Thomas McGuinn

 

 

1. Ms Hocking applied to amend the Allegation in the form that appears above. She submitted that the proposed amendments clarified the allegation and should fairly be made as notice of the proposed amendments had been given to the Registrant by the HCPC’s letter dated 31 March 2022. Mr McGuinn did not consent to the amendments but accepted that he had received the letter of 31 March 2022 when it was sent to him. The Panel received advice from the Legal Assessor, who stated that the amendments could be made if they caused no injustice to the Registrant.

 

2. The Panel was satisfied that the proposed amendments were appropriate in the circumstances, because they clarified the allegation and would enable the Registrant better to respond to it. The Panel allowed the amendments on that ground and announced its decision. In this decision, the allegation as so amended will be referred to as ‘the allegation’.    

 

 

3. The Registrant is a registered Radiographer. 

 

4. In March 2019, the Registrant was employed as a Band 6 Radiographer with Medical Imaging Partnership Limited (‘MIPL’). 

 

5. The Health and Care Professions Council (‘HCPC’) received a self-referral form from the Registrant on 24 January 2021. The Registrant had self-referred for another matter (the concerns of which are not relevant to this investigation and which was not pursued any further by the HCPC), whilst he was employed by Ramsay Health Care UK (‘Ramsay’). 

 

6. The current concerns came to light during the course of the HCPC’s investigation into the other matter. The concerns in the case before the Panel today were that the Registrant was alleged to have dishonestly amended the hourly rate on his contract with MIPL, by whom he had been employed before his time with Ramsay.

 

 

7. The Panel decided to structure its decision-making by considering first the facts of the case and the statutory ground alleged, namely misconduct as set out in paragraph 3 of the allegation. It decided to receive submissions and legal advice on these two aspects of the case and to make and hand down its written determination as to those matters before considering any other part of the case that might become relevant, depending on the findings in that determination.    

 

8. The Panel heard oral evidence on behalf of the HCPC from one witness, Ms Sarah Whittaker, who made a witness statement dated 7 March 2022. Ms Whittaker was the Registrant’s manager at the time to which this case relates, and she has been MIPL’s Director of Clinical Services since September 2019. The HCPC’s case was also made by reference to documentary evidence in the form of a bundle of 65 pages. One of these documents was a witness statement given by Saima Iqbal dated 11 April 2022. This document was put in evidence as hearsay, following an application by Ms Hocking and advice from the Legal Assessor that it would be fair to admit the document in the circumstances. The Panel accepted that advice.

 

9. The Registrant also gave oral evidence. He called no other witnesses and relied on no further documents. He had stated that he wished to call a colleague with whom he worked at MIPL but had been unable to contact him on the phone number he had available to him.

 

10. The Panel heard submissions from Ms Hocking and from the Registrant, all of which it has taken into account. The Panel received advice from the Legal Assessor, which it has accepted. 

 

11. The burden of proof as to the facts alleged lies with the HCPC, and the Panel has considered the particulars of the allegation against the civil standard of proof, that is to say, the balance of probabilities. In relation to the charge of dishonesty in paragraph 2, the Panel has directed itself in accordance with case law including Bank St Petersburg PJSC & Anr v Arkhangelsky [2020] EWCA Civ. 408 at [114] - [119] in the judgment of Males LJ, referring to In re B (Children) [2008] UKHL 35 and the speech of Lord Hoffman where he referred to a well-known passage from the judgment of Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. 

 

12. The Panel directed itself as to the meaning of dishonesty in accordance with Ivey v Genting [2017] UKSC 67 at [74] where Lord Hughes stated –

 

‘… When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

 

13. The Panel also took into account the HCPTS’s Guidance Note, ‘Making Decisions on a Registrant’s State of Mind’, November 2022, section 3 of which relates to dishonesty.

 

14. Although the Registrant was assumed to be of good character for the purposes of the factual allegations made against him, the Panel took into account the Registrant’s oral evidence as to his good character in assessing his credibility as a witness on the issue of dishonesty and on the further issue of propensity, i.e. whether it was likely that he would have acted dishonestly in the circumstances, as alleged. What weight to give it was a matter for the Panel entirely. See Donkin v Law Society [2007] EWHC 414 (Admin) at [24]-[25].

 

 

15. The Registrant admitted this particular of the allegation at the outset of the hearing, following the Panel’s decision on amendment. 

 

16. In making its findings with respect to this particular of the allegation, the Panel has taken into account the admission made by the Registrant and the following evidence in particular. The Registrant was employed with MIPL under a fixed term contract dated 1 April 2019. The contract was due to come to an end on 8 May 2020, but on behalf of MIPL Ms Whittaker wished to retain the Registrant’s services as a Radiographer and offered him a ‘bank’ contract, which she described in her evidence as the equivalent to a zero hours contract, meaning that the Registrant would cover busy periods and staff members who were ill or on holiday but would not be guaranteed specific areas of work nor be entitled to holiday or sick pay. 

