Gagandeep Sharman

Preliminary Matters

Service

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

2. The Panel had been provided with the Registrant’s e-mail within the Certificate signed by the Registrar dated 9 March 2023. This confirmed the email address for the Registrant.

3. The Panel had sight of the Notice of Hearing dated 9 March 2023, which confirmed the date and time of the hearing, as well as informing him this would be a virtual hearing. It also offered the Registrant an opportunity to make submissions at the hearing and that the Panel may proceed in his absence.

4. A copy of the Notice of Hearing was emailed to the Registrant’s sister prior to 17 April 2023.

5. The Registrant’s sister (who has communicated on the Registrant’s behalf) provided a postal address on 18 April 2023 to accept service on behalf of the Registrant and stated, “this would be preferable as receiving the notice by post will distress him”.

6. The Panel also had a confirmation from a Scheduling Officer of the HCPTS who confirmed the Notice of Hearing was posted to the Registrant at his registered address on 24 April 2023. The Panel noted the proof of postage where “Sharman” had signed to receive this on 29 April 2023.

7. The Registrant’s sister was again provided another copy of the Notice of Hearing by email on 23 May 2023.

8. 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 or by post to the address within the HCPC register.

9. The Panel was satisfied that fair, proper and reasonable notice of the hearing today had been served on the Registrant by post and served on his representative by email. 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

10. The Panel noted the email from the Registrant’s sister dated 18 April 2023 stating that the Registrant did not intend to attend:

“I will not be attending, neither will the registrant. The registrant agrees to his registration being permanently removed [redacted]. As he is not disputing the allegations against him it does nto [sic] appear necessary for him to be represented.”

11. In support of the application to proceed in the Registrant’s absence, the Panel has been provided with submissions by the HCPC. Ms Angliss submitted significant efforts had been made to engage with the Registrant, his sister (representing him) confirmed the Registrant would not attend and Ms Angliss submitted that the Registrant had voluntarily absented himself. It was her view that any adjournment would prove to be a ‘fruitless exercise’. Whilst Ms Angliss accepted the potential disadvantage in the Registrant not attending, she submitted that the Registrant is aware of the consequences of not attending and was content in not attending this hearing.

12. 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 today’s hearing and had waived his right to appear.
13. 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 and that there is a general public interest for a hearing to take place within a reasonable time. It determined that it is in the interests of justice that the hearing takes place as soon as possible.
14. The Panel concluded that the Registrant has voluntarily absented himself as per the email received on his behalf, no adjournment had been sought and adjourning would serve no useful purpose. The Panel noted that there was engagement with the process before this decision was made by the Registrant. Any disadvantage to the Registrant is significantly outweighed by the public interest in ensuring that this hearing proceeds expeditiously. The Panel therefore determined to proceed in the absence of the Registrant.

Application to proceed in private

15. [Private]
16. [Private]
17. [Private]

Background

18. The Registrant was employed as a Band 6 Occupational Therapist by South Warwickshire NHS Foundation Trust (“the Trust”) from June 2017.

19. The HCPC received a referral from the Trust on 4 February 2020 regarding an internal investigation following complaints from one of the Registrant’s colleagues (Person B). She complained the Registrant had sexually assaulted her on two occasions, namely on 31 October 2019 and 11 November 2019. The allegations related to sustained sexual assaults committed by the Registrant whilst he and Person B were working together at the Leamington Spa Rehabilitation Hospital. She also complained he had sexually harassed her by sending messages via Facebook messenger between 31 October 2019 and 15 November 2019.

20. The Registrant had also previously been the subject of a police investigation following a complaint made by the wife (Person A) of a vulnerable service user. She complained that the Registrant had treated her husband on 26 March 2019 and then left, but returned to her address and sexually assaulted her. Whilst the police had originally taken no further action in respect of that allegation, the allegation itself was subsequently reopened following the complaints made by Person B (and the associated police investigation that followed) and was referred to the Crown Prosecution Service.

21. The Registrant was subsequently charged with three allegations of sexual assault: one against Person A (count 1 on the indictment), and two against Person B (counts 2 and 3). Whilst the Registrant originally entered not guilty pleas before Warwick Crown Court, he then changed his pleas to guilty on 26 July 2021 in respect of counts 1 and 3, on an agreed basis.

22. The Registrant was subsequently sentenced at Warwick Crown Court on 27 October 2021. This was to a total sentence of 26 months’ immediate imprisonment. He was also made subject to a Restraining Order for a period of 10 years. Additionally, he was also ordered to sign the Sex Offenders Register for 10 years.

23. The Registrant was released from custody on 25 November 2022.

The Hearing

24. No formal admissions had been made.

25. No live evidence was heard, and no witness statements were submitted.

26. The HCPC relied upon the Certificate of Conviction, the transcript of the sentencing hearing at Warwick Crown Court, police interview notes with Person A and the Trust investigation’s interview notes with the Registrant. Ms Angliss relied upon her skeleton argument as well as submissions made at the hearing.

