Nicholas Whitaker

Preliminary Matters

Application for hearing to be heard in private (in part)

1. The HCPC made an application at the start of the hearing. First, on behalf of the Registrant, for those parts of the evidence to be given by the Registrant relating to matters of a personal nature to be heard in private. Secondly, in relation to any HCPC witness that may make reference to matters of a personal nature, such as health or family matters, as identified in the sworn witness statements before the Panel to also be heard in private.

2. The Legal Assessor advised the Panel that the starting point was that all hearings should, in the public interest, be held in public. The Health Care Professions Council’ (Conduct and Competence Committee) (Procedure) Rules 2003 provides at 10(a)(1), for the Panel to hear evidence in private where it is fair and reasonable to do so to protect the private life of a party, or other person concerned in the hearing. That power to hear evidence in private can be exercised for the whole of the hearing, or for discreet portions of the evidence.

3. The Panel noted that at the time of the application it was not known what issues of a private nature the Registrant was referring to, as there was no written statement from him before the Panel. In relation to the issue of whether HCPC witnesses may make reference to personal matters, there was already reference within the bundle to those.

4. The Panel concluded that it would exercise it discretion to hear portions of the oral evidence in private where it related to matters of a family or personal nature. The application was therefore allowed. The Panel noted that further documentation may be provided that details further health concerns. In such a case the Panel would exercise its discretion again to any reference to that material.

Application to disengage

5. At the resumption of the hearing on day two, the Hearing Officer indicated that the Registrant had sent an email late on Monday indicating the basis on which he would find further participation in the hearing difficult. The Panel was supplied with a copy of that email. The Panel received an application from the Registrant to disengage with the HCPC proceedings.

6. Mr Wakelin on behalf of the Registrant explained to the Panel that until day one of the hearing, he and the Registrant had understood that the five-day listing was the totality of the engagement that would be required by them both. It became apparent on day one that the five days set aside for this hearing from 3 to 7 March 2025, was to be utilised by the HCPC in presenting its case. The Presenting and Hearings Officers confirmed to the Registrant and Mr Wakelin that there would be a resumption of the hearing at some point in the future, on dates as yet to be determined.

7. The Registrant explained that he had consistently requested the HCPC to ensure that all communications to him were also sent to his supporter. This did not happen, and the notice of hearing letter of 24 November 2024, was not copied to Mr Wakelin. It had not been appreciated by the Registrant how significant the information in that letter was, nor was it understood that the five days was not the totality of the hearing.

8. Mr Wakelin outlined the basis on which his employing Trust had allowed him these five days to give support to the Registrant. To facilitate his paid absence from the Trust, Mr Wakelin’s clinical duties were being covered by a colleague who had given up their annual leave. Mr Wakelin informed the Panel that his absence from clinical duties this week was whilst a Care Quality Commission inspection was taking place. The timing of this hearing for these five days was therefore extremely inconvenient. Further, if there was to be a resumption of the hearing it was highly unlikely that his employers would be willing to give him further leave. As this week will in essence entail listening to HCPC evidence, it was, he considered, not the best use of his time given his workplace pressures.

9. The Registrant explained that he was not willing to continue participating in this hearing in person without Mr Wakelin’s support. The Registrant stated that he preferred the hearing to go forward in his absence than to cause more inconvenience for his supporter, Mr Wakelin.

10. Options as to how the Registrant may be enabled to contribute to the hearing were explored, such as being present but with camera off and listening to the evidence. The Registrant indicated that he did not wish to do this however, if the Panel permitted it, he would like to supply, by the end of the week, further written documentation in the form of statements and references. Mr Wakelin confirmed that he would use his best endeavours to pull something together in the form of a Registrant’s bundle of documents but emphasised that it may not be in the format that this Panel was used to seeing.

11. The HCPC raised concerns about this proposal to provide the Panel with late documentation. It was stressed that the rules provided for the Registrant to supply the HCPC and the Panel with documentation upon which he would rely to be with them at least twenty-eight days in advance of the hearing. Documentation at this late stage would produce procedural problems, particularly in regard to the Registrant providing a statement at this stage that may reference previously undisclosed and unexpected issues.

12. The HCPC, however, in view of the Registrant’s difficulties in collating his own documentation, identified and produced the statement the Registrant had supplied at the Investigating Committee stage. The Registrant, after reading that statement through again, confirmed that his position had not changed since then. It was therefore agreed by Mr Wakelin and the Registrant that this document would go before the Panel at the start of the hearing. This statement set out the key issues of the Registrant’s response in relation to Particular 1.

13. The Panel sought the Legal Assessor’s guidance on this issue of late submission of documentation. She reminded the Panel that within this forum, where registrants were often unrepresented, there was a great deal of latitude to ensure that those unrepresented parties were able to present their case fully. The Panel had full case management powers, and if the Registrant was given more time by the Panel to present documentary evidence, that documentation should, in the first instance, be considered by her, and the HCPC given the opportunity to take issue with the contents, before the Panel received it.

14. The Registrant confirmed that he was not seeking an adjournment on any basis and that he was content for the HCPC process to proceed in his absence and was content to provide the Panel with documentary evidence.

15. In terms of the Registrant disengaging from these proceedings, the Legal Assessor stated that the decision whether to attend or not was the Registrant’s. The Panel should take no adverse inference from the Registrant’s decision to disengage, but the Panel should be satisfied that this was an informed voluntary decision by the Registrant to absent himself. If the Registrant did retire immediately the Panel would have to consider the issue of proceeding in his absence.

16. The Panel agreed that it would allow the Registrant to absent himself from the hearing with immediate effect, having satisfied itself that the Registrant had been fully informed of the process that would continue in his absence and the options for his participation by another means had been exhausted. It was emphasised to the Registrant that he was able to reengage with the hearing at any point. The Panel fully appreciated the difficulties the scheduling of this case had caused to both parties, but in particular to the Registrant’s supporter. The Panel also noted that there was a duty on a registrant to engage with the HCPC process.

17. The Panel accepted and noted the contents of the Registrant’s statement as submitted by him to the Investigating Committee. The Panel agreed to allow the Registrant time to provide the Panel with further documentation. The Hearings Officer confirmed this in an email to the Registrant later that day in which it was stated that any documentation the Registrant wished to submit should be received by Thursday.
Proceeding in the absence of the Registrant

18. The HCPC made an application to proceed in the Registrant’s absence. In support of that application, it was stressed that:

• That there was an HCPTS Practice Note on this issue which would assist the Panel in making its decision as to whether to proceed or not.
• There is a general public interest in all proceedings progressing as expeditiously as possible, and given that some of the issues raised in the Allegation date back to early 2020, any further delay should be avoided.
• The HCPC has six witnesses ready and willing to give evidence.
• The matter has been listed for five days, and it was already certain (due to the scheduling of witnesses) that the hearing would go part heard resulting in further delay in a final outcome of this matter.
• If this matter were adjourned, it is possible that there may be further difficulties arising from making alternative arrangements for those witnesses to attend.
• The Panel has satisfied itself that the Registrant has voluntarily absented himself from the hearing today in full knowledge that this matter will proceed in his absence.
• Further, given the difficulties which the Registrant and his supporter have in arranging their attendance for this week, or for the totality of the hearing, an adjournment to allow for their attendance in the future may prove futile.
• The Registrant has been aware since October 2023 that this matter was going to trial. The Notice of Hearing specified that documentation should be provided 28 days in advance. The Registrant has had time to prepare, and any further delay given to him by adjourning this hearing to assist him with that, may have a further adverse impact on the quality of the evidence which the HCPC’s witnesses are able to provide at a future date.

19. For all the reasons set out above, it was the HCPC’s case that this matter should proceed.

20. The Panel enquired as to when it was identified that this matter would, due to too few days being scheduled for this hearing, go part heard, and, at what date was the Registrant informed that this may be the case. It was established that the Registrant had been emailed on the afternoon of the previous Thursday indicating that this would be the case. It was noted and accepted by the Panel that given the terms of that notification the Registrant and his supporter may not have understood the implications of the use of the term part heard

21. The Panel sought the Legal Assessor’s advice. She advised that the Panel had a discretion to proceed in the Registrant’s absence and this was set out in Rule 11 of the Health Care Professions (Conduct and Competence Committees) (Procedure rules) 2003 as amended. The Legal Assessor emphasised that this was not an unfettered discretion and should be exercised with due care and caution. She referred the Panel to the Practice Note and the terms in which the key points arising from the leading case of Jones and Hayward had been encapsulated within that.

