Gavin Bettencourt

Preliminary matters

Service

1. On 25 September 2023 the HCPC emailed the Registrant at his last known registered email address with the Notice of Hearing. In reaching its decision, the Panel accepted the Legal Assessor’s advice. The Panel determined that there had been good service of the hearing notice email in accordance with Rules 3 and 6 (2) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) and Rule 2A of the Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021 (the Amended Rules).
2. Although the HCPC does not have to prove receipt of the Notice of Hearing, the Panel has seen proof of receipt in the service bundle, and the Panel also noted the Registrant’s comment as follows on 2 November 2023:

"I will not be attending due to issues with my mental health that have been communicated throughout the process”.

3. This indicated to the Panel that the Registrant is aware of this hearing.
4. Thus, the Panel determined that there has been good service of the Notice of Hearing.

Proceeding in Absence:

5. In reaching its decision, the Panel accepted the Legal Assessor’s advice and paid regard to the HCPTS’ Practice Note on ‘Proceeding in the Absence of Registrants’. The Panel also noted the submission of Mr Barnfield for the HCPC and Rule 9 of the Rules, relating to “all reasonable efforts” having been made to serve the Registrant with the said Notice of Hearing.
6. The Panel determined that the hearing should be conducted in the Registrant’s absence for the following reasons:

• The Registrant has had good service of the Notice of Hearing and has responded that he wished not to attend and was keen for the hearing to proceed;
• The Registrant has voluntarily absented himself from attending the hearing, as evidenced by his 2 November 2023 email to the HCPC;
• There is no evidence that an adjournment would realistically secure the Registrant’s attendance at a future date;
• There is a public interest in the expeditious disposal of the matter at the listed final hearing of these historic matters.

Background:

7. The Registrant was convicted at Newcastle Magistrates Court on 20 September 2022 of downloading, over a period of 14 months from April 2019 to June 2020, a total of 2762 indecent images and videos of children, 1098 of them being Category A and the remainder being Category B and C with one extreme pornographic image and one prohibited image. The Registrant pleaded guilty and was committed to Newcastle Crown Court for sentencing. On 2 February 2023, at Newcastle Crown Court, the Registrant was sentenced to a sentence of 10 months’ imprisonment, concurrent with a 4 month prison sentence and 2 month prison sentence, suspended for 18 months. A 30 Day Rehabilitation Activity Requirement Order was also made against him. He was placed under a curfew for 120 days and the Registrant was also put under a 10 year Sexual Harm Prevention Order.
8. At no time after being charged before 20 September 2022 and/or on or after being convicted of the five criminal convictions on 20 September 2022 and/or on or after being sentenced on 2 February 2023, did the Registrant report his charge and convictions to his regulatory body, the HCPC, contrary to his professional duty to do so.
9. In relation to Particulars of Allegation 1) a), b), c), d) and e), the Prosecution case was stated as follows at the sentencing hearing on 2 February 2023 at Newcastle Crown Court:

“Some of the videos in Category A were penetrative sex with a one-month-old baby. The range of the children-- the victims was between one month and 13 years old. There were also 138 Category B still images and 329 Category B videos. Category C images is a total of 912 and 285 videos. The extreme pornographic image was a video of oral sex between a woman and a dog.

In interview, he admitted downloading the images. He said these were not downloaded individually. He was interested in the sexual images involving prepubescent girls, so around 10 years old, and he masturbated when he watched these. But he was disturbed and upset by images involving babies and animals.”

At the sentencing hearing, the Judge made the following comments in his sentencing remarks:

“…It was in June 2020, some time ago, as a result of an investigation triggered by information, police attended, searched your home address and seized a mobile iPhone, upon which were found the images that form the basis of the three-- or, rather, of the charges. I note you provided passwords. Having done so, the police were able to download those images. You’d been downloading and viewing those images over a period of some 14 months.

Charge 1, clearly the most serious, involves the possession of 127 still images and 971 moving images or videos of Category A. And that apparently includes an image of a one-month-old baby being abused. Charge 2, 138, that’s still images, and 329 videos of Category B. And charge 3, 912 still images and 285 videos of Category C.

Category A possession represents, as the letter indicates, the worst example of indecent images of children, illustrating penetrative sexual activity. The ages of the children range between that one-month-old baby and 13 years of-- and children 13 years of age. Now, in determining an appropriate sentence in your case, Mr Bettencourt, I apply the guidance issued by the Sentencing Council.

