Mr Andrew Stewart

Profession: Radiographer

Registration Number: RA65351

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/05/2021 End: 17:00 14/05/2021

Location: Virtual via Video Conference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Radiographer (RA65351) your fitness to practise is impaired by reason of
conviction. In that:

On 6 December 2019, you were convicted at Hamilton Sheriff Court of the following offences:

a) Data Protection Act 1988 S55 (1)(a/b)

b) Data Protection Act 2018 S170 (1)

c) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

d) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

e) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

f) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

g) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

h) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

i) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

j) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

k) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

l) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

m) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

n) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

o) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1) – Sexual Aggravation

p) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

q) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

r) Criminal Justice & Licensing (Scotland) Act 2010 S38 (1)

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

Finding

Preliminary Matters

Service & Proceeding in Absence

1. The Panel was satisfied that the Notice of Hearing dated 26 February 2021 contained the necessary information and was properly served on the Registrant giving 28 days’ notice of today’s hearing, in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) rules 2003 as amended (‘the Rules’).

2. Ms Reid made an application that the hearing be conducted in the absence of the Registrant. She referred to the principles as set out in the case law referred to in the HCPTS’s Practice Note, Proceeding in the Absence of the Registrant. She explained the extent of the engagement shown by the Registrant and informed the Panel of email correspondence to and from the Registrant on 1 February 2021, from which it was apparent that the Registrant had been informed of the proposed window of dates for this hearing and was content for a hearing to take place between those dates (which included the dates of this hearing), even though he stated that he could not say whether he would attend or not until the date is finalised. Ms Reid also pointed out that in his second email of that date, the Registrant had accepted responsibility for his actions.

3. The Panel received advice from the Legal Assessor, which it has accepted.

4. The Panel has decided that all reasonable efforts have been taken to serve the Notice of Hearing on the Registrant in accordance with the Rules. Therefore, under rule 11 of the Rules the Panel has to decide whether or not to proceed in the absence of the Registrant.

5. The Registrant was aware of the date of the hearing and did not ask for an adjournment. The Panel has inferred that the Registrant has deliberately chosen not to attend the hearing. There is a public interest in the expeditious disposal of what are serious allegations. There is a disadvantage to the Registrant in the hearing proceeding in his absence, on the issue of impairment. However, there is no reason to believe that the Registrant would attend the hearing if it were adjourned to a later date.

6. In balancing the fairness to the HCPC and fairness to the Registrant and the considerations set out in paragraph 5 above in particular, the Panel decided that it would be fair to proceed in the absence of the Registrant.

Admissibility of Evidence

7. The HCPC relies on documentary evidence only in support of its case. Ms Reid applied to admit in evidence the documents in the bundle insofar as they contained hearsay evidence. She referred to the legal principles that applied to the fairness of admitting documentary evidence containing hearsay statements.

8. The Legal Assessor referred to rule 10(1)(b) and (c) of the Rules and advised that in view of the principles from the case law identified by Ms Reid and those set out in Thorneycroft v NMC [2014] EWHC 1565 (Admin), it was appropriate and fair to admit the documentary evidence as evidence of the fact of the convictions and the surrounding circumstances and to give such weight to that evidence as the Panel considered appropriate. However, he stated that there were exceptions to that advice.

9. There were three parts of the documentary evidence, which he advised, should not be admitted on grounds of fairness. These were (i) an audit report headed ‘Audit results 2018-10-12’, (ii) statements alleged to have been made by complainants to the Police of the alleged effect on them of the Registrant’s contacts by text message and otherwise as to the impact of that contact on more than one complainant, and (iii) initial denials alleged to have been uttered by the Registrant when initially asked by LM and EM about the complaint that had been made to NHS Ayrshire and Arran (‘NHSA&A’), together with an alleged accompanying comment by him and the opinion of EM with reference to that comment.

10. A further exception to the admission of the documentary evidence was that the Panel should exclude from their deliberations evidence that suggested that the Registrant might have accessed or used patient details outside the timespan of the convictions, that timespan being 1 March 2013 – 20 August 2018.

