Joseph William Yeardley

Preliminary Matters

Service

1.On 25 January 2024, the HCPC sent notice of this final hearing by email to the Registrant’s registered email address as previously notified to the HCPC as an address for correspondence. The notice contained the required information, including the time, date and joining instructions for the remote final hearing.

2. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied on the documentary evidence provided, that the Registrant had been served with the appropriate notice in accordance with the Rules.

Application to proceed in the absence of the Registrant

3. Mr Anderson, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised the discretion to proceed in a Registrant’s absence must be exercised with great care and caution.

4. The Panel had regard to the communications with the Registrant. In a telephone call of 15 September 2023 with Blake Morgan, the HCPC’s legal representatives, the Registrant had indicated that he would not be providing any representations for the final hearing, would not be practising as an Operating Department Practitioner again and would not be engaging with the HCPC fitness to practise investigation. On 22 April 2024, Blake Morgan had a telephone call with the Registrant, in which he confirmed that he was not intending to attend the final hearing. In that telephone call he was advised that he could submit written representations and any response would be placed before the Panel. On 28 April 2024, the Registrant sent an email to Blake Morgan setting out his response to the allegations.

5. The Panel was satisfied that the Registrant was aware of when the final hearing was taking place and had been provided with joining links to participate but had decided not to attend. It concluded that he had voluntarily absented himself from attending the hearing. The Panel did not consider that there was any good reason to adjourn, or that such a step would secure the Registrant’s attendance on a future occasion.

6. The Panel bore in mind that there were a number of HCPC witnesses arranged to give evidence over the course of the hearing who would be caused further inconvenience if the hearing were adjourned. The Panel also had regard to the public interest and that cases should be heard within a reasonable period of time of the events to which they relate. The Panel noted that these allegations date back to between 2019 and 2021, and it was important that they should be resolved.

7. Whilst the Panel acknowledged that there would inevitably be a disadvantage to the Registrant in proceeding in his absence, it considered that he had made it clear that he would not be attending the final hearing. In all the circumstances, and mindful of the public interest, the Panel considered that it was appropriate and fair to proceed in the Registrant’s absence.

Application to amend

8. At the outset of the hearing, Mr Anderson applied to amend particular 4 to add the words “of a sexual nature and/or”, so that the particular would read: “Your conduct in relation to particulars 2 was of a sexual nature and/or sexually motivated”.

9. Mr Anderson submitted that this was a minor amendment which did not significantly change the nature of the allegation because it was already encapsulated within ‘sexual motivation’ which was already pleaded. He submitted that it would more accurately reflect the evidence, there was no change to the evidence being adduced and that if the change were not permitted, there was a risk of under prosecution of the matter. Mr Anderson confirmed that the proposed amendment had been communicated to the Registrant within the case summary, which had been sent to him at the same time it was sent to the Panel (22 April 2024).

10. The Panel heard and accepted the advice of the Legal Assessor. It was satisfied that the Registrant had been give prior notice of the proposed amendment, albeit of one week, but the Registrant had been in touch with Blake Morgan since and had not raised any specific objection to the proposed amendment. The Panel noted from the HCPTS Practice Note, entitled ‘Making decisions of a registrant’s state of mind’, that the HCPC drew the following distinction between sexual nature and sexual motivation as follows:

“In these cases, Panels need not make a finding on what the registrant’s state of mind was, in relation to the conduct, only whether the conduct was, in itself, sexual”.

11. The Panel did not consider, therefore, that the proposed amendment increased the seriousness of the allegation against the Registrant. Further, it was of the view that the proposed amendment would more accurately reflect the anticipated evidence. In all the circumstances, the Panel did not identify significant injustice to the Registrant if it permitted the proposed amendment. Accordingly, it granted the HCPC application to amend.

Application to admit hearsay evidence in respect of Colleague C

12. Mr Anderson, at the outset of the hearing, applied for the evidence of Colleague C to be admitted as hearsay. Mr Anderson explained that although Colleague C had not provided a witness statement to the HCPC, he had provided accounts to Trust witnesses which had been exhibited by them and it was these accounts that the HCPC was seeking to adduce as hearsay. Mr Anderson acknowledged that in light of the case of El Karout v NMC [2019] EWHC 28 (Admin) he needed to make a formal application to adduce the hearsay evidence, notwithstanding no objection received from the Registrant.

13. Mr Anderson took the Panel through the factors identified in the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin). He recognised that particular 1 was reliant upon the evidence of Colleague C but submitted that it was not the sole and decisive evidence as there were other witnesses due to give evidence who had witnessed some of the incidents. Mr Anderson submitted that there was little risk of fabrication given the contemporaneous nature of Colleague C’s reporting and its consistency with that of other witnesses. In respect of the absence of Colleague C, Mr Anderson explained that Colleague C had not wished to participate in the proceedings and had never provided a witness statement to the HCPC. Mr Anderson submitted that given Colleague C’s discomfort with the process, the HCPC had not deemed it appropriate to seek to compel Colleague C’s attendance. Mr Anderson submitted that the evidence of Colleague C was relevant and fair and ought to be admitted.

14. The Panel heard and accepted the advice of the Legal Assessor. She advised the Panel in accordance with Rule 10(b) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) and sections 1 and 4 of the Civil Evidence Act 1995. The Legal Assessor advised that hearsay was admissible in civil proceedings subject to the requirements of relevance and fairness. The Legal Assessor advised in accordance with the case of Thorneycroft v NMC, to the effect that the decision to admit hearsay evidence required the Panel to perform a careful balancing exercise, having regard to the following relevant principles discerned from the case law:

1.1 The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the panel to consider the issue of fairness before admitting the evidence;

1.2 The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objections to admissibility;

1.3 The existence or otherwise of a good and cogent reasons for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence;

1.4 Where is such evidence is the sole or decisive evidence in relation to the charges, the decision, whether or not to admit it requires the panel to make a careful assessment, weighing up the competing factors. To do so, the panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The panel must be satisfied either that the evidence is demonstrably reliable, or alternatively, that there will be some means of testing its reliability.

