Lewis Marais

Preliminary Matters

Private Hearing Application

1. Ms Bernard-Stevenson made an application, at the outset of the hearing, for the Panel to exercise its discretionary power to hear matters relating to the Registrant’s private life, in private.

2. The Panel accepted the advice of the Legal Assessor and took into account Rule 10(1)(a) of the Conduct and Competence Rules 2003 (‘the Rules’) which states that:

“At any hearing— (a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”

3. The Panel concluded that any reference to the Registrant’s health should be heard in private to protect his right to a private life. However, the non-health matters should be heard in public in accordance with the ‘open justice’ principle. Therefore, the Panel determined that the hearing would be heard partly in private and party public.

Service

4. The Notice of Hearing was sent by email to the Registrant on 16 July 2024. The Notice of Hearing contained the date and time of the hearing and confirmed that it would be conducted remotely by video conference. The Registrant was invited to confirm by 30 July 2024 whether he would be attending the hearing and was informed of the Panel’s power to proceed in his absence.

5. The Registrant responded to the Notice of Hearing by email on 29 August 2024. He stated as follows:

“I will not be attending or participating in the trial. I appreciate this has to go ahead and will respect whatever verdict punishment is handed to me.”

6. The Panel was provided with a copy of the Notice of Hearing and confirmation that it had been sent to the Registrant’s registered email address. In these circumstances, the Panel was satisfied that the Notice of Hearing had been served in accordance with Rule 3(b)(ii) of Health and Care Professions Council (Conduct and Competence Panel) Rules 2003 (‘the Rules’).

Proceeding in the absence of the Registrant

7. The Registrant did not attend the hearing nor was he represented. Ms Bernard-Stevenson made an application for the hearing to proceed in the absence of the Registrant under Rule 11.

8. The Panel considered the submissions made by Ms Bernard-Stevenson and accepted the advice of the Legal Assessor. The Panel also took into account the HCPTS Practice Note - Proceeding in the Absence of the Registrant.

9. The Panel concluded that it was fair and appropriate to proceed in the Registrant’s absence for the following reasons:

a) In the Registrant’s email, dated 29 August 2024, he stated in clear terms that he would not be attending the hearing and anticipated that the hearing would proceed in his absence. In these circumstances the Panel determined that the Registrant’s absence was a deliberate and voluntary waiver of his right to attend the hearing.

b) There has been no application to adjourn and no indication from the Registrant that he would be willing to attend on an alternative date and therefore re-listing this hearing would serve no useful purpose.

c) The Panel noted that there may be some disadvantage to the Registrant in not being able to make oral submissions. However, the Registrant had provided an undated statement to the HCPC which to some degree would mitigate any potential disadvantage. In any event, the Panel concluded that any residual disadvantage to the Registrant is significantly outweighed by the public interest in ensuring that the outcome of the hearing is considered and determined as expeditiously as possible

Background

10. The Registrant is a registered Operating Department Practitioner (ODP). On or around 23 July 2020, the Registrant was convicted of an offence contrary to section 1 and section 3 of the Computer Misuse Act 1990.

11. On 21 February 2022, the Registrant was convicted of two further offences, namely, harassment contrary to section 2(1) and (2) of the Protection from Harassment Act 1997 and the commission of a further offence during the operational period of a suspended sentence.

12. The Registrant was sentenced to a 6-month custodial sentence (suspended for a period of 18 months) for the first offence and to pay compensation of £750.

13. In relation to the second and third offences, the Registrant was sentenced to a 26-week custodial sentence suspended for 2 years for the conviction of harassment. He was also made subject to a fine of £100 for the commission of a further offence during the operational period of a suspended sentence.

14. The Registrant’s convictions were initially the subject of two separate FTP investigations. The first FTP investigation had the reference (FTP-73442) and the second had the reference (FTP-87668.)

15. The first FTP case (FTP-73442) first came before the Investigating Panel (ICP) on 12 January 2022. On this date the ICP determined that there was a case to answer regarding this case and referred an allegation to the Conduct and Competence Panel.

16. The second FTP case (FTP-87668) first came before the Investigating Panel on 29 March 2023. On this date the ICP determined that there was a case to answer regarding this case and referred an allegation to the Conduct and Competence Panel.

17. On 31 January 2024, at a preliminary hearing, the HCPC applied to amend part of the allegation pertaining to FTP-73422 and also to join the two FTP cases. These applications were granted.

18. An amended notice of allegation was sent to the Registrant on 1 May 2024.

Decision on Facts and Grounds

19. The Panel took into account the submissions made by Ms Bernard-Stevenson. The Panel also accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof lay with HCPC and that the standard of proof was the balance of probabilities.

