Andrew Ayres

Preliminary Matters

Amendment to the Allegation

1. At the outset of the hearing, the HCPC made an application to amend the Allegation.
The proposed amendments are set out below: (in bold and underlined)

As a registered Chiropodist/ Podiatrist (CH32592):

1. On 26 October 2023 you accepted an Adult Conditional Caution for soliciting another person for the purpose of obtaining their sexual services as a prostitute in a street or public place, contrary to Section 51A of the Sexual Offences Act 2003.
2. By reason of the matter set out above, your fitness to practise is impaired by reason of caution.

2. Ms Bass, Counsel on behalf of the HCPC (the HCPC) submitted that this is a minor amendment to specify the ground under which the allegation is brought. The HCPC submitted that the proposed amendment can be made without any injustice to the Registrant since it is administrative in nature and does not widen the scope or seriousness of the allegation.

3. Ms Ahmed, Counsel on behalf of the Registrant (the Registrant) did not object to this application to amend the charge.

4. The Panel heard and accepted the advice of the Legal Assessor.

5. The Panel noted that the Registrant did not object to the amendment. The Panel was satisfied that the amendment provided clarification regarding the statutory ground, rather than widening the scope or seriousness of the allegation. The Panel was satisfied that it was in the interests of justice to amend the charge and granted the HCPC’s application to make the proposed amendment.

Registrant’s Application to hear part of the Proceedings in Private

6. At the beginning of the hearing, the Registrant made an application in accordance with Article 6(1) of the European Convention on Human Rights) that this hearing be held partly in private. It was submitted that this was to protect the privacy of the Registrant regarding his health. The HCPC submitted that it did not oppose the matters relating to health being heard in private, but did not agree to matters being heard in private to avoid the Registrant’s embarrassment.

7. The Committee heard and accepted the advice of the Legal Assessor and referred to the HCPC Practice Note on Conducting Hearings in Private. It noted that, as a starting point, hearings should be conducted in public session. The Panel took account of the information that the Registrant’s private life relating to his health or health of his family may be referred to. The Panel was satisfied that any references to health information should be heard in private to protect the Registrant’s privacy. The Panel was satisfied that the interests of justice required the hearing to be heard partly in private and it granted the application.
Background

8. On 11 March 2024 the HCPC received a self-referral form from the Registrant. The Registrant confirmed in the referral that on 26 October 2023 he received a police caution for soliciting.

9. On 18 March 2024 the Registrant provided the HCPC with confirmation that he had met the conditions of the caution and the criminal matter had been finalised

10. On 24 April 2024, Staffordshire Police provided a copy of the MG14A conditional caution and MG5 Police report.
The Conditions were:

• “…..To book, attend and complete a course with Safer Lives at a personal cost of £450.00;

Compliance date 23 January 2024

• Section 63(3b) Police and Criminal Evidence Act 1984 states there is a requirement to provide fingerprints/DNA and photograph after an offence. As you have not been in police detention these were not taken, either in the course of the investigation or after conviction. You are now required to attend NACF on the 31st October 2023 at 15:30 which you have agreed to for your biometrics to be taken.

Compliance date 31 October 2023

• Not to commit any further offences. Failure to comply during the compliance period of this conditional caution may result in you being charged with the original offence in addition to any new offence.
Compliance date 23 January 2024…….”

11. On 24 January 2024 the Police confirmed that the matter regarding the Criminal Caution had now been finalised and that the Registrant had successfully completed all the conditions. An Extract of Caution was obtained from the Police, which confirmed that you accepted a Caution.

12. The Caution states that, “on Thursday 25th May 2023 at Hanley, Stoke on Trent, [the Registrant] solicited another person for the purpose of obtaining their sexual services as a prostitute in a street or public place, namely Boundary Street, Hanley, Stoke on Trent” contrary to Section 51A of the Sexual Offences Act 2003.

Decision on Facts

13. At the commencement of the Hearing the Registrant admitted Particular 1.

14. The Panel accepted the advice of the Legal Assessor and took account of HCPC’s Practice Note on ‘Admissions’. The Panel was satisfied as to the fairness of the Registrant’s admission and on the basis of the Registrant’s Admission to Particular 1, found Particular 1, admitted and proved.
Decision on Grounds

15. The Panel next considered the statutory ground. The Panel heard and accepted the advice of the Legal Assessor.

16. The Panel has had regard to Article 22 of the Health Professions Order which states that:

This article applies where any allegation is made against a registrant to the effect that:

a) his fitness to practise is impaired by reason of—

i. …,

ii. …,

iii. 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.