15. The Panel was satisfied that all the hearsay evidence provided by Colleague C had previously been provided to the Registrant, and he had been given notice a week before of the HCPC’s intention to adduce it as hearsay evidence, as the application had been set out in the case summary. The Panel considered that the HCPC had tried to obtain a witness statement from Colleague C, but he had not wished to provide one. Whilst the Panel did not consider that the non-cooperation of a potential witness was, in and of itself, a good and cogent reason for non- attendance, it noted that this would not automatically result in the exclusion of the evidence.

16. The Panel did not consider that the hearsay evidence of Colleague C was the sole and decisive evidence. The Panel considered that there was other, potentially corroborative evidence from other witnesses that the HCPC was proposing to call, who were present at some of the alleged incidents and gave accounts of what they had witnessed, or who had been given a contemporaneous account by Colleague C. The Panel was, therefore, satisfied that it would be possible, through these means, to test the reliability of Colleague C’s hearsay evidence, and in due course, determine what weight, if any, to give it.

17. Accordingly, the Panel decided, on balance, to grant the HCPC’s application to admit the hearsay evidence of Colleague C.

Application to admit hearsay evidence in respect of Ms NB

18. On day two of the hearing, Mr Anderson explained that he had been informed that Ms NB, a Registrations Manager at the HCPC, who was due to give evidence on day four, was not available. He explained that he had been informed the day before that she was currently on maternity leave, and so no longer available. He was, therefore, instructed to make a hearsay application to admit her evidence. He acknowledged that if he were unsuccessful, the HCPC may need to take steps to obtain a statement from an alternate witness within the Registrations Department and seek permission to serve it as part of the HCPC case.

19. Mr Anderson conceded that the evidence of Ms NB was the sole and decisive evidence for particular 3, which was the allegation that the Registrant did not contact the HCPC as to the fact of and reason for his dismissal from the Trust. Mr Anderson also accepted that the Registrant would not have had prior notice of the application to adduce this hearsay evidence but submitted that there had been no challenge to her evidence from the Registrant, and it was evident that the Registrant was not going to attend the hearing. Mr Anderson submitted that any questions for Ms NB would be limited and that there was a cogent and practical reason for Ms NB’s absence. Mr Anderson submitted that the evidence was relevant and it would be fair to admit it.

20. The Panel accepted the advice of the Legal Assessor in respect of admissibility of hearsay evidence, as set out in the first hearsay application above.

21. The Panel acknowledged that the Registrant was not present at the hearing to challenge the witness himself, but it was mindful that it should not hold that against the Registrant. It further bore in mind that, having decided to proceed in the Registrant’s absence, it had a responsibility to nevertheless ensure fairness. The Panel noted that the HCPTS Practice Note on Proceeding in the Absence of the Registrant states:

‘If the Panel decides that a hearing should take place or continue in the absence of the registrant…the Panel must also ensure that the hearing is as fair as the circumstances permit. This includes taking reasonable steps during the giving of evidence to test the HCPC’s case and to make such points on behalf of the registrant as the evidence permits.’

22. The Panel considered that the evidence of Ms NB was currently the sole and decisive evidence in respect of particular 3. The Panel considered that there had been an unexplained and unreasonable delay in informing the Panel of the fact of Ms NB’s maternity leave which meant that she would not be available. This delay also meant that the Registrant had not had any prior notice of the application and so had not had the opportunity to make any representations about the application. Further, in ensuring fairness, the Panel considered that if Ms NB’s evidence were admitted as hearsay, then there would be no opportunity to question her in order to test the HCPC case, as envisaged by the Practice Note. In all the circumstances, the Panel was not satisfied that it would be fair to the Registrant to admit the witness statement of Ms NB as hearsay.

Application for parts of the hearing to be heard in private

23. Mr Anderson applied for parts of the hearing to be heard in private in order to protect the private life of the Registrant. He submitted that there were references within the hearing bundle relating to the Registrant’s health, which ought not to be ventilated in the public domain.

24. The Panel heard and accepted the advice of the Legal Assessor. It considered that those parts of the hearing which related to the Registrant’s health should be heard in private. The Panel was satisfied that this was justified in order to protect the private life of the Registrant.

Application to admit late evidence

25. Following the refusal to admit Ms NB’s witness statement as hearsay evidence, Mr Anderson applied to admit the witness statement of Ms VM, dated 30 April 2020, stating that she would be available to give evidence. He informed that Panel that Ms VM was essentially a replacement witness from the Registrations Department, employed in a similar capacity as Ms NB, who had carried out the search of the HCPC database.

26. Mr Anderson submitted that the statement was relevant, and that it would be fair to admit it, as Ms VM would be available to give oral evidence and answer any Panel questions. Mr Anderson submitted that the case fundamentally had not changed. He confirmed that the Registrant had been sent a copy of Ms VM’s witness statement and had confirmed by email (which the Panel had seen) that he did not object to its admission.

27. The Panel heard and accepted the advice of the Legal Assessor. It was satisfied that the evidence of Ms VM was relevant to particular 3. It also considered that it would not be unfair to admit the evidence, notwithstanding the late stage of proceedings. In reaching this view, the Panel considered that the nature of the evidence itself had not changed as it was simply a different person who had undertaken the search of the HCPC database; the Registrant had been made aware of the late evidence and did not object to its admission; and Ms VM was to be called and so could answer any Panel questions. The Panel, therefore, granted Mr Anderson’s application to adduce the late evidence of Ms VM.

Background

28. The Registrant is registered with the HCPC as an Operating Department Practitioner. He was employed as a Theatre Practitioner within the Rotherham Foundation Trust (the Trust) at Rotherham Hospital between April 2017 and September 2021, when he was dismissed.

29. On 17 March 2021, Colleague C, a Healthcare Support Worker, informed Mr JB, the Matron for Theatres of an alleged incident which had occurred the day before between himself and the Registrant. He alleged that the Registrant had squeezed his buttocks in the hospital corridor and it was not the first time that it had happened. This alleged incident is the subject matter of particular 1(a).

