HCPTS |

Profession: Operating department practitioner

Registration Number: ODP26996

Interim Order: Imposed on 03 May 2022

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/07/2024 End: 17:00 04/07/2024

Location: Virtually, via Video Conference

Panel: Conduct and Competence Committee

Outcome: Struck off

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Allegation

As a registered Operating department practitioner (ODP26996) your fitness to practise is impaired. In that:

1. On 14 November 2022, at Southampton Crown Court you were convicted of arrange/facilitate of offence of sexual activity with child/cause/incite child to engage – penetration.

2. On 14 November 2022, at Southampton Crown Court you were convicted of make indecent photograph/pseudo-photograph of a child x.

3. By reason of the matter set out above your fitness to practise is impaired by reason of conviction.

Finding

Preliminary Matters

Conflict of Interest

1. The Registrant Panel Member confirmed that she had been involved in regulatory matters involving the Registrant previously but that she did not consider that this amounted to a conflict of interest. She had notified the HCPTS of this and understood that neither the HCPC nor the Registrant objected to her continuation on the Panel.

2. The Legal Assessor referred the Panel to the HCPC conflict of interest policy, which confirms the approach to be taken if a conflict of interest arises or could be perceived to have arisen. She reminded it that potential bias may taint the decision as a whole and the highest standards of conduct were expected from partners.

3. The Panel was grateful to the Registrant Panel Member for flagging her potential conflict of interest to it in advance, which enabled it to get the views of the Registrant and the HCPC. It was reassured that neither the HCPC nor the Registrant considered that her continued engagement in the hearing amounted to a conflict of interest. It accepted her assurance that she was able to approach the hearing with independence and impartiality, and noted that there were a limited number of registered panel members, which did lead such potential conflicts to occur occasionally.

4. In all the circumstances of this case, the Panel was satisfied that it was fair and appropriate for the Registrant Panel Member to continue with the hearing. It did not consider that her previous knowledge of the Registrant posed any conflict of interest, but it would keep the situation under review throughout the hearing.

Service

5. The Panel noted that the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’) provide at paragraph 3(1)(b) that notice may be served on a registrant by posting it to their address as it appears in the Register or sending it to an electronic mail address provided by the registrant for communications. Paragraph 6(2) of the Rules confirms that at least 28 days’ notice of a hearing must be provided to a registrant.

6. The Panel reviewed a 6-page Service Bundle which contained a Notice of Hearing sent to the Registrant on 21 May 2024 via email at 16.36, and an extract of the Register showing the contact details provided by the Registrant and held by the HCPC. It also received legal advice from the Legal Assessor, which it accepted, and was referred to the HCPTS Practice Note in relation to “Service of Documents”.

7. The Panel was satisfied that the Notice of Hearing had been duly served upon the Registrant via his email address more than 28 days before the hearing. It was therefore content that the HCPC had discharged its duty to ensure that the Registrant had been afforded an opportunity to appear before it and be heard, as set out at Article 31(15) of the Health Professions Order 2001 (‘the Order’). In these circumstances, the Panel determined that good service of notice of the hearing had been effected.

Proceeding in Absence

8. The Presenting Officer invited the Panel to proceed with the hearing in the absence of the Registrant. He summarised the case law relevant to the issue to be determined by the Panel and reminded it that the Registrant had indicated via email that he did not intend to attend the hearing. The Registrant had not requested an adjournment or to have representation at the hearing. He also had not provided any indication that he was unable to attend the hearing due to ill health or any other reason. In the circumstances, the Presenting Officer submitted that the Panel was entitled to find that the Registrant had voluntarily absented himself from the proceedings and therefore that the hearing should proceed in his absence.

9. The Panel received advice from the Legal Assessor, which it applied, and had regard to the Practice Note provided by the HCPTS in relation to “Proceeding in the Absence of the Registrant”. It noted that the Registrant confirmed via email on 5 and 22 June 2024 that he did not wish to attend the hearing.

10. Having determined that good service of notice of the hearing had been effected by the HCPTS, the Panel carefully considered all of the circumstances of the case to inform its assessment of the fairness to the HCPC, the public, and the Registrant in respect of whether to proceed with the hearing in the absence of the Registrant. It noted that the Notice of Hearing specifically informed the Registrant that the hearing could proceed in his absence if proper notice was given of the hearing.