 

17. On 24 March 2020, Ms Whittaker sent an email to the Registrant with a letter and a bank contract in WORD format for his signature, asking him to return the contract to Marion Trickett, who worked in the Human Resources department (‘HR’). The letter stated that ‘[y]our hourly rate will be £20’ and the pay clause in the contract contained that figure. 

 

18. By email dated 9 April 2020 to Ms Whittaker and to Ms Trickett, the Registrant sent an amended version of the contract that had been signed and dated by him. The amendment was to the pay clause and in place of the figure of £20 appeared the figure of £25. He stated in his covering letter attaching the contract, ‘Please find attached my completed and signed casual worker agreement.’

 

19. That the Registrant had amended the contract in this way also appeared from subsequent email correspondence in May 2020. The Panel refers in particular to Ms Whittaker’s email to Ms Trickett of 13 May 2020 timed at 12.49 hrs. and to Ms Whittaker’s email of 13 May 2020 at 14.43 hrs to Mr Andrew Lennox (an adviser of MIPL), which each referred to that change to the rate of pay that had been made by the Registrant. 

 

20. In those circumstances, the Panel has found paragraph 1 of the allegation to have been proved.

 

 

21. In addressing the charge of dishonesty in paragraph 2 of the allegation, the Panel asked itself what did the Registrant know or believe as to the facts and circumstances in which the alleged dishonesty arose?

 

22. The starting point is the letter, covering email and contract sent by Ms Whittaker on 24 March 2020. These documents constituted an offer on the part of MIPL to the Registrant to engage him under a bank contract on the terms set out in the unsigned contract attached to the email. There was no suggestion in those documents of any permission to change the hourly rate, let alone any suggestion of a negotiation. The Panel has already referred to the reference to the £20 hourly rate in the letter. The covering email stated, -

 

‘… Please find.. attached a letter confirming the end date of your fixed term contract and a bank contract for further shifts. Please can you sign the contract and return to Marion...’  

 

23. Ms Whittaker says that she first became aware of the change to the figure on 12 May 2020 in the following circumstances. On that date, she asked Marion Trickett by email to confirm whether the Registrant had signed and returned the contract. Ms Trickett responded by email at 14.47 hrs. confirming that he had returned the signed contract, but asked whether Ms Whittaker had changed the Registrant’s hourly rate as it appeared in the document, from £20 per hour to £25 per hour. At 16.32 hrs., Ms Whittaker replied to Ms Trickett by email as follows, -

     

‘In answer to your previous e-mail, NO I DID NOT CHANGE THE RATE!!!!! Cheeky think [sic] must have changed it to £25!!'

 

24. Ms Whittaker’s evidence was that on 13 May 2020, she contacted the Registrant by telephone to enquire about the altered hourly rate in his contract. He stated that he had lost her original email with the contract and, as he believed that she was busy, he did not want to contact her to ask for a further copy. He said that he had downloaded a copy of the contract from the company hard drive and filled in the details. He told her on this call that he filled in the hourly rate of £25 per hour because he was offered this amount by the BMI Alexandra Hospital for a bank contract. Ms Whittaker’s evidence was that he did not offer any other explanation. 

 

25. On the same date, Ms Whittaker wrote to the Registrant to inform him that his offer of a bank contract had been withdrawn and that his employment with the company ended on 8 May 2020.

 

26. The Registrant’s case was that he had been given permission by Ms Whittaker to make the amendment, and he had not acted dishonestly. His oral evidence was that he had had at least two discussions with Ms Whittaker in the scanning room between 24 March 2020 and 9 April 2020 in which he made clear to her that he was not prepared to accept an hourly rate of £20. He pointed out to her that other radiographers engaged by MIPL under a bank contract were being paid at the rate of £25. He considered that £25 an hour was the fair rate. She told him in the first of these conversations that she would need to ask Marion Trickett to get approval. He also said that Ms Whittaker agreed with the change to the rate but that the change would have to be approved by Ms Trickett. 

 

27. He said that on the second occasion he told Ms Whittaker once again that he was not happy with the rate of £20. Having heard nothing further about approval from Ms Trickett, the Registrant approached Ms Whittaker again about his contract on 9 April 2020, but she was busy and did not have the time to discuss the contract with the Registrant, raising her left hand and telling him ‘Just send it’. So, that is what he did. The Registrant’s evidence was that one of the two discussions before 9 April 2020 had been witnessed by a colleague, who was also a Radiographer. The Registrant had tried to contact him for the purposes of this case but had been unable to do so. In other parts of his oral evidence, the Registrant gave further details of the discussions he says he had with Ms Whittaker on those occasions. The Panel returns to that further detail below.  