22. The Panel noted all that it had heard today and accepted that the Registrant had, for a variety of reasons, chosen not to attend. It was therefore open to the Panel to accept that he had voluntarily absented himself. The Panel accepted that at this stage there would be an adverse impact on these proceedings by any further delay. It was appreciated that there was public interest in this matter proceedings. The Panel therefore concluded that it would approve the HCPC’s application.

Hearing management

23. The Registrant having disengaged from the proceedings and the Panel having decided to proceed in his absence, gave consideration to how to proceed with the four stages of the hearing. The Panel took into account the fact that it was still uncertain whether, and at what stage, the Registrant may exercise his right to re-engage in the proceedings.

24. The HCPC stated that it considered that it was appropriate to hear the issue of facts and grounds together. The Panel had some concerns on this proposal and sought the Legal Assessor’s views, as she had provided some insight and guidance on how the hearing process would proceed to the Registrant before the start of the hearing. She stated that whilst the four parts of the hearing had been explained to the Registrant, as he and his supporter were unversed in the hearing process, it was far from certain that he had fully understood the intent and importance of each stage. Further, the Registrant had perhaps been led to believe by the listing of HCPC witnesses of fact, that during this week only factual findings might be considered.

25. The Panel concluded that in fairness to the Registrant the safest course of action was to take facts separately from grounds and the hearing would progress in four stages.

Background

26. On 18 February 2020, Colleague A was working in the general X-ray department at the Trust. The Registrant and Colleague A were on the 8am to 4pm shift. At approximately 8.30am, Colleague A was talking to a student radiographer about mixed martial arts and Thai boxing. At this time the Registrant was standing nearby and could overhear the conversation.

27. After some time, the Registrant interjected into the discussion and made two statements, as identified in the Allegation, that the student Radiographer, a former member of team GB, was able to kick high enough to touch and remove Colleague A’s turban. Colleague A informed the Registrant that he found his comments offensive, and the Registrant apologised and said that he was joking. The Registrant then blew Colleague A, a kiss.

28. Colleague A asked to speak with the Registrant privately about the comments. Both parties went into the corridor and Colleague A explained a further time that he was offended by the Registrant’s comments and the Registrant again apologised and blew Colleague A a kiss. Colleague A interpreted the Registrant’s apology as insincere. Following this incident, Colleague A submitted a complaint (grievance) to the Trust. The investigation into Colleague A’s grievance came to an end in March 2020. Colleague A submitted a complaint to the HCPC a year later on 19 March 2021.

29. After the referral to the HCPC had been made, the Registrant was heard by Colleague D to say in some point in July 2021, that he hoped the fact that Colleague A was off sick was due in some way to brain issues caused by his turban being too tight.

30. This comment was reported to management and along with a complaint from a first-year student nurse, led to a further Trust investigation being undertaken. That investigation was then extended to include the Registrant’s comments and actions during June 2021. Those related to comments made leading up to and including the night of 18 June when the England football team was playing in the Euros 2021. The allegation being that the Registrant did not work in partnership.

31. The Registrant resigned his position before the conclusion of the 2021 investigation.

Documentary Evidence

32. The Panel had been presented with an HCPC bundle in advance of the hearing. There were six sworn statements within that bundle. Those were from two investigating officers, two qualified colleagues, and two former student Radiographers. As the Allegation identifies, there are distinct sets of incidents occurring during March 2020, and June/July 2021, with a significant gap between.

33. On day one of the hearing the Registrant provided the Panel with two unsigned references. On day three the Registrant provided two references, one was a duplicate of a student nurse’s reference that had now been signed, and the other was a third new reference. Late on the third day of the hearing the Registrant sent a further reference, [redacted] and his further statement relating to the basis of Allegation 1.

34. At the start of day four, the Legal Assessor considered the further statement presented by the Registrant, and the references supplied the day before. The Legal Assessor considered that matters within this documentation were germane to the issue which Colleague A was to give evidence upon in the afternoon of day four. The Legal Assessor therefore exercised her limited role towards an unrepresented registrant and permitted this documentation to go before the Panel.

35. The HCPC raised concerns about admitting this evidence at this late stage. The HCPC accepted why the Legal Assessor had, in her limited role in the absence of an unrepresented registrant, considered these relevant, it should be appreciated by the Panel the difficulties presented for the HCPC in doing so at this time. First, the Presenting Officer would have to review and revise her questions to address any issues raised within this further documentation. This would take time. Secondly, the HCPC considered that the permission given to the Registrant to provide the Panel with further documentation should be stated as being a finite permission. The Panel was invited by the HCPC to confirm to the Registrant that anything that goes to the issue of facts could not be presented beyond today thereby allowing either the Registrant to attend to give evidence on the facts or for the HCPC to be able to close its case.

36. The Panel noted the HCPC’s position in relation to the acceptance of further information that may be relevant to this fact-finding stage. The Panel acknowledged that it may not be clear to the Registrant the distinctions in the types of documentation to be supplied in relation to facts finding stage. The Hearings Officer was therefore requested to contact the Registrant informing him that nothing further should be produced for this fact-finding stage after today. This did not of course stop the Registrant attending tomorrow to give evidence, nor to him providing other information for later stages of the hearing. The Registrant should appreciate that the HCPC would be closing its case tomorrow and at that time, the deadline for evidence (relating to the first stage of this process) had been reached.

37. The Legal Assessor’s advice was sought on the issue of the Panel accepting this further documentation into evidence. She directed the Panel to the terms of two HCPTS Practice Notes. The first relating to ‘Unrepresented Registrant’s’ which outlines the degree to which a panel may take case management steps to ensure a fair outcome for an unrepresented registrant. Secondly, the Practice Note relating to ‘Evidence’ where the Panel’s flexibility in relation to the issue of admissibility. There were two provisos in that any admission of evidence should be fair and relevant to the issues.

38. The Panel appreciated that although it may admit any document if the criteria of fairness and relevance had been met that evidence would in due course be considered given the appropriate weight by the Panel. The Panel considered in fairness to the Registrant it would accept the documentation into evidence at this fact-finding stage, and before hearing the witness evidence of Colleague A.

39. On the fifth day of the hearing, the Panel did receive more information and documentation from the Registrant. This had been sent to the Hearing Officer in the evening of day four in response to her email confirming that Thursday was the cut off point for fact stage information, and requesting an indication whether the Registrant intended attending the hearing the next day. In his email the Registrant confirmed that he was not intending to attend the hearing on day five. He requested that the Panel see and consider the further information he had sent. The Legal Assessor reviewed this information and after consultation with the Hearings Officer, the Panel was provided with this further documentary evidence.

40. The HCPC informed the Panel that there were now two Registrant’s bundles, the second consisting of 16 pages was an addendum bundle containing the documentation sent the previous day. The HCPC made representations on this addendum bundle and drew the Panel’s attention to the information supplied in an email from Katie Nicol, who’s comments were received too late to be put to Colleague C. Further, the documentation supplied is hearsay, consisting of, as it did, information from sources who have not given evidence and who the Panel has not been able to question. The Panel should therefore give this hearsay evidence its due weight.

41. The Panel noted and accepted the HCPC’s position.

HCPC submissions on facts

42. The Panel has heard six live witnesses on behalf of the HCPC. The Registrant has presented no live evidence. The HCPC’s position is that most of the evidence adduced by the Registrant amounts to hearsay. This has meant that none of his witnesses have given evidence under affirmation or oath, and that their evidence has not been tested by way of cross-examination. Therefore, the Panel is asked to place less weight on his evidence.

43. In relation to the issue of cross admissibility, it is submitted that there are sufficient similarities between one or more of the particulars that comprise this allegation. In the event that the Panel finds that one or more of the particulars are proven, the HCPC asks the Panel to consider cross-admitting these proven facts in order to demonstrate the Registrant's propensity to engage in similar conduct.

44. In relation the stem of Particular 1, it is submitted that the Panel ought to give the term ‘unprofessional' its ordinary meaning.

45. At the outset of the fitness to practise hearing, the Registrant admitted sub-particular 1(a.), In the HCPTS practice note entitled, ‘Admissions’, at paragraph 10 it is stated that:
‘Subject to the need for the panel to ensure the overall fairness of the proceedings, they can treat an admission to an alleged fact as proof of that fact without the HCPC needing to prove it by calling witnesses and/or producing documentary evidence.’

