Mr Alex White

Preliminary Matters:

Service

 
1. On or about the 23 March 2020 and acting in accordance with Government recommendations concerning the COVID-19 pandemic, the HCPC decided to suspend all in-person hearings. The HCPC also decided that during the period of suspension, there would be a new process whereby Notice of hearings would be sent by email.

2. The Panel has an email dated 23 December 2020 which was sent to the Registrant at the email address that appears on his entry in the Register. This letter gave notice of the date and time of today's hearing and that it would be conducted remotely. The Panel is satisfied that proper notice of these proceedings has been served on the Registrant.

Proceeding in the absence of the Registrant

3. The Panel has considered whether to proceed in the Registrant’s absence and has decided that it is in the interests of justice to proceed today in his absence. The Panel has taken care in reaching this decision and has considered the various matters set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. It has also had regard to the submissions of Mr Bridges for the HCPC and has received and accepted legal advice.

4. The Panel is satisfied that Notice of this hearing was sent by email to the Registrant. The Panel has seen an email dated 27 November 2020 from the Registrant to the HCPC, in which the Registrant stated:

“After careful consideration and due to personal development I will not be taking part in [sic] final hearing”.

5. The Registrant also indicated in the email that he and his legal representative would submit a final statement for the hearing. The Panel has seen an undated document sent by the Registrant to the HCPC in early March 2021, which sets out his written submissions for this hearing. In this document, the Registrant explains why he does not propose to attend this hearing. The Panel is satisfied that the Registrant has unequivocally and voluntarily waived his right to be present at today’s hearing, and to be represented.

6. The Panel has also considered whether an adjournment would result in the Registrant’s attendance on another date. It notes the Registrant has not asked for an adjournment. It is satisfied that the Registrant’s reason for his non-attendance suggests that no useful purpose would be served by adjourning this hearing as it is unlikely that he would attend on a later date.

7. The Panel has considered the effect of an adjournment on the two witnesses who are ready to give their evidence today via video link. The Panel considers that it is in their interests for this matter to proceed today.

8. The Panel is satisfied that there is a clear public interest in this case, where the allegations relate to events which occurred over 4 years ago, being brought to a conclusion. The Panel considers that it is in the public interest for final hearings to proceed on the date on which they are listed to be heard.

Application to adduce hearsay evidence

9. Mr Bridges applied to adduce the hearsay evidence of Colleague 3. Colleague 3 was a complainant in respect of certain alleged remarks made to her by the Registrant, which were also alleged to have been sexually motivated. Colleague 3 had indicated that she did not wish to attend the hearing to give evidence.

10. The application to adduce Colleague 3’s witness statement was a renewed application. It had originally been made on 12 March 2021, at a Preliminary Hearing on the papers alone to the Panel Chair. The Registrant had been notified of the Preliminary Hearing and had provided written submissions objecting to the admission of Colleague 3’s statement. The Panel Chair decided that he should not hear the application on his own as he did not have the consent of both parties to do so in accordance with Rule 7(2) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, and so he adjourned it to be heard by the full Panel today.

11. Subject to inviting the Panel to disregard certain parts of a Skeleton argument which were factually incorrect, Mr Bridges relied on the submissions set out in the Skeleton argument. Mr Bridges conceded that the last HCPC contact with Colleague 3 was in November 2019. He submitted that given the sexual nature of the allegations, the HCPC had correctly concluded that it would be inappropriate to issue a witness order to compel Colleague 3’s attendance. Mr Bridges also conceded that without the hearsay evidence of Colleague 3, there was insufficient evidence in support of the allegations which related to her and submitted that it would be contrary to the duty of the HCPC and HCPTS to protect the public, for both bodies to disregard contemporaneous evidence which was capable of demonstrating that the Registrant posed a risk to colleagues.

12. Mr Bridges referred the Panel to the case law summarised in the Skeleton argument, and he then set out five factors derived from those cases which the Panel should have in mind when considering whether to admit hearsay evidence:

i. appropriate and proportionate inquiry as to why the witness is absent;

ii. appropriate and proportionate inquiry as to alternative means of facilitating live evidence;

iii. proper consideration of the competing interests of the parties;

iv. whether the evidence was the sole or decisive evidence of an allegation or whether there was other supporting evidence;

v. fairness.

13. Mr Bridges submitted that whilst Colleague 3’s evidence was the sole or decisive evidence of the alleged remarks made to her by the Registrant, there was some supporting evidence (i) in the Registrant’s own written submissions where he admitted making at least one of the two alleged remarks, and (ii) in a note made to a third party of the Registrant’s response when asked about the alleged remarks. This note was exhibited in the HCPC bundle. Mr Bridges did not suggest that the HCPC had taken all reasonable steps to secure Colleague 3’s attendance at this hearing.

14. In reaching its decision, the Panel has received and accepted legal advice. It has taken note of Mr Bridges’ submissions. It has applied the law as set out in the cases of R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin), Shaikh v General Pharmaceutical Council [2013] EWHC 184 (Admin) and Ogbonna v Nursing and Midwifery Council [2010] EWHC 272 (Admin).

15. The Panel is satisfied that Colleague 3’s statement is relevant evidence of an important allegation. In applying the case law, the Panel has taken the following into consideration:

- whether to admit hearsay evidence is to be determined on the facts of each case, having regard to all relevant factors with particular weight being given to the seriousness and nature of the allegations and the gravity of the adverse consequences to the Registrant;

- that there is no absolute rule that a registrant is entitled to cross examine a witness on whose evidence the allegations against him are based, even where it is the sole or decisive evidence;

- that the admission of the hearsay evidence does not cause unfairness to the Registrant;

- that “fairness” includes the conduct of the parties in their approach to producing evidence.

