Mr William Smethurst
Profession: Radiographer
Registration Number: RA64547
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 21/06/2024
End:
17:00 21/06/2024
Location:
Virtual Hearing via Video Conference
Panel: Conduct and Competence Committee
Outcome: Suspended
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Allegation
As a registered Radiographer (RA64547):
1. On an unknown date, you took indecent and sexually explicit photographs of yourself on your mobile phone whilst in work, on duty, in uniform, in clinical areas of Blackpool Victoria Hospital.
2. Your conduct in relation to particular 1 was sexually motivated.
3. On 23 June 2022, you denied during an interview as part of Blackpool Teaching Hospitals NHS Foundation Trust’s local investigation that you had taken explicit photographs of yourself in the workplace.
4.Your conduct in relation to particular 3 was dishonest, in that you knew that what you said in the interview (as set out in particular 3) was not true.
5. The matters set out in particulars 1, 2, 3, and 4 above, constitute misconduct.
By reason of the matters set out above, your fitness to practise is impaired.
Finding
Preliminary Matters
Application for Hearing to be Heard in Private
1. At the outset of the hearing Mr Higgs made an application for the whole of the hearing to be held in private. He referred the Panel to Rule 10 (1) (a) of the Health Care Professions Council (Conduct and Competence Committee) 2003 (the Rules) and to the HCPTS Practice Note on Conducting Hearings in Private.
2. He submitted that, whist it was a long established principle that justice be delivered in public, the HCPTS Practice Note on Conducting Hearings in Private states it is appropriate, if the Panel was satisfied that it was in the interests of justice or for the protection of the private life of the registrant, the complainant or any person giving evidence or in the interests of any patient or client for the public to be excluded for all or a part of the hearing.
3. Mr Higgs further submitted that the substance of this case was inextricably linked to the Registrant’s private and professional life and that the entire hearing should be held in private in order to protect the Registrant’s private life. He further submitted that there was also the potential for the Registrant to refer the disclosure of the photographs referred to in the allegation to the police or take civil action against the party who had disclosed the photographs. Mr Higgs submitted that the potential for the existence of a third-party investigation also justified the entire hearing being held in private.
4. Ms Sharpe also referred the Panel to Rule 10 (1) (a) and the HCPTS Practice Note on Conducting Hearings in Private.
5. She told the Panel that the HCPC opposed the entirety of the hearing being held in private but accepted that any discussion of the Registrant’s intimate or personal relationships or viewing of the photographs in an unredacted form should be in private.
6. Ms Sharpe submitted that the Registrant admitted Particulars 1 and 2 of the allegation, all parties had been anonymised and that any potential embarrassment that the Registrant might suffer did not justify the whole hearing being held in private. Ms Sharpe also submitted that the alleged conduct had occurred over 22 months ago and that the matter had neither been referred to the police nor had any civil action been raised. She said even if this occurred it was difficult to see how any prejudice might arise as the sender of the photographs was unknown and not a party to the hearing .
7. The Panel accepted the advice of the Legal Assessor who referred it to Rule 10 (1) (a) and the HCPTS Practice Note on Conducting Hearings in Private.
8. The Panel determined that any potential embarrassment that the Registrant might suffer did not justify the whole of the hearing being hearing being held in private. It further determined that whether or not any criminal or civil action were to be taken was wholly a matter of conjecture and also did not justify the whole of the hearing being held in private. However, the Panel did consider that the protection of the Registrant’s personal and private life in respect of matters relating to the Registrant’s intimate or personal relationships or any viewing of the photographs unredacted outweighed the public interest in that section of the hearing being held in public.
9. The Panel therefore determined that any sections of the hearing relating to details of the Registrant’s personal and private life and any viewing of the unredacted photographs should be in private.
Application on inadmissible evidence
10. Mr Higgs made an application for the photographs referred to in the allegation and all references thereto in of the HCPC’s evidence to be held to be inadmissible. He referred the Panel to Section 33 of the Criminal Justice and Courts Act 2015.
11. Mr Higgs submitted to the Panel that on 17 May 2022 the intimate photographs of the Registrant had been forwarded as part of a complaint to Person B the Trust’s Freedom to Speak Up Guardian. Mr Higgs referred the Panel to the Notes of the Internal Investigation Meeting with the Registrant on 23 June 2022.
12. Mr Higgs submitted that the forwarding of the photographs amounted to what is publicly described as ‘revenge porn’ and referred the Panel to Section 33 of the Criminal Justice and Courts Act 2015 and submitted that in terms of this Section the sending of the photographs amounted to a criminal offence. He referred the Panel to an example of such a criminal case that had been widely reported. Mr Higgs submitted that the photographs had been disclosed by someone who had no right to do so and without the Registrant’s consent and that following the receipt of the photographs the Trust had changed the allegations against the Registrant. He submitted that if the photographs had not been shared the Trust would never have had any knowledge of them. The Trust then provided the photographs to the HCPC.
13. Mr Higgs submitted that in these circumstances the photographs and all references to them in any evidence should be held to be inadmissible.
14. Ms Sharpe told the Panel that the application was opposed by the HCPC. She referred the Panel to Rule 10 (1) (b) and (c). She submitted that the Registrant’s conduct of taking explicit photographs of himself whilst on duty in a clinical area engaged public protection. She submitted that the admission of the evidence was necessary to assess the Registrant’s current fitness to practise.
15. Ms Sharpe further submitted that even if the photographs had been illegally shared with the Trust this did not automatically make the evidence inadmissible. She submitted the method by which they had been distributed had to be looked at. She set out the role of the Freedom to Speak Up Guardian, that it was a national role with a universal job description and part of this was to help protect public safety by the quality of care. Ms Sharpe submitted that it was not its role to investigate or determine if a criminal offence had been committed. She further submitted that if the Registrant considered that a criminal offence had been committed then he could refer the matter to the police for investigation.
16. Ms Sharpe argued that the disclosure had not been intended to cause distress but was in the course of an investigation into the Registrant’s conduct. She submitted that the Registrant had already had the first Internal Investigation Meeting prior to the photographs being disclosed.
17. Ms Sharpe also submitted that Section 33 of the Criminal Justice and Courts Act 2015 was not absolute and referred to the exceptions contained in Sections 33 (3), (7) and (8) including where it was necessary for the purposes of investigating crime and published in the public interest.
18. Ms Sharpe submitted that the Registrant’s position that the disclosure was intended to cause him distress was undermined by the manner of the disclosure and absence of any evidence of intent. She submitted any personal embarrassment arose from the Registrant’s admitted behaviour.
19. Ms Sharpe referred the Panel to the HCPC’s overarching objective to protect the public and maintain public confidence in the profession and submitted if the application were granted this would be frustrated.
20. The Panel accepted the advice of the Legal Assessor. He referred the Panel to Rule 10 (1) (b) and (c), Section 33 of the Criminal Justice and Courts Act 2015 and the case of Council for Health Care Professionals v GMC & Ruscillo [2005] 1 WLR 717.
21. The Panel took into account the submissions of Mr Higgs and Ms Sharpe.
22. The Panel took into account the manner in which the photographs had been disclosed in particular that they had been initially disclosed to the Trusts Freedom to Speak Up Guardian in relation to concerns about the registrant’s conduct. The Freedom to Speak up Guardian had then passed the photographs to the Trust to carry out an investigation. The Panel considered that this process amounted to the disclosure of material that might be relevant to concerns about the Registrant’s conduct.
23. The Panel further considered that having received the photographs and initiated an investigation the Trust acted appropriately in referring any concern about the Registrant’s conduct to the HCPC as his regulator.
24. In these circumstances, the Panel determined that there was no evidence before it that the photographs had been disclosed with the intent of causing the Registrant distress. Further, the Panel noted that Section 33 of the Criminal Justice and Courts Act 2015 was not absolute and contained exemptions – for example where disclose was required to investigation into a crime or publication in the public interest.
25. The Panel determined that there being no evidence that the disclosure of the photographs had been intended to cause the Registrant to distress the photographs and any evidence referring to them were admissible.
26. In these circumstances, the Panel refused Mr Higgs application.
Admission
27. At the outset of the hearing Mr Higgs advised that the Registrant admitted Particulars 1 and 2 of the allegations but denied the remaining allegations.
Background
28. The Registrant was employed as a Band 7 Radiographer in the Computed Tomography (“CT”) department at Blackpool Victoria Hospital (“the Hospital”) within Blackpool Teaching Hospitals NHS Foundation Trust (“the Trust”) from December 2020.
29. The referral relates to a number of concerns raised anonymously with the Registrant’s employer about his conduct which led to an internal investigation. During the course of that investigation, two photographs were provided to the investigator via the Trust’s Freedom to Stand Up Guardian. Each of the photographs showed a male, dressed in burgundy scrubs in two of the Hospital’s clinical room, exposing his genitals. It is alleged that taking the photographs was sexually motivated.
30. On 23 June 2022, the Registrant was interviewed in relation to the allegations. When asked whether he had taken any sexually explicit photographs at work, the Registrant denied having done so “to his knowledge”. The photographs were then provided to the Registrant, who only then admitted that they were of him. It is alleged that the Registrant’s denial was dishonest.
31. The Trust initiated an investigation into the Registrant’s conduct and the Registrant was referred to the HCPC on 1 September 2022.
