1. The Panel first considered the issue of service as the Registrant was not in attendance.
2. The Panel had been provided with the Registrant’s email address within the Certificate signed by the Registrar dated 16 June 2023.
3. The Panel noted the letter dated 16 June 2023 sent to the Registrant by email, as well as confirmation of the delivery to the email address shown on the Registrant’s Certificate of Registration. This Notice of Hearing confirmed the date and time of the hearing, as well as informing him that this hearing would be virtual.
4. The Panel accepted the advice of the Legal Assessor that good service was effected by notifying a registrant of the time and date of the hearing at his registered email address. There is a duty on a registrant to update the register as soon as his contact details change.
5. The Panel was satisfied that fair, proper and reasonable notice of the hearing had been served on the Registrant and that the notice of hearing had been sent to the Registrant at his registered email address on 16 June 2023. The Panel determined that notice had been properly served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”). The Panel also noted that 28 days notice was given in compliance with section 6(2) of the Rules.
Proceeding in the absence of the Registrant
6. The Registrant had been emailed by HCPTS on 7 September 2023 in order to query if he would attend. He emailed back the same day stating “In reply to your email I can confirm I will not be be [sic] attending.”
7. In support of the application to proceed in the Registrant’s absence, the Panel has been provided with oral submissions by the HCPC. Mr Keating, for the HCPC, relied upon the email from the Registrant and submitted that the Registrant had confirmed he would not attend and he had voluntarily absented himself. It was also submitted that the Registrant had otherwise failed to engage and adjourning would serve no useful purpose. Mr Keating acknowledged the disadvantage to the Registrant if the Panel were to proceed in his absence, but submitted that the bundle contained contemporaneous responses from the Registrant and any disadvantage to him was outweighed by the public interest.
8. 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 in his email of 7 September 2023 he had waived his right to appear.
9. 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 had been effected and that there is a general public interest for a hearing to take place within a reasonable time, especially given the serious allegations raised. The Panel did not consider it acceptable for the hearing to be delayed any further as the incident took place some years ago and the HCPC had four witnesses ready to attend.
10. The Panel did not consider that any adjournment would result in the Registrant attending at a later date, thus adjourning would serve no useful purpose. There had been no request to adjourn, and the Panel was not satisfied that any adjournment would secure the Registrant’s attendance at a future date. The Panel considered that the Registrant had voluntarily absented himself and appeared not to be cooperating with the HCPC. Any disadvantage to the Registrant is significantly outweighed by the public interest in ensuring that the matter is considered expeditiously.
Proceeding in Private
11. The HCPC submitted that it was necessary to hear part of the proceedings in private in order to protect the private life of the Registrant as there were references to the health of the Registrant and a family member.
12. The Panel heard advice from the Legal Assessor. The Panel was advised as to the principle of open justice and that the starting point should be that hearings are held in public, in accordance with Article (6)(1) ECHR. The Panel then went on to consider whether any of the exceptions applied and had regard to the HCPTS Practice Note on “Conducting Hearings in Private”.
13. The Panel noted there were materials within the bundle that referred to the Registrant’s health as well as the health of a family member. The Panel concluded that it was necessary for any part of the proceedings, which related to the health of the Registrant, to be heard in private, in order to protect the private life of the Registrant. For the same reason, the Panel determined any part of the proceedings related to the health of the Registrant’s family member was to also be heard in private.
14. The Registrant was employed as a Specialist Biomedical Scientist at St James University Hospital (the Hospital) within the Leeds Teaching Hospitals NHS Trust (the Trust) between 15 April 1985 and 15 December 2020. The Registrant initially joined the Hospital as a Medical Laboratory Scientific Officer (MLSO) before transitioning into his role as a Specialist Biomedical Scientist.
15. The concerns were raised by the Registrant’s employer on 9 February 2021 and related to the Registrant utilising a Trust computer to view inappropriate material during work hours. The specific incident in question allegedly took place on 21 July 2020. The material viewed was alleged to include images of women in various stages of undress. This resulted in the Registrant’s dismissal on 18 December 2020.
16. Similar concerns had been raised about the Registrant previously, for which he had received a final written warning. This related to an alleged use of a Trust computer, on 23 May 2019 and 28 June 2019, to view covers of adult magazines, which depicted women in underwear.
