Mr Mark Dillon

Preliminary Matters:

Service

1. The Panel first considered the issue of service as the Registrant was not in attendance.

2. The Panel had been provided with the Registrant’s e-mail within the Certificate signed by the Registrar dated 19 January 2023. This confirmed the postal address and email for the Registrant.

3. The Panel had sight of the email dated 19 January 2023 to the Registrant. This confirmed the dates and times of the hearing as well as informing him that this would be a virtual hearing. It also offered the Registrant an opportunity to make submissions at the hearing.

4. The Panel noted the Registrant’s acknowledgement of being reminded of the above in his email to the HCPTS dated 5 April 2023.

5. The Panel accepted the advice of the Legal Assessor that good service was effected by notifying the Registrant of the time and date of the hearing at his registered email address. There is a duty on the Registrant to update the register as soon as his address changes.

6. The Panel was satisfied that fair, proper and reasonable notice of the hearing today had been served on the Registrant, having been sent to the Registrant at his registered email address on 19 January 2023.The Panel determined that notice had been properly served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).

Proceeding in the absence of the Registrant

7. The Panel noted the Registrant’s email dated 5 April 2023 where he stated he would not be attending and the reasons for this.

8. In support of the application to proceed in the Registrant’s absence, the Panel has been provided with oral submissions by the HCPC. Mr Foxsmith, for the HCPC, submitted there was a reference to a health condition but the Registrant had not provided an explanation or further details. He also submitted the case is already old, one of the witnesses due to attend is categorised as vulnerable and would be distressed by any adjournment.

9. Mr Foxsmith further submitted there was a general public interest in proceeding and that the Registrant had voluntarily absented himself by not engaging. He also added the Registrant had not applied for an adjournment and there was nothing to indicate the Registrant would attend at any later date. Finally, he accepted there was a disadvantage to the Registrant in not attending, but submitted the hearing should not be prevented from proceeding due to the non-attendance.

10. The Panel considered the HCPTS Practice Note on “Proceeding in the absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution. The Panel was satisfied that the Registrant had received reasonable notice of this hearing and had waived his right to appear. Any adjournment would serve no useful purpose as any future attendance and engagement by the Registrant was unlikely. The Panel concluded the Registrant had voluntarily absented himself.

11. The Panel also considered that an adjournment would cause prejudice to the hearing and to the vulnerable witness who was ready to give evidence on serious allegations. Special measures had already been ordered on 19 January 2023, which included the Tribunal providing a Special Counsel to undertake cross examination of Person A on behalf of the Registrant. The Panel considered this measure did assist the Registrant if he were to attend.

12. The Panel determined that it was fair and reasonable and in the interest of justice to proceed in the Registrant’s absence as it had found that good service has been effected, the Panel would be able to question the witnesses waiting to give evidence and concluded that there is a general public interest for a hearing to take place within a reasonable time.

Application to proceed in private

13. Mr Foxsmith made an application for today’s proceedings to be held partly in private on the grounds of protecting the private life of Person A. He submitted Particulars 1-3 of the Allegation were of a personal and sensitive nature. He proposed these Particulars be considered in private with the remainder of the allegations in public.

14. The Panel accepted the advice of the Legal Assessor. The Panel considered the principle of open justice and had regard to the HCPTS Practice note “Conducting Hearings in Private”. There were two broad circumstances in which all or part of the hearing may be in private:

a) where it was in the interest of justice to do so; or
b) where it is done to protect the private life of the registrant, complainant, witness or service user.

15. The Panel determined that part of the hearing would be in private, in order to protect the private life of the complainant who is attending as a witness. This would be limited to her evidence and Particulars 1-3 of the Allegation.

Background:

16. The Registrant is a registered Operating Department Practitioner who at the time was employed by the Royal Cornwall Hospitals Trust (‘the Trust’).

The Hearing:

17. No admissions had been made.

18. The Panel heard live evidence from the following witnesses called on behalf of the HCPC:

a) Witness 1: Safeguarding lead at the Trust (ZC);
b) Witness 2: Complainant (Person A);
c) Witness 3: Investigating Officer (TF);
d) Witness 4: Acting LADO (KW);
e) Witness 5: Police Officer (SR).
f) Witness 6: Line Manager (KO);

19. The Panel also accepted the written statement of the following into evidence:

a. HCPC Registration Manager (AM);
b. Legal Assistant at Kingsley Napley LLP (HR).