Evidence
32. The Panel heard live evidence from three witness, Person D, Person G and the Registrant.
Person D
33. Person D took the affirmation, confirmed the terms of her witness statement and adopted it as her evidence in chief.
34. Person D confirmed that she was the Director of Clinical Professionals for the Clinical Support Division at the Trust She stated that she had been in this role for around 34 months and been with the Trust for over 25 years. She explained her role was to provide a strategic lead for Allied Health Care Professionals (AHPs) and Healthcare Scientists within the Division of Clinical Support Services and detailed how she undertook this. Person D confirmed she was registered with the HCPC as a Biomedical Scientist.
35. Person D told the Panel that the Registrant had previously worked for the Trust as a Band 7 Radiographer in the CT Department at the hospital. She explained that in this role the Registrant had been responsible for scanning patients in the CT department. Person D told the Panel that, as a Band 7, the Registrant would have been the clinical lead on shift and would have assisted the Band 5 and 6 Radiographers with any professional issues that they may have. She explained that Band 5 and 6 Radiographers were both fully qualified, but that Band 5 would be more recently qualified and have less experience than a Band 6 Radiographer. She said Band 7 Radiographers are considered to be senior staff and will have a considerable amount of experience and expertise and may have additional qualifications to those in Band 5 or 6 roles. The Band 7 would be there to provide support to the Radiographers with advice and guidance regarding their clinical work. An example of such a situation would be, if there was an unexpected issue with the procedure / patient or equipment or perhaps if there was a less familiar procedure and the staff member wished to have additional support. As a senior member of staff, a Band 7 would also be expected to manage operational issues as they arise.
36. Person D told the Panel that on 27 April 2022 she had received a phone call and an email from the HR Manager, who asked her to undertake an investigation in relation to concerns that had been raised about the Registrant. She explained that she was made aware that the concerns raised about Mr Smethurst were made by two anonymous complainants. Person D told the Panel she remained unaware of the identities of these complainants. The first complainant sent an email to the Radiology Director, who was the Registrant’s line manager, on 29 January 2022. Person D said that the second complainant sent an email to Person F on 13 February 2022. She said she understood the concerns raised within these emails to be in relation to inappropriate behaviour including photographs of the Registrant’s genitals.
37. Person D explained that during the investigation further information came to light, in the form of explicit photographs allegedly of the Registrant.
38. Person D set out the allegations the internal inquiry considered and referred the Panel to her investigation report, management statement of case, appendices and various documents exhibited by her which she reviewed as part of her investigation.
39. Person D told the Panel that she first interviewed the Registrant on 9 May 2022. She referred the Panel to the notes of this interview which she confirmed were accurate and identified the individuals who attended the interview. She accepted that the notes were not verbatim.
40. Person D stated that during her first investigatory meeting with Mr Smethurst, she asked Mr Smethurst whether he had ever sent explicit pictures of his anatomy to any members of the team. Person D said the Registrant replied, “not to my knowledge”. Person D said the Registrant then asked if she meant had he sent pictures of his anatomy to people in the Trust, to which he said yes. Person D told the Panel that the Registrant then admitted that he may have sent a photograph to a colleague. She said the Registrant also stated that he had sent an explicit photograph of his anatomy to a male colleague and identified these colleagues. She said, ‘when pressed’, Mr Smethurst told her about a ‘WhatsApp’ group chat that he had with colleagues and stated that they had consensually shown each other explicit photographs of themselves. The Registrant maintained, however, that he had never taken explicit photographs at work.
41. Person D told the Panel that after this initial investigatory meeting she was made aware that the Trust’s Freedom of Information Officer had received an anonymous email.
42. Person D told the Panel that she arranged a further investigatory meeting with the Registrant which took place on 23 June 2022 to show him the photographs. She confirmed this was attended by the Registrant and identified the other individuals in attendance at the meeting.
43. Person D said that before the Registrant was shown the photographs, the Registrant was asked if he had ever taken any photographs of his anatomy in either the control room of CT3 or Scanning room 2. Person D said the Registrant responded to indicate that, to the best of his knowledge, he had not taken any photos in these rooms. She said the Registrant was also asked the colour of the scrubs that he wore to work, and he confirmed that he was the only male in the team that wore burgundy scrubs.
44. Person D explained that the Registrant was then shown the two photographs and asked where these photographs had come from. Person D stated that the Registrant accepted that the photographs appeared to be him and did not deny that they were of him. Person D told the Panel that that the Registrant said that he did not recall who he had sent the pictures to and gave no reasoning for why this account differed to that of his previous interview where he had stated ‘I have never taken anything at work’.
45. Person D said that once the Registrant had been shown, and asked to comment on the photographs, the meeting was adjourned. During the adjournment, Person D said she discussed the appropriate steps to take with the disciplinary chair, who was of the opinion that the issue could be dealt with informally as evidence had been provided of the photographs taken, the Registrant had only sent the photographs to one or two individuals as part of a consensual relationship and had admitted that the photographs were of him. She explained this decision was later reviewed and changed.
46. Person D told the Panel that the Registrant had been sent a copy of the notes of the second meeting but that he had not signed them. She told the Panel that she thought the notes were accurate but again accepted they were not verbatim. She also confirmed that Person G was able to confirm that the photographs were taken in CT3 and scan room CT2 and that the Registrant was the only male who wore burgundy scrubs in the department at that time.
47. During cross examination Person D was asked why the decision to deal with the issue informally had been changed and indicated the matter had been reviewed by the HR team who had decided to overturn the decision at the meeting. During cross examination, when asked if she was concerned that the photographs had been sent anonymously, Person D stated that she would have expected the photographs to be sent anonymously. When further asked in cross examination about the layout of the CT unit and whether any areas might be ‘non-patient’, Person D stated she did not work there and could not be 100% certain on such matters.
48. In answers to questions in cross examination about the interviews, Person D accepted that during the interview on 23 June 2022 no note taker had been present and thought the HR manager had taken notes. When asked if she had thanked the Registrant for his honesty at the interview Person D stated she could not recall, but it was the kind of thing that might have been said.
Person G
49. Person G took the affirmation, confirmed the terms of his witness statement and adopted it as his evidence in chief.
50. Person G told the Panel he had worked for the Trust since 2012, and before this was employed by it between 2007 and 2011. He explained that he was currently employed as the CT Imaging Manager at the Hospital and had started working within this role on a secondment basis in October 2020 and started working substantively within the role in February 2021. Person G explained that this role involved general operations management of the CT service, service developments and improvements, procurement, policy writing, recruitment and managing sickness absence. He said he was also responsible for supporting and developing the staff within the CT department.
51. Person G explained that he was registered with the HCPC as a Diagnostic Radiographer.
52. Person G told the Panel that during January 2022, the CT team at the hospital was comprised of three Band 7 clinical lead radiographers, who worked beneath him, and a team of around 18 Band 6 senior radiographers. He said the team also encompassed Band 5 Radiographers who were trainees. Person G said that the Band 7 clinical lead radiographers would be involved in the general day-to-day operations and would have general line management responsibilities of the Band 6 staff members.
53. Person G explained to the Panel the nature of the CT Team and the working relationships of individuals within the team.
54. Person G explained that the Registrant had worked for the Trust at BVH as a CT Clinical Lead Radiographer and begun his employment with the Trust in December 2020 and his final date of work was Friday 2 September 2022. Person G stated that during this time the Registrant was absent for a long period of time due to the local level investigation.
55. Person G told the Panel that within his role as a CT Clinical Lead Radiographer, the Registrant was responsible for generally running and managing the team on a daily basis and ensuring that the service was running optimally. Person G explained that when the Registrant was not in charge of the team, he would work clinically within the team. He said the Registrant would partake in advanced practice and was qualified in CT Head Reporting, which he would do for one or two sessions a week. Person G said the Registrant was also involved in assisting with staff training and the development of policies and procedures for the department. Person G told the Panel that the Registrant worked on a shift rotation of, on average, two long days (8am - 8pm) and two 9am – 5pm shifts per week, with a day off during each 5-day period. He said the Registrant would also work on the weekends on a rotational basis and would occasionally work night shifts when required.
56. Person G said he first met the Registrant when he started working for the Trust, in December 2020. He said he thought that the Registrant was quite difficult to manage. Person G said he was excited to work with the Registrant initially as he was an experienced Radiographer with a comparable level of experience. He said he got on with the Registrant and worked well with him clinically.
57. Person G told the Panel that from a management point of view, as time went on, Mr Smethurst’s frustrations about the department came through and he was quite vocal about this. He believed that the department was not very progressive compared to the previous NHS Trust that he worked at, and there were many things that he wanted to change from a policy and procedure perspective to streamline workflow for the team. Person G said that although he appreciated some of the Registrant’s concerns, some of his ideas for streamlining practice would have resulted in cutting corners. Person G also told the Panel that the Registrant also voiced frustrations about the poor work ethic of some of the Consultant Radiologists and expressed concerns that there was a perceived blame culture within the department. Person G said that at times he sat down with the Registrant and spoke with him about the inappropriate way in which he approached these difficulties. He said he did not recall the Registrant being inappropriate in any other way until he received an anonymous complaint in January 2022.
58. Person G told the Panel that he received an anonymous email on Saturday 29 January 2022 when he was at home and not working. He said he was still unaware of the identity of the person who had sent the email. Person G said that he had forwarded the email to his divisional manager. Person G said that following further discussion with HR he had further email correspondence with the anonymous individual.
59. Person G said he became aware that an internal investigation had begun and explained that whilst this investigation was ongoing, he received a further complaint from a different email address which he again forwarded to his divisional manager.
60. Person G told the Panel that during his time working with the Registrant he had not witnessed any inappropriate behaviour of a sexual nature.