Now, charge 1, clearly the most serious of the charges to which you’ve pleaded guilty, concerns the possession of Category A images and videos. The start point for that is one year’s custody with a range of 26 weeks’ custody to three years.

In terms of the Category B offence, the start point is one of 26 weeks’ custody, a range of a high level community order to 18 months’ custody. And insofar as Category C is concerned, a start point of a high level community order and a range of a medium level community order to 26 weeks’ custody.

The aggravating factors that serve to increase any sentence from that notional start point: the period over which-- the period of time over which these images were downloaded; there were, of course, a large number of images, many of which were moving images; and also the age and vulnerability of the children depicted, which is not necessarily catered for within the categorisation…

However, in mitigation, you have no previous convictions. You are of positive good character. You provided passwords. You made full admissions. And you’ve demonstrated remorse which I consider to be genuine and not simply a product of the predicament in which you find yourself today.”

10. The Judge then referred to the Registrant’s health condition, that he had noted the encouraging self-awareness that was referred to within the Registrant’s pre-sentencing report and his remorse. The Judge also noted that the pre-sentencing report referred to the Registrant being considered as a low risk of reoffending but a medium risk of serious harm to children. The Judge also concluded that the Registrant has demonstrated “a good level of insight, awareness and understanding of the actual harm that this type of offending causes” and that the pre-sentence report described the Registrant as being “acutely aware of inadvertent harm”, which the Judge found to the Registrant’s credit.
11. The Judge sentenced the Registrant to the following:

• 15 months’ imprisonment, reduced to 10 months’ imprisonment as credit for the Registrant’s guilty plea, for the Category A offences;
• 6 months’ imprisonment, reduced to 4 months’ imprisonment as credit for the Registrant’s guilty plea, for the Category B offences to run concurrently with the 10 months’ imprisonment sentence;
• 3 months’ imprisonment, reduced to 2 months’ imprisonment as credit for the Registrant’s guilty plea, for the Category C offences, also to run concurrently with the 10 months’ imprisonment sentence;
• The total 10 months’ imprisonment sentence to be suspended for 18 months.
• 30 Rehabilitation Requirement Days;
• A curfew for 120 days from 8pm to 7am with a requirement for the Registrant to remain in his own home in that time, and with electronic tagging in place;
• A 10 year Sexual Harm Prevention Order.

12. In relation to Particular 2 of the Allegation, Person I stated in their witness statement dated 24 October 2023 as follows:

“The Registrant first registered with the HCPC on 21 July 2016 and was continuously registered until 31 May 2020, at which point the Registrant’s registration lapsed as the Registrant did not renew his registration. The Registrant applied for readmission to the register on 20 January 2022 and came back on to the register on 4 February 2022.

Having reviewed the HCPC registration system I can confirm we hold no record of the Registrant making a self-referral at any time during his registration with the HCPC between 21 July 2016 and 31 May 2020. Additionally, there is no record of the Registrant making a self-referral at any time after his readmission to the register on 4 February 2022……Having reviewed the HCPC registration system, I can also confirm that when the Registrant applied for readmission on 20 January 2022, the Registrant made no character declaration…..the HCPC has subsequently established that the Registrant was convicted on 20 September 2022. The Registrant should have made a self-referral as soon as possible after he was convicted, which he did not do….At the time of providing this statement, the HCPC has not received information to confirm the date that the Registrant was charged for the offences for which he was subsequently convicted. However, the Registrant should have made a self-referral as soon as possible after being charged….On 27 October 2022, the Registrant submitted a request through the HCPC’s online systems to voluntarily deregister from the Register. The Registrant was unable to deregister as he was under a Fitness to Practice investigation.”

13. The Registrant has not engaged with the HCPC save to seek Voluntary Removal from the Registrar and to ask to be left alone. In an email to the HCPC dated 5 July 2023, the Registrant stated as follows:

“I have requested many times that you just get on with the process and I’m not putting up any arguments. So it’s very unnecessary to keep contacting me for comment. I’m under enough mental stress and I’ve repeatedly stated as such“ .

On 2 November 2023 the Registrant emailed the HCPC stating:

 “ I will not be attending due to issues with my mental health that have been communicated throughout the process.”.