11. The Panel accepted that advice. The author of the ‘audit’ was not identified in the document and the provenance of the document was unclear. The HCPC had given no explanation as to why they had not attempted to call EM and LM as witnesses and those parts of their statements should be excluded as they went to the potentially important issue of insight. The statements about the effect of the text messages did not form part of the convictions, the identities of the complainants had been redacted and no explanation had been given by the HCPC as to whether or not any steps had been taken to call them as witnesses. The Panel also accepted that it should confine its consideration of the circumstances to the timespan of the convictions as shown by the Indictment. The Panel gave rulings in the light of these conclusions, to exclude from admission into evidence those parts of the main hearing bundle identified in paragraphs 9 and 10 above.

Background:

12. The Registrant was employed as a Radiographer by NHSA&A and NHS Lanarkshire (‘NHSL’). He worked at Crosshouse Hospital, Kilmarnock for NHSA&A from April 2018 until his resignation, which took effect on 27 May 2019.

13. The Registrant also worked for NHSL at Hairmyres Hospital, East Kilbride. He did so from June 2011 until his resignation on a date between 17 October 2018 and 8 January 2019. The date of the resignation does not appear from the evidence.

14. As a result of complaints made by two patients of each the two NHS Trusts, investigations were conducted by those Trusts from which it appeared that the Registrant had accessed private and confidential information of a number of patients from the computer records of the radiology departments of both hospitals. Concerns were formally raised with the HCPC in relation to these matters, by NHSA&A on 2 October 2018 and by NHSL on 19 October 2018.

15. At some time in the Autumn of 2018, information was passed to the Police that included the following allegations made by a patient. She had attended Crosshouse Hospital on 1 July 2018 for treatment and investigations that included X-rays. The X-ray team were female. On 3 July 2018 she received a text message on her mobile phone from ‘Hey sorry to bother you, got this number in my phone and not too sure who it is.’ She responded to the message and over the next two weeks she was in regular contact with this person who stated his name was Andy Smith. However, on more than one occasion, she told the male that she found his behaviour suspicious and ignored him. However, he continued to send messages via both text and Whatsapp messaging.

16. The male sent her messages such as ‘I'm just trying to get to know you,’ ‘I'm a nice guy’ and ‘you're gorgeous’ after viewing her Whatsapp profile picture. She asked the male to send her a photograph of himself, which he did. On 17 July 2018 she attended at Crosshouse Hospital for an examination and whilst in the X-ray department saw a male staff member wearing a name badge which said "Andy" on it and resembling the male in the photograph she had been sent.

17. The patient suspected that the male had obtained her mobile phone number from her patient record. She sent a text message to him informing him that she had just seen him in the hospital. He promptly blocked her on both Whatsapp and text message and she did not hear from him again. The patient contacted staff at Crosshouse Hospital to report what she believed was a breach of data protection. The investigations of NHSA&A then ensued and further investigations were carried out by the Police.

18. On 19 November 2018 the Registrant was arrested and subsequently charged with criminal offences arising out of his alleged accessing of the private and confidential information of patients held on those computer records, and using that information to seek to pursue relationships with female patients.

The Facts:

19. The HCPC relied on the documentary record of the Hamilton Sheriff Court to prove the convictions set out in paragraph 1 of the particulars of charge. The HCPC bears the evidential burden of establishing its factual case to the standard of the balance of probabilities.

20. A certified copy of, in Scotland, an extract conviction is admissible evidence of a conviction and the findings of fact on which it was based: Rule 10(1)(d) of the 2003 Rules. The Panel has seen a copy of an extract conviction dated 9 January 2020 concerning the Registrant’s conviction on 6 December 2019 at Hamilton Sheriff Court of 18 offences, being those listed in paragraph 1 of the particulars of charge.

21. The convictions at the Hamilton Sheriff Court followed guilty pleas for each conviction. The Panel has also been provided with a redacted copy of the Indictment. That document sets out the particulars of the 18 criminal charges, which Ms Reid agreed should be taken to concern 16 patients in all. The charges included the following, -

(1) On various occasions between 1 March 2013 and 24 May 2018 both dates inclusive at Crosshouse Hospital, Kilmarnock, Hairmyres Hospital East Kilbride and elsewhere you ANDREW COLIN STEWART did knowingly or recklessly and without the consent of the data controller as defined within the aftermentioned Act, namely NHS Ayrshire and Arran and NHS Lanarkshire obtain personal data in that you did access the patient records of [identities redacted] amongst others all patients at said hospitals, all c/o the Police Service of Scotland, without a clinical or administrative reason to do so; CONTRARY to the Data Protection Act 1998, Section 55(1)a;