17. It was alleged that neither the final written warning nor the dismissal were declared to the HCPC by the Registrant.
18. The Panel heard live evidence from the following witnesses called on behalf of the HCPC (relevant roles at material time detailed below):
• Witness 1: RL - Blood Sciences Service Lead and the Investigating Officer (Particular 1);
• Witness 2: RC – Programme Manager and Investigating Officer (Particular 3);
• Witness 3: KS – Specialist Biomedical Scientist and eyewitness (Particular 1);
• Witness 4: FM - Biomedical Scientist and eyewitness (Particular 1).
19. The Panel also accepted the written statement of the following into evidence:
• SS – HCPC Case Manager (Particulars 2 and 4).
20. The Panel did not hear evidence from the Registrant but noted the information he had provided in his replies at the Trust’s disciplinary investigation meeting of 6 October 2020 (Particular 1) and the Trust interview of 18 December 2019 (Particular 3). The Panel also considered all relevant materials within the hearing bundle.
Decision on Facts
21. 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.
22. In reaching its decision on the facts, the Panel bore in mind that the burden of proof rests on the HCPC and it is for the HCPC to prove the Allegation. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities. The Panel carefully considered the evidence in the round, giving appropriate weight to the documentary evidence.
23. The Panel acknowledged that the Registrant has no previous fitness to practise history.
Particular 1 - Proved
1. On 21 July 2020, you accessed inappropriate material at work of images of women in various stages of undress.
24. Mr Keating relied upon the eyewitness accounts of KS and FM who provided oral evidence and stated they had seen the Registrant viewing images on a Trust computer during work time. He also relied upon the evidence of RL who was the Investigating Officer. Additionally, Mr Keating also relied upon the Trust’s audit of the internet activity for this date, which resulted in some of the viewed images being identified. In his evidence, RL stated that he had interviewed a male colleague (JP) who had provided a similar account. Although JP did not provide a statement for these proceedings, Mr Keating relied also upon the Trust interview notes with JP as hearsay evidence. Mr Keating further relied upon the Registrant’s replies in the Trust interview where the Registrant described the images as “tasteless nowadays” and a “bit racy”.
25. Mr Keating submitted that the behaviour was inappropriate as firstly the Registrant was using the Trust computer for personal reasons during working hours, and secondly due to the nature of what he was viewing (women in bikinis). Finally, Mr Keating submitted that three employees had felt the need to report this, including a male colleague, thus indicative of this being inappropriate.
26. There was no dispute that the Registrant had been working that day and he had used the Trust computer to view some images. Some of the actual images viewed had been identified in the audit of the internet activity. Both FM and KS had seen him view the images, and the Panel accepted the hearsay evidence of JP, whose interview notes dated 22 September 2020 were provided. The Panel noted that JP had stated he had seen the Registrant using the work computer to view “pictures of women on the screen. These women were not fully clothed”. The Panel noted that RL had searched and exhibited these images. It was further noted that KS, who had observed the Registrant the longest at 10-20 seconds, was able to identify one specific image from those that had been found by RL. Both witnesses were also consistent in their description of the images as ‘vintage’ in nature.
27. In the initial fact finding investigation on the following day, namely 22 July 2020, the Registrant is noted to have initially denied viewing inappropriate images. However, he then explained that he was seeking a couple of LPs for his sister and accepted that some of the album cover images may be viewed as “tasteless”. The Registrant had reiterated this at the Trust’s Disciplinary Investigation Meeting on 6 October 2020. The Panel thus determined that the Registrant had accessed the images and material at his workplace.
28. The Panel then considered whether the images were inappropriate. The Registrant had explained in interview that the images may be viewed as “tasteless”, they were “all available to the general public and there are no age restrictions…the images look a little bit like page 3…some wearing a bikini…they are a bit racy”. He further explained that “they might be viewed as tasteless in 2020 in terms of the fact the covers were racy images of women from the 1970s…the women on the covers had clothes on, they were not naked"”.
29. JP, who had given evidence in the Trust investigation which was consistent with that of both KS and FM, was the first person to have observed and felt the need to report the Registrant to others. The Panel infers that he is likely to have communicated his concerns because he is likely to have felt that the images were inappropriate. Both KS and FM had seen the Registrant viewing the images and stated that their view was that the images were inappropriate. The Panel accepted that they are album covers and not sexual images. However, of the images searched by RL and provided, the women were posed provocatively, some in bikinis and another posed with her trousers not being fully fastened (the latter being the image recognised by KS). The Panel noted KS and FM had concerns that the images showed women with little clothing and they were being viewed in work time. The Panel accepted these reasons and thus concluded that on balance, the viewing of these images was inappropriate in the workplace.
