by another colleague, on 10 September 2019, and so there is a clear risk of repetition in this case.

43. Mr Tarbert referred the Panel to the earlier HCPC proceedings in 2011 where the Registrant’s fitness to practise was found to be impaired in relation to similar misconduct which had involved the misuse of a work computer to access inappropriate content. Mr Tarbert submitted that the Registrant, much as he had done during this hearing, had expressed his remorse to that panel and had indicated that he had taken remedial action to stop the misconduct recurring. Yet despite that there had been a recurrence in 2019 and so Mr Tarbert posed a rhetorical question “what has changed” between then and now? He questioned whether the support mechanisms which the Registrant says he has put in place were suitable and sufficiently stable to reduce the risk of repetition in the future. In relation to the public component, Mr Tarbert submitted that a finding that the Registrant’s fitness to practise is impaired was required, in order to maintain confidence in the Radiography profession and to declare and uphold proper standards of conduct and behaviour in that profession.

44. The Registrant acknowledged that his misconduct was repetitive behaviour and submitted that he had taken remedial action in 2011 to prevent its recurrence. However, there had come a point in 2019 when this had been insufficient to prevent a recurrence. The Registrant referred to his remorse and said that he had not wanted to bring his profession into disrepute. He submitted that he understood the seriousness of the situation he was now in but was unsure as to whether his fitness to practise was currently impaired.

Decision on personal component
45. The Panel has considered the personal component. It is satisfied that the conduct in this case is capable of being remedied. However, the Panel is troubled by the fact that this is the second time the Registrant has been subject to regulatory proceedings in relation to conduct of a similar nature. The Panel has concluded that the Registrant has started the process of remediation but has yet to remedy his misconduct. The steps he has taken to prevent the recurrence of his misconduct are to change employment to a busier role and to keep himself occupied on work-related activities during downtime between patients, to not access the work computer for non-work-related business in working hours and to work with colleagues rather than on his own. The Panel is of the view that these may provide some measure of protection against a repetition of the Registrant’s misconduct but are unlikely to be sufficient in themselves to remedy it.

46. The Panel takes the view that the Registrant has poor judgement and has shown only limited insight into the causes of his misconduct, its seriousness and how he needs to control it. The Panel is concerned that the Registrant does not fully understand that what he did is not acceptable behaviour in a healthcare professional. The Registrant was given a “shot across the bows” by LWx in 2018 when she pulled him up about his use of downtime between patients. This should have alerted him to the risk that he might repeat the misconduct found in 2011, but it seems that the Registrant ignored LWx’s warning. The Panel considers that in August 2019 when NM-C found him viewing a picture of a topless woman, this should have been a trigger to do something about his behaviour. But the Registrant did nothing, believing that the matter would be kept between himself and NM-C. The Registrant went on to misuse the work computer to access an adult internet chat room on 10 September 2019. Again, he was caught out, this time by LWn. Even this did not stop the Registrant who used the same adult internet chat room on 11 September 2019. The Panel is concerned the Registrant states that he knows he has a problem and wants help in dealing with it, but rather than proactively seeking appropriate help, he appears to take a passive and reactive stance and does not seem sure as to what he should being doing about it.

47. The Panel is also concerned that the Registrant has only limited insight into the impact of his misconduct on his colleagues, patients, his profession, and the wider public interest. For example, the Registrant told the Panel that if a patient saw him misusing the computer as has been found proved in this case, that patient might consider his actions to be ill-judged. The Panel is of the view that in this response the Registrant has failed to recognise that a patient would find his conduct to be totally inappropriate. The Panel notes that the Registrant has said he recognises his misconduct has damaged public confidence in his profession and brought it into disrepute. However, the Panel has concluded that the Registrant has yet to understand the full impact of his misconduct on the public’s confidence in the profession. The Panel accepts that it is an indication of some insight that the Registrant made admissions to the Allegation at the outset of the hearing and repeated these in his evidence. The Registrant has recognised that his conduct fell below the standards expected of a Radiographer but has yet to appreciate the seriousness of his actions.