16. The Panel is satisfied that Colleague 3’s evidence is the sole and decisive evidence in respect of the allegations that involve her. The Panel has concluded that in this case, where there was considerable disagreement about the context of the alleged remarks, it would be unfair to the Registrant to deny him the opportunity to cross examine Colleague 3 as to the circumstances in which the alleged remarks occurred. The Panel is also satisfied that the allegation that the Registrant’s conduct toward Colleague 3 was sexually motivated, is a very serious allegation which might involve grave consequences for him in terms of sanction, reputation and personal standing.

17. The Panel is also satisfied that the HCPC has not made and exhausted all reasonable efforts to enable Colleague 3 to give live evidence and afford the Registrant the opportunity to cross examine her. The alleged remarks to Colleague 3 were made in 2015. Colleague 3 signed her witness statement on 22 November 2017. The HCPC wrote to Colleague 3 on 9 October 2019 to inform her that she could give her evidence behind screens. Colleague 3 responded on 15 October 2019 indicating that she was withdrawing from the proceedings as a witness, citing that the events were some four years previously, and it had been 20 months since she had last heard from the HCPC. Colleague 3 stated that she had no desire to pursue the matter or be a part of the proceedings. The HCPC wrote to Colleague 3 on 11 November 2019 asking her to reconsider her position. Colleague 3 did not respond and so the last contact from Colleague 3 was in October 2019, some 15 months ago.

18. The Panel has, for the reasons set out above, decided not to grant the HCPC’s application to admit Colleague 3’s statement as hearsay evidence.

Application to amend the Allegation:

19. Mr Bridges for the HCPC applied to amend the Allegation. First, Mr Bridges indicated that the HCPC intended to offer no evidence of Particular 2a) and 2b) of the Allegation in light of the Panel’s decision not to admit Colleague 3’s statement as hearsay evidence. Mr Bridges submitted that the Panel should strike through Particular 2 in its entirety which would then necessitate some consequential re-numbering of the Allegation.

20. Mr Bridges also submitted that the Registrant had been given notice of the other proposed amendments in a letter from the HCPC dated 20 August 2020, which had been emailed to him at his registered email address. Mr Bridges submitted that the proposed amendments were either intended to better reflect or to clarify the evidence which the HCPC expected to call. Mr Bridges further submitted that none of the proposed amendments would prejudice or cause any unfairness to the Registrant.

21. The Panel has considered each of the proposed amendments separately. The Panel agrees that Particular 2 should be deleted from the Allegation in its entirety as the HCPC was intending to offer no evidence of it. The Panel also approves the consequential re-numbering of paragraphs of the Allegation.

22. The Panel has decided that proper notice of the other proposed amendments has been given to the Registrant who has not indicated that he has objections to any of them.

23. The Panel is satisfied that the proposed amendment to the Particular 1b)i by the addition of the words “and/or gestured” better reflects the evidence the HCPC expects to call. It is also satisfied that it does not prejudice or cause any unfairness to the Registrant, and so the Panel approves this amendment.

24. The Panel is satisfied that the proposed amendments to the stem of Particular 1e), and to sub-paragraph 1e)i is to clarify that the messages were WhatsApp messages. The addition of a new sub-paragraph 1e)ii is to move the allegation that the messages were inappropriate from the stem of Particular 1e) to the new sub-paragraph. The Panel is satisfied that the proposed amendments do not alter the way the HCPC is putting its case against the Registrant as the proposed amendments clarify how it puts its case. The Panel is also satisfied that none of these proposed amendments prejudices or causes any unfairness to the Registrant, and so the Panel approves these amendments.

25. When the Allegation was being read into the record, it was noted that a further amendment was required to the stem of the Allegation to reflect that the allegations relating to Colleague 3 no longer formed part of the Allegation and so the reference to between approximately “July 2015 and March 2017” should be amended to “July 2016 and March 2017”. The Panel is satisfied that this further amendment does not prejudice or cause any unfairness to the Registrant. The Panel approves this amendment.

Background

26. Between 2 April 2013 and 11 May 2017, the Registrant was employed as a Band DI6 Radiographer and Radiology Manager at Nuffield Health Guildford Hospital. He was based in the Radiology and Imaging Department where he was responsible for approximately 18 members of staff, including radiographers, receptionists, and health care assistants. The Registrant worked with patients attending Nuffield Health for diagnostic imaging such as MRI scans, ultrasounds, x-rays and mammograms. His Line Manager was JH, Matron, who was one of the members of the senior leadership team who reported to the Hospital Director.

27. In early March 2017, JH approached Colleague 1 about reports which had reached her that the Registrant’s behaviour towards Colleague 1 might be a cause for concern. Colleague 1 was asked to make a statement which she did. Colleague 1 alleged that the Registrant had touched her inappropriately, made inappropriate remarks to her, and sent her inappropriate WhatsApp messages during working hours. Colleague 1 provided JH with copies of the WhatsApp messages.

28. The Registrant was suspended by Nuffield Health and an internal investigation commenced March 2017. No disciplinary hearing was held because the Registrant resigned on 11 May 2017.