 

28. The Registrant denied that he had been dishonest when that was put to him in cross-examination. He said that he had discussed the matter with Ms Whittaker several times and she knew about the change to the contract. He had never been accused of professional dishonesty before. 

 

29. In his submissions, the Registrant referred to his good character to refute the allegation that he had deliberately sought to mislead anyone in relation to the amendment to the contract. He had been in professional practice for 15 years and had never been accused of professional dishonesty before. The events took place three years ago. The other matter for which he referred himself to the HCPC had been looked into and no action was to be taken against him. His current employer, Ramsay knew all about the allegations in this case, because he had informed them of the position before he started work for them, they had agreed to take him on and he was still working for Ramsay with no issues.    

 

30. The Panel placed weight on the contemporaneous email correspondence. There is no support at all in those documents regarding the evidence given by the Registrant to the Panel as to his conversations with Ms Whittaker, whose evidence was that she had no recollection or documentary record of such conversations. 

 

31. The Panel refers to that correspondence in more detail below. The Registrant told the Panel that he was sure that he would have emailed Ms Whittaker about the permission he now says she gave him to amend the document. However, he said that such emails would have been on his MIPL email and he said that he had no access to his emails from the time of his employment with MIPL. 

 

32. Nevertheless, it is particularly relevant that the contemporaneous email correspondence from the Registrant before the Panel contains no mention by him as to any assertion relating to a permission given by Ms Whittaker to amend the contract or to any negotiation of the rate. No trace of such matters is to be found either in the internal email correspondence passing between Ms Whittaker and others in relation to the Registrant’s amendment of the contract, whether before or after withdrawal of the offer of the bank contract on 13 May 2020.

 

33. In an important email dated 13 May 2020 sent by the Registrant to MIPL’s HR generic email address and to others at the company, the Registrant stated -

 

‘[...] I have just had a very difficult conversation with Sarah [i.e. Ms Whittaker] as she has informed me that she has terminated my bank contract without notice. She told me that because I downloaded a contract from the MIP website to return to HR by the deadline because I .. couldn’t find the email she sent, that I had committed fraud and was dishonest. I am very upset by this as all I have ever done for SMD [South Manchester Diagnostics] and Sarah is my best, including using my initiative of downloading a contract from the company hard drive rather than harassing Sarah who is always busy in meetings or in London. …’

 

34. There was no mention by the Registrant in this email of the discussions that he spoke of in his oral evidence to the Panel. In view of the evidence that he gave to the Panel, one would have expected him to have stated in that email that he thought he had Ms Whittaker’s permission, or even that there was a negotiation and she had told him that the change needed to be approved by Ms Trickett or HR. There is no reference by the Registrant to any such belief on his part. 

 

35. In his oral evidence about the phone call from Ms Whittaker on 13 May 2020 when she raised the amendment to the contract with him, the Registrant did not say that she had given him permission to change the contract, or that there was a negotiation in process, or anything of that nature. He told the Panel that he had received the call when he was in Morrisons and ‘felt like Sarah was blasting me on the phone’. He said that his girlfriend told him to hang up. Even so, one would have expected him to have raised the topic of his discussions with Ms Whittaker during this very important phone call from her. This appeared to the Panel to be a significant omission.

 

36. In her email to Ms Trickett at 12.49 hrs on 13 May 2020, Ms Whittaker stated:–

 

‘I spoke with Andrew [Lennox] this morning and he agreed with me - we have terminated Tom’s employment with the company and will not be using his services on the bank. I have just spoken to Tom now to explain, apparently BMI were paying £25 per hour bank so he changed the figure in our contract to reflect this. At no time was this discussed or approved with me and therefore is fraud. …’

 

37. The Panel finds that this email, written by Ms Whittaker on the same day of her conversation with the Registrant, accurately reflects the reasons that the Registrant gave to her in that conversation for changing the contract. To similar effect was Ms Whittaker’s email to Mr Lennox of the same date. The Panel also notes Ms Whittaker’s statement in that email that the change had been made without discussing it with her.

    

38. The account given in the Registrant’s email to HR of 13 May 2020 also contradicts the Registrant’s oral evidence in two further respects. In his oral evidence, he said that he had deleted the email, because Ms Whittaker had told him to delete emails after a month for reasons of ‘GDPR’ i.e. data protection. He also stated that he had amended the WORD document that Ms Whittaker had sent to him on 24 March 2020, and then saved it onto his electronic folder in the staff shared drive. The Panel found that this contradicted his explanation in his email dated 13 May 2020 that he had ‘downloaded a contract from the MIP website ...’.   

