Sipho Nkanyezi

Preliminary Matters

Service

1. The Registrant nor his representative attended this hearing. The Panel had before it written and oral submissions provided by Ms Clare Strickland. These are referred to below.

2. The Panel first considered whether the Registrant had been given proper notice of this hearing.

3. The Panel had before it the following documents:

1. A copy of an email dated 20 November 2023, sent to the email address of the Registrant held by the HCPC on the Paramedic part of the HCPC Register. That email gave notice of the time and place of the remote hearing and contained instructions to enable the Registrant to attend.
2. A ‘proof of service’ document stating that the HCPTS had emailed a Notice of Hearing of this review to the Registrant to his registered email address on 20 November

4. The Panel heard the advice of the Legal Assessor, which it accepted and followed in this decision.

5. The Panel found that the email correspondence set out above showed that the Registrant had been given proper notice to appear before the Panel.

Proceeding in Absence

6. The Panel next considered whether it should exercise its discretion to conduct this hearing in the absence of the Registrant. The Panel had regard to the HCPTS Practice Note titled “Proceeding in the Absence of the Registrant”, dated September 2018, the decision of the House of Lords in R v Jones [2002] UKHL 5, and the further guidance given to panels by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162.

7. The Panel found that there was no reason to believe that an adjournment would result in the Registrant attending this hearing in the future. He has not applied for an adjournment and nor has he otherwise had any contact with the HCPC. The Panel accepted that there was inevitably a potential disadvantage to a registrant who did not attend a hearing, but it balanced that against the Registrant’s absence and the necessity of completing this hearing in an expeditious way.

Background

8. The Registrant is a registered paramedic with the HCPC.

9. In terms of the background information, in 2019, he was employed at London Ambulance Service NHS Trust. On the night of 3 – 4 May 2019, he was invited to a social night out by Person 1, a female colleague. She arranged an evening out with a group of friends and agreed that the Registrant could stay overnight at her home (along with other people in the group).

10. They spent the evening at a bar and a club. During that time, the Registrant, who seemed drunk, made Person 1 feel uncomfortable. He stared and leered at her, and kept coming up behind her, dancing and grinding his groin into her bottom.

11. The group returned to her flat and went to bed. The Registrant was in the living room with two other people. Person 1 was in her bedroom with a friend. During the night, she became aware of the Registrant in her room. She believed he was collecting his belongings, so ignored him and tried to go back to sleep. He then came over to her and put his hand down the front of her pyjama shorts, touching her vagina. She snapped her legs crossed. He moved his hand under her pyjama top and touched her bare breast, playing with her nipple. She was petrified and froze, then turned away. The Registrant put his hand back into her shorts and touched her bottom and vagina again. He did not penetrate her vagina at any time during the assault.

12. Person 1 called to her friend, saying “Get him to stop”, and the Registrant withdrew his hand. Person 1 ran from the room in distress and asked her friends to get rid of him. She reported to them what he had done.

13. The Registrant left Person 1’s home, but later contacted her via a messaging service. Person 1 tried to block his messages, but he persisted in sending them and tried to call her. Person 1 stated he had sexually assaulted her, and the Registrant said he was sorry and asked to talk to her. He said, “If I offended you tonight in any way, I apologise”.

14. Person 1 reported the assault to the police. They interviewed the Registrant under caution on 6 May 2019. He suggested that Person 1 had invited him to sleep in her bedroom, and that she had had kicked him out of her home in the middle of the night for no reason he knew of. He denied touching her sexually.

15. The Registrant was charged with sexual assault on a female. His trial took place in December 2021. He pleaded not guilty. Person 1 gave evidence. He was convicted and sentenced to 18 months’ imprisonment suspended for 24 months. He was made subject to an indefinite restraining order to protect Person 1, and ordered to pay her compensation of £2000, as well as paying costs of £2800. He is subject to notification requirements as a sex offender for 10 years.

16. When sentencing the Registrant. the Recorder concluded that:

• Person 1, who had a predisposition to suffer from post-traumatic stress disorder and anxiety, suffered significantly following the assault, including having thoughts of suicidal self-harm.

• The offence was a breach of trust as a colleague and friend, which took place in Person 1’s home where she should feel safe.

• The Registrant was under the influence of alcohol at the time.

• The Registrant continued to message Person 1 in a deflective manner after the incident.

• The Registrant was a 37-year-old man of good character. It was to his credit that, having moved with his family to Australia, he returned to face his trial.

17. Person 1’s friends describe the significant distress she was in immediately after the assault, and the serious impact this incident had on her wellbeing.

Decision on Facts/Grounds

18. The Panel was provided with the relevant Certificate of Conviction. The Panel was satisfied that it relates to the Registrant and shows that he was tried and convicted of a sexual assault on a female. The Panel was satisfied that the Registrant has not appealed either the conviction or sentence. Accordingly, it finds the Allegation is found proved on the balance of probabilities standard and the statutory ground is made out.

Decision on Impairment

19. Ms Strickland submitted that the Registrant’s fitness to practise is currently impaired by reason of his conviction. She submitted that the Registrant’s conduct is not easily remediable. She said that he committed a grave criminal offence on a colleague who had trusted him enough to invite him into her home. She stated that his behaviour was a gross breach of that trust. The offence had a significant impact on her health and well-being, causing her serious harm. Rather than being remediable, she submitted that such conduct is fundamentally incompatible with being a registered professional.

