Mr Rory Agate

Preliminary Matters

Service

1. The Panel has seen an unredacted letter dated 30 September 2022 which was sent by email to the Registrant’s registered email address. The letter gives notice of the date, time and purpose of this hearing and that it will be conducted remotely. The Panel has seen an email of the same date from Microsoft Outlook confirming delivery to the Registrant’s email address. Accordingly, the Panel is satisfied that proper notice of these proceedings has been served on the Registrant.

Proceeding in the absence of the Registrant

2. Ms O’Connor applied for the hearing to proceed in the absence of the Registrant, submitting that there was no compelling reason for the case to be adjourned.

3. Ms O’Connor submitted that it was in the public interest for the hearing to proceed in the Registrant’s absence and referred to the fact that the only HCPC witness (Person A) was available to give evidence. She submitted that the allegations in the case dated back to June and August 2019, and referred to the potentially detrimental effect that any adjournment would have on Person A’s memory of the alleged events.

4. Ms O’Connor submitted that the Registrant had voluntarily waived his right to attend. She informed the Panel that there has been no engagement by the Registrant since a communication sent by him on 22 March 2022 in which he gave consent to receive documents by email. Ms O’Connor stated that the Registrant has provided no explanation for his non-attendance and has not sought an adjournment. She further submitted that an adjournment was unlikely to secure the Registrant’s attendance at a future date given his lack of engagement since March 2022. Ms O’Connor reminded the Panel that registrants were under a duty to engage with their Regulator.

5. Ms O’Connor accepted that there would be a disadvantage to the Registrant if the matter were to proceed in his absence as the allegations were clearly serious ones. She reminded the Panel that it was able to ask questions of Person A.

6. The Panel received and accepted legal advice before considering whether to proceed in the Registrant’s absence. The Panel has exercised particular care and caution in reaching its decision and has considered the various matters set out in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”.

7. The Panel accepts that there will be some disadvantage to the Registrant by not being present and participating in the hearing but considers that this is outweighed by the public interest in proceedings being heard when scheduled, especially where there is the potential for any delay to affect the memories of witnesses. The Panel will be careful to consider all matters which are in the Registrant’s favour throughout the proceedings.

8. The Panel is satisfied that the Registrant has made a deliberate decision not to attend the hearing or be represented at it. The Panel has therefore concluded that the Registrant has voluntarily waived his right to be present.

9. The Panel has also considered whether an adjournment would result in the Registrant’s attendance on another date. It notes the Registrant has not asked for an adjournment. The Panel is satisfied that no useful purpose would be served by adjourning this hearing as it is unlikely that the Registrant would attend on a later date.

10. The Panel is satisfied that there is a clear public interest in this case being concluded. The Panel considers that it is in the public interest for final hearings to proceed on the date on which they are listed to be heard.

11. In reaching its decision, the Panel has balanced fairness to the Registrant with fairness to the HCPC and the wider public interest. The Panel is satisfied that it is in the interests of justice to proceed in the Registrant’s absence.
Application to conduct part of the case in private

12. Ms O’Connor applied for those parts of the case where matters relating to the Registrant’s health were raised, to be heard in private in order to protect his private life. Ms O’Connor raised as an issue whether Person A’s evidence should be heard in private in order to protect her private life, and submitted that this was not necessary as Person A’s anonymity was sufficiently protected by the fact that she would not be referred to during the hearing by her full name but would be referred to as “Person A”.

13. In reaching its decision, the Panel has had in mind the HCPTS Practice Note on “Conducting Hearings in Private”. It has also received and accepted legal advice.

14. The Panel is aware that these proceedings should be heard in public unless there are exceptional circumstances which would dictate that either the whole or part of the hearing should be conducted in private. One exceptional circumstance which might arise is where matters concerning the personal life or health of a witness or registrant arise and, in order to protect their private life, the hearing should be conducted in private. The Panel has considered whether in this case there are any such exceptional circumstances.

15. With regard to the complainant, Person A, the Panel takes the view that the steps already in place to preserve her anonymity are sufficient to protect her private life. She will not be referred to other than as “Person A” during the hearing, or in the Panel’s written determination. The Panel has therefore decided that there are no exceptional circumstances that require her evidence to be heard in private.

16. With regard to the Registrant, the Panel is satisfied that matters relating to his health are likely to arise during the hearing. It has decided that those parts of the evidence relating to the Registrant’s health will be heard in private so as to protect his private life. The rest of the hearing will be conducted in public.

Instruction of independent counsel to cross examine Person A on behalf of the Registrant.

17. Mr Craig Barlow, Counsel, appeared before the Panel. He explained that as the allegation included a sexual allegation and the Registrant was not legally represented, the HCPC had instructed him to cross examine Person A on behalf of the Registrant. Mr Barlow reminded the Panel that the Registrant is not permitted to cross examine himself in the absence of Person A’s written consent. There is no such consent in this case. Mr Barlow explained that he had attempted to contact the Registrant to obtain his instructions but without success. Mr Barlow submitted that in these circumstances where he had no instructions at all, it was inappropriate for him to cross examine Person A.

18. The Panel has received and accepted legal advice in relation to whether it is appropriate for Mr Barlow to cross examine Person A on the Registrant’s behalf in his absence and without any instructions. The Panel was referred to Rule 10 (4) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”), which states:

“Where –
(a) the allegation against a registrant is based on facts which are sexual in nature;
(b) a witness is an alleged victim; and
(c) the registrant is acting in person,
the registrant shall only be allowed to cross-examine the witness with the written consent of the witness.”

19. Rule 10A (5) then deals with the appointment of independent counsel to conduct the cross-examination of the witness where there is no written consent.

20. The Panel has accepted the legal advice that Rule 10A (4) and (5) of the Rules, only apply where a registrant is acting in person. It is satisfied that as the Registrant has not attended this hearing, he is not “acting in person” [Rule 10A (4) (c)]. It follows from this that Mr Barlow has no role to play in the hearing. His instruction as independent counsel falls away. The Panel is also satisfied that as Mr Barlow has been unable to contact the Registrant or obtain his instructions, it would not be possible for him to put any positive case by way of cross-examination, and indeed it would be inappropriate for him to do so.

21. The Panel has therefore decided that Mr Barlow has no further role to play in these proceedings.

Background

22. At the relevant time, the Registrant was employed as a Biomedical Scientist by the University Hospital Southampton NHS Foundation Trust (“the Trust”). He was first employed by the Trust in November 2017 as a biomedical support worker. Person A was also working at that time for the Trust also as a biomedical support worker. The Registrant and Person A worked in the same laboratory. Later, the Registrant qualified as a Biomedical Scientist. In June 2019, Person A became an associate practitioner within the Trust.