46. It is submitted that the comment alleged in particular 1(a), was unprofessional as the NHS seeks to foster an inclusive working environment and this comment was culturally insensitive. The Panel ought to find sub-particular 1(a) proved

47. In Colleague A’s witness statement at paragraphs 7, Colleague A stated that the Registrant said, ‘‘Sorry’ and then he blew me a kiss’. Colleague A also states that, ‘At this point, he blew me another kiss.’ During his oral evidence, Colleague A stated that the Registrant ‘almost took humour in the situation and blew me a kiss to apologise, I don’t know why someone would blow you a kiss and apologise if they were being genuine.' Colleague A further describes the Registrant’s facial expression as 'almost like smirking and blowing a kiss.'

48. It is submitted that this conduct was unprofessional as it took place in a context where an aggrieved colleague had approached the Registrant to discuss a culturally insensitive remark that he had made. Blowing a kiss to the aggrieved colleague in this context was dismissive and/or undermined the sincerity of the Registrant's apology. The Panel ought to find sub-particular 1(b) proved.

49. During the HCPC investigation, a witness statement was obtained from Colleague D, dated 6 February 2024, where at paragraph 17 of this statement she stated that, ‘He said to me ‘have you heard who’s off sick?. I’d fucking love it if he’s gone off sick with a brain tumour or something...I tell you what, I think that’ll be from wearing his turban too tight, wouldn’t that be so funny.’’

50. During the hearing, the Panel heard evidence from Colleague D. In her oral evidence, she stated that, ‘Probably in the afternoon of the shift ...by this point it was just myself and Mr Whitaker... he said have you heard he has gone off sick? He said I (would) fucking love it if he went off sick with a brain tumour...that probably would be from wearing a turban too tight, wouldn't that be funny?'

51. Colleague D explained that she was ‘appalled’ by the Registrant’s comments. She further explained that the Registrant has ‘always been close to the line.’ Colleague D elaborated on this aspect of her evidence, in response to Panel questions, by stating that the Registrant would make racial and/or sexual jokes at work and that the Registrant would choose inappropriate topics for the workplace.

52. The HCPC submit that the Registrant’s comments were unprofessional as they were culturally insensitive comments which could cause offence. Comments of this nature were plainly unsuitable for the workplace. Based on the above evidence, the Panel is asked to find sub-particular 1 (c) proved.

53. During the HCPC investigation, a witness statement was obtained from Colleague C (a then student radiographer.) This witness statement is dated 6 March 2024. At paragraph 6 of this statement, it is stated that: ‘a few hours later, on the same day, I had repeated a certain radiographical examination as I had not correctly positioned the patient for a knee X-ray. Mr Whitaker said to me in front of a doctor and as assistant radiographer that I needed to reject the X-ray as it was ‘rubbish.’’ In the same paragraph, Colleague C goes on to state that. ‘He said this in an unfriendly manner.’

54. In her oral evidence, Colleague C explained that prior to attending her shift on 26 July 2021, she had limited experience undertaking x-rays in the Accident and Emergency department. She further explained that in addition to this, as she normally would undertake x-rays on ambulant patients, she had limited experience of x-raying a patient on a bed. Colleague C stated that although she did not explain this to the Registrant before attempting to complete the knee x-ray on this date, the Registrant would have known this as he knew that she was a first-year student.

55. Colleague C gave further evidence that after she had undertaken a knee x-ray on 26 July 2021, the Registrant stated to a doctor in attendance that her x-ray was ‘rubbish.’ She indicated that she believed that by stating this, the Registrant was referring to the fact that (in his view) the image was not of diagnostic quality. Colleague C described herself as feeling belittled and embarrassed by the Registrant’s comments.

56. The HCPC submit that describing an inexperienced first year’s x-ray as ‘rubbish’ in front of her and in front of another (senior) member of staff is unprofessional. This is because using the term ‘rubbish’ is not constructive feedback which could assist in Colleague C’s learning. Moreover, making this statement in front of a third party was both indiscrete and/or unnecessary. It is submitted that the panel ought to find sub-particular 1(d) proved.

57. During the HCPC investigation, a witness statement was obtained from Colleague G. This is dated 18 March 2024. At paragraph 7, she states that, ‘when carrying out an X-ray, I had been asked to pass the detector in the holder to Mr Whitaker. I cannot recall who asked me to do this. However, the equipment all looked very similar to me and I accidentally passed Mr Whitaker the detector in the grid instead of in the holder. Mr Whitaker proceeded to shout at me in front of the patient.’

58. In her oral evidence, Colleague G confirmed that at the time that the Registrant shouted at her, his voice was loud enough to be startling. Colleague G further explained that the Registrant’s behaviour towards her, upset her.

59. The HCPC submit that the Registrant’s behaviour was unprofessional as shouting at Colleague G was both impolite and unnecessary. Colleague G was inexperienced using the new equipment and had informed the Registrant of this. The mistake Colleague G had made by handing the Registrant the incorrect equipment, did not jeopardize the safety of the patient and although handing the Registrant the incorrect equipment would impact the quality of the x-ray, an image could still be obtained. Therefore, it was both unnecessary and inappropriate to shout at Colleague G. The Panel ought to find sub-particular 1(e) proved.

60. The HCPC submit that when considering Particular 2, the Panel ought to give the terms ‘delegate’, ‘appropriately’ and ‘manage risk’ their ordinary meaning.

61. In Colleague C’s witness statement, she explains that on 26 July 2021, the Registrant asked her to take a patient back to their A and E cubicle unaided and also to reconnect a patient to their oxygen supply. Colleague C further explains at paragraph 8 of her statement, that this task was outside of her scope of practice as a first-year student. In this paragraph, Colleague C goes on to state that she was not ‘signed off’ on this equipment and she was not allowed to operate any equipment that she had not been adequately trained on.

62. On the same date, the Registrant also asked Colleague C to take patients from their A and E cubicles and move them to the x-ray room with drips attached to them. In her witness statement, Colleague C goes on to explain that she had not had any training in relation to connected drips and that it was outside of her scope of practice.

63. In her oral evidence, Colleague C explained that she would not be expected to undertake any of those tasked unassisted as an inexperienced and untrained first year student. Colleague C advised the Panel that she informed the Registrant on many occasions that these requests were inappropriate. Colleague C further advised that she was of the view that the Registrant perceived these protestations as her being resistant to his tutelage.

64. During the hearing, the Panel heard evidence from Colleague A (an experienced radiography supervisor) that to the best of his knowledge, these tasks fell outside of a first-year radiography student’s scope of practice.

65. The panel has also had the benefit of hearing evidence from Colleague D (who had been a student when she first met the Registrant in 2018). Colleague D indicated that a first-year student would not be sufficiently experienced to transport patients to and from cubicles unaided or connect a patient to drips and/or administer intravenous fluids. Colleague D also stated, ‘I got the impression that he liked working with students for his own gain to make his shift easier and this was just inappropriate. There were some students who were very unhappy.’

66. In her witness statement, Colleague C states that delegating these tasks to students could put the patients at risk. At paragraph 10 of her statement, Colleague C explains that as she had not been trained to disconnect and reconnect a patient to their oxygen supply, this could lead to the patient being connected to the incorrect level of oxygen which could in turn put the patient at risk.

67. In her oral evidence, she explained that in the event that she had attempted to move a patient by herself, this could have led to either herself or the patient being injured as they may have resulted in a collision with an inanimate object.

68. At paragraph 12 of her statement, Colleague C states that if she had attempted to manage the connected drips, she may have done this incorrectly which could lead to the patient not receiving a consistent supply of nutrients which could in turn lead to the patient’s health being put at risk. The Panel ought to find 2(a)(i) to (iv) proved.

69. The HCPC submits that the term ‘work in partnership’ in the context of Particular means ‘work co-operatively.’

70. In Colleague D’s witness statement at paragraph 9, she explains that instead of offering to assist her undertake x-rays with service users, the Registrant stated that Colleague D would be ‘fine on her own.’ In the same paragraph, Colleague D goes on to state that, ‘the Registrant then came towards me and it was like something in him changed. He said loudly in my face; ‘Ok well, if you’re saying I can’t watch it, I’ll fucking ring in sick.’ In her oral evidence, Colleague D clarified that when the Registrant came towards her, he reduced the distance between them from 3 to 4 ft to merely a few steps.

