Mr Graham K Henthorne

Preliminary Matters:

Amendment of Allegation

1. Mr Millin, on behalf of the HCPC, applied to amend the Allegation. He submitted that the amendments sought served to clarify the allegation by giving further and better particulars.

2. Mr Buxton, on behalf of the Registrant, did not object to the amendment. The notice of this application was sent to the Registrant via email dated 28 November 2019 to his registered address.

3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the allegation, provided the Panel was satisfied that no injustice would be caused by the amendments. The Panel considered that the amendments sought did not change the substance of the allegation. It noted that the Registrant did not object to the application. In the Panel’s view the amendments clarified the allegation, better reflected the evidence and would not cause injustice to the Registrant. The Panel granted the application. The amended Allegation is as set out above.

Hearing in Private

4. Mr Buxton submitted that it was appropriate that all or parts of the hearing be held in private due to the sensitive nature of the allegation and the implications for the Registrant of these matters being held in public.

5. Mr Millin reminded the Panel that a Chair of the Conduct and Competence Committee had previously directed that Colleague A and Colleague B would be permitted to give their evidence in private.

6. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the health and private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The general principle is that hearings of this nature should be held in public.

7. The Panel received copies of both previous electronic preliminary determinations. The Panel considered the reasons given for the previous directions. It noted that Colleague A and Colleague B’s evidence included matters pertaining to their health.

8. Taking in account the principle of open justice, the Panel refused Mr Buxton’s application. The Panel considered issues of privacy afresh given that the Hearing was now being held remotely. It determined that parts of the hearing, where reference was to be made to the health of Colleague A and Colleague B should be heard in private.

Special Measures

9. The Panel noted that the Chair of the Conduct and Competence Committee had directed that the evidence of Colleague A and Colleague B would be given behind screens at the hearing, in circumstances where a physical hearing was anticipated. As today’s hearing is being held remotely, it was agreed between the parties that Mr Henthorne would be present for their evidence by audio only.

Background

10. The Registrant is a Biomedical Scientist who was employed as a Band 7 Section Manager within the Laboratory Medicine department of the Bolton NHS Foundation Trust ("the Trust") at all material times.

11. The Registrant had responsibility around laboratory based diagnostic testing for specimens provided from patients. He also had management responsibilities and as such worked alongside two other Section Managers, one of whom was Colleague B.

12. The Section Manager position involved working in three different roles rotating between the three Section Managers. The roles were being the duty officer, which involved acting as the most senior member of staff in the laboratory, carrying out “bench” work and engaging in managerial duties.

13. At all material times Colleague A was a Band 4 Associate Practitioner at the Trust. She worked with the Registrant on most days during that time, and the Registrant would act as her direct line manager on certain days.

14. In 2017 complaints were raised by Colleague B against the Registrant regarding his behaviour towards other colleagues. A Trust investigation was instigated, and this was led by RS. Further matters in relation to the Registrant’s behaviour towards Colleague A and Colleague B were raised during the investigation. The investigation carried out witness interviews and examination of relevant documentation. At the conclusion of the investigation, the Registrant was suspended from his duties pending disciplinary proceedings. At the conclusion of those proceedings, the Registrant was dismissed from his post and these matters were reported to the HCPC.

Evidence

15. The Panel heard evidence from Colleague A, Colleague B, RS (the Trust Investigating Officer) and the Registrant. It also received a bundle of documents from the HCPC consisting of 223 pages and a bundle of documents from the Registrant consisting of 33 pages.

16. The HCPC's bundle included the witness statements of Colleague C and Colleague D. It also contained the investigatory reports of RS which included investigatory interviews, relevant policy documents and correspondence related to the matters raised.

17. The Registrant's bundle contained the Registrant's reflections on his actions, character references provided on his behalf and evidence of training and continuous professional development undertaken since leaving the Trust.

Testimony of Colleague A

18. Colleague A told the Panel that when she first met the Registrant it was when she was working in the catering department of the Trust. She said that her mother was the manager there and had introduced her to the Registrant. This is in line with what the Registrant told the Panel.

19. Colleague A said that she started working in the laboratory as a Band 3 Medical Laboratory Assistant (MLA) in 2012 and progressed to Band 4 Associate Practitioner; the Registrant was a Band 7 Section Manager. She agreed that initially her relationship with the Registrant was friendly as he was a familiar face when she started. Colleague A said that initially they had got to know each other quite well and they would discuss a wide range of topics from family matters to leisure activities. She accepted that she did speak to him about dating, but she did not discuss sexual matters with him on a one-to-one basis.

20. Colleague A said that their relationship deteriorated when she had told the Registrant in confidence that she thought she was being ostracised by several of her peers and the Registrant had spoken to them despite her specifically asking him not to. She said that she felt he had betrayed her confidence by doing so and had made matters worse for her.

21. Colleague A described the 'banter' that would be normal in the laboratory, saying that it was generally friendly chitchat and related to things that she did not find inappropriate. She said that the banter could at times involve crude jokes but did not include gestures. She agreed that when she started at the laboratory, she was outgoing, trying to make friends and was keen to get to know people. She said that she would join in with the banter to an extent, but she would not join in if she did not agree with the content. Colleague A made a clear distinction between what was appropriate in a group and what was appropriate in a one-to-one encounter.

22. The Panel found Colleague A's evidence to be credible and cogent. Her evidence was consistent internally and with evidence provided by Colleague B. Parts of her evidence were corroborated during the investigation at the Trust by other colleagues. The Panel found her account of the relevant events more probable when compared to the accounts given by the Registrant.