17. Because this is a Caution case and the Panel has been provided with the memorandum of Caution, and has found the fact of the Caution proved, the Panel found the statutory ground is made out.

Registrant’s Evidence

18. The Registrant gave evidence under affirmation in respect of the allegation of impairment.

HCPC’S Submissions (summary)

19. The HCPC submitted that the Registrant’s fitness to practise is impaired. The HCPC reminded the panel of the HCPC's overarching objective including the need to protect service users, maintain professional standards and uphold public confidence in the profession. The HCPC submitted that the Registrant’s conduct was sexually motivated and serious. It was submitted that this behaviour was evidence of the Registrant’s deep-seated attitudinal behaviour, which would be difficult to remediate and therefore there was the continued risk of repetition.

20. The HCPC submitted that limited weight should be given to the testimonials from the patients as they were not made aware of the Caution. The HCPC confirmed that there was no regulatory history

21. The HCPC submitted that there should be a finding of impairment on both the public and private components.

Submissions on behalf of the Registrant (summary)

22. The Registrant submitted that he acknowledges the seriousness of the matter and fully accepts responsibility for his actions. However, for the reasons set out below, it is respectfully submitted that a finding of impairment is not warranted in this case.

23. The Registrant submitted that he has demonstrated a high level of insight and genuine remorse regarding his conduct and the standards expected of a registrant and his own personal values. He has not sought to minimise or excuse his conduct and has been entirely candid with the HCPC, his colleagues, and his patients. It was submitted that the Registrant has reflected deeply on the personal circumstances and stressors that contributed to the incident and has made sustained efforts to understand and address the underlying issues through counselling, personal development, and lifestyle adjustments.

24. The Registrant submitted that he has taken substantial steps to remediate his behaviour and mitigate any potential for future risk. These include:

• Completing the Safer Lives course on the consequences of prostitution and organised crime.

• Participating in an 8-week Mindfulness-Based Cognitive Therapy course.

• Engaging in counselling and relationship therapy through Relate with his wife.

• Mindfulness practice had transformed the marriage and opened up better communication.

• Reintroducing meaningful leisure and social activities (paragliding, rock climbing, men’s hiking group) to maintain mental wellbeing.

• Minimizing risk of self-destructive and harmful behaviour

• Developing written reflective practices to monitor emotions and responses to stress.

25. The Registrant submitted that these efforts have been sustained over a significant period and demonstrate a profound commitment to personal growth. He stated that he has also introduced a Chaperone Policy and Clinical Safeguards to address risks.

26. The Registrant submitted that the incident in question was a one-off occurrence. It was now remediated, and meaningful and effective steps had now been taken to understand and correct the root causes of his behaviour. The measures taken are extensive and ongoing. Accordingly, the risk of repetition is low.

27. The Registrant submitted that he has shown full insight, genuine remorse, and meaningful remediation and that there is no continuing risk to patients, the public, or professional standards. It was further submitted that a finding of current impairment is not required to uphold public confidence, protect the public, or maintain professional standards and accordingly, that the Registrant’s fitness to practise is not currently impaired.

Panel’s Decision on Impairment

28. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions on behalf of the HCPC and the Registrant, as well as the Registrant’s oral evidence given under affirmation, and all the documentation within the bundle as well as the guidance within the HCPC Practice Notes. The Panel accepted the advice of the Legal Assessor.

29. The Panel was mindful that its role was not to go behind the Caution nor was it to seek to revisit the facts giving rise to the Caution. Rather, its task was to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the criminal behaviour in respect of which the Registrant accepted a Caution. The Panel considered whether the Registrant’s actions had brought the Podiatry profession into disrepute or had undermined public confidence in that profession.

30. The Legal Assessor also advised the Panel that it should bear in mind the principle of public protection in its broadest sense. The Panel was advised that it could take into consideration all the circumstances surrounding the criminal behaviour resulting in the Caution.