20. The Panel did not have any live evidence or submissions from the Registrant to consider.

Decision on Facts:

21. Before making any findings on the facts, the Panel heard and accepted the advice of the Legal Assessor. In reaching its decisions on the disputed facts, the Panel took into account all the oral and documentary evidence in this case together with the submissions made by Mr Foxsmith. The Panel has read the bundle from the HCPC. No documents had been provided by the Registrant.

22. In reaching its decision on the facts, the Panel has borne in mind that the burden of proof rests on the HCPC and it is for the HCPC to prove the Allegation irrespective of any admissions made by the Registrant. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities.

23. It has approached the assessment of reliability and credibility carefully and has followed the guidance in R (Dutta) v GMC [2020] and Khan v GMC [2021]. It notes that it is an error to place overreliance on the demeanour of a witness and that reliance on the confident demeanour of a witness is a discredited method of judicial decision making.

24. The Panel has carefully considered the evidence in the round, giving appropriate weight to the documentary evidence. The Panel also considered the oral evidence of the six live witnesses on behalf of the HCPC and the written statements of AM and HR for the HCPC.

25. The Panel acknowledged that the Registrant has no previous fitness to practice history.

Particular 1 (a - e) - Proved

1. Between 1 January 2007 and 17 November 2010 in relation to Person A, a child, you:

a) Intentionally touched the breasts of Person A, over Person A’s clothing

b) Intentionally touched the vagina of Person A, over Person A’s clothing

c) Intentionally touched the breasts of Person A, under Person A’s clothing

d) Intentionally touched the vagina of Person A, under Person A’s clothing

e) Intentionally rubbed your penis against the vagina of Person A, over Person A’s clothing.

26. On the balance of probabilities, the Panel was satisfied that Particular 1 (a - e), of the Allegation, was proved.

Particular 2 - Proved

2. On a date unknown between 1 January 2008 and 31 December 2008, while seated next to Person A, a child, on the backseat of a car, you intentionally touched her breast over clothing.

27. On the balance of probabilities, the Panel was satisfied that Particular 2 was proved.

Particular 3 - Proved

3. In or around October 2010, you attempted to rape Person A, a child, in that you tried to insert your penis into Person A’s vagina.

28. On the balance of probabilities, the Panel was satisfied that Particular 3 was proved.

Particular 4 (a - c)- Proved

4. You did not disclose to the HCPC a restriction on your practice because of concerns about your conduct, in that:

a) You did not disclose to the HCPC that you had been suspended from your role as an Operating Department Practitioner in or around October 2010.

b) You did not disclose to the HCPC that you had been removed from patient-facing duties from 5 November 2019.

c) You did not disclose to the HCPC that you had been suspended from your role as an Operating Department Practitioner on 29 January 2020.

29. Mr Foxsmith relied on the written statement of AM, who is the Registration Manager for the HCPC, and who stated the Registrant had not notified the regulator of his suspensions or removal from patient-facing duties. He also relied upon the written statement of HR who had produced the documents in relation to charges 4(b) and 4(c) (dealt with below).

30. In relation to Particular 4(b), Mr Foxsmith relied on the Trust’s Risk Assessment dated 5 November 2019, which concluded in redeploying the Registrant to a non-patient facing role. He also relied upon the letter from the Trust dated 6 November 2019, which was emailed to the Registrant and confirmed that he would be moved to a non-clinical setting.

31. In relation to Particular 4(c), Mr Foxsmith relied on the Trust’s Risk Assessment dated 28 January 2020, which concluded in the Registrant’s suspension. He also relied upon the Trust’s Suspension Meeting Notes dated 29 January 2020 where the Registrant was informed of the suspension.

32. Mr Foxsmith submitted there was no doubt that the Registrant was aware of these restrictions. He added that the Registrant’s replies did not provide a response to Particular 4 (a-c) and this Particular was thus proven factually and evidentially.

33. There was no evidence from the Registrant in relation to Particulars 4 (a - c).

34. The Panel considered Particular 4(a) was proven on the balance of probabilities. The Panel was satisfied of the Registrant being aware of the suspension and its duration. The Panel had sight of the paper renewal application dated 1 October 2010 where the Registrant confirmed there had been no changes to his good character. Finally, the Panel accepted the unchallenged witness statement of AM, in which he stated the Registrant had renewed his registration in 2010, 2012, 2014, 2016 and 2018 without the suspension being declared.