Testimony of Colleague B

23. Colleague B told the Panel that she started work at the Trust in 2011 and she worked with the Registrant as they were both Section Managers. She said that they worked closely together because their roles were interlinked and that they would discuss the day-to-day work of the laboratory. Colleague B accepted that there was a time when her relationship with the Registrant was very good. She agreed that at times they would bicker in a friendly way.

24. Colleague B said that she believed her relationship with the Registrant began to change after she started an MSc to be a Clinical Scientist in 2015, because she took on clinical roles and responsibilities requiring her to be less in the laboratory than previously and she said that the Registrant did not seem happy with this. She described the Registrant as being controlling despite being her peer and not her line manager.

25. Colleague B described the incident where the Registrant had smacked her bottom and another incident where the Registrant had stroked her leg during a meeting, which are the subjects of Particular 1(b). She said that she told others about these incidents at the time and but did not make a formal complaint about these two incidents until after she had observed the Registrant's behaviour with Colleague C and Colleague D and reported her observations to the Laboratory Manager. She said that she remembered that Colleague A had reported to her that the Registrant had made the same comment to her previously, and felt guilty for not making a complaint earlier, as she could have prevented these things happening to Colleagues A, C and D.

26. Colleague B agreed that the Registrant would make comments about her hair and clothes but never gave an indication of sexual attraction to her.

27. Colleague B described what she observed of the incident between the Registrant and Colleague C and Colleague D, which is the subject of Particular 1(c).

28. Colleague B accepted that there was banter in the laboratory but said that she did not participate in it. She said that it was not generally rude or sexual. She accepted that there were occasions when the "banter" did "cross the line". She said that on those occasions the members of the team would resolve it among themselves.

29. Colleague B told the Panel about the email that was sent to all staff regarding unacceptable behaviour. She said that the Registrant did not seem to appreciate that it had any application to him and his behaviour and therefore did not appear to reflect upon his own behaviour.

30. The Panel found Colleague B's evidence to be credible and cogent. The Panel was impressed by her evidence. She was consistent in her evidence and parts of her evidence were corroborated during the investigation at the Trust by other colleagues. The Panel found her account of the relevant events more probable when compared to the accounts given by the Registrant.

Testimony of RS

31. RS was clear and open when he gave his evidence. The Panel was impressed by the thoroughness and the quality of his investigation undertaken in January 2018. He had interviewed the people involved and undertook follow-up interviews in light of information received from the first set of interviews.

Testimony of the Registrant

32. The Registrant told the Panel that he had known Colleague A from when she had been working in the Trust's catering department with her mother. He said that it was her mother who had introduced them and had said to him to ‘look after her’ when Colleague A started working in the laboratory. He said that he and Colleague A would often have coffee breaks together and she would confide in him about her sex life, family issues and problems she might have such as weight and body image issues. He said that they engaged in crude jokes and banter and that this was normal between them.

33. The Registrant said that he was unaware of any adverse impact his conversations and actions had on Colleague A. He said she had not given any indication that she did not approve or welcome this type of crude banter.

34. The Registrant said that the first he became aware of any issues with regard to his behaviour towards Colleague A and Colleague B was during the investigation interview. He said that until that time he believed that his relationship with both colleagues was progressing well and that they were getting on well without any issues. He said he was not sexually attracted to either of them and that his comments and actions were all part of the general banter and jovial relationship he believed they had with each other.

35. The Registrant described Colleague A as someone who was very easy to talk to, open and honest. He said that whilst she would talk about her sex life in graphic detail he would never talk about his own.

36. The Registrant accepted that he would engage in the crude banter in the laboratory and that he should not have done so. He accepted that his responsibility was to moderate the behaviour of the junior staff and to set and enforce boundaries. Instead, he had engaged in the unacceptable behaviour and he said that this was because he wanted to be accepted into the group that he was managing. He said that at the time he did not recognise that there was a conflict with his role as a manager but accepted that he should have.

37. With regard to the Registrant's evidence, the Panel found it to be inconsistent and generally lacking in credibility. The Panel found his evidence to be internally inconsistent. The Panel noted that when giving evidence to the Panel, the Registrant was able to recall significant details of each incident referred to in the Particulars. It noted however that during the investigatory interview in January 2018 he was unable to recall the time when Colleague A scratched her knee in 2016/7, the occasion when he slammed his hand on the table in 2016/7, the touching of Colleague B’s leg in a meeting (approximately 6 months earlier), and the episode with Colleagues C and D in November 2017. It noted that shortly after the interview he emailed the HR Officer on the Trust investigation with some information he had recalled in particular regarding the “lewd comment” to Colleague A and the incident with the dropped pen.

38. The Panel accepted his explanation that the stress of the interview process affected his recall but did not accept that his ability now to recollect events with such clarity and in significant detail before the Panel was the result of subsequent reflection, given that the events all occurred in 2016-2017.

Submissions

39. The Panel heard submissions from Mr Millin for the HCPC and Mr Buxton for the Registrant. It accepted the advice of the Legal Assessor.

40. Mr Millin referred the Panel to the following cases:

(a) Arunkalaivanan v GMC [2014] EWHC 873 (Admin);
(b) Basson V GMC [2018] EWHC 505 (Admin;
(c) Sait v GMC [2018] EWHC 3160 (Admin);
(d) GMC v Dr Haries [2020] EWHC 2518 Admin;
(e) GMC v Jagjivan [2017] EWHC 1247; and
(f) PSA n HCPC and Ren-Yi Yong [2021] EWHC 52.