11. The Panel was satisfied that the Registrant was aware of the date, time, location, and purpose of the meeting, as required by the Rules, as a consequence of the good service of the Notice of Hearing. It was also satisfied that the HCPC had taken all reasonable steps to engage the Registrant in the proceedings. The Registrant maintained engagement with the regulator and was consistently clear that he did not wish to attend the hearing. There had been no request for an adjournment by the Registrant, nor had he expressed an interest in being represented at the hearing. There was no information before the Panel to suggest why the Registrant was unable to attend the hearing, and no indication that he would attend the hearing on a future date in the event that the hearing was adjourned.

12. In considering fairness to the HCPC and the public when making its decision on whether to proceed with the hearing or not, the Panel noted that the HCPC had attended the hearing and was in a position to proceed. The steps it had taken to secure the Registrant’s attendance were reasonable in all the circumstances and the Panel had no reason to think that the Registrant would attend any future hearing date.

13. The Panel gave careful consideration to the prejudice that may be caused to the Registrant by the matter proceeding in his absence, but was content that it would test the HCPC’s case in any event when forming any judgement and therefore minimise this disadvantage as much as possible. It was mindful of the practice note issued by the HCPTS in respect of “Unrepresented Registrants” and the fact that registrants should not be able to frustrate the efficient administration of regulatory matters by simply not engaging in the proceedings. The Panel noted that in this case the Registrant, in his 5 June 2024 email, expressed surprise that he had not been “struck off immediately”.

14. In the circumstances, the Panel determined that the public interest favoured the proceedings continuing in the absence of the Registrant given the age of the Allegation, the fact that the HCPC was in a position to proceed, and that the Registrant provided no indication as to why he was unable to attend. It was satisfied that the hearing could proceed in the absence of the Registrant.

Background

15. The Registrant is a registered Operating Department Practitioner (‘ODP’) who was employed by University Hospitals Sussex NHS Foundation Trust (‘the Trust’) at the material time.

16. On 10 March 2022, Hampshire Police informed the HCPC that the Registrant was arrested on 8 March 2022 in relation to suspected child sex offences under the Sexual Offences Act 2003.

17. On 14 November 2022 the Registrant was convicted of:

a. “Arrange / facilitate commission of offence of sexual activity with child / cause / incite a child to engage – penetration”; and

b. “Make Indecent photograph / pseudo-photograph of a child x3”.

18. On 5 December 2022, the Trust dismissed the Registrant for gross misconduct with immediate effect. The Trust also informed the Registrant it would notify the HCPC of its action.

19. The Registrant was sentenced at Southampton Crown Court on 13 January 2023 as follows:

• 38 months’ imprisonment;

• Required to register under Section 92 of the Sexual Offences Act 2003 indefinitely;

• Subject to a Sexual Harm Prevention Order under Section 103 of the Sexual Offences Act 2003, for a period of 10 years;

• Subject to an Order under Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for the forfeiture and destruction of two mobile telephones seized upon arrest;

• Pay a Victim Surcharge of £170.

20. During sentencing, the Judge stated:

“…a police officer assumed the identity of a 14 year old boy. You, on social media, engaged in a sexual conversation with that officer. You said you were looking for a submissive boy who needed cash. You were quickly given an age, the officer telling you that he was 14 and that he was up for cash. In such circumstances, there is no doubt that you were aware of the age of the person that you thought you were chatting to.

You later told the officer that what you would pay for depended on where he was, where they met and what you did. You made an enquiry asking the person, who you thought to be a child, if he was OK with being blindfolded. You sent a picture of your penis and you said that that was what you would be putting inside him. You repeatedly asked the person you thought to be a child for photographs, and you pushed for and agreed to have a meeting the following Tuesday. You described your intended activity as follows:

“Blindfolded, then I pull your pants down, kiss, rim, suck and fuck you.”

You said you usually paid £100 and you stressed the need to be careful. You later confirmed the intended arrangements with the person believed to be the child. You confirmed that the child was to be blindfolded before you arrived. He was to wear the tight underwear and only a tee shirt. And so it was that you went and travelled to the area where you believed the child to be, travelling in your car. You were clearly prepared for activity, taking with you lube and two condoms…

In summary, you sought penetrative sexual activity with a child, you wanted to have sexual intercourse and other activity with this 14 year old. You sent a photograph of your penis. You were asking him for photographs. You were willing to pay money, and you were even willing to carry out the activity in the child’s home, waiting for the opportunity when his mother had gone out. On any view, this is serious exploitation of a person who you believed to be a child and it was intended exploitation only for your sexual gratification. It is impossible to take any different view because, if you step back from the case, you actually travelled, equipped in the way that I have described, wanting and willing to carry out this activity with a blindfolded child in their own home.”

21. On 7 September 2023, a panel of the Investigating Committee determined that the Registrant did have a case to answer and confirmed the Allegation as set out above, notice of which was sent to the Registrant on 14 September 2023.

