Ciaran Gaffney
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Allegation
As a registered Clinical Scientist (CS20377) your fitness to practise is impaired by reason of caution. In that:
- On 21 July 2021 you accepted a conditional caution for the following offence:
- Possess 79 prohibited images of a child. On 17/01/2019 at Warrington in the County of Cheshire you were in possession of 79 prohibited images of children contrary to sections 62(1) and 66(2) of the Coroners and Justice Act 2009.
- By reason of your caution your fitness to practise is impaired.
Finding
Preliminary Matters
Service
1. The Panel was satisfied that the Registrant was notified of the date and time of the hearing via an email sent to him on 13 October 2022 (the “Notice of Hearing”). Accordingly, the HCPC had discharged its duty to serve documentation on the Registrant in accordance with the Health Professions Order 2001 (“the Order”) and the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).
Proceeding in the Absence of the Registrant
2. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant. She outlined the chronology of the matter, confirming that the Registrant was notified via email and letter on 13 October 2022 of the date, time and venue of the hearing. She referred the Panel to the email communications received from the Registrant in relation to the scheduling of the hearing and his confirmation, by an email dated 27 September 2022, that neither he nor his representative would be in attendance at the hearing. The Presenting Officer invited the Panel to exercise its discretion to proceed with the case in the absence of the Registrant, pointing out that there was no suggestion that, if the case was adjourned, he would attend a future rearranged date. The Presenting Officer reminded the Panel of the expectation that regulatory matters would be dealt with expeditiously and submitted that the Registrant had voluntarily absented himself from the proceedings.
3. The Panel received advice from the Legal Assessor, which it applied, and noted the provisions of the HCPTS Practice Note in respect of Proceeding in Absence. There had been no request for an adjournment received and the Registrant confirmed that he had the benefit of legal advice in relation to the proceedings, but that he did not wish to go to the expense of asking his representative to attend the hearing, or attending himself. In fact, his representative stated, in email correspondence sent to the HCPC on 22 November 2022, that:
“We once again wish to assure the panel that no discourtesy is intended by Mr Gaffney’s non-attendance at the hearing and representation, this was merely in an effort to save time and costs. This matter has been extremely difficult for both Mr Gaffney and his family and he very much would wish to assure the panel and apologise to all for his actions.”
4. The Panel was satisfied that it was appropriate for it to exercise its discretion to hear the matter in the absence of the Registrant. He was clearly aware of the hearing, the Panel already having found good service of the notice of hearing. He was aware that the matter could proceed in his absence, and in fact communicated directly that he expected the Panel to consider the matter in his absence, asking that his written reflective piece and correspondence from his legal representative be provided to the Panel for consideration. Any disadvantage to the Registrant of not being in attendance or represented at the hearing was mitigated by the fact that he had clearly sought and received independent legal advice in relation to the proceedings, and appeared to have made an informed decision not to attend.
5. There was no evidence to suggest that the Registrant would attend or even engage in the event that the matter was adjourned to an alternative date. The Panel considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant. It was satisfied that the Registrant had voluntarily absented himself from the proceedings without making representations.
Background
6. The Registrant is registered with the HCPC as a Clinical Scientist. At the material time, the Registrant was employed by the Clatterbridge Cancer Centre NHS foundation Trust (“the Trust”) as a Band 7 Clinical Scientist.
7. On 17 January 2019 the Registrant was arrested by Cheshire Constabulary (“the Police”) on suspicion of downloading indecent images of children from the internet. He was interviewed under caution and admitted searching for and accessing pornography on the internet. His electronic devices were seized and subjected to forensic examination by the Police.
8. The Registrant called in sick to work on 17 January 2019 due to personal issues. He did not inform the Trust or his regulator of his arrest. The Police informed the Trust of the arrest by a letter dated 18 January 2019, as a consequence of which the Registrant was suspended from his employment and the Trust referred the concern to the HCPC. The Trust commissioned an examination of the Registrant’s work electronic devices, which did not reveal any inappropriate activity.