23. Initially the Registrant and Person A were colleagues. But in about March or April 2018, they started seeing each other. Their relationship developed and the Registrant began staying over at Person A’s flat. In October 2018, he moved in with Person A. They stopped living together in February 2019 and theirs was a relationship where there were times that they were together and other times when they were not.

24. On 17 January 2020, Person A complained to the police that on 19 June 2019, the Registrant had raped and assaulted her, and that on 9 August he had assaulted her.

25. On 16 March 2020, the Registrant was arrested on suspicion of rape and assault of Person A. He was interviewed under caution in the presence of his solicitor and denied the offences. The Registrant was released on conditional bail by the police with a condition to prevent contact with Person A.

26. The Registrant was suspended from work by the Trust on 18 March 2020. The Trust referred the Registrant to the HCPC on 20 March 2020.

27. On 14 April 2020, the police decided to take no further action in respect of Person A’s complaint as the allegation of rape did not pass the evidential text regarding lack of consent. On 15 April 2020, the Trust lifted the Registrant’s suspension and he returned to work.

28. Thereafter the Registrant and Person A engaged in workplace mediation and both signed behavioural contracts on their return to work.

29. On 19 January 2022, a panel of the Investigating Committee decided that there was a case for the Registrant to answer and referred the Allegation to this Committee.

Decision on Facts

Evidence

30. The HCPC provided the Panel with a bundle of documents for the hearing which totalled 121 pages of which some 82 pages were exhibits in the case. The HCPC also called Person A to give evidence and relied on a production statement from AB, a legal assistant at Kingsley Napley LLP in which they produce the exhibits in the HCPC bundle. These exhibits included:

a) documents obtained from the police regarding the arrest of the Registrant and interviews conducted with Person A regarding the allegation of rape.

b) behavioural contract signed by the Registrant.

c) screenshots of text messages between the Registrant and Person A between 20 June and 21 August 2019.

d) letters written by the Registrant to Person A.

e) various documents relating to the Registrant’s health.

f) text messages from the Registrant to (i) a friend and (ii) Person A’s colleague.

g) an undated letter sent by Person A to the HCPC (apparently sent to the HCPC on 20 July 2020) in which she set out details of her complaints against the Registrant.

31. The Panel notes that within the HCPC bundle there is no full transcript of Person A’s interview with the police and no transcript or summary of the Registrant’s interview under caution.

32. Person A gave evidence to the Panel during which she confirmed the contents of (i) her witness statement dated 30 March 2021, (ii) a letter sent to the HCPC in July 2020 and (iii) the notes of what she had told the police in January and February 2020. The Panel notes that Person A did not complain of non-consensual penetrative sexual activity (which she referred to as ‘rape’) until sometime after the event. The Panel has considered whether this undermines her account of what happened and has concluded that it does not. The Panel has seen text messages between her and the Registrant in the period after the events on 19 June 2019 which support and are consistent with her account.

33. The Panel is satisfied on the basis of Person A’s evidence and the content of text messages and letters to her from the Registrant, that they had been in an intimate relationship since sometime in 2018. The Panel is also satisfied that the Registrant would regularly stay the night at Person A’s flat in Southampton rather than returning to his own home in the Reading area. In about October 2018, the Registrant moved in with Person A. The Panel also accepts Person A’s evidence that in about February 2019, the Registrant moved out of her flat but that their relationship continued on and off.

34. The Panel accepts Person A’s evidence that she lives in a two-bedroom flat above a shop and that in June 2019, she was sharing the flat with a flatmate who was on holiday on 19 June 2019 and so was not there that night.

35. The Panel accepts that on 17 January 2020, Person A complained that the Registrant had raped and assaulted her on 19 June 2019, and had assaulted her on 9 August 2019. The Panel has seen police documentation which confirms this. The Panel also accepts that Person A was interviewed by police on 7 February 2020.

Particular 1 was found proved

36. The Panel has approached this Particular by considering whether it is satisfied on the balance of probabilities that there was penetrative sexual activity between the Registrant and Person A on 19 June 2019. Then considering whether it is satisfied on the balance of probabilities that this was non-consensual, and finally whether it is satisfied on the balance of probabilities that the Registrant knew at the time that Person A did not consent.

37. The Panel has looked to see whether there is any evidence in the documents which supports Person A's account of the events of that evening. The Panel accepts that Person A’s first account as given to the police in January 2020, which was followed up in her interview on 7 February 2020, is evidence only that she has been consistent in her account. It does not amount to corroboration. The Panel considers that there is support for Person A’s account in text messages between Person A and the Registrant in the period between 20 June and 21 August 2019. Before accepting that the Registrant’s text messages are an admission by him of what it is alleged he did on 19 June 2019, the Panel has considered those messages not in isolation but in the context of what had gone before and what came after.

38. The Panel accepts Person A’s evidence that on 19 June 2019, she and the Registrant had finished work at about 5.15 pm and they had walked back together to her flat. The Panel also accepts that the Registrant remained in Person A’s flat, apart from a short time when he left to buy some vodka, until the early hours of the following day, a period of some eight hours. Person A told the Panel that at about 1.30 am on 20 June 2019, she had driven the Registrant the short distance to his own home. The Registrant was, by this time, living in Southampton.

39. Person A told the Panel that she wanted to end her relationship with the Registrant for good. She told the Panel that within about half an hour of getting to the flat, the Registrant had started to say that he wanted sex one more time as a “goodbye”. The Panel accepts Person A’s evidence that the Registrant said this repeatedly and that initially she had refused his requests. The Panel infers from this that the Registrant was fully aware that Person A wanted a permanent end to their relationship and also fully aware that she did not want to have “goodbye” sex.

40. The Panel also accepts Person A’s evidence that at one point and in “desperation” at the Registrant’s persistent requests, she had pulled her trousers and pants down, bent over and told him to “get on with it”. Person A told the Panel that the Registrant had told her to pull her trousers and pants up and that he did not want sex like that.

41. The Panel accepts Person A’s evidence that while she had not been drinking that night, she had removed a bottle of vodka from the Registrant so that he would not drink it. Person A told the Panel that the Registrant had then left the flat before returning with a new bottle of vodka. Person A explained to the Panel that although she could have locked her door to prevent the Registrant returning, she had not done so as she did not want him to make a fuss and she was concerned about disturbing her neighbours. The Panel does not consider the fact that Person A did not lock the Registrant out of her flat that night as undermining her evidence as to what took place after he returned.