29. The matter was referred to the HCPC on 7 March 2017 by WR, Human Resources Manager at Nuffield Health.

Decision on Facts

Evidence

30. The Panel has heard evidence from two witnesses called by the HCPC. The Panel has also seen documentary evidence produced by the HCPC. The documentary evidence includes the hearsay evidence of 26 members of staff who were interviewed as part of the internal investigation. The interviews were, for the most part, short interviews with the members of staff answering similar questions. The Panel has received and accepted legal advice in relation to how it should approach hearsay evidence. Following that advice, the Panel has reviewed the hearsay evidence with great care. The Panel notes that some of the staff did not appear to like the Registrant very much where others clearly saw him in a positive light. The Panel considers that overall, the picture painted by these members of staff of the culture in the Radiology department at the relevant time is credible and reliable and so the Panel has concluded that it can rely on this evidence.

31. JMcD has been employed as Operations Manager, part of the Senior Management Team at Nuffield Health Hospital since December 2015. In that role, JMcD manages approximately 60 members of the non-clinical staff and her responsibilities include Human Resources, Health and Safety and Compliance. In March 2017, JMcD was appointed to conduct an internal investigation into allegations of inappropriate conduct towards two members of staff, one of whom was Colleague 1. JMcD concluded her investigation in April 2017.

32. The Panel found JMcD to be a credible and reliable witness who gave clear evidence and did not speculate. The Panel found JMcD to be experienced at conducting investigations into serious allegations. Whilst much of JMcD’s evidence was hearsay, the Panel concluded that she had a good overview of the culture in the Hospital and Radiography department at the relevant time.

33. Colleague 1 is currently employed as a Radiology Assistant in the Radiology department at the Royal Surrey County Hospital. Prior to that Colleague 1 had been employed as a Healthcare Assistant for 6 months at the Nuffield Health Guildford Hospital, starting this employment in about August 2016. Colleague 1 was 18 years old at that time and the Registrant was her Line Manager. The Panel found Colleague 1 to be an honest, credible, and reliable witness who was open about matters. The Panel considers it to her credit, that Colleague 1 had reflected on her own conduct and takes responsibility for some of what happened. However, the Panel considers that in this, Colleague 1 was being somewhat hard on herself, given her age (18 years), relative inexperience in a working environment at the time, and the disparity of power in the relationship with the Registrant who was her Line Manager. The Panel notes that from the outset Colleague 1 did not want to make a complaint against the Registrant or for this to lead to these proceedings. However, the Panel also notes that Colleague 1 did see the importance of concerns of this nature being addressed.

34. The Registrant did not give evidence as he was not present. However, the Panel did have a written statement from the Registrant in which he set out his case and provided a response to the Particulars of the Allegation. The Panel also had JMcD’s notes of the interview she conducted with the Registrant on 29 March 2017. This had been sent to him for approval, and the Panel has also seen the Registrant’s amendments, additional comments, and corrections to those notes. While none of this is sworn and tested evidence, the Panel has decided that it can give some weight to the Registrant’s statement.

35. The Panel found that the Registrant’s answers when interviewed by JMcD in March 2017, were not always consistent with his written submissions provided in March 2021. While the Registrant admitted certain matters to JMcD, he seems to have resiled from some of these in his more recent statement. Where there are differences, the Panel considers the Registrant’s earlier account to be more reliable than his later statement. Additionally, whilst he admitted many of the allegations in March 2017, the Registrant sought to place the blame for his actions on lack of training, feedback and support. Records produced by his manager at the time demonstrated that he had received feedback on earlier alleged inappropriate conduct on several occasions and had attended training courses appropriate for his position as a department manager. When this was pointed out to the Registrant, he stated that he was copying the behaviour of his manager, JH. He also had access to all relevant policies and procedures on the Nuffield extranet. In 2014, he had been provided with a mentor when spoken to about stepping out of a colleague role and establishing himself as a department lead.

Particular 1a)i is found proved

36. The Panel accepts the evidence of Colleague 1 that on more than one occasion during working hours, the Registrant has hugged her. The Panel has seen that Colleague 1 refers to this in her written statement made for JH, Matron, on 4 March 2017. Colleague 1 stated that she could not remember when the hugging had first started but said it had become more frequent in the latter couple of months, and she referred to this and other forms of physical contact happening a couple of times a day. Colleague 1 also repeated that the Registrant had hugged her when she was interviewed by JMcD on 13 March 2017. The Panel has also seen and accepts hearsay evidence from other members of staff that they had seen the Registrant hug Colleague 1 and that this had happened in front of other members of staff. The Panel also accepts the evidence of Colleague 1, the Registrant and other members of staff that hugging was something that happened across the department, that the Registrant hugged members of staff of both sexes and others hugged each other too. The Panel also accepts Colleague 1’s evidence that she hugged the Registrant back.

37. The Panel accepts the Registrant’s admission in his interview with JMcD on 29 March 2017 that he had hugged Colleague 1 and that this had occasionally been from behind. He stated that Colleague 1 had never said to him “please don’t do that”. The Panel also accepts the Registrant’s admission in his written statement provided in March 2021 where he stated in relation to Particular 1a)i “Yes I hugged – as I did other staff male and female (evidence statements from other staff support this)”.

38. The Panel therefore finds Particular 1a)i proved.
 

Particular 1a)ii is found proved

39. The Panel accepts Colleague 1’s evidence that during working hours, the Registrant touched her on her bottom on more than one occasion. In her statement dated 4 March 2017, Colleague 1 could not remember when the Registrant had first started to touch her on her bottom. Colleague 1’s evidence was that the Registrant would not always touch her bottom out of the blue. She said that sometimes they would have been talking and the Registrant would touch her bottom as she was leaving.