61. Person G explained to the Panel that he had been interviewed during the internal investigation by Person D. Person G said he identified the first photo as being taken in the scan room of CT2, because he was able to see the Siemens Definition Edge CT scanner in the background and the grey paint on the walls. He explained that CT2 is the only scan room in which there was grey paint. He told the Panel that he had identified the second photo as the control room of CT3 because he was able to recognise the control room layout and identified computer towers which are positioned at a 45-degree angle under the worktops in the corner of the control room.
62. Person G explained that CT2 was the second CT scanner and that the room contained a scanner and a table. He confirmed that it was a clinical area and that patients would have access to it. He further explained that the ‘control room’ for CT3 was where radiographers would sit when scanning so as not to be irradiated. He said the control room was classified as non-clinical and it was where staff worked. He also explained that there was a window in the control room through which the scanning area could be seen. Person G said that patients would not have access to the control room.
63. Person G also explained the locking system for the CT room and area. He explained that the doors to the CT scanner rooms had digital locks and required a pass to enter and the control room had ‘twist locks’. He explained that if scanning rooms were not being used the doors to the scanning rooms would be shut, but not necessarily locked.
64. He referred the Panel to the notes of his Internal Investigation interview and explained that when he stated in it that he thought that the photos were “probably him”, he was referring to the Registrant. He explained to the Panel that he thought that these photos were of Mr Smethurst as he could see that the individual in the photos was wearing burgundy scrubs, and the Registrant was the only male Radiographer within the team to wear burgundy scrubs. Person G said that the other two individuals in the team who wear burgundy scrubs are female and that the rest of the team wear red scrubs. Person G also explained that all of the CT rooms are digitally locked, and only the CT team have access to these rooms.
65. Person G told the Panel that the Registrant returned to work on 30 June 2022 and attended work for a few weeks on a phased return. At this stage, however, Mr Smethurst had already handed in his notice of resignation. Person G said that after Mr Smethurst’s return, he took annual leave on 14 July 2022. He said he was contacted by the Divisional Director of Operations, on the 14 July 2022, and informed that Mr Smethurst has been re-suspended due to errors in the investigating process. The matter was then passed on to the Chief Allied Health Professional for a final outcome.
66. During Cross Examination Person G told the Panel that between 8am and 8pm seven days a week there would be two radiographers working on each scanner and from 8pm to 8am there would be lone radiographers working alone. Person G explained that there was a ‘controlled area’ yellow radiation sign on the door of the CT scan room. He said there was also a warning light on the door which was illuminated yellow when the scanner was on but not irradiating and red when the scanner was irradiating. He agreed that if the Registrant was working night shift it was reasonable for him to expect not to be disturbed by an unannounced visitor as the area would ‘basically’ be locked down.
67. Person G confirmed that he had no knowledge of any similar incidents involving the Registrant. He commented that he had been aware of ‘gossip’ but can’t recall the nature of any such conversations.
68. Person G confirmed that the Registrant was an excellent very competent radiographer who was very forward thinking and pro staff development. He also said that as a deputy he didn’t understand procedure and that frustrated him. Person G said he was planning the Registrant’s development as his deputy. Person G also said he viewed the Registrant as honest and with integrity.
69. In reply to Panel questions Person G set out the team structure for the CT team. He told the Panel that he was a Band 8A and that his role was around 20 – 25% clinical the rest being managerial. He said the Band 7 ran the workload ‘behind the scenes’ – for example if there was a query from a Band 5 or 6, they would go to a Band 7. When asked if he specifically nominated a particular Band 7 to be his deputy when he was on holiday, he explained that he did not actively do this and the Band 7 who was in work on the day would be in charge.
70. In reply to further Panel questions, Person G further explained the geography of the unit. He said that the CT2 had double doors into the room from the corridor and a single door into the control room. He said the double door was secured from the inside and it was up to the individual to secure the door from the inside. He said the control room had a ‘twist’ lock and could be locked from the inside but not from the scanner room side. He further told the Panel that the control room itself had a door onto the corridor and had a digital lock that could be locked from the inside. In relation to CT3, Person G told the Panel that there were 2 doors into the control room one from the corridor and one from the scanning room. He said the door from the corridor was locked with a digital lock and the door to the scanning room had a twist lock that could be locked from the inside but also had a key on the scanning room side. He also explained that CT3 was in cardiac care separate from CT1 and CT2.
71. In reply to further Panel questions, Person G explained that the maximum staff on duty in CT2 at its busiest time was 6, and in CT3, 3. He said all the control rooms had windows and blinds that could be operated from the control room.
The Registrant
72. The Registrant took the affirmation.
73. He told the Panel that he apologised for what had occurred and deeply regretted his conduct and was remorseful. He said what had occurred had had a profound effect on his career. He assured the Panel that a similar incident would not happen again.
74. In relation to Particular 1 and 2, the Registrant set out the context surrounding these events. The Registrant said that he and the other individual had exchanged a number of photographs and videos.
75. The Registrant told the Panel that he had no recollection of taking the pictures but that they would have been taken when the room was locked and empty during the night shift.
76. The Registrant stressed that he was not seeking to reduce the severity of his actions.
77. In relation to Particulars 3 and 4, the Registrant told the Panel that during the first internal interview he had no recollection of sending any photograph to any colleague. He explained that the second interview was the first time that he had seen the photographs and that when he saw them, he had no recollection of taking them, but had admitted that they were of him.
78. The Registrant told the Panel that he had had a lot of time to reflect on what had occurred. He said his conduct was a temporary lack of judgement that had affected his career as a heath professional and the reputation of the profession.
79. The Registrant told the Panel he had no prior disciplinary or regulatory concerns prior to this. He also referred the Panel to the various character references provided on his behalf and that other than 2 they came from people he worked with. He said they demonstrated his commitment to upholding standards. He said he had allowed his personal relationship to affect his usual high standards which had dropped below an acceptable level. He said he had made a terrible mistake with potentially dangerous consequences.
80. The Registrant told the Panel that he had taken steps to review the HCPC standards, undertaken training and had been open and honest with his current employers.
81. The Registrant told the Panel that he could not recollect the photographs being taken but considered there had been no witnesses to it being taken. He explained that it was very easy to lock the CT area completely and that if this was done no one could walk in. The Registrant said that it was ‘highly likely’ that the photographs had been taken during night shift. He explained he reached this conclusion because during the day there would be people in the CT area and therefore, he concluded that it was taken during the night shift. He said no one could have been in the area during this time without his knowledge. In addition, he also said taking photographs at work was a one-off incident.
82. When asked about the colour of the scrubs that he wore at the relevant time, the Registrant explained when he started there had been no red scrubs available, so he had ordered burgundy scrubs and wore them for a few weeks. He then wore red scrubs during the day during the week unless they were not clean. He said the burgundy scrubs were a designated night shift pair.
83. The Registrant told the Panel that during the day CT1 and CT2 were staffed with 2 radiographers and two Health Care Assistants (HCA). He said that there would also be administrative staff and the area would be very busy during the day. He said at night it would just be him and he would lock the whole unit down. He said that CT 3 would be staffed by fewer people during the day. He explained that CT 3 also contained stock and it was not unusual to go there to stock up.
84. The Registrant said that the department was a very busy department and would have patients throughout the day, lessening towards the end of a shift. He said that during the night the only patients would be urgent or patients from A & E. The Registrant further explained that CT3 was mostly out patients. He said that it would have taken seconds to take the photographs and that he would certainly not have done it if staff were passing, and it would have been impossible to take the photographs during the day.
85. The Registrant assured the Panel there would be no repeat of his actions. He said he had always been proud to consider himself a good radiographer and had received good feedback. He told the Panel he was upset by what occurred and had let down his standards. The Registrant said he was passionate about patient care and supporting staff. He told the Panel that his conduct had undermined trust in radiographers, the hospital and the profession in general.
86. The Registrant said his conduct had been beyond stupid and he had no desire to do it again.
87. In cross-examination, the Registrant explained that he had been registered and qualified since 2020. He said he went to work in Blackpool in late 2020 and resigned from the Trust in May 2022. He said his last working week was September 2022. The Registrant confirmed that he was a Band 7 CT Clinical Lead Radiographer.
88. In relation to Particular 2 the Registrant accepted in cross-examination that the pictures were sexual, but that the intention of the photograph was clearly to be comical. When challenged that he couldn’t have unknowingly taken the photographs, he accepted this, but stated that it was definitely possible to have forgotten things. He also accepted that he had shown the photographs to Persons I and J who were colleagues in a WhatsApp group, and he may have sent the photographs to one colleague Person J. He also accepted that when he took part in the Trust investigatory interview on 20 May 2022, he had no idea that the Trust had any photographs.
89. In cross examination the Registrant again stated the taking of the photographs was an isolated lapse in judgement. He stated that any other photographs were taken outside work.
90. When asked in cross examination about the Trust investigatory interview on 23 June 2023, the Registrant stated that at the time he stated that ‘not to my knowledge’ he had taken photographs in CT3 or CT2 that he had not recollected taking the photographs. He accepted he must have knowingly taken them but asserted he had forgotten. When it was suggested that if it was an isolated incident, it would have stood out as unusual, the registrant agreed and explained this was why he was surprised that he had not recalled it. He said his only explanation was a lack of memory given it was most likely that the photographs had been taken up to a year before the interview. The Registrant said he had a bad memory generally. He explained that he did not recollect where and on what shift the pictures had been taken but was making assumptions that it was on night shift.
91. In cross examination, the Registrant also said it was likely that the photographs were taken, perhaps spring/summertime 2020.
