Mr Graham K Henthorne

Profession: Biomedical scientist

Registration Number: BS32768

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 04/11/2021 End: 17:00 04/11/2021

Location: Virtual Hearing

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered with the Health and Care Professions Council as a Biomedical Scientist and during the course of your employment with Bolton NHS Foundation Trust, you:

1. Acted inappropriately towards colleagues, in that you:

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.

b) In relation to Colleague B:

i. Smacked Colleague B on the bottom;

ii. Touched Colleague B on the leg.

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”, or words to that effect.

2. The matters described at paragraphs 1 a) – c) were sexually motivated.

3 The matters set out at paragraphs 1 and 2 constitute misconduct.

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

Finding

Preliminary Matters

Service

1. The certificate of the Registrant’s registration shows an email address for the Registrant. The Panel is satisfied that on 1 October 2021, a notice of hearing was sent to the registered email address of the Registrant.

2. The notice of hearing informed the Registrant that this review of the current Suspension Order would take place today by video conference and email confirmation that the email to the Registrant had been delivered was received. There has been a response from the Registrant who stated by email dated 21 October that he wishes to be removed from the HCPC Register and did not wish to take part in the review process. The Panel was satisfied there had been good service of the hearing notice in accordance with the Procedure Rules.

Proceeding in the absence of the Registrant

3. On behalf of the HCPC, Mr Watkins asked the Panel to proceed in the absence of the Registrant under Rule 11 of the Procedure Rules and taking into account the HCPTS Practice Note on Proceeding in the Absence of the Registrant. Mr Watkins submitted that it was in the public interest for this statutory review hearing to proceed. The Registrant had fully engaged with the original hearing but was voluntarily absent today. The Panel must balance the overriding interest of public protection with fairness to the Registrant.

4. The Panel has considered the HCPTS Practice Note: Proceeding in the Absence of the Registrant. It noted that there is a burden on a Registrant to engage with their regulator and he is aware of the hearing today. There is a statutory requirement for this Suspension Order to be reviewed before it expires and for panels to conduct fitness to practise proceedings expeditiously.

5. The Panel concluded that the Registrant has voluntarily chosen not to attend today’s hearing because he has sent an email to the HCPC on 21 October 2021 stating that he does not wish to remain on the HCPC Register and “does not want to partake in this review”. In light of that explicit statement, the Panel concluded that no purpose would be achieved by deferring proceedings today by means of an adjournment, as it is not likely that the Registrant would participate in these proceedings on a future date. Balancing the public interest and the Registrant’s interest, the Panel has concluded that the fair and appropriate step, therefore, is to continue the hearing in the absence of Mr Henthorne.

Background

6. This is a Review Hearing under Article 30(1) of the Health Professions Order 2001, which requires the review of a substantive order prior to its expiry.

7. The Panel has noted the background, as stated by the original panel, and that parts of the substantive hearing, where reference was to be made to the health of Colleague A and Colleague B, were heard in private.

8. 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").

9. 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. 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.

10. Colleague A was a Band 4 Associate Practitioner at the Trust. She worked with the Registrant on most days and the Registrant would act as her direct line manager on certain days. 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. At the conclusion of the investigation, the Registrant was suspended from his duties. He was subsequently dismissed from his post and these matters were reported to the HCPC.

11. 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. He denied that any of his actions were sexually motivated. Therefore, the only factual particular to be determined was whether the Registrant was sexually motivated as alleged by Particular 2.

12. The panel determined that Particulars 1(a)(i), 1(b)(i), 1(b)(ii) and 1(c), were sexually motivated. Therefore, Particular 2 was proved in respect of those particulars and with that in mind the panel then decided that Particulars 1a(i), 1a(iv), 1b(i), 1b(ii) and 1(c) amounted to misconduct. Finally, the panel determined that the Registrant’s fitness to practise was currently impaired on both the personal and public components.

13. 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.

14. The panel considered the following to be mitigating factors: (a) there is no evidence of patient harm being caused; (b) the Registrant is of previous good character; (c) the Registrant has engaged with the HCPC 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 from professional colleagues who are familiar with the Registrant and who are aware of the allegation faced by the Registrant in these proceedings. The panel noted a future reviewing panel may be assisted by evidence of further reflection and remediation.

Submissions by the HCPC

15. Mr Watkins summarised the background of the case as recorded in the decision of the previous panel. The HCPC position was that, given the failure on the part of the Registrant to engage, his fitness to practise was still impaired on the public and personal components. There was insufficient evidence of insight and the Registrant’s misconduct was serious. At the substantive hearing, the panel decided that a Striking-off Order would be disproportionate. At that time the previous panel gave guidance on the steps required to be taken by the Registrant, including a need for future engagement, but the Registrant has not taken any of those steps.


16. There is an obligation upon the Registrant to address the concerns raised in the original finding of impairment, but he has failed to do so, suggesting his fitness to practise is still impaired. In light of the Registrant’s decision to disengage from the fitness to practise process, the HCPC submitted that a Striking-Off Order is now the appropriate sanction, because any future reviewing panel is likely to be in the same position as the Panel today as regards the lack of further reflection, insight or remediation.

17. Mr Watkins confirmed that he had sent an email to the Registrant on 3 November, offering to provide him with further information on the HCPC’s voluntary removal process. However, Mr Watkins acknowledged to the Panel that there is no guarantee that a voluntary removal from the HCPC Register would be offered to the Registrant in this case.