Decision on Facts

22. The Panel listened carefully to the submissions of the Presenting Officer. It received advice from the Legal Assessor, which it applied, and had regard to the bundle of documents, case summary, dismissal letter from the Trust, and the service bundle, provided to it by the HCPC in advance of the hearing. There was no information supplied to it by the Registrant. It had regard to the HCPTS Practice Notes to which it had been referred, particularly those entitled “Finding Impairment” and “Conviction and Caution Allegations”.

23. The Panel noted that it was obliged to approach the consideration of an allegation sequentially, determining firstly whether the facts set out in the Allegation are proved, then whether those facts amount to the statutory ground set out in the Allegation and, if so, whether the Registrant’s fitness to practise is impaired.

24. In determining whether an allegation is ‘well founded’ or ‘proved’, the Panel was required to decide firstly whether the HCPC, which had the burden of persuasion in relation to the facts alleged, had discharged that burden. It was satisfied that the extract of conviction provided to it by the HCPC, together with the Registrant’s email of 5 June confirming “my sentence and offence” and that he did “not wish to appeal” was sufficient to establish Particulars 1 and 2 as proved on the balance of probability.

Decision on Grounds

25. Having found Particulars 1 and 2 proved, the Panel then considered whether a statutory ground of impairment was made out, as set out within the Order at Article 22(1), noting this was entirely a matter for it to determine. The Panel recognised that it was required to provide a decision in sufficient detail for readers to understand why the facts do or do not amount to the ground alleged. It was aware that it could not ‘go behind’ the conviction.

26. The Panel was satisfied that the facts (i.e. the convictions) had been proved against the Registrant and that this did amount to a statutory ground under the Order, namely a conviction. It then moved on to consider whether the Registrant’s fitness to practice is impaired.

Decision on Impairment

27. The Registrant did not attend the hearing and provided no evidence as to his current fitness to practise.

28. The Presenting Officer asked the Panel to have regard to the HCPTS Practice Notes provided in respect of conviction and cautions when fulfilling its role of protecting the public and maintaining standards and confidence in the profession. He confirmed that the personal component of impairment related to the competence, behaviour, and insight of the Registrant, while the public component related to the need for the Regulator to protect service users, declare and uphold standards, and maintain confidence in the profession.

29. The Presenting Officer invited the Panel to have regard to the insight which the Registrant demonstrated, as this could inform the assessment of the risk of repetition. He drew the Panel’s attention to the difference between insight and remorse, and submitted that neither was present in this matter given the lack of information from the Registrant, other than pleading guilty to the offences. The Presenting Officer reminded the Panel of the sentencing remarks of the judge that the conduct was deliberate, displayed significant planning, and that there was a disparity of age between the Registrant and the boy he thought he was arranging to meet. Further aggravating features were that the Registrant arranged the meeting at home when a parent left. The conduct had not been remedied and could be repeated.

30. In respect of the public component of impairment, the Presenting Officer submitted that the public is entitled to expect professional competence, decency, honesty, and integrity, and to rely on the regulatory process to be robust, fair, and transparent. He reminded the Panel that the Registrant also pleaded guilty to possessing a number of images of children, 35 of which were categorised as the most serious band. The Presenting Officer referred the Panel to the case of NMC v Persand [2023] EWHC 3356 (Admin) and suggested that a responsible regulator would not be acting properly if it failed to act upon this information. This type of offending is considered particularly serious by society given the issues of dignity and significant risk of harm for victims. Registered professionals are expected to be safe and not to diminish the trust people place in them. This trust would be seriously undermined if the Registrant was found not to be impaired on the public component of impairment.

31. The Presenting Officer invited the Panel to consider the risk of future harm which may be posed by the Registrant, whether to the physical or mental health of the victims or any operating theatre team, or to the confidence of the public in the Regulator. He submitted that the Panel could consider the degree and risk of harm globally, suggesting that deliberate and intentional harm is more serious. The Presenting Officer also asked the Panel to take account of the fact that the Registrant was convicted of two sexually motivated offences, which he submitted were fundamentally incompatible with continued registration.

32. The Panel had regard to the information provided to it, the guilty plea, the comments of the Judge who sentenced the Registrant (noting that those comments were not binding on the Panel), and the comments of the Registrant in his email of 5 June 2024. It reminded itself that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past. It also recognised that the purpose of the regulatory proceedings is not to punish the Registrant, and it had regard to the Practice Notes published by the HCPTS entitled “Finding Impairment” and “Conviction and Caution Allegations”.