 

39. Ms Whittaker’s evidence as to the conversations relied on by the Registrant was that she could not say that they did not happen as three years had passed, but she had no recollection of them. She believed that they had not taken place in light of her correspondence in May 2020. She said that had those discussions taken place, she would have ‘followed through’ by making the necessary enquiries of HR or the CEO. She had checked her notebooks from the time and could find no notes that raised anything about these conversations. 

 

40. In an email dated 18 May 2020 to the Registrant, Ms Whittaker wrote:–

 

‘…. An email was sent on 24th of March with notification of the end of your temporary contract and a bank contract for you to sign. You returned this directly to HR signed and with the hourly salary changed from £20 to £25 without any discussion with either myself or Marion. …’

 

41. Thus, Ms Whittaker’s position at the time was that no discussions had taken place about the change in hourly rate from £20 to £25. On 4 June 2020, the Registrant emailed Ms Whittaker, requesting a reference for a new job. There was no other email response from the Registrant contradicting those assertions of Ms Whittaker in her email of 18 May 2020. 

 

42. The Registrant’s oral evidence about the conversations also underwent some evolution. An important example arose from the fact that his evidence had not been clear as to when he had made the change or in what exact circumstances. In answer to questions from the Chair following cross-examination, the Registrant explained that he had made the change in the presence of Ms Whittaker. He said that he had opened the document on a computer during one of the scanning sessions when he was discussing the hourly rate with Ms Whittaker and made the change there and then. This was a striking piece of evidence given for the first time at that late stage of his evidence. The Registrant was also not able to confirm whether Ms Whittaker had seen the amendment that he said that he had made at that time. 

 

43. The Registrant also questioned in his evidence whether Ms Whittaker had sent the contract to him with a £20 hourly rate to see ‘how desperate’ he was and that he had amended the contract to £25 ‘to call her bluff’. He then said that this was ‘a bad analogy’ on his part. However, the Panel considers that those observations by the Registrant indicate that he had not been given the permission that he now relies on. Further, it is clear from the documents sent to him by Ms Whittaker on 24 March 2020 (i.e. the contract with an hourly rate of £20) that these were not intended as an opening shot in a negotiation as suggested by the idea that she wanted to see how desperate he was. She expected him to sign and return the contract, as made clear by the letter and covering email.

 

44. The Registrant submitted that his lack of dishonesty is shown by the fact that he sent the signed contract that he had amended to Ms Whittaker as well as to Ms Trickett. It is true that in her letter of 24 March 2020 and in the covering email, Ms Whittaker had not asked him to return the signed contract to her, but to Ms Trickett at the ‘hr@ ...’ email address. That submission might also be made to support the Registrant’s case that he had been given permission to make the change by Ms Whittaker. 

 

45. However, the Panel has concluded that the discussions on which the Registrant relies before this Panel did not take place. The Panel accepts Ms Whittaker’s evidence and rejects the Registrant’s evidence on all the significant matters relevant to paragraph 2 of the allegation. 

 

46. Thus, Ms Whittaker sent the Registrant the contract on 24 March 2020, to sign and return it to Ms Trickett. There were no subsequent negotiations or discussions as asserted by the Registrant in his evidence to the Panel. The Registrant was not given permission by Ms Whittaker or anyone else to amend the contract as he did, and at no time did Ms Whittaker or anyone else on behalf of MIPL make an offer to the Registrant to amend the rate to £25. There may have been some mention by the Registrant to Ms Whittaker that he was not happy with the rate of £20 but the Panel does not accept that Ms Whittaker ever agreed to the change in the hourly rate, nor did she say that any change would have to be approved by Ms Trickett or HR, nor did she give him permission to amend the hourly rate in the document. No conversation took place as the Registrant said it did on 9 April 2020.

 

47. The Panel’s reasons for these conclusions arise from the considerations set out earlier in this section of this written determination. In summary, Ms Whittaker’s evidence is corroborated by the contemporaneous documents and the Registrant’s evidence is flatly contradicted by those documents. Further, the contemporaneous documents contain the Registrant’s explanation that he gave at the time as to why he made the change and that explanation contradicts the existence of any permission given to him to make the amendment, and any offer on the part of MIPL to change the rate to £25.

 

48. The Registrant’s own evidence was unclear and underwent evolution in important respects. Overall, the Panel considered that his evidence lacked credibility and reliability on the important matters. The Panel’s reasons for accepting Ms Whittaker’s evidence included its consistency with those documents and her honest concession about the conversations relied on by the Registrant and her reasons why she thought that no such conversations took place. This added to the weight that the Panel gave to her evidence. 

 

49. The Panel refers to the email and attached signed and amended contract sent to both Ms Whittaker and Ms Trickett on 9 April 2020. The email stated:-

 

‘Please find attached my completed and signed casual worker agreement.’  