41. He also referred the Panel to the definition of sexual activity is set out in section 78 of the Sexual Offences Act 2003, which states:

‘For the purposes of this part, penetration, touching or any other activity is sexual if a reasonable person would consider that:

a) Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual; or
b) Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.’

42. Mr Millin submitted that the Registrant's actions, when taken in context, were actions that were done either in pursuit of sexual gratification for himself or in pursuit of a future sexual relationship. He referred the Panel to the circumstances of each of the particulars in question and reminded the Panel that the Registrant had already accepted that his actions were inappropriate. He also pointed the Panel to the parts of the Registrant's evidence that he said were inconsistent and not credible.

43. Mr Millin submitted that the actions of the Registrant went beyond what was described as banter. He submitted that the Registrant's actions were not only inappropriate but were also sexually motivated.

44. Mr Buxton submitted that the Registrant's actions, when taken in context, were actions that were not sexually motivated. He submitted that there were alternative explanations for the Registrant's actions. He reminded the Panel of the Registrant's evidence that what he had said to Colleague A had been meant either as a joke on some occasions or had been meant to encourage her.

45. Mr Buxton reminded the Panel that allegations of sexual motivation were serious allegations and that the Panel should look at the facts more critically before finding them proved. He pointed out that such a finding would be disastrous for any practitioner and that they should bear in mind that regardless of how inappropriate they think the Registrant's comments and actions were in the circumstances, they do not automatically equate to actions and comments that were sexually motivated.

Legal Advice

46. In his legal advice, the Legal Assessor reminded the Panel that the more serious the allegation the more cogent the evidence should be before it concludes that the allegation is established on the balance of probabilities.

47. The Legal Assessor reminded the Panel that the standard of proof was that of the balance of probabilities and that the Panel should also take into account the inherent probability or improbability that a person would act as the Registrant is alleged to have done. He also advised that it was not unusual that there is little, if any, direct evidence of what motivated the Registrant to make such comments or act in the manner that he did. He advised that it was a matter for the Panel to determine whether or not it was proper and safe to infer from the evidence before it whether the HCPC has proved sexual motivation on the part of the Registrant.

48. The Legal Assessor advised the Panel that it should take into account all the evidence before it including the good character of the Registrant. He advised the Panel that the perception of Colleague A and Colleague B that the actions of the Registrant were sexually motivated was not and could not be determinative as to whether or not they were in fact sexually motivated actions.

49. The Legal Assessor advised that references to case law involving sexual motivation was of limited assistance to the Panel when determining whether or not the Registrant's actions were sexually motivated. He said this was because each case turns on its own facts. He also advised that section 78 of the 2003 Act was also of limited assistance because that section gave a definition of sexual activity in the context of the offences set out in the Act. The task of the Panel in this case was not to determine whether or not the acts of the Registrant constituted sexual activity but rather whether or not they were sexually motivated.

50. The Legal Assessor advised the Panel to bear in mind that 'sexual motivation' was a matter of specific intent and acts that were sexually motivated could not be committed recklessly, carelessly or negligently.

Decision on Facts

51. At the start of these proceedings, the Registrant admitted Particulars 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(b)(i), 1(b)(ii) and 1(c)(i). He also admitted that his actions in relation to those Particulars were inappropriate as set out in the stem.

52. He denied that any of his actions were sexually motivated.

53. After considering all the evidence before it and the submissions from both sides and the advice of the Legal Assessor, the Panel determined that the above particulars were proved on the basis of the Registrant's admissions and that the evidence supported such admissions.

54. The only remaining factual particular to be determined by the Panel was Particular 2 as to whether or not the actions referred to therein were sexually motivated on the part of the Registrant.

Particular 2 in relation to Particular 1(a)(i)
a) In relation to Colleague A:
(i) On an unknown date, after seeing Colleague A scratch her leg, said, “stop doing that or I won’t be able to stand up”, or words to that effect;

55. Colleague A told the Panel that she was sitting at a computer in the laboratory and that she was wearing a summer dress with a ‘lab coat’ over the top. She had occasion to scratch her knee and the Registrant who was nearby said "stop doing that or I won't be able to stand up" or words to that effect. She said that the Registrant knocked under the table and said he was "playing cricket', which she was later told was reference to masturbation. She said that this was not a comment made as part of an open banter in the laboratory and was directed to her as an individual. She said she did not think the comment was intended to be banter and that the Registrant had leaned in towards her and spoken quietly to her as if he were ashamed to be saying it.

56. The Registrant accepted that when he said he would not be able to stand up if Colleague A did not stop scratching her leg, that was a reference indicating that he would be too aroused to stand up because he would have an erection.

57. The Registrant told the Panel that this was said in jest and was part of the crude humour that he and Colleague A would engage in. He said that it was clearly intended to be a joke because it was ludicrous that he would be sexually aroused by watching Colleague A scratch her leg. He said that Colleague A did not give any indication that she was not happy with him saying that and if she had given such an indication he would have apologised and stopped immediately as he would not have wanted to cause her distress. He accepted that what he said was inappropriate.

58. The Panel considered the comment of the Registrant and the context in which it was made. The Registrant denies that his behaviour in relation to seeing Colleague A scratch her leg and saying “stop doing that or I won’t be able to stand up” or words to that effect was sexually motivated. He claims that this was a conversation similar to others he had had over the years with Colleague A in which they shared a crude sense of humour.