40. The Panel does not accept the Registrant’s assertion in his recent statement that he could not remember touching Colleague 1’s bottom. The Panel considers that this is not the sort of thing that he would have forgotten. The Panel does not accept the Registrant’s assertion that if he did touch Colleague 1 on her bottom that this was not an intentional act. The Panel understands by this that the Registrant is suggesting that he might have touched Colleague 1’s bottom accidentally. This might be credible if it was alleged that the touching had happened on only one occasion, but Colleague 1 alleges, and the Panel accepts her evidence, that it happened on more than one occasion. The Panel notes that in her statement of 4 March 2017, Colleague 1 said that she had spoken to the Registrant and told him to stop touching her bottom. According to Colleague 1, the Registrant agreed and said he would stop touching her from the waist down and then hugged her before leaving the room. The Panel prefers Colleague 1’s evidence on this to the Registrant’s assertion in his statement that any such touching was accidental.

41. The Panel therefore finds Particular 1a)ii proved.

Particular 1a)iii is found proved

42. The Panel accepts Colleague 1’s evidence that on one or more occasions during working hours, the Registrant had gestured for her to kiss his cheek. Colleague 1 said in her statement of 4 March 2017 that she could not remember when this had first started but it had happened more frequently over the latter couple of months. Colleague 1 also referred to this in her interview with JMcD on 13 March 2017. In evidence, Colleague 1 stated that it had happened a handful of times and this was when she had asked him for help with something and it was a reward for him helping her. Whilst the Panel accepts Colleague 1’s evidence that there were similar incidents when she was in the car with the Registrant, these incidents do not appear to have been during working hours.

43. In his interview with JMcD on 29 March 2017, the Registrant referred to giving Colleague 1 a lift to work and when he was specifically asked if he asked Colleague 1 for anything in return such as a kiss, the Registrant stated that he may have stuck his cheek out and said “she could have left the car if she did not want to give me a kiss”. In his recent statement, the Registrant’s only reference to an incident involving a kiss on the cheek was in relation to the allegation at Particular 1b). The Panel prefers Colleague 1’s evidence to the Registrant’s assertion that this had happened only once in the car. The Panel does not accept that the Registrant would only have recalled gesturing to Colleague 1 to kiss his cheek in his car and not recalled doing the same thing whilst at work.

44. The Panel therefore finds Particular 1a)iii proved

Particular 1a)iv is found proved

45. The Panel accepts Colleague 1’s evidence that during working hours there was one occasion when the Registrant pulled her on to his lap. Colleague 1 referred to this incident in her statement on 4 March 2017. Colleague 1 said in evidence that when this had happened, she had been with the Registrant in his office. She had jumped up straight way but did not know what to say so she had not said anything to him about it.

46. The Panel does not accept the Registrant’s recent statement that he had not pulled Colleague 1 onto his lap or his assertion that Colleague 1 had sat down on his lap for a few seconds, and he had asked her to get off.

47. The Panel therefore finds Particular 1a)iv) proved.

Particular 1a)v is found proved

48. The Panel accepts Colleague 1’s evidence that on more than one occasion during working hours the Registrant had massaged her shoulders. Colleague 1 referred to this in her statement of 4 March 2017 when she said: “he has massaged my shoulders a number of times”. When interviewed by JMcD on 13 March 2017, Colleague 1 stated that this had been when she was using the computer and mainly when she had been on her own. Colleague 1 thought another member of staff might have seen it. In her evidence, Colleague 1 stated that the Registrant gave massages to various other members of staff.

49. The Panel accepts the Registrant’s admission in his recent statement that he had massaged Colleague 1’s shoulders – “as I did to other staff male and female and they did to me”.

50. The Panel therefore finds Particular 1a)v proved.

Particular 1b)i and 1b)ii are found proved

51. The Panel has considered Particular 1b)i and 1b)ii separately. It accepts Colleague 1’s evidence that there was an occasion when she had asked the Registrant for help with some photocopying and the Registrant had gestured to her to kiss him on his cheek and then moved his head so that Colleague 1 had kissed the Registrant’s lips. Colleague 1 had referred to this in her statement of 4 March 2017 and stated that this had happened the previous month. She described slapping the Registrant on his arm and telling him he was an “arsehole”. Colleague 1 stated that the Registrant had then opened the door in the photocopying room, and she had called him a “faggot” and the Registrant had been laughing when he told her to “shush”. Colleague 1 had gone on to state “when he had previously pointed to his cheek and I had kissed him, he has said a couple of times after that he would turn his head and would kiss me on the lips”. In her evidence, Colleague 1 had stated that this incident had occurred on 3 March 2017 and it had been the “final straw” as she knew it was wrong and she did not want to be that close to him. The Panel notes the differences between Colleague 1’s account in the statement on 4 March 2017 and her evidence as to when this incident occurred but does not consider that this undermines Colleague 1’s evidence of what occurred in the photocopying room.

52. The Panel rejects the Registrant’s account as set out in his recent statement that the whole incident had been accidental. He asserts that as he leant down to pick up the papers and turned to hand them to Colleague 1, unbeknown to him she had leant forward to kiss his cheek as a ‘thank you’. Her lips had brushed his lips as he turned, and he had been very embarrassed and had simply left the room. The Panel notes that in his interview with JMcD on 29 March 2017, the Registrant was asked about this incident and said that he had helped Colleague 1 with some photocopying, and she had been grateful. He referred to turning to face her, and their lips had touched. There is no reference to bending down to pick up papers. The Panel considers that the Registrant has not given consistent or credible accounts of this incident The Panel therefore prefers Colleague 1’s evidence that the Registrant had gestured to her to kiss his cheek and had then turned his head so that Colleague 1 kissed his lips, something he had previously told her he would do.

