​​Hugo Barroso​

Preliminary Matters:

The Registrant’s response to the Allegation

1.    When given an opportunity of responding to the Allegation, on behalf of the Registrant, Dr Mulligan stated that each element of the conviction (that is to say the entirety of Particular 1) was admitted.

2.    The Panel, acknowledging that it had a discretion whether to accept the Registrant’s admission as proving Particular 1, decided that it should accept that admission.  The factual elements of the case being proven, the remainder of the first stage of the hearing was concerned solely with the question of whether the established conviction is currently impairing the Registrant’s fitness to practise.

Conducting the hearing partially in private

3.    Before the Presenting Officer opened the case, Dr Mulligan informed the Panel that in the presentation of the Registrant’s case there would be mention of both his health and of family matters.  When offered the opportunity to make representations on behalf of the HCPC, the Presenting Officer stated that she did not wish to do so.

4.    Having taken the advice of the Legal Assessor, the Panel concluded that it would conduct those parts of the hearing during which there would be mention of the Registrant’s health or family in private.  The Panel was satisfied that such a direction was necessary to protect the Registrant’s private life.

Background:

5.    The Registrant is registered with the HCPC as a Practitioner Psychologist.  He is employed as a Clinical Psychologist by the Greater Manchester Mental Health NHS Foundation Trust (“the Trust”), having commenced that employment in July 2021.

6.    On 10 August 2023, the Registrant referred himself to the HCPC.  By his referral he disclosed that he had been charged with the offence of theft specified in Particular 1(a) of the Allegation.

7.    The circumstances relating to the criminal offences were as follows:

•    On 30 May 2023, the Registrant found a mobile telephone in a lavatory cubicle in the Middleton Arena.  Included in the mobile telephone case was a Mastercard.

•    The same day, the Registrant used the Mastercard to buy in different stores a toaster and a PlayStation controller.

•    The Registrant was arrested on 29 July 2023.

•    The Registrant pleaded guilty to the three offences with which he was charged (and which are specified in Particulars 1(a), (b) and (c)).  The sentence imposed by the Magistrates’ Court was a fine of £438.00.  The total of the financial penalty resulting from the convictions was £698.00.

8.    An internal Trust disciplinary process concluded on 4 March 2024 and resulted in a finding of gross misconduct (on the basis that the behaviour had the potential to bring the Trust into disrepute) and the issuing of a first and final written warning which was directed to remain on the Registrant’s record for 12 months.

Submissions made to the Panel on impairment of fitness to practise

9.    On behalf of the HCPC, the Presenting Officer submitted that the Registrant’s fitness to practise is impaired in respect of both the personal and public components.  She submitted that his behaviour fell far short of what should be expected of a registered health professional, breaching, as it did, Standards 9.1 and 9.2 of the HCPC’s Standards of conduct, performance and ethics.  With regard to the personal component, she submitted that the issue was one of behaviour that could be categorised as attitudinal and behavioural, and for that reason was conduct that would be hard to remediate.  She urged the Panel to consider whether it could be said that the Registrant had sufficient insight to result in a finding that he had achieved full remediation.  With regard to the public component, the Presenting Officer submitted that the matter was so serious, public confidence in the Registrant’s profession and the regulation of it would be diminished were there to be no finding of current impairment of fitness to practise.

10.    The bundle of documents that had been provided to the Panel in advance of the hearing included some 90 pages that had been provided by the Registrant.  It is not intended to refer extensively to these documents, but it is relevant to indicate that they included:

•    An Occupational Health Report dated 10 October 2023.
•    A letter from the Registrant’s clinical supervisor.
•    Two reflective statements prepared by the Registrant – one headed “Offence”, the other, “Impact on Profession and Public Confidence”.
•    Character references.
•    Training records.

11.    On behalf of the Registrant, Dr Mulligan made submissions to the Panel, explaining the background to the offences being committed and the steps taken by the Registrant since that time.  The Registrant gave evidence under affirmation in which he explained the same matters and answered questions put to him by the Presenting Officer and the Panel.  

Decision on Impairment:

12.    The Panel accepted the advice it received from the Legal Assessor and closely followed the guidance contained in the HCPTS Practice Note entitled, “Fitness to Practise Impairment”.