59. The evidence before the Panel is that, while in the past the Registrant and Colleague A had been friendly and had had open and frank discussions about their lives, at the time this comment and others of a similar nature were being made that relationship had deteriorated. The Panel noted that Colleague A was a female in her twenties employed as a band 4 and that the Registrant was a male around 50 years old employed as a band 7 manager to whom Colleague A reported when he was duty officer in the laboratory. Colleague A did not find comments such as “stop doing that or I won’t be able to stand up” to be funny and did not respond in a similar manner. Colleague A felt intimidated by the Registrant, she was shocked and though she felt uncomfortable when he commented in this way did not feel able to ask him to stop for fear that he would respond by making her working life difficult.

60. She did however report her feelings to her senior, Colleague B, and to the Laboratory Manager and confided in other colleagues. The Panel accepts Colleague A’s evidence, that the comment was not made in the course of a conversation with the Registrant involving crude humour but, in the was the Registrant’s reaction to seeing Colleague A scratch her knee. The Panel understands the words spoken by the Registrant to mean that he was aroused sexually and that if she continued to scratch her knee his arousal would be such that his erect penis would prevent him from standing up. As the Panel rejects the Registrant’s claim that this was shared crude humour, it finds that the only inference it can plausibly make is that the Registrant derived some sexual gratification from speaking these words and/or in attempting to elicit a response to these words. In these circumstances the Panel finds that the motivation for the Registrant’s behaviour was sexual.

61. Therefore, the Panel finds Particular 2 proved in relation to Particular 1(a)(i).

Particular 2 in relation to Particular 1(a)(ii)

a) In relation to Colleague A:
ii. On an unknown date said to Colleague A “the gym is paying off”, or words to that effect;

62. Colleague A told the Panel that the Registrant would make comments about the gym outfits that she would wear to work at times. She recalled that he would say things like 'the gym is paying off', or words that effect. She said that she reported this to the Laboratory Manager who told her that she should not wear gym clothes to work as it could be considered provocative. She told the Panel that she understood the comment to be a reference to the way her body looked in gym wear.

63. Colleague A accepted that previously she had spoken to the Registrant about her weight and about going to the gym. She said that when such comments were made she would with shrug it off and walk away and that she did not like people commenting about her body. She accepted that she had not told the Registrant that she was uncomfortable with such comments.

64. The Registrant told the Panel that Colleague A had discussed her issues with weight with him in the past and that he had suggested that she try going to the gym in addition to dieting. He said that his comments about the gym paying off was meant to encourage Colleague A and give a positive reinforcement about the efforts that she had been putting into losing weight. He said that there was no sexual motivation behind his comment.

65. Whilst the Panel had found that such a comment was inappropriate from Colleague A’s manager, and was accepted as being so by the Registrant, the Panel was not satisfied that the HCPC had provided sufficient evidence of sexual motivation on the part of the Registrant. The Registrant had provided an explanation which the Panel accepted.

66. The Panel finds that Particular 2 is not proved in relation to Particular 1(a)(ii).

Particular 2 in relation to 1(a)(iii)

a) In relation to Colleague A:

iii. On an unknown date said to Colleague A “I like long hair on girls”, or words to that effect;

67. Colleague A told the Panel that the Registrant also made comments about her hair. She recalled that on an occasion when she had cut her hair much shorter than normal the Registrant had said how much he liked long hair on girls. Colleague A said that comments such as this coming from a senior male colleague made her uncomfortable and it felt like she was being "hit on". She accepted that she did not tell the Registrant how she felt at the time or thereafter.

68. The Registrant said that the incident in question was part of a conversation that was instigated by Colleague A when she said she was thinking of cutting her hair short. He said that he did say he liked longer hair on girls and that he also went on to say that it would have been a shame for her to do so and others have had short hair and had found it did suit them. He said that was the sort of thing he would have said to any of his female colleagues or friends with long hair who told him that they were thinking of cutting it short. He did not accept that he had said that to Colleague A with sexual motivation. He said that Colleague A had not given any indication at the time or after that she was uncomfortable with such comments from him or that he should stop making comments about her hairstyle choices.

69. The Panel considered the evidence in relation to this Particular and determined that whilst it could be interpreted as a pattern of inappropriate behaviour in the workplace on the part of the Registrant, there was insufficient evidence to infer that this was sexually motivated behaviour

70. The Panel finds that Particular 2 is not proved in relation to Particular 1(a)(iii).

Particular 2 In relation to Particular 1(b)(i)

b) In relation to Colleague B:

i. Smacked Colleague B on the bottom;

71. Colleague B told the Panel that on this occasion she was in the cloakroom with the Registrant and when she bent down to get something the Registrant smacked her on her bottom. She said that she was so shocked and concerned that she did not say anything but the Registrant seemed to think it was amusing because he chuckled and walked away. She said that the Registrant did not apologise for his action at that time or any time afterwards.

72. Colleague B said that she was so shocked by the incident that she had to take some time and get some fresh air to collect herself. She said that she spoke to some colleagues about this incident, and they had advised her to speak to the Laboratory Manager, but she did not feel comfortable at the time to speak to him as she could not quite comprehend what had happened. She said that she was in shock because it was not anything she was expecting and nothing of the sort had happened to her before. She did not consider such behaviour to be appropriate in the work environment between professional colleagues.

73. The Registrant told the Panel that the circumstances surrounding this incident were that they had been in a meeting and were in a jovial mood when they left that meeting. He said they had walked down the corridor to the cloakroom and were joking about various things. They entered the cloakroom together to collect their personal belongings.