30. On the balance of probability, the Panel determined that Particular 1 was found proved.
Particular 2 - Proved
2. You did not declare to the HCPC in a timely manner or at all that on 21 May 2020 you were issued with a final written warning by your employer.
31. Mr Keating relied upon the disciplinary letter which confirmed the Registrant had been issued with a final written warning. He also relied upon the witness statement of SS confirming that the referral to the HCPC had been made by the Trust, thus not by the Registrant.
32. The Panel had sight of the disciplinary letter dated 21 May 2020 and noted that the Registrant had signed the disposal by consent form on 29 May 2020. The Panel was satisfied that the Registrant had been aware of the final written warning issued by the Trust.
33. The Panel also accepted the uncontested written statement of SS who confirmed that a referral was made in February 2021 by the Registrant’s employer and the referral confirmed that the Registrant had received a final written warning. The Registrant had not engaged with the HCPC investigation and had not provided any response to assist the Panel on Particular 2 and there was no evidence that he had informed the HCPC in relation to the final written warning.
34. At the ‘facts’ stage, the Panel is not required to consider the reasons for why a report may not have been made by the Registrant or whether a referral was required. The Panel determined that Particular 2, as drafted, was found proved.
35. On the balance of probability, the Panel determined that Particular 2 was found proved.
Particular 3(a) and 3(b) - Proved
3. On 23 May 2019 and/or 28 June 2019 you accessed inappropriate material at work, namely:
a) one or more covers of “Men Only” magazine depicting women in states of undress/underwear; and/or
b) internet searches in order to purchase “adult magazines” online.
36. Mr Keating submitted that the Registrant had worked on these dates and deliberately searched for adult magazines on these dates. He relied upon the witness evidence of RC who explained the audit trail showed that the Registrant had been working on 28 June 2019 and had accessed these images. Mr Keating also relied upon the images of the adult magazine covers which were recovered from the hard drive of the computer that the Registrant had worked upon, and the log showing that the images had been downloaded during work time. Finally, he relied upon the Registrant’s admission during the Trust interview where the Registrant had accepted that he had searched for adult magazines on both dates.
37. The Panel accepted that the Registrant was working on both dates as evidenced by the work rotas. RC has explained that the Information Governance Team had undertaken an audit and the hard drive of the Registrant’s computer had been analysed. The Panel had sight of the images of the “Men Only” magazine covers which had been recovered from the hard drive and accepted the audit logs showed evidence of the Registrant accessing these on 28 June 2019.
38. There was no audit evidence to support the images having been accessed on 23 May 2019. However, the Panel noted the Trust interviewed the Registrant on 18 December 2020. During the course of the interview the Registrant admitted using the internet on both dates for non work purposes by shopping on Amazon for adult magazines. The Registrant also stated; “I never leave my PC unattended without logging off/locked.”
39. The Panel thus determined that the Registrant had worked on both dates and whilst at work he had accessed covers of the “Men Only” magazines. This was accepted by the Registrant when he confirmed that on both dates he had been shopping online for adult magazines on Amazon. The Panel was satisfied, having seen the recovered magazine cover images, that the women on the cover were posing in their underwear. Accordingly, the Panel determined the magazine covers were inappropriate material when viewed at work.
40. On the balance of probability, the Panel determined that Particulars 3(a) and 3(b) were found proved.
Particular 4 – Proved
4. Having been dismissed on 18 December 2020, you did not declare your dismissal to the HCPC in a timely manner or at all.
41. Mr Keating relied upon the disciplinary letter which confirmed the Registrant had been dismissed by his employer. He also relied upon the witness statement of SS confirming that the referral to the HCPC had been made by the Trust, thus not by the Registrant.
42. The Panel had sight of the disciplinary letter dated 18 December 2020, which notified the Registrant of his dismissal. The Panel was satisfied that the Registrant had been aware of the dismissal notified by the Trust.
43. The Panel also accepted the uncontested written statement of SS who confirmed that a referral was made a few weeks later in February 2021 by the Registrant’s employer. The Panel inferred that this means the Registrant had failed to notify the HCPC. It was noted that SS had not explicitly confirmed this, but she did state that the Registrant had not engaged with the HCPC investigation.