(2) on various occasions between 25 May 2018 and 20 August 2018 both dates inclusive at Crosshouse Hospital, Kilmarnock, Hairmyres Hospital East Kilbride and elsewhere you ANDREW COLIN STEWART did knowingly or recklessly obtain personal data without the consent of the data controller, as defined in the aftermentioned Act in that you did access the patient records of [identities redacted] amongst others all patients at said hospitals, all c/o the Police Service of Scotland, without a clinical or administrative reason to do so; CONTRARY to the Data Protection Act 2018, Section 170(1);

(3) on various occasions between 1 March 2013 and 31 August 2016 both dates inclusive at Crosshouse Hospital, Kilmarnock, Hairmyres Hospital East Kilbride and elsewhere you ANDREW COLIN STEWART did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did, having obtained her contact details via her patient records at said hospital, contact [identity redacted] c/o Police Service of Scotland via Facebook Messenger and did provide a false name and attempt to form a relationship with her and did thereafter contact her repeatedly via mobile telephone application Whatsapp despite being told to cease this contact and did offer to provide her with results of her MRI scan prior to her scheduled appointment with a consultant at said hospital; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
22. The 15 other offences under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (‘the 2010 Act’) were indicted in similar terms in respect of a single victim, their identity redacted in each case. In relation to one of these convictions, there was sexual aggravation. An incidental matter is that none of those other 15 counts referred to the incentive of early sight of the results of an MRI scan.

23. The Registrant admitted the convictions in his second email dated 1 February 2021.

24. In those circumstances and having received advice from the Legal Assessor which it has accepted, the Panel has found proved the convictions and the facts on which those convictions were based insofar as these are set out in the redacted Indictment.

Statutory Ground:

25. The Panel must decide whether the facts proved relate to a criminal conviction in the United Kingdom for a criminal offence: Art. 22(1)(a)(iii), Health Professions Order 2001, as amended. The convictions at the Hamilton Sheriff Court were in the United Kingdom. The Legal Assessor advised that the 18 convictions listed in paragraph 1 of the Allegation each related to what is, as a matter of law, a criminal offence. The Panel has accepted that advice and has therefore found the statutory ground proved.


Current Impairment:

26. Ms Reid submitted that the Registrant’s fitness to practise is currently impaired by reference to both the personal and public components set out in the HCPTS’s Practice Note, “Fitness to Practise Impairment”, December 2019. She explained why, in her submission, each of those components was present in this case. Ms Reid also referred to aspects of the HCPTS’ Practice Note, Conviction and Caution Allegations, 22 March 2017.

27. In his second email of 1 February 2021 the Registrant stated that, -

‘I fully accept the allegations … and as I have said from the very start I take full responsibility for my actions and the understand the seriousness of the case. I will be more than happy to put forward a final statement regarding my own personal circumstances nearer the time to the final hearing.’

No such statement has been received by the HCPTS or the HCPC. However, in addressing the issue of current impairment the Panel has borne in mind all facts and matters in favour of the Registrant including the contents of this email.

28. The Panel received further advice from the Legal Assessor, which it has accepted.

29. The purpose of fitness to practise proceedings arising from a criminal conviction is not to punish a registrant twice. Their purpose is to protect the public who may come to the registrant as patients and to maintain the high standards and good reputation of the profession. In making its assessment on the question of current impairment, the Panel also had regard to the nature, circumstances and gravity of the offences in the context of registered practice. In conducting that assessment, it took into account the guidance from the two Practice Notes referred to above and passages from the judgment of Mrs Justice Cox in CHRE v NMC & Grant [2011] EWHC 927 (Admin), namely those at [64] - [76].

30. The Panel first considered ‘the personal component’ of impaired fitness to practise. It has taken into account the guilty plea to each of the 18 offences charged. The Panel also took into account the admissions made by the Registrant, particularly those in the two interviews he gave in the disciplinary investigation conducted by NHSA&A. It has also taken into account the apology he made and statements he made in those interviews, acknowledging that he should not have done what he did and that he knew it had been wrong. The Panel has also borne in mind the statement made by the Registrant in his second email of 1 February 2021, which included an acknowledgement of the seriousness of the case.