74. At the start of proceedings, the Registrant admitted that he had smacked Colleague B on her bottom. This is in accordance with what he said in his investigatory interview. He said that he and Colleague B had been, “laughing and joking around and she said something to me, taking the mickey, and yes that it was a backhanded slap to her bottom - it was like I was telling her off”. He had said that it was something that he would have done to a friend. He said that Colleague B made it clear that she found it inappropriate and that he apologised profusely for it. The Panel noted that in that same interview the Registrant's version of events changed, in that he said that contact was made with his fingertip when Colleague B was ‘walking away’. He said it was ‘playful but not in a sexual way’.

75. In his oral evidence the Registrant told the Panel that as a result of a joke between them, he had flicked his hand out in a backward gesture without thinking and without meaning to make contact with Colleague B. Furthermore, he told the Panel that when he had flicked out his hand, Colleague B was bent down, not walking away as he had earlier claimed. He also told the Panel that he had been facing away from Colleague B when he flicked out his hand in a backward motion.

76. When he was questioned about the different versions of events that he had given, his explanation was that when he had given the initial version in interview, he was ‘frazzled’ and had not been given much time to think or recollect the events in question. He said that since then he had time to reflect on events and as a result, he was able to have a better recollection.

77. The Panel did not accept the Registrant's explanation for his ability to recall the incident in greater detail. It noted that he had been sent the transcript of the interview sometime after and that he had not amended or clarified the version of events that he gave therein. The Panel does not accept that as a result of further reflection some three years after the events he is able to remember the incident with such great clarity. The Panel determined that it was more likely the Registrant was filling in the gaps in his memory regarding the incident with a version of events that is favourable to him.

78. The Panel preferred Colleague B's evidence in relation to this incident. It accepted that after smacking Colleague B's bottom the Registrant had chuckled and walked away.

79. The Panel considered that the evidence before it demonstrated that it was more likely than not the Registrant had smacked Colleague B's bottom intentionally. It was also satisfied that on the balance of probabilities the Registrant's action was sexually motivated when considered in the light of the point of intentional contact being on a part of the body that could be considered sexual, having occurred in a confined space with no one else present, with Colleague B bending over, and with the Registrant chuckling when he walked away.

80. The Panel determined that Particular 2 is proved in relation to Particular 1(b)(i).

In relation to Particular 1(b)(ii)

b) In relation to Colleague B:

ii. Touched Colleague B on the leg.

81. Colleague B describes this incident as having occurred during a meeting with the Registrant and their line managers. She said that the Registrant was sitting next to her when he dropped his pen and bent down to pick it up. She said that as he did so ‘he ran his hand up her lower leg’. She said she was shocked and horrified and felt like she needed to leave the room but felt locked in and unable to respond. She said that she could see the Registrant grinning and smirking at her. As a result she moved her chair away to try and put some distance between them. In oral evidence she described it as, ‘a gentle-type movement running his hand up my leg’. She described it being between the ankle and the knee, at a slow pace and stated that it was a deliberate act, definitely not accidental. She said ‘from his facial expressions before and after he knew what he had done’.

82. Colleague B did not accept that the touching was a momentary brushing of her shin with the back of the Registrant's hand. She said there was an intentional movement up her leg by his hand. She said that she did not react to what the Registrant had done by smiling at him. She also stated that she did not accept that it was childish behaviour or a joke meant to lighten a long boring meeting. She said that she did not confront the Registrant about his behaviour because of his personality which could be quite vindictive at times. She stated that she recalled this incident clearly because she was very shocked by it and also because it was one of the rare occasions that she wore a dress without tights.

83. Colleague B said that she reported this incident to the Laboratory Manager informally and told two other colleagues. She subsequently reported this incident and the incident in the cloakroom after she had witnessed the Registrant behaving inappropriately towards some junior colleagues (that incident is the subject of Particular 1(c)(i)).

84. The Registrant told the Panel that following the incident in the cloakroom, he had wanted to get back to the same jovial relationship that he had with Colleague B. He said that he was under the impression that by the time of the meeting in question the relationship had been restored and that there had been jokes and joviality between them again. He said that the meeting was long and boring and he decided to tickle Colleague B's shin when picking up his dropped pen. He said that he did this purely to make her jump so that they could share a joke together in order to lighten the mood and tone of the meeting. He said that he had touched her leg for less than a second.

85. The Registrant said that his actions elicited the desired reaction from Colleague B and that when she looked down and saw him tickling her shin he grinned at her and she grinned down at him. He said that there were never any sexual thoughts on his part and that the actions were not done for his own sexual gratification.

86. The Registrant said that at the time he did not regard his tickling of her leg to be a matter for which he should apologise because it had been meant as a joke and he had believed that it had been taken in that way.

87. The Panel noted that the Registrant was unable in the investigatory interview to recollect the incident. He sent an email after the interview in which he detailed his recollection of what had occurred, saying that he had ‘touched her leg with the back of my fingernail to tickle it, nothing more’. He repeated this in his oral evidence to the Panel saying that he touched her with the back of his fingernail on her skin.

88. The Panel considered the evidence and preferred Colleague B's version of events. Colleague B's recollection of events was more credible because she had been shocked by the incident and had replayed the incident over and over in her mind. The Panel considered the Registrant's evidence to be less credible and noted the internal inconsistencies. The Registrant had asserted that he only touched Colleague B's leg for less than a second. Yet he told the Panel that he had tickled her leg until he had elicited a response from her and saw her smiling at him. Furthermore, the Registrant gave a different version of events in the email he sent following his interview with the Trust.