71. Colleague D exhibits exhibit LH/01 in her witness statement. This document is a contemporaneous list of incidences that took place involving the Registrant. During her oral evidence, Colleague D was able to confirm that as this list was produced contemporaneously it was likely to be more accurate than her subsequent HCPC witness statement. The Panel is asked to consider Colleague D’s evidence holistically and to place greater weight on this contemporaneous document in the event that there are perceived inconsistencies between the accounts.

72. At paragraph 1 of this document, Colleague D notes that the Registrant indicated that in response to Colleague D’s comments that the Emergency Department would be busy, the Registrant stated that, ‘he would definitely (sic) watching whatever happens.’

73. It is submitted that stating to Colleague D that he did not intend to work co-operatively with her at a forthcoming shift (when it was likely there would be fewer members of staff on duty) amounts to a failure to work in partnership. The panel is asked to find sub-particulars 3 (a) (i) to (iii) proved.

74. In her witness statement at paragraph 13, Colleague D explained that, ‘A patient came into X-ray on a trolley. I brought the patient in. It was a male with dementia. I did the whole x-ray by myself… It would have really helped to have Mr Whitaker provide a second pair of hands to get the X-ray machine ready while I was positioning and reassuring the patient... I did not ask Mr Whitaker to come up and help me but he would have been able to see what I was doing.’

75. During her oral testimony, Colleague D stated that although she managed to successfully complete Service User A’s x-ray unaided, in the event that the Registrant had offered to assist, the patient could have had a colleague either side of him and someone could have assisted Colleague D when placing the detector by the patient’s back. Colleague D further stated that although Service User A was never put at risk (by the fact that she completed the x-ray singlehandedly), he could have had an improved experience if she had been assisted.

76. It is submitted that failing to assist Colleague D to administer care to a vulnerable patient amounted to a failure to work in partnership. The Panel ought to find sub-particular 3(b) proved.

77. At paragraph 15 of Colleague D’s witness statement, she states that, ‘Ms Porter then returned, and I heard her say to Mr Whitaker, ‘are you not giving Lucy a hand? He said, ‘Oh she’s alright.’, and carried on watching the football.’

78. It is submitted that Colleague D has provided consistent evidence during her oral testimony. It is also submitted that responding dismissively to Colleague H when she asked the Registrant whether he intended to assist Colleague D amounts to a failure to work in partnership. The Panel ought to find sub-particular 3(c) proved.

79. The HCPC submits that the comments specified in particular 1a(i-ii) and/or 1c(ii) are racially motivated remarks.

80. In the leading authority Lambert-Simpson v Health and Care Professions Council, [2023] EWHC 481 (Admin), the court held that in order to establish that a statement was racially motivated, it has to be proven that:
i) the statement had a purpose behind it which at least in significant part was referable to race, and
ii) that the act was done in a way showing hostility or a discriminatory attitude to the relevant racial group.

81. The HCPC commends the HCPTS Practice Note entitled ‘State of mind.’ The HCPC highlights paragraphs 4 and 5 of this Practice Note to the Panel. These paragraphs indicate that ‘state of mind is a question of fact’ to be determined on the ‘civil standard of proof (balance of probabilities.)’ The content of these paragraphs also indicates that ‘a person’s state of mind can only be proved by inference or deduction from the surrounding evidence.’

82. The Panel is also directed to paragraph 15, which indicates that if it is alleged that the Registrant’s conduct was racially motivated ‘the panel must investigate the context and intention to determine whether or not ‘racial motivation’ is established.’

83. It is submitted that the purpose behind the comments, ‘she will kick you in your head, but you might get upset as your Turban will get dirty’; or ‘she will roundhouse kick you in your head and knock your Turban off’ and ‘that maybe, ‘it’s from wearing their turban too tight’ were referable to race. This is because a Turban is a religious accessory associated with the Sikh religion. The Sikh religion originates from India and the majority of practising Sikhs are of a South Asian background.

84. It is further submitted that the comments were made in a manner which showed hostility and/or a discriminatory attitude to South Asian people who were practising Sikhs.

85. The Registrant has submitted that his intention when referring to Colleague A’s Turban was to indicate that as Colleague A was tall and their colleague Georgia was able to kick very high, she could potentially kick his turban off. In the event that the Registrant had wanted to refer to Colleague A’s height or Georgia’s kicking ability when participating in Mixed Martial Arts (MMA), the Registrant could have expressed himself very differently. There was no need to refer to Colleague A’s turban in order to make the point that the Registrant has claimed he intended to make.

86. Although the burden of proof remains on the HCPC, it is notable that the Registrant has offered no meaningful explanation as to what his intentions were when attributing the development of a brain tumour to Colleague A’s turban.

87. In her evidence, Colleague D indicated that as the Registrant had ‘always been close to the line’, as soon as he had asked whether Colleague A was on sick leave, she had anticipated that the comments that followed would not be pleasant.

88. It can be inferred that the Registrant’s unpleasant comment was racially motivated because the reference to Colleague A’s turban was superfluous, it was made out of the blue, and the Registrant had propensity for engaging in inappropriate behaviour including making sexual and/or racial comments. The Panel ought therefore to find particular 4 proved.

Decision on Facts

89. In response to the Allegation being read into the record, the Registrant had entered some limited admissions in that he agreed, on day one of the hearing, to the factual basis of particulars 1(a)(i) & (ii) and 1(d).

90. The Panel appreciated at this stage of the hearing the burden was upon the HCPC. The evidential standard is the civil standard of balance of probabilities. The Panel further appreciated that there was a distinction to be drawn between live testimony and that of ‘hearsay’ and during its deliberations it would take that into account.

91. The Panel sought and accepted the detailed advice of the Legal Assessor. During the hearing recess and within the period of the Panel’s deliberations the Legal Assessor gave further advice upon the issue of racial motivation. This was reference to the recent case of GMC and PSA v Gilbert [2025] 802 (Admin). The relevance of this case was that the Registrant, Mr Whittaker, had maintained that he did not intend his comments about the turban to be racist. Colleague A had interpreted them as being racially motivated. The case of Gilbert made it clear that it was not whether the person making, nor those receiving, the comment, should consider it to be racially motivated, it was an objective test. Therefore, the intent should not be taken into consideration when finding racial motivation but may be a factor at impairment or sanction stages.

92. In relation to the HCPC witness evidence, the Panel considered that all witnesses had been credible and their oral testimony had been consistent with their written statements.

Particular 1

Between February 2020 and July 2021, your communication and/or behaviour towards your colleagues was unprofessional in that;

(a) On 18 February 2020, you said to Colleague A:
(i) She [Colleague B] will kick you in your head, but you might get upset as your Turban will get dirty” or words to that effect and/or;

(ii) “Or she [Colleague B] will roundhouse kick you in your head and knock your Turban off” or words to that effect.

(b) On 18 February 2020, on multiple occasions you ‘blew a kiss’ to Colleague A.

93. The Panel noted that the stem of this Particular relates to communications and behaviour. In the Panel’s view the Registrant’s oral statements and gestures made were unprofessional. The use of the chosen wording is something that is further explored in relations to Particular 4. The mimicking of a kiss can be a term of endearment in some circumstances. In this instance, it was a gesture that could, and had, been interpreted as making light of the situation and undermining the sincerity of the apology.

94. The Panel noted the Registrant had admitted making those comments during the internal Investigatory process; in representations to the Investigating Committee; and during this hearing. In relation to the blowing of the kisses it was denied during the reading of the Allegation and during the Internal Investigation although it was admitted by the Registrant that blowing a kiss was something he sometimes did. Registrant denies that those comments and actions were racially motivated, which is covered by Particular 4.

95. The Panel noted the HCPC’s submissions and accepted the evidence of Colleague A as to how he had interpreted the Registrant’s comments and gestures. The Panel also had the testimony of the Investigating Officer and the notes of the internal interview in support of those limited admissions and written and oral statements. The Panel find these sub-particulars proven.

(c) On 03 July 2021, in relation to Colleague A’s sick leave, you told Colleague D:

i. That you hope they’re “off sick because they’ve got a brain tumour” or words to that effect;
ii. That maybe, “it’s from wearing their turban too tight” or words to that effect; and/or
iii. In relation to Particular 1c(ii), “wouldn’t that be so funny” or words to that effect.