30. Mr JB asked Colleague C to prepare a statement outlining the incidents that had occurred with the Registrant, while also providing more information about the incident on 16 March 2021. On 18 March 2021, Colleague C sent Mr JB and email outlining all the alleged incidents between himself and the Registrant, including the 16 March 2021.The incidents outlined in the email are the subject of particulars 1(a) to 1(e).

31. Mr JB escalated the matter and Mr LW, Matron for Trauma and Orthopaedic Surgery at the hospital was appointed to investigate the allegations on 27 April 2021. As part of his investigation, Mr LW interviewed a number of members of staff, including Colleague C (on 10 May 2021). He also interviewed the Registrant on 20 May 2021.

32. During the course of Colleague C’s interview on 10 May 2021, he said he was aware of an incident with Colleague D. As a result, Mr LW interviewed Colleague D on 21 May 2021. She alleged that there had been an occasion when the Registrant had made a comment to her about uncrossing her legs. This allegation is the subject matter of particular 2. It is further alleged at particular 4 that the comment was of a sexual nature and/or sexually motivated.

33. Following Mr LW’s investigation, a formal disciplinary hearing was held, and the consequence was that the Registrant was dismissed from the Trust. It is alleged that the Registrant did not notify the HCPC of the fact of and reason for his dismissal as required by the HCPC Standards of Conduct, Performance and Ethics. This is the subject matter of particular 3.

Decision on Facts

34. The HCPC called the following witnesses:

⦁ Mr LW, a registered nurse with the NMC, who at the material time was the Matron for General Surgery at the Trust. On 21 April 2021, he was appointed as the Investigating Officer into the allegations raised by Colleague C;

⦁ Mr JB, a registered Operating Department Practitioner, who at the material time was employed as the Matron for Theatres, was the Registrant’s manager and the person to whom Colleague C raised his complaint against the Registrant;

⦁ Mr OY, a registered Operating Department Manager, who was present at the incident alleged at particular 1(c);

⦁ Mr PJ, a non-registered employee at the Trust, who was present at the incident alleged on 16 March 2021, at particular 1(a);

⦁ Colleague D, a registered Operating Department Practitioner, who is the complainant in respect of particular 2;

⦁ Ms VM, a Registration Manager at the HCPC.

35. The HCPC provided a bundle of witness statements and exhibits, including:

⦁ Colleague C’s email account of alleged incidents, dated 18 March 2021;

⦁ Notes of Colleague C’s investigation interview, dated 10 May 2021;

⦁ Mr PJ’s handwritten statement, dated 17 March 2021;

⦁ Notes of investigation interviews with Mr JP (4 May 2021), Mr OY (21 May 2021), Witness D (20 May 2021) and Colleague D (21 May 2021);

⦁ Notes of the Registrant’s investigation interview, dated 20 May 2021;

⦁ A copy of Mr LW’s Investigation Report (undated);

⦁ Correspondence between the Trust and the Registrant, including disciplinary letters;

⦁ Relevant Trust policies; and

⦁ A file note of a telephone call between the Registrant and Blake Morgan, the HCPC’s legal representatives.

36. The Panel was also provided with the Registrant’s written representations, dated 29 April 2024.

37. The Panel heard and accepted the advice of the Legal Assessor. She advised that the burden of proof was on the HCPC and the standard of proof required was the civil standard, namely whether it was more likely than not that the alleged facts occurred. In relation to hearsay, the Legal Adviser advised that, having admitted hearsay evidence, the Panel should evaluate what weight, if any, to give it. In relation to allegations being ‘of a sexual nature’ and sexually motivated, she advised in accordance with the HCPTS Practice Note entitled ‘Making decisions of a registrant’s state of mind’ and the case of Basson v GMC [2018]EWHC 505 (Admin). The Legal Assessor advised that the Registrant was of good character which was one of the factors the Panel may take into account in the Registrant’s favour when considering the likelihood or otherwise of the alleged actions occurring.

38. The Panel considered all of the evidence and the submissions of Mr Anderson on behalf of the HCPC as well as the written representations of the Registrant. The Panel’s approach to particular 1 was to consider the factual allegation, and if satisfied that it was established, refer it back to the stem to consider whether it amounted to a breach of professional boundaries. The Panel noted the time frame in the stem as being between September 2019 and March 2021. The Panel interpreted this as including the full months of September 2019 and March 2021.

Particular 1

Between September 2019 and March 2021, on one or more occasions you did not maintain appropriate professional boundaries by touching Colleague C:

(a) on an unknown date between September 2019 and March 2021, you squeezed the buttocks of Colleague C in the hospital corridor.

39. The Panel finds particular 1(a) proved.

40. Although the factual allegation was particularised as being on an unknown date, Mr Anderson explained that it related to the allegation of 16 March 2021. He submitted that it was the incident allegedly witnessed by Mr PJ and was the day before Colleague C raised his complaint against the Registrant.

41. The Panel bore in mind that Colleague C had told his initial account to the Matron for Theatres, Mr JB, the day after the alleged incident occurred, and it was, therefore a reasonably contemporaneous account. Mr JB told the Panel that Colleague C entered his office on 17 March 2021 and told him that on 16 March 2021, he had been looking at the staff allocation board within the theatre department, when Colleague C approached him from behind and grabbed his bottom. Colleague C stated that he turned around and saw the Registrant stood behind him. Colleague C said that he told the Registrant not to and pushed him away. Colleague C said that Mr PJ had been present and would have seen it. Later that same day, Colleague C sent Mr JB an email outlining all the incidents he alleged had occurred between himself and the Registrant.

42. The Panel had regard to the evidence of Mr PJ. He gave a written account on 17 March 2021 and was interviewed as part of the Trust investigation on 4 May 2021. In the written account, Mr PJ stated that he and Colleague C had been looking at the staff allocation board in theatre reception, when the Registrant came behind Colleague C and “touched his behind on the buttox”. In the interview, he confirmed he had seen the touching.