9. On 6 April 2022 a Panel of the HCPC Investigating Committee determined that the Registrant had a case to answer in respect of the Allegation and referred the matter to a hearing.
10. On 21 July 2021 the Registrant was offered, and accepted, a Conditional Caution in respect of the offence of possessing 79 prohibited images of a child. He committed to engaging with “Stop It Now”. The Registrant’s employment with the Trust was terminated following a disciplinary hearing on 24 July 2019.
11. The HCPC have provided to the Panel a bundle of documents in relation to this matter. The Registrant has provided a reflective statement and a letter from his legal representative.
Decision on Facts and Grounds
12. The Panel listened carefully to the submissions made to it on behalf of the HCPC. It received advice from the Legal Assessor, which it applied, and had regard to the bundle of documents provided to it in advance of the hearing. It had regard to the practice notes to which it had been referred, particularly those entitled ‘Fitness to Practise Impairment’ and ‘Conviction and Caution Allegations’.
13. The Panel noted that it was obliged to approach the consideration of an Allegation sequentially, determining firstly whether the facts set out in the Allegation are proved, then whether those facts amount to the statutory ground set out in the Allegation and if so, whether the Registrant’s fitness to practise is impaired.
14. In determining whether an Allegation is “well founded” or “proved”, the Panel was required to decide firstly whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden. It was satisfied that the Conditional Caution signed by the Registrant on 21 July 2021, a copy of which was contained within the bundle of documents provided to it, was sufficient to establish particular 1 as proved on the balance of probability.
15. Having found the first particular proved, the Panel then considered whether it amounted to a statutory ground of impairment, as set out within the Order at article 22(1), noting this was entirely a matter for it to determine. The Panel recognised that it was required to provide a decision in sufficient detail for readers to understand why the facts do or do not amount to the ground alleged. It was aware that it could not ‘go behind’ the conviction.
16. The Panel was satisfied that the facts (i.e. the caution) had been proved against the Registrant and that this did amount to a statutory ground under the Order, namely a conviction. It was conscious that the Order specifically provides at Article 22(1)(a)(iii) that “a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence”. The Registrant made early admissions during his interview with the Police and had engaged with the disciplinary proceedings instigated by the Trust. The Panel found that the second particular was therefore also proved on the balance of probability. It then moved on to consider whether the Registrant’s fitness to practice is impaired.
Decision on Impairment
17. The Presenting Officer asked the Panel to have regard to the practice notes provided in respect of conviction and cautions when fulfilling its role of protecting the public and maintaining standards and confidence in the profession. She confirmed that the personal component of impairment related to the competence, behaviour and insight of the Registrant, while the public component related to the need for the regulator to protect service users, declare and uphold standards and maintain confidence in the profession. She referred the Panel to the leading case of Grant in respect of identifying factors relevant to impairment, particularly whether the Registrant could bring the profession into disrepute or had breached a fundamental tenet of the profession. She invited the Panel to particularly consider the public component of impairment, stating that accessing indecent images of children is a serious matter for a regulated professional.
18. The Panel noted that the bundle of documents provided to it shows that the Registrant admitted accessing pornography at his initial Police interview, including searching for “Lolita” and “Preteen” but denied being sexually attracted to children. The images have been categorised by the police as indecent images, none of which were within the three most serious categories of image (i.e. A – C). The Panel could not “go behind” the caution, but in any event noted that the Registrant accepted from the outset of the criminal investigation that he had accessed indecent images.
19. The Panel reminded itself that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past. It also recognised that the purpose of the regulatory proceedings is not to punish the Registrant and it had regard to the practice notes published by the HCPTS entitled “Finding Impairment” and “Conviction and Caution Allegations”. It noted that the Registrant was required to access the “Stop it Now” program in 2021. It had also been provided with an undated reflective statement on behalf of the Registrant, sent by his representative on 22 November 2022.
20. The Panel was mindful that a finding of impairment does not automatically follow a finding that the facts proved amounted to the statutory ground of conviction – it could properly conclude the offence was an isolated incident and that the chance of repetition in the future is remote. It also noted the guidance in the case of Cohen v General Medical Council [2008] that it must be highly relevant when determining impairment that the conduct leading to the allegation is easily remediable, has been remedied and is highly unlikely to be repeated as well as the “critically important public policy issues” identified in that case.