Facts

14. The Panel took into consideration that in a conviction case the conviction proves the facts which cannot be impugned. It also noted that the standard of proof in all cases is on the balance of probabilities. In reaching its decisions, the Panel accepted the Legal Assessor’s advice and paid regard to the entirety of the evidence before it, including the oral evidence of Person I, the Registrations Manager at the HCPC, in relation to Particular 2 of the Allegation and the oral submission of Mr Barnfield.

Decision on the facts:

Particulars of Allegation:

15. 1a),1b),1c),1d),1e) – The Panel considered these separately.
16. All proved by reason of conviction.
17. The Panel was satisfied that the following evidence from the HCPC bundles set out the facts accurately and that they are without challenge, either in the criminal court hearings or since:

• the signed North Shields Magistrates Court extracts of the five convictions (certified by a Court Officer on 5 June 2023), when viewed together with…
• the prosecution’s summary on 2 February 2023 to the Court, and…
• the learned Judge’s sentencing remarks expressly setting out the sentence he passed on the Registrant on 2 February 2023.

18. The Panel was satisfied that the North Shields Magistrates Court memoranda of conviction were properly certified by the Court Clerk on 5 June 2023, albeit that this action took place on a date after the Registrant’s sentencing hearing at Newcastle Crown Court on 2 February 2023. The Panel determined that this was an administrative omission that was rectified and that it did not invalidate the authenticity of the memoranda of all five convictions.
19. The Panel was satisfied from the email evidence provided to it by Mr Barnfield that the solicitors acting for the HCPC, Capsticks, had identified the omission on 5 June 2023 and that this had been rectified by the Court on that day.

2) Proved.

20. The Panel accepted the evidence of Person I as consistent and unchallenged, and the Panel had no other evidence before it to undermine Person I’s evidence.
21. In addition, the Panel was satisfied that the self-referral reference in Standard 9.5 of the Standards refers to the requirement for all registrants to self-refer “as soon as possible” after being charged with, or being found guilty of, a criminal offence.
22. The Panel was satisfied that there was no such declaration by the Registrant to the HCPC, whether by completing a self-referral form, by email, by letter or by telephone call, when he was charged with the criminal offences at a time before 20 September 2022 or at a time after this; for example, on conviction in the North Shields Magistrates Court on 20 September 2022, or thereafter, on sentencing at Newcastle Crown Court on 2 February 2023.
23. Furthermore, the Panel noted that there was no record of any such self-referral even when the Registrant had another opportunity to do so, when applying for Voluntary Removal on 27 October 2022.
24. Thus, for these reasons, this Particular of Allegation has been proved on the balance of probabilities.

Misconduct

25. In reaching its decisions, the Panel paid regard to the HCPC’s Standards of Conduct, Performance and Ethics (the Standards) and the Standards of Proficiency for Physiotherapists (the Standards of Proficiency). The Panel accepted the Legal Assessor’s advice. It also noted the oral submission of Mr Barnfield.
26. The Panel noted that this case concerned the downloading by the Registrant of a large number of disturbing and deeply shocking images and videos of children in Categories A, B and C, particularly the large amount of Category A images and videos. These offences took place over a 14 month period and the Registrant failed to declare these extremely serious criminal matters at any time when he was either charged or convicted or later.
27. The Panel considered that this conduct fell far below the standards expected of a registered physiotherapist, and, in the Panel’s judgement, it was deplorable conduct.
28. The Panel determined that, in so failing to report his serious criminal conviction, the Registrant breached the following fundamental tenets of the profession:

Standard 9.5 of the Standards, as follows:

“Standard 9: Be honest and trustworthy….

…You must tell us as soon as possible if:

–  you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence……..”