43. The Panel noted that the Registrant had been interviewed as part of the Trust’s investigation on 20 May 2021 and had been specifically asked about the alleged incident the day before. He accepted that he had ‘nipped’ Colleague C on the bottom and did so as a form of greeting. He said he regarded Colleague C as a friend, but on this occasion, he had reacted and said he had told him before not to do it. The Registrant said he had been surprised by the reaction and apologised.

44. The Panel had regard to the Registrant’s email, dated 28 April 2024, which contained some written representations, and the Panel noted that the Registrant appeared to accept the allegation of 16 March 2021, saying that it had been a form of greeting which he had used before with Colleague C.

45. Whilst the Panel was mindful that the hearsay evidence of Colleague C had not been tested through questioning, it was satisfied that it was sufficiently supported by the evidence of Mr JP. The Panel further noted that the Registrant did not appear to dispute that allegation, describing it as a form of greeting for which he had apologised on realising it had upset Colleague C.

46. Having considered the evidence, the Panel was satisfied that it could rely on the hearsay evidence of Colleague C regarding this incident, given that it was supported by Mr JP. Whilst there were some minor discrepancies between the two accounts, the Panel was satisfied to the required standard that the Registrant had squeezed the buttocks of Colleague C in a hospital corridor.

47. The Panel went on to consider whether such conduct amounted to a breach of professional boundaries. The Panel noted that the Registrant had described his interactions with Colleague C as a form of greeting which had grown up between two people who he considered had a similar sense of humour. It noted that he had nevertheless accepted that his conduct may not appear professional, and that he “[held] his hands up to say that it was not the most professional thing [he] had ever done”. The Panel considered that touching a colleague’s backside at work, whether or not the Registrant considered it to be ‘banter’, was unprofessional and did not maintain the professional boundaries expected between colleagues. In all the circumstances, the Panel was satisfied that the Registrant did not maintain professional boundaries on 16 March 2021.

1(b) on an unknown date between September 2019 and March 2021, you squeezed the buttocks of Colleague C in the hospital in front of two other colleagues.

48. The Panel finds particular 1(b) not proved.

49. The Panel noted that the evidence relied upon by the HCPC in support of this allegation was wholly the hearsay evidence from Colleague C set out in his email, dated 18 March 2021 provided to Mr JB. The Panel was mindful that Colleague C was unable to give the date of the alleged incident, and so it was not possible to know how close in time the email was to the alleged incident. The Panel was mindful that there was no corroborative evidence in support of the allegation, for example from any witnesses, although Colleague C had stated that there had been female colleagues present.

50. The Panel was concerned that the hearsay evidence relied upon was set out in a single paragraph in the email, dated 18 March 2021, sent by Colleague C to Mr JB. The Panel considered that the hearsay evidence was vague and as the date of the incident was unknown, it was not possible to know whether the email was a contemporaneous account or whether it had occurred significantly before the time of the email. As a result of Colleague C declining to provide a witness statement to the HCPC or attend any hearing, the Panel was also mindful that it had not had the opportunity to test the evidence.

51. The Panel noted that in the Registrant’s interview, whilst he accepted that there had been other occasions when he had ‘nipped’ Colleague C by way of a greeting, he did not specifically accept squeezing his colleague’s buttocks, and did not recall an occasion of the nature described by Colleague C.

52. In all the circumstances, the Panel considered that the hearsay evidence of Colleague C in respect of particular 1(b) was weak, and it did not consider that it could properly place much weight on the unsupported hearsay evidence. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had squeezed Colleague C’s buttocks in the hospital in front of two other colleagues.

1(c) on an unknown date between September 2019 and March 2021, you slid your finger between the buttocks of Colleague.

53. The Panel finds particular 1(c) proved.

54. The Panel had regard to the hearsay evidence of Colleague C in his email of 18 March 2921, whereby he had described the Registrant as placing his finger in between his butt cheeks up his bottom, and that he thought Mr OY had been present as had some other staff. The Panel noted that Mr OY had been interviewed as part of the Trust’s investigation and had given evidence before the Panel. Mr OY had described the incident as occurring around 12 to 18 months before his interview on 21 May 2021, and, in the Panel’s view, gave an account of the incident similar to that of Colleague C. In his oral evidence, Mr OY confirmed that the touching had been over the top of Colleague C’s trousers.

55. The Panel noted that there were some discrepancies between the account of Colleague C and Mr OY. In particular, Colleague C said that it occurred when he was in the coffee room pouring water into his drink, whereas Mr OY said that it occurred just after they had walked into the coffee room. Nevertheless, the Panel considered that Mr OY’s evidence supported the hearsay evidence of Colleague C.

56. The Panel noted that whilst the Registrant denied that he had acted as alleged, in his Trust interview of 21 March 2021, when questioned about the allegation, he had said: ‘if that happened, my hand slipped and it was not intentional. I was totally unaware until you have just brought it up and it’s not something I would ever do intentionally.’ From this, the Panel inferred that the Registrant accepted that he had touched Colleague C’s bottom, albeit he had not deliberately slid his finger between Colleague C’s buttocks.

57. Having considered the evidence, the Panel was satisfied that it could rely on the hearsay evidence of Colleague C regarding this incident, given that it was supported by Mr OY. Whilst there were some minor discrepancies between the two accounts, the Panel was satisfied to the required standard that the Registrant had, over clothing, slid his fingers between the buttocks of Colleague C. The Panel considered that touching the buttocks of Colleague C was unprofessional and did not maintain the professional boundaries expected between colleagues. In all the circumstances, the Panel was satisfied that the Registrant did not maintain professional boundaries.

1(d) on an unknown date between September 2019 and March 2021, you touched Colleague C outside the theatre room.

58. The Panel finds particular 1(d) not proved.

59. The Panel noted that the evidence relied upon by the HCPC in support of this allegation was wholly the hearsay evidence from Colleague C set out in his email, dated 18 March 2021 provided to Mr JB. The Panel was mindful that Colleague C was unable to give the date or an approximate date of the alleged incident, and so it was not possible to know how close in time the email was to the alleged incident. The Panel was also mindful that there was no corroborative evidence in support of the allegation, for example from any witnesses.