35. The Panel considered Particular 4(b) was proven on the balance of probabilities. The Panel was satisfied of the Registrant being aware of the restriction in duties. The Trust’s letter dated 6 November 2019, which was emailed to the Registrant, confirmed he would be move to a non-clinical setting to enable the investigation to be undertaken. The letter also referred to a meeting on 29 October 2019, where the Registrant had attended and had been informed of this restriction. The Panel accepted the unchallenged witness statement of AM dated 9 June 2021, in which he stated the HCPC standards state any restriction must be informed to the HCPC “as soon as possible”’ and no contact by the Registrant could be seen.

36. The Panel considered Particular 4(c) was proven on the balance of probabilities. The Panel was satisfied of the Registrant being aware of the suspension. The Panel had sight of the Trust’s Suspension Meeting Notes dated 29 January 2020, attended by the Registrant, where he was informed he was suspended. This was initially for 14 days, to enable the investigation to be undertaken. The Panel accepted the unchallenged witness statement of AM dated 9 June 2021, in which he stated the HCPC standards state any restriction must be informed to the HCPC “as soon as possible” and no contact by the Registrant could be seen.

37. On the balance of probabilities, the Panel was satisfied that Particular 4 (a - c) was proved.

Particular 5 - Proved

5. Your conduct in relation to allegations 1-3 was sexual.

38. On the balance of probabilities, the Panel was satisfied that Particular 5 was proved.

Particular 6 - Proved

6. Your conduct in relation to allegation 4a) and/or 4b) and/or 4c) was dishonest.

39. Mr Foxsmith submitted this was dishonesty by omission as the Registrant was aware of the facts and failed to report to the HCPC. He also stated a reasonable person would consider it to be dishonest to withhold this information from the regulator, especially where the Registrant was under a duty to inform the HCPC.

40. There was no evidence from the Registrant in relation to Particulars 4 (a-c) or Particular 6 (dishonesty).

41. In relation to dishonesty, the Panel bore in mind the two-part test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017], namely the subjective test of ascertaining the Registrant’s actual state of knowledge or belief, followed by an objective assessment of whether the Registrant is dishonest.

42. The Panel also had regard to the HCPTS Practice Note “Making decisions on a registrant’s state of mind”, in relation to dishonesty.

43. The Panel had found Particular 4 (a-c) proven, thus the Registrant had failed to inform the HCPC about his suspensions in 2010 and 2020, as well as being removed from patient-facing duties in 2019.

44. The HCPC’s ‘Standards of conduct, performance and ethics’ place a specific duty on registrants at Standard 9.5:

“You must tell us as soon as possible if:
….
you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.”

45. In relation to the subjective test, both the suspensions and the restriction in duties had been documented and the Registrant would have known about these. The Panel considered the Registrant would be reminded of his duty to make the declaration when completing his registration renewal as there is a specific question on whether there are any changes to his good character, which would have served as a reminder to him even if the Trust notification and investigations did not lead him to consider notifying the regulator. The Registrant had not denied this and had not provided any explanation as to why he failed to inform the HCPC.

46. AM had confirmed the Registrant had become first registered with the HCPC in 2004. In regards to the objective test, ordinary decent people would consider the conduct to be dishonest. The Registrant had failed to inform the HCPC and this was dishonesty by omission.

47. On the balance of probabilities, the Panel was satisfied that Particular 6 was proved.

Decision on grounds:

Misconduct

48. Mr Foxsmith submitted that the Registrant’s conduct did amount to misconduct.

49. In relation to the dishonesty allegations proved, Mr Foxsmith submitted that Particular 4 was serious as a regulator cannot act and fulfil its regulatory duty if registrants withhold information. As for Particular 6, he stated dishonesty is always serious and undermines the public’s trust in the profession and at times this can impact public safety.

50. Mr Foxsmith’s view was that the Panel do not need to refer to published standards to know that it is wrong and serious to commit sexual offences and it is wrong to be dishonest. That said, he highlighted the following standards (dealt in detail further below) from the various HCPC’s ‘Standards of conduct, performance and ethics’:

a. 2004 version – standards 3 and 16.
b. 2008 version – standards 3, 4 and 13.
c. 2016 version – standards 9.1 and 9.5.

51. There was no evidence regarding misconduct provided by the Registrant.

52. The Panel has approached its decision on misconduct by considering each of the particulars in the Allegation separately. The Panel has concluded that the facts found proved in relation to each of the particulars were so serious as to amount to misconduct.