42. The Panel accepts Person A’s evidence that at about 11 pm that evening, the Registrant had penetrative sexual activity with Person A when he had full sexual intercourse with her, ejaculating in her vagina. He had not used a condom. The Panel considers that Person A’s evidence of how she had felt about the Registrant not using a condom is particularly compelling. Person A told the Panel that she had had sex with the Registrant before and so she felt safe from a health point of view. She also said that as she was on the contraceptive pill, she was not worried about getting pregnant. The Panel considers that had Person A been exaggerating what had happened that night, or lying about it, this was an opportunity for her to embellish her evidence by saying e.g., how violated she had felt by the Registrant not using a condom, and she did not do so. The Panel considers that this supports her credibility as to the events of that night.

43. The Panel also accepts Person A’s evidence that she is not able to recall all the events of that evening or precisely when or in which order they occurred. The Panel notes that Person A told the police, in early 2020, “this is where I get misty”. It also notes that at times during her oral evidence, Person A made it clear that she could not be 100% sure about the sequence of events. The Panel has concluded that Person A’s uncertainty about certain matters tends to support her credibility.

44. When considering whether the penetrative sexual activity was non-consensual, the Panel takes the view that the nature of the relationship between Person A and the Registrant provides the context for the events of that night. The Panel’s view is that the relationship, as revealed in the text messages and letters from the Registrant to Person A at this time, and as described by Person A in her evidence, is that it was one in which the Registrant was very “manipulative” of Person A. The Panel considers the evidence shows a number of examples of this. Person A described how the Registrant would tell her that he loves her and then turns against her and is verbally abusive, calling her e.g., a “bitch”. Although they had stopped living together in February 2019, the relationship had continued. The Panel accepts that by June 2019, Person A wanted to end it for good and that she told him this on this date.

45. Another example of the manipulative nature of the relationship relates to text messages sent by Person A on 19 June 2019 to two of her friends asking if she could stay with them. Person A had not told either of them the reason why (i.e., that she wanted to get away from the Registrant). Person A explained that she had not told them this because she was concerned the Registrant might read her texts and she was afraid of his reaction. She said he had seen one of the texts and had got angry about it. Person A said she had tried to escape because she was scared but he had stopped her. She accepted that she had not fought back as she did not want to get hurt and did not want to disturb her neighbours. Person A said that she had felt trapped in her own flat.

46. In relation to the penetrative sexual activity, the Panel accepts Person A’s evidence that the Registrant had told her at about 11 pm to go to bed and stay with him. She said that he had kept saying that he would just “do it” and then he would leave. Person A said that although she had not believed that he would leave, she had said to him to “just do it and leave”. She refers to being on the bed, naked from her waist down, with her legs apart. Person A told the Panel that she was crying at this time and that she had immediately regretted telling the Registrant to just “do it” and so she had told him that he did not have her consent. Person A described lying on the bed, crying and at one point when she was crying hysterically, the Registrant put his hand on her throat. He had then masturbated before penetrating her vagina with his penis, ejaculating inside her. At this time, Person A said she was still crying and telling him that he did not have her consent.

47. Person A also told the Panel that when this was happening, she was whispering that she wanted her mother. She could not recall whether she said this in English or in her own language. The Panel notes that it was at this point in her evidence when referring to her mother that Person A became visibly upset. The Panel also notes that this was evidence which Person A had not referred to in any of her previous interviews or statements, but it is satisfied her emotion was genuine and her evidence credible. The Panel accepts Person A’s evidence that she told the Registrant repeatedly that he did not have her consent, and that she had said this, not in a whisper but in a normal voice. According to Person A, she recalled the Registrant saying “you don’t want sex, but you’re wet” or words to that effect. The Panel considers that this shows that the Registrant knew at the time that Person A was not consenting to have sex with him.

48. Person A told the Panel that she had not called out or pushed him away as she did not want to make him angry, and she was fearful of what he might do. The Panel considers that through his behaviour during the whole of that evening, the Registrant had made Person A feel vulnerable and it accepts her reasons for not trying to physically push him away.

49. The Panel has concluded that the Registrant would have been able to see Person A was crying and he would have been in a position to hear what she was saying to him regarding her lack of consent, and it is satisfied that it is more likely than not that he knew she was not consenting to have sexual intercourse with him. The Panel accepts Person A’s evidence that she made sure that he understood what she was saying.

50. The Panel also takes the view that Person A’s evidence of her own behaviour on the evening in telling the Registrant on at least two occasions to “get on with it” and have sex with her tends to support her credibility as this was evidence of Person A giving her fullest account.

51. The Panel has considered whether what Person A told the police in her interview on 7 February 2020 undermines her account of the events of 19 June 2019. Person A had told the police that she and the Registrant had consensual sex on a few occasions, after the 19 June 2019. She was asked about this in her oral evidence, and she told the Panel that she now regretted telling the police that as she was unsure about it. She referred to their relationship as being on and off all the time and she recalled one occasion during a break in their relationship when she had had consensual sex with the Registrant at his house. She believed this was in the summertime but could not now recall whether it was before or after 19 June 2019. The Panel takes the view that even if there had been consensual sex after the 19 June 2019, this would not necessarily mean that the events of that night were consensual. The Panel accepts Person A’s explanation of why she now regretted mentioning it to the police.

52. The Panel is satisfied that it is more likely than not that Person A did not consent to having penetrative sexual activity with the Registrant that night, and that the Registrant knew that she did not consent.

53. The Panel has found support for Person A’s account of the penetrative sexual activity being non-consensual and that the Registrant was aware of this in various text messages between her and the Registrant.

54. On 20 June 2019, at 05:54 the Registrant sent a text message to Person A stating, “I’m so sorry. Please have a good life without me in it”. The Panel notes that this text message was sent within hours of Person A driving the Registrant home after the incident. It suggests that he had understood that she was finishing her relationship with him the previous evening. If this text message had stood on its own, the Panel might not have been able to conclude that the Registrant’s reference to being “sorry” was for having non-consensual sex with Person A. However, it does not stand alone, and the Panel considers that this is what the Registrant was apologising for.

55. There are further text messages on 20 June, 22 June, 24 June and 25 June 2019 in which the Registrant makes it clear that he knows that Person A has spoken to a mutual friend, BT about the events of 19 June 2019. He also sets out his feelings about his relationship with Person A. Eventually, on 26 June 2019 Person A responds to him in the following terms:

“I’m ok cos I’m away from you. Someone who claims that he loves me and that’s why he rapes me (however pathetic the act was it’s still what it is) while I’m crying hysterically and asking to stop, that’s why he uses force to pin me to the wall and hurt me, that why he leaves bruises on my throat cos I don’t want to have sex with him, he promises things and never keeps the promise ( I could easily say blackmailing to have sex with him so then he leaves me alone but never does), that why he calls me a slut. I’m ok Rory. You made sure you’re out of my life. So here you are. You’re out. You’re welcome too”.