29. In the Panel’s judgement, the Registrant had at least one opportunity in October 2022 to self-refer to the HCPC and had failed to do so. The Panel concluded that this was deliberate and, to that end, the Registrant’s lack of transparency from the date he was charged demonstrated his complete lack of insight, empathy and respect towards his victims - the children whose images he salaciously viewed - towards patients, towards his fellow professionals, towards his regulator and towards the public.
30. The HCPC was entitled, as the Registrant’s regulatory body, to receive full and immediate information when he was charged and, again, when convicted. This was in relation to the HCPC’s vital public protection role. If the HCPC had no information about the Registrant’s serious charges and later convictions, it had no way of being able to protect the public and especially in this case, vulnerable children, from the Registrant. Thus, in the Panel’s judgement, the Registrant’s lack of transparency put at risk of harm the health, safety and welfare of the public.
31. Further, the Panel also concluded that the failure of the Registrant to be open and transparent with his regulatory body has brought the profession into disrepute and undermined the confidence that the public is entitled to have in the profession and in its regulatory process. The Panel concluded that an informed and reasonable member of the public would be shocked to hear about this case, which is extremely serious, and where the Registrant’s lack of candour with his regulator was intrinsically linked to his serious sexual offences convictions.
32. For these reasons, the Panel determined that the facts found proved in relation to Particular of Allegation 2) amount to misconduct.

Impairment

33. In reaching its decision, the Panel paid regard to the HCPTS’ Practice Note on “Fitness to Practice Impairment” and it accepted the Legal Assessor’s advice. The Panel took note of Mr Barnfield’s submission. The Panel also exercised the principle of proportionality at all times.
34. The Panel based its conclusions on Impairment on the Registrant’s proved convictions and on the ground of misconduct which has been found proved.
35. The Panel reviewed the convictions and the Judge’s remarks on sentencing. It noted that there were aspects of his case that had revealed to the Judge certain positive elements to the Registrant’s attitude and conduct during the investigation and trial process. These included that the Registrant had demonstrated some insight as referred to by the sentencing Judge as follows:

“…you have no previous convictions. You are of positive good character. You provided passwords. You made full admissions. And you’ve demonstrated remorse which I consider to be genuine and not simply a product of the predicament in which you find yourself today.”.

36. The Panel also noted that the Judge had commented that the Registrant had demonstrated “a good level of insight, awareness and understanding of the actual harm that this type of offending causes” and that the pre-sentence report described the Registrant as being “acutely aware of inadvertent harm”, which the Judge had found to the Registrant’s credit. The Panel also took into consideration that the Judge had noted from the pre-sentencing report that the Registrant was considered as a low risk of reoffending but a medium risk of serious harm to children. There was also a reference to the Registrant’s health.
37. Whilst the Judge’s comments referred to some insight by the Registrant, the Panel concluded that it was insight directed solely to the criminal investigation and it did not touch upon the consequences to his patients, the public, especially vulnerable children, his colleagues, his profession and his regulatory body within his professional role as a registered physiotherapist.
38. The Panel also concluded that the Judge’s remarks about the Registrant’s more positive attitude could not obviate the overriding extreme seriousness of the convictions, which involved the downloading of over 2700 moving and static indecent images of children, with a large amount of them within the most serious category, Category A. From the descriptions in the HCPC’s bundle of the types of images that the Registrant had viewed, the Panel concluded that the detail of some of these were extreme, deeply troubling and involved highly sexualised and explicit images of the children involved.
39. The Panel further concluded that this conduct had been exacerbated by the Registrant failing to declare the charges and/or convictions, which pointed to a profound lack of professional insight into the effect that the Registrant’s actions would have on the public, his profession and his regulatory body.
40. The Panel noted that the Registrant has not engaged in this process and, thus, the Panel has no information before it as to the Registrant’s current insight so as to avoid repetition, despite the Judge’s opinion of some insight at that time. Indeed, the reference by the Judge to the risk to children being ‘medium’ was sufficient, in the Panel’s judgement, to present a clear and present continuing risk to the health, safety and welfare of all members of the public, but especially a manifest danger to vulnerable children.
41. For these reasons, the Panel concluded that the Registrant’s convictions and misconduct continues to put the health, safety and wellbeing of the public at risk of harm and that the Registrant’s sexual activity and concealment of that from his regulator is at a high risk of being repeated.
42. In the Panel’s judgement, an informed member of the public would be deeply concerned if the Registrant was to be declared not impaired and fit to practise. The Panel determined that if a member of the public heard or read of the Registrant’s convictions of the nature and extent described, that had taken place over a 14 month period and that his offending only stopped by his arrest, and had then heard or read of a finding of no impairment, that member of the public would be extremely angry, offended and deeply distrustful of the regulatory process and of the profession. In the Panel’s judgement, this public anger, distaste and distrust would be aggravated by the Registrant’s lack of honesty, transparency and integrity when he had the opportunity of declaring his convictions at various times on being charged, convicted and again in October 2022, and had failed to do so.
43. For these reasons, the Panel concluded that the Registrant’s fitness to practise is impaired.