89. The Panel was satisfied that on the balance of probabilities the Registrant's contact with Colleague B's leg was more than just a fleeting contact and that it was more of a stroke as Colleague B had described.

90. Taking all of the information into account the Panel determined that the action of the Registrant in stroking the leg of Colleague B was more likely than not to have been sexually motivated. It was a deliberate and unsolicited stroking of the bare leg of Colleague B in a professional environment. It was not an action that could reasonably or plausibly be believed to have been undertaken to lighten the mood in a boring meeting.

91. The Panel determined that Particular 2 is proved in relation to Particular 1(b)(ii).

Particular 2 in relation to Particular 1(c)(i)

c) In relation to Colleagues C and D:

i. While watching Colleague C flick a rubber glove toward Colleague D, said, “if you continue to do that I won’t be able to stand up “can I ask you to stop doing that because I won’t be able to stand up”, or words to that effect.

92. This was an incident that was observed by Colleague B.

93. Colleagues C and D were interviewed as part of the investigation in January 2018. At first interview they were unable to recall the incident in November 2017, but when the incident was described to them in a second interview, each developed a vague recollection.

94. Colleague D stated that she and Colleague C were friends and that they were having a conversation during which Colleague C was tapping her lightly with a latex glove. She stated that they were engaged in banter near the Registrant's desk and that he had made a comment towards them. She stated that she could not recall the exact words he had said but that it was something smutty. She said that she had not been offended by the comment.

95. Colleague B was the line manager for Colleague C and Colleague D. She had been present in the laboratory at the time and had heard the Registrant's comment. She said that the Registrant had been observing Colleagues C and D and had asked Colleague C to stop tapping Colleague D with the latex glove because he would not be able to stand up if she continued doing so.

96. Colleague B said that she was shocked that the Registrant had blatantly made such a statement in the laboratory to such junior members of staff that she reported the incident to the Laboratory Manager; it was then taken forward as a formal investigation. She said that she understood the Registrant's comment to mean that if Colleague C did not desist, he would be so aroused that he would not be able to stand up because he would have an obvious erection. She said that Colleague C had asked what he meant and the Registrant had tapped on the table to ‘insinuate an erection’, and that Colleagues C and D had looked shocked. She said that Colleagues C’s reaction to the comment was ‘eww that’s gross’.

97. The Registrant accepted that he did make the remark with the intended sexual innuendo in order to elicit a response and to get a laugh. He said that the conversation between the two girls had been laced with sexual innuendo and that he was just joining in as he wanted to be accepted as part of the group. He said that he had intended his words and action to be taken as a joke and that he thought he was being funny.

98. The evidence of the responses from Colleagues C and D before the Panel is that Colleague D went red and Colleague C said “that’s gross”. The Registrant stated in oral evidence that these responses indicated they had understood what he meant and that they had reacted as he had wanted. The Panel noted that the Registrant was a male, a Band 7, and was aged around 50 years, and Colleagues C and D were females, at least three bands lower, and were in their twenties. While the Registrant claims that “everyone was equal” and that these differences did not matter there was a clear imbalance of power such that it was likely that Colleagues C and D would not have felt able to tell the Registrant if they were uncomfortable with his comment.

99. The Panel understands the words spoken by the Registrant to mean that he was aroused sexually and that if Colleagues C and D continued their exchange involving the latex glove his arousal would be such that his erect penis would prevent him from standing up. The Panel rejects the Registrant’s claim that this was spoken in an attempt to be accepted as part of a group of junior colleagues. It finds that the only inference it can plausibly make is that the Registrant derived some sexual gratification from speaking these words and/or in attempting to elicit a response to these words. In these circumstances the Panel finds that the motivation for his behaviour was sexual.

100. The Panel determined that Particular 2 is proved in relation to Particular 1(c)(i).

Decision on Misconduct

101. The Panel considered whether the factual particulars found proved amounted to misconduct. The Panel heard the submissions of Mr Millin on behalf of the HCPC and Mr Buxton on behalf of the Registrant.

102. Mr Millin submitted that the Registrant breached paragraph 2 of the HCPC’s Standards of conduct, performance and ethics by his conduct.

103. Mr Buxton informed the Panel that the Registrant accepted that his conduct as found proved was so serious that it did amount to misconduct.

104. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.”

105. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars separately but also considered them as a whole.

106. Most of the matters found proved were also found to be sexually motivated conduct and the Panel considered those matters collectively. With regard to the matters which were not found proved to be sexually motivated the Panel determined the following:

(a) Particular 1(a)(ii). Despite the fact that the Registrant spoke these words in encouragement to Colleague A, intending positive reinforcement, the Panel has found these words to be inappropriate from a manager to a junior colleague. However, having found that the words were not sexually motivated, the Panel does not find such inappropriateness amounts to misconduct.

Therefore Particular 1(a)(ii) did not amount to misconduct.

(b) Particular 1(a)(iii). The Panel found that these words could be interpreted as part of a pattern of inappropriate behaviour but did not find that these words were sexually motivated. The Panel does not find such inappropriateness amounts to misconduct

Therefore, Particular 1(a)(iii) did not amount to misconduct

(c) Particular 1(a)(iv). This was not alleged to be sexually motivated. The Panel has found that it was inappropriate for a manager to accuse a junior colleague of “stealing work” from another colleague in the circumstances stated by Colleague A and accepted by the Panel. It was also found inappropriate to say “you do not walk away from me” or words to that effect to Colleague A, particularly given the impact of both comments on Colleague A. The Panel considered that if this was the only fact found proved it may not have reached the level of seriousness to be regarded as misconduct. However, in the context of the other facts found proved involving abuse of the balance of power, the Panel determined that the Registrant’s conduct was so serious as to amount to misconduct.