4. The Panel did consider the images taken from the HCPC registration screen confirming that the registration had been renewed on 1 December 2021. There had been no information or evidence presented to the Panel as to the questions that the Registrant would have been required to answer when completing the renewal application. The Panel noted that the Registrant had not provided any response to assist the Panel on this Particular and there was no evidence that he had informed the HCPC in relation to the dismissal.
45. On the balance of probability, the Panel determined that Particular 4 was found proved.
Decision on Grounds
46. Mr Keating submitted the Registrant had breached the HCPC Standards of Conduct, Performance and Ethics. He relied upon the following standards:
• 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
• 9.5 You must tell us as soon as possible if:
…you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.
47. In relation to Particulars 1 and 3, Mr Keating submitted that the Registrant had acted in a manner which would be regarded as deplorable by fellow practitioners and therefore amounts to misconduct. Mr Keating further clarified that the material viewed was not illegal and was fine to be viewed in the privacy of the Registrant’s home. However, he had concerns about the nature of the material that the Registrant accessed (adult magazine covers and images of women in bikinis), this taking place during working hours, in a professional setting within a medical laboratory, where others could see what he was doing and felt uncomfortable.
48. In relation to Particulars 2 and 4, Mr Keating submitted that by virtue of his failure to self-report, the Registrant has acted in such a way that would be regarded as deplorable by fellow practitioners and therefore amounts to misconduct. Specifically in relation to Particular 2, Mr Keating relied upon the preamble to the HCPC Standards of Conduct, Performance and Ethics as setting out how the Registrant should behave. He submitted that the Registrant had failed to comply with the letter and/or spirit of the Standards.
49. There was limited evidence from the Registrant but the Panel did note that in relation to Particular 1, in the Trust interview, the Registrant had stated that the album covers were “all available to the general public and there are no age restrictions…they might be viewed as tasteless in 2020 in terms of the fact the covers were racy images of women from the 1970s..the women on the covers had clothes on, they were not naked"”.
50. The Panel approached its decision on misconduct by considering the proven particulars in the Allegation.
51. The Panel accepted the advice of the Legal Assessor.
52. The Panel considered whether the Registrant had fallen short in his conduct, by way of “omission or commission of the standards of conduct expected” and that this must be “serious” by reference to conduct that fellow practitioners would find deplorable. It considered any conduct against the relevant objective professional standards.
53. In relation to Particular 1, the Panel did not find misconduct. The images were of album covers and it was not explicit material. Whilst it may have been poor conduct and the Registrant could have better utilised his time at work, the Panel did not consider that fellow practitioners would find viewing such images at work to be deplorable.
54. The Panel also considered whether fellow practitioners may have serious concerns about the amount of time that the Registrant was spending viewing such images during work time. The Panel had regard to the Registrant’s replies in the Trust interview where he stated that he looked at the album covers “whilst awaiting the IQC results on Atellica…this was a 15 minute period before handing over to the late shift….No outstanding work was neglected”. The Panel noted that three people had seen the Registrant viewing the material, but the Panel had no evidence on the actual duration that the Registrant had viewed the images. Accordingly, the Panel were unable to conclude that this would amount to misconduct as the Registrant may have spent little time looking at the album covers.
55. In relation to Particular 2, the Panel did not find misconduct. The final written warning was issued by the employer. The Panel was not presented with any evidence demonstrating the warning constituted a restriction and accordingly concluded that there was no requirement for the Registrant to report this to the HCPC. There had been no material put before the Panel that would have put the Registrant on notice of the need to report a written warning to the HCPC. The Trust had not suggested or instructed the Registrant to report the warning. The final written warning was issued on 21 May 2020 and the Trust had not reported this to the HCPC at the time. It was only after the further incident (Particular 1) and dismissal that the Trust made a referral to the HCPC on 9 February 2021.
56. In relation to Particular 3(a) and 3(b), the Panel did find misconduct. The Panel had sight of the images and did find them to be inappropriate images of women. The Panel distinguished the images in Particulars 1 and 3 and were of the view that the adult magazine covers were more inappropriate. The images in Particular 1 were album covers, but the images in relation to Particular 3(a) were sexual in nature, more explicit and showed women posing in adult magazines in their underwear. The magazine cover titles and headlines were also provocative and sexual in nature. The Registrant was actively shopping for adult magazines, as reflected in the internet activity as detailed in the audit. He admitted to this and confirmed he had done this whilst at work. A fellow practitioner would likely conclude such conduct in a work setting to be unacceptable and deplorable.