      

Although the Registrant did send the email to Ms Whittaker as well as to Ms Trickett, the Panel was struck by the absence of any mention of the change he had made to the rate in the contract and the absence of any indication drawing attention to that change in the document itself or the covering email. The Panel considers that the Registrant’s intention in sending the signed contract to both Ms Whittaker and Ms Trickett was to lead them to believe that he was returning the contract signed by him and in the form in which it had been sent to him by Ms Whittaker on 24 March 2020.    

 

50. Therefore, the Panel has concluded that the Registrant made the amendment without permission and knew that MIPL had not offered him the hourly rate of £25. The Registrant knew this to be the case at the time. The discussions that he told the Panel took place with Ms Whittaker did not occur, as the Panel has concluded. The justifications that he put forward at the time did not support any argument let alone belief on the part of the Registrant either that he had been given permission to make the change or that MIPL had offered him a rate of £25.  

 

51. Accordingly, there was no basis on which the Registrant could have believed that he had been given permission to amend the contract, and no basis on which he could have believed that MIPL had offered him the rate of £25.

 

52. In those circumstances and in view of all the evidence, the Panel has concluded that the Registrant’s intention in sending the contract to Ms Trickett and Ms Whittaker on 9 April 2020 in signed form, but without alerting them to the change to the hourly rate that he had made to the contract without permission, was to introduce the change into the contract without their noticing it and to trick them into accepting the contract in that form. His motivation in doing so was to give him the opportunity of earning money to which he was not entitled. 

 

53. In reaching its conclusions on all the factual matters, the Panel has taken into account the Registrant’s evidence as to his good character, but the significance of that evidence is far outweighed by the probabilities and improbabilities arising from the contemporaneous documents and other considerations set out in this section of the determination.

 

54. Having established the Registrant’s actual state of mind as to knowledge or belief as to the facts, the Panel next addressed the question of whether his conduct was honest or dishonest, determined by applying the (objective) standards of ordinary decent people. 

 

55. The Panel has no hesitation in concluding that ordinary decent people would consider it dishonest for the Registrant to have altered the contract when he knew that his employer had not given him permission to do so and had not made him an offer of £25 per hour for his work and to then send the amended contract as he did, without any flagging of the amendment made, to trick the recipients, in order to give him an opportunity of earning money to which he knew he was not entitled.    

 

56. In those circumstances, the HCPC has established on the balance of probabilities that by amending the hourly rate on the contract from £20 to £25, the Registrant acted dishonestly in that he made that amendment without permission and that he knew that MIPL had not offered him the hourly rate of £25.  

 

57. Therefore, paragraph 2 of the allegation has been found proved.  

 

 

58. The Panel has taken into account all the submissions made by Ms Hocking and those made by the Registrant. It has directed itself in accordance with the advice given by the Legal Assessor.

 

59. In deciding whether or not the facts proved amounted to the statutory ground of misconduct alleged, the Panel considered the guidance given in the case of Roylance v GMC [2000] 1 AC 311 PC, where Lord Clyde stated at pp. 330 to 331, - 

 

‘Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the conduct to the profession of medicine. Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious [...]’

 

60. The Panel has concluded that the Registrant’s conduct constituted a failure to comply with Standard 9 of the HCPC’s written ‘Standards of Conduct, Performance and Ethics’ (26 January 2016), which states:–

 

‘9. Be honest and trustworthy

[...]’

 

61. The Registrant’s dishonest conduct was linked to his profession as a Radiographer, albeit that it did not occur in a clinical context. By seeking to obtain dishonestly a rate of pay to which he knew he was not entitled, the Registrant has brought the profession into disrepute.

 

62. By acting dishonestly as the Panel has found, the Registrant has failed to be either honest or trustworthy and ordinary members of the public would consider that his conduct undermined trust and confidence in the profession.     

 

63. The nature and circumstances of the misconduct were serious and the Panel has concluded that the statutory ground of misconduct has been established.   

 

 

64. Having handed down its determination on the facts and statutory ground, the Panel heard submissions from the parties on the issue of current impairment. The Registrant also addressed the Panel on factual matters relevant at this stage of the hearing and answered questions from the Panel. The hearing was adjourned on 22 June 2023, that being the last of the days allotted to the hearing of this case.  It was reconvened on 17 August 2023. 

 

65. The Registrant relied on further documents, which included one testimonial from a healthcare assistant, another from a registered Radiographer, and a third from the Operations Manager (Mobile Diagnostics, his current employer) at Ramsay contained in an email dated 2 August 2023. He referred to courses he had undertaken, one on fraud, corruption and associated matters and another one that he had taken online to improve his communication skills. He said he intended to book himself onto a further course on the same subject that he was going to attend physically, in October 2023.   