56. Person A sent a further text to the Registrant in which she told him she did not wish to hear his voice because it reminded her of “that unfortunate night”.

57. The Panel notes that in the Registrant’s response after Person A’s accusation of rape and assault is not to deny her account or correct it in any way. He states, “please contact me. I know everything was fucked up and i was out of control. I never meant to be like that and of course I am struggling with everything that happened.” The Panel takes the view that given the serious nature of her rape accusation, if it was incorrect in any way, the Registrant would have made that clear and that it is significant that he did not. This tends to suggest that Person A’s account is an accurate one.

58. The Panel considers that the Registrant referred to his conduct on 19 June 2019 in a number of the text messages he sent to Person A on 26 June. In one he stated, “I know what happened wasnt right and i will never live it down but you have to understand it was a major mistake i know im fucked up”. In another he stated, “im sorry I let myself become that depraved and i shouldn’t of done that to someone i love”. The whole tenor of these text messages is that the Registrant knows that he has done something seriously wrong to Person A and in light of her text message accusing him of rape and assault, the Panel has concluded that he is referring to these matters and accepting that he had in effect had non-consensual sexual activity with Person A and assaulted her.

59. The Panel has seen a text message on 26 June 2019 from Person A to the Registrant in which she says “And your “mistake” is a prosecution worthy mistake. Understand that.”. The Registrant’s response is “Im not trying to justify it ! Everything thats gone on with us has made me sick in the head. I know whats right and wrong and what i did was wrong”.

60. In a further text message on 26 June 2019, the Registrant stated, “After all the ups and downs we went through i had a moment of complete insanity and uncontrolled outburst and im broken mentally and i am so terribly sorry for that”. The Panel considers that the Registrant is referring in these texts to the events on 19 June which is when he had last seen Person A and he is seeking to explain his behaviour that night. The Panel considers that the Registrant’s use of the words “complete insanity” and “uncontrolled outburst” and knowing that what he did was wrong, is significant in light of Person A’s accusation of rape and assault in her text message a few days before this. It tends to support and acknowledge her account of the matter whilst at the same time trying to explain it.

61. On 9 July 2019, the Registrant sent a lengthy text to Person A in which he stated, “You dont need to care as i abused you… That night was abhorrent, awful, unfair, controlling, based on a blinded judgement. I continue to revolve it around my mind and i am truly sorry. I should never have treated your body that way. I’m sorry i didnt stop when you said. I shouldn’t of ever come over let alone stayed”. The Panel is satisfied from the content of this text message and the context of the previous text messages that the Registrant is referring to the events of 19 June 2019 and that he is admitting that he had known that Person A had not consented to sexual intercourse on that night.

62. In further text messages sent on the same date, the Registrant stated, “I know you said also you dont care about the problems im facing and while i accept that i truly have no one to express this to (friends and it becomes skewed advice and anything official and as you said i may as well prosecute myself). You’re the only one who went through this with me (by that i mean everything and not just that night” and “….i should have had the power notu consume myself with such rage and blindness whereby i dehumanised you”. The Panel is satisfied that the Registrant is still referring to the events of 19 June 2019 and that he is admitting that he knew that what he did to Person A that night was something that he could be prosecuted for and the reference to “dehumanising” suggests to the Panel that he was referring to the non-consensual sexual activity that took place that night.

63. Accordingly, the Panel is satisfied that it is more likely than not that the Registrant engaged in non-consensual penetrative sexual activity with Person A on 19 June 2019 and finds Particular 1 proved.

Particular 2 was found proved

64. The Panel accepts Person A’s evidence that at some point during the evening of 19 June 2019, the Registrant had pinned her against a wall. Person A was unclear as to when in the order of events that evening this had been. In her letter to the HCPC in July 2020, Person A had said that this had occurred after a long argument when he had become aggressive. She was however clear that it had happened when they were both in her flatmates bedroom and that she had been wearing her jacket at the time. Person A told the Panel that the only other time she wore her jacket that evening was when she drove the Registrant home. The Panel accepts this evidence.

65. The Panel accepts Person A’s evidence that the Registrant had said to her on more than one occasion that evening, words to the effect that “you are not going anywhere” and he had blocked her exit from that room. In her interview with the police, Person A had said that she could not recall how she got out of the room but accepted that the Registrant must have let her out.

66. The Panel considers that in the context of what else Person A was complaining the Registrant had done to her on this evening, Person A had almost glossed over this incident herself. It was a minor detail of that evening, and the Panel considers that she had no reason to make it up as it adds little or nothing to her main complaint of non-consensual penetrative sexual activity. She said she was only pinned to the wall for just a few seconds, maybe 5 seconds. She described being very scared at the time that he was going to do something worse to her.

67. The Panel is satisfied that it is more likely than not that on 19 June 2019, the Registrant pinned Person A against a wall. It has considered whether or not she could be mistaken, and that the Registrant accidently pinned her against the wall and so did not intend to assault her. The Panel is satisfied that it is more likely than not that the Registrant pinned Person A against the wall, that this was an intentional act by him as evidenced by his words to the effect “you are not going anywhere”, and that it amounts to an assault upon her. Accordingly, the Panel finds Particular 2 proved.

Particular 3 was found proved

68. The Panel accepts the evidence of Person A that the background to the events of 9 August 2019 was that a colleague in her department was having a leaving party to which she had been invited. Person A told the Panel that because her colleague did not know that she and the Registrant were no longer in a relationship, the Registrant had been invited to the leaving party, as well as the other woman about whom they had been having arguments. During a tea or lunch break, Person A had asked the Registrant if he was going to the party and told him that she would not go if he was going. Person A said that the Registrant had taken this badly and had signed off work and gone home early. She explained that she had a feeling that he would come back to find her and so she had taken a different route home to her flat. However, there was a point where this route crossed over the route she would normally have taken, and the Registrant had seen her. The Panel has concluded that the Registrant was looking out for Person A and had not come across her by chance.

69. The Panel has considered each of the sub-particulars of Particular 3 separately as it is required to do in what is alleged to be assault on Person A. Where it has found one of the sub-particulars proved, this had provided support for Person A’s evidence on the remaining sub-particulars.