27. The Panel did not have any live evidence or submissions from the Registrant to consider, however the Panel had sight of email communication between the Registrant’s sister and the HCPC.

Decision on Facts:

28. Before making any findings on the facts, the Panel heard and accepted the advice of the Legal Assessor. The Panel has read the bundle from the HCPC and the correspondence from the Registrant’s sister on his behalf.

29. 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. The Panel has carefully considered the evidence in the round, giving appropriate weight to the documentary evidence.

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

Particular 1 - Proved

1. On 26 July 2021, you were convicted at Warwick Crown Court of two counts of sexual assault of a girl 13/14/15/woman 16 or over – no penetration.

31. The HCPC obtained a Certificate of Conviction from Warwick Crown Court signed by a representative of the court on 3 November 2021.This confirmed that on26 July 2021the Registrant admitted to a charge of “sexually assault a girl 13/14/15/woman 16 or over–no penetration”.

32. It also confirmed that on 27 October 2021 - the Registrant was sentenced as follows: “26 months imprisonment. To sign sex offenders register for 10 years. Restraining order”.

33. The Restraining Order was detailed to include “Having any contact, directly or indirectly with Person B or Person A including by any form of social media or through encouraging or instructing any other person. Order made for 10 years concurrent”.

34. The fact of the Registrant’s conviction as alleged in Particular 1 is proved by the extract of conviction. The Panel relied on Rule 10 (d) of the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003 states that “where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland an extract of conviction) shall be admissible as proof of the findings of fact upon which it was based.”

Particular 2 – Not yet considered

2. You have a physical and/or mental health condition as set out in Schedule A.

35. Ms Angliss submitted this Particular would remain on hold pending the outcome of the finding on Particular 1.

Decision on Impairment:

36. The Panel took into account the submissions of Ms Angliss on behalf of the HCPC. The Panel had regard to the HCPTS Practice Notes on “Fitness to Practise Impairment” and “Conviction and Caution Allegations” and accepted the advice of the Legal Assessor.

37. 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”.

38. 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.

39. 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.

40. 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;

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

42. 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.

43. By reason of his conviction, the Registrant was in breach of the following standards of the HCPC Standards of Conduct, Performance and Ethics (2016):

• Standard 1.1 – “You must treat service users and carers as individuals, respecting their privacy and dignity.” The Registrant failed to respect the privacy and dignity of Person A and the privacy of her husband with the offence committed downstairs whilst Person A’s husband was upstairs.
• Standard 6.1 – “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible. “Both Person A (carer) and Person B (colleague) were put at risk of harm.
• Standard 6.2 – “You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.” In the same manner as above, both Person A and Person B had been put at risk.
• Standard 9.1 - “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.” The Registrant had abused the public’s trust in him by committing sustained and repeated sexual assaults. The Panel also noted that when the Registrant assaulted Person B he was on restricted duties as he was being investigated for the offence against Person A.

44. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel took into account both the “personal” and “public” components of impairment referred to in the case of Grant. The “personal” component relates to the Registrant’s own practice as an Occupational Therapist, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

45. With regard to the “personal” component of impairment, a guilty plea at the first opportunity would indicate greater insight but the Panel noted that the Registrant had not pleaded guilty at the Trust investigation, police interview or the first court hearing. He waited until later in the court process before pleading guilty and as a result, the police had to go through Person B’s phone to download evidence and thus allowing access to other material she did not want others to see.

46. Part of insight involves recognising the consequences of your actions. The sentencing remarks of the Crown Court Judge showed the detrimental impact on both victims. Person A made a victim impact statement 17 months after the assault for the criminal proceedings and outlined how the assault in her own home had affected her. Person B was severely affected.

47. Both offences were in the presence of others, and this did not appear to deter the Registrant; Person A’s husband was upstairs at the relevant time and there was a colleague present in the training room at the time the assault started against Person B. The Registrant forced his way into the home of Person A and ignored her pleas to stop. The Registrant was already being investigated for the allegations in relation to Person A when he subjected Person B to a similar ordeal.

48. It was noted by the Panel that this type of conduct is difficult to remediate. The Panel were not satisfied that the Registrant had demonstrated any action to adequately address his behaviour and to avoid future repetition. There was no evidence of insight, and the delayed guilty plea had a reduced effect on displaying any potential insight. There was no evidence that Registrant understood the implications of the offence and thus there remained a risk of repetition. The Panel therefore found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.

49. The Panel also found the “public” component of impairment to be satisfied in this case. The practice of an Occupational Therapist involves looking after patients who are vulnerable and working with their relatives and carers. A member of the public would be extremely concerned if an Occupational Therapist convicted of sexual assaults (involving a carer/relative and a colleague) were permitted to continue in practice without restriction. In the Panel’s judgement, the Registrant poses a potential risk to members of the public and a finding of current impairment is necessary for public protection.

