Scott Gray

Preliminary Matters:
Application for part of the hearing to be heard in private

1. Ms Bass made an application for any references to the Registrant’s family life and health to be heard in private. The Registrant supported that application. The Panel took into account the HCPTS Practice Note on “Conducting Proceedings in Private” and accepted the advice of the Legal Assessor. The Panel decided that any reference to the Registrant’s private life and health should be heard in private but the hearing should otherwise be conducted in public.

Application to adjourn the Health Allegation
2. Ms Bass submitted that the Allegation based on the Registrant’s health should be adjourned to await the Panel’s decision in relation to the Allegation based on his conviction. The Registrant did not oppose that application.

3. The Panel took into account the HCPTS Practice Note on “Health Allegations” and accepted the advice of the Legal Assessor. The Panel agreed to adjourn the Allegation based on Registrant’s health until after the determination of the Allegation based on his conviction.

Background:

4. The Registrant is registered with the HCPC as a Radiographer and was employed as a Radiographer at the Edinburgh Western General Hospital from 16 December 2019. He was suspended from work on 7 July 2020 following his arrest referred to below and was subsequently dismissed from his employment.

5. On 7 July 2020 the Registrant was arrested at his home and formally charged by Police Scotland following an investigation by the National Online Child Abuse Prevention (NOCAP) campaign. He was found to be in possession of indecent images of children. He was released on bail with the following conditions:

• No contact with a person under the age of 16 years of age, unless accompanied by an adult who is aware of the charges.

• No access to a device with internet access unless it has the capacity to retain and display internet use. Any device should not have the history altered or deleted.

6. On 22 July 2020, the Registrant was referred by his employer to the HCPC in respect of his arrest.

7. On 7 December 2022 at Edinburgh Sheriff Court the Registrant was convicted of the following offences:

(1) Between 4th August 2019 and 7th July 2020 did take or permit to be taken or make indecent photographs or pseudo-photographs of children, contrary to Civic Government (Scotland) Act 1982, Section 52(1)(a).

(2) Between 4th August 2019 and 7th July 2020 did have in your possession indecent photographs or pseudo-photographs of children, contrary to Civic Government (Scotland) Act 1982, Section 52A(1).

8. For these offences, the Registrant was sentenced to a community payback order with supervision for a total period of 18 months, commencing on 5 November 2021. The court also certified in terms of the Sexual Offences Act 2003 that the offences were sexual offences to which Part 2 of that Act applies.

9. The Registrant was placed on the list of individuals barred from regulated work with children, as confirmed by a letter dated 30 June 2023 from Disclosure Scotland.

The Panel’s findings of fact

10. At the outset of the hearing, the Registrant admitted particulars 1(a) and 1(b) of the Allegation. The Panel was also provided with a copy of the Full Extract Conviction Report, which corresponded with particulars 1(a) and 1(b). On the basis of the Registrant’s admission and the Extract Conviction, the Panel found particulars 1(a) and 1(b) proved.

Decision on Impairment
11. The Panel took into account the detailed statement provided by the Registrant, which was supplemented by his oral evidence to the Panel.

12. The Panel also took into account the submissions of Ms Bass to the effect that the Registrant’s fitness to practise remained impaired having regard to the public component of impairment.

13. The Panel applied the guidance contained in the HCPC Practice Notes on “Finding that Fitness to Practise is Impaired” and “Conviction and Caution Allegations” and accepted the advice of the Legal Assessor.

14. The Panel noted the Registrant’s convictions were in breach of standard 3 of the HCPC’s Standards of conduct, performance and ethics which states that “You must keep high standards of personal conduct” and standard 13 which states that “You must behave with honesty and integrity and make sure your behaviour does not damage the public’s confidence in you or your profession”.

15. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the personal and public components respectively. The personal component relates to the Registrant’s own practice as a Radiographer, including any evidence of insight and remorse and efforts towards remediation. The public component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulator.

16. With regard to the personal element of impairment, the Panel noted that the Registrant had pleaded guilty to both offences at the Edinburgh Sheriff Court and had consistently, and throughout his engagement with the HCPC in these proceedings, accepted responsibility for his wrongdoing. In his written statement to the Panel and in his oral evidence, the Registrant expressed his apology, shame and remorse for his commission of these offences; his understanding of how they promoted the abusive exploitation of children; and the negative impact on his own reputation and on the profession of which he is a member. The Panel was satisfied that he had acquired considerable insight into the seriousness of his offences.