60. The Panel was concerned that the hearsay evidence relied upon was set out in a single paragraph in the email, dated 18 March 2021, sent by Colleague C to Mr JB. The Panel considered that the hearsay evidence was vague and as the date of the incident was unknown, it was not possible to know whether the email was a contemporaneous account or whether it had occurred significantly before the time of the email. As a result of Colleague C declining to provide a witness statement to the HCPC or attend any hearing, the Panel was also mindful that it had not had the opportunity to test the evidence.

61. The Panel noted that in the Registrant’s interview, whilst he accepted that there had been other occasions when he had ‘nipped’ Colleague C by way of a greeting, he did not specifically accept touching Colleague C outside the theatre room. He said that he was rarely around the theatre room and did not recall such an incident.

62. In all the circumstances, the Panel considered that the hearsay evidence of Colleague C in respect of particular 1(d) was weak, and it did not consider that it could properly place much weight on the unsupported hearsay evidence. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had touched Colleague C outside the theatre room.

1(e) on an unknown date between September 2019 and March 2021, you touched Colleague C in a similar manner ‘where the K wiredraw/cabinet was in theatres’ in front of another colleague.

63. The Panel finds particular 1(e) not proved.

64. The Panel noted that the evidence relied upon by the HCPC in support of this allegation was two pieces of hearsay evidence; that is the hearsay evidence from Colleague C set out in his email, dated 18 March 2021 provided to Mr JB and also the hearsay evidence from Witness D, provided in a Trust investigation interview on 20 May 2021. The Panel noted that whilst Witness D said she was present at an incident when Colleague C had challenged her on whether she had touched his bottom, in the interview, she had not been asked and had not volunteered whether or not she had seen the Registrant touch Colleague C. The Panel did not, therefore, consider that her hearsay evidence was supportive of the hearsay evidence of Colleague C.

65. The Panel considered that essentially, the only evidence in support of the allegation was the hearsay evidence of Colleague C set out in a single paragraph in the email, dated 18 March 2021, sent by Colleague C to Mr JB. The Panel considered that the hearsay evidence was vague and as the date of the incident was unknown, it was not possible to know whether the email was a contemporaneous account or whether it had occurred significantly before the time of the email. As a result of Colleague C declining to provide a witness statement to the HCPC or attend any hearing, the Panel was also mindful that it had not had the opportunity to test the evidence.

66. The Panel noted that in the Registrant’s interview, he said that the K wire drawer was on the main corridor and he was not aware who Colleague C was with, but if he had not seen Colleague C for a while, he could have ‘nipped him’ on the way past. He also said he did not know who Witness D was. The Panel was not satisfied that this amounted to an admission to a specific incident.

67. In all the circumstances, the Panel considered that the hearsay evidence of Colleague C in respect of particular 1(e) was weak, and it did not consider that it could properly place much weight on the unsupported hearsay evidence. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had touched Colleague C in a similar manner ‘where the K wiredraw/cabinet was in theatres’ in front of another colleague.

Particular 2

On an unknown date, you asked Colleague D to ‘uncross [her] legs ‘cos you’re spoiling my supper’.

68. The Panel finds particular 2 proved.

69. The Panel acknowledged that this allegation was not put to the Registrant as part of the Trust investigation. It had not formed part of Mr LW’s terms of reference to conduct the investigation, had emerged during the course of the investigation and the Registrant had not been asked questions about it. The Panel also noted that the Registrant did not address the allegation in his written submissions, dated 28 April 2024.

70. The Panel had regard to the evidence of Colleague D who gave evidence to the Panel. The Panel noted that she had provided evidence initially as part of the Trust’s investigation when she was interviewed on 21 May 2021, then in a witness statement for the HCPC, dated 11 May 2023 and also in oral evidence before the Panel.

71. The Panel had regard to Colleague D’s evidence in describing the alleged incident. She said that she had been sat on a sofa in the coffee room at the hospital, having her lunch when the Registrant had come in. She said the Registrant had walked past her and said: “Can you uncross your legs ‘cos you’re spoiling my supper”. Colleague D said she had later told the Registrant that she had not appreciated what he had said to her and asked him not to talk to her like that again, which he had not.

72. The Panel had regard to Colleague D’s evidence and considered that she had been consistent throughout her initial account, witness statement and oral evidence. It noted that the Registrant, in his recent written submissions of 28 April 2024, had not addressed, and therefore not challenged the evidence of Colleague D. Given the consistency in Colleague D’s evidence as well as the absence of any evidence to undermine it, the Panel was satisfied that it could rely on Colleague D’s evidence. Accordingly, the Panel was satisfied that the HCPC had discharged the burden of proving that the Registrant had asked Colleague D to uncross her legs because she was spoiling his supper.

Particular 3

Between 16 September 2021 and 15 June 2022, you did not contact the HCPC as to the fact of, and reason for your dismissal from the Trust.

73. The Panel finds particular 3 not proved.

74. The Panel had regard to the written and oral evidence of Ms VM, who had replaced the unavailable witness, Ms NB from the HCPC Registrations Department. Ms VM in her witness statement stated that she had checked the HCPC’s electronic records and could confirm that the Registrant had not informed the HCPC that he had been dismissed from his employment at the Trust between 15 September 2021 and 15 June 2022.

75. Ms VM, in her oral evidence, expanded on her written evidence and described that her search of the electronic records meant searching the HCPC ‘CRM’ database used by the Registrations Department, as well as the Registrations inboxes to check if any emails had been received from the Registrant which may have been missed. In explaining the methodology of her search, she said she did not use search terms as such but looked at the initial application and then subsequent renewal documents to see whether any changes had been declared. She also checked in the ‘notes and activities’ sections to see whether any changes had been notified in between renewals, which were every two years. Ms VM said that the Registrant had last renewed his registration in November 2020, which was before his dismissal.