Sanction

44. In reaching its decision, the Panel paid regard to the HCPC’s Sanctions Guidance and it accepted the Legal Assessor’s advice. The Panel took note of Mr Barnfield’s submission. The Panel also exercised the principle of proportionality at all times.
45. The Panel first considered taking no action or imposing a Caution Order. The Panel rejected these as being disproportionate to the extreme seriousness of the matters found proved. There would be no protection for the public without any monitoring, checks and balances to review the Registrant’s conduct in the future and the public would be deeply concerned with such outcomes in light of the Registrant’s serious sexual offence convictions and his lack of transparency with his regulator.
46. The Panel next considered imposing a Conditions of Practice Order, but rejected this option. In the Panel’s judgement, the Registrant’s serious sexual offence convictions involving many images of children, spanning 14 months which only terminated when the Registrant was arrested, the multitude of intimate and obscene images of those children whom he had viewed and his lack of candour to his regulator could not be satisfied on public protection or public interest grounds by this sanction. The Panel determined that there were no conditions that could address the unmediated and deeply troubling conduct of the Registrant revealed by his convictions and the misconduct.
47. The Panel next considered imposing a Suspension Order. The Panel acknowledged that there had been some mitigating factors in the Registrant’s case, such as his cooperation with the criminal investigation, his pleas of guilty, his genuine remorse at that time, his previous good character at that time and his apparent insight into the consequences of his actions referred to by the sentencing Judge and mentioned by the Registrant in his police interviews. However, in the Panel’s opinion, this remained static in time to that period and the Panel had no further information about the Registrant’s insight, as he has not engaged in this process in any meaningful way.
48. Furthermore, the seriousness of the Registrant’s convictions, the time span over which they were committed, the nature of the images that the Registrant viewed and how he had felt when viewing them, his concealment of the convictions from his regulator and the fact that he was only stopped from further offending by his arrest gave the Panel no confidence that this was conduct that could be addressed by a Suspension Order.
49. In the Panel’s judgement, the matters found proved amount to extremely serious sexual behaviour involving the viewing of over 2700 indecent images of children, compounded by the Registrant’s lack of transparency with his regulator.
50. Thus, for these reasons, the Panel determined that this puts this case into the category of being incompatible with registration, as it continues to present a profound risk to the health, safety and well being of the public and it deeply undermines the confidence that the public is entitled to have in the profession, its regulatory body, its reputation and its standards.
51. Therefore, the Panel concluded that the only proportionate and appropriate sanction is that of a Striking Off Order.

Interim Order

52. The Panel took into account Mr Barnfield’s application for an Interim Suspension Order to cover the period of any appeal or the appeal notice period whichever is the later.

53. The Panel was satisfied that the 25 September 2023 Notice of Hearing referred the possibility of an application for an Interim Order on completion of the hearing, should that be sought. Thus, for the same reasons as set out in the substantive Determination the Panel determined that there has been good service and that this application should proceed in the absence of the Registrant.

54. In reaching its decisions on the Interim Order application, the Panel accepted the Legal Assessor’s advice and paid regard to the HCPTS’ Practice Note on ”Interim Orders”.

55. The Panel has reached its decision on all stages in this case and has imposed a sanction of Strike Off. For the reasons set out in the substantive Determination, the Panel concluded that an Interim Order should be imposed on the grounds of the protection of the public and of being otherwise in the public interest.

56. Furthermore, the Panel determined that, in order to be consistent and proportionate, the Interim Order must be an Interim Suspension Order and, again, the Panel relied on its reasons in its substantive Determination, and especially as to why an Interim Conditions of Practice Order would be inappropriate and disproportionate.

57. The duration of the Interim Suspension Order shall be for 18 months, as, in the event of an appeal by the Registrant, that time will be required to allow for any appeal to be heard and completed.

ORDER: Strike Off and Interim Suspension Order of 18 months.

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

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.  The Panel’s order will not take effect until the appeal period has expired or, if appealed, until that appeal is disposed of or withdrawn.

History of Hearings for Gavin Bettencourt