20. Ms Strickland reminded the Panel that the Registrant is included on the sex offenders’ database for 10 years. She highlighted that a panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in unrestricted practice while they are on the sex offenders’ database. A finding of impairment is a necessary precondition to the imposition of restrictions.

21. Ms Strickland stated that there is no evidence of remedial action taken by the Registrant. He denied the allegation (as he was entitled to) but has not otherwise demonstrated to the HCPC that he recognizes the serious adverse impact that sexual misconduct has on the breach of trust and the good working relationships between colleagues.

22. In the absence of any evidence of remedial action, Ms Strickland stated that there is limited material upon which the Panel can assess the risk of repetition, although it should note that the incident took place in 2019 and the Registrant was convicted in 2021, and there has been no apparent repetition in that time.

23. In any event Ms Strickland added that that HCPC submits that there is a particularly strong public interest in a finding of impairment, given the gravity of the offence.

24. Ms Strickland submitted that the Registrant has fallen seriously short of the standards of decency, honesty and integrity that the public expects from HCPC registrants. He has committed a very serious criminal offence of sexual misconduct towards a colleague, in gross breach of her trust in him. By virtue of his conviction, a jury concluded that his account of events was untrue.

25. She submitted that a finding of impairment on the public component is necessary to maintain confidence in the profession and to maintain the clear and unambiguous message to the profession and the public that offending of this sort cannot be tolerated.

26. The Panel heard and accepted the advice of the Legal Assessor

27. The Panel noted that the issue of impairment is a matter for the Panel exercising its own professional judgement. In respect of ongoing risk, the Panel is satisfied that the is no evidence of any remedial action taken by the Registrant. He denied the allegation (as he was entitled to), but he has not otherwise demonstrated to the HCPC or to this Panel that he recognizes the serious adverse impact that sexual misconduct has on the breach of trust and on the good working relationships between colleagues. In the absence of such evidence the Panel concluded that the Registrant may well pose an ongoing risk to colleagues and therefore he is impaired on the personal component.

28. In respect of the public component of impairment, the Panel was satisfied that the Registrant has fallen seriously short of the standards of decency and integrity that the public expects from HCPC registrants. He has committed a very serious criminal offence of sexual assault towards a colleague, in gross breach of her trust in him. By virtue of his conviction, a jury concluded that his account of events was untrue. The Panel noted the HCPTS practice note on impairment which says that: The public is entitled to expect registrants to be professionally competent and act with decency ….and integrity.

29. The Panel was satisfied that this is a clear case where a finding of impairment on the public component is necessary to maintain confidence in the profession and to maintain the clear and unambiguous message to the profession and the public that offending of this sort cannot be tolerated. This also reflects the position that the Registrant remains subject to the notification requirements as a sex offender for a period of 10 years since the date of sentence.

30. For the reasons above the Panel concluded that the Registrant is currently impaired by reason of his conviction.

Decision on Sanction

31. Ms Strickland referred to the HCPTS sanctions policy generally, and the following sections which may have particular relevance in this case:

• Serious cases – sexual misconduct, paragraph 76
• Serious cases – criminal convictions and cautions, paragraph 82

32. The Panel heard and accepted the advice of the Legal Assessor.

33. In determining what sanction, if any, is appropriate, the panel first considered the least restrictive sanction first, working upwards only where necessary. The Panel reminded itself that the final sanction should be a proportionate approach and will therefore be the minimum action required to protect the public and be otherwise in the public interest.

34. The Panel had regard to the Sanctions Policy and was satisfied that mediation, to take no action or imposes a caution order in this case would not meet the seriousness of the conviction.

35. Turning next to whether a Conditions of Practice order would be appropriate. The Panel noted that conditions are less likely to be appropriate in cases where the following factors are present:

• There is no evidence of insight or remediation.
• Abuse of professional position, including vulnerability
• Sexual misconduct
• Criminal convictions for serious offences

36. The Panel concluded that all the above factors applied in this case and therefore Conditions of Practice would not be appropriate or proportionate.

37. The Panel considered whether a sanction of suspension would be appropriate but concluded it would not be because it is only likely to be appropriate where the serious concerns, although not being reasonably addressed by a conditions of practice order, do not require the registrant to be struck off the Register.

38. The Panel was satisfied that this is a case where paragraph 85 of the Sanctions Policy applies, namely a panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database. Furthermore, the Panel was concerned to note that the Registrant has not engaged with the HCPC at all, nor has he provided evidence of remediation or insight.

39. The Panel was satisfied that this is a case where a striking off order is appropriate and proportionate because the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, maintain public confidence in the profession, and public confidence in the regulatory process. The Panel was satisfied that any lesser sanction would not be appropriate or proportionate.

Interim Order

Application

1. Ms Strickland reminded the Panel that Article 31 of the Order provides the panel with the discretionary power to impose an interim conditions of practice order or an interim suspension order. This will apply from the imposition of the substantive order, until the end of the appeal period, or where an appeal is made, the end of the appeal process.

2. The Panel heard and accepted the advice of the Legal Assessor.

3. The power to impose an interim order is discretionary. The Panel carefully considered whether an interim order is necessary. It was satisfied that an interim order is necessary in his case because:

• In the absence of any evidence of remediation, there is a serious and ongoing risk to service users or the public from the registrant and
• the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.

4. The Panel therefore determined to impose an interim order of suspension for a period of 18 months to cover any appeal period.

Order: The Registrar is directed strike off the Registrant from the Register.

Right of Appeal

An appeal can be made to the High Court in England and Wales against the Panel’s decision and the order it has made against the Registrant.

History of Hearings for Sipho Nkanyezi