Mr Devlyn J Johnson

Profession: Paramedic

Registration Number: PA13834

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 06/09/2021 End: 17:00 09/09/2021

Location: This hearing is taking place virtually

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Paramedic (PA13834) your fitness to practise is
impaired by reason of misconduct. In that:

1. Between 20 May 2019 to 22 May 2019 you behaved in an inappropriate manner towards Student A and/or made inappropriate comments in the presence of one or more students, in that you:

a. Asked if Student A would like to stay in his your hotel room, or words to that effect;

b. Said ‘if you don’t pass the course, you won’t have a job’ or words to that effect;

c. Said ‘it is my decision about who stays and who goes’ or words to that effect;

d. Said ‘I need to get rid of all the shit in the company’ or words to
that effect;

e. Asked if Student A if she was single on at least one occasion;

f. Asked Student A for their personal mobile number on at least one
occasion;

g. Said ‘women don’t have gag reflexes’ or words to that effect on
one or more occasions;

h. Said ‘you have gone down in my book’ or words to that effect
when discussing Student A’s appearance;

i. Said ‘I don’t like the fake look’ or words to that effect when
discussing Student A’s appearance;

j. Sent Student A a text message stating, ‘Would it help if u stayed
over?’

k. Stared at Student A’s breasts;

l. When referring to the company director said ‘if they carry on like
that they can fuck off’ or words to that effect;

m. Touched her Pushed down on Student A’s left breast during a
role play scenario;

n. Said ‘some men have a few ribs taken out so they can pleasure
themselves and give themselves a blow job’ or words to that effect;

o. Said ‘black men like to think they have more than 1% down there’
or words to that effect when referring to genitalia.

2. Your actions as described at particulars 1a), 1e), 1f), 1g), 1k), 1m),
1n) and/or 1o) were sexually motivated.

2. The matters set out at particulars 1 and 2 amount to misconduct.

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

 

 

Finding

Service
1. The Panel was informed by the Hearings Officer that notice of this hearing was sent to the Registrant’s registered email address on 22 June 2021. That email set out that the Hearing was due to begin on 6 September 2021 and that the Hearing would be a virtual Hearing. The Registrant confirmed in an email dated 2 September 2021 that he was aware of the Hearing.
2. The Panel accepted the advice of the Legal Assessor who reminded it of Rule 3(1) b of the Conduct and Competence Committee rules. The Panel was satisfied that notice had been properly served and that the notice period was longer than required by the rules.
Proceeding in the absence of the Registrant
3. Ms Reid applied to proceed in the Registrant’s absence. She submitted that the Registrant initially stated he would be unable to attend. More recently in an email dated 2 September 2021 the Registrant submitted that he was working remotely and would be unable to attend the Hearing on 6 September. The Registrant has sent written submissions for the Panel to consider and has not asked for any adjournment of the proceedings. Ms Reid submitted that the Registrant had stated in his correspondence that he was anxious about the length of time the proceedings had been ongoing and has not indicated that he wished to attend this Hearing at a later date.
4. Ms Reid submitted that the Registrant was aware of the proceedings and has chosen to voluntarily absent himself from this hearing.
5. The Panel heard and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution. She referred the Panel to the cases of R v Hayward, Jones & Purvis in the Court of Appeal ([2001] EWCA Crim 168), and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. She advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and the public interest. That case further stated that, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.
6. The Panel has also taken into account the HCPTS’s Practice Note on Proceeding in the Absence of the Registrant.
7. The Panel was satisfied that notice of this Hearing was sent to the Registrant’s registered email address on 22 June 2021.
8. The Panel was satisfied that the Registrant was aware of today’s Hearing and that he had not sought an adjournment or suggested that he would attend at a later date. The Registrant had provided written submissions for the Panel to consider. The Panel therefore concluded that the Registrant had voluntarily decided not to attend this Hearing.
9. The Panel was satisfied that any disadvantage to the Registrant was outweighed by the public interest in the expeditious disposal of this matter.
10. The Panel therefore decided to proceed in the Registrant’s absence.
Application to amend the allegation.
11. At the outset Ms Reid applied to amend the allegation as set out above. Ms Reid stated that the amendments were notified to the Registrant in a letter dated 2 November 2020. Ms Reid explained that the amendments were required in order to better reflect the evidence and clarify the particulars alleged against the Registrant. Ms Reid submitted that the amendments could be made without injustice.
12. The Panel had regard to the advice of the Legal Assessor who advised that the rules are silent on amendments. However, the Panel should bear in mind the principles of fairness and natural justice. The Panel should consider whether the amendments would result in under prosecution and keep in mind the HCPC’s objective to protect the public.
13. The Panel was mindful of the issues of fairness and natural justice. The Panel noted that the Registrant had been advised of the proposed amendments in November 2020 and had not raised any objections. The Panel considered that it was fair to allow the application to amend the particulars of the allegation as they did not alter the case against the Registrant or widen its scope in any material way and ensured that the wording of the allegation was clear and reflected the evidence. There was no material prejudice to the Registrant and the Panel considered the amendments could be made without injustice.