92. During cross examination the Registrant accepted that CT2 and CT3 were in two different areas and that he thought it was possible that the photographs could have been taken on two separate occasions. He said it was about 5 mins walk from CT2 to CT3. When it was suggested that he denied taking the photographs to avoid admitting misconduct to the Trust, the Registrant again stated that he had no recollection of taking the photographs until shown them in the interview. He said that as soon as he was shown the photographs, he accepted they were of him. He said he accepted without question that it was inappropriate behaviour and denied he had been trying to cover up this inappropriate behaviour. When asked if a professional denying something in a formal interview that he knew about would be dishonest, the Registrant accepted this.
93. In response to Panel questions the Registrant explained that during the night shift in CT2 all the doors into the control room could be locked. He also confirmed that there were blinds on the outside of the CT control room windows, but these were generally only used for patient privacy. He also told the Panel that he was currently working as an agency radiographer for private companies. He said he had enjoyed his career in the NHS and was seeking to return to a job in the NHS.
94. In re-examination by Mr Higgs the Registrant explained that during a day shift there was a lunch break, but if on night shift there was no real break. He also explained that staff took their breaks in the control room.
Submissions for HCPC
95. Ms Sharpe submitted that the burden of proof was on the HCPC, and that the standard of proof was that of the balance of probabilities. She further submitted that at the stage of facts the Panel was only considering particulars 1 – 4. Ms Sharpe submitted that the Registrant had admitted particulars 1 and 2, but the Panel still had to consider whether the HCPC had discharged the burden of proof on each particular.
96. In relation to Particular 1, Ms Sharpe submitted that the Panel had the photographs before them and that on the face of it they were indecent and sexually explicit. She also submitted that the photographs showed the Registrant in uniform in a clinical area.
97. Ms Sharp submitted that Person G had identified the rooms where the photographs had been taken from what was in the background and that it was the Registrant in the photographs because of the scrubs he was wearing. She further submitted that it was safe for the Panel to find that the photographs had been taken by the Registrant on his mobile phone whilst on duty as he admitted this and agreed that his presence in a clinical area was only required if he was on duty. She submitted that on this basis the Panel should find Particular 1 proved.
98. In relation to Particular 2 Ms Sharpe noted that again this Particular was not disputed. She submitted that it was clear that the Registrant took the photographs for sexual gratification. She further submitted that whilst the Registrant had suggested the photographs might have been comical that they were overtly sexual and sexually motivated. She argued that there was no other realistic explanation and that the Panel should find particular 2 proved.
99. In relation to Particular 3, Ms Sharpe referred to the evidence of Person D and the documents exhibited by her. She submitted that Person D had told the Panel that the Registrant had specifically denied taking the photographs and that this was recorded in the notes of the Internal Investigation Meeting that took place on 23 June 2023. She referred the Panel to the entries in these notes where the Registrant was asked if he had ever taken photographs of your anatomy in either the control room of CT3 or Scanning room 2’ to which the Registrant replied, ‘not to my knowledge’. Ms Sharpe submitted this was a denial. Ms Sharpe submitted that the Registrant did not challenge what factually occurred and the real area of dispute was the question of dishonesty.
100. In relation to Particular 4 and dishonesty, Ms Sharpe referred the Panel to the case of Ivey v Gentings casinos (UK) Ltd [2017] UKSC 67. She submitted that the Panel had to adopt a two-stage process. It firstly had to reach a conclusion on the Registrants actual state of knowledge or belief, and having done so consider whether his conduct would be seen as dishonest by applying the objective standards of ordinary decent people.
101. Ms Sharpe submitted that if the Panel accepted the Registrant’s evidence that when asked the question on 23 June 2023, he, at that point, had no recollection of taking the photographs then his answer would not be dishonest. She submitted that the Registrant’s position that he had no such recollection was not capable of belief. She argued that it was extremely unlikely that when asked this specific question that the Registrant had no recollection. She submitted that the fact that the photographs had been taken in two different rooms made it extremely unlikely he did not recollect taking the photographs. Ms Sharpe submitted that it might be suggested that the Registrant had nothing to gain from denying he had taken the photographs, but this would only be true if the Trust had not had the photographs and it did have them. She submitted that the Registrant thought that the taking of the photographs could not be proved and denied doing so to avoid being implicated in inappropriate behaviour. She argued that the Registrant only admitted when he had to.
102. Ms Sharpe further submitted that this conduct would be seen as being dishonest by the objective standards of ordinary decent people.
103. Ms Sharpe referred to the testimonials provided by the Registrant and asked the Panel to consider if the authors were aware of the allegations and if they were signed and dated.
Submissions for the Registrant
104. Mr Higgs further submitted that the Registrant admitted that the taking of the photographs was sexually motivated.
105. In relation to Particulars 3 and 4, Mr Higgs submitted that the notes of the Internal Investigation were not complete and referred to his cross examination of Person D and her acceptance that there might be omissions. He submitted the notes were brief, non-verbatim, taken by an unidentified individual and not signed.
106. Mr Higgs submitted that the Registrant had no recollection of taking the photographs until he was shown them. He argued that in taking them at work the Registrant had allowed his private life to come into the workplace, but this did not make the event memorable.
107. Mr Higgs further submitted that the Registrant had told the Panel that the photographs had been taken during a quiet period at work and it would not have been possible to take them during the day as too many people would have been around. He submitted that there had been no witnesses to the photographs being taken.
108. Mr Higgs also submitted that it was not significant that the photographs had been taken in two different rooms and it did not follow that this would make them memorable.
109. Mr Higgs submitted that the Registrant’s explanation was reasonable and plausible. He argued that it followed the denial was a statement of truth and not a dishonest act designed to put off the investigation.
110. Mr Higgs submitted that the photographs were taken in an unwitnessed situation and that the area where they were taken could be secured. He argued there was no possible benefit to the Registrant to dishonestly deny he was aware he had taken the photographs. He submitted that the Registrant had admitted taking the photographs at the earliest opportunity when he first became aware that it had occurred.
Decision on Facts
111. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Suddock v NMC [2015] EWHC 3612 (Admin), Dutta v GMC [2020] EWHC 1974 (Admin), Khan v GMC [2021]EWHC 374 (Admin) and Byrne v GMC [2021] EWHC 2237 (Admin) in relation to its approach to the assessment of witness evidence and to the cases of Basson v GMC [2018] EWHC 505 (Admin) in relation to particular 2 and Ivey v Gentings casinos (UK) Ltd [2017] UKSC 67 in respect of dishonesty. He also referred the Panel to the HCPC Practice Note on Making decisions on a registrant’s state of mind. He referred to the Registrant’s good character.
112. The Panel considered each Particular of the allegation in turn. In reaching its decision the Panel considered how the relevant witness evidence fitted with the non-contentious or agreed facts, contemporaneous documents, the inherent probability or improbability of any account of events and any consistencies and inconsistencies. It also took into account the testimonials provided on behalf of the Registrant and his good character.
113. The Panel considered that Person G had given his evidence clearly and tried to assist the Panel. His oral evidence was consistent with his witness statement and relevant contemporaneous documents before the Panel.
114. The Panel considered that Person D had given her evidence clearly and tried to assist the Panel. Her oral evidence was consistent with her witness statement and relevant contemporaneous documents before the Panel.
115. The Panel considered that the Registrant had given his evidence clearly and that it was consistent with his written position.
‘1. On an unknown date, you took indecent and sexually explicit photographs of yourself on your mobile phone whilst in work, on duty, in uniform, in clinical areas of Blackpool Victoria Hospital.’
Found Proved.
116. In considering Particular 1 the Panel took into account the written witness statement and oral evidence of Person G and Person D, the Registrant’s written submissions and oral evidence and all relevant documentary evidence.
117. The Panel took into account that the Registrant in his written submission and oral evidence had admitted that he had taken the photographs on his mobile phone whilst on duty, in his unform and in a clinical area of the Hospital. The Registrant had also told the Panel that there was no reason for him to be in a clinical area unless he was on duty. The Panel also took into account that the Registrant admitted that the photographs were of himself and that they were indecent and sexually explicit. This evidence was consistent with the Registrant’s written submissions and there was nothing before the Panel to undermine this evidence. The Panel did not consider it was inherently implausible.
118. The Panel also took into account that Person G had identified that the photographs had been taken in control room of CT3 and scanning room CT2 of the Hospital. Person G also identified that the Registrant was the person in the photographs due to the registrant being the only person who wore burgundy scrubs. This evidence was consistent with Person G’s written submissions and there was nothing before the Panel to undermine this evidence. The Panel did not consider it was inherently implausible.
119. The Panel also viewed that photographs. The Panel concluded that the photographs were indecent and sexually explicit.
120. In all these circumstances, the Panel determined that, on the balance of probabilities, on an unknown date, the Registrant took indecent and explicit photographs of himself on a mobile phone, whilst in work, on duty, in uniform in clinical areas of Blackpool Hospital.
121. Particular 1 is therefore found proved.
2. Your conduct in relation to particular 1 was sexually motivated.
Found proved.
122. In considering Particular 2, the Panel took into account the written submissions and oral evidence of the Registrant, the photographs and all relevant documentation. It followed the approach for concluding if conduct was sexually motivated as set out in Basson v GMC [2018] EWHC 505 (Admin) and the HCPC Practice Note on Making decisions on a registrant’s state of mind.
123. It also took into account that the Registrant told it that the taking of the photographs was sexually motivated.
124. The Panel was aware that a person’s state of mind was a question of fact and applied the usual civil standard of proof. It also took into account that a person’s state of mind could only be proved by inference or deduction from the surrounding circumstances.