31. The Panel has had regard to the disposal, which was the imposition of a Caution, but has also borne in mind that the sentence imposed is not necessarily a good indicator of the seriousness of the offence when considered in a regulatory context in terms of maintaining public confidence in the profession. This is because the prime consideration of regulatory tribunals is the protection of the public and of the wider public interest.

32. In considering whether the Registrant’s fitness to practise is currently impaired by reason of his Caution, the Panel adopted the approach formulated by Dame Janet Smith in her Fifth report of the Shipman inquiry by asking itself the following questions:

Does the Registrant’s conviction, and the facts relating to the conviction show that his fitness to practise is impaired in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession and/or

d) …

33. The Panel considered the personal component of ‘impairment’ and considered the issues of insight and remediation. It noted that since the Registrant’s Caution, there was meaningful evidence of demonstrable insight and remediation. It was satisfied that the Registrant’s ability to address personal difficulties and appreciate the adverse effect of his behaviour and had benefitted from attending the ‘Safer Lives’ course.

34. The Panel noted that the Registrant had participated in counselling in order to address the reasons as to his criminal behaviour. It was satisfied from the Registrant’s evidence that the Registrant had fully reflected on his personal behaviour, and he demonstrated his remorse and insight into the seriousness of his actions. The Panel was satisfied that the Registrant had identified the particular personal and work triggers including stress, that had given rise to this criminal behaviour and the adverse impact on third Parties.

35. The Panel was satisfied that following the extensive remediation and reflection, including the reflective statement submitted by the Registrant today, that that the Registrant’s criminal behaviour was not likely to recur. It noted that the Registrant had no regulatory history before or since the Caution, now the subject matter of these proceedings.

36. The Panel was satisfied that this sexually motivated behaviour was out of character and not deep-seated or attitudinal, and the Registrant had fully addressed the circumstances which gave rise to it and identified preventative measures going forward.

37. The Panel therefore concluded that the Registrant has addressed the personal component and does not pose an ongoing risk of harm to members of the public, including patients and members of the profession.

38. The Panel next considered the three elements of the public component:

• The need to protect service users - overlaps with the personal component

• Maintaining professional standards and

• Public confidence in the profession concerned.

39. The Panel was satisfied that the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession to behave lawfully. By failing to do so, his behaviour also brings the profession into disrepute.

40. The Panel was satisfied that the Registrant has insight and is unlikely to repeat his acts and therefore may not present an ongoing/ future risk to the public including professional colleagues and service users. It also noted the supportive testimonials from colleagues aware of the Registrant’s behaviour and the Caution accepted.

41. The Panel had regard to the need for the public to have confidence in the registrants who treat them and that the public is entitled to expect registrants to be professionally competent and act with decency, honesty and integrity. It also took account of the public’s reliance on the regulatory process to be robust, fair and transparent.

42. The Panel bore in mind the overarching objective of fitness to practise proceedings in that it should consider, not only the need to protect the public, but the need to uphold the reputation of the profession and to declare and uphold proper standards of conduct and behaviour. In doing so, the Panel has borne in mind the comments of Mrs Justice Cox in the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin) where Mrs Justice Cox noted:

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

43. The Panel was mindful of Standard 9.1 of the HCPC’s Standards of Conduct, Performance and Ethics (2016) which states:

• 9 – Be honest and trustworthy

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

44. The Panel noted that the facts found proved relate to sexually motivated criminal behaviour. It was satisfied that, given the nature of the allegation and the need for public confidence in the profession and how it is regulated, this would be undermined if there were to be no finding of impairment on the public component.

45. Given the nature of the criminal behaviour committed by the Registrant as set out above, the Panel concluded that the Registrant’s conduct fell far below this standard expected of him. The Panel considered that a right-minded member of the public, hearing all of the circumstances and evidence of the case, relating to deliberate, sexual behaviour, would consider that this case necessitated a finding of current impairment if public confidence in the profession and in the regulatory process is to be maintained.

46. The Panel determined that the serious nature of the Caution was such that the need to uphold professional standards and public confidence in the professions would be seriously undermined if a finding of impairment were not made. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his Caution on the public component of impairment.

