Mark Wogan

Preliminary matters

Service

1. The Registrant did not appear and he was not represented. The Panel was satisfied that notice of the date and time of the hearing had been served on the Registrant by post and email at his respective postal and email registered addresses on 26 September 2022. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent to the addresses on the register.

Proceeding in absence

2. The Registrant had not responded to attempts to contact him between May and July 2022. On 15 July 2022, he was telephoned by an employee of Kingsley Napley, instructed on behalf of the HCPC. The telephone attendance note recorded that the Registrant did not wish to remain on the HCPC register or to participate in their regulatory proceedings.
3. On behalf of the HCPC, Mr Bridges applied for the hearing to proceed in the absence of the Registrant on the basis that he had been notified of the date, time and location of the hearing at his registered address. Mr Bridges submitted that the Registrant had effectively waived his right to appear and that it was in the public interest for the hearing to proceed expeditiously.
4. Having considered the content of the HCPTS Practice Note on Proceeding in Absence and accepted the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing and had waived his right to appear. The Registrant had not applied for an adjournment. There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The Panel noted the overriding public interest in dealing with a matter of this seriousness in a timely manner. In balancing the Registrant’s interest and the public interest, the Panel determined that the matter should be heard in the absence of the Registrant.

Background

5. The Registrant is registered as an Art Therapist on the HCPC Register, although there is no evidence before the Panel of his actual practice of that profession. The purpose of this hearing is to establish whether his fitness to practise as an Art Therapist is impaired by reason of a Social Work England (SWE) regulatory finding against him in his capacity as a registered Social Worker.
6. The background facts are taken from the SWE determination. He was employed by the Riverside Group, a registered provider of Social Housing, as a full time Housing Support officer with a caseload of 25 people. He was allocated as Service User A’s Housing Support Worker from 21 November 2019 to 22 January 2020. Service User A suffered from mental health issues. She had three children and had suffered from domestic violence from her partner of twenty years. It came to light that the Registrant had an intimate relationship with her when he mistakenly sent inappropriate messages intended for Service User A to another Service User. The Registrant admitted to investigators that he had ‘fumbled about’ with Service User A, who told another that the Registrant had kissed and touched her sexually. In particular, she had reported that the Registrant had touched her breasts and her vagina over her clothing. He had also provided a mobile phone for her and had exchanged inappropriate text messages with her.
7. In July 2020, SWE commenced an investigation into the Registrant’s conduct, following a referral from a psychologist working for Southwest Yorkshire Partnership NHS Trust (the Trust). A separate police investigation concluded that the sexual contact between the Registrant and Service User A, who died in July 2021, was consensual.
8. On 21 January 2022, the Registrant’s fitness to practise was found to be impaired by reason of his misconduct and he was removed from the SWE Register following a SWE Fitness to Practise hearing on 17-21 January 2022.
9. The Panel considered the following evidence:
• Written statement of Joanne King of SWE
• SWE Final hearing decision 17-21 January 2022
10. The Registrant did not attend the final SWE hearing on 17-21 January 2021. The Panel hearing his case decided to proceed in his absence because he had resigned his position and had confirmed that he would not attend the hearing.
11. The allegation at the SWE hearing was as follows:
Whilst registered as a Social Worker:
1. On one or more occasions between 21 November 2019 and 23 January 2020 you:
a) Kissed Service User A
b) Hugged Service User A
c) Touched Service User A’s breast(s)
d) Touched Service User A’s vagina
2. On a date unknown between 21 November 2019 and 23 January 2020 you provided or caused to be provided a mobile telephone to Service User A.
3. Between 21 November 2019 and 23 January 2020, you exchanged text messages with Service User A.
4. Your conduct at paragraphs 1, 2 and 3 above:
a) Breached professional boundaries
b) Was sexually motivated.
5. The matters set out at paragraphs 1, 2, 3 and 4 amount to the statutory ground of misconduct. Your fitness to practise is impaired by reason of misconduct.

12. The SWE Panel found that all particulars of the factual allegations at paragraphs 1, 2 and 3 were proved to the required standard. The SWE Panel determined that the Registrant’s conduct was unprofessional and that it amounted to a breach of professional boundaries in respect of all matters. The SWE Panel further determined that his conduct was sexually motivated in respect of all matters. The Registrant’s actions therefore amounted to misconduct. There was little evidence of insight or remediation and there was a significant risk of repetition of this misconduct. Accordingly, the SWE Panel found that his fitness to practise was impaired on personal and public interest grounds.
13. In deciding sanction, the SWE panel identified mitigating factors as follows:
• The absence of previous findings;
• The Registrant’s acceptance of parts of the allegation, his apology and expression of regret.
14. The SWE panel identified the following aggravating factors:
• Service User A was extremely vulnerable and he knew that;
• The conduct involved planning such as providing a mobile phone and took place over a period of time;
• Emotional harm to Service User A and risk of serious harm;
• Deflection of personal responsibility and focus on himself rather than the impact of his behaviour on Service User A, the public and the profession.
15. The SWE Panel determined that the risk of repetition and lack of insight was such that vulnerable service users required protection and that a lesser sanction would neither provide that protection nor maintain public confidence in the profession. Accordingly, the appropriate and proportionate sanction was a Removal Order, which would send a clear message that social workers should not breach the trust placed in them by vulnerable service users and should not abuse their power and authority.