125. The Panel determined that the photographs were indecent and explicit. It further determined that there was no alternative explanation provided by the Registrant and that he had stated that the taking of the photographs was sexually motivated. The Panel did not consider that his comment that they were comical was an alternative explanation, but rather reference to a subsidiary aspect of taking the photographs.
126. In these circumstances the Panel determined, on the balance of probabilities, that the registrant’s conduct found proved in Particular 1 was in pursuit of sexual gratification and thus sexually motivated.
127. Particular 2 is therefore found proved.
3. On 23 June 2022, you denied during an interview as part of Blackpool Teaching Hospitals NHS Foundation Trust’s local investigation that you had taken explicit photographs of yourself in the workplace.
Found proved.
128. In considering Particular 3, the Panel took into account the written submissions and oral evidence of Person D, the written submission and oral evidence of the Registrant and notes of the Internal Investigation Meeting of 23 June 2022 and all other relevant documentation.
129. The Panel took into account that Person D had told it that during the interview on 23 June 2022, the Registrant when asked if he had ever taken photographs of his anatomy in either the control room of CT3 or scanning room of CT2, replied ‘Not to my knowledge.’ The Panel also took into account that this exchange was recorded in the notes of the Internal Investigation Meeting of 23 June 2022. The Panel took into account that these notes had been taken by an unknown individual and were unsigned and that Person D had accepted that there may have been omissions. However, the Panel also took into account that the Registrant did not seek to challenge this entry. The Panel also took into account that the Registrant did not dispute that he had said this and in evidence told the Panel that he had said ‘not to my knowledge’ but disputed that at this time he recalled taking the photographs.
130. Person D’s evidence was consistent with the Registrant’s written submissions and there was nothing before the Panel to undermine this evidence. The Panel did not consider it was inherently implausible. The Registrant’s evidence was also consistent with his written submissions and there was nothing before the Panel to undermine this evidence or suggest it was inherently implausible.
131. The Panel determined that the use of the words ‘not to my knowledge’ amounted to a denial of the question asked.
132. In all these circumstances, the Panel determined, on the balance of probabilities, that on 23 June 2022 the Registrant denied during an interview as part of Blackpool teaching Hospitals NHS Foundation Trust’s local investigation that he had taken explicit photographs of himself in the workplace.
133. Particular 3 is therefore found proved.
4. Your conduct in relation to particular 3 was dishonest, in that you knew that what you said in the interview (as set out in particular 3) was not true.
Found Proved.
134. In considering Particular 4 the Panel took into account the written submissions and oral evidence of the Registrant, and any other relevant witness evidence and all relevant documentary evidence. The Panel also took into account the testimonials provided on behalf of the Registrant and his good character.
135. The Panel adopted the test for dishonesty as set out in the case of Ivey and took into account the guidance in the HCPC Practice Note on Making decisions on a registrant’s state of mind.
136. The Panel was aware that a person’s state of mind was a question of fact and applied the usual civil standard of proof. It also took into account that a person’s state of mind could only be proved by inference or deduction from the surrounding circumstances.
137. The Panel also took into account the Registrant’s evidence that, in these circumstances, the taking of the photographs in the workplace was not something memorable and that he therefore had no recollection of taking them until shown them and his acceptance in cross examination that he must knowingly have taken the photographs but had forgotten and that he had a bad memory. The Panel further took into account the Registrant’s evidence that when he denied taking the photographs that his denial was truthful and there was no benefit to him to be dishonest.
138. The Panel also took into account Ms Sharpe’s submissions that, given that the photographs had been taken in two different locations the Registrant’s explanation was extremely unlikely.
139. The Panel took into account that the photographs had been taken when the Registrant was on duty and in clinical settings. The Panel had in mind the Registrant’s assertion that these photographs differed from any other photographs taken by the Registrant during his then relationship.
140. The Panel determined that the taking of the photographs in CT2 and CT3 was of itself unusual as the Registrant maintained that no other photographs had been taken by the Registrant at work and on duty.
141. The Panel also determined that at the time of denying taking the photographs, the Registrant was not aware that the Trust had copies of the photographs. The Panel considered that in these circumstances there was potential benefit to the Registrant in denying taking the photographs, as, if the Trust had not had copies of the photographs, potentially the concerns could not have been proved.
142. In these circumstances the Panel considered that the Registrant’s explanation was inherently implausible. The Panel noted that in cross examination he had accepted he knowingly took the photographs but must have forgotten about it. Given that the taking of such photographs at work was very unusual the Panel determined that this explanation was implausible. Taking into account all the relevant surrounding circumstances, the Panel determined, on the balance of probabilities that the Registrant knew when he denied taking the photographs that he had taken them at work. The Panel therefore determined that the Registrant knew what he said in the interview on 23 June 2022 as set out in Particular 3 was dishonest.
143. The Panel further determined that this conduct would be seen as dishonest by the objective standards of ordinary decent people.
144. Particular 4 is therefore found proved.
Decision on Grounds
145. Having found facts, the Panel went onto consider Particular 5 and Grounds.
5. The matters set out in particulars 1, 2, 3, and 4 above, constitute misconduct.
Submissions on misconduct
146. Ms Sharpe submitted the matter of grounds was a matter for the Panel’s professional judgement and that there was no burden or standard of proof. She referred the Panel to the case of Roylance v GMC [2001] 1 AC 311. Ms Sharpe noted that the Registrant had accepted particulars 1 and 2.
147. Ms Sharpe submitted that the Registrant’s actions found proved in Particulars 1 and 2 breached Standards 9.1 and 9.6 of the HCPC Standards of Conduct, Performance and Ethics and Standards 2.2 and 3.1 of the Standards of proficiency for Radiographers 2013.
148. Ms Sharpe submitted that the facts found proved were serious and that the Panel should consider not only whether actual harm occurred, but also whether there was a risk of harm. Ms Sharpe further submitted that the Registrant’s acts and omissions fell significantly below what was proper in the circumstances. She argued that the Registrant had been on duty, in uniform and in a clinical area whilst expected to carry out his professional role. Ms Sharpe submitted that the taking of the pictures was neither proper nor appropriate and that the facts found proved were that this occurred on two different occasions and therefore was not an isolated incident. She further argued that the Registrant’s lack of memory of taking the pictures meant there was no definitive evidence that the doors to the areas were locked, blinds down or occurred during the night shift. She argued that even if it occurred on night shift this did not mean it did not amount to professional misconduct.
149. Ms Sharpe also submitted that the Registrant had denied dishonesty which the Panel had found proved. She argued that dishonesty was inherently serious and amounted to misconduct albeit that it was accepted once the pictures were shown to him, he had not continued to deny he had taken them, or they were of him. Ms Sharpe also accepted that the Registrant was entitled to deny the allegation. She also noted that the Registrant had not altered records.
150. Ms Sharpe further submitted that denying that he had taken any photos was an act of omission that was particularly serious when the duty of candour required to be followed by the Registrant was applied. She referred to the period of the dishonesty as existing until the pictures were produced and it was therefore a short period of time.
151. In conclusion, Ms Sharpe submitted that the Registrants actions fell far below the standards to be expected and were sufficiently serious to amount to misconduct.
152. Mr Higgs submitted that the Registrant had admitted that he had taken the pictures in private, that there had been no witnesses and that his actions were not likely to have been witnessed by service users. He argued that it may have been inappropriate and unprofessional and accepted that it could be seen as misconduct.
153. Mr Higgs further submitted that the taking of the pictures had to be seen in the context of the Registrant’s then relationship and that the taking of such pictures had been unremarkable in that relationship. He stressed that the taking of the pictures had been consensual and not illegal. He argued that the Registrant’s actions did not involve any person or service users or the public.
154. Mr Higgs submitted that the Registrant understood the Panel’s decision but stood by his explanation that he had no recollection of taking the pictures until shown them. He submitted that the Registrant’s denial had been brief, and he accepted the existence of the pictures once he had been shown them. He submitted that the Registrant had corrected his position as soon as he had the opportunity to do so.
155. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Roylance and Calheam v GMC [2007] EWHC 2606.
156. In considering grounds the Panel took into account the submissions of Ms Sharpe and Mr Higgs, all relevant evidence and its prior decision.
157. The Panel was aware that in respect of misconduct there was no standard or burden of proof, and it was a matter for the Panel’s own professional judgement. It bore in mind that breaches of Standards did not automatically result in a finding of misconduct.
158. The Panel determined that the Registrant’s actions found proved in Particulars 1 and 2 were serious. The Panel further determined that in taking indecent and sexually explicit photographs of himself whilst on duty, in uniform and in two different clinical areas of the hospital for his sexual motivation the Registrant had acted in an inappropriate and unprofessional manner. The Panel considered that there was no evidence before it to show that the doors of the clinical areas were locked at the relevant time or that individuals could not have entered these areas or there were closed blinds in the room in which the Registrant was taking the photographs. The Panel further considered that the Registrant’s actions could have caused emotional harm and upset to any colleagues or service users who had entered these areas or become aware of his actions.
159. The Panel further determined that the Registrant’s dishonest denial during the interview on 23 June 2022 when he knew this to be untrue was serious. The Panel considered that the Registrant had, at the time of his denial, been unaware that the Trust had copies of the photographs and by his denial sought to avoid the allegations being found proved with consequent benefit to himself. The Panel determined that the Registrant’s dishonest conduct was inappropriate and unprofessional.
160. The Panel determined that the following HCPC Standards of Conduct, Performance and Ethics were breached:
Standard 9.1: You must make sure your conduct justifies the public’s trust and confidence in you and your profession.