70. The Panel has found support for Person A’s evidence in relation to Particular 3 in a letter written to her by the Registrant dated 23 August 2019. Person A told the Panel that she did not think there had been any contact between herself and the Registrant from 9 August and the date of the letter. She had been off work for a week after 9 August 2019. In the letter the Registrant states, “First off, what happened when we last saw one another, I can explain my side of feeling emotionally manipulated, but it doesn’t justify what happened and never will. I am sorry, and I don’t expect forgiveness.” The Panel is satisfied that the Registrant was referring to his meeting with Person A on 9 August 2019 and that it is proper to draw the inference that he is admitting that he did not behave well on that occasion. The Panel would not expect the Registrant to use the word “assault” in such a letter or to list in detail what he had done to Person A.

Particular 3a was found proved

71. Person A described how the Registrant had grabbed her arm. She said this had been “very hard” and he had wanted to talk but she had carried on walking. Person A said that a passer-by had asked if she was ok, and they had both said “yes”. Person A said that the Registrant kept asking her to go to his flat to talk but that she had told him that he could talk as they were walking. Person A said that the Registrant had then put his hands on each side of her waist, and she had told him that he could talk but not touch her. In her letter to the HCPC made in July 2020, Person A described the Registrant as grabbing her waist on a couple of occasions as he tried to drag her towards his car which she said was parked in a street nearby.

72. The Panel accepts Person A’s evidence as to what happened. It has considered whether or not she could be mistaken, and that the Registrant accidently touched her around the waist and so did not intend to assault her. The Panel is satisfied that it is more likely than not that the Registrant grabbed Person A’s waist, that this was an intentional act by him and that it amounts to an assault upon her. Accordingly, the Panel finds Particular 3(a) proved.

Particular 3b was found proved

73. The Panel accepts Person A’s evidence that after the Registrant had grabbed her waist on a few occasions, she had said she would call the police. Person A said when she had pulled herself away from the Registrant’s grip, he had pushed her to the ground.

74. The Panel has considered whether or not Person A could be mistaken, and that the Registrant accidently pushed her to the ground and so did not intend to assault her. The Panel is satisfied that it is more likely than not that the Registrant pushed Person A to the ground, that this was an intentional act by him and that it amounts to an assault upon her. Accordingly, the Panel finds Particular 3b proved.

Particular 3c was found proved

75. The Panel accepts Person A’s evidence that although this was in a residential area and it was still daytime, there was no one around. However, when she had seen a passing car, she had started to scream. The Registrant had then grabbed her face covering it with his hands to stop her screaming. Person A said that the car had stopped, and the driver had said that he was about to call the police. Person A said that she had told the driver that it was only her “crazy ex” and that she was fine. Person A described how she later found a bruise on her arm very near to where she had been wearing a metal bangle that day. She said she thought this had been caused when the Registrant had tried to drag her towards his car.

76. The Panel accepts Person A’s evidence on this matter. It has considered whether or not she could be mistaken, and that the Registrant accidently grabbed her face and so did not intend to assault her. The Panel is satisfied that it is more likely than not that the Registrant grabbed Person A’s face, that this was an intentional act by him and that it amounts to an assault upon her. Accordingly, the Panel finds Particular 3c proved.

Particular 3d was found proved

77. The Panel accepts Person A’s evidence that, having grabbed her face, he had then covered her mouth to stop her from screaming. Person A described how at that time she had braces in her mouth, and that she had sustained a cut inside her mouth as a result of the Registrant’s actions.

78. The Panel accepts this evidence and notes that Person A still has braces in her mouth. It has considered whether or not she could be mistaken, and that the Registrant accidently covered her mouth and so did not intend to assault her. The Panel is satisfied that it is more likely than not that the Registrant covered her mouth, that this was an intentional act by him and that it amounts to an assault upon her. Accordingly, the Panel finds Particular 3d proved.

Particular 4 was found proved

79. The Panel has read and considered a number of text messages sent by the Registrant to Person A between 20 June 2019 and 21 August 2019. If each separate text is counted there are approximately 53 such texts. However, many are sent on the same date and appear to be part of the same conversation. The Panel takes the view that the seriousness of the allegation in Particular 4 is that the Registrant sent a number of text messages during the relevant period to Person A which he knew or ought to have known were unwelcome.

80. The Panel accepts Person A’s evidence that she did not welcome the texts sent by the Registrant in that period. Within the exhibited texts are a number which make it clear that not only is this the case, but that the Registrant was aware of it.

81. On 20 June 2019 at 20:54 the Registrant writes “I’m aware that we shouldn’t be talking…I accept and respect that we can’t talk as it is the right thing to do…”. Despite this, the Registrant sent three texts on 22 June 2019, two on 24 June 2019, and five on 25 June 2019.

82. Person A told the Panel that she had deleted the Registrant from contacting her on social media. In one of his texts on 25 June 2019, the Registrant stated “ok i noticed you deleted me. I wasn’t expecting that. Please can we talk”. The Panel considers that this text supports Person A’s evidence that she had deleted him from social media. It also considers that it is proper to draw the inference from the text message that the Registrant understood that Person A did not welcome contact from him.

83. Person A responded by text to the Registrant on 26 June 2019 and stated “Don’t call me cos I don’t want to hear your voice. It reminds me of that unfortunate night. Don’t talk to me unless it’s unavoidable (work). The guidance I’m giving you is to leave me alone”. The Panel is satisfied that it is clear from Person A’s text message that she does not welcome contact from him unless it is unavoidable and work-related.

84. The Panel notes that in response, the Registrant sent three more texts on the same day (26 June 2019), to which Person A responded by text stating “Which part of don’t call me and leave me alone don’t you understand”. The Registrant sent a further text message which prompted Person A to send three further texts which in effect confirmed that there was nothing further to be said between them. This then resulted in twelve more texts from the Registrant to Person A in which he was asking to talk to her to explain about the events of 19 June 2019 to which Person A responded by saying she was not going to talk to him about it. Person A’s last text on that date told the Registrant that “I’m blocking you. I don’t want to hear from you”. The Registrant then sent two further texts to her. Person A made it clear that she would not talk to him.

85. The Panel is satisfied that by 25 June 2019, the Registrant could have been in no doubt that Person A did not welcome contact from him. Despite this, the Registrant sent further texts to Person A on 28 June and 2 July 2019. On 9 July 2019, the Registrant sent seven further text messages to Person A in which he sought to explain the events of 19 June 2019 and comment on their relationship. The content of these texts evidences, in the Panel’s view, the Registrant’s manipulative nature in his relationship with Person A.

