M Graham K Henthorne

Preliminary Matters

Service

1. The certificate of the Registrant’s registration shows an email address for the Registrant. The Panel is satisfied that on 12 April 2022, a notice of hearing was sent to the registered email address of the Registrant.

2. The notice of hearing informed the Registrant that this review of the current Suspension Order would take place today by video conference and email confirmation that the email to the Registrant had been delivered was received. There has been a response from the Registrant who stated by email dated 1 May 2022 that he wishes to be removed from the HCPC Register.

3. The Panel was satisfied that in those circumstances good service of the Notice of Hearing had taken place for the purposes of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended by the HCPC (Coronavirus)(Amendment) Rules Order in Council 2021 (‘the 2003 Rules’).

Proceeding in the absence of the Registrant

4. On behalf of the HCPC, Mr D’Alton asked the Panel to proceed in the absence of the Registrant under Rule 11 of the Procedure Rules and taking into account the HCPTS Practice Note on Proceeding in the Absence of the Registrant. Mr D’Alton submitted that it was in the public interest for this statutory review hearing to proceed. The Registrant was voluntarily absent today.

5. The Panel accepted the advice of the Legal Assessor.

6. The Panel has considered the HCPTS Practice Note: Proceeding in the Absence of the Registrant. It noted that there is a burden on a Registrant to engage with their regulator and he is aware of the hearing today. There is a statutory requirement for this Suspension Order to be reviewed before it expires and for panels to conduct fitness to practise proceedings expeditiously. In making its decision the Panel had regard to all the circumstances of the case and took into account the need to balance fairness to the registrant with fairness to the HCPC and the interests of the public.

7. The Panel concluded that the Registrant has voluntarily chosen not to attend today’s hearing because he has sent an email to the HCPC on 1 May 2022 stating that he does not wish to remain on the HCPC Register and has retired. In light of that statement, the Panel concluded that no purpose would be achieved by deferring proceedings today by means of an adjournment, as it is not likely that the Registrant would participate in these proceedings on a future date, indeed, he indicated as much in his most recent email of 1 May 2022 (“Please do all of us a favour and put an end to the waste of time and money that another pointless hearing would be”). Balancing the public interest and the Registrant’s interest, the Panel has concluded that the fair and appropriate step is to continue the hearing in the absence of the Registrant.

Background

8. This is a Review Hearing under Article 30(1) of the Health Professions Order 2001, which requires the review of a substantive order prior to its expiry. The Panel has noted the background, as stated by the original panel.

9. The Registrant is a Biomedical Scientist who was employed as a Band 7 Section Manager within the Laboratory Medicine department of the Bolton NHS Foundation Trust ("the Trust").

10. The Registrant had responsibility around laboratory diagnostic testing for patient specimens. He also had management responsibilities and worked alongside two other Section Managers, one of whom was Colleague B.

11. The Section Manager position involved working in three different roles rotating between the three Section Managers. The roles were duty officer, which involved acting as the most senior member of staff in the laboratory, carrying out “bench” work and engaging in managerial duties.

12. The Registrant worked with Colleague A who was a Band 4 Associate Practitioner at the Trust. She worked with the Registrant on most days and on certain days the Registrant was her direct line manager.

13. In 2017 complaints were raised by Colleague B against the Registrant regarding his behaviour towards other colleagues. A Trust investigation was instigated and further issues regarding the Registrant’s behaviour towards Colleague A and Colleague B were raised during the investigation. At the conclusion of the investigation, the Registrant was suspended from his duties pending disciplinary proceedings. At the conclusion of those proceedings, the Registrant was dismissed from his post and these matters were reported to the HCPC.

14. The Registrant admitted Particulars 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(b)(i), 1(b)(ii) and 1(c)(i). He also admitted that his actions in relation to those Particulars were inappropriate. He denied that any of his actions were sexually motivated. Therefore, the only factual particular to be determined was whether the Registrant was sexually motivated as alleged by Particular 2.