Standard 9.6: You must co-operate with any investigation into your conduct or competence, the conduct or competence of others, or the care, treatment or other services provided to service users.
The Panel further determined that the following Standard of the Standards of proficiency for Radiographers 2013 was also breached:
Standard 2.1: Understand the need to act in the best interests of service users at all times.
161. The Panel determined that both individually and cumulatively, the Registrant’s acts and omissions found proved in Particulars 1, 2, 3 and 4 fell seriously below the standards to be expected of a registered Radiographer, would be viewed as deplorable by fellow registered Radiographers and amounted to misconduct.
Decision on Impairment
162. Having found the statutory ground of misconduct made out the Panel moved onto consider the question of the Registrant’s current impairment.
163. Ms Sharpe referred the Panel to the HCPTS Practice Note on Fitness to Practise Impairment (the Practice Note) and submitted that whether the Registrant’s fitness to practise was currently impaired was a matter for the Panel’s professional judgement. She submitted that fitness to practise meant that a Registrant had the skill, knowledge, character and health to practise safely and effectively.
164. In relation to the personal component, Ms Sharpe referred the Panel to the case of Cohen v GMC [2008] EWHC 581 (Admin). She submitted that not every finding of misconduct would necessarily give rise to a finding of current impairment.
165. Ms Sharpe submitted that the Panel might take the view that whilst the Registrant’s misconduct was remediable it was difficult to remediate. She referred the Panel to the Registrant’s written self-reflection and his training records. Ms Sharpe submitted that the Panel should consider whether the Registrant had demonstrated insight and taken appropriate steps to remediate his misconduct. Ms Sharpe submitted that the Panel should consider when the Registrant made his reflection, whether it was genuinely held or had been directed by others.
166. Ms Sharpe argued that there was limited evidence that the Registrant knew what led to him acting as he did, had fully accepted the nature of his misconduct and how he would change his behaviour in the future. She submitted that to simply assert that he had acted wrongly was insufficient. Ms Sharpe submitted that the Registrant had provided little explanation for his actions other than referring to his then relationship and there was little evidence of what steps he had taken to avoid acting dishonestly in the future. She further argued that, given the Registrant denied acting dishonestly, there was no evidence of insight or remediation in respect of his dishonest conduct other than he had undertaken a ‘probity’ course.
167. Ms Sharpe referred the Panel to the case of Sawati v GMC [2022] EWHC 283 and submitted that the Panel should carefully apply the principles set out in it in respect of the Registrant’s rejected defence to dishonesty. She submitted that the Panel should consider whether the Registrant had acted dishonestly to avoid the consequences of his actions in taking the photographs. Ms Sharpe also submitted that the Registrant had not demonstrated insight and reflection on his duty of candour during his involvement in the investigation into the photographs. He had shown lack of transparency and limited insight into the effect of his misconduct on the public’s confidence in the profession. She argued that the Registrant had sought to minimise what he had done.
168. Ms Sharpe referred the Panel to the cases of GMC v Meadow [2006] EWCA Civ 1319 and CHRE v NMC &Grant [2011] EWHC 927 and the test contained therein formulated by Dame Janet Smith in the Fifth Shipman Report. In relation to the testimonials provided on behalf of the Registrant, Ms Sharpe submitted that they were not from colleagues who the Registrant worked with at the time of his misconduct, nor did they show the authors were aware of the allegation.
169. In relation to the public component, Ms Sharpe again referred the Panel to the case of Grant. She submitted that public confidence in the profession and the HCPC as a regulator would be undermined if a finding of impairment were not made given the nature and seriousness of the allegation.
170. In respect of current impairment, Mr Higgs submitted that the Registrant had learned ‘a powerful lesson’, reinforced by the loss of his job, embarrassment over his conduct and a loss of reputation. He said the Registrant apologised to his former employers, colleagues and the HCPC as his regulator.
171. Mr Higgs argued that there was no evidence that the Registrant’s conduct gave rise to a risk to the public or his colleagues. He submitted that the clinical areas where the photographs had been taken were very busy during the day and secured at night stopping individuals accessing them. Mr Higgs submitted that as there had been no witnesses to the Registrant taking the photographs, they must have been taken on a night shift. Mr Higgs further submitted that the nature of the images taken were not unlawful and similar images could be seen on the internet or television. He said there was no evidence of any other risk to service users, colleagues or the public. Mr Higgs submitted that the Registrant accepted that he had allowed his personal life to interfere with his professional life and that it would never happen again.
172. In relation to the wider public interest, Mr Higgs argued that there would be mixed views amongst ordinary decent people about the Registrant taking the photographs. He suggested some might be disgusted whilst others would view it as normal behaviour between consenting adults. Mr Higgs argued that the ‘midpoint’ would be that the Registrant taking the photographs was a private matter between consenting adults. Mr Higgs submitted that the Registrant had demonstrated remorse and insight and would never act in a similar way again.
173. Mr Higgs further submitted that the Registrant’s clinical practice had never been called into question. He further submitted that whilst the Registrant’s fitness to practise might have been impaired at the time he took the photographs, it was no longer impaired. He concluded by submitting that there was no need for a finding of current impairment, and it would be punitive to make such a finding.
174. The Panel accepted the advice of the Legal Assessor. He referred it to the cases of Grant, Cohen and Sawati and the HCPTS Practice Note of Fitness to Practise Impairment.
175. In reaching its decision on current impairment, the Panel took into account the submissions of Ms Sharpe and Mr Higgs. The Panel also took into account all relevant evidence before it including the various testimonials provided on behalf of the Registrant. The Panel also took into account its decision on facts and grounds. The Panel also took into account the HCPTS practice Note on Fitness to Practice Impairment and the case of Sawati v GMC [2022] EWHC 283.
176. The Panel was aware that the question of current impairment was a matter for it exercising its own professional judgement and that it was considering the Registrant’s current fitness to practise.
177. The Panel took into account the Practice Note which states:
‘The HCPC’s overarching objective is protection of the public and the purpose of fitness to practise proceedings is not to punish registrants for their past acts and omissions, but to protect the public from those who are not fit to practise. It does this by:
• protecting, promoting and maintaining the health, safety and well-being of the public
• promoting and maintaining public confidence in the professions it regulates
• promoting and maintaining proper professional standards and conduct for members of those professions.
Fitness to practise is not defined in the Health Professions Order 2001, but it is generally accepted to mean that a registrant has the skills, knowledge, character and health to practise safely and effectively.
Impaired fitness to practise means more than a suggestion that a registrant has done something wrong. It means a concern about their conduct, competence, health or character which is serious enough to suggest that the registrant is unfit to practise without restriction, or at all’.
178. The Panel first considered the Registrant’s ‘rejected defence’. It took into account the case of Sawati and that following guidance in the HCPTS Practice Note on Fitness to Practice Impairment (the Practice Note) that states:
‘When considering whether a registrant’s fitness to practise is impaired and, if it is, what sanction should be imposed, a panel will need to consider what impact, if any, a registrant’s denial of the alleged facts has on their assessment of impairment and sanction. Each case must be considered on its own facts and panels should take account of the following principles and approach as set out in Sawati v General Medical Council [2022] EWHC 283.
1) Registrants are entitled to a fair hearing, and this includes defending themselves against allegations which they deny. As the court said in Sawati, registrants should be given a ‘fair chance before a Tribunal to resist allegations, particularly of dishonesty, without finding that the resistance itself unfairly counting against them if they are unsuccessful’.
2) Panels should consider the nature of the primary allegation against the registrants .A rejected defence of honesty may be more relevant to take into account where dishonesty (e.g. deceit, fraud, forgery etc) is the primary allegation than in case where dishonesty is alleged, as a secondary allegation, to aggravate alleged facts which are not inherently dishonest.
3) Panels should consider what it is that the registrant is actually denying. There is a difference between denying the primary facts (i.e. what the registrant is alleged to have done or not done) and denying a secondary fact of dishonesty based on an assessment of those primary facts. Such an assessment requires an evaluation of what a registrant knew or thought at the time. As the court said: ‘resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective’. However, panels should note that if a registrant denies a secondary allegation of dishonesty at the unreasonable end of the spectrum this may also be relevant to sanction.
4) Panels should ask themselves what other evidence of a lack of insight there is, other than the denial or defence which has been rejected. The court noted that ‘a rejected defence which on a fair analysis adds to an evidenced history of faulty understanding is more likely to be relevant fairly to sanction than one said to constitute such faulty understanding in and of itself’.
5) Panel should consider the nature and quality of the rejected defence. It is not appropriate to conclude that a registrant has not told the truth to the panel simply because a panel has rejected the defence. As the court said: ‘it is going to require some thought to be given to the nature of the rejected defence. Was it a blatant and manufactured lie, a genuine act of dishonesty, deceit or misconduct in its own right? Did it wrongly implicate and blame others, or brand witnesses giving a different account as deluded or liars? Or was it just a failed attempt to tell the story in a better light that eventually proved warranted?’.
6) The court said: ‘These are evaluative matters. Tribunals need to make up their own minds about them, and their relevance and weight, on the facts they have found. But they do need to direct their minds to the tension of principles which is engaged, and check they are being fair to both the (registrant) and the public. They need to think about what they are doing before they use a (registrant’s) defence against them, to bring the analysis back down to its simplest essence’.