Proceeding in Private
14. Ms Reid applied for part of the Hearing to be heard in private and requested that the Panel exercise its discretion under Rule 10(1) of the HCPC (Conduct and Competence) (Procedure) Rules 2003 (“the Rules”). She submitted that some of the concerns raised in these proceedings relate to matters of the Registrant’s health and that references to these matters should be considered in private. Ms Reid also submitted that there are some parts of the evidence that relate to Student A’s health and these should also be in private.
15. The Panel received advice from the Legal Assessor and had regard to the Practice Note entitled “Conducting Hearings in Private”. The Panel noted its powers under Rule 10(1) of the Rules.
16. Having done so, the Panel concluded that those parts of this hearing relating to Student A and the Registrant’s health should be conducted in private.
Background
17. The Registrant is a registered Paramedic who was employed by British Emergency Ambulance Response Service (BEARS) at the time of the allegation. On 29 July 2019 the HCPC received a complaint from a member of the public, Mother A, on behalf of her daughter, Student A.
18. The complaint refers to incidents alleged to have occurred doing a FREC3 training course, facilitated by the Registrant at BEARS, which Student A attended in May 2019. The Registrant is alleged to have acted in an inappropriate and sexually motivated manner towards Student A throughout the duration of the course, by making inappropriate and sexual comments, commenting on her appearance and inappropriate staring and physical contact.
Decision on Facts
19. On behalf of the HCPC the Panel heard live evidence from Student A who confirmed the contents of her witness statement were true and explained to the Panel the incidents leading to the complaint and referral to HCPC. The Panel was provided with a bundle of documents by the HCPC which included material gathered during the investigation undertaken by BEARS. Ms Reid in her closing submissions set out that there was sufficient evidence for the Panel to find all of the facts proved.
20. The Panel was also provided with the written submissions prepared by the Registrant which set out his response to the allegation. In considering these submissions the Panel noted that it did not have the benefit of the Registrant’s live evidence and that his account had not been tested.
21. The Panel heard and accepted the advice of the Legal Assessor. In respect of the disputed facts, the Panel understood that the burden on proving each individual fact is on the HCPC. She set out that the standard of proof is the balance of probabilities, namely, is it more likely than not that the fact occurred as alleged. The Legal Assessor reminded the Panel to carefully consider the Registrant’s explanations when deciding whether the conduct was sexually motivated and have regard to the case of Harris v GMC [2021] EWCA Civ 763 when deciding whether an innocent explanation for the conduct was more likely.
Particular 1. Between 20 May 2019 to 22 May 2019 you behaved in an inappropriate manner towards Student A and/or made inappropriate comments in the presence of one or more students, in that you:
a. Asked if Student A would like to stay in your hotel room, or words to that effect; - Found Proved.

22. The Panel considered that Student A’s evidence in relation to this matter was credible. The Panel considered that Student A was clear in her recollection that the Registrant’s meaning had been clear when he asked her to stay in his hotel room. Student A explained that the Registrant’s demeanour was such that she was in no doubt that he was asking her to stay in his room. The Panel accepted Student A’s account that the Registrant had been explaining that he had two single beds pushed together to further support the suggestion that Student A could sleep in his room.