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

16. The panel considered the aggravating factors to be the following: (a) these matters were not isolated, occurred over a period of time and were directed at a number of colleagues; (b) the Registrant’s conduct caused psychological harm to Colleagues A and B; and (c) the Registrant was in a managerial role and his misconduct was an abuse of his professional position.

17. The panel considered the following to be mitigating factors: (a) there is no evidence of patient harm being caused; (b) the Registrant is of previous good character; (c) the Registrant has engaged with the HCPC process and made early admissions to the facts and accepted that his actions were so serious that they amounted to misconduct; (d) the Registrant had a long unblemished career up until these matters; (e) there has been no repetition of the misconduct since it occurred; (f) the Registrant has demonstrated remorse for his actions and their impact on colleagues, and has apologised; (g) the Registrant has taken steps to remediate his failings; (h) there are positive testimonials from professional colleagues who are familiar with the Registrant and who are aware of the allegation faced by the Registrant in these proceedings. The panel noted a future reviewing panel may be assisted by evidence of further reflection and remediation.

18. There was a review hearing on 4 November 2021 which proceeded in the absence of the Registrant. He had notified the HCPC in advance that he did not wish to participate.

19. The Panel at that hearing extended the Suspension Order by 6 months and suggested that a future reviewing panel may be assisted by cogent and complete evidence of further insight developed by the Registrant and further remediate steps undertaken. It also made the Registrant aware that if such actions are not undertaken a future panel might consider imposing a Striking-off Order.

Submissions on behalf of the HCPC

20. Mr D’Alton outlined the background of the case and updated the Panel as to the further contact that had been received from the Registrant since the previous decision.

21. The HCPC’s position today was that the Registrant remained impaired on both the personal and public component as he had failed to discharge the persuasive burden upon him to demonstrate that he had remediated the concerns.

22. Mr D’Alton took the Panel to the correspondence that has been received from the Registrant since the original determination. He made the point that the Registrant has failed to address the central issue of his impairment namely the sexual motivation and focused solely on the impact that this fitness to practise process has had on him. Mr D’Alton submitted that in focusing on these issues and his failing to show any awareness of the impact of his actions on his colleagues there remains the risk of repetition. Mr D'Alton also drew the Panel’s attention to the fact that the Registrant had retired and was seeking voluntary removal from the register.

23. Mr D’Alton submitted that there is an obligation upon the Registrant to address the concerns raised in the original finding of impairment, but he has failed to do so, and is either unable or unwilling to demonstrate remediation and insight. In light of the Registrant’s decision to disengage from the fitness to practise process and failure to use the opportunities afforded to him to remediate his conduct the HCPC submitted that a Striking-Off Order is now the appropriate sanction. Mr D’Alton made the point that a further suspension is unlikely to be beneficial as any future reviewing panel would most probably be in the same position as the Panel today as regards the lack of further reflection, insight or remediation. Mr D’Alton also referred to the Panel to the case of Opkara v NMC [2016] EWHC 1058 (QB) which confirms that a Panel can consider the failure to address any requirement to remediate and the lack of acknowledgement of fault as part of a decision to strike off.

Legal Advice

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

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

26. The review process is not a mechanism for appealing against or ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. The purpose of review is to consider if the Registrant’s fitness to practise remains impaired; and, if so, whether the existing order or another order needs to be in place to protect the public and to address the public interest. The key issue which needs to be addressed is what, if anything, has changed since the current order was made.

27. The factors to be taken into account include: the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision; the degree of insight shown and whether this has changed; the steps which the Registrant has taken to maintain or improve his professional knowledge and skills; whether any other fitness to practise issues have arisen; whether the Registrant has complied with the existing Order.

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

Decision

29. The Panel accepted the advice of the Legal Assessor.

30. The Panel noted that in the previous decision impairment was found on both the personal and public component. The Panel was concerned today at the lack of any meaningful engagement with the recommendations that had been made by the previous Panels.