20. Article 22(1)(a)(iii) of the Health Professions Order 2001 (the Order) provides that one of the grounds upon which an allegation may be made is that a Registrant’s fitness to practise is impaired by reason of:

“a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence,”.

21. The Certificates of Conviction contained within the hearing bundle provided decisive evidence in relation to the factual aspect of the allegations. As a consequence, the Panel found the facts proved in their entirety.

22. The Panel was also satisfied, based on the documentary evidence, that the statutory ground of conviction had also been established.

Decision on Impairment

23. The Panel next considered whether by reason of his convictions, the Registrant’s fitness to practise is currently impaired. The Panel was mindful that as set out in the HCPTS Practice Note Fitness to Practise Impairment, there are two components of impairment:

• the personal component to the Registrant and

• the public component taking into account the wider public interest in the continued trust and confidence in the profession.

24. Ms Bernard-Stevenson submitted that the Registrant’s fitness to practise is currently impaired. She referred the Panel to the HCPC Standards of Conduct Performance and Ethics 2020 which applied at the time of his convictions. In particular she referred the Panel to Standard 2 and Standard 9:

Standard 2

Communicate with service users and carers

2.5 You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers.

Standard 9 - Be honest and trustworthy

Personal and professional behaviour

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

25. The Panel accepted the advice of the Legal Assessor who reminded the Panel that questions of impairment were a matter for its judgment and that conduct which undermined public confidence in the profession was always a matter to be considered in the context of impairment.

26. Although the Registrant did not attend this hearing, he submitted a statement to the ICP (date unknown) in which he acknowledged that his actions had caused harm to the victims and to his former employer and had brought the HCPC into disrepute. He apologised for his actions which he described as “selfish” and accepted that his behaviour would have “caused stress, upset and frustration to the family of the victims”. [Redacted]. The Registrant stated that he would like to be formally removed from the HCPC register as he would not be seeking to work within a hospital environment or frontline healthcare setting in the future and would not be looking to re-register with the HCPC. In light of the above, the Panel noted that there was some evidence of insight into the nature and gravity of the Registrant’s convictions as well as expressions of remorse and contrition. The Panel also noted that the Registrant pleaded guilty to the offences and stated that he was willing to “take ownership” of his behaviours. However, the Panel was mindful that the Registrant had not provided any evidence to confirm that he had successfully completed the Building Better Relationships (BBR) course that he was required to attend as part of his community order. Nor had he provided any evidence of deep meaningful reflection; his statement to the ICP was short and superficial.

27. In these circumstances, the Panel concluded that the Registrant’s fitness to practice is impaired in relation to the personal component.

28. The Panel also concluded that the convictions are liable to undermine trust and confidence in the profession and to bring it into disrepute. The Panel was satisfied that by reason of his convictions and the facts that led to those convictions the Registrant is in breach of Standard 2 and Standard 9. The Panel noted that the convictions relate to three serious criminal offences one of which was committed whilst the Registered Person was subject to a suspended sentence. Furthermore, the harassment conviction was planned and persistent in nature.

29. The Panel concluded that, notwithstanding the expressions of regret and remorse there remains a risk that the Registrant will again act in a way which disregards the criminal law and high standards expects of registered ODPs. Furthermore, the Panel concluded that an informed member of the public aware of all the circumstances of this case, would consider that a finding of impairment is necessary in order to maintain public confidence in the profession, in its regulator and in order to preserve and uphold proper standards within the profession. In the opinion of the Panel, an informed member of the public would be gravely concerned if a finding of impairment in respect of the Registered were not made.

Decision on Sanction

Panel’s Approach

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

31. The Panel had regard to the Sanctions Policy (SP) and took into account the submissions made by Ms Bernard-Stevenson, on behalf of the HCPC.

32. Ms Bernard-Stevenson submitted that the HCPC was neutral as to the appropriate sanction that should be imposed. However, she referred the Panel to the principles set out in the HCPC’s Sanctions Policy, and made submissions with regard to the mitigating and aggravating factors that the Panel may wish to take into account.

Decision

33. In determining what sanction, if any, to impose the Panel identified the following aggravating factors:

• the Registrant’s offending behaviour had the potential to cause serious harm to others;

• there is only evidence of limited insight into the damaging impact such behaviour could have upon the victims and the reputation of the profession;

• the convictions were not isolated incidents. The Registrant committed three offences within a 2 year period and they were premediated and persistent.