48. The Panel accepts that the Registrant has expressed his remorse for his actions. He has engaged with these proceedings and made full admissions to the Allegation. He answered all the questions put to him by Mr Tarbert and by the Panel, openly and to the best of his ability. The Panel also notes that the witnesses spoke of having a good working relationship with the Registrant. One witness described him an “exceptional colleague who had been immensely helpful and a pleasure to work with”. The Panel accepts the Registrant’s evidence that he loves his profession and would like to be able to continue to be a Radiographer.

49. The Panel has considered the likelihood that the Registrant will repeat his conduct. It has looked with care at the support mechanisms the Registrant says will ensure that he does not repeat his misconduct. The Panel is concerned that the Registrant has not fully recognised the triggers that cause him to behave as he does or that his own willpower alone might not be sufficient to prevent a recurrence. The Panel is satisfied that until the Registrant develops significant insight and has properly reflected on and understood both the causes of his misconduct and its impact on others, there is a high risk of repetition in this case.

50. In these circumstances, the Panel has concluded that the Registrant’s fitness to practise is impaired on personal component grounds.

Decision on public component
51. In relation to the public component, the Panel has considered very carefully, given the nature and circumstances of the misconduct in this case, whether public confidence in the Radiography profession and its regulatory body would be undermined if there were no finding of impairment in this case. The Panel has also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case.

52. For the reasons set out under the personal component above, the Panel does not consider that this is a case where there are concerns regarding physical risks to patients. However, the Panel has already noted that patients being treated by the Registrant would be uncomfortable to discover that he had been viewing inappropriate content on a work computer during working hours prior to treating them.

53. The Panel has concluded that a reasonable and informed member of the public would be very concerned if there were no finding of impairment where the Registrant’s behaviour involved the misuse of a work computer during working hours to view inappropriate content or access inappropriate websites, particularly where the Registrant’s fitness to practise had been found to be impaired for similar behaviour on a previous occasion.

54. The Panel is satisfied that public trust and confidence in the profession and in its regulator would be undermined if there were no finding of impairment in this case. The Registrant’s behaviour is not acceptable in any circumstances in a healthcare professional dealing with patients, in various stages of undress, who might find themselves alone with the Registrant prior to, during and after treatment. The Panel considers that the Registrant has breached a fundamental tenet of the profession by breaching Standard 9 of the HCPC Standards of conduct, performance and ethics, and failed to make sure that his conduct justified the public’s trust and confidence in him and in the Radiography profession, as set out in paragraph 33 above.

55. The Panel is satisfied that the Registrant’s misconduct has brought the profession into disrepute. The Panel is also satisfied that it would be failing in its duty to uphold and declare proper standards of conduct and behaviour in the Radiography profession if it did not find that the Registrant’s fitness to practise is impaired.

56. The Panel therefore finds, on the public component, that the Registrant’s fitness to practise is impaired.

57. Accordingly, the Panel finds, on both the personal and public component grounds, that the Registrant’s fitness to practise is impaired and the Allegation is well founded.

Decision on Sanction
58. In considering the appropriate and proportionate sanction in this case the Panel was referred to, and has taken account of, the HCPC’s Sanctions Policy. The Panel has received and accepted legal advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect the public, to maintain confidence in the Radiography profession and to uphold its standards of conduct and behaviour. The Panel has also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.

59. The Panel has considered mitigating and aggravating factors. The Panel first looked at the mitigating factors. The Panel notes the following:
• the Registrant admitted the factual matters alleged against him;
• the Registrant has engaged with these proceedings;
• the Registrant has shown some, albeit limited, insight into his misconduct and its effect on his colleagues and his profession;
• the Registrant has taken some initial steps towards remedying his misconduct and has listened to what the Panel has said in its decisions on Statutory Ground and Impairment, and is willing to address his misconduct in a more proactive way;
• the Registrant has shown remorse and has apologised for his misconduct;
• the Registrant is held in high regard by his former colleagues despite his misconduct;
• no patients were harmed by the Registrant’s misconduct.

