Mr Derek Adams

Preliminary Matters

1. The Panel was informed by the Registrant at the outset of the hearing that he had not received the hearing bundle prepared by the HCPTS and was not therefore in a position to proceed with the hearing until he was in possession of the bundle. The Registrant also made representations that the Panel should adjourn the hearing generally because there were other matters which he said the HCPC needed to investigate before it could proceed with this hearing. The Registrant was unspecific as to the nature of the other matters which required investigation but claimed that the HCPC had acted illegally in a way which would vitiate the current proceedings.

2. Mr Collins informed the Panel that the Registrant was sent a draft bundle of documents in relation to this hearing on 20 June 2022 and a finalised bundle on 25 July 2022. Both bundles were sent to the prison where the Registrant is currently resident, which is his registered address with the HCPC.

3. Mr Collins made arrangements for a further copy of the bundle to be sent by special delivery post at the conclusion of the hearing on 1 August 2022 (Day 1). The Panel was advised by the Hearings Officer that the prison had confirmed receipt of the bundle by special delivery on the morning of 2 August 2022 but that Registrant had refused to accept delivery of the documents when offered them by prison staff.

4. The Panel noted that, although the Registrant stated that he had not received any of the papers in the case, his written representations to the Panel dated 10 July 2022 made various references to the HCPC’s “bundle” to which he took exception.

5. The Panel was mindful that particular 1 of the allegation set out above referred to the Registrant’s conviction of 12 offences at the Edinburgh High Court on 19 March 2021. Rule 10(1)(d) of the Health & Care Professions Council (Conduct and Competence Committee) (Procedure) Rules provides that “Where a Registrant has been convicted of a criminal offence, a certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based”.

6. The Panel was of the view that the only document in the bundle required in relation to particular 1 was the extract of conviction. Apart from the Judge’s sentencing remarks in relation to that conviction, the other documents in the bundle relating to the other factual particulars of the allegation, namely particulars 2, 3, 4 and 5, were not relevant.

7. The Panel therefore considered whether to proceed on particulars 1 and 6 alone and to adjourn the other particulars. The Panel invited representations from Mr Collins and the Registrant and sought advice from the Legal Assessor.

8. Mr Collins submitted that the Panel had a discretion under the Rules to adjourn part of the case against the Registrant. He said that the HCPC adopted a neutral stance as to whether the Panel should proceed only on particulars 1 and 6 and to adjourn the other matters.

9. The Registrant objected to the Panel proceeding on particulars 1 and 6 alone. He repeated his submission that the entire hearing should be adjourned generally. He also submitted that he would be prejudiced if the Panel were to proceed on particulars 1 and 6 because the Panel would be aware that there were also outstanding matters against the Registrant as particularised in particulars 2, 4 and 5.

10. The Legal Assessor advised the Panel that it did have the power to adjourn all or part of the proceedings at any time. He referred to the general discretion to adjourn provided for at rule 10(1)(f) of the Rules. He also referred to the HCPTS Practice Note on Postponement and Adjournment of Proceedings.

11. The Panel took into account all the submissions and accepted the advice of the Legal Assessor. The Panel balanced its statutory obligation to conduct fitness to practise proceedings with the overriding requirement of fairness to the Registrant.

12. In the Panel’s judgement it would be fair to the Registrant to proceed with particulars 1 and 6 alone and to adjourn particulars 2,3, 4 and 5 of the allegation. None of the documents which the Registrant claims not to have received are relevant to the Panel’s consideration of particulars 1 and 6. The Panel did not consider that any prejudice would thereby be caused to the Registrant. No objection was taken by or on behalf the Registrant to the original joinder of particulars 2, 3, 4 and 5 with particular 1. The Panel could and would put out of its mind these matters when determining particulars 1 and 6.

13. Accordingly, the Panel decided to adjourn particulars 2, 3, 4 and 5 and to proceed on particulars 1 and 6 alone.

Background

14. The Registrant is dually registered with the HCPC as a Physiotherapist (PH69669) and a Chiropodist/Podiatrist (CH13761).

15. On 19 March 2021, at the High Court in Edinburgh, the Registrant was convicted of twelve offences, including two counts of rape, an attempted rape and an indecent assault. He was also found guilty of physically assaulting four women and two children, including a two-year-old girl. He was also convicted of threatening or abusive behaviour to one woman, whom he had treated in a controlling way.

16. On 15 April 2021 the Registrant was sentenced to twelve years imprisonment, comprising a custodial period of nine years and an extended licence period of three years. A Non-Harassment Order for an indefinite period was also made, in addition to requiring the Registrant to be subject to reporting requirements indefinitely, pursuant to the Sexual Offences Act 2003.

Decision on the facts

17. The Panel was mindful that the burden of proof was on the HCPC and that the civil standard of proof applied, so the particulars of the allegation must be proved on the balance of probabilities.

18. Rule 10(1)(d) of the Health & Care Professions Council (Conduct and Competence Committee) (Procedure) Rules provides that “Where a Registrant has been convicted of a criminal offence, a certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based”.

19. Once the Allegation had been read, the Registrant admitted particular 1 of the Allegation. The fact of his conviction was proved by the extract conviction provided to the Panel by the HCPC together with the Registrant’s admission.

Decision on Impairment

20. The Panel took into account the submissions of Mr Collins and the Registrant. The Panel had regard to the HCPTS Practice Notes on “Finding that Fitness to Practise is Impaired” and “Conviction and Caution Allegations” and accepted the advice of the Legal Assessor.

