Mr Frank Castle

Preliminary Matters

Application for part of the hearing to be in private

1. Ms Bernard-Stevenson made an application for part of the hearing to be heard in private under Rule 10(1)(a) of the Heath and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the “Rules”). She submitted that although it was not the HCPC’s application, as the Registrant was unrepresented it was appropriate that the Panel consider whether information relating to the Registrant’s health was heard in private.
2. The Registrant submitted that he had nothing to hide. He opposed the application and did not consider that his health details needed to be kept secret.

3. The Panel accepted the advice of the Legal Assessor. She advised that hearings should generally be heard in public in accordance with the principle of open justice. However, there were limited exceptions where it would be appropriate to hear all or part of the case in private in the interests of justice or to protect the private life of an individual concerned in the case. The Panel should carefully balance these considerations with reference to the guidance in the HCPTS Practice Note “Conducting Hearings in Private”.

4. The Panel decided that it was appropriate to hear part of the case in private in the interests of justice and to protect the private life of the Registrant. This decision was limited to his health details. Although the Panel accepted that the Registrant was not concerned with whether these matters were made public, the Panel considered that it was not desirable for these matters to be in the public domain. The Panel considered that it would protect the future private life of the Registrant if he were to re-consider his position after publication of any details.

Background

5. The Registrant is a registered Operating Department Practitioner. On 27 February 2023 the Registrant was convicted, on a guilty plea, of making a false representation which he knew was untrue contrary to sections 1 and 2 of the Fraud Act (Bailiwick of Guernsey) Law 2009.

6. The relevant facts relating to the conviction are that the Registrant attended Queens Road Pharmacy at 12 pm on 31 January 2023 and handed over a prescription for 28 capsules of Tramadol.

7. The pharmacist had concerns about the validity of the prescription and did not dispense any medication. Further enquiries revealed that although this prescription was written on prescription paper from Doctor Van Den Bossche, it was not signed by him and the doctor had not written a prescription for 28 Tramadol capsules.

8. The Registrant was arrested and subsequently interviewed on the 9 February 2023. In interview he told the police that he had received the blank prescription from the doctor during his consultation who had written the name of a diet that may assist on the prescription paper.

9. The Registrant told the police that he decided to complete the prescription with a request for 28 Tramadol tablets as he was suffering from pain and it was his belief that this medication would assist him when he suffered from a pain “flare up”. The Registrant told the police that he was too proud to ask for the medication and that this was a stupid mistake.

10. On 27 February 2023, the Registrant pleaded guilty to the charge of making a false representation with the intent to make a gain for himself in relation to the prescription. The Registrant was sentenced to 2 months custody suspended for a period of 12 months. He was also fined the amount of £600.
Decision on Facts and Statutory Grounds
11. Ms Bernard-Stevenson invited the Panel to find the facts proved. She submitted that the certificate of conviction was sufficient to discharge the burden of proof and in accordance with the rules the Panel was entitled to consider that the certificate of conviction amounted to evidence of the facts of the conviction and amounted to the statutory ground.

12. The Registrant confirmed his admission of the facts in response to the Allegation. He accepted that the conviction related to him and was now spent.

13. In making its findings, the Panel has borne in mind that the burden of proof rests with the HCPC and the standard of proof is the balance of probabilities. Rule 10(d) of the Rules states that “where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or in Scotland and extract of conviction) shall be admissible as proof of the findings of fact on which it was based”.

14. The Panel considered the “Report of Charges and Summonses” dated 27 February 2023 from the Magistrates Court together with the covering email from the Data Protection Officer. In view of those documents and the Registrant’s admission, the Panel found particular 1 of the Allegation proved.

15. In light of these findings the Panel was satisfied that the statutory ground of conviction was made out.

Decision on Impairment

16. Ms Barnard-Stevenson addressed the Panel in relation to impairment. She submitted that the Registrant’s fitness to practise is impaired both in relation to the personal and public component. She submitted that the Registrant had not provided any evidence that he had addressed the circumstances that led to the offending in any depth. She submitted that as the Registrant had minimised the offence and continued to deny any wrongdoing there was a real risk of a repetition and a risk of future harm to service users. Ms Bernard-Stevenson submitted that in forging a prescription for his own gain, the Registrant had acted dishonestly, and a finding of impairment was also required to uphold proper professional standards and public confidence in the professions.

17. In his submissions the Registrant stated that he was unable to lie and “tell the panel what they wanted to hear”, even if this was to his detriment. He stated that he had not done anything wrong and it would be a “fiction” to reflect upon it. The Registrant submitted that he was a person who lived his life to help others. The Registrant told the panel that he had an unblemished record as a practitioner and in all his previous employments which were public facing. The Registrant told the Panel that he is currently working as an Events Manager which included working with children and there are no complaints or concerns about him.