 

66. For the HCPC it was submitted that the Registrant’s fitness to practise is currently impaired in view of the considerations set out in the HCPTS’s Practice Note ‘Fitness to Practise Impairment,’ February 2022. She also referred to case law in her submissions. As to the personal component of impairment, she submitted that there remained a risk of repetition of the misconduct. Even though the Registrant could properly maintain his innocence of the matters charged and now found against him, there was still insufficient evidence of insight or remediation, and the evidence relied on by the Registrant did not demonstrate that he had taken sufficient steps to make a repetition of the misconduct unlikely. Therefore, the Registrant’s fitness to practise was currently impaired by reference to the personal component. 

 

67. Although the Registrant’s misconduct did not cause harm because his former employer did not act on the contract he had amended, he bore culpability for the risk of harm created by his dishonest amendment of the contract. Case law showed that it would be an unusual case where dishonesty did not result in a finding of impairment and this was not an unusual case. The circumstances were such that if no finding of impairment were made, public confidence in the profession and its regulation would be undermined. Therefore, the Registrant’s fitness to practise was currently impaired by reference to the public component as well as the personal component.  

 

68. The Registrant’s submissions and representations included the following. The Panel’s findings related to what was one instance of misconduct in an otherwise unblemished career. He repeated that there had been no concerns about his professional integrity since that time. Looking back, what he described as his difficult relationship with Ms Whittaker had contributed to his conduct in amending the contract. By that he meant that he did not feel that he could raise concerns openly. Although he had not intended to mislead anybody, he realised that he should have understood his manager’s position (i.e. that of Ms Whittaker) and should ‘never have touched’ the contract. He would never do anything like that again. Moreover, he had a good and open relationship with his manager at Ramsay. Therefore, his fitness to practise was not currently impaired by reference to the ‘personal component’. 

 

69. The Registrant said that he had been a safe and effective practitioner for many years, making a difference to patients. In answer to Panel questions, he said that it was ‘massively important’ to be open and honest in a professional context. He said that in a clinical setting a Radiographer had to be trusted to provide reliable information for patients and doctors, for patients to receive appropriate treatment. He said that there was little risk of a repetition of his conduct. His fitness to practise was not currently impaired by reference to the public component.         

 

70. In making its decision, the Panel took into account its findings made at the first stage of the hearing and all the evidence so far as relevant at this stage. The Panel has taken into account all the submissions made to it and the further statements made by the Registrant to the Panel in his oral representations. The Panel has also directed itself in accordance with the Practice Note on ‘Fitness to Practise Impairment’ (February 2022) and the advice given by the Legal Assessor.

 

71. The Panel first considered the ‘personal component’ of current impairment. The Registrant has shown some insight into his dishonesty. In his representations to the Panel at this stage, he showed that he had reflected on the circumstances which had led to the findings that the Panel had made against him. 

 

72. Dishonesty is by its nature difficult to remediate. The Registrant has taken some steps towards remediation. He has discussed the Panel’s findings with his parents. He has attended an online course designed to improve his communication skills, which he accepts require improvement. 

 

73. In considering whether a repletion of the misconduct was likely, the Panel took into account the following matters in particular. The Registrant had been in practice for at least 12 years before April 2020 and there had been no previous finding of dishonesty against him, and no restriction or limitation placed on his ability to practise. In the three and a half years since that time, there is no evidence of further dishonesty on his part as a registered practitioner. In her testimonial of 2 August 2023, Ramsay’s Operations Manager stated:-

 

‘I have no concerns with regards Thomas McGuinn’s integrity or competence. Thomas often receives good patient feedback and is a valued member of the team.’     

 

The Registrant also disclosed to Ramsay the concerns that have given rise to the findings against him. 

 

74. The Panel also considers that the dishonesty it has found does not indicate a deep-seated attitudinal problem on the part of the Registrant. The circumstances in which the dishonesty took place were very specific, arising out of a difficult personal relationship with his manager at a difficult time in employment due to the Covid pandemic. This was shown in the documentary evidence before the Panel. However, the Registrant has recognised that he was wrong to have amended the contract and to have acted in the way that he did.

 

75. In all those circumstances, the Panel has accepted that it is unlikely that the Registrant would act in a similar manner in the future. Therefore, the risk of a repetition of the misconduct is low. 

 

76. Accordingly, the Registrant’s fitness to practise is not currently impaired by reference to the personal component.            

      

77. In considering the public component of impairment, the Panel has borne in mind that it will be an unusual case where dishonesty is not found to impair fitness to practise: PSA v Health and Care Professions Council & Ghaffar [2014] EWHC 2723 at paragraphs [45] and [46] of the judgment of Carr J. It has borne in mind in particular the guidance given by Cox J. in her judgment in CHRE v NMC & Grant [2011] EWHC 927 (Admin), at [68] - [71] and at [73], [74] and [76].   