23. The Panel did not accept the Registrant’s account that he was suggesting that Student A share with another student on the course to assist with travelling. The Panel did not consider this was a credible explanation given the circumstances of the other students. The Panel was satisfied on the evidence that the Registrant invited Student A to stay in his room.

24. The Panel considered that this was an inappropriate remark to make to Student A on the first day of a training course. The Panel were satisfied that it was not a stray jocular remark and that it was an inappropriate comment for the Registrant to make when in a position of authority delivering a training course to Student A.

b. Said ‘if you don’t pass the course, you won’t have a job’ or words to that effect; - Found Proved
c. Said ‘it is my decision about who stays and who goes’ or words to that effect;- Found Proved
d. Said ‘I need to get rid of all the shit in the company’ or words to that effect; - Found Proved
25. The Panel considered these comments together as they were linked as part of comments about the company and Student A’s position.
The Panel were satisfied that these comments were made to Student A by the Registrant. The Panel considered that Student A’s evidence was credible, and the comments had the ring of truth about them. The Panel considered these comments were in line with Student A’s evidence about the attitude of the Registrant generally during the course as being concerned with maximising the importance of his role.
26. The Panel considered that these comments were inappropriate as they were designed to intimidate Student A. Student A explained in her oral evidence that BEARS was a small family run company, and she was unsure whether the Registrant did have the power and responsibility to affect her future employment. The Registrant had only just begun as training manager and Student A stated that she felt like he was trying to intimidate her, and she was very worried and upset by these comments. Student A explained that she was aware she needed to pass the course.

27. The Panel noted the partial text messages provided by the Registrant which disclosed that Student A had raised her concerns with management about the validity of her previous training. The Registrant had sent a text which stated, “there is people that are due to run out of ticket and need to requalify and training staff to the right level so that the conpany can move forward..” (sic)

28. The Panel accepted Student A’s evidence in relation to these matters and concluded that the comments had been made in the way alleged and that the Registrant had been attempting to exert a degree of authority over Student A by suggesting that he had power to affect her future employment. The Panel considered that this was inappropriate in view of his position as the facilitator of a training course.
e. Asked Student A if she was single;- Found Proved.
29. The Panel noted that the Registrant accepted that he had asked this question as part of a general “ice-breaker” during course introductions. The Panel was satisfied that the Registrant had asked Student A whether she was single.

30. The Panel accepted Student A’s evidence that this was not as part of an ice breaker and that the Registrant was asking the other students in order to legitimise asking her. The Panel accepted Student A’s account that the Registrant’s demeanour when asking her was flirtatious and she was in no doubt that it was an inappropriate question.

31. The Panel did not consider it was ever appropriate as part of an “ice breaker” to ask a student personal questions about their marital status or living arrangements. The Panel considered that if these arrangements impacted on homework tasks as suggested by the Registrant, then it would be for the students to raise this privately with the trainer. The Panel considered that the remark was inappropriate.

f. Asked Student A for their personal mobile number on at least one occasion; - Found Proved

32. The Panel noted the Registrant’s explanation that he put his personal number on the board to facilitate communication during the course. The Registrant stated in his representations that he asked for Student A’s mobile number as he had not been told by the control room that Student A was running late on the first day.

33. Student A stated that she did not recall the Registrant writing his number on the board. Student A told the Panel in her evidence that she initially refused to provide her number stating that the control room would update the Registrant. Student A stated that the Registrant then joined her on a break and asked for her number again in front of the other students. Student A stated that she felt pressured to provide her number.

34. The Panel accepted Student A’s account that the Registrant asked for her personal number on more than one occasion, and she was uncomfortable about providing it. The Panel did not accept the Registrant’s account that it was necessary. The Panel considered that the Registrant could have provided his own number to students to let him know they were running late, and he did not need to ask for Student A’s number. The Panel considered this request was inappropriate and was likely to have placed Student A in an uncomfortable position. The fact that the Registrant immediately texted Student A “hi” after she gave him her number was, in the Panel’s view, evidence that undermined the Registrant’s explanation that he had provided his number and needed Student A’s number to keep in touch about timing.
g. Said ‘women don’t have gag reflexes’ or words to that effect on one or more occasions; - Found Proved
35. The Registrant in his written submissions accepted that he said these words as part of an explanation about airway management and was said to the whole group and not directed at any individual.