50. In addition, the Panel considered that a finding of current impairment is necessary to uphold professional standards. Public confidence in the profession and in the HCPC as its Regulator would be seriously undermined if there were no finding of impairment.

51. Accordingly, the Panel found that the Registrant’s fitness to practise is impaired having regard to both the “personal” and “public” components of impairment.

Decision on Sanction:

52. The Panel heard submissions from Ms Angliss and in reaching a decision on the sanction it has taken these submissions into account. She submitted the Registrant should not be able to continue working unrestricted. Whilst acknowledging that the Registrant was released on licence, Ms Angliss observed that he was still subject to a Restraining Order and ordered to sign the sex offenders register until October 2031. She submitted being on the sex offenders register was not compatible with protecting the public. Her view was that the guidance was clear in that the only appropriate sanction is a Striking Off Order.

53. There was no evidence from the Registrant in relation to sanctions for the Panel to consider.

54. 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.

55. 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.

56. 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.

57. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

58. The Panel began its deliberations on sanction by considering the mitigating factors. The Registrant had a previously unblemished career in his professional practice and has not been subject to any previous fitness to practise proceedings. The Crown Court judge acknowledged there being genuine remorse. There was a guilty plea, although this was certainly not on the first available occasion.

59. The Panel then considered the aggravating factors and considered there had been a serious breach of trust involving the carer (Person A). The Registrant had used his professional status to gain entry to Person A’s home and pursue a sexual encounter. There was a pattern of the unacceptable behaviour involving sexual misconduct against both a carer and then a colleague. This is indicative of a lack of insight and a greater likelihood of repetition. There was no evidence available to the Panel of remediation or reflection.

60. The Registrant’s actions had led to convictions by the criminal court. The Registrant was still on the sex offender’s database which is normally a strong factor against a return to unrestricted practice.

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

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

63. 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, there is a risk of repetition and no evidence of remediation.

64. The Panel next considered a Conditions of Practice Order. The Panel did not consider conditions as appropriate for sexual misconduct. There had been no insight displayed. 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 on the basis that his assault on Person B was committed whilst working under restrictions following the complaint by Person A. The Registrant’s misconduct was serious and there was a risk of repetition. In the circumstances it has determined that the Registrant’s misconduct was too serious for a Conditions of Practice Order to be appropriate.

65. 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 his failings. The Panel considered the offences were serious involving sexual misconduct, he still remains on licence, there was a lack of insight, an absence of remediation and there remained a risk of repetition.

66. 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 sexual misconduct and criminal convictions. 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 sexual behaviour and the Panel remained concerned of the risk of repetition.

67. 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 which was fundamentally incompatible with remaining on the HCPC register.

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

Order:
That the Registrar is directed to strike the name of Mr Gagandeep Sharman from the Register on the date this order comes into effect.

Application for an Interim Order

Application to proceed in the Registrant’s absence:

1. Ms Angliss 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 9 March 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. Ms Angliss 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 Ms Angliss to cover the appeal period by imposing an 18-month Interim Suspension Order on the Registrant’s registration.

4. Ms Angliss submitted particular 1 was found proved and covered the criminal convictions, which had also been found proved to the higher criminal standard of proof by the Crown Court. She submitted there was thus cogent evidence for the requirement and basis of an Interim Order. She further submitted the grounds for the Interim Order were that the order was necessary to protect the public and is otherwise in the public interest on the basis of the proven convictions found as well as the significant harm to Person A and Person B. She did not believe an Interim Conditions Order would provide sufficient protection. Ms Angliss sought an Interim Suspension Order and submitted this was the only proportionate order given the Striking Off Order made. She sought an order for 18 months to cover the period of any appeal to the High Court.

Panel decision on an Interim Order:

5. 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.

6. The Panel recognised that its powers to impose an interim order are 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. The Panel took into consideration the impact of such an order on the Registrant.

7. The Panel decided to impose an Interim Order under Article 31(2) of the Health Professions Order 2001. It has had regard to the nature and gravity of the conduct it has found proved. The Panel was satisfied on the basis and requirement of an Interim Order given the facts found proved. In the judgment of the Panel, the risk of repetition identified in the substantive decision and the associated risk of harm that could result from repetition mean that an interim order is necessary to protect members of the public. It is also required in the wider public interest. The Panel was in no doubt that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an Occupational Therapist during the appeal period.

8. 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.

9. The period of the Interim Suspension Order is for 18 months to allow for the possibility of an appeal to be made and determined.

10. 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.

11. Ms Angliss confirmed to the Panel that as it has made a Striking Off Order in this case in respect of the primary allegation of misconduct (Particular 1), the secondary allegation around the Registrant's health (Particular 2) will now fall away as the HCPC will no longer have jurisdiction (unless the Registrant successfully appeals this Substantive Order). Accordingly, there was no determination required on Particular 2 by the Panel.

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 an Order) the final determination of that appeal; subject to a maximum of 18 months.

History of Hearings for Gagandeep Sharman