13.    The Panel began by addressing the factors identified in paragraphs 13 and 15 of the Practice Note, finding the guidance relating to mitigating and aggravating factors outlined in the Sanctions Policy useful in doing so.  The conclusions of the Panel were as follows:

•    This is not a case concerning the Registrant’s clinical performance, and therefore it is not one where it would be determined that the Registrant has in the past acted so as to put service users at unwarranted risk of harm.

•    This is a case in which the Registrant’s actions breached a fundamental tenet of his profession; the fact that the offences did not arise in the course of the Registrant’s practice does not detract from that fact, and the departure from expected professional conduct was a significant one.

•    Similarly, this is a case which demonstrates that in the past the Registrant has acted dishonestly, albeit that the Panel recognised that it was an isolated occurrence.

•    The inevitable consequence of the Registrant’s offending is that there would be a negative impact on public confidence not only in the Registrant as an individual, but also in his profession.

14.    In the judgement of the Panel, the all-important question to be decided in relation to the personal component was whether it could be said that there is a low risk of repetition.  In his evidence before the Panel, the Registrant realistically acknowledged that it can never be said that there is no risk of an event being repeated.  The sensible question is whether the risk of repetition is sufficiently low to enable a Panel to say that there is no appreciable risk of it happening.  In reaching this decision, the Panel accepted the submission made by the Presenting Officer that when the issue is one of dishonesty, the behavioural and attitudinal aspects of that behaviour mean that it is difficult for there to be confidence that dishonest behaviour will not be repeated. However, having carefully considered all of the available information, the Panel concluded that there is no appreciable risk of repetition. The reasons for this decision are as follows:

•    The Panel did not lose sight of the fact that each of these offences was an offence of dishonesty.  However, the background to the Registrant’s dishonesty was health. 

•    It was of course, the Registrant’s responsibility to manage his health in a way that would have prevented him from behaving as he did.  However, looking forward as the Panel must do to answer the impairment question in issue, the Panel is satisfied that the Registrant has achieved a level of insight, has expressed such a degree of remorse and shame, and put in place sufficiently robust measures that there can be a degree of confidence that, were he again to experience impaired health, the result of it would not be as it was in May 2023.

•    The Panel was of the view that the evidence of the steps taken by the Registrant was such that there was nothing further it would have been possible for him to do to demonstrate remediation leading to an imperceptible risk of repetition.

15.    As a consequence of the finding that there is not an appreciable risk of repetition, the Panel has concluded that the Registrant’s fitness to practise is not currently impaired in relation to the personal component.

16.    Different considerations apply to the public component.  In reaching its decision on this issue, the Panel paid close attention to the guidance contained in paragraphs 32 to 35 inclusive of the Practice Note.

17.    The finding already explained in relation to the personal component has the consequence that the Panel does not consider that a finding of public component impairment of fitness to practise is required to address a need to protect service users.  However, the Panel did find that fair-minded members of the public, while recognising that the events occurred as long ago as 2023 and are highly unlikely to be repeated, would nevertheless expect the seriousness of a Practitioner Psychologist being convicted of these offences to be marked by the professional regulator.  Furthermore, the Panel is satisfied that it would be failing in its duty to declare proper professional standards (one consequence of which is to serve as a deterrent to other professionals) were it not to mark the matter by a finding of current impairment of fitness to practise.

18.    The consequence of these findings is that the Registrant’s fitness to practise is currently impaired on the public component alone.  That has the result that the Allegation is well founded.  Accordingly, the Panel must go on to consider the issue of sanction.

Decision on Sanction:

19.    After the Panel handed down the decision described above, the parties were allowed time to consider the written determination before making submissions on sanction.

20.    At the commencement of her submissions the Presenting Officer stated that the HCPC did not suggest that any particular sanction should be imposed. She reminded the Panel of the proper approach to the imposition of a sanction, and in that regard drew the attention of the Panel to the guidance contained in paragraph 141 of the Sanctions Policy which states, “In determining what sanction, if any, is appropriate, the panel should start by considering the least restrictive sanction first, working upwards only where necessary. Panels should provide clear reasons when deciding a less restrictive sanction is not sufficient.” She also drew the attention of the Panel to various sections of the Sanctions Policy which she suggested might be relevant to the present case.  In this context she referred to paragraphs 87 to 89 which deal with dishonesty (in the course of which she drew the attention to that part of paragraph 89 in which it is stated that there are different forms and degrees of dishonesty that need to be considered in an appropriately nuanced way), and also to paragraphs 130 to 134  which deal with criminal convictions and cautions.  The Presenting Officer referred specifically to paragraph 131.