31. However, the Panel considers the Registrant’s insight to be limited. In the first interview he said that the reason for accessing and using the contact details of the first patient related to issues arising from a bereavement in 2017. However, a number of the convictions under the 2010 Act concerned periods well before 2017.

32. The Registrant’s conduct was persistent, lasting for a period of over 5 years before it was discovered. Although remediation of this type of conduct is possible albeit difficult, there is no evidence of remediation in the form of appropriate courses attended by the Registrant or written reflections on his actions beyond an acceptance of their seriousness.

33. In all the circumstances, the Panel has concluded that there is a real risk that the Registrant would engage in similar conduct again.

34. The convictions concern very serious criminal conduct over a substantial period of time. That conduct is directly related to his professional registered practice. The Registrant misused private and confidential information of a significant number of patients to seek them out with a view to establishing a relationship with them in circumstances that would cause reasonable people fear or alarm. In doing so, he also breached the trust of those patients who had provided that information for the purposes of their medical investigations and treatment. By his conduct, the Registrant has brought the profession into disrepute.

35. The Panel has concluded that in view of the Registrant’s conduct as evidenced by his convictions, he failed to comply with the following professional standards:

Standards of conduct, performance and ethics (2012)
1. You must act in the best interests of service users.
2. You must respect the confidentiality of service users.
3. You must keep high standards of personal conduct.
13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession. – insofar as the Registrant’s conduct damaged public confidence in the profession (i.e. excluding honesty and integrity).

Standards of conduct, performance and ethics (2016)
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.
1.7 You must keep your relationships with service users and carers
professional.
2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
5.1 You must treat information about service users as confidential.
6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Standards of proficiency for Radiographers (2012)
1a.1 be able to practise within the legal and ethical boundaries of their profession
1a.3 understand the importance of and be able to maintain confidentiality
1a.8 understand the obligation to maintain fitness to practise
– understand the need to maintain high standards of personal conduct

36. The Panel considers that members of the public, aware of the nature, seriousness and number of those (18) criminal convictions and the circumstances set out in this determination would be seriously concerned if the Registrant were now to be considered by his regulator to be fit to practise as a Radiographer. Public confidence in the profession would be seriously damaged if that were to be the position.

37. In Grant (see above), Mrs Justice Cox stated at [76], -

.. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in my view that test would be equally applicable to other practitioners governed by different regulatory schemes.

"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, convictions, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk or harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession: and/or
d. ……""

38. In the circumstances, the Panel has concluded that the Registrant, -

a. has in the past and is liable in the future to put patients at unwarranted risk of harm;

b. has in the past brought and is liable in the future to bring the profession of Radiographers into disrepute;

c. has in the past breached and is liable in the future to breach fundamental tenets of the profession, namely (i) to maintain the confidentiality of patient information and (ii) to act in the best interests of service users.

39. Therefore, both the personal and public components of impaired fitness to practise are established. A finding of impairment is necessary in order to protect the public, to maintain public confidence in the profession and to declare and uphold proper standards of behaviour among members of the profession.

40. For those reasons, the Panel has decided that the registrant’s fitness to practise is currently impaired.

Decision on Sanction:

41. Ms Reid explained the details of the sentences imposed by the Hamilton Sheriff Court on 19 August 2020 following the convictions. In particular, she explained the meaning of the certifications given by the Court under the Sexual Offences Act 2003, which were given for each of the convictions under the 2010 Act. She informed the Panel that there was no other fitness to practice history with respect to the Registrant.

42. Ms Reid referred to the HCPTS’s Sanctions Policy, March 2019 (‘SP’) and to the purpose of sanctions. She invited the Panel to consider each available sanction in ascending order of seriousness. She pointed to a number of what she submitted were aggravating factors as well as those in mitigation. Ms Reid referred to paragraphs of the SP that she submitted may be relevant to the available sanctions but made it clear that she was not advocating any particular sanction. She also stated that the interim suspension order in place on the Registrant’s registration had been first imposed on 9 May 2019, which had been in substitution for an interim conditions of practice order that had been imposed on 22 November 2018.

43. The Panel has taken into account the relevant parts of the SP in reaching its decision, its earlier findings and conclusions, all the evidence so far as relevant at this stage and the further information placed before it by Ms Reid. No further oral or documentary evidence was relied on. The Panel has also taken into account the submissions of Ms Reid and all facts and matters in favour of the Registrant. The Panel has accepted the advice given by the Legal Assessor.