96. The Panel noted that throughout the Registrant has denied making these comments to Colleague D.

97. The Panel had the written statement and oral evidence of Colleague D. Colleague D’s statements to the second Internal Investigation and HCPC were consistent. Those written statements were supported by personal notes of comments and incidents. That personal list of events was started by Colleague D when she first raised her concerns in mid-June about the Registrant’s attitude to the working rota and timing of Euro football games a few days later.

98. Colleague D had worked alongside the Registrant since 2018, first as a student and then as a colleague and so was conversant with the Registrant’s attitude and behaviour. The comments made about Colleague A some weeks later, were, Colleague D told this Panel, ‘the last straw’ and led to her raising this as an issue alongside her concerns about the June clash of work and football.

99. The Panel finds the evidence of Colleague D to be consistent and credible and so find this sub-particular proven to the requisite standard.

(d) On 26 July 2021, in front of an Assistant Radiographer and/or General Practitioner, you said to Colleague C that they needed to reject the x-ray they took as it was “rubbish” or words to that effect; and/or

100. The Registrant had admitted this sub-particular at the hearing. The Panel noted that during the Registrant’s second Internal Investigation interview is he recorded as denying that he used that word to describe the image.

101. The Panel had this former student’s written statement and the notes of her Internal Investigation interview as well as her oral testimony. Her account has been consistent, and her evidence is credible. The Panel therefore find this sub-particular proven.

(e) On or around July 2021, whilst performing an x-ray with student radiographer, Colleague G, in front of a patient and member of staff, you shouted at Colleague G after they provided you with the wrong equipment.

102. The Registrant’s position on this sub-particular is unknown as it appeared to have not been raised as an issue within the second Internal Interview.

103. The Panel heard from Colleague G, who was a former student mentored by the Registrant. The Panel had her written statement prepared for these HCPC proceedings, and two emails dated 28 July 2021 in which Colleague G sets out her concerns and an email of 18 May 2023 relating to amendments to her notes of meeting for the Internal Investigation.

104. Colleague G gave credible and consistent evidence of the events that took place within A&E. The matter was documented very soon after and the written evidence supports that oral evidence. The Panel therefore find this sub-particular proven.

Particular 2

2. On or around July 2021, you did not delegate appropriately and/or manage risk in that you:

(a) Asked Student Radiographer, Colleague C to perform tasks without supervision that they had not been trained to do, specifically:
i. Placing Service Users on Oxygen;
ii. Moving Service Users back to their cubicle;
iii. Removing tubes from and/or placing tubes on Service Users; and/or
iv. Managing Intravenous Fluids.

105. In relation to the stem of this Particular the Panel noted that this situation arose out of the Registrant’s oversight of this student in situations which may have been new to her. The Registrant had knowledge of the range of hands on work this student had undertaken as he had mentored her previously and he also was aware of the range of matters which a first-year student would be expected to know or to do. The Panel considered the aspects of delegation and managing risk in such a situation to be the Registrant’s responsibility in such a situation.

106. The Panel noted that throughout the Registrant has denied these events happened.

107. The Panel had the written and oral evidence of Colleague C relating to these events within a shift which the Registrant was supervising her. The evidence produced at the time of the events and at this hearing are consistent. Colleague C’s recollections of these events were clear and credible. The Panel therefore find this Particular proven.

3. Between 16 June 2021 and 18 June 2021, you did not work in partnership with Colleague D in that:

a. On 16 June 2021, Regarding watching the Euro Football Match at work, you told Colleague D that:

I. She would be “fine on her [Colleague D’s] own” or words to that effect;
II. You would be “definitely watching whatever happens” or words to that effect; and/or
III. “Ok, well if you’re saying I can’t watch it I’ll fucking ring in sick” or words to that effect and then you walked off

b. On 18 June 2021, You did not assist Colleague D with x-raying dementia patient, Service User A; and/or

c. On 18 June 2021 When Colleague H asked whether you would be assisting Colleague D you did not provide any assistance to them.

108. The Panel accepted that the intention of working in partnership within the stem included working in a cooperative manner. The Panel noted that the suggestions throughout this allegation is that the Registrant was not working in a collegiate and helpful manner as would be expected of someone sharing a shift with a co-worker.

109. The Registrant’s position is that he was only keeping half an eye on what was happening on the TV and that he did not make Colleague D do all the work. The Registrant’s love of football has been referenced by him.

110. The Panel noted that the extent of the investigation of this incident was limited to those directly involved in verbal exchanges and there were no third parties to provide evidence of the extent and degree to which the Registrant was watching football rather than undertaking tasks that day. The evidence of Colleague D was that the Registrant undertook some X-Rays during the half time break but had watched the football when there was play. She accepted that once the football match was over, the Registrant had started to do X-rays. She told the Panel that it would have been of great assistance to have had his support with dealing with service users who, for instance, were on trolleys.

111. The Panel had recourse again to the contemporaneous personal notes made by Colleague D, which were started by her when the rotas for that day were announced. The Panel accepted the accuracy and thoroughness of this contemporaneous note together with the evidence submitted since, being the record of interview during the second Internal Investigation and the written statement produced for this hearing.

112. Colleague D’s evidence included her reporting what Colleague H had said to the Registrant about giving Colleague D a hand. The Panel noted that Colleague H had been interviewed as part of the internal investigation however it does not have a copy of the notes of that interview.

113. The Panel has accepted the evidence of Colleague D in relation to those events which took place on the 16 and 18 June 2021. The Panel finds these sub-particulars proven.

4. Your comments in Particular 1a(i-ii) and/or 1c(ii) were racially motivated.

114. The Registrant maintained that he used the knocking-off of Colleague A’s turban as an indication of how high the student Radiographer Georgia could kick. Colleague A confirmed to the Panel that he was a tall person. The Registrant maintained that the Registrant’s comment was meant as a joke, and that once he appreciated that it had caused offence, he had tendered an apology. The Registrant appreciated that the turban was a poor choice to indicate how high the student Radiographer could kick: had it occurred on a building site, for instance, he would have used a hard hat as an example instead.

115. The Panel heard from Colleague A that he considered the Registrant’s apologies as insincere. He stated that the Registrant’s tone when uttering these words was aggressive. Colleague A did not consider that this was said or meant as a joke. He was unable to consider this wording as anything other than an insult to his religious beliefs.

116. The nature of the relationship between Colleague A and the Registrant was at a variance. Colleague A did not consider the Registrant as a friend and had not socialised with him outside work. As far as Colleague A could recollect, he had not played football whilst he worked at the Trust and not with the Registrant. Colleague A emphasised that his main area of practice was in the CT department, and it was an infrequent event for him to work in Xray with the Registrant.

117. The Registrant however considered that he and Colleague A had a close working relationship and had played football outside of the workplace. He considered that Colleague A was someone who could take a joke.

118. The Panel noted that the student Radiographer, Georgia, or any other person nearby who may have heard the comments, had not been interviewed. There was therefore no independent observation about the tone of delivery nor the wider context.

119. The subjective views of the emotions and intent of the Registrant and Colleague A at that time can be put to one side at this fact-finding stage. In relation to the objective assessment of whether the comments made were racially motivated, as set out in the case of Gilbert, the Panel considered what a bystander would think of those comments.

120. In the Panel’s view, anyone hearing such comments being made about a religious symbol, which a turban is, would have understood them to have a clear racial intent. The Panel therefore find those comments as set out in 1(a)(i) and (ii), to be racially motivated.

121. The Panel had heard from Colleague D in relation to the further references to a turban as identified in 1(c)(ii). The Panel has accepted Colleague D’s evidence in relation to this matter. In the Panel’s view a further reference a year later when the Registrant was aware that there had been an internal complaint and a referral to the HCPC about such comments was beyond ill-judged. In the Panel’s view at this time in 2021 the Registrant was clearly aware that there could be no further misinterpretation of his comments. In the Panel’s view the Registrant’s comments were objectively racially motivated and also subjectively too.

122. The Panel therefore find the reference to a turban when speaking to Colleague D, as identified within 1(c)(ii), to be racially motivated.

HCPC submissions on grounds

123. The HCPC submitted that the matters found by the Panel constituted misconduct. In this regard the Panel was directed to the cases of Royland and Nansi which identified that misconduct is a matter which should be considered as serious, and such that fellow practitioners would consider to be deplorable.