76. In response to the question of whether, if information was provided by a Registrant, she would expect to find it on the CRM electronic database system, Ms VM answered that it was not necessarily the case. She explained that other departments at the HCPC, such as the Fitness to Practise Department, use a different database and she did not have access to that database. Ms VM confirmed that HCPC Guidance advised Registrants to make a self-referral to the Fitness to Practise Department, but that most Registrants would contact the Registrations Department to provide information. Ms VM explained that any form of communication to provide information was acceptable, although Registrants would usually make contact by email, and if the email was sent to the Registrations Department, they would forward it to the Fitness to Practise Department.

77. The Panel was concerned that the Registrations Department and the Fitness to Practise Department did not easily dovetail their processes. Therefore, whilst Ms VM could confirm that no information had been received from the Registrant about his dismissal into the Registrations Department, she was unable to provide any evidence about whether or not the Fitness to Practise Department had received any information from the Registrant as she was not able to access their database. Further, the Panel noted that Ms VM had told it that the Guidance was that Registrant’s should self-refer to the Fitness to Practise Department.

78. The Panel considered that it had no evidence of whether or not the Fitness to Practise Department had received information from the Registrant about his dismissal, because it had no evidence of the Fitness to Practise database being searched. In all the circumstances, the Panel was not satisfied that the HCPC had discharged the burden of proving that the Registrant had not contacted the HCPC to inform it of the fact of and reason for his dismissal.

Particular 4

Your conduct in relation to particulars 2 was of a sexual nature and/or sexually motivated.

79. The Panel finds particular 4 proved in respect of the conduct at particular 2 being of a sexual nature.

80. The Panel first considered whether the Registrant’s comment at particular 2 was of a sexual nature. It considered that the request to ‘uncross her legs’ essentially directed attention to an intimate part of the body, namely the genitalia. The Panel, therefore, considered that the Registrant’s comment was sexual in nature. It noted that Colleague D had also described the comment as disgusting and that it was more like sexual innuendo, although she thought that the Registrant had seen it as ‘banter’.

81. In relation to whether the comment was also sexually motivated, the Panel considered that there was nothing in the surrounding circumstances for it to infer that the comment was sexually motivated. It was a single comment, and when Colleague D later challenged him to say she did not appreciate it, the Registrant said “okay”, walked off and did not make any other similar comments to her again. The Panel did not consider that the evidence supported an inference to the effect that the Registrant made the comment for sexual gratification or in pursuit of a relationship. Accordingly, the Panel was satisfied that the Registrant’s comment to Colleague D was of a sexual nature, but it was not satisfied that the HCPC had discharged the burden of proving that it was also sexually motivated.

Decision on Statutory Ground

82. Mr Anderson, on behalf of the HCPC, submitted that the Registrant’s conduct was sufficiently serious as to amount to misconduct. He highlighted that the Panel had found two instances of crossing professional boundaries and one instance of behaviour of a sexual nature, all in the workplace. Mr Anderson submitted that the conduct would be considered deplorable by members of the profession, noting that Colleague D had described the Registrant’s comments to her as ‘disgusting’.

83. The Panel heard and accepted the advice of the Legal Assessor. In relation to misconduct, she advised the Panel in respect of a number of cases, including Roylance v GMC (No. 2) [2000] 1 AC 311. The Legal Assessor advised that for conduct to amount to professional misconduct, it must fall short of what would be expected in the circumstances and that such a falling short must be serious and fall far below the expected standards. The Legal Assessor advised that the question of whether or not the facts found proved amounted to misconduct as alleged, was a matter for the Panel’s professional judgement.

84. The Panel was mindful that it had essentially found three instances of the Registrant’s conduct proved in respect of two colleagues at work, two of which amounted a breach of professional boundaries, one of which was of a sexual nature. It was careful only to judge seriousness in respect of those factual particulars found proved and disregard the matters which it had not found proved as well as the unredacted prejudicial information within the bundle which had not been the subject of any allegations. Nevertheless, the Panel considered that the nature of the Registrant’s conduct had been unwarranted. It had been unwanted by both colleagues and had caused them upset and discomfort.

85. In relation to Colleague C, the Registrant had failed to maintain professional boundaries towards a colleague and had repeated the conduct after Colleague C had told him not to. Regardless of whether the Registrant had considered it a joke, the Registrant had clearly caused upset and potential embarrassment to Colleague C. The Panel considered that such conduct had the potential to create an uncomfortable working environment. The Panel was of the view that the Registrant’s conduct fell far below the professional standards expected.

86. In relation to Colleague D, whilst it was a single comment towards a colleague, it was of a sexual nature, and had clearly made her feel very uncomfortable. In the Panel’s view, such behaviour had no place in the workplace and was disrespectful to the individual concerned. It also had the potential to create an uncomfortable working environment. The Panel was of the view that the Registrant’s conduct fell far below the professional standards expected.

87. The Panel considered that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics (2016):

2.1 – You must be polite and considerate;

9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

88. The Panel considered that the facts found proved, both individually and collectively, fell far below the standards expected of a registered Operating Department Practitioner and were sufficiently serious as to amount to misconduct.

Decision on Impairment

89. Having found that the facts found proved amount to misconduct, the Panel went on to consider whether the Registrant’s Fitness to Practise is currently impaired as a consequence.

90. Mr Anderson submitted that whilst the Registrant’s misconduct may potentially be remediable, his lack of engagement meant that he had not demonstrated any remediation. Mr Anderson submitted that the recent response from the Registrant on 28 April 2024 indicated that he had not remediated or developed insight into his actions. Mr Anderson submitted that the Registrant’s Fitness to Practise is currently impaired on both the personal and public components.

91. The Panel heard and accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on Impairment, and in particular the two elements of impairment, namely the personal component and the public component.

92. The Panel first considered whether the Registrant’s Fitness to Practise is currently impaired on the personal component, which looks at matters personal to the Registrant, such as current competence, behaviour, insight and remediation, all of which inform in respect of the risk of repetition and any ongoing risk to the public, which in this case includes colleagues at work.