33. The Panel was mindful that a finding of impairment does not automatically follow a finding that the facts proved amounted to the statutory ground of conviction; it could properly conclude the offence was an isolated incident and that the chance of repetition in the future is remote. It also noted the guidance in the case of Cohen v General Medical Council [2008] that it must be highly relevant when determining impairment that the conduct leading to the Allegation is easily remediable, has been remedied, and is highly unlikely to be repeated, as well as the “critically important public policy issues” identified in that case.

34. In the Panel’s view, the Registrant demonstrated no insight into his conduct. The Registrant told the undercover Police Officer (who was pretending to be a 14-year-old boy) that he had made arrangements with other boys previously. It noted that the Registrant informed the police during the investigation that he thought the boy was 16, and that the Registrant expressed concern to the Trust in his dismissal hearing as to the police investigation. In the absence of any information to the contrary, the Panel found that there was a risk of repetition of the offences. It was immaterial, in the Panel’s view, that the offending did not arise from his practice; there was no remorse expressed by the Registrant and no evidence that he appreciated the impact the offences could have on the public, his patients, and his colleagues. It was satisfied that he was impaired on the personal component of impairment.

35. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Whilst the Registrant’s action had not caused harm to a patient, it could have resulted in harm to a child and the police considered it necessary to intervene.

36. The Panel was charged with considering the degree of harm caused by the Registrant, and it concurred with the sentencing Judge that the conduct was planned over a period of time. The Registrant offered no explanation to his Regulator as to why he acted as he did.

37. There was no evidence before the Panel to suggest that the public needed to be protected from the professional acts of the Registrant (the conduct having occurred outside of the work environment); however, the Panel considered that members of the public and members of the profession, knowing all of the facts, would be concerned to learn that an ODP had been convicted of these offences, sentenced to imprisonment, and placed on the Sex Offenders Register. Further, it considered that his conduct breached Standard 9 the HCPC Standards of Conduct, Performance and Ethics (2016) set out by the HCPC for all registered professionals, which requires registered professionals to be honest and trustworthy, and also:

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

38. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made in these circumstances. It concluded that the Registrant’s fitness to practise is currently also impaired on the public component for the reasons set out above.

Decision on Sanction

39. The Presenting Officer addressed the Panel in relation to sanction, reminding it that Article 29 of the Order sets out the sanctions available to it. He invited the Panel to consider the HCPC Sanctions Policy and directed it to the section on criminal convictions. He submitted that the Panel should consider the least restrictive sanction first and consider the aggravating and mitigating factors of the case. Mitigating factors are those which don’t excuse or justify the conduct of the Registrant but may indicate a reduced risk to service user safety and reduce the severity of the sanction imposed. The Presenting Officer outlined the potential mitigating factors of insight, remorse, apology, and remediation and that there was no information from the Registrant to assist the Panel in this regard. However, the Presenting Officer suggested that the Registrant was aware of the severity of the impact of his conduct, as his email of 5 June 2024 expressed his expectation that he would be struck off immediately. He did plead guilty and therefore removed the need for a trial; however, this was not at the earliest opportunity.

40. In terms of aggravating factors, the Presenting Officer directed the Panel to the sentencing remarks of the Judge and the fact that, during his police interview, the Registrant accepted contacting underage boys via the Grindr app and using another app to communicate with them (Kik). The messages recorded on that platform included comments which showed the Registrant was unconcerned by the age difference and aware of the implications should he be caught. They specified the need for a blindfold so the Registrant was not recognised and he didn’t want his face on social media. The Presenting Officer reminded the Panel that the Registrant offered no comment to the police when he was questioned about the images found on his phone. There was no indication of any insight, remorse, remediation, or apology but there was potential for harm and a risk of repetition. Further, the Allegation related to a conviction for sexual misconduct, which was categorised in the Sanctions Policy as a serious matter. The conduct undermined public trust in the profession, which should lead to a more serious sanction being imposed.

41. The Presenting Officer concluded his submission by stating that the sexual abuse of children is fundamentally incompatible with continued registration. He confirmed that the HCPC did not invite any particular sanction, but relied upon the experience of the Panel to impose the appropriate sanction in the circumstances.

42. The Panel accepted the advice of the Legal Assessor. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and promote the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

43. The Panel had regard to the Sanctions Policy adopted by the HCPC and took into account the submissions of the Presenting Officer. It identified the following aggravating factors in relation to the Registrant’s conduct:

• the 32-year age gap between the Registrant and the child he thought he was arranging to meet;

• the detailed and premeditated arrangements to meet a child, at the boy’s home, after a parent left;

• he offered additional money to secure the arrangement when he identified nervousness;

• the fact that hundreds of photographs spanning all three categories of image were recovered from the Registrant’s devices;

And the following mitigating factors:

• a guilty plea was entered to the criminal proceedings prior to a trial being arranged;

• no other adverse findings have been recorded against the Registrant, who had an otherwise unblemished career.