21. Within his undated reflective statement, the Registrant states that he coped with prolonged education, a move to a different country and a job he did not enjoy, by accessing online porn. He denies seeking porn relating to children and reported that, at the time he was struggling with poor health. He states that:
“I accept the consequences of my actions, and fully recognise how much hurt I have brought to so many people, and how wrong my actions were. I think about the impact of this every minute of every day and it still affects my [sic] health to this day. However, thanks to therapy, my own personal reflective work, having more open communication with my family, and more healthy coping mechanisms, I am now more able to manage my [sic] health.”
22. The Registrant does not explain the time period over which he used this coping strategy, nor does he provide any information as to his current state of health. The Panel considered that his conduct could be capable of remediation, but did not have sufficient evidence to find that his conduct had been remediated.
23. The Panel was concerned that there remained a risk of repetition of the behaviour given that it had no information as to the impact of the Stop It Now rehabilitation activity on the Registrant, nor any information as to how the Registrant would cope with other difficult situations or a downturn in his health in future. He denied searching for child pornography but this appeared at odds with the search terms he admitted using, and the names of the files he downloaded and viewed. The Registrant clearly expressed his personal views on what he had seen but showed little insight as to the impact of the offences on the victims of the same. He had not supplied any information to the Panel as to the rehabilitation activities he had undertaken, nor had he engaged in a meaningful way with the regulatory process – the Panel was conscious of the cost of representation however there would have been minimal costs for him to attend the hearing remotely and participate fully in the proceedings.
24. The Panel was satisfied that offences of this nature are particularly serious and that it would be difficult for any registrant to establish they were not impaired on the personal aspect of the test for impairment even if they did engage fully on the regulatory process. The Panel found that the Registrant’s fitness to practise was impaired on the personal component.
25. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Whilst the Registrant denied seeking images of children, the Panel was conscious that the Sanctions Policy adopted by the HCPC states that “Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter”.
26. The Panel considered that members of the public and members of the profession, knowing all of the facts, would be extremely concerned to learn that a registered professional admitted accessing indecent images of children. Further, it considered that his conduct breached Standard 9 the Standards of Conduct, Performance and Ethics (2016) set out by the HCPC for all registered professionals, which requires registered professionals to be honest and trustworthy, and also:
“9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”
27. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the private component.
Decision on Sanction
28. The Presenting Officer addressed the Panel in relation to sanction, confirming that all sanctions are available to the Panel. She referred to the Sanctions Policy adopted by the HCPC and encouraged the Panel to determine the least restrictive sanction that would afford an appropriate level of protection to the public. She reminded the Panel that the sanction imposed must be proportionate.
29. The Registrant provided a letter from his legal representatives dated 22 November 2022 which states:
“Mr Gaffney recognises the seriousness of the matters that were investigated by the police and HCPC. It is in that context that he has always co-operated with the investigations, and has agreed to the continuation of interim conditions on his registration without objection, patiently awaiting further news from the police. Accordingly, we submit that Mr Gaffney accepts the allegation that on 21 July 2021 he accepted a conditional caution…”
The letter goes on to state that the caution was accepted and that:
“This matter has been extremely difficult for both Mr Gaffney and his family and he very much would wish to assure the panel and apologise to all for his actions.”
30. The undated letter from the Registrant, described by his representatives as a “reflective statement” and forwarded to the HCPC by them on 22 November 2022, references the Registrant’s “enormous sorrow and remorse” at his actions. He describes searching for adult porn and “selecting downloading all”. He states that he:
“can’t believe how naïve I was to think that such horrific things did not exist. In relation to some of the titles, I still do not know what those titles mean and have no intention of ever finding out. I did not fully consider how to protect myself from such horrific content and unfortunately after seeing something that scared me it impacted my health severely”.