Decision on Sanction

HCPC’s Submissions

47. The HCPC reminded the Panel of the general principles of sanction, addressed the question of mitigating and aggravating factors, and referred the Panel to the HCPC Sanctions Policy. The HCPC noted that the aggravating feature in this case is that it arose from the Registrant’s sexually motivated, criminal behaviour, towards a prostitute, a vulnerable person. The HCPC reminded the Panel of its findings in respect of remorse, remediation and insight which were the mitigating features of this case. The HCPC noted that the Panel had considered these matters in their finding in respect of impairment and submitted that the Panel should take account of these. The HCPC took the Panel through the available sanction options and noted that the HCPC’s position was that the sanction to be imposed was a matter for the Panel’s own judgement.

Submissions on behalf of Registrant

48. The Registrant made submissions to the Panel that a caution was the appropriate disposal in this case in the event that the Panel determined that a sanction should be imposed. The Registrant drew attention to the patients’ and professional colleagues’ testimonials and the importance of his employment and that he continues to be self-employed in the same role as at the time of the police caution. The Registrant reminded the Panel of the unique role that the practice has with its exercise rehabilitation programme as well as the Registrant’s financial interests and the dependence of third Parties on the business for healthcare and employment.

49. The Registrant referred the panel to the case of Dr Bawa-Garba and the assessment of a proportionate sanction and the public interest in retaining the Registrant as a professional for the purpose of determining sanction.

50. The Registrant emphasised the principle of proportionality and submitted that a caution order was the most appropriate sanction in this case. It was submitted that the incident was isolated in nature and occurred almost two years ago and so this demonstrated a sustained period in which the Registrant had practised without repetition of the behaviour.

51. The Panel was reminded that the Registrant has no fitness to practise history. The Registrant addressed the Panel in respect of the mitigating and aggravating features of this case in line with the sanction policy. He noted the Panel's finding in respect of his extensive remediation, his early admissions to matters, his remorse and low risk of repetition. He referred the Panel to its findings, namely that the Registrant has demonstrated full and complete insight into the circumstances giving rise to the police caution.

52. In respect of the aggravating factors in this case the Registrant noted these. He referred the Panel to its findings that the behaviour resulting in a police caution was not likely to recur.

53. The Registrant referred the panel to the case of Dr Bawa-Garba and the effect of an order restricting his practice. He emphasised that it was appropriate for the Panel to look at each case on a fact specific basis and emphasised the case referred to was relevant in respect of the Panel’s findings and thereafter its assessment of public interest and the interests of the Registrant, for the purpose of assessing sanction.

54. The Registrant emphasised that the most appropriate sanction in this case would be one of a caution order. He submitted a caution order would reflect the level of seriousness of the misconduct found by the Panel and would adequately address public interest.

55. The Registrant submitted that conditions of practice were unlikely to be workable or practicable in this particular case, on the basis that the Panel had found that the Registrant had fully remediated the concern. The Registrant submitted that suspension would be disproportionate in all the circumstances of this case.

56. The Registrant submitted that it was his primary submission that a caution order was the most appropriate order in this case. He submitted such an order would uphold the public interest and ensure that a highly skilled and committed Registrant was able to remain employed within their profession. The Registrant submitted that a Caution Order would mark severity of the offence and would also be the most proportionate order in all the circumstances.

57. The Panel took into account the HCPC Sanctions Policy and accepted the advice of the Legal Assessor.

58. The Panel bore in mind that sanction is a matter for its own independent judgement and that the purpose of a sanction is not to punish the Registrant but to uphold the public interest. Further, any sanction must be proportionate, so that any order it makes is the least restrictive order that would uphold the public interest.

59. The Panel took into account all the information before it including the documentation, submissions and the Registrant’s reflections, remediation, insight and testimonials. It took into account the Registrant’s early admissions in respect of the behaviour for which he accepted a police caution.

60. The Panel was of the view that the following were mitigating factors:

i. Full insight and remediation demonstrated, and regret and apology expressed,

ii. A sustained period spanning almost two years since the incident in which no further concerns have been raised as to the Registrant’s behaviour,

iii. No regulatory history

iv. It was an isolated incident and it was out of character.