Legal Assessor’s advice

18. The Legal Assessor advised that the Panel is dealing with a Review under Article 30(1) of the Health Professions Order 2001 and should take into account the HCPTS Practice Note: Review of Article 30 Sanction Orders.

19. Article 30(1) provides that a Conditions of Practice Order or Suspension Order must be reviewed before it expires and that the reviewing Panel may: extend, or further extend the period for which the order has effect; make an order which could have been made when the order being reviewed was made; or replace a Suspension Order with a Conditions of Practice Order.

20. Any order made following an Article 30(1) review only takes effect from the date on which the order under review expires, so the Registrant must continue to comply with the expiring order until then.

21. The review process is not a mechanism for appealing against or ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. The purpose of review is to consider if the Registrant’s fitness to practise remains impaired; and, if so, whether the existing order or another order needs to be in place to protect the public. The key issue which needs to be addressed is what, if anything, has changed since the current order was made. The factors to be taken into account include: the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision; the degree of insight shown and whether this has changed; the steps which the Registrant has taken to maintain or improve his or her professional knowledge and skills; whether any other fitness to practise issues have arisen; whether the Registrant has complied with the existing Order.

22. The decision reached must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection. Given that part of the Panel’s task is to assess whether the fitness to practise of the Registrant remains impaired, the Panel should also take into account the HCPTS Practice Note on Finding Impairment and the HCPC Sanction Policy.

Decision

23. The Panel today accepted the advice of the Legal Assessor.

24. The Panel today noted there has been no positive engagement on the part of the Registrant with this review and he has not engaged with the suggestions of the previous panel as to what may be helpful steps to take in respect of the review hearing. The comments made by the original panel, when finding that the Registrant’s fitness to practise was impaired, made it clear that this was not a case in which the Registrant had no insight or had continued to repeat his misconduct or was unwilling to resolve the matters. Notwithstanding this, the Panel today noted that there had been no positive progress in the case despite there being a burden on the Registrant to demonstrate to this reviewing Panel that he had taken further steps to develop his insight and remediate his misconduct. This Panel concluded that there is no evidence of any material change in the Registrant’s circumstances such that the risk of repetition behaviour has been further reduced.

25. In the circumstances the Panel has concluded that the Registrant’s fitness to practise remains impaired on personal component grounds. The Registrant has not engaged with the review process today. In addition, he has not provided evidence of the development of sufficient insight, nor has he taken sufficient further remediative steps to address the previous panel’s finding of impairment. He has had six months to reflect on those findings, develop his insight and remediate his misconduct. The only step he has taken is to attempt to remove himself from the HCPC Register, which he is not permitted to do while these proceedings are ongoing.

26. The Panel has also concluded that the Registrant’s fitness to practise still remains impaired on public component grounds. That is because members of the public would be horrified by the Registrant’s behaviour and would not have confidence in the profession or this regulatory process, if the Registrant were found not to be impaired in these circumstances, particularly where the conduct found was not remediated. It remains necessary, therefore, for the gravity of this type of misconduct and predatory behaviour to be marked by a finding of current impairment.

27. In considering the available sanctions today, the Panel considered the options in ascending order of gravity in accordance with the HCPC Sanctions Policy. The Registrant’s decision not to engage in the review process means that it is not appropriate or proportionate to take no further action, particularly in view of seriousness of the misconduct found. The Panel next went on to consider a Caution Order and considered this entirely inappropriate in light of the fact that full insight has not been developed and the matter was not minor nor isolated in nature. The Panel then considered a Conditions of Practice Order. However, where there is no commitment from the Registrant to comply with conditions, it is not possible to identify workable and effective conditions. A Conditions of Practice Order is, therefore, not appropriate.

28. The Panel next considered imposition of a Suspension Order. In doing so the Panel also noted that sexual misconduct is identified as sufficiently serious in the HCPC Sanctions Policy such that a Striking-off Order could be justified. This Panel considered that a Striking-off Order might be appropriate, particularly where a Registrant has not engaged with the review process, and the risks identified have not been ameliorated.

29. Nevertheless, this Panel has taken careful note of the previous panel’s findings that the Registrant had shown some insight and taken remediative steps at the time of the original hearing. This was fundamental to their decision to impose a short-term suspension rather than a Striking-off Order. In circumstances where it has been identified that the conduct is remediable and some steps have already been taken in that regard, this Panel has decided that a further Suspension Order is appropriate to enable the Registrant to have a final opportunity to demonstrate further insight and remediation in respect of his misconduct.

30. Accordingly, this Panel has determined that it will impose a further Suspension Order for a period of six months. This is the least punitive Order, which could be imposed today, in accordance with the HCPC Sanctions Policy which also states that a Striking-off Order is a sanction of last resort. The Panel has decided that the fairest outcome today balancing the Registrant’s interests and the public interest is a Suspension Order. To impose a Striking-off Order today would be unduly punitive and disproportionate particularly in view of the mitigating features identified by the previous panel.

31. This Order will be reviewed before it expires. A future reviewing panel may be assisted by cogent and complete evidence of further insight developed by the Registrant and further remediative steps undertaken. The Registrant should be aware that if such actions are not undertaken a future panel might consider imposing a Striking-off Order.

Order

ORDER

The Registrar is directed to extend the current Suspension Order for a further period of 6 months on the expiry of the existing order.

Notes

No notes available

Hearing History

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