60. The Panel considers the following to be aggravating factors:
• there is a pattern of unacceptable behaviour which is demonstrated by (i) a previous fitness to practise finding in 2011 against the Registrant for similar misconduct, and (ii) by the repeated misuse of the work computer after being first seen to do so in August 2019. The Registrant was seen a second time to misuse the work computer on 10 September 2019 and yet he still went on to misuse it again on the very next day.
• the Registrant has limited insight into his misconduct and its impact on patients, colleagues, the Hospital, the Radiography profession and the wider public interest.

61. The Panel has considered the available sanctions in ascending order of seriousness. It has decided that to take no action or impose a Caution Order in this case would not be appropriate or proportionate given that the misconduct was not isolated or limited, and nor could it be described as relatively minor in nature. The Panel is not able to conclude that there is a low risk of repetition because the Registrant has yet to show good insight into the causes of his misconduct or the impact of it on his patients, colleagues, his profession and the wider public. While the Registrant has taken some steps towards remedying his misconduct, the Panel is not satisfied that these are complete or sufficiently robust. In 2011, the Registrant’s fitness to practise was found to be impaired by reason of similar misconduct involving his misuse of a work computer to access inappropriate content during working hours. In that case, the sanction imposed was a Caution Order for 1 year. The misconduct found by the Panel in this hearing indicates that the Registrant has not been able to address the underlying causes of his misconduct despite a Caution Order imposed at the earlier proceedings. The Panel is satisfied that to ensure public confidence in the profession is not undermined, it must consider a more severe sanction.

62. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy which states:
“A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.

63. The Panel is satisfied that the Registrant has started to gain insight into his misconduct. It considers that the misconduct is capable of being remedied. It also considers that if the Registrant obtains appropriate treatment and is open with his employer, this should enable him to gain sufficient insight into his misconduct, be accountable for his actions and put in place strategies to address his behaviour and achieve full remediation in this case.

64. The Panel is satisfied that it can formulate conditions of practice which are appropriate, proportionate, realistic, and verifiable, and which sufficiently address the concerns raised by the Registrant’s misconduct so that the public and the wider public interest are properly protected. The Panel considers that a reviewing panel will be able to determine whether the conditions of practice have been complied with. The Panel is further satisfied that the Registrant will comply with conditions placed on his practice. It considers that the Registrant does not pose a risk of harm by being in restricted practice.

65. The Panel takes the view that it is in the public interest to retain competent and safe practitioners within the profession, where possible. There has never been any suggestion that the Registrant is other than a competent Radiographer and the Registrant is clearly committed to his work and is still in current employment. The Panel has decided that the Registrant should be given the opportunity to reassure a reviewing panel that he has addressed the root causes of his misconduct and that he has put in place appropriate and sufficiently robust measures to prevent a recurrence of that misconduct so that he can safely return to unrestricted practice. The Panel is satisfied that a reasonable and well-informed member of the public would be reassured that appropriate and proportionate measures, designed to prevent a recurrence of the misconduct, have been put in place under a Conditions of Practice Order. The Panel is satisfied that a Conditions of Practice Order in the circumstances of this case will maintain public confidence in the Radiography profession and in its regulator. It also sends out a clear message to practitioners that such conduct will not be condoned.

66. The Panel has decided that the Conditions of Practice Order should be for a period of 18 months. This period will give the Registrant sufficient time to put in place accountability measures and gain better insight into the underlying causes of his misconduct. These measures should prevent any recurrence. It will also give the Registrant time in which to reflect more fully on the impact of his misconduct on patients, his colleagues, his profession, and the wider public interest. The Registrant has told the Panel that he wants to remedy his misconduct and this Order will provide him with a framework within which to do so.