53. The Panel therefore finds both Particular 1b)i and 1b)ii proved.

Particular 1c is found proved

54. The Panel accepts Colleague 1’s evidence that in or around December 2016, the Registrant had suggested that she wear a sexy Christmas Elf outfit for an event. In her evidence, Colleague 1 stated the Registrant had said he would buy her a “revealing elf costume for Christmas” and had shown her examples on the Amazon website which Colleague 1 said that the Registrant had pointed to and laughed at. Colleague 1 said she could not remember if they were “sexy” but stated that she had told the Registrant that there was not a chance that she would wear such an outfit. In her statement of 4 March 2017, Colleague 1 had stated that “At Christmas time he had mentioned that he was dressing up as Santa and that I would be his little helper he then brought up on his computer sexy Christmas outfits and showing me and telling me that I should wear them!”. The Panel considers that Colleague 1’s memory of the outfits she had been shown in December 2016 would have been clearer in March 2017 than it was when she made her witness statement in 2018. The Panel also considers that an outfit that is “revealing” can amount to the same thing as an outfit that is “sexy”, and it is satisfied that the Registrant did suggest that Colleague 1 wear a sexy Christmas outfit to the event at which he was going to be dressed as Santa.

55. The Panel does not accept the Registrant’s account in his recent statement that this had been part of a group discussion and general banter among the staff and that he had not necessarily been the one to lead or first suggest that Colleague 1 should wear such an outfit. The Panel notes that this account is not quite the same as his account to JMcD on 29 March 2017 when the Registrant said that he had suggested to Colleague 1 that she get an elf outfit. When JMcD has asked “sexy outfit?”, the Registrant’s response was “yes – not sure who said it – I may have done but again all joined in with banter”. The Panel prefers the evidence of Colleague 1 as to this incident.

56. The Panel therefore finds Particular 1c) proved.

Particular 1d) is found proved

57. The Panel accepts Colleague 1’s evidence that there was an occasion when she was not at work and she had asked the Registrant to check her emails for her as she was expecting a reply about a university course. Colleague 1 referred to being with another colleague at the time and that the Registrant had asked what he would get out of doing this favour for her. Colleague 1 stated that after a while the Registrant had said Colleague 1 could “suck his cock” or words to that effect. Colleague 1 stated that she had told the Registrant to “fuck off”.

58. During her evidence, Colleague 1 was asked to read the Registrant’s response to questions about this incident made during his interview with JMcD. The Registrant had confirmed making the comment, but he had also provided more detail about the circumstances in which he had done so. Colleague 1 did not disagree with the Registrant’s account which was that he had made the comment as part of a jokey conversation in which he felt Colleague 1’s colleague, and to a lesser extent Colleague 1 herself, had been goading him to saying what he did. Colleague 1 in her evidence accepted the Registrant’s general account and confirmed that it had been part of a jokey conversation.

59. The Panel has also seen the Registrant’s admission in his recent statement where he sets out again the context of why he said what he did. This was in essence that he had been goaded into it in a jokey conversation over the phone with Colleague 1 and her colleague, and that this had been at a time when he had been busy and had a meeting to attend. He said he made the remark as he knew it would end the conversation.

60. The Panel therefore finds Particular 1d) proved.

Particular 1e)i and 1e)ii are found proved

61. The Panel has considered Particular 1e)i and 1e)ii separately. The Panel accepts the evidence of Colleague 1 that on or around 15 February 2017 the Registrant sent Colleague 1 WhatsApp messages during working hours which were inappropriate. The Panel has seen documentary evidence of WhatsApp messages. The content of the messages shows that Colleague 1 was at work at the time, and while the Registrant was travelling to and from and attending a conference in Leeds. The messages were over the course of the day. The Panel is satisfied that the messages were inappropriate not only because the Registrant was Colleague 1’s line manager at the time and she was meant to be working but also because they were not work-related and involved personal matters, including matters of a sexual nature. The Panel notes that the Registrant did at one point say to Colleague 1 that she should tell him to stop if she felt uncomfortable about anything. This suggests to the Panel that the Registrant was aware of the inappropriate nature of the messages.

62. The Panel accepts that the Registrant has admitted sending inappropriate WhatsApp messages to Colleague 1 during working hours and notes that he asserts that the messages were a two-way process with both parties being inappropriate. Colleague 1 agrees with this analysis but the Panel notes that the inappropriate content was largely initiated by the Registrant and the Panel takes the view that the responsibility lies with the manager rather than with the 18 year old junior employee.

63. The Panel therefore finds Particular 1e)i and 1e)ii proved.
Particular 2 is found proved in relation to Particular 1a)i, 1a)ii, 1a)iii, 1a)iv, 1b)i, 1b)ii, 1c), 1d), 1e)i, 1e)ii, and not proved in relation to Particular 1a)v.

64. The Panel has received and accepted legal advice in relation to sexual motivation. It has considered each of the sub-particulars of Particular 1 individually. The Panel has considered each of the Registrant’s actions to determine if it is more likely than not that they were (i) by their nature, sexual, or (ii) because of the circumstances in which they occurred and/or the Registrant’s purpose in doing them, they were sexual. The Panel has had in mind when considering the Registrant’s purpose in touching Colleague 1 and/or in saying what he did to her, whether it is more likely than not that the Registrant’s actions were for his own sexual gratification, or in pursuit of a future sexual relationship [Basson v. GMC [2018] EWHC 505 (Admin)].