53. In relation to Particular 4, the Panel noted the Registrant had failed to update the HCPC for many years and this was repetitive behaviour. Whilst the Registrant may not have realised it the first time, he had failed in his duty by continuing to renew his registration without failing to declare the 2010 suspension. This then continued with the 2019 restriction in duties and the 2020 suspension not being reported. The HCPC is seriously hampered in effectively regulating the profession by the failure of cooperation from those it regulates, as was the case here. In not reporting the matters to his regulator, the Registrant had undermined the regulatory function and brought the profession into disrepute. In relation to Particular 6, honesty is one of the fundamental tenets of any profession and this had been seriously breached by the dishonest conduct.

54. Taken together, the Panel found the Registrant’s conduct to be serious and deplorable. The sexual and dishonest behaviour involved put this at the top end of the misconduct scale.

55. In the Panel’s judgement, the Registrant’s behaviour fell seriously below the standards expected of an Operating Department Practitioner. It has found that the Registrant failed to uphold his professional standards in fundamental areas and that he has breached fundamental tenets of his profession.

56. The conduct involved breaches of the following:

HCPC Standards of Conduct Performance and Ethics:-

2004 version:

• 3 - You must keep high standards of personal conduct. (Particulars 1a and 1b).

• 14 - You must behave with integrity and honesty. (Particulars 1a and 1b).

• 16 - You must make sure that your behaviour does not damage your profession’s reputation. (Particulars 1a and 1b).

2008 version:

• 3 - You must make sure that your behaviour does not damage your profession’s reputation. (Particulars 1c, 1d, 1e, 2, 3, 4a, 5 and 6).

• 4 - You must provide (to us and any other relevant regulators) any important information about your conduct and competence. (Particulars 4a and 6).

• 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession. (Particulars 1c, 1d, 1e, 2, 3, 4a, 5 and 6).

2016 version:

• 9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession. (Particulars 4b, 4c and 6).

• 9.5 - You must tell us as soon as possible if: …. you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence. (Particulars 4b, 4c and 6).

Decision on Impairment:

57. The Panel heard submissions from Mr Foxsmith for the HCPC. He invited the Panel to approach the question of impairment sequentially, looking both at the personal and public components of impairment in line with the HCPTS Practice Note “Fitness to Practise Impairment”.

58. Mr Foxsmith submitted the Registrant’s fitness to practice was currently impaired on both the personal and public component. In terms of the personal component, he submitted impairment on all four limbs mentioned in CHRE v NMC and Grant. He submitted that the proven Particulars were unlikely to be remediable, no remedial action had been taken to date and there remained a risk of repetition. He submitted there was no insight and no action had been taken to address past harm or the risk of future repetition.

59. In terms of the public component Mr Foxsmith submitted there was a need to protect service users as there was no insight and a risk of repetition. He stated professional standards need to be maintained and the public would expect registrants to not only be professionally competent, but also act with decency, honesty and integrity. He also submitted public confidence in the profession would be undermined if there was no finding of impairment.

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

61. The Panel has approached its decision on impairment by looking at the situation as it is today. It has had regard to the HCPTS Practice Note “Fitness to Practise Impairment”.

62. The Panel’s primary objective is the protection of the public, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

63. In reaching a decision on impairment, the Panel has considered all of the evidence and the submissions, and has exercised its’ own judgment on impairment.

64. Whilst there is no statutory definition of impairment, the Panel was assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report, as adopted by the High Court in CHRE v NMC & Grant [2011]. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in that he:

a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. Has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

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

d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.

65. In approaching the question of impairment, the Panel has considered the personal and public components.

66. The Panel noted there was no character evidence or submission of references on behalf of the Registrant. The Panel did accept the Registrant was of previous good character with no previous regulatory findings against him. It was also acknowledged that he had worked between 2010 and 2019 without any regulatory concerns raised.

67. On the personal component the Panel found that the Registrant’s fitness to practice was currently impaired. The Panel considered the key questions: are the acts or omission which led to the allegations remediable; has the Registrant taken remediable action and are those acts or omissions likely to be repeated. The Panel was also mindful that in some cases, including those involving serious attitudinal or behavioural issues, it may be more difficult to remediate. The Panel was also mindful that in some cases, public confidence in the profession require a finding of impairment to be made. The Panel considered that in this case the Registrant’s behaviour including the sexual misconduct and the dishonesty would be difficult to remediate.