44. Given the serious nature of the offences admitted by the Registrant, and his apparent lack of remorse and insight, the Panel did not consider it appropriate to take no action or impose a Caution Order, mindful that the Sanctions Policy confirms that while a finding of impairment means there are concerns about a registrant’s current ability to practise safely and effectively, there may be instances in which taking no action is the appropriate and proportionate outcome, such as when there is no risk to the public or to public confidence in the profession in taking no action.

45. The Panel concluded that taking no action or imposing a Caution Order in this instance would be inappropriate and insufficient in the circumstances. Although this was the Registrant’s first conviction, he clearly stated that he had met with underage children previously and had built up the number of images on his phone over time. It could not therefore be said that the conduct was isolated or minor in nature. The Registrant provided no evidence of insight or remediation, other than to recognise the risks to him of exposure. The Panel had identified a risk of repetition and this had not been mitigated. It also noted that Caution Orders should be considered where the Allegation means that meaningful practice restrictions cannot be imposed but suspension of practice would be disproportionate. This was not such a case.

46. Given that the conviction did not arise through professional conduct and was not linked to the workplace, the Panel did not consider that a Conditions of Practice Order was appropriate or afforded an appropriate level of protection to the public. It could not formulate any conditions which would remedy the concerns or restore public confidence in the profession and uphold proper standards of conduct and behaviour.

47. The Panel then gave careful consideration to the imposition of a Suspension Order, which would send a signal to the Registrant, the profession, and the public reaffirming the standards expected of a registered ODP. However, the Panel considered that imposing such a sanction would not adequately reflect the seriousness of the offences. Further, the Registrant was placed on the Sex Offenders Register for a period of 10 years. A Suspension Order would not mark the seriousness of the offences.

48. The Panel concluded that the only appropriate and proportionate sanction to impose in this case is that of removal from the Register. It noted that the Registrant appeared to expect this sanction to be applied to him and he questioned why it had not happened already in his email of 5 June. In the absence of any insight, remediation, remorse, or apology from the Registrant, removal from the Register was, in the Panel’s view, the only sanction that would adequately protect the public and maintain confidence in the profession and the Regulator. The Panel had no information from the Registrant as to the impact this may have on him, but was satisfied that the removal was necessary in the circumstances, and the need to protect the public outweighed the impact upon the Registrant.

Order

That the Registrar is directed to strike the name of Mr Robin Hains from the Register on the date this Order comes into effect.

Notes

Interim Order

Application

1. Upon the Panel determining the appropriate sanction to be striking off from the Register, the Presenting Officer confirmed he intended to apply for an Interim Order, but before he could do this, as the Registrant was not in attendance, he was required to make a further application to proceed in his absence.

2. The Presenting Officer sought an Interim Suspension Order for a period of 18 months to cover the period before the Striking Off Order took effect and the appeal period.

3. The Panel received advice from the Legal Assessor and was invited to consider the guidance on interim orders following a substantive order as contained within the Sanctions Policy. The Panel also took account of the HCPTS Practice Note in relation to “Interim Orders”.

4. The Panel was satisfied that the Registrant was aware of the hearing and on notice that an Interim Order could be applied for, as this was contained within the Notice of Hearing dated 21 May 2024. It was satisfied that the reasons provided for proceeding in absence at the start of the hearing remained applicable and it was content to consider the application for an interim order in the absence of the Registrant.

5. Given that the findings of the Panel in relation to the serious offences committed by the Registrant, the aggravating features of the same, and the risk posed to the public which led it to conclude that a Striking Off Order was the only appropriate way of adequately safeguarding the public, the Panel was content that an Interim Order pursuant to Article 31 of the Order was necessary and proportionate. Given the serious and ongoing risk to service users or the public from the Registrant’s conduct, public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis pending expiry of the appeal period. Whilst the imposition of an interim order may have an immediate and detrimental impact upon the Registrant, this impact could not be prioritised over the need to protect the public and the wider public interest while the regulatory concerns were addressed.

6. The Panel considered that this order should be imposed for a period of 18 months, noting it will fall away in the event that no appeal is lodged to the substantive Striking Off Order.

7. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

8. 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.

Hearing History

History of Hearings for Robin Hains

Date	Panel	Hearing type	Outcomes / Status
04/07/2024	Conduct and Competence Committee	Final Hearing	Struck off