65. The Panel takes the view that where it finds sexual motivation in respect of one sub-particular of Particular 1 that this can provide additional support for findings of sexual motivation in one or more of the other sub-paragraphs of Particular 1.

66. Having considered each sub-particular separately the Panel has concluded that it is more likely than not that the Registrant’s actions in relation to Particulars 1a)i, 1a)ii, 1a)iii, 1a)iv, 1b)i, 1b)ii, 1c), 1d), 1e)i and 1e)ii were in pursuance of his own sexual gratification and that these actions were, therefore, sexually motivated. Although it does not affect the Panel’s decision that sexual motivation is proved in relation to the sub-particulars set out above, the Panel does not consider that it is more likely than not that the Registrant’s actions were in pursuit of a future sexual relationship (the second limb of Basson v GMC).

67. Particular 1a)i - the Panel considers that whilst the Registrant may have hugged other people, his behaviour when hugging Colleague 1 was different. The frequency of these hugs increased over time and the Registrant also hugged Colleague 1 from behind. The Panel considers a hug from behind to be a particularly intimate act. The Panel is satisfied that it is more likely than not that the only reason for the increased amount of hugging and the nature of some of those hugs is that this was for the Registrant’s own sexual gratification and that this was sexually motivated.

68. Particular 1a)ii - The Panel is satisfied that it is more likely than not that the reason the Registrant touched Colleague 1’s bottom on more than one occasion was for his own sexual gratification, this was by its nature sexual and therefore his actions were sexually motivated. The Panel does not consider that this touching was accidental. The Registrant describes himself as being a tactile person however that does not explain why it was, he chose to touch Colleague 1’s bottom or the increased frequency of such touching. The Panel accepts Colleague 1’s evidence as set out in her statement of 4 March 2017, that the frequency with which the Registrant touched her bottom had increased over the period of a couple of months before she made that statement. The Panel notes that there is no suggestion that the Registrant touched any other member of staff on the bottom. The Panel also accepts Colleague 1’s evidence that when she asked the Registrant not to touch her bottom, he had responded by saying that in future he would not touch her from the waist down. The Panel considers that this response shows that the Registrant was fully aware of the sexual nature of this form of touching.

69. Particular 1a)iii - The Panel is satisfied that it is more likely than not that the reason the Registrant gestured for Colleague 1 to kiss his cheek on occasions when he had helped her, was for his own sexual gratification, and in this context was sexual in nature and therefore his actions were sexually motivated. There is no evidence that he acted in the same way with any other member of staff.

70. Particular 1a)iv - The Panel is satisfied that it is more likely than not that the reason the Registrant pulled Colleague 1 on to his lap was for his own sexual gratification, that this was sexual in nature and therefore his action was sexually motivated. The Panel is satisfied that this was not an accident but was a deliberate act by the Registrant.

71. Particular 1b)i and b)ii - The Panel is satisfied that it is more likely than not that the reason that the Registrant had gestured for Colleague 1 to kiss his cheek but had then turned his head so that she kissed his lips, was for his own sexual gratification, was by its nature sexual and therefore his conduct was sexually motivated. The Panel accepts Colleague 1’s evidence that the Registrant had previously told her that he would do this to her one day. The Panel is therefore satisfied that what happened on this occasion was deliberate and not accidental.

72. Particular 1c) – The Panel is satisfied that it is more likely than not that the reason the Registrant suggested that Colleague 1 wear a sexy Christmas outfit was for his own sexual gratification, was sexual in the context of his conduct overall as set out in the allegations and therefore his conduct was sexually motivated. The Panel considers that in the context of Colleague 1 being hugged and touched on the bottom by the Registrant, that his suggestion of her wearing a sexy outfit was part of a pattern of increased sexually motivated behaviour towards Colleague 1.

73. Particular 1d) – The Panel is satisfied that saying what he said is by its nature sexual even if it was said in a jokey way and accepted by Colleague 1 as such. The Registrant could have said something else to end the conversation or turned his phone off as he was going into a meeting. Instead, he chose to make this remark and the Panel is satisfied that it was sexually motivated.

74. Particular 1e)i and 1e)ii – The Panel is satisfied that inappropriate WhatsApp messages sent by the Registrant to Colleague 1 whilst she was at work included some that were overtly sexual in content. The Panel takes the view that it was the Registrant who predominantly initiated the sexual content of those messages and that the reason he did so was for his own sexual gratification. The Panel is therefore satisfied that these messages were sexually motivated.

75. Particular 1a)v – The Panel is not satisfied it is more likely than not that when the Registrant massaged Colleague 1’s shoulders, he was doing so for his own sexual gratification, or in pursuit of a future sexual relationship. The Panel does not find the circumstances in which the massaging took place, or the Registrant’s purpose in relation to it, to have been sexual. The Panel notes that the Registrant gave similar massages to other members of staff, both male and female. The Panel therefore finds that Particular 2 is not proved in relation to Particular 1a)v.
Decision on Grounds

76. In reaching its decision on the statutory ground of misconduct, the Panel has taken note of the Mr Bridge’s submissions. It has received and accepted legal advice.

77. Mr Bridges submitted that the Registrant’s conduct had fallen well below the standard expected of a professional and it amounted to serious misconduct. He referred to certain standards in the HCPC Standards of Conduct, Performance and Ethics (2016).

78. Particulars 1 and Particular 2 – with the exception of Particular 1a)v, the Panel’s considers that its overall findings of fact in Particulars 1 and 2 show a developing pattern of inappropriate and sexually motivated behaviour by the Registrant towards Colleague 1 who was a young, inexperienced, junior colleague. This behaviour occurred in the workplace where the Registrant held a position of power over Colleague 1 as her Line Manager.