44. The primary function of any sanction is to protect the public and the wider public interest. Sanctions are not intended to punish registrants, but instead to ensure that the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, a panel is required to apply the principle of proportionality.

45. In making an assessment of the gravity of the misconduct, the Panel considered the aggravating factors, paying regard to those following parts of the SP in particular.

Serious Cases

Abuse of professional position

68. Our Standards of conduct, performance and ethics require registrants to ensure that their conduct justifies the public’s trust in them and their profession. This means being ….. trustworthy and acting in the best interests of service users, as well as ensuring that their relationships with service users and carers remain professional. Where a registrant is found to have abused their professional status, this is highly likely to reduce the public’s trust in them and their profession. The greater the alleged abuse of trust, the more serious the panel should consider the concerns.

69. A registrant may abuse their professional position in a number of ways such as:

- ……………………

- Inappropriate access of confidential information: A registrant will be considered to have abused their professional position if they use it to gain access to confidential records about service users without authority or a good reason to do so.

- Inappropriate relationships: Our standards require registrants to ‘maintain appropriate relationships’. Where a registrant uses their professional status to pursue inappropriate relationships with service users or carers this may undermine the care or treatment provided and the public’s trust in the profession. Registrants should ….. avoid conduct which strays beyond that typically expected of a therapeutic / professional relationship. When considering whether a relationship is inappropriate, the panel should have particular regard for:

- ….

- evidence of predatory behaviour (see paragraphs 71–72);

Predatory behaviour

71. A registrant’s behaviour should be considered predatory where they are seen to take advantage of others, motivated by a desire to establish a sexual or otherwise inappropriate relationship with a service user or carer. The panel should take predatory behaviour particularly seriously, as there will often be significant risk to the targeted service user or carer.

72. Predatory behaviour might include attempts to contact service users or carers using information accessed through confidential records (for example, visiting a service user’s home address without authority or good reason to do so), or inappropriate use of social media to pursue a service user or carer. Any evidence of predatory behaviour is likely to lead to more serious sanctions.

46. In addition, the Panel has borne in mind with reference to aggravation those further paragraphs of the SP referred to below. The Panel considered the following to be the aggravating factors in this case.

47. The convictions concerned serious criminal conduct and the actions underlying them constituting a pattern of behaviour (paragraphs 45 and 50 of the SP) over a substantial period of time. The criminal conduct also related to the Registrant’s professional practice.

48. The Registrant’s conduct also constituted an inappropriate accessing of private and confidential information of those 16 female patients and a breach of their trust in providing that information for the purposes of their medical investigations and treatment (see paragraphs 45, 47, 68 and 69 of the SP). The Registrant misused the information to contact those patients with a view to establishing sexual relationships (paragraph 69 of the SP) in circumstances that would cause fear or alarm and which had the potential to cause harm to those patients (paragraph 54 of the SP). In the circumstances, the conduct was also predatory (see paragraphs 71 and 72 of the SP).

49. The Registrant showed limited insight and the apology and acknowledgements he made provide some, but not sufficient, remediation. The insight shown was limited to admitting his guilt, apologising and accepting the seriousness of the allegations. The Panel has not been provided with any evidence as to any reflection undertaken by him to demonstrate an understanding of potential impact on service users and/or on the profession. The Registrant was aware of the substantive hearing, yet he has chosen not to engage or provide written submissions. Little explanation has been provided as to why he behaved in the way he did. He did make references to a bereavement and some other matters. However, in this context, the Panel noted that some of his actions predated the bereavement and the other matters to which he referred. No information has been provided by the Registrant as to what he has learned from his actions or any steps taken by him to engage in further work relating to professional boundaries, data protection and confidentiality (paragraphs 51 – 53 of the SP).

50. As the Panel has already decided, there is a real risk of repetition of the conduct that underlay the convictions if the Registrant were to be permitted to return to practice (paragraph 49 of the SP).

51. There were some mitigating factors. The Registrant pleaded guilty to each of the criminal charges, and the Panel has also borne in mind the apology and statements he made in the interviews, acknowledging that he should not have done what he did and that he knew his actions had been wrong. The Panel has also borne in mind the acknowledgements in the Registrant’s second email of 1 February 2021, which included an acceptance of the seriousness of the case.