61. The Panel noted that the aggravating feature in this case is the Registrant’s sexually motivated, criminal behaviour, towards a prostitute, a vulnerable person. While the Registrant’s behaviour was sexually motivated and undermined trust, the Panel reviewed with care the section within the Sanction Policy and was satisfied that whilst this could not be regarded as a minor incident, it was satisfied that it was an isolated incident and unlikely to recur. It was satisfied that none of the serious consequences outlined in the Policy were applicable or engaged in this case.

62. The Panel took into account all of the evidence and the submissions before it, as well as the mitigating factors.

63. The Panel considered its previous finding in respect of the Registrant’s insight and remediation and its determinations that there was a very low risk of repetition in this case. The Registrant is clearly well thought of by his colleagues, he has worked for a significant period of time without concern and continues to be well-respected by professional colleagues.

64. While the Panel concluded that the Registrant is not impaired on the personal component, the Registrant’s actions were serious and accordingly this was not an appropriate case to take no further action or consider mediation, since neither would reflect the seriousness of the behaviour.

65. The Panel therefore went on to consider a Caution Order. The Sanction Policy suggests a Caution Order might be appropriate in 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.

66. The Panel is satisfied that the conduct in this case was isolated, essentially a one-off and very much out of character. It could not, however, be characterised as relatively minor in nature as sexually motivated behaviour is a serious matter and not to be taken lightly. That said, the Panel is now satisfied, following the information received throughout the hearing and following its findings on police caution and impairment, that there is a low risk of repetition, the Registrant has shown outstanding insight and has undertaken significant and appropriate remediation.

67. However, in light of the seriousness of the behaviour, the Panel went on to consider more onerous sanctions before coming to a decided position.

68. Accordingly, the Panel went on to consider whether to place conditions of practice on the Registrant’s registration. The Sanctions Policy states that before imposing conditions a Panel should be satisfied that:

• The issues which the conditions seek to address are capable of correction;

• There is no persistent or general failure which would prevent the registrant from doing so;

• Appropriate, realistic and verifiable conditions can be formulated;

• The registrant can be expected to comply with them; and

• A reviewing Panel will be able to determine whether those conditions have or are being met.

69. There are no clinical concerns in this case and thus no issues that could be addressed by way of conditions. There has never been any question about the Registrant’s skills as a clinician. The Registrant has also demonstrated full insight and remediation in respect of the concerns. The Panel therefore considered that there were no conditions of practice which were practicable or workable.

70. The Panel therefore looked at the guidance in the Sanctions Policy about when a Suspension Order might be the appropriate sanction. This is a case in which, on its face, a very short Suspension Order could potentially be justified. However, in light of the extensive insight and remediation demonstrated by the Registrant, the Panel formed the view that such a sanction would be wholly disproportionate, in the specific circumstances of this case. A period of suspension, however short, would have a disproportionate effect on the Registrant and his practice.

71. Furthermore, the context and circumstances of the police caution had to be taken into account. This was an isolated instance and there was no pattern of behaviour. Further, the Registrant has since shown extensive insight and demonstrated significant remediation. The Panel has already indicated that it considers there to be a very low risk that he would ever behave in this way again.

72. In all the circumstances, the Panel concluded that a Suspension Order would be wholly disproportionate in this case. The Panel thus returned to the Sanctions Policy and noted the following guidance in relation to a Caution Order:

“A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).”

73. The Panel considered this case fell within that guidance and that accordingly a Caution Order would be appropriate. The Panel has chosen a non-restrictive sanction because there is a very low risk to the public. This incident has been described as out of character and occurred once in an otherwise blemish-free career as a Chiropodist/Podiatrist. The Panel was satisfied that there are no concerns about the Registrant’s clinical skills and the testimonials attest to his professionalism. Importantly, the Panel was satisfied that the Registrant has demonstrated full insight into his behaviour and the risk of repetition has thereby been significantly diminished.

74. Accordingly, the Panel determined that a Caution Order was the most appropriate order in this case. The Panel therefore makes a Caution Order.

75. The Panel considered that the order should be in place for 1 year to reflect the seriousness of the misconduct and uphold the public interest.

76. The Registrant should be in no doubt that any finding of current impairment by his regulatory body is a serious matter, and he should not take this Caution Order lightly.

ORDER: That the Registrar is directed to annotate the register entry of Mr Andrew Ayres with a caution which is to remain on the register for a period of one year from the date this order comes into effect.

No notes available

History of Hearings for Andrew Ayres