124. The HCPC directed the Panel to the relevant HCPC Standards. The material period of time in this case is February 2020 and June and July 2021, when the alleged conduct took place. Therefore, the standards which applied to the Registrant at this time were the HCPC Standards of Conduct Performance and Ethics 2020. Whilst the HCPC commends the whole of the standards to the Panel those sections which are, in the HCPC's view, relevant are:

Standard 1 - (promote and protect the interests of service users and carers)
1.5 You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide.
Standard 2. Communicate with service users and carers
2.1 You must be polite and considerate.
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 4 - Delegation, oversight and support
4.1 You must only delegate work to someone who has the knowledge, skills and experience needed to carry it out safely and effectively.
4.2 You must continue to provide appropriate supervision and support to those you delegate work to.
Standard 6 - Manage risk
6.1 You must take reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible. Colleague D you did not provide any assistance to them.
6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
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.

Decision on Grounds

125. The Panel sought and accepted the Legal Assessor’s advice on the matters to be considered at this time. In her advice she emphasised that the threshold for misconduct is, as stated by the HCPC, serious misconduct or conduct that a fellow practitioner would consider deplorable. The Panel should consider all those matters which it has made a finding upon individually and collectively to decide whether they constitute misconduct. The Panel was reminded at this time to consider all the evidence before it and that the decision is one for the Panel’s professional judgment.

126. The Panel appreciated that at this time there was no burden upon the HCPC and that it should again, at this stage, give the appropriate weight to the untested and unchallenged information supplied to the Panel by the Registrant so far as it related to this issue of conduct.

127. In relation to the matters which the Panel has made findings of racial motivation, namely 1(a)(i) & (ii) and 1(c)(ii), involving Colleagues A and D, the Panel concluded that these were clear breaches of Standards 1.5, 2.1 and 2.5. These were racially motivated comments and was conduct which fellow practitioners would consider as deplorable. The Panel therefore consider this to be misconduct.

128. In relation to Particular 1(b), and the allegation that the Registrant blew kisses as part of his apology for making a racially motivated comment, in the Panel’s view, this was an intentional attempt to undermine the sincerity of his verbal apology. Within any context the blowing of a kiss was inappropriate within the workplace. Within this context it was a gesture which underlined the fact that the Registrant did not accept Colleague A’s degree of outrage, concern and upset. It was demeaning Colleague A’s reaction to the Registrant’s comments and a gesture that undermined any honesty or sincerity of the apology. This was, in the Panel’s view breach a breach of standards 2.1 and 2.5 and also amounted, within context of his racially motivated comments, a serious breach. The Panel has concluded that this amounts to misconduct.

129. In relation to the Registrant’s further interactions with Colleague D, in July 2021, identified within allegation 1(c)(i) and (iii), the Panel considered that these were further examples of totally inappropriate comments. The statement made by the Registrant that he hoped that Colleague A would be ‘off sick because they’ve got a brain tumour’ was a horrible thing to say in any situation. The further comment ‘wouldn’t that be funny’ emphasised the racial nastiness of his observation that it could be from wearing a turban too tight. These comments were internally hurtful and spiteful and when taken together were racially tainted. Such comments would be considered deplorable in any circumstances and are certainly unacceptable about a colleague and within the workplace. The Panel considered that this was conduct that supported serious breaches of Standards 1.5 and 2.1. The Panel find that these statements amount to misconduct.

130. In relation to sub-particulars 1(d) and 1(e), the Registrant’s actions were disrespectful and undermining of the two student colleagues he was addressing his observations and actions towards. There were professionals and public observers who would have been rightly surprised and alarmed by the Registrant’s reactions to his junior colleagues’ practice. In the Panel’s view the Registrant’s actions were in breach of standards 1.1, 2.1, 2.5, and 4.2 and amounted to misconduct.

131. In relation to Particular 2 and its sub-particulars, there have been clear breaches of the Registrant’s responsibility to manage risk and a failure to exercise oversight and appropriate supervision. These incidents put the student, and the service users placed in her care at risk. The student had stated that this happened on many occasions, and whilst she had challenged the instructions she had been given, the Registrant had insisted that she undertake tasks for which she was neither trained nor qualified to do. The Registrant is recorded as saying that this student was always on the back foot and pushing against instructions. However, in relation to matters which could have put service users at risk, this student was right to question and challenge the delegation of such tasks. The Panel noted that Colleague D had stated that the Registrant liked to mentor students as it meant that he could get them to do all the work. The evidence is that there were many occasions, not only on a particular day in July, but multiple times during this period that this student had been asked to work outside of her scope of practice. This had the potential to result in service user harm. The Panel consider that standards 2.1, 2.5, 4.1, 4.2, 6.1, and 6.2 have been breached. The Panel considers that this amounts to misconduct.

132. In relation to Particular 3, relating to the Registrant’s lack of participation whilst watching the Euros football match, the Panel consider that this a failure to work in a cooperative and collegiate manner. If he had been available to help the patient involved would have had a better experience by two radiographers assisting together. The Registrant’s stated intention of not coming to work if he cannot watch football indicated a lack of professionalism. It was placing his personal indulgence of watching football above his professional responsibilities to colleagues and service users. This demonstrated a failure to work collaboratively. The Panel consider that this amounts to a breach of standards 2.1, 2.5, 6.1 and 6.2 and amounts to misconduct.

133. All of the matters which have been found by the Panel to constitute misconduct a breach of standard 9.1 relating to a failure to uphold and maintain the public’s trust and confidence in the profession. Members of the public would be rightly concerned at the Registrant’s behaviour.

HCPC submissions on impairment

134. The HCPC submitted that the Registrant was impaired on both the personal and public components of the Panel’s considerations. The Panel was taken by the HCPC to the case of Meadow v GMC in which it was stated that the Panel should look forward and not back, but in doing so, the Panel will take into account the way in which a registrant has acted in the past.

135. In relation to the personal component, the Registrant has expressed in writing his regret at his comments and their impact on Colleague A. He has stated that he was open to a discussion with Colleague A, but this offer of mediation was refused by Colleague A. With this exception, the Registrant has not expressed an apology, or regret nor shown any remorse for his behaviour and its impact on his colleagues, students and service users.

136. The HCPC submitted that the Registrant has not shown any insight into his behaviour, and there is nothing to show any reflection upon his behaviour. There is no evidence of any courses undertaken, nor any steps to minimise the impact of his previous failings to ensure there would be no repetition in the future.

137. In relation to the public component, the Panel should take into account the principles identified in the cases of Grant and Cohen. The Panel was directed to the following:

‘In determining whether a practitioner’s fitness to practise is impaired by reasons 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 proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.’

138. There are three aspects to the public component: - i) the need to protect service users, ii) maintaining professional standards and iii) public confidence.

139. At paragraph 131 of the Panel’s written decision, the Panel determined, in respect of Particular 2 that ‘there have been clear breaches of the Registrant’s responsibility to manage risk and a failure to exercise oversight and appropriate supervision. These incidents put the student, and the service users placed in her care at risk.’ It is submitted by the HCPC that as the Registrant has not demonstrated that he has adequately remediated, he remains a risk to service users.

140. In addition to this, a finding of impairment on the public component is necessary to maintain professional standards. The Panel has determined that the Registrant has failed to work in partnership, failed to manage risk and failed to act in a way that justifies the public’s trust and confidence. These are core aspects of the professional standards associated with the Registrant’s role. The public confidence in the profession and the regulator would be undermined if a finding of impairment on the public component were not made.

Decision on Impairment

141. The Panel heard and accepted the HCPC’s submissions and sought and accepted the Legal Assessor’s guidance. The Panel also had recourse to the HCPTS Practice Note relating to ‘Fitness to practise: impairment.’

142. The Panel noted that it was making a decision on the Registrant’s ability to practise safely today. It is current impairment. The Panel at this stage is looking at two components of that fitness to practise, the personal and the public.