21.    Dr Mulligan made submissions to the Panel on behalf of the Registrant.  He began his submissions by stating that the Registrant accepted that he had been guilty of serious misconduct and did not seek to minimise the gravity of his behaviour.  However, he submitted that public confidence could be maintained by the imposition of a sanction that would not restrict the Registrant’s ability to practise.  It was submitted that the behaviour that led to the convictions represented a profound departure from the Registrant’s ordinary conduct.  He stated that the Registrant had been subject to substantial scrutiny by his employers for approximately three years and had been back at work for approximately two years.  Dr Mulligan submitted that there had been no recurrence of untoward behaviour and that since returning to work the Registrant had been practising safely and effectively.  Dr Mulligan reminded the Panel that in the internal Trust disciplinary process it had been decided that to have dismissed the Registrant would have been disproportionate, although in making that point Dr Mulligan acknowledged that concerns that are relevant to fitness to practise proceedings differ from those being considered by an employer in disciplinary proceedings.  Dr Mulligan reminded the Panel of the steps taken by the Registrant that had resulted in the remediation already referred to by the Panel in its decision on impairment of fitness to practise.  He stated that the Registrant accepted that a sanction is necessary, but submitted that one at the lower end of the available range would be appropriate.  He suggested that a caution order should be imposed.  Were the Panel to conclude that a caution order was not appropriate, then a conditions of practice order could be made, and the general nature of appropriate conditions to be included in such an order were advanced. Dr Mulligan submitted that a suspension order would be more restrictive than needed, particularly as the issue of public confidence would be respected by the publication of the fact that the HCPC’s Allegation had been proven against the Registrant.

22.    The Panel accepted the advice of the Legal Assessor on the issue of sanction.  Accordingly, the Panel approached the matter on the basis that a sanction should not be imposed with the intention of punishing the Registrant.  Rather, a sanction should only be imposed to the extent that it is required to address matters such as public protection, the maintenance of public confidence and the marking of proper professional standards.  Any sanction imposed should be no more restrictive than these proper aims require.  A finding that an allegation is well founded does not, of itself, require the imposition of a sanction.  Therefore, the first question a Panel must ask itself when considering the issue is whether the finding that has been made on the Allegation requires any sanction.  It if does, then the available sanctions must be considered in an ascending order of seriousness until one that sufficiently meets the circumstances is reached.  This exercise is to be undertaken by reference to the guidance contained in the Sanctions Policy.

23.    The factors the Panel considered to be relevant to its sanction decision have already been expressed in relation to the finding on current impairment of fitness to practise.  They will not be repeated at length here, but can be conveniently summarised as follows:

•    The degree of insight shown by the Registrant, which included remorse, expressions of shame, coupled with the robust preventative measures he has put in place, all combine to mean that there is no appreciable risk that there will be a repetition of behaviour of the type that resulted in the convictions.  That conclusion, quite apart from the fact that the issue is not one of a clinical nature and did not arise in the context of the Registrant’s professional practice, means that there is no perceptible future risk to the public.  The absence of future risk of harm means that public protection is not a factor relevant for the purposes of a sanction.

•    The Panel has already stated in its impairment finding that the background to the Registrant’s dishonesty was his health and that, had it not been for that, the dishonesty would not have occurred.  Nevertheless, as has also already been stated, the convictions were sufficiently serious that members of the public would expect them to be marked by the professional regulator.  It is important that the Panel should explain the view it has taken about the level of dishonesty that this case involves.  

•    In considering the most appropriate and proportionate sanction, the Panel found Paragraph 174 of the sanctions policy particularly helpful.  Notwithstanding the matter of the Registrant’s health at the relevant time, the Panel considered that a sanction that restricted the Registrant’s right to practice was required to maintain public confidence, both in the profession and its regulator.

•    The Panel were particularly aware that while the Registrant had taken proactive steps to contact his employer about his health, he did not disclose the offence and did not make contact with the police himself. 

•    It is the factor of public confidence arising from the level of dishonesty, both of the original offence, and the period of time that passed before the police contacted the Registrant about the theft, that concerned the Panel. The Panel considers this to be of paramount importance when deciding the sanction issue.