57. In relation to Particular 4, the Panel did find misconduct. Standard 9.5 was clear in that a dismissal had to be reported to the HCPC. It was the employer that had notified the HCPC. Fellow practitioners would be concerned at the Registrant’s failure to inform the HCPC and were likely to conclude such behaviour was serious as it undermines the effectiveness of the regulator and the regulatory process.
Decision on Impairment
58. The Panel took into account the submissions of Mr Keating. The Panel accepted the advice of the Legal Assessor.
59. 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”.
60. 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.
61. 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.
62. 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. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in that he:
a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. Has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
63. 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.
64. In determining whether the Registrant’s fitness to practise is currently impaired, 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 a Biomedical Scientist, including any evidence of insight and remorse and efforts towards remediation (whether it is remediable, whether the Registrant has taken remedial action and if there is a risk of repetition). 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.
65. With regard to the “personal” component of impairment, the panel took account of Mr Keating’s submissions. He stated that the misconduct was remediable but no remedial action had been taken. He submitted that there was a risk of repetition due to the lack of evidence on insight. Mr Keating also submitted that approximately two months after the final written warning the Registrant had done something similar, thus indicating the risk of repetition remained.
66. In respect of the “public” component, Mr Keating submitted that there is a need in this case to uphold proper professional standards, because members of the public, would consider that Biomedical Scientists should search for, and view adult magazine covers, in the privacy of their own home. He also submitted that where other images might be regarded as ‘racy’, then it is not appropriate to view them at work.
67. The Registrant had been interviewed by the Trust in relation to the proven Particular 3. At the time of the interview, on 18 December 2020, the Registrant expressed his regret: “There is no accounting for stupidity...I must apologize, I am sorry if anyone was upset by my actions...I now realise its against Trust policy and I will not be doing it again...“I was not myself and I’m coming round now.” Finally, he provided details of the help he has obtained.
68. Whilst noting the Registrant was not viewing adult magazine covers in July 2020, the Panel had concerns that the Registrant had not learned from the final written warning, as approximately 5 months later the Registrant was again looking at inappropriate images during his work time (as found proved in relation to Particular 1, albeit this was not found to amount to misconduct). The Panel considered that there were potential behavioural issues. That aside, the only evidence from the Registrant before the Panel was from December 2020 and there had been no further update since. The Registrant had failed to engage with the HCPC and the regulatory process. The Panel did not have any updated information to take into account as to whether the Registrant had reflected and whether he had further developed his insight. This meant that a risk of repetition remained.
69. The Panel therefore found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.
70. With regard to the “public” component of impairment, the Panel considered that a finding of current impairment is necessary to uphold professional standards. In relation to the facts found proved and which amounted to misconduct, an informed member of the public would be shocked that a Biomedical Scientist had viewed inappropriate adult magazine covers and shopped for these whilst at work. Additionally, the Panel considered a member of the public would be troubled to learn that a Biomedical Scientist had failed to update the regulator of the dismissal that had occurred. The Panel determined that public confidence in the profession and in the HCPC as its regulator would be seriously undermined if there were no finding of impairment.
71. 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
72. The Panel heard submissions from Mr Keating on behalf of the HCPC. He did not seek any particular sanction and left it as a matter for the Panel’s discretion. He reminded the Panel on its finding of misconduct in relation to Particulars 3 and 4 as well as its finding on impairment.
73. In relation to mitigating factors, Mr Keating submitted the Registrant had offered an apology for the matters arising from Particular 3. He also submitted that there were no previous fitness to practise findings, the Registrant had been working at the Trust since 1985 and he had been a Biomedical Scientist for many years. In relation to aggravating factors, Mr Keating submitted there was a pattern of behaviour and it was not an isolated incident. He submitted that although Particular 1 was found proved but not amounting to misconduct, there remained concerns about the Registrant having viewed inappropriate material, thus indicative of behavioural issues. He also submitted that the lack of insight and remediation meant that there remained a risk of repetition.
74. 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.
75. 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.
76. 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.
77. 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.
78. The Panel began its deliberations on sanction by considering the mitigating factors. The Panel acknowledged that the Registrant had practised for many years and had a previously unblemished career in his professional practice. He had not been subject to any previous fitness to practise proceedings. The Panel also noted the earlier admission and the apology provided in the Trust interview. The Panel also noted the Registrant’s difficult personal and health related conditions at the relevant time.
