Elliott Burton

Preliminary Matters

Application for the hearing to take place in private

1. Mr McWilliams, on behalf of the Registrant, submitted that the entirety of the hearing should be held in private. He submitted that matters relating to the Registrant’s health should be heard in private, to protect the Registrant’s private life. He submitted, further, that the existence of the Police Caution itself was not in the public domain and should be heard in private, to protect the Registrant and his family from potential internet vigilantes.

2. Ms Collins, on behalf of the HCPC, accepted that matters relating to the Registrant’s health should be heard in private, but submitted that the existence of the Police Caution should be heard in public, as there was nothing exceptional about the case to suggest that a different course should be adopted.

3. The Legal Assessor advised on Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (“the Rules”), which states that:

“the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing”.

4. The Legal Assessor also referred to the case of L v Law Society [2008] EWCA Civ 811, in which it was held, in the context of an appeal against the Law Society’s decision to revoke the membership of a student, that the details of spent convictions should be heard in public. It was held that in the absence of exceptional circumstances, appeals should be heard in public. It was said that convictions, whether spent or otherwise, were relevant to an application made by a registrant to join a regulated profession, and their existence should be heard in public to ensure that public confidence was maintained.

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

6. The Panel accepted the possibility of an adverse reaction online by members of the public if the Registrant’s Police Caution was to be dealt with in public. However, there was no evidence to suggest that this would in fact occur, nor was there any evidence to suggest that the degree of any such reaction would impact on the Registrant’s private life to such an extent that it outweighed the public interest which lies in a public hearing. Whilst the case of L v Law Society [2008] EWCA Civ 811 dealt with spent convictions rather than a caution, the Panel accepted the Legal Assessor’s advice that it was analogous, particularly as the wording of the Police Caution in the current instance included the following:

“This Simple Caution is not a form of sentence or a criminal conviction, but is an admission of guilt and is covered by the Rehabilitation of Offenders Act 1974 and is to be treated in the same way as a 'Spent Conviction'”.

7. The Panel concluded that whilst matters relating to the Registrant’s health should be heard in private, the Registrant was a professional who had signed up to the HCPC Register and the existence of the Police Caution should be heard in the public domain.

Admissions

8. The Registrant admitted the Allegation in its entirety.

Background

9. The Registrant is registered with the HCPC as a Physiotherapist. The Registrant was employed with East Kent Hospitals University NHS Foundation Trust (‘the Trust’) as a Band 5 Rotational Physiotherapist from 20 November 2018 to 6 November 2020.

10. The Registrant was not working at the Trust at the time of the Allegation.

11. On 8 December 2020, the HCPC received a Fitness to Practise referral from Kent Police informing them that the Registrant was under investigation for possession of indecent images of children. At the Registrant’s request, his father had reported the Registrant to the police due to him wanting to acknowledge and admit that he had been viewing indecent images, which he knew to be wrong and against the law. He was also fearful that the police had knowledge of his illegal internet activities. This had resulted in the Registrant’s arrest and seizure of his electronic devices. The Registrant immediately provided a full and frank confession.

12. On 22 April 2021, the Registrant received the Simple Adult Caution which is now set out in the Allegation.

13. The Registrant was made subject to the Notification Requirements of the Sexual Offences Act 2003 for a period of two years. These are due to expire on 22 April 2023.

Decision on Facts

14. The Panel accepted the advice of the Legal Assessor, who advised that it was for the HCPC to satisfy the Panel, on the balance of probabilities, that the Registrant had accepted the Police Caution as described.

15. On the basis of the documentation before it, which included a copy of the Police Caution, and together with the Registrant’s admission, the Panel was satisfied that the Registrant had accepted the Police Caution set out in the Allegation.

16. Accordingly, the Panel found Particular 1 proved.

Decision on Impairment

17. Ms Collins submitted that the Registrant’s fitness to practise is impaired by reason of his Police Caution, both on the personal and public component.

18. Mr McWilliams accepted, on behalf of the Registrant, that the Registrant’s fitness to practise is impaired by reason of his Police Caution, both on the personal and public component. In so doing, Mr McWilliams informed the Panel that the Registrant had undertaken some remedial action.

19. The Panel accepted the advice of the Legal Assessor, who advised the Panel to consider the first three criteria set out in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927, namely whether the Registrant:

• Has in the past acted and/or is liable in the future to act so as to put a member or members of the public at unwarranted risk of harm; and/or

• Has in the past and/or is liable in the future to bring the profession into disrepute; and/or

• Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

20. In accordance with the case of Cohen v General Medical Council [2008] EWHC 581, the Legal Assessor advised the Panel to ask whether the Registrant’s conduct is easily remediable, whether it has in fact been remedied, and whether it is highly unlikely to be repeated. She advised the Panel to consider whether the behaviour which lay behind the Registrant’s Police Caution could be regarded as an isolated incident in an otherwise unblemished career and whether the Registrant had demonstrated genuine insight into his past behaviour. She also advised the Panel to ask not only whether the Registrant currently poses a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant, his profession, and his Regulator would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of the case.

21. In considering the personal component, the Panel accepted that the Registrant was previously a man of good character and that the Police Caution related to two instances of making a photograph/pseudo-photograph of a child. He had reported himself to the police and admitted his behaviour. He had provided the Panel with a written statement which demonstrated a level of insight and remorse. He provided evidence of some remediation. However, the Registrant’s insight and remediation was not as yet complete. Therefore, the Panel could not conclude that it was highly unlikely that the Registrant would repeat his actions and put members of the public at risk of harm.