Panels should follow this approach at both the impairment stage when they are considering the issue of insight and risk of repetition and at the sanction stage when deciding which sanction, if any, should be imposed. Panels are reminded of the importance of considering the Sanctions Policy in all cases and that caution should be exercised before concluding that a registrant’s denial of an allegation, in circumstances where that denial has been rejected by the panel, is of itself an aggravating factor. Panels take account of the principles and approach set out above. Particular care should be taken in cases of dishonesty where a panel has rejected the registrant’s defence. Although this may be regarded as an aggravating feature, panels must approach their consideration as outlined above and make clear in their reasons that they have done so.’
179. The Panel followed the above approach in relation to the Registrant’s rejected defence to Particulars 3 and 4 of the Allegation. In considering the Registrant’s rejected defence the Panel always bore in mind that the Registrant should be given a fair chance to resist allegations, particularly of dishonesty, without finding the resistance itself unfairly counting against them if they are unsuccessful.
180. The Panel first considered the nature of the primary allegation against the Registrant which he denied. The Panel noted that dishonesty was not specifically narrated until Particular 4. However, the Panel also took into account that when Particulars 3 and 4 were read in conjunction the factual matrix alleged was that during the interview on 23 June 2022 the Registrant had denied taking explicit photographs when he knew this was not true. The Panel noted that the Practice Note refers to particulars such as those involving ‘deceit, fraud, forgery etc’ as being primary allegations where dishonesty is the primary allegation. The Panel had found in fact that ‘at the time of denying taking the photographs, the Registrant was not aware that the Trust had copies of the photographs. The Panel considered that in these circumstances there was potential benefit to the Registrant in denying taking the photographs, as, if the Trust had not had copies of the photographs, potentially the concerns could not have been proved.’ and ‘the Registrant knew when he denied taking the photographs that he had taken them at work.’ The Panel determined that the Registrant’s denial of taking photographs when he knew this was not true was in the same group as deceit. The Panel therefore further determined that dishonesty was the primary allegation.
181. The Panel then went onto consider what the registrant was actually denying. The Panel again took into account the Practice Note that states ‘There is a difference between denying the primary facts (i.e. what the registrant is alleged to have done or not done) and denying a secondary fact of dishonesty based on an assessment of those primary facts. Such an assessment requires an evaluation of what a registrant knew or thought at the time. As the court said: ‘resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective’. For the reasons set out above the Panel determined that the Registrant was not denying a secondary fact of dishonesty based on his assessment of primary facts, but clearly and specifically denying the primary factual matrix of his dishonest conduct.
182. The Panel then went onto to consider what other evidence of lack of insight existed other than the Registrant’s rejected defence. The Panel took into account the Registrant’s written self-reflection and his oral evidence before it. The Panel took into account that the Registrant maintained his position that he had no recollection of taking the photographs until they were shown to him during the interview on 23 June 2022. For the reasons set out above, the Panel has found the Registrant’s evidence on this matter to be inherently implausible. The Panel also noted that the Registrant in his written reflection had referred to ‘a temporary lack of judgement… a very silly mistake…and … allowing his impulses to go temporarily unchecked’, but nowhere had he made any reference to or discussed the issue of dishonesty, even in generality. The Registrant also did not address this matter in his oral evidence. In these circumstances, the Panel determined that the Registrant had failed to demonstrate appropriate insight into dishonest conduct, either in respect of his own conduct or in the generality.
183. The Panel also considered the nature and quality of the rejected defence. As set out above, the Panel has determined that the Registrant’s explanation that he had no recollection of taking the photographs until they were shown to him was inherently implausible. The Panel determined that the registrant’s defence to Particulars 3 and 4 was ‘a blatant and manufactured lie’ and not ‘just a failed attempt to tell the story in a better light than eventually proved warranted’
184. Having considered these matters, the Panel went on to consider the personal and public component of the Registrant’s current fitness to practise.
185. The Panel first considered the matter of the personal component. The Panel considered the Registrant’s taking of the photographs was a pre-meditated deliberate act for his own sexual motivation. The Panel has determined that this occurred on two occasions on two different locations and had the potential to cause emotional harm to colleagues and service users. The Registrant’s conduct only came to light when concerns were raised anonymously, and copies of the photographs sent to the Trust. The Panel further determined that the Registrant’s misconduct in taking the photographs was compounded by his deliberate dishonesty in denying that he had taken them. The Panel has determined that he denied taking the photographs for his own benefit, as he was unaware that the Trust had copies of the photographs and by his denial sought to have the concerns found not proved.
186. The Panel considered that the misconduct in taking the explicit photographs for sexual motivation was serious, had the potential to cause emotional harm to colleagues and service users, but was remediable. However, the Panel considered that the Registrant had failed to address why he deliberately chose to take such photographs whilst on duty, in uniform and in clinical areas on two occasions. The Panel determined that the Registrant sought to minimise his action and had not demonstrated insight into the potential harm to colleagues and service users that could result from such conduct. The Panel further determined that the Registrant had failed to demonstrate full insight into the nature and extent of his conduct found proved in Particulars 1 and 2 or the consequences of his conduct on service users, colleagues and public confidence in the profession and the HCPC as a regulator. In these circumstances, the Panel also determined that the Registrant had demonstrated minimal insight into the core elements of the misconduct found proved in Particulars 1 and 2, had not remediated this misconduct and there remained a likelihood of similar misconduct in the future.
187. The Panel further determined that the Registrant’s dishonest conduct as found proved in particulars 3 and 4 was pre-meditated, that he had sought to deny the primary allegation and that his position before the Panel in respect of Particulars 3 and 4 was a blatant and manufactured lie. The Panel considered that the Registrant’s dishonest conduct was serious, albeit not at the most serious end of the scale of dishonesty. As such the Panel determined that the Registrant’s dishonest conduct was remediable, albeit with some difficulty.
188. The Panel therefore went onto consider whether the Registrant had taken remediable action in relation to his dishonest conduct. For the reasons set out above in paragraphs 184 -187, the Panel concluded that the Registrant had failed to demonstrate any significant insight into the nature and extent of his dishonest conduct or the consequences of his dishonest conduct on colleagues and public confidence in the profession and the HCPC as a regulator. In these circumstances, the Panel determined that the Registrant had not remediated his dishonest conduct and there remained a likelihood of similar dishonest conduct being repeated in the future.
189. The Panel therefore determined that the Registrant was currently impaired in relation to the personal component.
190. The Panel went onto consider the public component of the Registrant’s fitness to practise including the wider public interest. For the reasons fully set out above, the Panel has determined that the Registrant’s conduct found proved was serious. The Panel determined that given the nature of the Registrants misconduct involving taking explicit photographs whilst on duty, in uniform in a clinical area for sexual motivation and his subsequent dishonesty that public confidence in the profession and the HCPC as a regulator would be undermined if there was no finding of impairment. The Panel therefore determined that the Registrant was currently impaired in relation to the public component.
191. The Panel therefore determined that the Registrant’s current fitness to practise was impaired both in respect of the personal and public components.
Decision on Sanction
Submissions on Sanction
192. Ms Bass advised the Panel that the HCPC did not seek any specific sanction. She referred the Panel to the HCPC Sanctions Policy (Sanctions Policy) and submitted that the Panel had to consider aggravating and mitigating factors and that any sanction must be appropriate and proportionate. She submitted that any sanction must not be intended to be punitive, although it might be punitive in effect.
193. Ms Bass submitted that the primary function of any sanction was to protect the public. She further submitted that this included considering risks the Registrant might pose to those who use or need their services; the deterrent effect on other Registrants and public confidence in the profession and the regulatory process.
194. Ms Bass submitted that the Panel should consider aggravating and mitigating factors. She submitted that the following might be considered aggravating factors:
• The Registrant had repeated the taking of the photographs on two occasions and in two locations.
• The Registrant’s dishonesty had been pre-meditated.
• The Registrant had shown limited insight and a lack of remorse.
195. Ms Bass submitted that the following might be considered mitigating factors:
• The Registrant had demonstrated limited insight and remorse.
196. Ms Bass also submitted that the Panel should consider the sanctions available to it starting with the least severe and act proportionately.
197. Ms Bass referred the Panel to the section in the Sanctions Policy relating to Sexual Misconduct and submitted that the Panel should ‘tread carefully’ when considering this section as the examples contained in it did not reflect the nature of the sexual motivation found proved.
198. Ms Bass also referred the Panel to the section of the Sanctions Policy relating to dishonesty and to the case of Sawati and the Panel’s findings in relation to this case in its decision on impairment.
199. Ms Bass referred to the various sanctions available to the Panel and submitted that taking no action or imposing a caution order would not be consistent with the Sanctions Policy. She referred the Panel to paragraph 108 of the Sanctions policy in relation to Conditions of Practice and paragraph 130 as to when a Striking Off Order might be appropriate.
200. Mr Higgs referred to his prior submissions and to the Sanctions Policy. He submitted that a Panel had to provide clear reasons for its decision why to impose a particular sanction and must act proportionately.
201. Mr Higgs submitted that the Panel should consider taking no further action or making a Caution Order. He submitted anything above a Caution Order would be disproportionate.
202. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the Sanctions Policy and to the case of Sawati.
203. In reaching its decision on current impairment, the Panel took into account the submissions of Ms Bass and Mr Higgs. The Panel also took into account all relevant evidence before it including the various testimonials provided on behalf of the Registrant. The Panel also took into account its decision on facts, grounds and misconduct. The Panel also took into account the HCPC Sanctions Policy.
204. The Panel was aware that the question of sanction was a matter of exercising its own professional judgement. The Panel considered the sanctions in ascending order of severity. It was aware that the purpose of a sanction is not to be punitive, but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession together with maintaining public confidence in the profession and the HCPC as its regulator.