79. The Panel next considered aggravating factors and reminded itself of its finding at the impairment stage; the misconduct was considered remediable, but no remedial action had been taken. Whilst noting the Registrant was not viewing adult magazine covers in July 2020, the Panel had concerns that the Registrant had not learned from the final written warning, as approximately 5 months later the Registrant was again looking at inappropriate images during his work time (as found proved in relation to Particular 1, albeit this was not found to amount to misconduct). The Panel considered that there were potential behavioural issues. The Registrant had failed to report his dismissal to the HCPC. The Panel did not have any updated information to take into account as to whether the Registrant had reflected and whether he had further developed his insight. This meant that a risk of repetition remained.
80. The Panel next considered the sanctions in ascending order of gravity.
81. The Panel found that it is not appropriate to make no order because of the serious nature of the Allegation found as well as the impairment.
82. A Caution Order is not appropriate because the conduct found proved was serious and thus not minor in nature. There also remained a risk of repetition as there was lack of insight. There was no evidence of what the Registrant had done since being dismissed and thus no evidence of any remediation.
83. The Panel next considered a Conditions of Practice Order. Whilst the misconduct was capable of being remediated, the Registrant had not engaged and thus the Panel had no evidence of remediation and could not be confident that the Registrant would comply with any conditions formulated. The Panel had also found a lack of insight. The Registrant’s misconduct was serious and there was a risk of repetition. The Panel did not consider there were any conditions that could be formulated that would be proportionate, appropriate and workable. In the circumstances, the Panel determined that a Conditions of Practice Order was inappropriate.
84. The Panel next considered a Suspension Order. The Panel noted the serious breaches of standards, the lack of insight and thus the risk of repetition. Whilst the breaches could have potentially been addressed by conditions, the lack of engagement by the Registrant meant that conditions could not be explored further.
85. When looking at the circumstances of the case, the Panel noted that the Registrant did not seek to deny his conduct. The personal and health conditions for himself and his family member were also noted. The Panel concluded that in relation to Particular 1 the Registrant had viewed inappropriate material at work, but he had not been viewing ‘Men Only’ or adult magazines as detailed in Particular 3. The Panel determined that the risk of repetition was therefore at the lower end of the scale. The Panel did consider that there was a possibility of the Registrant being able to remediate the misconduct at some point in the future should he wish to engage.
86. In relation to Particular 4 the Panel considered the failure to report the dismissal to the HCPC was of a different nature to inappropriate behaviour at work. The Panel had not been provided with any information from the Registrant as to the reasons for this failure but nevertheless had determined that such behaviour was serious. The Panel noted the potential risk to colleagues, the public and the reputation of the profession caused by such a failure. As this appeared to be an isolated breach of Standard 9.5, and is remediable, the Panel concluded that a Suspension Order would be sufficient to mark the seriousness of the breach and reinforce the need to engage with and maintain the regulatory requirements.
87. The Panel considered a Striking Off Order and considered paragraph 131 of the HCPC’s Sanction Guidance, which stated as follows;
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.”
88. The Panel was fully aware that a Striking Off Order “is a sanction of last resort for serious, persistent, deliberate, or reckless acts” (paragraph 129 of the HCPC’s Sanction Guidance). The Panel was satisfied that a lesser sanction would suffice, namely a Suspension Order. The Panel considered it would be disproportionate to issue a Striking Off Order as the misconduct was not repeated and the further inappropriate behaviour was less serious. The Registrant also had a long unblemished career without any fitness to practise concerns and both matters leading to a finding of misconduct occurred within a short period of the Registrant’s career.
89. The Suspension Order was the more appropriate and proportionate outcome. It would protect the public and the reputation of the profession sufficiently until such point that the misconduct was remedied. It would also serve to allow the Registrant an opportunity to attend a future review hearing and engage.
90. The Panel determined that the Suspension Order should last for a 12-month duration given the seriousness of the matter and the need to protect the public. This would give the Registrant time, should he wish, to engage and start to undertake any necessary remediation.
91. A review would take place shortly before the expiry of the Suspension Order. The Panel considered a future reviewing panel may be assisted, but are not bound, by the following:
• A reflective piece from the Registrant, which includes reflections on i) Particulars 3 and 4 found proved and amounting to misconduct, ii) the potential impact on colleagues, the public and the profession, and iii) understanding of relevant work and governance policies.
• Any testimonials from colleagues in relation to conduct and working relationships, which may be from paid or unpaid roles;
• Evidence of continuous professional development; and
• Any other information that the Registrant considers would assist the reviewing panel.