52. In the circumstances, the Panel has borne in mind that the Registrant has shown a degree of insight and remediation (see paragraphs 31 – 39 of the SP). It has also borne in mind that there is no evidence that the conduct has been repeated since the convictions.

53. In making an overall assessment of the seriousness of the convictions, the Panel has borne in mind that despite those matters of mitigation the Registrant has been culpable of a pattern of criminal conduct involving a substantial number of patients over a period of more than five years. Although he has apologised and acknowledged the seriousness of his conduct, it was directly related to his work as a registered practitioner, was predatory, breached the trust placed in him as a practitioner, brought the profession into disrepute, breached fundamental tenets of the profession, and risked placing those patients at risk of harm.

54. In those circumstances, the gravity of the criminal convictions and the conduct associated with them were a severe blemish on the standing and reputation of the profession.

55. The Panel has borne in mind that the protection of the public includes protection against any risks the Registrant might pose to those who use or need his services, the need to maintain public confidence in the profession and its regulation, the importance of upholding proper standards of conduct among members of the profession, and the role of sanctions in creating an appropriate deterrent effect on other registrants.

56. The Panel considered the available outcomes in ascending order of seriousness.

57. To take no action would be a wholly inappropriate response to the impairment in view of the seriousness of the convictions and the risk of repetition. Mediation would also be an inappropriate to reflect those concerns.

58. The next available sanction is a caution order. The SP states the following in relation to that sanction, -

101. A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.

None of those elements is present in this case. The sanction of a caution would not protect the public from that risk of repetition of the misconduct. A caution would also not meet the seriousness of the criminal convictions in the context of registered practice, as summarised in paragraphs 53 and 54 of this determination, in particular. Therefore, the Panel decided that a caution order would not be a sufficient sanction, either to protect the public or to meet the demands of the wider public interest.

59. Conditions of practice would also be inappropriate, given the nature of the conduct underlying the convictions. Conditions must be appropriate to remedy the concerns raised (paragraph 111 of the SP). Conditions of practice are not appropriate to the risk of repetition presented by the conduct underlying the convictions. To be effective, conditions would have to prevent the Registrant from having access to patient records, but that would be tantamount to a suspension. Further, in view of the shortcomings in the Registrant’s insight and remediation and his non-attendance at this hearing, the Panel was not satisfied that the Registrant would be likely comply with any conditions. Therefore, a conditions of practice order would not be an adequate response to the impairment.

60. In considering whether a suspension order would be appropriate, the Panel considered the aggravating and mitigating factors and its overall assessment of the seriousness of the case. The Panel balanced those considerations with the Registrant’s otherwise unblemished fitness to practise record, the period of nearly two years in which he has been subject to the interim suspension order and all other matters in his favour. It has also borne in mind that a suspension order would have an adverse effect on the Registrant’s ability to practise.

61. In considering whether or not a suspension order would be the appropriate sanction, the Panel has also considered whether a striking off order would be a disproportionate sanction in the circumstances.

62. The Panel has taken into account the guidance given in paragraphs 121 and 122 of the SP (suspension) and the considerations in paragraphs 127 (removal from the profession), 128 (subject to exceptions, a registrant cannot apply for re-admission for five years), 130 and 131 in particular. Paragraphs 121, 130 and 131 of the SP state, so far as material, -

121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
……………
• abuse of professional position, ……… (see paragraphs 67–75);
……………

131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.

63. As to paragraph 121, the case is serious, the Registrant’s insight is limited, the Panel cannot conclude that repetition is unlikely and the evidence does not suggest that the Registrant is likely to be able to resolve or remedy his failings. To the contrary, there is a risk of repetition. The Registrant has not engaged in these proceedings meaningfully and though he has apologised and accepted the seriousness of his conduct, he has not attempted to satisfy the Panel that his unacceptable conduct is at an end.

64. With respect to paragraph 130, the criminal convictions constituted serious, persistent and deliberate acts involving repeated abuses of the Registrant’s professional position. As to paragraph 131, there is a lack of insight on the part of the Registrant, he has not satisfied the Panel that he is willing to resolve the concerns and, for the reasons set out below, any lesser sanction would not be sufficient to protect the public or the wider public interest.