31. The Panel noted that both the original panel and the reviewing panel had considered that it was possible for the Registrant to remediate the regulatory concerns. However, the Panel found that the Registrant had decided not to use the opportunity he had been given by the previous panels to make any positive steps towards developing insight and remediating his misconduct. In particular, the Panel determined that the Registrant continued to show no insight into the extent to which the serious nature of his behaviour had impacted on his colleagues. The Panel determined that he had not shown any attempt to view his actions from the perspectives of others.

32. The Panel found that the Registrant had demonstrated through his communications with the HCPC that he disagrees with the original findings and continues to deny that his conduct is sexually motivated. In fact, the Panel was concerned that since the original hearing the Registrant had become entrenched in his views and shown an unwillingness to engage with the regulatory process. The Panel considered that these entrenched attitudinal behaviours created a real risk of repetition of his conduct and therefore risk to the public. The Panel concluded that there is no evidence that there has been any change in circumstance such that the risk of repetition identified by the previous panels had been reduced. Therefore, in the circumstances the Panel determined that the Registrant’s fitness to practise remains impaired on the personal component.

33. The Panel considered the three elements of the public component. The first element of the public component - the need to protect service users which overlaps with the personal component. It noted that a registrant who has insight and is unlikely to repeat past acts or omissions is unlikely to present an ongoing/ future risk to service users. The Panel noted that no further regulatory concerns had been raised. However, the Panel took into account its findings about the Registrant’s failure to meaningfully engage with the regulatory process or take any remediate steps to address the previous panel’s finding of impairment. The Registrant has simply maintained his stance that he wishes to be removed from the HCPC Register.

34. The Panel has therefore reached the conclusion that the Registrant’s fitness to practise still remains impaired on the public component. That is because members of the public would be alarmed by the Registrant’s behaviour and would not have confidence in the profession or this regulatory process, if the Registrant were found not to be impaired in circumstances where he has shown no consideration of the impact on his victims and continues to deny that his conduct was sexually motivated.

35. In its professional judgment, the Panel finds it remains necessary to make a finding of impairment on both the personal and public components.

36. The Panel then went on to consider sanction and considered the options in ascending order of gravity in accordance with the HCPC Sanctions Policy.

37. The Registrant’s decision not to engage in the review process means that it is not appropriate or proportionate to take no further action, particularly in view of seriousness of the misconduct found. The Panel next went on to consider a Caution Order and considered this entirely inappropriate in light of the fact that full insight has not been developed and the matter was not minor nor isolated in nature. The Panel then considered a Conditions of Practice Order.

38. However, where there is no commitment from the Registrant to comply with conditions, it is not possible to identify workable and effective conditions. A Conditions of Practice Order is, therefore, not appropriate.

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

40. The Panel has considered this matter very carefully and in particular taken into account the failure of the Registrant to use the opportunities he has been given to develop further insight or demonstrate any remediation in respect of his misconduct. In fact, the Panel found that the Registrant was now showing a stubborn refusal to engage with the process and a total lack of insight. The Panel noted that the Registrant was seeking voluntary removal from the register but placed little weight on this in reaching its own conclusion. The Panel agreed with Mr D’Alton’s submission that a further suspension would serve very little purpose as there was evidence today such that the Panel concluded that the Registrant is unlikely to be able to resolve or remedy his failings.

41. The Panel was very mindful of the fact that a striking off order is a draconian sanction. However, due to the concerns that the Panel has identified, the finding that a further period of suspension is inappropriate, the Registrant’s continued unwillingness to address the concerns raised and continued lack of insight striking off is the only appropriate and proportionate sanction in the circumstances.

Order: The Registrar is directed to strike the name of Mr Graham K Henthorne from the register with immediate effect

No notes available

History of Hearings for M Graham K Henthorne