86. The next text messages from the Registrant to Person A were from a different mobile number. The Panel has seen the name at the head of texts from the Registrant change on 22 July 2019 from “Rory Agate” to “RA” on 21 August 2019. There do not appear to have been any text messages sent by the Registrant to Person A after 22 July 2019 until 21 August 2019. The Panel accepts Person A’s evidence that she had blocked his number but that he had then contacted her on a new number. The Panel is satisfied from the content of the text messages that “RA” is the Registrant contacting Person A. Person A’s evidence that “RA” is the Registrant is supported by a letter written to her by the Registrant dated 23 August 2019 in which he refers to having a new number and Facebook account. The Panel also notes that in that letter the Registrant stated, “I am not out to harass or irritate you anymore”. The Panel is of the view that this confirms that the Registrant was aware that Person A did not welcome contact from him.

87. Having considered all the text messages in the case papers, the Panel has concluded that a significant number of them were sent by the Registrant when he knew that Person A did not welcome such contact with him. The Panel does not consider that it is necessary to give a precise number as Particular 4 refers to an approximate number. Accordingly, the Panel finds Particular 4 proved.

Decision on grounds

88. In reaching its decision on the statutory ground of misconduct, the Panel has taken account of the submissions from Ms O’Connor. The Panel has received and accepted legal advice.

Submissions

89. Ms O’Connor submitted that the Panel’s findings of fact indicated that the Registrant’s conduct in his personal life had fallen far below the standards required of a professional practitioner. She submitted that fellow professionals would find the Registrant’s conduct, particularly in relation to Particular 1, to have been deplorable and disgraceful.

Decision

90. The Panel is satisfied that the Registrant’s conduct in relation to each of the Particulars 1 to 4 fell far below the standards to be expected of a Biomedical Scientist and amounts to misconduct.

91. In relation to Particular 1, the Panel has no doubt that in engaging in non-consensual penetrative sexual activity with Person A, the Registrant’s conduct would be considered by fellow practitioners to be deplorable, immoral, outrageous, and disgraceful. The Panel has no hesitation in finding that this misconduct falls at the higher end of the scale, and that it is a very serious departure from the standards expected of a Biomedical Scientist.

92. In relation to Particular 2, the Panel also has no doubt that fellow practitioners would regard the Registrant’s assault of Person A by pinning her to a wall in the context of the Registrant not appearing to accept that Person A wanted to end their relationship, to be disgraceful conduct. The Panel has decided that this misconduct is a serious departure from the standards expected of a Biomedical Scientist.

93. In relation to Particular 3, the Panel takes the view that in the context of the manipulative nature of the Registrant’s relationship with Person A fellow practitioners would find his conduct in waylaying Person A in the street and assaulting her whilst attempting to drag her into his car, to be deplorable and disgraceful conduct. The Panel has no hesitation in concluding that this misconduct is a very serious departure from the standards expected of a Biomedical Scientist.

94. In relation to Particular 4, the Panel is satisfied that the Registrant’s conduct in continuing to send messages to Person A despite knowing that she did not welcome such contact, would be considered to be disgraceful by fellow practitioners. The Panel considers that in the context of the manipulative relationship, this misconduct, while not as serious as that in Particular 1, is nevertheless a serious departure from the standards expected of a Biomedical Scientist.

95. The Panel has considered the impact of the Registrant’s conduct on Person A in reaching its decision. Person A told the Panel that after the events of 19 June 2019, she still had to go to work and see the Registrant on most days. She was traumatised by seeing his face all the time. Person A explained to the Panel that she had tried to push through, go to work and face everything as she considered herself to be a strong person. She described the events of 19 June 2019 as a “horrifying and emotional experience”.

96. After the assault on 9 August 2019, Person A was on sick leave for a week and said she was scared to leave her house. Person A told the Panel that even to this day, she sometimes worries that she is going to see the Registrant somewhere on the road by the Hospital. When she sees a car similar to his, it brings back memories and she thinks that he has come back to look for her.

97. Person A told the Panel that she had been referred to Occupational Health and that she had spoken to Yellow Door (an organisation involved in domestic and sexual abuse) for a few months. Person A had been signed off work from 10 February 2020 (shortly after her interview with police on 7 February 2020) to 8 May 2020.

98. Person A also told the Panel that she had suffered financially as a result of the Registrant’s misconduct. Towards the end of January 2020, both she and the Registrant were moved to work in different departments where she had different responsibilities and employee benefits. The nature of her work changed as a result, and she was obliged to work with chemicals which made her feel nauseous. She was also deprived of the option of working unsocial hours and so her income was reduced. Person A said that she believed her salary had been reduced by £300-£400 per month.

99. As a result of these changes, Person A had taken the matter up with both her Union Representative and with the Trust management. This had led to her being reinstated in her former role, but the Trust also reinstated the Registrant to his former role. It was at this time that both Person A and the Registrant signed behavioural contracts as they would potentially have more contact with each other whilst at work.

100. In reaching its decision on misconduct the Panel has also had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standard is engaged and has been breached:

Standard 9. Be honest and trustworthy

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.

101. The Panel considers that the public expects Biomedical Scientists and other health professionals to be trustworthy in all aspects of their personal and professional lives. The Registrant did not make sure that his conduct justified the public’s trust and confidence in him or in the Biomedical profession when he engaged in non-consensual penetrative sexual activity with Person A, or when he assaulted her, or when he continued to send her messages that he knew were not welcome (Standard 9.1).

102. The Panel has also had in mind Standard 3.1 of the Standards of Proficiency for Biomedical Scientists (2014) which it considers is engaged and has been breached:

Standard 3 be able to maintain fitness to practise

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

103. The Panel has concluded that by acting as he did towards Person A as set out and found proved in Particulars 1 to 4 of the Allegation, the Registrant did not understand the need to maintain high standards in his personal conduct. His personal conduct fell far below the high standards expected of practitioners by his profession.

104. Accordingly, the Panel finds misconduct in this case.

Decision on Impairment

105. In reaching its decision on impairment, the Panel has had regard to the HCPTS Practice Notes “Fitness to Practise Impairment”. The Panel has taken account of the submissions of Ms O’Connor. It has received and accepted legal advice. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

Submissions

106. Ms O’Connor submitted that the Registrant’s fitness to practise is impaired on both the personal and public components.