22. On that basis the Panel found the Registrant’s fitness to practise to be impaired on the personal component.

23. In considering the public component, the Panel concluded that the Police Caution, which related to two incidents of making an indecent photograph (in one instance Category B and the other Category A), had brought the profession into disrepute and had breached a fundamental tenet of the profession. The Panel concluded that the need to uphold proper professional standards and maintain confidence in the profession and its Regulator demanded a finding of impairment in the circumstances.

24. Accordingly, the Panel also found the Registrant’s fitness to practise to be impaired on the public component.

Decision on Sanction

25. Ms Collins submitted that sanction was a matter for the judgement of the Panel. She took the Panel to relevant parts of the HCPC Sanctions Policy, including Paragraph 40, which specifies that there are some concerns which are so serious that activities intended to remediate the concern cannot sufficiently reduce the risk to the pubic or public confidence in the profession.

26. Mr Graham, on behalf of the Registrant, informed the Panel that the Registrant is not currently working and does not wish to return to working as a Physiotherapist in the future. Mr Graham accepted that Conditions of Practice would not be workable in those circumstances. Mr Graham reminded the Panel of the Registrant’s remorse and efforts to rehabilitate. In addition, he accepted on behalf of the Registrant that the Police Caution was a serious matter which deserved a serious sanction. He informed the Panel that the Registrant himself agreed that his actions were too serious to merit the imposition of a Suspension Order. Mr Graham submitted that a Striking Off Order was available and was the appropriate sanction to uphold public confidence in the profession.

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

28. The Panel concluded that the Registrant’s past conduct was mitigated by his previous good character, his decision to encourage his father to report his actions to the police, his immediate admissions, and his remorse.

29. The Panel concluded that there were no aggravating factors.

30. The Panel concluded that there were no exceptional reasons to merit taking No Further Action.

31. The Panel concluded that a Caution Order was insufficient in light of the seriousness of the Allegation.

32. The Panel concluded that a Conditions of Practice Order was unworkable as the Registrant was not currently working as a Physiotherapist. The Panel also concluded that such an Order would be insufficient due to the seriousness of the Allegation.

33. The Panel considered the imposition of a Suspension Order.

34. The Panel accepted that the Registrant was of previous good character. He had encouraged his father to report his actions to the police, had made immediate admissions, had demonstrated genuine and full remorse, and had taken steps to remediate his past behaviour. It was, in the experience of the Panel, very unusual for a registrant to be so open and prepared to acknowledge and deal with his past behaviour unprompted. Further, he had not shirked responsibility for his actions and had not sought to diminish the seriousness of what he had done by reference to the Covid pandemic which, the Panel appreciated, must have presented challenges for him in practice at the relevant time.

35. However, these factors did not outweigh the Panel’s conclusion that a Suspension Order would be insufficient to protect the public and the wider public interest in light of the seriousness of the Allegation.

36. In all the circumstances, the Panel decided to impose a Striking Off Order. The Panel understood that this is the sanction of last resort where there is no other means of protecting the public and the wider public interest. However, it was the judgement of the Panel that any lesser sanction would be insufficient due to the seriousness of the Allegation. The Registrant had received a Police Caution for making a Category A and a Category B image or pseudo-image of a child. The Panel concluded that a reasonable member of the public would be horrified if they were to learn that the Registrant had been permitted to practise having conducted himself in such a manner, and confidence in the profession and its Regulator would be adversely affected as a result.

37. The Panel concluded that a Striking Off Order was required to protect the public, declare and uphold proper standards of behaviour, and maintain confidence in the profession and its Regulator. The Panel concluded that the Registrant’s behaviour was wholly unacceptable and was incompatible with registration.

38. The Panel concluded that the appropriate and proportionate sanction in the circumstances of this case was a Striking Off Order.

That the Registrar is directed to strike the name of Mr Elliott Burton from the Register on the date this Order comes into effect.

Interim Order Application

Application

1. Ms Collins applied under Article 31 of the Health Professions Order 2001 for an Interim Suspension Order for a period of 18 months to protect the public and the wider public interest during the appeal period.

2. Mr Graham opposed the application on the basis that it could not be said that such an Order was necessary, as the Registrant had no intention of returning to practice.

Decision

3. The Panel concluded that an Interim Order was necessary to protect the public on the basis that the Registrant would present a real risk of harm to the public if permitted to practise unrestricted in light of the seriousness of the Allegation found proved and the lack of fully completed remediation. The Panel concluded that an Interim Order is also in the public interest to maintain professional standards and protect confidence in the profession following the imposition of the Striking Off Order. The Panel appreciated that it is not the Registrant’s current expressed intention to return to practice; however, in fulfilling its duty to protect the public the Panel was obliged to work on the basis that there was always the possibility that he would change his mind.

4. The Panel concluded that an Interim Conditions of Practice Order would be unworkable as the Registrant is not working as a Physiotherapist. Further, such an Interim Order would be insufficient in light of the sanction that had been imposed.

5. In those circumstances, the Panel concluded that the appropriate form of Interim Order is an Interim Suspension Order for 18 months’ duration.
Interim Suspension Order

6. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect the public and the wider public interest.

7. This order will expire: (i) upon the expiry of the appeal period, if no appeal is made against the Panel’s decision and Order or (ii) upon the final determination of an appeal, if an appeal is brought. The maximum length of this order is 18 months.

History of Hearings for Elliott Burton