79. The Panel considers that the Registrant’s conduct impacted adversely on Colleague 1. While Colleague 1 made it clear in her evidence that she was never scared of the Registrant and never thought he would do anything to her, she did say that some of his actions had made her feel “weird” and she had become increasingly uncomfortable in his company to the extent that she had sought advice from another female member of staff. Colleague 1 also said that she had told the Registrant that he was making her feel uncomfortable and she “had a word with him” about his behaviour towards her after the incident in the photocopying room.

80. The Panel has concluded that the Registrant’s actions taken as a whole, would be considered “deplorable” by fellow professionals and not the sort of behaviour expected of a Radiographer, particularly of a Line Manager towards a very junior member of staff. The Panel has concluded that the Registrant’s conduct fell far below the high standards of conduct expected of a Radiographer. The Panel has no hesitation in finding that it amounts to serious misconduct.

81. So far as Particular 1a)v is concerned, the Panel did not find that this was a sexually motivated act and does not consider that this amounts to misconduct.

82. 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.

83. The Panel is satisfied that the Registrant’s communications with Colleague 1 in the WhatsApp messages which were sent during working hours were not appropriate.        

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.

84. The Panel takes the view 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 behaved towards Colleague 1 in a sexually motivated way.

85. Accordingly, with the exception of Particular 1a)v, 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  

86. In reaching its decision on impairment, the Panel has had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and 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.

87. Mr Bridges submitted that on the personal component, the Registrant had not demonstrated full insight into his conduct and so there was a risk of repetition. On the public component, Mr Bridges submitted that a reasonable and informed member of the public would be shocked and concerned if there was no finding of impairment in this case.
Personal component

88. The Panel first considered the personal component. It is satisfied that the misconduct found in this case is capable of being remedied. The Panel is also satisfied that the Registrant has not provided the Panel with any information about any steps he has taken to remedy his misconduct. The Panel has seen evidence that the Registrant had previously been warned that his management style in relation to his staff was inappropriate. It appears to the Panel from the evidence it has seen that the Registrant had difficulty in adapting to being in a managerial position, something he accepted in his interview with JMcD. When given these warnings the Registrant seems to have acknowledged that he needed to improve his managerial skills and that he should learn to maintain an appropriate distance between himself and his staff. However, the Panel notes that the Registrant does not appear to have been able to change his behaviour. At the time Colleague 1 became a member of staff, the Registrant had been in a managerial position for some 3 to 4 years and the Panel considers that the Registrant had had more than sufficient time to adjust to being in a managerial position and to alter his behaviour accordingly. The Panel notes that when questioned by JMcD, the Registrant asserted that he had not been given adequate training to develop his managerial skills. The Panel does not accept this assertion. There is evidence that the Registrant was supported and did receive relevant training. In any event, the Panel is firmly of the view that the Registrant should not need any training to know that it is wholly inappropriate to act towards a junior colleague in a sexual way.

89. The Panel has no evidence before it that the Registrant has taken any steps to remedy his conduct since he left Nuffield Health in May 2017. The Registrant has not practised as a Radiographer since that time and the Panel has no information as to what his current employment status is. The Registrant indicated in his recent statement that he had not completed any Continuing Professional Development (CPD) since May 2017.

90. The Panel has considered whether the Registrant has insight into his misconduct and has concluded that he has shown little insight. The Panel notes that in his interview with JMcD on 29 March 2017, the Registrant appeared to have more readily admitted that various aspects of his alleged conduct towards Colleague 1 were inappropriate than he does in his recent statement. In his recent statement, the Registrant appear to have resiled or “rowed back” from some of his earlier admissions. In that recent statement, the Registrant focusses on the impact of the allegations and these proceedings on himself and does not appear to recognise the impact of what he did on Colleague 1. By way of example, in relation to the inappropriate WhatsApp messages, the Registrant says: “She was not under duress and did not feel uncomfortable with the content at the time”. Colleague 1 agrees with this, but it is a lack of insight on the part of the Registrant not to see that as her Line Manager and her senior by more than 15 years the responsibility lies with him.

91. The Panel has concluded that because the Registrant has provided no evidence that he has remedied his misconduct and because he has little insight, there remains a risk of repetition.

92. The Panel notes that the Registrant’s misconduct did not put any service users at risk of harm and there is no suggestion that he is a risk to service users. However, the Panel is satisfied that the Registrant’s conduct has brought the Radiography profession into disrepute and that by his conduct the Registrant has breached a fundamental tenet of that profession.

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

Public component

94. In relation to the public component, the Panel has considered whether given the misconduct found in this case, public confidence in the Radiology profession and its regulatory body would be undermined if there was 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.

95. The Panel considers that a reasonable and informed member of the public would be shocked and dismayed if there was no finding of impairment in a case where a registrant in a managerial role had behaved in a sexually motivated way towards a young, inexperienced junior member of staff.

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

97. 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

98. 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 also 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 misconduct involved.

99. The Panel has considered mitigating and aggravating factors. The Panel first looked at the mitigating factors. The Panel notes the following:

• there are no previous professional findings against the Registrant
• the Registrant admitted certain parts of the Allegation
• there was no risk to service users
• Colleague 1 never felt intimidated by the Registrant
• the Registrant always stopped his behaviour when asked to
• the Registrant did not intend to cause any harm
• some of his behaviour was conducted in front of others and was not hidden.