He also said that he turned to porn as a coping mechanism, and that was a “in hindsight a poor coping strategy”. The Registrant recognises:
“the consequences and the potential disrepute for my profession and the governing and regulatory bodies that this has impacted. I apologise to all the people that have had to dedicate their time to this process and hope that it will be resolved. I have done the work suggested, required and needed to understand further the impact of my actions and can genuinely and honestly say this will never happen again. It shouldn’t have ever arisen, but I can only hope to learn from my past and use that knowledge to be a better person.”
31. The Panel accepted the advice of the Legal Assessor. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and promote the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by balancing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.
32. The Panel had regard to the Sanctions Policy issued by the HCPC and took into account the submissions made to it. It identified the fact that the offence involved children as the sole aggravating feature. In respect of mitigating features, the Panel noted that the Registrant had expressed remorse and there had been no previous adverse regulatory proceedings.
33. The Sanctions Policy provides at paragraph 40 that some concerns are so serious that no remediation can sufficiently reduce the risk to the public or public confidence in the profession. Within the list of examples of such conduct is sexual abuse of children or indecent images of children. Paragraphs 78 and 79 of the Sanctions Policy provides:
“78. Sexual abuse of children involves forcing or persuading them to take part in sexual activities and includes both physical contact and online activity. Each of the four countries has legislation which protects children from sexual abuse. Further details can be found on the NSPCC website.
79. Sexual abuse of children, whether physical or online, is intolerable, seriously damages public safety and undermines public confidence in the profession. Any professional found to have participated in sexual abuse of children in any capacity should not be allowed to remain in unrestricted practice.”
34. Given that the Panel did not believe that the Registrant had demonstrated secure and embedded insight and remorse for his conduct, it was concerned as to his future conduct. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute that mediation would assist with and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given that the behaviour was serious, the Registrant described it as an addiction, and the Panel identified a risk of repetition.
35. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. It noted that conditions will rarely be effective unless the Registrant is committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The Policy points out that conditions of practice are unlikely to be suitable where, as in this case, the Registrant is lacking complete insight. The Panel considered whether any conditions could be drafted in this case that would adequately protect the public and concluded that it would not be possible to either satisfy the public interest or protect the public by the imposition of conditions given the nature of the offences and the fact that his practice as a Clinical Scientist is not in question. Accordingly, a Conditions of Practice Order was not an appropriate sanction to impose in this case.
36. The Panel then went on to consider whether a Suspension Order could be appropriate. It noted that the Registrant repeatedly stated that he did not wish to return to his profession, and that he had not practised in a regulated environment while the regulatory proceedings progressed. He could have sought such employment as the interim order he was subject to was that of Conditions of Practice. As such, it did not appear to the Panel that, on the evidence available to it, the Registrant was willing to undertake the steps that would be needed to enable him to return to his profession. He had not provided the Panel with any detail as to the potential remediation he had undertaken when he referenced “…therapy, my own personal reflective work, having more open communication with my family, and more healthy coping mechanisms…”. The Panel was provided with no testimonials or references for the Registrant, and had not been supplied with any evidence that the Registrant had maintained his continuous professional development obligations during the course of his absence from practice.
37. The Panel was mindful that the Sanctions Policy highlights at paragraph 121 that:
“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; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings
38. The Panel was not satisfied that the Registrant had evidenced comprehensive insight into the impact of his conduct given his comprehensive failure to address the issue of the harm suffered by the children in the images found on his device, instead focusing on the impact of his offending on him and his family. It had already identified a risk of future repetition given the lack of detail from the Registrant to address why the conduct would not be repeated, but perhaps most tellingly, he had not provided any evidence to demonstrate how he had dealt with his self-diagnosed pornography addition and why he would not default to this “coping mechanism” in future.
39. Further, the Panel concluded that a Suspension Order would not satisfy the public interest, afford the public sufficient protection or send out a clear message that such criminal conduct by a registered professional is unacceptable. The Panel’s concerns about the risk of repetition had not been allayed, and the Registrant had not shown genuine insight into the serious nature of his conduct, or demonstrated a desire to return to the profession.