18. The Registrant told the Panel that he does not consider that he presents any risk, and he had access to medication at the time of the offence so he could have taken it, without anyone finding out if he had wanted to. The Registrant told the Panel that this matter was taken entirely out of context and was part of a wider campaign and cover up by his former employers.

19. In addressing the issue of current impairment of fitness to practise, the Panel accepted the advice it received from the Legal Assessor and applied the guidance contained in the HCPTS Practice Note entitled, “Fitness to Practise Impairment”. Accordingly, it considered both the personal and public components.

20. With regard to the personal component, the Panel acknowledged that an act of dishonesty (as the fraud of which the Registrant was convicted is an example) is not easily remediable. The Panel accepted that the Registrant had an unblemished character before the fraud and that he initially accepted responsibility at the police station and subsequently pleaded guilty when he appeared in the Magistrates Court. However, there are elements of what he has stated about the incident that has led the Panel to conclude that his acceptance of his actions, and thus his insight, is not fully developed.

21. The Panel noted that the Registrant does not now accept that he did anything wrong and considers that the conviction is wrong. The Panel noted that the Registrant stated that he was unable to reflect on his actions as this would be a fiction and he lives his life to always do the right thing, even where this is to his detriment. The Panel was unable to square this statement with his comments in the police station and his plea of guilty. The Panel was therefore concerned that the Registrant was unable to see the contradiction in his statements.

22. The Panel considered that there was an absence of acceptance of the true circumstances of the incident, and a lack of insight into the consequences of it. Further there is a lack of expression of any remorse or regret and no understanding of the impact of the conviction on the reputation of the profession. The Panel concluded that there is a risk of repetition. For that reason the Panel has concluded that the Registrant’s fitness to practise is impaired upon the personal component.

23. So far as the public component of impairment of fitness to practise is concerned, the Panel considered that a finding of impairment of fitness to practise is necessary. Operating Department Practitioners have contact with members of the public when they are acutely vulnerable for a variety of reasons. It is in the nature of that role that they are trusted to be honest about events and that there is no question about their integrity. In the view of the Panel fair-minded members of the public would be shocked if a finding of impairment were not made in these circumstances.

24. Having concluded that the Registrant’s fitness to practise is impaired on both the personal and public components, the allegation is well founded. It follows that the Panel must go on to consider the issue of sanction.

Decision on Sanction

Submissions

25. Ms Bernard-Stevenson did not invite the Panel to impose any particular sanction. However, she drew the Panel’s attention to the HCPC Sanctions Policy (“Sanctions Policy”). She submitted that there was no evidence of any mitigating features. She invited the Panel to consider as aggravating features that there is a lack of meaningful insight, remorse or apology and the Registrant has taken no steps to remediate his conduct.

26. Ms Bernard-Stevenson confirmed that the Registrant has no previous regulatory history.

27. In conclusion, she submitted that the Panel ought to impose a proportionate sanction in accordance with the Sanctions Policy.
Registrant’s submissions
28. The Registrant submitted that there were mitigating contextual factors that have been removed from the Panel’s bundle and he had nothing further to add.

Panel’s consideration and decision

29. The Panel accepted the advice of the Legal Assessor. She advised the Panel that the full range of sanctions is available to it as this was a case involving a criminal conviction. She advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process. The Legal Assessor advised the Panel that it was entitled to take into consideration factors that it considered to be aggravating and mitigating circumstances of the criminal offence when deciding what sanction would be sufficient in the public interest.

30. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. She reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. She advised the Panel that it should consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public and the public interest.

31. The Panel accepted the advice of the Legal Assessor and had due regard to the Sanctions Policy. The Panel has considered any aggravating and mitigating factors and has borne in mind the principle of proportionality.

32. The Panel identified the following aggravating factors. The Registrant has not demonstrated any meaningful insight into his behaviour since his conviction. There is no evidence before the Panel that the Registrant has remediated his behaviour and despite his early guilty plea at the Magistrates Court, he maintains that he does not accept he has done anything wrong. The Registrant has not demonstrated any remorse.

33. The Panel identified the following mitigating factor, the Registrant has no previous regulatory history, and this appears to have been an isolated incident in an otherwise unblemished career.

34. The Panel reminded itself that the Registrant has been convicted of a serious criminal offence involving dishonesty. The Panel also took into account the findings it had made in relation to impairment and in particular the finding that the Registrant posed a risk of repeating his conduct.

35. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offence committed, this would be wholly inappropriate and inadequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

36. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99 - 102 of the Sanctions Policy as to when such an order might be appropriate. The Panel determined that the circumstances of the criminal offences are such that a Caution Order is also not appropriate to meet the public interest concerns identified for the same reason as set out above.

37. The Panel next considered the imposition of a Conditions of Practice Order and had regard to paragraphs 105 - 117 of the Sanctions Policy. The Panel has had regard to the fact that there are no concerns with the Registrant’s practice or competency as an Operating Department Practitioner. However, the nature and seriousness of the criminal offences makes a Conditions of Practice Order inappropriate as a sanction. A Conditions of Practice Order, which focusses on the need to remedy practice deficiencies, would not be appropriate or relevant to the facts of this case. In any event, such a sanction would be wholly unworkable and impracticable given the Registrant’s lack of insight or willingness to address the circumstances which led to the conviction.

38. The Panel then considered whether a period of suspension would be a sufficient and proportionate response. It had regard to paragraphs 118-120 of the Sanctions Policy.

39. The Panel bore in mind the findings it had already made, namely that the Registrant has been convicted of serious criminal offence and has identified the need to protect the public and public interest. There was no demonstrable evidence before the Panel that the Registrant has developed insight or remediated his failings. Indeed, the Registrant has maintained his position that he does not accept any wrongdoing. The Panel concluded that a period of suspension would serve no useful purpose in these circumstances. In addition, this sanction would be inadequate to protect the public and maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals.

40. The Panel therefore went on to consider striking the Registrant’s name off the HCPC Register of Operating Department Practitioners. It had regard to paragraphs 127-132 of the Sanctions Policy. The Panel took into account the impact that such an order would have on the Registrant in terms of his finances and his reputation.

41. In reaching its decision, the Panel had particular regard to paragraphs 56 – 58 and 131 of the Sanctions Policy. Having done so, it concluded that the Registrant’s conviction and his persistent lack of insight and unwillingness to resolve matters was fundamentally incompatible with remaining on the register. The Panel considered that only a Striking Off Order would be sufficient to protect the public and maintain and declare proper standards of conduct and behaviour, to maintain the reputation of the profession, and to maintain public confidence in the profession. The public would expect such a sanction in circumstances where a Registrant had been convicted of an offence involving dishonesty and had taken no steps to develop insight and posed a risk of repetition.

42. In the light of the above, the Panel is satisfied that the appropriate and proportionate sanction is a Striking-Off Order.

That the Registrar is directed to strike the name of Frank Castle from the Register on the date this order comes into effect.

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

1. Following delivery of the Panel’s decision in relation to sanction the Registrant left the hearing. The Hearings Officer telephoned the Registrant to confirm whether he had left the hearing intentionally or had been disconnected. The Hearings Officer was unable to hear the Registrant over the telephone and sent an email to request he contact her. The Registrant responded to the email that he did not intend to waste further time at the hearing and he would proceed via a Tribunal.
2. The Panel therefore considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. The Panel concluded it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Assessor’s advice, and considered the guidance in R v Jones [2003] 1 AC 1 HL and GMC v Adeogba and Visvardis [2016] EWCA Civ 162, for the following reasons:
• The Panel is satisfied that the Registrant had notice of the hearing, having participated until this point;
• The Notice of Hearing dated 24 July 2024 set out that the Panel could consider an Interim Order at the conclusion of the hearing and that the hearing could continue in the Registrant’s absence;
• The Registrant confirmed in his email to the HCPC hearings officer that he was aware that the hearing could continue to deal with an interim order and he did not wish to participate;
• The Registrant has not sought an adjournment;
• The Panel considered it was very unlikely that the Registrant would attend any future hearing;
• The Panel determined that the Registrant had chosen not to attend this part of the hearing and voluntarily waived his right to appear;
• There is a general public interest in the expeditious disposal of this matter.

Application

The Panel considered the application by the HCPC for an Interim Order to cover the appeal period. The Panel was satisfied that the Registrant had been served with the appropriate notice of the Panel’s powers to consider an interim order in the Notice of Hearing dated 24 July 2024. The Panel considered it was appropriate to proceed in his absence for all the reasons outlined in its earlier determination.

The HCPC’s application is made on the 2 statutory grounds as follows:
• it is necessary for the protection of members of the public
• is otherwise in the public interest.

Decision

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition. The Panel considered that the period of 18 months was required to cover the likely length of time required for any appeal to be heard.

The Panel noted that such an order may have a detrimental effect on the Registrant however, this was outweighed by the need to protect the public from the risk of repetition identified.

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 to cover the length of any appeal.

History of Hearings for Mr Frank Castle