107. Ms O’Connor submitted on the personal component, that while the misconduct in this case was very serious, and it would be very difficult to remedy it, it was not impossible to do so. She submitted that there was no evidence at all that the Registrant has taken any steps to remedy his misconduct. She also submitted that the Registrant has not demonstrated insight or genuine remorse into his misconduct. She submitted that while he denied the allegations to the police, that denial would not have prevented him providing evidence of insight and remorse to the Panel. However, his non-attendance at this hearing means that he has not done so. Ms O’ Connor referred to the earlier text messages which the Registrant sent to Person A after 19 June 2019 in which he expressed remorse and submitted that this had not prevented him from assaulting Person A on 9 August 2019 or stopped him sending text messages when he knew that she did not welcome them. Ms O’Connor submitted that any insight or remorse shown by the Registrant in the text messages and letters, should be viewed in the light of the manipulative nature of his relationship with Person A. Ms O’Connor submitted that there was a high risk of repetition of the misconduct given the lack of insight, genuine remorse, and any evidence to show that the Registrant has undertaken any steps to remedy it.

108. On the public component, Ms O’Connor submitted that public confidence in the Biomedical Science profession and its regulatory process would be significantly undermined if there was no finding of impairment in this case. She also submitted that if there was no finding of impairment, it would send out a message that conduct such as the Registrant’s, need not have regulatory consequences. Ms O’Connor submitted that a reasonable and informed member of the public would be shocked if there was no finding of impairment having regard to the findings of fact in this case.

Decision

Personal component

109. The Panel has considered the personal component. It is satisfied that the misconduct in this case while very serious, is capable of being remedied albeit that this might be difficult. A panel would need to see significant steps taken by a registrant before it could find conduct such as this remedied. The Panel has seen no evidence that the Registrant has taken any steps to remedy his misconduct.

110. The Panel takes the view that the Registrant has only very limited insight into his behaviour and the impact it has had not only on Person A but also on his profession. There is no evidence that the Registrant has recognised that by his actions he has damaged public confidence in his profession and brought it into disrepute. The Panel also considers that there is very limited evidence that the Registrant is genuinely remorseful for the way he behaved towards Person A. The Panel considers that the only indication that the Registrant has any insight or genuine remorse comes from the text messages and letters he sent to Person A. The Panel considers that taken as a whole these messages do not reveal that the Registrant has any real understanding of the impact of his behaviour on Person A, or any genuine regret for his actions. The Panel is concerned that the Registrant’s expressions of regret may be part of the manipulative nature of his relationship with Person A and an attempt by him to maintain contact with her. In any event, any insight and remorse the Registrant showed in the immediate aftermath of his behaviour on 19 June 2019, was negated by his assault on Person A on 9 August 2019 and by his regular and unwelcomed messages to her.

111. The Panel has considered the likelihood that the Registrant will repeat his misconduct. It is satisfied that because of the Registrant’s very limited insight, lack of genuine remorse, and because there is no evidence that he has taken any steps to remedy his misconduct, the risk of repetition is very high in this case.

112. The Panel therefore finds that the Registrant’s fitness to practise is impaired on the personal component.

Public component

113. In relation to the public component, the Panel has considered carefully whether given the nature, circumstances, and gravity of the misconduct, public confidence in the Biomedical Science profession and in its regulatory body would be significantly undermined if there was no finding of impairment in this case. The Panel has also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case.

114. The Panel has concluded that a reasonable and well-informed member of the public would be very shocked if there was no finding of impairment where those facts showed that the Registrant’s conduct involved engaging in non-consensual penetrative sexual activity with a partner who had told him their relationship was over, assaulting her on two separate occasions, and continuing to send her messages when he knew that they were not welcome, and where the risk of repetition was considered to be very high. The Panel is satisfied that public confidence in the profession and in its regulator would be significantly undermined if there was no finding of impairment in this case. The Panel is also satisfied that it would be failing in its duty to uphold and declare proper standards of conduct and behaviour in the Biomedical Science profession if it did not find that the Registrant’s fitness to practise is impaired. It agrees with Ms O’Connor’s submission that if there was no finding of impairment, it would send out the wrong message, namely that misconduct of this nature does not have any regulatory consequences.

115. The Panel has no doubt that the Registrant’s conduct in engaging in non-consensual penetrative sexual activity with Person A, assaulting her on two separate occasions and continuing to send her messages when he knew that they were not welcome, can only bring the Biomedical Science profession into disrepute. The public is entitled to rely on registered professionals to conduct themselves appropriately in both their professional and personal lives. When they do not, this inevitably brings the profession into disrepute.

116. The Panel is also satisfied that in acting as he did, the Registrant breached a fundamental tenet of his profession, namely that a registered professional must make sure that their personal and professional behaviour justifies the public’s trust and confidence in them and their profession.

117. The Panel takes the view that unless and until the Registrant demonstrates that he has remedied his misconduct, there is a very high risk that he will in future bring his profession into disrepute and breach a fundamental tenet of that profession.

118. The Panel is satisfied that the Registrant’s fitness to practise is impaired on the public component.

119. Accordingly, the Panel therefore finds, on both the personal and public component, that the Registrant’s fitness to practise is impaired and that the Allegation is well founded.

Decision on Sanction

120. In considering the appropriate and proportionate sanction the Panel was referred to, and has taken account of, the HCPC’s Sanctions Policy. The Panel has received and accepted legal advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect the public, to maintain confidence in the Biomedical Science profession and to uphold its standards of conduct and behaviour. The Panel has also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.

Submissions

121. Ms O’Connor set out the relevant principles regarding the imposition of a sanction but, as is the HCPC’s usual approach at the sanction stage, did not advance any particular sanction.

Decision

122. The Panel has considered mitigating and aggravating factors. The Panel first looked at the mitigating factors. The only mitigating factor is that the Registrant has no previous findings of impairment.

123. The Panel has considered whether there was anything in the documents regarding the Registrant’s mental health at the relevant time (June 2019 to August 2019) which might provide any mitigation in this case. The Panel notes that there is nothing to suggest that his mental health condition at that time caused him to act as set out in the Panel’s findings. The Panel has therefore concluded, on the information before it, that it cannot take the Registrant’s health condition into account as mitigation.

124. The Panel also notes that it has not been provided with any testimonials by the Registrant.

125. The Panel considers the following to be aggravating factors:

- the significant emotional ongoing harm caused to Person A;
- the Registrant has only the most limited level of insight into his misconduct and its impact on Person A, his profession and the wider public interest, and he has failed to express genuine remorse;
- the Registrant has not taken meaningful steps towards remedying his misconduct;
- the repetition of concerns: two assaults, and the letter he sent to Person A dated 23 August 2019 when he knew contact was unwelcome.

126. The Panel has considered the available sanctions in ascending order of seriousness. It has decided that to take no action or impose a Caution Order in this case would not be appropriate or proportionate given that the misconduct was not isolated or limited, and nor could it be described as relatively minor in nature. The Panel is not able to conclude that there is a low risk of repetition because the Registrant has not yet shown more than very limited insight into the causes of his misconduct or the impact of it on Person A, his profession and the wider public. The Panel is satisfied that to ensure public confidence in the profession is not undermined, it must consider a more severe sanction.

127. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy which states:

“A conditions of practice order is likely to be appropriate in cases where:

· the registrant has insight;
· the failure or deficiency is capable of being remedied;
· there are no persistent or general failures which would prevent the registrant from remediating;
· appropriate, proportionate, realistic and verifiable conditions can be formulated;
· the panel is confident the registrant will comply with the conditions;
· a reviewing panel will be able to determine whether or not those conditions have or are being met;
· the registrant does not pose a risk of harm by being in restricted practice”.

128. The Panel has also had in mind paragraphs 107 and 108, which state:

107 “Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious and persistent failings”.

108 “Conditions are also less likely to be appropriate in more serious cases, for example those involving:….. sexual misconduct …and violence”.

129. The Panel has considered paragraph 109 which states in relation to serious cases and the imposition of a Conditions of Practice Order:

“However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.”

130. The Panel has found that the misconduct in this case is capable of being remedied even though it acknowledges that this will be difficult. It does not consider that the Registrant’s conduct was “minor” or “unlikely to be repeated”. The Panel considers that the Registrant has shown only very limited insight into his misconduct. There remains therefore, a real risk of repetition of the misconduct. The Panel notes that the HCPC has confirmed that there have been no further regulatory issues with the Registrant since his referral.

131. The Panel has also concluded that it is not possible to devise appropriate, proportionate, realistic, and verifiable conditions which would address the serious concerns regarding the Registrant’s behaviour in this case. The Registrant is not engaging with the regulatory process and so the Panel has no confidence that he would comply with a Conditions of Practice Order. The Panel also takes the view that given the nature and gravity of the misconduct, the imposition of a Conditions of Practice Order would undermine public confidence in the Biomedical Science profession and in the regulatory process.

132. The Panel next considered whether to impose a Suspension Order. It has had in mind the following guidance from the HCPC’s Sanctions Policy:

“121 A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

· the concerns represent a serious breach of the Standards of conduct, performance and ethics;
· the registrant has insight;
· the issues are unlikely to be repeated;
· there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

133. The Panel has considered very carefully whether the Registrant’s very limited insight into his misconduct and the level of the risk of repetition rules this sanction out. The Panel has already expressed its view that the concerns in this case are potentially capable of being remedied. The Panel has considered whether there is evidence that this Registrant is capable of remedying his misconduct. The Panel has reached the conclusion that whilst the misconduct may be capable of being remedied, the Registrant may have serious behavioural and attitudinal issues and it has concluded it has seen no evidence to suggest that he is capable of remedying it. In these circumstances, the Panel has concluded that a Suspension Order is not the appropriate and proportionate sanction in this case.

134. The Panel has also concluded that a Suspension Order even for a period of 12 months would not be appropriate or proportionate to maintain public confidence in the Biomedical Science profession or its regulatory body. Such an Order would not send out an appropriate message to the profession about this type of misconduct. The Panel considers that a reasonable and informed member of the public would expect a more severe sanction in circumstances where the Registrant engaged in non-consensual penetrative sexual activity with Person A, assaulted her on two occasions, and continued to send her messages that he knew were not welcome.

135. The Panel has therefore concluded that the only appropriate and proportionate sanction is an order striking the Registrant off the Register. The Panel has considered the Sanctions Policy where, in paragraphs 130, it is stated that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving” e.g., for sexual misconduct and/or violence. In this case, the Panel considers the sexual misconduct to have been at the higher end of seriousness. It was a deliberate act by the Registrant who knew that Person A did not consent. The Panel also considers that the assaults on Person A were serious. Although no serious physical injury was caused to Person A, she did suffer, and continues to suffer, emotionally.

136. The Panel has also had in mind paragraph 131 which states:

“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 profession. In particular where the registrant:

· lacks insight
· continues to repeat the misconduct
· is unwilling to resolve matters.

137. The Panel is satisfied, based on the Registrant’s very limited insight and the nature and gravity of the allegation, involving as it does serious sexual misconduct and violence, that to ensure the public’s confidence in the Biomedical Science profession and in its regulatory process, and in order to uphold proper standards of conduct in the profession, it is appropriate and proportionate to order that the Registrant’s name be struck off the register.

138. In light of the Panel’s decision on sanction and following the guidance set out in ‘HCPC approach to dual allegations guidance’ (June 2021) the outstanding health allegation now falls away.

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

Interim Order

Application to proceed in absence

1.Ms O’Connor applied for the hearing of an application for an interim order to proceed in the Registrant’s absence. Ms O’Connor reminded the Panel that the Notice of Hearing letter emailed to the Registrant at his registered email address on 30 September 2022, informed him that in the event a sanction was imposed which removes or restricts his right to practice, the HCPC would apply for an Interim Order. Ms O’Connor submitted that the Registrant had voluntarily waived his right to attend and relied on her submissions made at the outset of the proceedings.

2. The Panel has decided that it is in the interests of justice to proceed in the Registrant’s absence for the reasons set out in its decision. It is satisfied that the Registrant was given proper notice that an application for an Interim Order would be made in certain circumstances. Those circumstances have arisen. The Panel has concluded that the Registrant has voluntarily waived his right to attend.

Application for an Interim Order

3. Ms O’Connor applied for an Interim Suspension Order to be imposed pending the Striking Off Order coming into effect or the outcome of any appeal in this case, on grounds that it was necessary for the protection of the public and otherwise in the public interest. She referred the Panel to the HCPTS Practice Note “Interim orders”.

Decision

4. The Panel has received and accepted legal advice. It has referred to the HCPTS Practice Note “Interim orders”. The Panel has decided to make an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001.

5. The Panel is satisfied that because of the serious nature of the misconduct, and its findings in relation to the Registrant’s lack of insight and the risk of repetition that an Interim Suspension Order is necessary for the protection of members of the public. The Panel is also satisfied that it is otherwise in the public interest as it would seriously damage public confidence in the Biomedical Science profession and in this regulatory process if the Registrant was permitted to be in unrestricted practice before the Order comes into effect or any appeal is concluded. The Panel considers that a reasonable and well-informed member of the public would be very concerned if a registrant whose fitness to practise is impaired and who has been sanctioned by the imposition of a Strike off order was permitted to practise pending the outcome of any appeal.

6. 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 Rory Agate

Date	Panel	Hearing type	Outcomes / Status
05/12/2022	Conduct and Competence Committee	Final Hearing	Struck off