36. Student A stated that the Registrant had made this comment on more than one occasion and by this point in the course she was “tired” of his inappropriate and unprofessional remarks.

37. The Panel were satisfied that the comment was made on more than one occasion and accepted the evidence of Student A. The Panel considered that in the context of a professional training course, the comment was inappropriate and unnecessary. The Panel accepted Student A’s evidence that she felt uncomfortable and upset by the comment and considered that it was meant for her. The Panel considered this was credible in light of the other comments that it has found were directed at Student A.
h. Said ‘you have gone down in my book’ or words to that effect when discussing Student A’s appearance; - Found Proved
i. Said ‘I don’t like the fake look’ or words to that effect when discussing Student A’s appearance; - Found Proved
38. The Panel has considered these comments together as they are linked to personal comments about Student A’s appearance.

39. The Panel accepted Student A’s account that the Registrant asked Student A whether she had hair extensions in when she was putting her hair up and then said that he didn’t like the fake look and she had gone down in his book. The Panel considered that these comments were hurtful and likely to have been accurately recalled by Student A. The Panel considered her account was credible.

40. The Panel did not accept the Registrant’s account that these matters were relevant for infection control reasons. The Panel noted the text message disclosed by the Registrant which mentioned Student A’s fake eyelashes and hair extensions but there is no evidence it was raised by the Registrant with Student A’s managers as an infection control issue. Student A confirmed in her oral evidence that she had never been told that she needed to remove her hair extensions or eyelashes.

41. In the circumstances the Panel considered that the Registrant made offensive and unnecessary personal comments about the Registrant’s appearance which were inappropriate in his role as trainer. The Panel accepted that Student A felt upset, degraded and humiliated by these comments and there was no justification for them.
j. Sent Student A a text message stating, ‘Would it help if u stayed over?’ – Found Proved
42. The Registrant explains that he sent a message to Student A as he was concerned about the travelling she was doing.

43. Student A states that she was uncomfortable as she received the message after she got home from day 1 of the course and she considered it was inappropriate.

44. The Panel considered that this text was more likely to be the Registrant attempting to re-open the invitation for her to stay in his room. The Panel considered that there was no reason for the Registrant to be texting Student A after she had replied she was home in reasonable time. The Panel considered that this text was inappropriate and unnecessary.
k. Stared at Student A’s breasts; - Found Proved
45. The Panel accepted Student A’s account that the Registrant stared at her breasts on more than one occasion. The Panel considered that Student A’s account was credible, and it was likely that she was alert to this behaviour given the other findings it has made about the Registrant’s conduct towards her.

46. The Registrant denies this and states that Student A was wearing a fleece as it was very cold. Student A disputes this and states that she was wearing her ambulance shirt as the course was in May and it was warm.

47. On balance, the Panel accepted Student A’s account as more likely and considered that the Registrant did stare at Student A’s breasts on more than one occasion. The Panel considered that there was no justification for this, and it was inappropriate behaviour.
i. When referring to the company director said ‘if they carry on like that they can fuck off’ or words to that effect; - Found Proved.
48. The Panel accepted Student A’s evidence about this conversation as it had the ring of truth about it. The Panel considered it was consistent with Student A’s account of the Registrant’s earlier remarks about his importance.

49. The Panel considered that this remark was inappropriate in the context of a training environment and derogatory towards the Registrant and Student A’s employers.
m. Pushed down on Student A’s left breast during a role play scenario;
50. The Panel noted the Registrant’s account that he may have inadvertently touched Student A when holding her neck so that another student could remove a crash helmet.

51. Student A stated to the Panel in her oral evidence that it was not appropriate for the Registrant to be touching her at all in a training environment. Student A was clear that the Registrant had pushed down on her left breast deliberately. Student A stated that the Registrant had done the same to another student, but she had told him to stop because he was hurting.