205. The Panel first identified what it considered to be the principal aggravating and mitigating factors.
Aggravating Factors
• The Registrant took the explicit pictures on two occasions in two locations at work and his actions were pre-meditated.
• The Panel has found the Registrant’s rejected defence to Particulars 3 and 4 to be a blatant and manufactured lie.
• The Registrant has not demonstrated insight into his dishonest conduct and the effect of this conduct on service users, colleagues, his employers and public confidence in the profession and the HCPC as a regulator.
• The Registrant has failed to apologise for the potential consequences of his actions on service users.
Mitigating Factors
• The Registrant has demonstrated limited insight into his conduct in particulars one and two and the effect of this conduct on colleagues, his employers and public confidence in the profession and the HCPC as a regulator.
• The Registrant has failed to demonstrate insight into his conduct in particulars one and two and the effect of this conduct on service users.
• The Registrant has provided a limited apology to colleagues in respect of Particulars 1 and 2.
206. The Panel took into account its finding at the stage of impairment. In particular its findings at paragraphs 190 to 192 above. The Panel also took into account the sections of the Sanctions Policy relating to sexual motivation and dishonesty.
207. In respect of the guidance in the Sanctions Policy on Sexual Misconduct the Panel noted Ms Bass’ submission to ‘tread carefully’. The Panel noted that the nature of the sexual motivation for taking the photographs was not reflected in the guidance in the Sanctions policy or the examples in it. Further, the Panel took into account that whilst the taking of the photographs was sexually motivated it was a consensual act. The Panel considered that the regulatory concern arising from the taking of the photographs was that context in which it was done – in uniform, on duty and in clinical areas – rather than that the sexual motivation for taking the photographs.
208. The Panel also took into account paragraphs 56 - 58 of the Sanctions Guidance relating to dishonesty and its conclusions on the Registrant’s dishonest conduct in paragraphs 191 and 192 of its decision on Impairment. It noted that at paragraph 58 of the Sanctions Guidance it states:
58. Given the seriousness of dishonesty, cases are likely to result in more serious sanctions. However, panels should bear in mind that there are different forms, and different degrees, of dishonesty, that need to be considered in an appropriately nuanced way. Factors that panels should take into account in this regard include:
• whether the relevant behaviour took the form of a single act, or occurred on multiple occasions;
• the duration of any dishonesty;
• whether the registrant took a passive or active role in it;
• any early admission of dishonesty on the registrant’s behalf; and
• any other relevant mitigating factors.
For the reasons set out in paragraphs 191 and 193, the Panel has determined that the Registrant’s dishonest conduct was serious, but not at the most serious end of the scale of dishonesty. However, the Panel also took into account its determination in relation to its rejection of the Registrant’s defence to Particulars 3 and 4 and that it had considered his explanation that he did not recall taking the photographs to be inherently implausible. The Panel also took into account its conclusions that, at this time, the Registrant has not demonstrated insight into his dishonest conduct in and the effect of this conduct on service users, colleagues, his employers and public confidence in the profession and the HCPC as a regulator or shown remorse for his dishonest conduct.
209. The Panel took into account the positive testimonials provided on behalf of the Registrant and the evidence before it of his good clinical practice. It also took into account that there were no regulatory concerns regarding his clinical practice.
210. The Panel considered the sanctions available, beginning with the least restrictive.
211. The Panel did not consider the options of taking no further action or mediation to be appropriate or proportionate in the circumstances of this case and concluded that they would not adequately protect the public. The Panel had determined that the Registrant’s conduct in taking explicit photographs for sexual motivation whilst in uniform, on duty and in clinical areas on two occasions was serious. Further, the Panel has found that the Registrant acted dishonestly, rejected his defence to his dishonest conduct and found that he failed to demonstrate insight into his dishonest conduct with a consequent risk of repetition. Neither taking no further action or mediation would not address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.
212. The Panel went on to consider a Caution Order. For the reasons set out above the Panel determined that a Caution Order would not address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.
213. The Panel next considered the imposition of a Conditions of Practice Order. It took into account paragraph 106 of the Sanctions Guidance which states:
106. A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met; and
• the registrant does not pose a risk of harm by being in restricted practice.
The Panel considered that the allegation did not give rise to any regulatory concerns in relation to the Registrant’s clinical practice. The Panel has further determined that the Registrant has failed to demonstrate insight into his dishonest conduct. The Panel was of the view that it was not possible to formulate workable or practicable conditions which would address any of the Registrant’s misconduct or that the Registrant would comply with any conditions. Further, the Panel considered that the Registrant’s misconduct was too serious for a Conditions of Practice Order and that it would not address the regulatory concerns identified, reflect the seriousness of the case or address the issues of public protection and public interest.
214. The Panel next considered a Suspension Order. The Panel considered the terms of paragraph 121 of the Sanctions Policy that states:
121. A suspension order is likely to be appropriate where there are serious concerns
which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• 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.
215. The Panel had decided that the concerns represent a serious breach of the Standards of Conduct, Performance and Ethics. The Panel has found that the Registrant has shown limited insight into the regulatory concerns arising from the sexually motivated taking of explicit pictures at work. The Panel considered that there is evidence to suggest that the Registrant is likely to be able to resolve or remedy these failings. The Panel considered that, at this time the Registrant had failed to demonstrate insight into his dishonest conduct and the regulatory concerns arising from it. However, the Panel also considered that there remained the possibility of the Registrant reflecting on the Panel’s decision and developing such insight. The Panel considered that if the Registrant developed such insight, then he would be likely to be able to resolve or remedy these failings. The Panel has also concluded that the Registrant’s dishonest conduct is not at the most serious end of the scale of dishonest conduct.
216. In all these circumstances, the Panel concluded that a Suspension Order would address the regulatory concerns identified, reflect the seriousness of the case and address the issues of public protection and public interest.
217. The Panel went on to consider a Striking Off Order. It noted the terms of paragraph 131 of the Sanctions Policy which states:
131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.
218. For the reasons set out above, the Panel has concluded that a lessor sanction than Striking Off would be sufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. The Panel therefore determined that to impose a Striking Off order would be disproportionate.
219. The Panel determined that a Suspension Order for a period of 9 months would be appropriate and proportionate period to protect the public, public confidence in the profession, and public confidence in the regulatory process. The Panel further considered that a period of 9 months would be sufficient to allow the Registrant to reflect upon this decision.
220. The Panel took into account the effect that a Suspension Order for a period of 9 months might have on the Registrant but determined that this was outweighed by the need to protect the public and ensure public confidence in the profession and the HCPC as a regulator.
221. The Panel was aware that such a Suspension Order will require to be reviewed prior to its expiry. It considered that any Review panel would benefit from:
• A critical reflection from the Registrant in relation to the allegation found proved, his misconduct and the regulatory concerns arising from it.
Order
Order: The Registrar is directed to suspend the name of William Smethurst for a period of 9 months from the date this Order comes into effect.
Notes
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Interim Order
Application for Interim Order following Sanction
Submissions
222. Ms Bass made an application under Article 31 of the Health Professions Order 2001 (the Order) for the Panel to impose an Interim Suspension Order for a period of 18 months to cover the 28-day period during which the Registrant could appeal the Panel’s decision or the conclusion of any such appeal.
223. Ms Bass referred the Panel to paragraphs 133 – 135 of the Sanctions Policy and submitted that given the decision of the Panel to impose a 9-month Suspension Order, to do anything other than impose such an Interim Suspension Order would be inconsistent with the Panel’s prior decisions.
224. Mr Higgs opposed the application. He also referred the Panel to paragraphs 133 – 135 of the Sanctions Policy. Mr Higgs submitted that the Panel’s power to impose an Interim Order after sanction had been imposed was discretionary.
225. Mr Higgs further submitted that the Registrant was no more of a risk to the public “than he had been yesterday or in 2022”. He submitted that the taking of the photographs had been consensual and that no service users or colleague had been harmed by the Registrant’s actions.
226. Mr Higgs submitted that an Interim Suspension Order would damage the Registrant’s career and result in appointments for Service Users being cancelled. He submitted that the Panel should not exercise its discretion to grant the application.
227. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the Sanctions Policy and to the HCPTS guidance on Interim Orders as it related to Interim Orders imposed at a final hearing after sanction had been imposed.
Decision
228. In reaching its decision on the application, the Panel took into account the submissions of Ms Bass and Mr Higgs and all relevant evidence before it. It also took into account its previous decisions on facts, impairment, and sanction, and the Sanctions Policy and the HCPTS Practice Note on Interim Orders. The Panel was aware that its power to impose an Interim Order after sanction is discretionary and that it should not automatically grant such an application.
229. For the reasons set out in full above, the Panel has determined that the Registrant is currently impaired on both personal and public grounds. Again, for the reasons set out above, the Panel had determined that because of the serious nature of the regulatory concerns identified and its findings at impairment, the appropriate and proportionate sanction is a Suspension Order for a period of 9 months. The Panel determined that given its prior decisions, it would be irrational and inconsistent with these decisions to conclude that an Interim Suspension Order was not necessary for the protection of the public and otherwise in the public interest until the end of the appeal period or the conclusion of any appeal. The Panel further determined that, given the time any appeal might take to be determined, it was appropriate and proportionate to impose such an Interim Order for a period of 18 month.
230. The Panel therefore granted Ms Bass’ application.
231. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Mr William Smethurst
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 28/03/2025 | Conduct and Competence Committee | Review Hearing | Suspended |
| 21/06/2024 | Conduct and Competence Committee | Final Hearing | Suspended |
| 07/05/2024 | Conduct and Competence Committee | Final Hearing | Adjourned |