67. The Panel next considered whether to impose a Suspension Order. It has had in mind the following guidance from the HCPC’s Sanctions Policy:
“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;
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

68. Although the Panel has found the misconduct in this case to be serious the Panel is satisfied that the misconduct can reasonably be addressed by a Conditions of Practice Order. A Suspension Order would remove the financial ability of the Registrant to undertake appropriate. It would remove a highly regarded Radiographer from practice about whom there are no patient safety or clinical concerns. The Panel has concluded that a Conditions of Practice Order is the least restrictive and proportionate sanction which it can impose on the Registrant and which addresses the concerns it has identified. It is a sanction which the Panel considers is most likely to result in the Registrant being able safely to return to unrestricted practice. The Panel considers that a Suspension Order in this case would be disproportionate, punitive and too severe a sanction.

69. The Panel considers that a reviewing panel would be assisted by the following:
1. the Registrant’s attendance either in person or remotely at the review hearing to assist the reviewing panel in relation to his insight.
2. a reflective piece on the misconduct found, which explains why it occurred and how it impacted on patients, colleagues, the Radiography profession and the public interest.

Order

The Registrar is directed to annotate the HCPC Register to show that for a period of 18 months from the date that this Order takes effect (“the Operative Date”), you, Mr Stephen P Luff, must comply with the following conditions of practice:

1. You must confine your professional practice to working within the National Health Service.

2. You must place yourself, and remain under, the supervision of a workplace supervisor registered by the HCPC or other appropriate regulator and supply details of your supervisor to the HCPC within 21 days of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.

3. You must allow your workplace supervisor to have independent access to carry out spot checks of your internet browsing history on any work computer that you may use during working hours.

4. Your workplace supervisor must provide a written report on your internet browsing history which should specify if you have accessed any non-work-related internet websites during work hours to the HCPC 21 days prior to any review hearing.

5. You will be responsible for meeting any and all costs associated with complying with these conditions.

6. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

7. You must inform the following parties that your registration is subject to these conditions:
A. Any organisation or person employing or contracting with you to undertake professional work;
B. Any agency you are registered with or apply to be registered with (at the time of application); and
C. Any prospective employer (at the time of your application).

Notes

Decision on Interim Order
Mr Tarbert applied for an Interim Order in this case on grounds that it was in the public interest and in the interests of the Registrant. The Registrant did not oppose the application and accepted that such an Order was in the public interest and in his own interests.

The Panel has decided that it will make an Interim Conditions of Practice Order for 18 months under Article 31(2) of the Health Professions Order 2001, as this is in the public interest for all the reasons set out in its determination above. The Panel has concluded that public confidence in the regulatory process will be maintained by the imposition of such an Interim Order as it upholds proper standards of conduct in the Radiography profession during the period of any appeal. The Panel also considers that such an Interim Order is in the Registrant’s interests and will enable him to begin the process of gaining insight and remedying his misconduct and so reduce the risk of recurrence of his misconduct. The Interim Conditions of Practice mirror those of the Conditions of Practice Order made by the Panel as follows:

1. You must confine your professional practice to working within the National Health Service.

2. You must place yourself, and remain under, the supervision of a workplace supervisor registered by the HCPC or other appropriate regulator and supply details of your supervisor to the HCPC within 21 days of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.

3. You must allow your workplace supervisor to have independent access to carry out spot checks of your internet browsing history on any work computer that you may use during working hours.

4. Your workplace supervisor must provide a written report on your internet browsing history which should specify if you have accessed any non-work-related internet websites during work hours to the HCPC 21 days prior to any review hearing.

5. You will be responsible for meeting any and all costs associated with complying with these conditions.

6. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

7. You must inform the following parties that your registration is subject to these conditions:
A. Any organisation or person employing or contracting with you to undertake professional work;
B. Any agency you are registered with or apply to be registered with (at the time of application); and
C. Any prospective employer (at the time of your application).

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 Stephen P Luff

Date Panel Hearing type Outcomes / Status
14/06/2021 Conduct and Competence Committee Final Hearing Conditions of Practice