93. The Panel was satisfied that the Registrant’s misconduct was, in principle, capable of remediation. Whilst it considered that the behaviour may be characterised as attitudinal, the Panel was of the view that it could nevertheless be remedied. It considered that this might be achieved through, for example, self-reflection, relevant training and positive references attesting to his behaviour in subsequent employment. The Panel considered that self-reflection was important in developing an understanding that such behaviour was not ‘banter’ but was potentially upsetting and uncomfortable for colleagues. It considered that reflection may also help develop insight into not just the impact of such behaviour on colleagues, but also how it may create a challenging work environment and have a negative reputational impact on the profession.

94. The Panel considered that the Registrant appeared to have misunderstood the nature of the factual particulars in respect of Colleague C. It appeared to the Panel that he was under the misapprehension that the HCPC had alleged that his actions in respect of Colleague C were also sexual and his denials in the written representations of 28 April 2024 concentrated on that aspect. The Panel considered that it was in that context that the Registrant had stated that the allegations were fabricated, so the Panel did not consider it would be fair to use that part of his denials as evidence supporting a lack of insight.

95. Nevertheless, the Panel considered that it had little evidence of real reflection by the Registrant, and therefore only a limited demonstration of insight. The Panel noted that the Registrant appeared to recognise that his conduct ‘may not appear professional’, and that he held ‘his hands up’ to say that it ‘wasn’t the most professional thing’ he had ever done. In relation to the incident of 16 March 2021, he said that he was ‘mortified’ that he had upset Colleague C as that had not been his intention at all.

96. However, the Panel also considered that the Registrant appeared to minimise his behaviour and concentrate on the adverse outcome to himself, describing his behaviour as a ‘joke which blew up’ in his face and subsequently cost him his job. The Panel did not consider that he had demonstrated an understanding of the impact of his actions on either Colleague C or Colleague D, or the detrimental effect such behaviour would have on the reputation of the profession. The Panel was of the view that the Registrant had demonstrated some limited insight in respect of Colleague C, but none in respect of Colleague D as he had not addressed the case regarding her at all.

97. The Panel noted that it had not been provided with any up-to-date information from the Registrant aside from his written representations of 28 April 2024, and so had no evidence of any of the practical steps he may have taken to address his misconduct, for example relevant training or positive references or testimonials.

98. Given the limited insight demonstrated, and the absence of evidence of any other remediation, the Panel was unable to conclude anything other than that the Registrant had not remedied his misconduct and that there remained a consequent risk of repetition. The Panel therefore concluded that the Registrant is currently impaired in respect of the personal component.

99. In respect of the public component, the Panel was mindful of its responsibility to protect the public, maintain public confidence in the profession and uphold professional standards. In protecting the public, the Panel considered that the public included colleagues who were entitled not to be made to feel upset, embarrassed or uncomfortable in the workplace. In terms of maintaining public confidence, the Panel considered that the public was entitled to expect a registrant to be professional and act with decency. In terms of upholding professional standards, the Panel considered that the Registrant had brought the profession into disrepute and breached fundamental tenets of the profession, namely those of maintaining professional boundaries and not using comments of a sexual nature towards colleagues.

100. In all the circumstances, the Panel was of the view that public confidence in the profession would be undermined if no finding of current impairment were made in respect of an Operating Department Practitioner who had failed to maintain professional boundaries with a colleague and had made a comment of a sexual nature towards another colleague, and in respect of whom a risk of repetition had been identified. In all the circumstances, the Panel concluded that the Registrant’s Fitness to Practise is currently impaired on the public component.

101. Accordingly, in the Panel’s judgement, the Registrant’s Fitness to Practise is currently impaired.

Decision on Sanction

102. Having determined that the Registrant’s Fitness to Practise is currently impaired by reason of misconduct, the Panel went on to consider whether it was impaired to a degree which required actions to be taken on his registration. The Panel took account of the submissions of Mr Anderson on behalf of the HCPC and had regard to all the material previously before it.

103. The Panel accepted the advice of the Legal Assessor and exercised its independent judgement. It had regard to the HCPTS Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest which includes upholding standards within the profession, as well as maintaining public confidence in the profession and its regulatory process.

104. Before considering the individual options open to the Panel in respect of sanction, it considered the relevant mitigating and aggravating features in this case.

105. The Panel considered the following to be the relevant mitigating factors:

⦁ The Registrant was of previous good character with no Fitness to Practise history;

⦁ The Registrant had expressed a degree of apology in respect of his actions towards Colleague C.

106. The Panel considered the following to be the relevant aggravating factors:

⦁ The Panel considered that the Registrant’s misconduct represented a pattern of inappropriate behaviour towards two colleagues, with the potential to create an uncomfortable work environment;

⦁ In respect of Colleague D, the misconduct fell into the Policy’s category of ‘serious cases’, namely that of an instance of sexual misconduct, which was unwanted conduct of a sexual nature directed towards a colleague;

⦁ The Registrant had demonstrated only limited insight in respect of Colleague C and none in respect of Colleague D;

⦁ There was no evidence of remediation.

107. The Panel acknowledged that the option of mediation was available to the Panel but did not consider that this case was suitable for such an outcome. It noted the criteria set out in the Policy indicating where such an outcome may be appropriate and did not consider that any were engaged in this case. In particular, the Panel did not consider that the impairment was minor, isolated in nature and unlikely to recur. Further, it did not consider that the Registrant had ‘displayed sound insight’ or ‘undertaken significant remediation’.

108. The Panel next considered whether a sanction was required, or whether the case could be concluded with no further action. The Panel was of the view that this case was too serious to take no action. Such a course would not address the ongoing risk of repetition which the Panel had not been able to rule out, given the absence of evidence of insight and remediation. Further, the Panel was of the view that taking no action would send the wrong message to the public and the profession. Accordingly, the Panel was not satisfied that taking no action was the appropriate or proportionate response.