143. In relation to the personal component, the Panel looked at the Registrant’s misconduct from the perspective of, is it remediable, is there evidence that it has been remediated, and whether, going forward, there is any likelihood of that misconduct being repeated in the future. In order to do this the Panel considered all information it has about the Registrant’s former and current practice. The Panel accepted that there may have been other documentation sent by the Registrant to the HCPC at various stages through the process. The documentation that the Registrant has supplied to this Panel directly are:

• The Registrant’s response to the Investigating Committee Panel dated September 2023, which focuses upon the incident in February 2020 and the impact of the subsequent referral to the HCPC. The Registrant expresses his regret, remorse and apology for making those comments in February 2020.
• A statement from the Registrant prepared for this Panel at the end of day one of the hearing in which the Registrant again focuses upon the incident in February 2020 and the measures taken to apologise and the steps taken to explain that he meant it as a poorly worded comment and not meant ‘to mock or make fun’.
• Email of 3 March 2025 relating to the admission of papers for this hearing and providing an explanation as to why the Registrant and his representative are unable to further engage in the hearing. He again offers an apology for his non-attendance. He states within this email that he is not currently working as a radiographer and at the time of writing expressed the intention of not using his registration in the future.
• Three professional references, all of whom speak highly of the Registrant:

i. TN (dated 14 February 2025) who worked previously with the Registrant, and who now considered the Registrant as a friend.
ii. BS (dated 27 February 2025) who trained and worked under the Registrant during the period 2018 to 2021, and who described the Registrant as a ‘brilliant’ teacher and would make a in the future a good student lead.
iii. GH (dated 4 March 2025) who is a Radiographer Lead and has known the Registrant professionally since February 2020. She states that the Registrant had thought of Colleague A as a friend and that in her view the accusation made did not fit with the Registrant’s character. If the apology had been accepted then matters could have ended there. She states that she considers that the subsequent investigation was handled very poorly.

• [redacted] and covering letter (dated 4 March 2025) from LH Professional Lead for Imaging Services, who had joined the Trust in January 2021. LH had direct involvement with the Registrant from that time till he left the Trust at the end of 2021. She explains the circumstances at the time [redacted]. She confirmed that [redacted] she understood that the Registrant and Colleague A had previously played football together.

144. The Panel noted that there was unfortunately nothing before it from the Registrant relating to his professional practice since leaving the Trust, nor details of any current employment which required his registration with the HCPC or any employment details, registered or unregistered.

145. The Panel considered that the Registrant’s misconduct was capable of being remedied. This remediation could have been evidenced by him through further reading and learning; thought and reflection; expression of apology and demonstration of remorse, regret; and evidence of full insight into how his behaviour had impacted on others.

146. The Panel noted from the information supplied by LH, that whilst it appeared that there were two distinct periods of unprofessional behaviour there was a link from the first to the conduct displayed during the second period. The Panel noted that between the first internal investigation and the second, the Registrant’s statement about his relationship with Colleague A had changed. In the first interview he is recorded as stating that he had been misunderstood and was seeking to personally apologise to Colleague A and go through mediation. In the second interview he is recorded as stating ‘I’ve no interest in him. He can do what he wants to do.’ The whole second interview accords with the Registrant’s statement that at this time in the summer of 2021 he was in a bad place.

147. In relation to those very real concerns about his behaviour and wellbeing, as identified by the Registrant and LH in 2021, the Panel has no evidence that the Registrant has since been able to work professionally without further cause for concern.

148. The Panel noted the Registrant’s attitude towards students had deteriorated and resulted in complaints. Those students were at a formative stage in their process of qualifying. The Registrant’s behaviour towards them could have resulted in their studies being taken no further. Student’s confidence would have been undermined by his acts of shouting at them and calling their performance as ‘rubbish’. In relation to the unprofessional behaviour displayed by the Registrant in June and July 2021 there is nothing from him. No apology, no evidence of insight into the impact his conduct had. There is no evidence of any further training or learning that would demonstrate that he had remediated his conduct.

149. The Panel further noted that there is no evidence that the Registrant had kept his knowledge and skills up to date. No evidence of a Personal Development Plan, Continuous Professional Development (CPD) plan or mandatory update training. There is nothing before the Panel to support the position that the Registrant had learnt from his former failings and had successfully addressed those such, that going forward there would not be a repetition of the misconduct in the future. There is no reflective piece of writing in which the Registrant identifies the impact his behaviour had, on not only students, but colleagues, such as Colleague D, and also the wider impact on service user and fellow professionals. The Panel has therefore concluded that there is current impairment on the personal component.

150. In relation to the public component, the Panel considered that the Registrant’s behaviour would be a matter of great concern to the public. His lack of management of students which could have put service users at risk plus his demonstration of unacceptable conduct to colleagues would bring the standing of the profession into disrepute. The Panel considered that the Registrant had failed to uphold the standards of his profession and would undermine the public confidence in him, his profession and the regulatory process.

HCPC Submissions on Sanction

151. The HCPC commended the HCPTS Sanctions Policy to the Panel. Whilst the HCPC did not propose any particular level of sanction the Panel may find it helpful to take into consideration the following factors.

152. In terms of mitigating factors, the fact that the Registrant has expressed some remorse for his actions in February 2020 and has repeated his apology for such behaviour. In that regard the Registrant has demonstrated insight into the impact of those comments.

153. In relation to aggravating factors the Panel should note that there has been a lack of remediation of his misconduct and no evidence of any steps taken specific to addressing those failings. The Registrant has not demonstrated any insight into those events which took place in June and July 2021. As stated in the Panel’s findings on impairment, there is no reflective piece of writing relating to his previous conduct. Further, there was a pattern of unacceptable behaviour over a period of time including repetition of offensive comments and failure to provide appropriate support for junior members of staff.

Decision on Sanction

154. The Panel noted the HCPC’s neutral position on sanction and the factors which in the HCPC’s view are aggravating and mitigating features in this case. The Panel sought and accepted the advice of the Legal Assessor and referred to the Sanctions Policy issued by the HCPTS.

155. The Panel appreciated that when considering the imposition of a sanction the Panel is balancing the interest of service users, the wider public and the Registrant. Sanctions are not to be a punishment, but a restriction to provide protection to the public from those not fit to practise. The Panel noted that in imposing a sanction, it should be the least restrictive possible that would ensure service user protection and serve the wider public interest.
156. The Panel undertook an analysis of all the information before it to identify elements which support any particular level of sanction.

The Panel identified the following mitigation factors:

• Expressions of remorse and apology in relation to Colleague A, made on several occasions.
• Insight into that interaction in February 2020. The Registrant had taken steps to understand the importance and significance of Colleague A’s religious symbols.
• The Registrant had offered an apology instantly although at the time it may not have been as sincere as it could have been.
• The Registrant had fully engaged with the Trust’s internal investigations.
• Registrant has engaged with the HCPC process.
• The Registrant had accepted and served out his written warning period issued by his employer following the incident in February 2020.
• [redacted]
• [redacted]
• [redacted]
• There was evidence that before these events the Registrant was considered a good practitioner.
• There is evidence that he was well liked by students generally prior to these events and thought to be a good educator.
• This is the first time the Registrant has been before his regulator.
• Had been willing to undertake mediation but this had been refused by Colleague A.

The Panel also identified the following aggravating factors:

• There was limited evidence to demonstrate that the Registrant has understood the impact and ramifications of his conduct.
• No evidence of steps taken to remediate his conduct, such as training or reading.
• No evidence of the Registrant maintaining his knowledge or skills to enable to him to return to safe practice.
• No reflection upon his conduct in relation to those matters involving colleagues other than Colleague A.
• Failure to work collaboratively with colleagues and placing service users at risk.
• Whilst the Panel has accepted that the Registrant did not, in 2020, intend his comments to cause offence, uttering those objectively racially motivated comments in front of others was unacceptable.
• The reiteration of those racially unpleasant comments to Colleague D, [redacted].

157. The Panel considered the terms of the sanctions open to it in ascending order. The Panel was aware that there being a finding of misconduct the full range of sanctions set out in section 29 of the 2001 Order were open to it.

158. The Panel considered that mediation would not provide a solution in this instance. The situation that would have been appropriate for this measure was between the Registrant and Colleague A. Offers of mediation had already been rejected by Colleague A and there was nothing to indicate that his position on this had changed. In relation to the wider instances of the Registrant’s interaction with students and other colleagues, mediation was not appropriate nor practicable.

159. In relation to taking no further action the Panel considered that this was not a case suitable for such a step. The making of racially motivated comments and exposing service users to risk through lack of supervision and management of students would send the wrong message to fellow practitioners and the wider public.

160. In relation to the imposition of a Caution Order the Panel had regard to the four elements identified in paragraph 101 of the Sanctions Policy which states:
A caution order is likely to be an appropriate sanction 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.