Decision on Facts

16. Having considered the content of the SWE Panel’s written decision and their findings, the Panel determined on the balance of probabilities that the Registrant was the subject of a regulatory determination by SWE on 21 January 2022 that his fitness to practise was impaired by reason of his conduct on the basis of the facts and for the reasons that are described above. This is in any event a matter of public record and the Registrant has not sought to dispute the regulatory findings at this hearing.

Decision on Grounds

17. Article 22 (1)(a)(v) of the Health Professions Order provides that fitness to practise may be impaired on the grounds of a determination by a UK body responsible for regulation of health or social care. The Panel found that that ground had been made out by reason of the SWE determination in the Registrant’s case.

Decision on Impairment

18. Mr Bridges for the HCPC submitted that the Registrant’s fitness to practise was impaired by reason of the SWE’s findings of sexual misconduct in his case. The Registrant had shown little insight or remorse and had not engaged at all with the HCPC proceedings. Mr Bridges therefore submitted that he continued to pose a risk to service users, so his fitness to practise was impaired on personal grounds. He further submitted that a finding of impairment was required in order to uphold professional standards and to maintain public confidence in the profession and the regulator.
19. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Impairment.
20. In determining the issue of impairment, the Panel had regard to the findings of the SWE Panel in this case. The Panel noted the particular vulnerability of the service user and the effect upon her. The Registrant’s sexual misconduct represented an abuse of trust and a misuse of his professional position. The Registrant was caught out by his own error in sending a message to the wrong person. The SWE Panel had concluded that his actions were sexually motivated and that they represented a breach of professional boundaries. The evidence of remorse and insight was limited.
21. The Panel first considered the personal component, namely whether the Registrant presented a continuing risk to service users and whether he had demonstrated insight or remedied his misconduct. The Panel drew no adverse inference from the Registrant’s absence from the hearing, but the consequence of his failure to engage with the HCPC proceedings was such that there was no evidence before the Panel of insight or remorse and nothing to suggest he has learned his lesson or that his misconduct would not be repeated.
22. The Panel had regard to the test formulated by Dame Janet Smith in the Fifth Shipman Report and cited with approval by Cox J in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), 76), namely whether the Registrant’s fitness to practise is impaired to the extent that he has put service users at risk, or is liable to do so in the future; whether he has brought his profession into disrepute or may do so in the future, and whether he has breached a fundamental tenet of his profession or may do so in the future. There was no need to consider whether he has acted dishonestly because this is not such a case.
23. In answering those questions, the Panel found that the Registrant’s proven sexual misconduct was such as to place vulnerable service users at risk of harm. In acting in this way, the Panel found that the Registrant had brought his profession into disrepute. He had also breached a fundamental tenet of his profession by abusing the trust of a service user. There was little evidence of insight or remediation to mitigate those findings. The Panel therefore determined that there remained a risk that the Registrant would repeat his misconduct and that his fitness to practise was impaired on personal grounds.
24. The SWE Panel’s finding of misconduct related to the Registrant’s sexually motivated actions towards a service user. Having found that his misconduct inevitably brought his profession into disrepute, the Panel therefore determined that public confidence in the profession and in the regulatory process would be damaged if no finding of current impairment were made in relation to the Registrant. The Panel considered that a reasonably informed member of the public with knowledge of the facts of this case would expect a finding of current impairment to be made on public interest grounds. A finding of impairment was also necessary to uphold professional standards in this case.
25. For all the reasons stated above, the Registrant’s fitness to practise is currently impaired on personal and public interest grounds.