65. In the context of paragraph 131 and as part of its wider consideration of the case, the Panel also bore in mind paragraphs 34, 53 and 54 of this decision as to the gravity of the criminal convictions in the context of registered practice. The Registrant’s 18 criminal convictions concern very serious criminal conduct. The Registrant has been culpable of a pattern of criminal conduct involving 16 female patients over a period of more than five years. The conduct was directly related to his work as a registered practitioner, was predatory, constituted repeated abuses of the trust place in him as a practitioner, brought the profession into disrepute, breached fundamental tenets of the profession, and had the potential to harm those patients. Even now, there is a risk of repetition and the Registrant has not attempted to persuade the Panel that he would not engage in this unacceptable conduct were he to be allowed to resume registered practice.

66. In view of those considerations, the Panel has concluded that an order of suspension would not be a sufficient sanction, despite all the matters that weigh in favour of the Registrant and the significant impact that a striking off order would have on him. A suspension order would not be sufficient to protect the public, to maintain public confidence in the profession and in the regulatory process, or sufficient to uphold professional standards and provide a sufficient deterrent to other members of the profession.

67. Therefore, the Panel has decided that a striking off order would not be disproportionate in the circumstances and that a striking off order is the necessary and appropriate sanction in this case.

68. Accordingly, the Panel has decided that a striking off order should be imposed on the Registrant’s registration.

Order

That the Registrar is directed to strike the name of Mr Andrew Stewart from the Register on the date this order comes into effect.

Notes

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order Application:

1. Ms Reid applied for an interim suspension order, submitting that the Registrant had received notification of the application in the Notice of Hearing and that it was fair to proceed in his absence. She submitted that in view of the Panel’s decision, such an order was necessary to protect members of the public and otherwise in the public interest. The Panel accepted the advice given by the Legal Assessor that included the guidance set out in the HCPTS’s Practice Note on Interim Orders.

2. The Panel was satisfied that notice of this application had been given to the Registrant in the notice of hearing. It also decided that it would be fair to proceed in the Registrant’s absence for the reasons announced by the Panel Chair, which included those given by the Panel to conduct the substantive hearing in the Registrant’s absence.

3. By Article 31(1), (2) Health Professions Order 2001 the Panel has the power to impose an interim suspension order for a maximum period of 18 months.

4. In this case, the Panel may make an interim conditions of practice order or an interim suspension order on either or both of the following grounds: that such an order

i. necessary for the protection of the public; or

ii. otherwise in the public interest.

5. In this case, the only realistic possibility is an interim suspension order, because interim conditions of practice would be inappropriate in view of the considerations referred to in that part of the Panel’s decision on sanction.

6. In view of the Panel’s conclusions as to the risk of repetition of the conduct underlying the convictions, the gravity of the conduct and its potential to have caused harm to patients, the Panel has concluded that an interim order is necessary in order to protect members of the public from a real risk of harm.

7. Public confidence in the profession and its regulation is likely to be seriously damaged if the Registrant were to continue to hold unrestricted registration in the interim period. A reasonable member of the public informed of the circumstances of this case and having considered the Panel’s decision would be very concerned if an interim order were not made in view of the Registrant’s impaired fitness to practise, the seriousness of the criminal convictions and the contents of the Panel’s decision as to sanction in particular.

8. In deciding whether or not an order should be made, the Panel has balanced the need the need to protect the public and the public interest against the consequences of an order for the Registrant. It has also considered whether the consequences of making the order would be proportionate to the risks to the public and the public interest.

9. For the reasons given, an interim conditions of practice order would not be appropriate. Despite the consequences for the Registrant of an interim suspension order and its potential duration, the Panel decided that such an order would not be disproportionate, but necessary in the circumstances of this case to protect members of the public and otherwise in the public interest.

10. Therefore, the Panel has decided that an interim suspension order is required. A period of 18 months is the appropriate period for the interim order, particularly in view of the likely time for an appeal to be heard and disposed of in the current circumstances, affected as they are by Covid-19.

Interim Suspension Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

 

Hearing History

History of Hearings for Mr Andrew Stewart

Date Panel Hearing type Outcomes / Status
14/05/2021 Conduct and Competence Committee Final Hearing Struck off
26/04/2021 Conduct and Competence Committee Final Hearing Adjourned part heard