 

78. The Panel has found that the Registrant has brought the profession into disrepute. Although his dishonesty did not concern service users, the Registrant attempted to deceive his former employer into giving him what would have been a significant pay increase. Albeit not on the gravest end of the spectrum of dishonesty, the Registrant’s dishonesty was still serious even though no actual harm was caused by it. 

 

79. Although the Registrant is unlikely to repeat his misconduct, the circumstances of the case require a finding of current impaired fitness to practise to be made (by reference to the public component) in order to maintain public confidence in the profession and its regulation, and such a finding is also necessary to declare and uphold proper standards of professional conduct. Honesty is a fundamental tenet of the profession and there is nothing in the circumstances of this case to excuse the Registrant’s conduct in breaching that fundamental requirement, even though he is unlikely to do so again.

 

80. Therefore, the Panel has concluded that the Registrant’s fitness to practise is currently impaired. 

 

 

81. In his submissions for the HCPC, Mr Bridges referred to the Sanctions Policy (March 2019) and in particular to the purpose of sanctions and the factors for assessing seriousness of dishonesty in the circumstances of this case. He stated that it was not the role of the HCPC to argue for a particular sanction, and he referred to case law, including Bolton v Law Society [1994] 1 WLR 512.     

 

82. The Registrant apologised to the Panel for his conduct, said he was sorry for his actions and that he understood how they looked to others. He said he would never again act in this manner and instead he would escalate any concerns that he might have in the future. He told the Panel that he would not bring the profession into disrepute again. Any suspension order that the Panel might impose would, he said, potentially cause him to lose the property that he had managed to buy five years ago. He said that he really enjoys his job and gave examples of research work that he has been doing as a Radiographer to protect renal function by scanning without contrast for patients with prostate cancer.      

 

83. The Panel has taken into account all the submissions of Mr Bridges and the submissions and representations of the Registrant, as well as the relevant parts of the Sanctions Policy, the Panel’s earlier findings and the evidence before it. The Panel has accepted the advice given by the Legal Assessor. 

 

84. The primary function of any sanction is to protect the public and the wider public interest. Sanctions are not intended to punish registrants, but instead to ensure that the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, a panel is required to apply the principle of proportionality.

 

85. In assessing the seriousness of the misconduct, the Panel has had particular regard to the section of the Sanctions Policy headed, ‘Serious cases.’ Paragraphs 56 – 58 address dishonesty. Dishonesty undermines public confidence in the profession and breaches Standard 9 of the HCPC’s ‘Standards of conduct, performance and ethics’ (paragraph 56). Dishonesty in the workplace can have a significant impact on the trust placed in the practitioner (paragraph 57). In this case, the dishonesty was a breach of trust as an attempted fraud by the Registrant on his former employer. This was a factor (albeit the sole factor) that aggravated the misconduct. 

 

86. The Sanctions Policy states that given the seriousness of dishonesty, cases where dishonesty is found proved are likely to result in more serious sanctions, though a nuanced assessment of the form and degree of the dishonesty is required (paragraph 58). 

 

87. In carrying out that assessment, the Panel bore in mind that the dishonesty in this case consisted of a single set of circumstances and took place over a short period. The Registrant did take an active role in the dishonesty in seeking to trick his former employer into giving him a pay increase to which he was not entitled. As such, the Registrant bore a high degree of culpability for his misconduct. 

 

88. Although any act of dishonesty is serious in the context of registered practice, the dishonesty in this case was not at the upper end of the range of seriousness. It was in substance a single incident that occurred in the context of a difficult relationship between the Registrant and his then manager and at a time of particular strain in the workplace caused by Covid-19. Although financial harm could have been caused to the Registrant’s former employer, the Registrant did not profit from his dishonesty as no increase to his pay actually occurred.   

 

89. Paragraph 58 of the Sanctions Policy requires the seriousness of the dishonesty to be weighed against the mitigating factors in the case. In the Panel’s judgment, these included the following matters.

 

90. The misconduct was an isolated occurrence in a long and otherwise unblemished career. The misconduct was not repeated and is unlikely to happen again. The Registrant has apologised for his misconduct and has shown genuine remorse in his representations to the Panel both at the impairment stage of this hearing, and at this, the sanctions stage.  The Registrant has acknowledged that what he did was wrong and has reflected on the Panel’s findings and demonstrated good insight into his misconduct. That insight included his acceptance of how his conduct looked to outsiders. It also consisted of his reflections on why he had acted as he did, his need for improved communication and his reflection that he would act differently if he were to encounter a similar situation, by escalating the issue appropriately. He has also taken positive steps in remediation of the misconduct by recognising that his communication was lacking and undertaking measures to improve it.