161. In this instance there has been repetition of the comments complained of and there is only limited insight. There is no evidence of appropriate remediation, and the matters involved are not minor in nature. In relation to repetition in the future, the Panel noted the unusual and complicated circumstances pervading in the summer of 2021 had led to the Registrant’s behaviour. Having that set of personal and professional circumstances again in the future is unlikely. Given the Registrant’s experience of going through this stressful HCPC process the Panel considers that going forward the Registrant is unlikely to do something similar again. Notwithstanding this, the Panel considered that a Caution Order would not be appropriate or proportionate and would be an insufficient sanction in the wider public interest.

162. The Panel moved on to consider the imposition of a Conditions of Practice Order. The Panel took into account the guidance within paragraph 106 of the Sanctions Policy. After careful consideration the Panel discounted this level of sanction for the following reasons:

• There is very limited insight.
• No appropriate, proportionate, realistic and verifiable conditions can be created when there is no information before it as to whether the Registrant would be willing to accept and comply with any conditions.
• Difficult to adopt such a measure where attitudinal issues have been identified.
• The last stated intention of the Registrant was that he did not wish to utilise his registration, however the Panel appreciated that this may have been a statement made as a result of his then state of mind. In that regard the Panel noted that there had been, and continued to be, some form of engagement by the Registrant during these proceedings, even though he had not personally attended.

163. The Panel also took into consideration the further guidance at paragraph 113 which states:
Whilst conditions of practice may be imposed on a registrant who is currently not practising, before doing so, panels should consider whether there are equally effective conditions which could be imposed and which are not dependent on the registrant returning to practise. For example, not all training, reflection or development requires a registrant to be in practice or have a workplace-based mentor.

164. The Panel noted that its findings in relation to the personal component could be addressed through this type of conditions it discounted this option as it had nothing from the Registrant as to whether he would accept and comply with such a set of conditions. Further, in relation to the wider public interest the Panel concluded that this measure would not be sufficient, nor would it act as a deterrent to fellow practitioners not to act in the same way.

165. The Panel then considered whether a period of suspension would be appropriate and proportionate in the circumstances of this case. In reaching a decision on this the Panel took into account the terms of paragraph 121 of the Sanctions Policy. The Panel considered that the four elements identified were applicable albeit not fully engaged. These concerns do represent a serious breach of the standards of conduct and performance. The Registrant does have some insight, albeit limited to one aspect of the wider Allegation. There is some evidence through the Registrant’s engagement in the internal and HCPC processes that he is willing to resolve his failings. He has, for instance, offered to give a personal apology and to undertake mediation. Therefore, the issues are, as explained above, unlikely, in the Panel’s view, to be repeated.

166. Further, there is evidence that before these events the Registrant was considered to be a good practitioner and an able and enthusiastic trainer. There is nothing to indicate that once there has been full remediation of his past failings this could not be the situation again at some point in the future.

167. In considering whether to adopt the sanction of suspension, the Panel gave consideration to the next higher level of sanction, namely strike off. In the circumstances of this case where there has been apology and remorse, albeit limited, and there had been engagement and some insight which could be developed the Panel considered that this measure would be too harsh. Further, as stated previously there are indications that the Registrant can remediate and return at some point to practice. If this is the case, then it would not be in the wider public interest to lose this practitioner.

168. The Panel has therefore concluded that a period of suspension is the appropriate and proportionate measure. This will provide the requisitely level of service user protection and will be sufficient in the wider public interest to uphold the reputation of the profession. The Panel considered that there was considerable work to be done by the Registrant to prepare himself to return to safe practice and a period of less than nine months would be insufficient in the Panel’s view. The Panel has therefore imposed a Suspension Order for a period twelve months, which is the maximum period allowed, with the restriction that the Registrant is not allowed to request an early review before the expiration of nine months.

169. The Panel appreciated that by imposing this sanction upon the Registrant it would have not only a professional impact but also a financial one. The Panel has no information from the Registrant in relation to his financial situation or his current working arrangements, however, the Panel considered that the public interest in this matter outweighed those of the Registrant in this regard.

170. The Registrant should be aware, that during his period of suspension he has the option to do nothing, a course that may subsequently lead to him being permanently removed from the Register. Alternatively, he can take forward work towards personal remediation of his former failings and be able to demonstrate an ability to return to safe practice as a Radiographer. The Registrant should understand that the suspension period imposed by this Panel today does not just come to an end and expire. The Order will be reviewed. That review will not be a rehearing of any of the matters engaged in this hearing. It will be a review of the Registrant’s then capabilities. In other words, is he able at that review to demonstrate that he is committed and able to return to practise.

171. Therefore, either on his application for an early review because he has the requisite evidence of remediation, or by way of mandatory review just before the expiration of the substantive Suspension Order in twelve months’ time, there will be a further hearing. In order to assist in this process of review the Registrant should carefully consider providing the following to that reviewing panel next summer (or sooner at his request):

• Reflection piece of writing addressing all aspects of the allegations. This will include reflection upon matters such as racial discrimination; management of risk; working collaboratively; and demonstration of full insight into the impact of his actions upon others.
• Professional updates and evidence of keeping his knowledge and skills up to date.
• Evidence of any courses attended, and any personal skills or qualifications gained.
• It would be beneficial to the Registrant to personally attend this review hearing either alone or with a supporter.

• [redacted]

ORDER: That the Registrar is directed to suspend the registration of Mr Nicholas Whitaker for a period of 12 months from the date this order comes into effect.

This Order will come into effect on 11 July 2025 and will expire on 11 July 2026, if no appeal is made.

Interim Order

Service

1. The HCPC reminded the Panel that the Notice of Hearing sent to the Registrant on 27 March 2025 included reference to the fact that if a sanction of Conditions of Practice, or Suspension, were imposed under Article 29 of the 2001 Order, an interim order might be sought. It was therefore submitted that there had been good service and that this matter should proceed to be considered by the Panel in the Registrant’s absence.

The HCPC Application

2. The HCPC made an application for an Interim Suspension Order for a period of eighteen months. This application was made to ensure that the Registrant would be prohibited from practising during the twenty-eight-day appeal period, and should there be an appeal, the order would be sufficiently long to cover the time within which such appeal would be determined.

3. In the HCPC’s view, an order is necessary in this instance, where there have been findings of serious misconduct such that a Suspension Order was considered by the Panel as the proportionate and appropriate sanction. One of the reasons why the Panel considered this was the correct level of sanction related to the failure to work in partnership with junior members of staff, something which had the potential for service user harm.  It was submitted that an interim order was not only necessary in order to provide public protection, but it was also required in the wider public interest given the nature of the racial comments made by the Registrant, comments which would undermine the public confidence in the profession.

Decision

4. The Panel sought and accepted the advice of the Legal Assessor. She advised that under Article 31(1)(c) the Panel has a discretionary power to impose an interim conditions of practice order or interim suspension order where there has been a determination under Article 29(5)(b), the imposition of a Suspension Order.

5. The Panel noted that an Interim Order can be imposed on one of three grounds of being necessary for public protection; or in the Registrant’s interest; or the wider public interest. The application by the HCPC is on the basis of public protection and the wider public interest.

6. Within the guidance in the HCPTS Sanctions Policy a situation that would support the imposition of an interim order included that where:

‘the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.’

7. In the Panel’s view, this is the situation in this case, where the basis for the Panel decision to impose a suspension order was that the public would be rightly concerned if the Registrant were allowed to continue in practice after the Panel’s findings in this case.

8. The Panel has concluded that in this case there was a risk of repetition in the absence of evidence of full remediation and issues concerning his current fitness to return to practice were resolved. The Panel therefore considered that an interim order was necessary in such a situation.

9. The Panel considered that the imposition of an Interim Conditions of Practice Order would not be appropriate nor proportionate for all the reasons set out in the Panel’s final determination. Further, there was no evidence that the Registrant would comply with any interim Conditions of Practice Order imposed.

10. The Panel has therefore concluded that it would grant the HCPC’s application for an Interim Suspension Order. The Panel also concluded that the period of that notice should be the maximum that can be imposed as there is no certainty as to how long any appeal process will take. The Panel therefore imposed an Interim Suspension Order for a period of eighteen months.

11. In imposing an interim suspension order the Panel consider the impact upon the Registrant but the Panel concluded that the professional and financial impact was outweighed by the public interest.

The Panel makes an Interim Suspension 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.

History of Hearings for Nicholas Whitaker

Date	Panel	Hearing type	Outcomes / Status
11/06/2025	Conduct and Competence Committee	Final Hearing	Suspended
03/03/2025	Conduct and Competence Committee	Final Hearing	Adjourned part heard