68. Whilst the Panel made no adverse inference concerning the Registrant’s absence from the hearing and the absence of any documentary evidence to consider, it did mean the Panel did not have the benefit of questioning the Registrant or assessing any written material. The Registrant elected not to use the Special Counsel instructed and available on his behalf to cross examine Person A. He also failed to submit any reflective statement.

69. There was no evidence of insight to indicate how the Registrant accepted how his behaviour fell below professional standards, how and why it occurred and the consequences to those affected e.g. patients, colleagues, workplace, the profession and the wider public. There was no evidence available to indicate he had taken action to address the failures in a way which remedied past harms and avoids any future repetition.

70. In terms of the public component the Panel has taken into account its overarching responsibility to protect service users, promote and maintain professional standards, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the profession. The Panel considered service users were potentially impacted. The Registrant worked with vulnerable service users as part of his role and they were at risk given the lack of insight or remediable action.

71. The Panel further finds that the Registrant’s behaviour has damaged the profession with both his colleagues and members of the public likely to find the conduct deplorable. The Registrant’s behaviour fell seriously short of the behaviour which the public would expect and affects the public’s confidence in the profession. The public is entitled to expect registrants to act with honesty and integrity. The Panel are satisfied that given the nature of the allegations and the facts found proved, public confidence in the profession would be undermined if there were to be no finding of impairment.

72. Having regard to all of the above, the Panel has found that, by reason of his misconduct, the Registrant’s fitness to practise is currently impaired on the both the private and public component of impairment.

Decision on Sanction:

73. The Panel heard submissions from Mr Foxsmith and in reaching a decision on the sanction it has taken these submissions into account. He submitted the Registrant should not be able to continue working unrestricted.

74. In respect of the sanctions, Mr Foxsmith submitted this would be between a suspension and striking-off. He did highlight that the some of the suspension criteria had not been met given the risk of repetition and lack of insight. He also highlighted the Sanctions Guidance does state striking off is appropriate in cases of dishonesty, sexual misconduct and sexual abuse of children. Mr Foxmsith did not invite a particular sanction, but his view on behalf of the HCPC was that anything less than a very serious sanction was inappropriate.

75. There was no evidence from the Registrant in relation to sanctions for the Panel to consider. However, the Panel did carefully note the documents within the bundle, including his written replies to the Trust and his Trust interview notes.

76. The Panel accepted the advice of the Legal Assessor and has reached its decision on sanction by following the guidance in the HCPC Sanctions Policy.

77. The Panel has had regard to all the evidence presented. It reminded itself that a sanction is not intended to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality and that a sanction must be reasonable and the least restrictive possible.

78. The primary function of any sanction is to address public safety from the perspective of the risk which the Registrant may pose to patients and to the wider public interest; namely the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

79. The Panel began its deliberations on sanction by considering the mitigating factors. The Panel did carefully consider the hearing bundle to consider if any mitigating factors could be construed but found nothing in line with the varying examples given within the Sanction Guidance.

80. The Panel then considered the aggravating factors and found the following: -

(i) Repeated pattern of dishonesty and unacceptable behaviour, which was in relation to the findings made on both sexual misconduct and dishonesty over a number of years. There remained a risk of repetition.

(ii) Lack of insight, remorse or apology.

(iii) Lack of remediation and reflection.

81. The Panel also considered the dishonesty resulted in this case being serious, as public confidence in the profession is undermined. The Panel noted there are varying degrees of dishonesty, and it needs to be considered in a nuanced way. This was not a single act as there had been repeated misconduct, this had taken place over an extended period between 2010 and 2020. The Registrant had taken an active role in this by failing to notify the HCPC of the suspensions and restriction in duties.

82. The Panel did find the matter was serious due to sexual abuse of a child and relies upon paragraph 79 of the Sanctions Guidance:

“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.”

83. The Panel next considered the sanctions in ascending order of gravity.

84. It has found that it is not appropriate to make No Order because of the serious nature of the incident.

85. A Caution Order is not appropriate because the conduct found proved was too serious for a Caution Order to be appropriate. The misconduct was of a serious nature, it was not isolated, the Registrant demonstrated a lack of insight, risk of repetition and no remediation.