Decision on Sanction

26. Mr Bridges for the HCPC reminded the Panel of the principles to be applied when deciding on the appropriate sanction and referred the Panel to the sections of the Sanctions Policy that deal with cases of breach of trust, abuse of professional position and sexual misconduct.
27. The Panel had regard to the Sanctions Policy (as revised in 2019) of the HCPC and accepted the advice of the Legal Assessor. The Panel had in mind that the purpose of a sanction is to protect the public and to maintain public confidence in the profession and regulatory process, and not to punish the Registrant.
28. The Panel determined that the following aggravating factors were present in this case:
• Service User A was extremely vulnerable and the Registrant knew that she was;
• The conduct involved planning such as providing a mobile phone and it took place over a period of time;
• Emotional harm to Service User A and the risk of serious harm;
• Absence of engagement with the HCPC or evidence of insight.
• Breach of trust
• Abuse of professional position
29. The only mitigating factors of significance were the Registrant’s apparent expressions of apology and regret to the previous regulator, although he had not done so to this Panel. He was of apparent previous good character but that was of little weight in this case.
30. In determining the appropriate sanction, the Panel had regard to paragraph 47 of the Sanctions Policy in relation to breach of trust: Where there has been a breach of trust, panels are likely to impose more serious sanctions, and should provide clear reasons if they choose not to do so.
31. The Panel took account of paragraph 69 in relation to abuse of professional position: Where a registrant uses their professional status to pursue inappropriate relationships with service users or carers, this may undermine the care or treatment provided and the public’s trust in the profession. Registrants should take care to set clear boundaries and avoid conduct which strays beyond that typically expected of a therapeutic / professional relationship.
32. In relation to cases involving sexual misconduct, the Panel noted that paragraph 76 states: Sexual misconduct is a very serious matter, which has a significant impact on the public and public confidence in the profession.
33. Paragraph 77 states: Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning.
34. The Panel then considered the available sanctions with reference to the guidance in the Sanctions Policy. In making its decision, the Panel had regard to the principle of proportionality in determining the appropriate sanction and its duty to impose the least sanction that was necessary.
35. The findings of sexual misconduct and the other aggravating factors were too serious to make no order.
36. The Panel then considered whether to impose a Caution Order but decided that it was also inappropriate in this case, because sexual misconduct of this nature requires a more serious sanction and there was no engagement and no evidence of insight or remediation before this Panel. A lesser sanction of this kind would undermine public confidence in regulator in view of the facts of this case.
37. The Panel then considered whether a Conditions of Practice Order was appropriate or workable but concluded that the absence of any information about the Registrant’s current circumstances or employment and the absence of evidence of insight made such an order impossible to formulate. Furthermore, a Conditions of Practice Order requires engagement on the part of the Registrant, but he has not engaged with the HCPC in this case. The Panel had concluded that there remained a risk of repetition of the misconduct in the absence of significant evidence of insight or remediation. The Panel therefore determined that such an order would not meet the gravity of the misconduct or maintain public confidence in the profession and the regulator.
38. The Panel then considered whether a Suspension Order was appropriate after considering the guidance at paragraph 121 of the Sanctions Policy. The Registrant’s conduct in this case represented a serious breach of professional standards, a breach of trust and sexual misconduct, all of which require a more serious sanction as a matter of principle. Had there been strong evidence of insight, remediation or engagement, then the Panel could have contemplated imposing a Suspension Order, but there was no evidence that would have enabled the Panel to take that course in this case.
39. The Panel was mindful that a Striking Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts. The Panel noted that this incident had an adverse impact on a vulnerable service user. It was a serious instance of sexual misconduct and the abuse of a profession position for which a more severe sanction may be necessary (paragraph 130 of the Sanctions Policy) where there is little or no evidence of insight, engagement or remediation. That is the case here.
40. The Panel therefore determined that a Striking Off Order was the appropriate and proportionate sanction in order to protect the public and to reflect the gravity of the misconduct. The Panel further concluded that this order was necessary to uphold professional standards and maintain public confidence in the regulator and the profession. A member of the public with a full appreciation and knowledge of the particular facts of this case would understand why the Panel had determined that this was the appropriate sanction.

Order: The Registrar is directed to strike the name of Mr Mark Wogan from the Register on the date this Order comes into effect.

Interim Order

Mr Bridges for the HCPC applied for an interim suspension order and for the Panel to make that decision in the absence of the Registrant. In relation to proceeding in absence, the Panel accepted the advice of the Legal Assessor and decided to proceed in absence for the same reasons as at the start of the hearing. The Panel noted that the Registrant was on notice that an application for an interim order may be made in the event of a sanction being imposed. In relation to the application for an interim order, the Panel accepted the advice of the Legal Assessor. The Panel concluded that there was a continuing risk of repetition of misconduct in the absence of evidence of remorse, insight or remediation. The Panel therefore determined that an Interim Suspension Order was necessary to protect service users and that such an order was otherwise in the public interest. An interim Conditions of Practice Order would not meet the risks identified. The Order would be of 18 months duration to allow for completion of the appeal process if an appeal was made.

History of Hearings for Mark Wogan