52. The Panel accepted the evidence of Student A that the Registrant had pushed down on her left breast during a role play. This appeared to the Panel to be consistent with the Registrant undertaking the same action with another student.

53. The Panel considered that in the context of a training environment it would have been appropriate for the Registrant to explain what he was doing and to have obtained consent before touching Student A. The Panel considered that the Registrant’s actions in pushing down on Student A’s left breast were inappropriate.
n. Said ‘some men have a few ribs taken out so they can pleasure themselves and give themselves a blow job’ or words to that effect; - Found Proved.
o. Said ‘black men like to think they have more than 1% down there’ or words to that effect when referring to genitalia.- Found Proved.
54. The Panel has considered these comments together as they raise the same issues. The Registrant has accepted he said words to this effect but explains that it was part of a light-hearted explanation of related issues being covered as part of the course.
55. Student A stated in her evidence that she was shocked by these comments as they were both unprofessional and inappropriate. Student A states that these comments were unnecessary and made her feel uncomfortable.
56. The Panel considered that the comments were made as alleged by Student A and were both unnecessary and inappropriate. The Panel considered that they were made as part of a pattern of behaviour by the Registrant in making inappropriate and overtly sexual comments and innuendo in order to harass Student A. The Panel does not accept that these were one-off comments or that they were appropriate for a training environment.
Your actions as described at particulars 1a), 1e), 1f), 1g), 1k), 1m), 1n) and/or 1o) were sexually motivated. – Found Proved
57.The Panel considered that the Registrant’s actions in relation to all the particulars were sexually motivated. In relation to particular 1a) the Panel did not accept the Registrant’s explanation that the comment was made in relation to sharing a hotel room with another student. The Panel considered that the only plausible explanation was that the Registrant was inviting Student A to sleep with him in his hotel room which was clearly sexually motivated.
58. In relation to particulars 1 e) and f) the Panel considered that asking Student A if she was single and requesting her mobile number was more likely than not to have been sexually motivated. The Panel did not accept the Registrant’s account that the question about whether she was single was genuinely asked as part of an “ice-breaker”. The Panel considered that the inappropriate question was framed in this way to disguise the Registrant’s motivation. Further the Panel did not accept it was necessary for the Registrant to request Student A’s mobile number. The Panel considered that repeated requests for her number was more likely to have been sexually motivated. The Panel did not consider that the Registrant’s explanation that it was necessary for informing of delays in attending was credible. The Registrant texted Student A unnecessarily, and in the Panel’s view this was sexually motivated.
59. In relation to particulars 1g) n) and o) the Panel considered that these comments were overtly sexualised and inappropriate and made with the intention of harassing Student A. The Panel considered that the Registrant’s inappropriate comments throughout the course disclosed a pattern of behaviour of making the training environment sexualised. The Panel considered that these comments were sexual comments aimed towards Student A and were sexually motivated.
60. The Panel considered that particular 1k could only be sexually motivated and there could be no other plausible or innocent explanation for the Registrant’s actions in staring at Student A’s breasts on more than one occasion.
61. In determining particular 1m, the Panel accepted Student A’s evidence that in a training environment it was unnecessary to touch her. The Panel considered that there was no explanation or attempt to obtain consent from Student A for the touching. In these circumstances, taken together with all of the Registrant’s previous conduct it was more likely than not that pushing down on Student A’s breast during the role play was sexually motivated.
Decision on Grounds
62. The Panel then considered whether the facts found proved amounted to misconduct. Misconduct must be serious. The Panel has made findings in relation to the Registrant making inappropriate remarks and conducting himself in a sexually motivated way towards Student A. This persisted over a number of days when the Registrant was in a position of authority as a trainer. The Panel also considered it was likely that members of the public would have been shocked and appalled at the Registrant’s conduct. The Panel considered that the Registrant’s conduct fell far short of the standards expected of a registered professional.
63. The Panel noted the submissions of the HCPC with regard to breaches of the Standards of Conduct, Performance and Ethics, June 2018. The Panel considered that Standard 2.1 “You must be polite and considerate” and Standard 2.5 “You must work in partnership with colleagues, sharing your skills, knowledge and experience, where appropriate, to the benefit of service users and carers” did not accurately capture the misconduct of the Registrant. The Panel considered Standard 9.1 “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession” was the more appropriate standard. The Panel considered that the Registrant’s conduct breached public trust in him as a Paramedic.
64. The Panel considered that the reputation of Paramedics was damaged by the Registrant’s conduct and Student A was particularly upset and distressed.
65. The Panel considered that these failings would be considered deplorable by fellow practitioners and individually and cumulatively amounted to misconduct.
Decision on Impairment
66. The Panel went on to consider the issue of impairment by reason of the Registrant's misconduct. It had careful regard to all the evidence before it and to the submissions of Ms Reid for the HCPC. The Panel revisited the submissions prepared by the Registrant. It accepted the advice of the Legal Assessor and had particular regard to the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.
67. The Panel first considered past impairment. It noted its findings that the Registrant had made inappropriate and sexually motivated comments towards Student A and behaved in a sexually motivated way towards her during a training course. It had also found that the Registrant’s misconduct had breached a fundamental standard of the HCPC’s “Standards of conduct, performance and ethics” as set out above, had brought the profession into disrepute and had undermined confidence in the profession.
68. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of that misconduct. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found proved. In reaching its decision, the Panel had particular regard to the issues of insight and remediation.
69. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”
70. The Panel considered that the Registrant had not provided any evidence of meaningful insight into his conduct. The Panel noted that the Registrant accepted his comments could have been misinterpreted but he had no appreciation of the impact of his comments on Student A. The Registrant’s submissions suggested that Student A had misunderstood his comments. It was the view of the Panel that the Registrant had no insight into his conduct and took no responsibility for his actions. The Panel noted that the Registrant had been before the HCPC for very similar matters in 2010 and 2015. This Panel concluded that the Registrant had not been able to sustain any previous improvement in his conduct and he was unable or unwilling to respect professional boundaries. The Panel was of the view that the Registrant’s conduct was part of a deep-seated attitudinal problem.
71. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that Panels should take account of:
• Whether the conduct which led to the charge is easily remediable;

