Mr James G Black

Facts Proved:  1
Facts Not Proved: None
Grounds: Conviction
Fitness to Practise Impaired: Yes
Sanction: Strike Off Order

Preliminary Matters

Service
1.     The Panel was satisfied on the basis of the documents contained in the service bundle that the Registrant had been properly served with notice of the hearing by post and email and dated 15 November 2022 in accordance with the Rules. An email confirming delivery was received on the same date.

Proceeding in the absence of the Registrant
2.     Ms Bass made an application for the Panel to proceed with the hearing in the absence of the Registrant. She informed the Panel that the Registrant had not engaged with the HCPC in these proceedings. She submitted that, given the seriousness of the allegation, there was a public interest in disposing of the proceedings without delay.

3.     The Panel took into account the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was satisfied that the Registrant was aware of today’s hearing and had not applied for an adjournment. The Panel considered that he had voluntarily absented himself and waived his right to attend. The Panel considered that an adjournment would be unlikely to secure the Registrant’s attendance at a future date and that no useful purpose would be served by an adjournment. The Panel took into account the seriousness of the allegation and the need to determine the proceedings without undue delay. The Panel was satisfied that it was in the public interest for the hearing to proceed in the absence of the Registrant.

Application to amend
4.     Ms Bass made an application to amend the allegation as indicated above. The Panel was satisfied that the proposed amendment did not materially alter the nature of the allegation against the Registrant and that no prejudice would be caused to the Registrant by granting the application. Accordingly, the Panel granted the application to amend.

Background
5.     The Registrant is registered with the HCPC as an Operating Department Practitioner. He was employed via an agency to work in that capacity at NHS Grampian (“the Trust”) from April 2019.

6.     On 5 November 2021 the HCPC received a referral from the Trust stating that the Trust had become aware that the Registrant had been convicted of rape and was remanded in custody awaiting sentence.

7.     The HCPC subsequently obtained the extract of conviction, signed by a representative of the court, recording that on 28 October 2021 the Registrant was found guilty of the offence described in particular 1 of the Allegation and on 7 December 2021 was sentenced to a five year term of imprisonment.
 
Decision on Facts
8.     The fact of the Registrant’s conviction as alleged in particular 1 is proved by the extract of conviction. The Panel relied on Rule 10 (d) of the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003 states that “where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland an extract of conviction) shall be admissible as proof of the findings of fact upon which it was based.”
 
Decision on Impairment
9.     The Panel took into account the submissions of Ms Bass on behalf of the HCPC. The Panel had regard to the HCPTS Practice Notes on “Fitness to Practise Impairment” and “Conviction and Caution Allegations” and accepted the advice of the Legal Assessor.

10. 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

11. 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”.

12. 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 an Operating Department Practitioner, 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.

13. With regard to the “personal” component of impairment, the Panel noted that the Registrant had pleaded not guilty to the charge of which he was convicted by the High Court in Glasgow. He has not engaged with the HCPC in these proceedings. It does not appear that he has expressed any remorse or shown any insight. There is no evidence of remediation. The Panel acknowledged that the Registrant’s offending had taken place outside the context of his professional practice. However, given the very serious nature of his offence, his not guilty plea and lack of engagement demonstrating reflection and remorse, or understanding the implications of the offence there is, in the Panel’s judgement, a risk of repetition. The Panel found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.

14. The Panel also found the “public” component of impairment to be satisfied in this case. The Panel noted the sentencing remarks of the trial judge, who stated as follows:

“,,, you took advantage of a lady who was asleep at the time, and you raped her ….. “.
 
15. The practice of an Operating Department Practitioner involves looking after patients who are extremely vulnerable and during periods when they are under anaesthetic and unconscious. A member of the public, knowing of the offence of which the Registrant had been convicted, would be extremely concerned if an Operating Department Practitioner convicted of raping a female whist asleep were permitted to continue in practice without restriction. In the Panel’s judgement, the Registrant poses a potential risk to members of the public, including patients, and a finding of current impairment is necessary for public protection.
 
16. In addition, the Panel considered that a finding of current impairment is necessary to uphold professional standards. Public confidence in the profession and in the HCPC as its Regulator would be seriously undermined if there were no finding of impairment.
 

17. 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
18. The Panel took into account the submissions of Ms Bass.
 
19. The Panel was guided by the HCPC’s Sanctions Policy (2019) 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, maintaining the reputation of the profession and public confidence both in the profession and the HCPC as its Regulator. 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.
 

20. The only mitigating factor in this case is that the Registrant had a previously unblemished career in his professional practice and has not been subject to any previous fitness to practise proceedings. The offence of which he has been convicted occurred outside his practice as an Operating Department Practitioner,
 

21. The aggravating factors in this case are that:
 

·       the Registrant has expressed neither remorse nor apology;

·       he has not engaged in these proceedings and has shown no insight as to the negative impact of his offending on his victim, his own professional status or the reputation of the profession to which he belongs;

·       there is no evidence of any attempt at remediation; and

·       there is a risk of repetition.

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

23. Mediation is not relevant.

24. 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 an offence of rape.

25. 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.

26. 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 a serious criminal offence involving sexual misconduct;

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

·        his lack of remorse and insight;

·       the absence of remediation; and

·       the risk of repetition with the potential risk of harm to service users.

27. 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; and

·       is unwilling to resolve matters.

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

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

ORDER: The Registrar is directed to remove the name of Mr James Black from the Register

Interim Order

1.     Ms Bass made an application for an Interim Order for 18 months.  The Panel was of the view that public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order is necessary for the protection of the public and otherwise in the public interest.  The Panel first considered whether an Interim Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that interim conditions would not be appropriate or proportionate in this case.
2.     The Panel therefore decided to make an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary for the protection of the public and 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.
 

History of Hearings for Mr James G Black