 

91. The Panel has borne in mind that this is a case where there is no significant risk to members of the public and the issue of sanction turns on the question of what, if any, action is needed in order to promote and maintain public confidence in the profession and to promote and maintain proper professional standards and conduct for members of the profession.

 

92. The Panel considered first whether ‘no action’ would be a suitable response to the impairment in this case.         

 

93. Even though the risk of repetition of the misconduct is low, to conclude this case by taking ‘no action’ would not reflect the seriousness of the misconduct. Any dishonesty in a registered setting is generally serious, and this case is no exception.  

 

94. The rigours of the regulatory process and the Panel’s findings of misconduct and current impairment do not sufficiently meet the demands of the wider public interest in this case in view of the seriousness of the misconduct, despite the mitigating circumstances.       

 

95. The Panel next considered the possibility of a caution order, which may be imposed for a period between one and five years. The Sanctions Policy states the following in relation to the sanction of a caution:-

 

‘101. A caution order is likely to be an appropriate sanction for cases in which: 

 

 

 

 

 

102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, [a] panel.. should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).’

 

96. As to the factors in paragraph 101, there is a low risk of repetition, the Registrant has shown good insight and has undertaken appropriate remediation of his dishonesty. Furthermore, this is a case where Conditions of Practice would not be appropriate, as conditions would not address the nature of the concerns. However, the Panel has further considered these matters and the question of whether the dishonesty was ‘isolated, limited or minor in nature’ by asking itself whether a sanction of suspension would be disproportionate, as required by paragraph 102 of the Sanctions Policy.      

 

Paragraph 121 of the Sanctions Policy states:-

 

‘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: 

 

 

 

 

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.’

 

Therefore, the considerations of seriousness, insight, remediation and risk of repetition are all present in paragraph 121 (suspension) as well as in paragraph 101 (caution).

 

97. It is also necessary to bear in mind paragraph 124 of the Sanctions Policy in particular, which states:-

 

‘Short-term suspensions can also be appropriate in cases where there is no ongoing risk of harm, but where further action is required in order to maintain public confidence in our professions.’

 

Paragraph 123 points out that short-term suspensions can have long-term consequences for a registrant, including dismissal from current employment. 

 

98. The Panel considers that the degree of seriousness of the misconduct is a key consideration in its assessment of the proportionality of a suspension order in this case. As paragraph 58 of the Sanctions Policy indicates, a nuanced assessment of the dishonesty is necessary. Its seriousness must also be weighed by reference to the aggravating and mitigating features of the misconduct. 

 

99. The requirements of honesty and trustworthiness are demanded of registrants and dishonesty undermines public confidence in the profession. In this case, the Registrant attempted a fraud on his employer and committed a breach of trust by doing so. However, this dishonesty occurred in an otherwise unblemished career of many years of registered practice with no repetition in the three years since the index events. It occurred in the context of a difficult professional relationship in circumstances aggravated by Covid-19. Although financial harm could have been caused to the Registrant’s former employer, the Registrant did not profit from his dishonesty. The Registrant has shown good insight into his misconduct, has apologised for it, shown remorse and acknowledged that what he did was wrong and he is unlikely to repeat his misconduct. Although the reputation of the profession as a whole is more important than the interests of any individual practitioner, that does not warrant the imposition of a sanction that would be disproportionate.  

 

100. Another aspect of the public interest that the Panel has borne in mind at this stage is if a registrant can provide a useful public service to society as a competent practitioner: see Bijl v GMC [2001] UKPC 42. That is so in this case, and the consequence of a suspension order (of any period) would be to deprive the public of the services of the Registrant, a competent practitioner who engages in useful research work and mentorship to staff.

 

101. In view of all the circumstances of the case, the Panel has asked itself whether the imposition of a caution order would promote and maintain public confidence in the profession and proper professional standards and conduct among members of the profession; or whether a suspension order is necessary to do so. 

 

102. The Panel concluded that all the requirements of paragraph 101 of the Sanctions Policy have been met and the degree of seriousness of the misconduct does not need to be marked by a suspension order. Members of the public aware of all the circumstances of this case – including a testimonial from his current employer attesting to his integrity and honesty – would be satisfied that the Panel has marked the Registrant’s misconduct by a finding of impaired fitness to practise and its disapproval of it with a caution order. A suspension order would be disproportionate to the seriousness of the wrongdoing, would risk unnecessary and significant adverse personal consequences for the Registrant and would deprive members of the public of the services of a competent and useful practitioner. 

 

103. The Panel has decided that a caution order of 18 months is sufficient in the circumstances of this case to mark the seriousness of the case.