• Whether it has been remedied; and

• Whether it is highly unlikely to be repeated.
72. The Panel recognised that remediation of misconduct which involves sexual motivation is less easy than remediation of misconduct involving clinical failings. In any event, the Panel had no evidence that the Registrant had taken any meaningful steps to remedy his misconduct or that he had any appreciation of the seriousness of his actions.
73. The Panel noted that the Registrant had apologised but it considered that there was no genuine or meaningful remorse. The Panel considered that the Registrant was cavalier with regard to the effects of his behaviour on Student A, suggesting it was misconstrued. He had not appreciated the impact of his behaviour on her.
74. The Panel considered that the Registrant had not appreciated the gravity of his actions towards Student A which involved an abuse of his position of authority as her workplace trainer. The Panel considered that the Registrant had shown no insight about this aspect of his misconduct.
75. The Panel noted the earlier issues of misconduct involving similar behaviour towards women both inside and outside a professional setting. In all the circumstances the Panel considered that the Registrant was highly likely to repeat his misconduct.
76. In light of its findings in relation to insight and remediation, the Panel considered that there remains a very significant risk that the Registrant would repeat matters of the kind found proved. For these reasons, the Panel determined that a finding of impairment on public protection grounds is required.
77. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:
“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of…the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”
78. The Panel considered that respect and professionalism are cornerstones of the profession, and the public rightly expects professionals to act in an appropriate way and not to pursue sexual relationships with students during a workplace training course. The Panel considered that the public would be shocked to learn of the Registrant’s conduct in this matter. Further, the Panel had no doubt that the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case in relation to the Registrant’s failings.
79. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired on public protection and public interest grounds.
Decision on Sanction
80. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.
81.The Panel had regard to all of the evidence in the case and the submissions made by Ms Reid and the information supplied by the Registrant.
82. The Panel accepted the advice of the Legal Assessor and exercised its independent judgement. The Panel had regard to the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.
83. The Panel first identified what it considered to be the principal aggravating and mitigating factors in this case.