109. The Panel next considered whether to impose a Caution Order. The Panel was mindful that such a sanction would not restrict the Registrant’s practice. The Panel did not consider that a Caution Order was sufficient to protect the public, given that it had not been able to rule out a risk of repetition. Furthermore, the Panel did not consider that the criteria set out in the Policy were met for when a Caution Order may be appropriate. In particular, the Panel did not consider that the issues were isolated, limited or relatively minor in nature; that the risk of repetition was low; or that the Registrant had shown good insight and undertaken appropriate remediation. Accordingly, the Panel was not satisfied that a Caution Order was the appropriate or proportionate response.

110. The Panel next considered whether a Conditions of Practice Order may be the appropriate and proportionate response. The Panel had regard to the specific factors set out in the Policy which may make a Conditions of Practice Order appropriate. In particular it was of the view that the following factors were not present in the Registrant’s case:

⦁ The Registrant has insight;

⦁ Appropriate, proportionate, realistic and verifiable conditions can be formulated; and

⦁ The Panel is confident that the registrant will comply with the conditions.

111. The Panel bore in mind its earlier finding that the Registrant had demonstrated only limited insight in respect of Colleague C and none in respect of Colleague D. The Panel was of the view that the Registrant’s behaviour could be characterised as attitudinal. Therefore, although the Panel was of the view that his misconduct was capable of remediation, it did not consider that conditions could readily be formulated which were appropriate, proportionate, realistic and verifiable. Furthermore, the Panel was of the view that even if conditions could be formulated, it was not confident that the Registrant would comply with them, given his lack of engagement. In all the circumstances the Panel did not consider that a Conditions of Practice Order was the appropriate and proportionate response.

112. The Panel next considered a Suspension Order. The Panel had regard to the factors set out in the Policy which may make a Suspension Order appropriate, namely:

⦁ The concerns represent a serious breach of the Standards of conduct, performance and ethics;

⦁ The registrant has insight;

⦁ The issues are unlikely to be repeated; and

⦁ There is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

113. The Panel was satisfied that the concerns represented serious breaches of the Standards, as had been identified at the statutory ground stage. However, the Panel did not consider that any of the other three factors were present which may indicate that a Suspension Order was appropriate. As identified, the Panel considered that the Registrant demonstrated only limited insight, as a result a risk of repetition remained and there was no evidence one way or the other to demonstrate that the Registrant may be able to remedy his misconduct, as there had been no meaningful engagement with the process. The Panel considered that on its face, a Suspension Order might not be the appropriate and sufficient sanction.

114. The Panel therefore looked at the criteria set out in the Policy which may make a Striking-Off Order the appropriate sanction. It noted that a Striking-Off Order is the sanction of last resort, where the nature and gravity of the concerns are such that no lesser sanction would be sufficient to protect the public and maintain confidence in the profession and the regulatory process. The Panel had regard to the Policy which indicated that a Striking-Off Order is a sanction of last resort for ‘serious, persistent, deliberate or reckless acts’ involving sexual misconduct. Whilst the Panel considered that an unwanted comment of a sexual nature directed towards a colleague was serious, it did not consider that the seriousness was to such a degree that, even when taken together with the breaches of professional boundaries, a Striking-Off Order was the only sufficient sanction. In reaching this view, the Panel bore in mind that it was a single comment which had not been repeated or accompanied by any other sexual comment or behaviour.

115. The Panel considered that this was not a case where a lesser sanction would be insufficient to protect the public. It was satisfied that a Suspension Order would be sufficient to protect the public for the period that it was in place and would meet the public interest considerations in this case of maintaining public confidence and upholding professional standards. The Panel was also mindful that it must act proportionately. In all the circumstances, the Panel was satisfied that a Suspension Order was the appropriate and proportionate sanction.

116. The Panel determined to impose a Suspension Order of 12 months. In deciding this length, the Panel considered that such a length was necessary to achieve the appropriate level of public protection and meet the public interest considerations. It also considered that it would afford the Registrant the opportunity, if he wished to take it, to engage with the HCPC and begin to remediate his misconduct.

117. The Panel did not seek to bind a future reviewing panel, but it was of the view that the following matters may assist it:

⦁ Evidence of engagement with the HCPC;

⦁ A detailed reflective piece demonstrating that the Registrant had gained insight into the impact of his conduct on colleagues, the working environment and the reputation of the profession;

⦁ Evidence of relevant training/courses, for example in professional behaviour and maintaining professional boundaries; and

⦁ Testimonials and character references from any subsequent employment, whether in the field of health care or otherwise.

ORDER: That the Registrar is directed to suspend the registration of Mr Joseph William Yeardley for a period of 12 months from the date this order comes into effect.

Interim Order

Application

1. In the event that the Panel imposed a sanction which restricted or prohibited the Registrant’s right to practise as an Operating Department Practitioner, Mr Anderson applied for an Interim Order to cover the appeal period before the sanction takes effect, or if the Registrant were to appeal, the period before the appeal was determined or otherwise disposed of. Mr Anderson submitted that given the findings of the Panel that there was an ongoing risk to colleagues, an Interim Order was necessary to protect the public and was otherwise in the public interest.

Decision

2. The Panel heard and accepted the advice of the Legal Assessor, who advised that the substantive Suspension Order of 12 months would not take effect until the appeal period of 28 days had expired, or if the Registrant were to appeal, until the appeal was determined or otherwise disposed of. She advised the Panel that it was open to it to impose an Interim Order to cover that period if satisfied that an Interim Order was necessary to protect the public or was otherwise in the public interest.

3. The Panel was satisfied that an Interim Order was necessary to protect the public, given its findings that the risk of repetition towards colleagues could not be ruled out. It was also satisfied that an Interim Order was required in the public interest to maintain public confidence in the profession and to uphold professional standards, being of the view the public would be troubled if no Interim Order were imposed.

4. In light of its substantive conclusion that it was not confident that the Registrant would comply with conditions, even if it were possible to formulate them, the Panel decided that an Interim Suspension Order was the appropriate and proportionate Interim Order.

5. The Panel decided the Interim Order should be for 18 months, as if the Registrant were to appeal, it may take a significant period of time to resolve.

6. The Panel makes an Interim Suspension 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 to cover the period before the substantive Suspension Order takes effect.

7. 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 and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Joseph William Yeardley