86. The Panel next considered a Conditions of Practice Order. The Panel had found dishonesty and sexual misconduct, for which conditions are likely not appropriate. There had been no insight displayed. The Panel noted dishonesty and the behavioural issues were attitudinal issues and can be harder to remedy. There was no evidence that the misconduct could be remedied. There were no workable conditions that could be formulated in this specific case, and the Panel had no confidence that in any event conditions formulated would be complied with by the Registrant. The Registrant’s misconduct was not minor and was likely to be repeated. In the circumstances it has determined that the Registrant’s misconduct was too serious for a Conditions of Practice Order to be appropriate.

87. The Panel next considered a Suspension Order. The Panel noted the serious breaches of standards and deemed suspension was not appropriate where there is a lack of insight and a risk of repetition. There was no evidence to indicate that the Registrant is likely to be able to resolve or remedy their failings.

88. Finally, the Panel considered a Striking Off Order, which was an option that was open to the Panel. The Panel were fully aware that a Striking Off Order is a sanction of last resort for serious persistent deliberate or reckless acts involving such misconduct as dishonesty, sexual misconduct and sexual abuse of children. The Panel was satisfied that given the circumstances of this case a Striking Off Order was necessary and appropriate. There had been no insight shown into the dishonesty and the sexual behaviour and the Panel remained concerned of the risk of repetition.

89. The Panel were satisfied that due to the nature and gravity of the concerns that any lesser sanction than a Striking Off Order would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process. The Registrant demonstrated a lack of insight and repeated serious misconduct.

90. The Panel was satisfied that a Striking Off Order was the most appropriate sanction, having considered lesser sanctions before arriving at this order.

That the Registrar is directed to strike the name of Mark Dillon from the Register on the date this order comes into effect.

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.

Application for an Interim Order:

Application to proceed in the Registrant’s absence:

1. Mr Foxsmith made an application in relation to two preliminary matters. The first that the Registrant was clearly on notice by virtue of the Notice of Hearing email dated 19 January 2023 that an application for an Interim Order may be made in the event of the Panel determining a sanction of Conditions of Practice, Suspension Order or Strike Off. Mr Foxsmith also made an application to proceed in the absence of the Registrant for all the reasons previously raised.

Panel decision to proceed in the absence of the Registrant:

2. The Panel heard and accepted the advice of the Legal Assessor. The Panel determined that the Registrant was on notice that such an application may be made. The Panel also determined that it should proceed in the absence of the Registrant. For the reasons set out earlier in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined it would be fair, proportionate and in the interest of justice to consider this application.

Application for an Interim Suspension Order:

3. The Panel heard an application from Mr Foxsmith to cover the appeal period by imposing an 18-month Interim Suspension Order on the Registrant’s registration. He submitted such an order is necessary to protect the public as the Panel had found proved serious allegations of sexual misconduct and dishonesty, as well as a lack of insight and risk of repetition. He also sought the order on the ground of it being in the wider public interest given the allegations against the Registrant that have been proved and a reasonable well-informed member of the public would be concerned if no restriction was put on the Registrant’s practice. Mr Foxsmith submitted an order for an interim suspension as his view was that there are no appropriate conditions that can guard against the risk of repetition. He sought an order for 18 months to cover the period of any appeal to the High Court.
Panel decision on an Interim Order:

4. The Panel had careful regard to Paragraphs 133-135 of the Sanction Policy and to Paragraph 3.4 of the HCPTS Practice Note on Interim Orders, which offer guidance on interim orders imposed at final hearings after a sanction has been imposed.

5. The Panel recognised that its powers to impose an interim order is discretionary and that imposition of such an order is not an automatic outcome of fitness to practice proceedings in which a striking off order has been imposed, and that the Panel did take into consideration the impact of such an order on the Registrant.

6. The Panel first considered whether an interim conditions of practice order should be imposed. The Panel had already determined that there were no workable conditions relevant to this case and this remained true now. There was no information as to what the Registrant is currently doing in terms of his work, and the Panel had no confidence that he would comply with any such conditions. Accordingly, the Panel determined the only appropriate interim order is an Interim Suspension Order.

7. The Panel was satisfied it was necessary to impose an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. This was necessary for the protection of the public and is otherwise in the public interest. The Panel had regard to the reasons given in the earlier decision today in regards to the Striking Off Order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an Operating Department Practitioner during the appeal period.

8. The period of the interim suspension order is for 18 months to allow for the possibility of an appeal to be made and determined.

9. If no appeal is made, then the interim order will be replaced by the Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.

Interim Suspension Order:

The Panel makes an Interim Suspension Order 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.

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 Mark Dillon