Aggravating factors:
• The Registrant's conduct was a significant breach of trust.

• The Panel considered that the respondent’s conduct was predatory in nature, and he abused his position of power over Student A.

• The Registrant’s conduct persisted throughout the duration of the course.

• The Registrant has not demonstrated remediation.

• The Registrant has not shown any genuine remorse or insight.

• The Registrant has previously behaved inappropriately towards women and been the subject of sanctions imposed on his registration by the HCPC.


The Panel were unable to identify any mitigating factors in this matter.

84. The Panel considered the sanctions available, beginning with the least restrictive. The Panel did not consider the options of taking no further action, or mediation, to be appropriate or proportionate in the circumstances of this case. The Panel considered that in light of the findings made in relation to impairment and the need to uphold proper professional standards these options would not reflect the seriousness of the case.

85. The Panel next considered the imposition of a Caution Order. The Panel took into account of the factors at paragraph 101 of the policy which might make this sanction appropriate. It considered that the misconduct was not isolated or minor. It reminded itself that it had found there remained a risk of repetition. In addition, it considered that the Registrant had not demonstrated remediation or complete insight. For these reasons the Panel concluded that a Caution Order was not appropriate to address the misconduct and would not provide sufficient public protection.

86. The Panel then considered a Conditions of Practice Order. It considered the factors set out at Paragraph 106 of the Sanctions Policy that could make this order appropriate. The Panel concluded that there were no workable conditions that would address acting in a sexually motivated way towards colleagues. The Panel noted that it had found that the Registrant lacked insight and the conduct involved a breach of trust. The Panel considered that the Registrant’s conduct involved serious and persistent failings. Even if workable conditions could be formulated the Panel considered that a Conditions of Practice Order would not adequately reflect the seriousness of the misconduct found proved.

87. The Panel next considered whether to make a Suspension Order. The Sanctions Policy states that suspension should be considered where the allegation is of a serious nature but unlikely to be repeated and thus striking off is not merited. The Panel reminded itself of its earlier findings that the Registrant had no insight, had engaged in sexually motivated behaviour and abused his position of trust. The Panel also reminded itself that it had made a finding at the impairment stage that there was a significant risk of repetition. The Panel recognised that a Suspension Order would protect the public for the period of time that it was in force. However, it was not satisfied such an order would be sufficient to maintain public confidence in the profession or the regulatory process or to send a clear message to the profession at large that such behaviour would not be tolerated.

88. The Panel therefore next considered the guidance in the Sanctions Policy order on making a Striking Off Order in order to decide whether such an order would be appropriate. The guidance states that striking off is a sanction of last resort for serious deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. It goes on to observe that, “Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.” The Panel finds that this case has the features as set out in the guidance. The Registrant has denied the extent of the misconduct, breached his position of trust, acted in a sexually motivated way towards a student and had demonstrated limited remorse.

89. The Sanctions Policy goes on to suggest that a Striking off Order may be appropriate where the nature and gravity of the allegation are such as any lesser sanction would lack a deterrent effect or undermine confidence in the profession. The Panel considered that the nature and gravity of the misconduct found proved would not be addressed by any lesser sanction.

90. The Panel acknowledged that such an Order will have an adverse impact upon the Registrant both personally and professionally. However, the Panel determined that the interests of protecting the public and maintaining public confidence in the profession outweigh the interests of the Registrant.

Order

ORDER: That the Registrar is directed to strike the name of Mr Devlyn J Johnson from the Register on the date this order comes into effect.

Notes

Interim Order:

91. The Panel considered the application by the HCPC for an Interim Order to cover the appeal period. The Panel was satisfied that the Registrant had been served with the appropriate notice of the Panel’s powers to consider an interim order in an email dated 22 June 2021. The Panel considered it was appropriate to proceed in his absence for all the reasons outlined in its earlier determination.


92. The HCPC’s application is made on the 2 statutory grounds as follows:


• it is necessary for the protection of members of the public
• is otherwise in the public interest.


Interim 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 Devlyn J Johnson

Date Panel Hearing type Outcomes / Status
06/09/2021 Conduct and Competence Committee Final Hearing Struck off