21. In considering impairment, the Panel applied the test formulated by Dame Janet Smith in her Fifth Shipman Report and applied by the High Court in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), 76. The Panel determined that items b) and c) of the test set out below applied in this case, namely:

“Do our findings of fact in respect of the [doctor’s] misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a) xxxxx
b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession?
d) xxxxx"

22. By reason of his conviction, the Registrant was in breach of Standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics (2016) which provides that “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

23. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel took into account both the “personal” and “public” components of impairment referred to in the case of Grant. The “personal” component relates to the Registrant’s own practice as a Physiotherapist and Chiropodist/Podiatrist, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

24. With regard to the “personal” component of impairment, the Panel noted that the Registrant had pleaded not guilty to all charges of which he was convicted by the High Court in Edinburgh. In his representations to the Panel it was apparent that, in his opinion, he did not consider that he had been guilty of any wrongdoing. He showed neither remorse nor insight and provided no evidence of remediation.

25. The Panel noted the sentencing remarks of the trial judge, Lady Carmichael, who stated as follows: “You have been convicted of raping two women, attempting to rape another and a series of indecent assaults on both. In addition you have been convicted of a number of charges involving assault and threatening and abusive behaviour …. Any one of the serious sexual assaults on this indictment would be of such gravity as to require a custodial sentence. The offending of which you’ve been convicted is so serious that there is no alternative to a custodial sentence, and it is offending which has followed a discernible pattern, repeated over the years. You are presently assessed as presenting a high risk”.

26. In his submissions to the Panel, the Registrant stated that none of these offences related to his professional practice and that he had practised his professions without blemish for many years. In this context, the Panel noted that his submission was supported by the remark of the sentencing Judge that “You appear as a first offender and I accept that you have been a productive member of society outside your offending”.

27. The Registrant also told the Panel that he had since been re-assessed by a Social Worker as being at low risk of offending. The Panel noted that his assertion was not supported by any evidence.

28. The Panel accepted that there was no evidence that the Registrant’s offending had ever taken place in the context of his professional practice. However, given the varied and serious nature of his offences, his lack of remorse and assertions that he had not been guilty of any wrongdoing, there is, in the Panel’s judgement, a significant risk of repetition. If permitted to practise without restriction, the Registrant would pose a risk of serious harm to females which might include patients and colleagues. Accordingly, the Panel found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.

29. The Panel also found the “public” component of impairment to be satisfied in this case. A member of the public, knowing of the offences of which the Registrant had been convicted, would undoubtedly expect some restriction to be placed on his registration. Public confidence in the professions and in the Regulator would be seriously undermined if there were no finding of impairment.

30. Accordingly, the Panel found that the Registrant’s fitness to practise is impaired having regard to both the “personal” and “public” components of impairment.

Decision on sanction

31. The Panel took into account the submissions of Mr Collins and the Registrant.

32. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant, although a sanction might have that effect, but to protect the public and the wider public interest in upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

33. The only mitigating factor in this case is that the Registrant had a previously unblemished career in his professional practice and, in the sentencing remarks of the Judge, had been “a productive member of society outside [his] offending”.

34. The aggravating factors in this case are that:

· The Registrant has expressed neither remorse nor apology and has shown no insight as to the negative impact of his offending on his victims, his own professional status or the reputation of the professions to which he belongs

· His offences were numerous, took place over several years and, as outlined in the sentencing remarks of the trial Judge, “followed a discernible pattern over the years”

· In the Panel’s judgement, given the Registrant’s unrepentant, obdurate and self-justifying attitude, there is a significant risk of repetition.

35. The case is too serious for the Panel to take no further action.

36. Mediation is not relevant.

37. A Caution Order would not be effective to address the risk of repetition and would be insufficient to reflect the seriousness of the Registrant’s conviction for offences of sexual misconduct and violence.

38. A Conditions of Practice Order would not be appropriate because the Panel was unable to formulate any conditions which would address the underlying concerns. Moreover, conditions of practice would be irrelevant because the Registrant is prevented from professional practice by virtue of his imprisonment.

39. The Panel considered whether to impose a Suspension Order but concluded that none of the indicative factors for the imposition of a Suspension Order applied, having regard to:

· the Registrant’s conviction for multiple offences of sexual misconduct and violence

· the lengthy period of imprisonment to which he is currently subject

· his lack of remorse and insight

· the significant risk of repetition

40. The Sanctions Policy provides the following guidance in relation to Striking Off Orders:

“A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
· lacks insight
· continues to repeat the misconduct
· is unwilling to resolve matters”

41. In the Panel’s judgement all the indicative criteria for a Striking Off Order are present in this case.

42. The Panel concluded that the offences for which the Registrant has been convicted and sentenced are incompatible with his remaining on the register of either profession and that the only appropriate and proportionate sanction is a Striking Off Order.

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

Right of Appeal:

You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the Court of Session.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order

Application

1. Mr Collins made an application for an Interim Suspension Order to cover the appeal period or until any appeal lodged has been determined.

2. The Registrant did not oppose the application.

Decision

3. The Panel noted the submissions of Mr Collins. The Panel accepted the advice of the Legal Assessor.

4. Given the Panel’s findings that the offences of which the Registrant has been convicted are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent with the need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

5. The Panel therefore 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 in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

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. This Interim Suspension Order is made for the maximum period of 18 months.

History of Hearings for Mr Derek Adams