40. The Panel noted that the Sanctions Policy provides at paragraph 130 that a Striking Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving “…sexual abuse of children or indecent images of children”.
41. The Panel determined that the only course of action open to it that would adequately satisfy the public interest, protect the public and maintain confidence in the regulatory process would be an order striking the Registrant from the register. He had accepted a caution for possessing 79 indecent images of children and admitted downloading pornography over an undetermined period of time. He showed some insight into the impact his behaviour had on his profession and the public but demonstrated no apparent willingness to work towards rehabilitation and restoration to the profession. In these particular circumstances, the Panel was satisfied that any sanction other than striking the Registrant from the register would undermine public and professional confidence in the Regulator, and would not be in the best interests of the Registrant given his stated intention that he did not wish to return to the profession.
Order
That the Registrar is directed to strike the name of Mr Ciaran Gaffney from the Register on the date this order comes into effect.
Notes
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Interim Order
Application
1. Upon the Panel determining the appropriate sanction to be a Striking Off Order, the Presenting Officer requested that the Panel exercise its discretionary power to impose an interim suspension for the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress. The Registrant had been informed of the possibility of this application within the Notice of Hearing and she therefore applied to proceed with her application for an interim order in the absence of the Registrant.
2. The Panel received and accepted advice from the Legal Assessor and then considered whether it was appropriate to proceed to hear the Interim Suspension Order Application in the absence of the Registrant. It was satisfied that the Registrant had been notified of the likelihood of such an application when he received the Notice of Hearing dated 13 October 2022, which the Panel had already accepted had been properly served on the Registrant. Although registrants had a right to be in attendance when such applications were to be considered, the Panel was conscious that the Registrant was aware of the hearing, and therefore aware of the possibility of an interim order being applied for. Further, he was represented in this matter. The Panel was satisfied that the imperative to protect the public from the Registrant’s admitted conduct outweighed the Registrant’s right to attend, particularly given the Registrant had voluntarily absented himself from the regulatory proceedings. There was no information before the Panel to suggest he would attend or make representations in the event that the application was adjourned to enable him to attend. It found that it was appropriate for consideration of an interim Suspension Order to proceed in the absence of the Registrant.
3. The Presenting Officer stated that an Interim Suspension Order was applied for on the grounds of public protection and in the public interest based on the risk of repetition as identified by the Panel in its decision. She reminded the Panel that the substantive Striking Off Order it had imposed would not take effect until the time for lodging an appeal had elapsed, or when any such appeal is determined, whichever is the later. Given that the Panel had specifically found that the Registrant poses a risk to the public and imposed the Striking Off Order in the public interest, it would be entirely appropriate for an Interim Suspension Order to also be imposed.
Decision
4. The Panel carefully considered the submissions of the Presenting Officer and the advice provided by the Legal Assessor, which it accepted. They also noted the provisions in respect of Interim Orders contained within the Sanctions Guidance at Paragraphs 120 -122. It reminded itself that an interim order may be appropriate where:
- there is a serious and ongoing risk to service users or the public from the registrant’s conduct; or
- the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the registrant was allowed to remain in practice on an unrestricted basis.
5. The Panel was mindful that, in imposing a Striking Off Order, it had found that there was an ongoing risk to service users from the actions of the Registrant. The Registrant had been put on notice that an Interim Order application may be made and had made no representations to the Panel in this regard. The factors which led the Panel to impose the Striking Off Order were still pertinent.
6. Given that the Panel yesterday considered the Registrant’s conduct to be such that striking off was warranted for the protection of the public, and in the public interest, it believed that public confidence in the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis pending the substantive Striking Off Order coming into effect. Without an Interim Suspension Order, there would be no bar to the Registrant practising, regardless of his stated intention not to return to his profession. Therefore, the Panel determined that it was appropriate and proportionate to impose an Interim Order of Suspension pursuant to Article 31 of the Order for a period of 18 months to protect the public and otherwise promote the public interest.
7. The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
8. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Ciaran Gaffney
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
23/11/2022 | Conduct and Competence Committee | Final Hearing | Struck off |