Therefore, Particular 1(a)(iv) amounted to misconduct

107. In relation to particulars 1(a)(i), 1(b)(i) and (ii), 1(c), aggravated by Particular 2 as being sexually motivated, these occurred over a significant period of time and involved different colleagues. These cannot be classified as isolated nor minor in nature. In relation to colleagues A, C and D there is the added element of the power disparity due to their respective positions. The Registrant was senior to them and in a managerial position. Further, the Panel accepted that the Registrant’s conduct had a significant impact upon Colleagues A and B. The Panel heard evidence from those colleagues and how they found attending the workplace difficult because of the Registrant’s behaviour and presence.

108. The Panel determined that on the facts found proved the Registrant had breached paragraph 9.1 of the HCPC’s Standards of conduct, performance and ethics in relation to 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.

109. The Panel also determined that on the facts found proved the Registrant had breached paragraph 3.1 of the HCPC’s Standards of proficiency for Biomedical Scientists:

3.1 understand the need to maintain high standards of personal and professional conduct.

110. The Panel finds that the Particulars 1(a)(i) 1(b) and 1(c), aggravated by Particular 2, amount to misconduct.

Impairment

111. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel heard the submissions of Mr Millin and Mr Buxton and it accepted the advice of the Legal Assessor.

112. Mr Millin said that whether the Registrant had sufficient insight and whether there was a risk of future misconduct of a similar nature was a matter for the Panel, taking into account all the information before it and exercising its professional judgment. He accepted that there were no patients involved in this case but that was because the Registrant was not in a role that would involve interaction with patients. However, he submitted that if a finding of impairment was not made, a member of the public reading the Panel’s judgment might believe that Biomedical Science was a profession in which women may not feel safe and may not be treated with dignity and respect. He therefore submitted that a finding of impairment in this case was required in order to maintain public confidence in both the profession and also in the regulatory process.

113. Mr Buxton drew the Panel’s attention to the Registrant’s reflective statements and submitted that they demonstrated that he had properly reflected on his actions, not only before the hearing started in March but also continued to do so since the hearing had been adjourned. He pointed out that the Registrant had recognised the impact his actions had on his colleagues and how they reflected upon him personally and on the profession as a whole. He submitted that the Panel could be satisfied that the Registrant had taken remedial action by attending a course on Professional Boundaries in Practice and altered his behaviour in light of what he had learnt on that course. He said that the Registrant had demonstrated significant insight and submitted that there was very little risk, if at all, of the Registrant repeating his misconduct. He drew the Panel’s attention to the testimonials provided on behalf of the Registrant, all given in the knowledge of these proceedings, and that they stated that there had been no repetitions since. He submitted that the Panel could therefore be satisfied that the risk of repetition was low.

114. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

115. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:

a) has in the past brought and/or is liable in the future to bring the Biomedical Science profession into disrepute; and/or

b) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the Biomedical Science profession?”

Decision

116. The Panel took into account the HCPTS Practice Note on Impairment. The Panel considered all the information before it. It took into account the reflective statements before it, the Registrant’s attendance at a ‘Professional Boundaries in Practice’ course and also the testimonials proffered on behalf of the Registrant. It noted that all the testimonials were positive with regard to the Registrant’s work ethic and how he treated his colleagues at work since these matters had arisen. The Panel also noted that the Registrant was currently mentoring a junior female colleague and that there have not been any issues in respect of his conduct.

117. The Panel first considered the personal component. The Panel reminded itself of the Legal Assessor’s advice that sexually motivated conduct covers a wide spectrum of behaviour, ranging from the relatively minor to extremely serious. Whilst the Registrant’s conduct on each occasion could not be said to be at the higher end of the spectrum, the frequency of his behaviour over the period of time in question and the number of people to whom it was directed is of concern to the Panel as it indicated a potential attitudinal issue on the part of the Registrant.

118. The Panel noted that the Registrant did not acknowledge explicitly the Panel’s findings of sexual motivation in his updated reflective statement. In these circumstances, the Panel is unable to fully assess the Registrant’s insight. Whilst the Registrant understood and accepted that his actions were inappropriate, he appears only to have reflected on their inappropriateness and not on the fact that they were sexually motivated.

119. As such the Panel could not state with confidence that the Registrant had demonstrated sufficient insight into the motivation for his previous conduct such that there was a low risk of repetition of sexually motivated misconduct.

120. The Panel considered the public component of impairment. The Panel determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made in these circumstances. The nature and impact of the Registrant’s misconduct was such that a reasonable member of the public would be surprised if no finding of impairment were made in this case, especially in the light of the Panel determining that there remained a risk of repetition.

121. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public components.

Decision on Sanction:

122. The Panel heard the submissions of Mr Millin and Mr Buxton with regard to sanction. It had regard to all the information before it, in particular the reflections of the Registrant and the professional testimonials proffered on his behalf.

123. Mr Millin said that what sanction should be imposed, if any, was a matter for the Panel. The HCPC remained neutral in this case. Mr Millin provided the Panel with references to case law involving sexually motivated conduct to assist the Panel with a frame of reference of how the Courts have considered cases involving such conduct.

124. Mr Buxton submitted that the Registrant understands that his words and actions could be perceived by others to be sexually motivated. He submitted that the Registrant’s insight and reflection covered every aspect of his behaviour. Mr Buxton submitted that the Registrant has taken, and continues to take, remedial action. He submitted that the behaviour would never be repeated.