100. The Panel considers the following to be aggravating factors:

• the breach of trust between the Registrant as a senior manager and Colleague 1 who was a young, inexperienced and therefore vulnerable junior member of his staff
• the pattern of unacceptable conduct which occurred over a period of months and which increased in frequency and gravity
• the Registrant’s level of insight which appears to have lessened over time
• no evidence of remediation
• no evidence of proper remorse
• risk of repetition.
   

101. The Panel has considered the available sanctions in ascending order of seriousness. It has decided that mediation is wholly inappropriate in a case such as this. It has also decided that to take no action or to impose a Caution Order in this case would not be appropriate or proportionate given the gravity of misconduct concerned. The misconduct was not an isolated incident, it could not be described as relatively minor, and the Panel has concluded that there is a risk of repetition. It is satisfied that to ensure public confidence in the profession is not undermined it must consider a more severe sanction.

102. The Panel has considered a Conditions of Practice Order and in particular, the factors 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 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, and
• the registrant does not pose a risk of harm by being in restricted practice”.
   

103. The Panel is satisfied that the Registrant has shown little insight into his misconduct and the level of the risk of repetition, makes this sanction inappropriate in this case. The Panel has concluded that it is not possible at this time to devise appropriate, proportionate, realistic and verifiable conditions which would address the serious concerns regarding the Registrant’s inappropriate and sexually motivated behaviour in this case. The Registrant has indicated in his recent statement that he will never return to the Radiography profession “regardless of the outcome” of these proceedings. He says that he has not undertaken any work or studies relating to Radiography since March 2017. In these circumstances, the Panel has concluded that, it cannot be confident that the Registrant would make any efforts to satisfy any conditions imposed upon his practice.

104. The Panel has concluded that a more severe sanction is required in order to maintain public confidence in the Radiography profession, and to declare and uphold its standards of conduct and behaviour. The Panel considers that a reasonable and informed member of the public would be concerned if a registrant without proper insight and who appeared to have taken no steps to remedy his misconduct was able to practise subject to conditions.

105. The Panel next considered a Suspension Order. It has taken account of the relevant paragraphs in the Sanctions Policy and has concluded that this would be the appropriate and proportionate sanction in this case. The Panel considers that this sanction would adequately protect the public and satisfy the wider public interest concerns. The Panel has paid particular regard to paragraph 121, which states:

“A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be 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.”

106. The Panel has considered very carefully whether the Registrant’s limited insight into his misconduct and the level of the risk of repetition rules this sanction out. The Panel is of view that the concerns in this case are capable of being remedied. The Panel has in mind that there are different degrees and different forms of sexual misconduct. It is satisfied that the sexual misconduct in this case falls towards the lower end of the scale rather than at the more serious end of the scale. The Panel notes that in the past when issues with professional boundaries have been raised with him, the Registrant has acknowledged the need for him to change. The Panel also notes that the Registrant poses no risk to service users and that he did not intend any harm to Colleague 1 by his misconduct.

107. The Panel went on to consider whether the appropriate and proportionate sanction would be a Striking Off Order. It has considered the Sanctions Policy where, in paragraphs 130, it is stated that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving” e.g., for sexual misconduct.

108. While it is clear from the findings in this case that the Panel views the Registrant’s misconduct to be serious, it does not consider that it is so serious that only a Striking Off Order is required. The Panel has already indicated in paragraph 106 above that the sexual misconduct does not fall at the more serious end of the scale of seriousness.

109. The Panel has therefore concluded that a Striking Off Order in this case would be punitive, too harsh and disproportionate.

110. The Panel has concluded that the appropriate and proportionate sanction in this case is a Suspension Order for a period of 12 months. The Panel takes the view that the Registrant will need this length of time to develop appropriate insight into his failings and to properly reflect upon them. The Panel is satisfied that such a sanction protects the public and maintains public confidence in the Radiography profession and in its regulatory body, while at the same time sending out a clear message to practitioners that this sort of conduct will not be condoned.

111. The Suspension Order will be reviewed before it expires, and the Panel takes the view that a reviewing panel may be assisted by the following:

1. a reflective piece addressing the deficiencies in the Registrant’s insight in relation to appropriate professional boundaries; and the impact of his misconduct on Colleague 1 and the public’s confidence in the Radiography profession;
2. evidence of CPD or other actions taken by the Registrant to maintain his knowledge and skills as a Radiographer;
3. evidence of CPD or other actions taken by the Registrant to address the concerns in this case, including the setting of appropriate boundaries;
4. references or testimonials from people for whom the Registrant may be, or may have been working in paid or unpaid employment, or from other people of good standing who are aware of the allegations in this case, including during the period of his suspension;
5. the Registrant’s attendance in person or remotely, at the review hearing to assist the reviewing panel in relation to his insight.

Order: That the Registrar is directed to suspend the name of Mr Alex White from the Register for a period of 12 months from the date that this order comes into effect.

Interim Order

Mr Bridges applied for an Interim Suspension Order. He submitted that the Panel should proceed in the absence of the Registrant who had been given notice that such an application would be in the email sent to him by the HCPC on 23 December 2020, and the Registrant had voluntarily waived his right to attend. Mr Bridges submitted that given the Panel’s findings in relation to impairment, an Interim Suspension Order was necessary to protect the public and was otherwise in the public interest.

The Panel has decided to proceed in the Registrant’s absence for the same reasons as set out in its determination above. The Registrant has received proper notice of the application, has voluntarily waived his right to attend and it is in the public interest that such an application is considered.

The Panel had decided to make 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 for the reasons set out in the determination above.

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 Alex White