17. The Panel also noted and relied on the email dated 6 September 2023 from Errol Walls, Social Worker employed by East Lothian Council, in which he stated that the Registrant had been assessed at the lowest level risk of re-offending. He further stated that the Registrant had undergone and engaged positively with a 10-week work programme provided by a psycho-educational group and had sought separate counselling. In summary, Mr Walls stated that the Registrant had complied with all that was asked of him during his period of supervision and successfully completed the Community Payback Order.

18. The Panel accepted the Registrant’s evidence that his private life and personal circumstances were in crisis at the relevant time and that his resort to viewing pornographic images on the internet was out of character and had not been repeated since the date of his arrest in July 2020. The Panel also took into account the Registrant’s evidence that his use of the internet was reckless. He had never sought or intended to download indecent images of children but did accept he had seen some images and the forensic analysis of his computer demonstrated this.

19. The Panel concluded that the risk of the Registrant re-offending was very low. With regard to the personal component, the Panel was satisfied that the Registrant’s fitness to practise is no longer impaired.

20. With regard to the public component, the Panel did not consider the Registrant to present a risk to the public. However, the Panel also took into account the responsibility of the HCPC to uphold proper standards of conduct on the part of members of the profession and to maintain public confidence in the profession. The Panel considered that, given the serious nature of the offences of which the Registrant was convicted, public confidence in the profession and in the Regulator would be undermined if a finding of current impairment were not made. Accordingly, the Panel finds that the Registrant’s fitness to practise as a Radiographer is impaired by reason of his conviction.

Decision on Sanction

21. The Panel carefully considered the submissions by Ms Bass and the evidence of the Registrant.

22. Ms Bass did not invite the Panel to impose any particular sanction but drew the Panel’s attention to paragraphs in the Sanctions Policy concerning offences relating to indecent images of children.

23. The Registrant invited the Panel to consider making a conditions of practice order. He submitted that his practice as a Radiographer need not involve treating children or, if it did, they could be chaperoned. He further submitted that, to the extent that his practice might involve children, it was unlikely to involve any intimate examination.

24. The Panel took into account the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by declaring and upholding proper standards of conduct on the part of registrants and maintaining public confidence in the profession and the Regulator. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order of seriousness.

25. The mitigating factors are that the Registrant:

• made early admissions and pleaded guilty to the offences;

• has apologised and expressed remorse for his misconduct and has acquired substantial insight into the nature and effect of his wrongdoing;

• has fully complied with his sentencing requirements and undertaken appropriate courses to address his wrongdoing;

• is a low risk of re-offending as deemed by his Social Worker.

26. The Panel considered that apart from the offences themselves, there were no aggravating factors.

27. Set against the mitigating factors referred to above, the Panel noted and endorsed the following guidance at paragraph 89 of the Sanctions Guidance:
“Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter. In particular, it undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction”.

28. The Registrant’s convictions are too serious for the Panel to take no further action or to impose a Caution Order.

29. The Panel considered whether a Conditions of Practice Order would be appropriate but noted paragraph 108 of the Sanctions Policy, which states:
“Conditions are … less likely to be appropriate in more serious cases, for example those involving ….. sexual abuse of children or indecent images of children.”

30. The Panel was unable to formulate conditions of practice which would be relevant or appropriate to the nature and seriousness of the offences of which the Registrant was convicted.

31. The Panel considered the criteria for imposing a Suspension Order but concluded that the Registrant’s misconduct was so serious as to be fundamentally incompatible with his remaining on the Register. In coming to this conclusion, the Panel took into consideration paragraph 121 of the sanctions policy. However, despite the mitigation, insight and attempted remediation demonstrated by the Registrant, it concluded that it could not go behind the serious convictions relating to the indecent images of children. Further, the Panel took into account that the Registrant is still subject to Disclosure Scotland’s barred list from regulated work with children.

32. Therefore, the Panel then went on to consider paragraph 130 of the Sanctions Policy which states:
‘A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving …. sexual abuse of children or indecent images of children”.

33. Paragraph 131 of the Sanctions Policy states:
“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.

34. Notwithstanding the Registrant’s best efforts to address and mitigate the facts and consequences of his convictions, the Panel was drawn to the conclusion that the only appropriate sanction was a Striking Off Order.

Order:

The Registrar is directed to remove the name of Mr Scott Gray from the Register.

Interim Order
1.          Ms Bass made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.

2.          The Registrant made no submissions in relation to that application.

3.          The Panel noted Ms Bass’s submissions and accepted the advice of the Legal Assessor.

4.          Given the Panel’s finding that the offences of which the Registrant was convicted are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

5.          The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

6.          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. This Interim Suspension Order is made for the maximum period of 18 months.

History of Hearings for Scott Gray