125. Mr Buxton drew the Panel’s attention to the professional testimonials proffered on behalf of the Registrant, which he submitted demonstrated that the Registrant had remediated his misconduct Those professionals were fully aware of the allegation levelled against the Registrant by the HCPC. Mr Buxton also submitted that it was clear that the professionals providing the references held the Registrant in high regard.

126. Mr Buxton submitted that the Registrant accepted that the seriousness of his misconduct was such that any sanction below a period of suspension would not be appropriate in this case. He reminded the Panel that any period of suspension should be for the shortest period necessary to protect the public and the public interest.

127. Mr Buxton referred the Panel to the Sanctions Policy of the HCPC and submitted that Striking Off would be a wholly disproportionate sanction in this case.

128. The Panel accepted the advice of the Legal Assessor. The Panel had regard to all the information presented, and to the HCPC’s Sanctions Policy. The Panel reminded itself that a sanction is not meant to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

129. The Panel also bore in mind that its over-arching duty is:

(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the Biomedical Scientist profession;
(c) to promote and maintain proper professional standards and conduct for members of the Biomedical Scientist profession.

130. The Panel considered the aggravating factors in this case to be the following:

(a) these matters were not isolated, occurred over a period of time and were directed at a number of colleagues;
(b) the Registrant’s conduct caused psychological harm to Colleagues A and B; and
(c) the Registrant was in a managerial role and his misconduct was an abuse of his professional position.

131. The Panel considered the following to be mitigating features in this case:

(a) there is no evidence of patient harm being caused;
(b) the Registrant is of good character;
(c) the Registrant has engaged with the process and made early admissions to the facts and accepted that his actions were so serious that they amounted to misconduct.
(d) the Registrant had a long unblemished career up until these matters;
(e) there has been no repetition of the misconduct since it occurred;
(f) the Registrant has demonstrated remorse for his actions and their impact on colleagues, and has apologised;
(g) the Registrant has taken steps to remediate his failings;
(h) there are positive testimonials provided to the Registrant by professional colleagues who are familiar with the Registrant and who are aware of the allegation faced by the Registrant in these proceedings;

132. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.

133. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct this course of action would not be appropriate and would not satisfy the public interest.

134. The Panel then considered whether to impose a Caution Order. The Panel considered that these matters could not be characterised as isolated, limited or minor in nature. These matters are too serious for a Caution Order to be considered appropriate or sufficient to satisfy the wider public interest.

135. The Panel next considered the imposition of a Conditions of Practice Order. This was not a case where the Registrant’s clinical skills are in question. There are no identifiable areas of his practice that might benefit from re-training. These matters arise from the Registrant’s interactions with female colleagues. The Panel determined that workable conditions could not be formulated to address the behaviour in this case.

136. The Panel went on to consider whether a Suspension Order would be appropriate in this case.

137. The Panel was satisfied that the Registrant has demonstrated insight into the impact and seriousness of his actions and has been active in ensuring that his professional behaviour is appropriate since his dismissal in 2018, attested to by professional colleagues. The Panel considered that although it could not be satisfied that the risk of repetition was low, it considered that the risk was not high, given the steps taken to date, the lack of repetition since the matters arose and the assurances of the Registrant’s professional colleagues. Whilst Mr Buxton informed the Panel that the Registrant understands that his words and actions could be perceived by others to be sexually motivated, this understanding has not been sufficiently reflected in the Registrant’s evidence particularly in respect of Particular 1(b). The Panel considered that a period of suspension would allow for the Registrant to further reflect on the finding by the Panel of sexual motivation and also allow for further relevant remediation.
138. The Panel did consider whether Striking Off would be the appropriate sanction in this case. It considered that whilst sexual misconduct was involved, it was at the lower end of the spectrum of seriousness. This not a case where the Registrant has no insight, has continued to repeat his misconduct or is unwilling to resolve matters. The Panel is satisfied that a Striking Off order would be disproportionate in the circumstances.

139. Taking all the above into account, the Panel was satisfied that a period of suspension would be the appropriate and proportionate sanction to protect the public and satisfy the public interest.

140. The Panel went on to consider the duration of the Suspension Order. The Panel determined that the public interest in this case required a period of suspension of 6 months in order to declare and uphold proper standards of conduct and behaviour, to maintain public confidence in the profession of Biomedical Science and the regulatory process and to protect the public.

141. The Panel notes this order will be reviewed before its expiry. A future reviewing panel may be assisted by evidence of further reflection and remediation by the Registrant.

Order: The Registrar is directed to suspend the name of Mr Graham K Henthorne from the Biomedical Scientist part of the Register for a period of 6 months.

Interim Suspension Order:

1. The Panel heard submissions from Mr Millin on behalf of the HCPC. Mr Buxton made no submissions on behalf of the Registrant. Having taken advice from the Legal Assessor, the Panel makes an Interim Suspension Order, for a period of 18 months under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

2. The Panel considered that not imposing an Interim Suspension Order would be incongruous with its decision on sanction.

3. 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 Graham K Henthorne

Date	Panel	Hearing type	Outcomes / Status
12/05/2022	Conduct and Competence Committee	Review Hearing	Struck off
04/11/2021	Conduct and Competence Committee	Review Hearing	Suspended
13/05/2021	Conduct and Competence Committee	Final Hearing	Suspended
01/03/2021	Conduct and Competence Committee	Final Hearing	Adjourned part heard