• There is no evidence of remediation and rehabilitation. For example, there is no evidence that the Registrant’s counselling and therapy has had a positive impact in terms of reducing the risk of repetition.

34. The Panel was unable to identify any mitigating factors, other than the Registrant’s apology.

No Action

35. The Panel first considered taking no action. The Panel concluded that, given the nature and seriousness of the Registrant’s convictions, to take no action on his registration would be wholly inappropriate.

36. Furthermore, in the absence of exceptional circumstances, it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

Caution Order

37. The Panel went on to consider a Caution Order. The Panel noted paragraph 101 of the SP states:

“101. A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;

• there is a low risk of repetition;

• the registrant has shown good insight; and

• the registrant has undertaken appropriate remediation.”

38. As the Registrant has demonstrated only limited insight into his convictions, provided no independent evidence of remediation and whilst the risk of repetition remains, the Panel concluded that a Caution Order would be inappropriate. In any event, the Panel concluded that a Caution Order would be insufficient to protect the public and meet the wider public interest given the nature and gravity of the Registrant’s conduct and behaviour.

Conditions of Practice Order

39. The Panel went on to consider a Conditions of Practice Order. The Panel noted that in paragraphs 107 and 108 the SP states:

“107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.
108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:
• Criminal convictions for serious offences….”

40. The Panel noted that it would be unusual to address attitudinal failings by imposing a Conditions of Practice Order. The Registrant’s convictions demonstrate a pattern of inappropriate behaviour. Although in theory the Registrant’s behaviour is capable of being remedied, such remediation requires an ability to be self-critical and demonstrate an understanding of what went wrong. There was some evidence before the Panel that the Registrant is willing to take active steps to remedy the behaviour which led to his convictions. However, the available evidence was insufficient to assure the Panel that the offending behaviour would not be repeated. Furthermore, the Panel noted that the Registrant has made it clear that he has no intention of returning to practice and has chosen not to fully engage with the regulatory process. As a consequence, there is no incentive for him to remediate the impairment of his fitness to practise. Therefore, the Panel could have no confidence that he would comply with conditions even if appropriate conditions could be formulated.

41. The Panel concluded that it would not be possible to formulate appropriate conditions that would be workable, measurable, or proportionate. In these circumstances, the Panel determined that conditional registration would undermine rather than uphold public confidence in the profession and high standards of conduct and behaviour.

Suspension Order

42. The Panel next considered a Suspension Order. A Suspension Order would re-affirm to the Registrant, the profession, and the public the standards expected of a registered health professional. The Panel noted that a Suspension Order would prevent the Registrant from practising as an ODP during the suspension period, which would therefore provide a degree of protection to patients, colleagues and the public. However, the Panel took the view that given the nature and seriousness of the Registrant’s convictions, a Suspension Order would not be sufficient to maintain public confidence in the profession and the regulatory process. It would also not have a deterrent effect on other registrants.

43. The Panel noted that there was only limited evidence of insight and concluded that as a consequence of the Registrant’s limited engagement with the regulatory process, there is no evidence to suggest the Registrant is likely to be able to resolve or remedy his failings. Therefore, the Panel concluded that there was insufficient information available that offered the Panel the opportunity to consider this sanction.

44. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register.

Striking Off Order

45. The Panel acknowledged that a Striking Off Order is a sanction of last resort and should be reserved for those categories of cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of his criminal convictions, his limited insight, and the risk of repetition. The Registrant’s criminal behaviour was repeated, and the Panel concluded that any lesser sanction would undermine public trust and confidence, as members of the public are entitled to expect high standards of behaviour from registered practitioners at all times.

46. The Panel had regard to the impact a Striking Off Order would have on the Registrant. It noted that the Registrant has made it clear that he wishes to be removed from Register and has no intention of ever making an application to be re-admitted. In any event, the Panel concluded that the Registrant’s interests would be significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

47. In these circumstances the Panel decided that the only appropriate and proportionate order is a Striking Off Order.

ORDER: The Registrar is directed to strike the name of Mr Lewis Marais from the Register on the date this order comes into effect.

Interim Order

1. Ms Bernard-Stevenson made an application for an interim order of suspension for a period of 18 months on the grounds of protection of the public and the wider public interest.

Decision

2. The Panel concluded that for the same reasons that it imposed a Striking Off Order the Registrant should not be permitted to practice during the 28-day appeal period or during any extended period in the event that an appeal is submitted. The Panel concluded that an Interim Conditions of Practice Order would not adequately protect members of the public or the wider public interest and therefore imposed an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001.

3. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Lewis Marais