24.    It is also relevant to note that the Sanctions Policy in paragraph 85 identifies categories of cases that can be viewed as serious cases, with the further explanation that they are cases that involve certain factors or behaviours that are likely to result in more restrictive sanctions due to their serious nature and incompatibility with the HCPC standards.  The present case counts as a serious case by reference to two of those categories, involving as it does, dishonesty resulting in convictions.

25.    With these factors in mind, the Panel first asked itself the question whether the finding that the Allegation is well founded required the imposition of any sanction.  The clear answer of the Panel to that question is that the marking of the seriousness of a Practitioner Psychologist being convicted of offences of dishonesty does require the imposition of a sanction.

26.    The Panel therefore went on to consider a caution order.  The Panel reviewed paragraphs 146 to 151 of the Sanctions Policy.  Having carefully considered the matter, the Panel concluded that, given the level of dishonesty involved, the imposition of a caution order would not sufficiently mark the seriousness of a Practitioner Psychologist being convicted of offences of dishonesty where the level of dishonesty, as has been described above, and for that reason would be insufficient to maintain public confidence.

27.    Having rejected a caution order as an appropriate outcome, the Panel next considered whether it should impose a conditions of practice order.  The Panel paid close attention to the guidance in the Sanctions Policy in paragraphs 152 and 166 inclusive, and it reminded itself of Dr Mulligan’s submissions relating to such an order.  The conclusion of the Panel was that a conditions of practice order is not appropriate in this case.  The reasons for that decision were as follows:

•    The issues in this case that need to be addressed by a sanction are not based on deficient clinical performance.  It follows that there are no restrictions relating to clinical work that are required, and no positive requirements that need to be imposed that relate to enhancing clinical knowledge and skills.

•    The Panel acknowledged that there are cases in which conditions of practice can be appropriate when the case does not involve clinical shortcomings, for example, by imposing a positive requirement that future steps should be taken by a registrant to address factors that have resulted in a finding of impairment of fitness to practise.  However, this is not such a case.  For the reasons already given in explaining why his fitness to practise is not impaired from the point of view of the personal component, the Registrant has already undertaken all that was needed to remediate his failings.  No conditions of practice (whether conditions prohibiting activities or imposing positive requirements) are relevant to the factors that have led the Panel to decide that a sanction is required.

•    As there are no conditions of practice to be imposed there could be no justification for making a conditions of practice order.

28.    Having rejected a conditions of practice order, the Panel next considered a suspension order.  In that context the Panel reviewed paragraphs 167 to 175 of the Sanctions Policy. There are two elements of the guidance provided in that section that the Panel feels are sufficiently important to justify being repeated verbatim in this determination.

29.    Paragraph 169 is in the following terms, “A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register.”

30.    Paragraph 170 states,

“Where a panel is considering suspension orders, it should first consider whether the conduct found proven indicates behaviour which is fundamentally incompatible with continued registration. Examples of such cases are given in paragraph 179. It may still be necessary to impose a striking off order if public protection and/or the wider public interest considerations require it. If that is he case, the panel should not impose a suspension order, even where some or all of the factors listed below are present (this list is non-exhaustive):

• the registrant has insight;
• the issues are unlikely to be repeated; or
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings, particularly in cases where the registrant has demonstrated they have begun to do so or given a credible explanation for how they will do so.”

31.    It is clear from the wording of paragraphs 169 and 170 that the question whether a suspension order is appropriate can only properly be answered by deciding whether a striking off order should be made.  The Panel therefore addressed paragraphs 176 to 181 of the Sanctions Policy.  The Panel noted the guidance contained in paragraph 179 and the non-exhaustive list of cases which included both dishonesty and conviction cases.  However, when it considered the guidance contained in paragraph 180 and the factors contained in the bullet points in that paragraph, it concluded that this was a case in which the Registrant did not lack insight, he had not continued to repeat the misconduct and he had demonstrated a willingness to resolve matters.  Accepting that the factors identified in the bullet points were included as guidance, and were explicitly stated to be not an exhaustive list of features that could require a striking off order, the Panel then asked itself whether there were other features that meant that only a striking off order would serve to maintain public confidence in the profession of Practitioner Psychologist or the regulation of it.  The conclusion of the Panel was that there were not.  It is not to minimise the seriousness of the convictions to state that in the particular circumstances of this case, the Registrant’s conduct was not fundamentally incompatible with continued registration.

32.    Having come to the conclusion that a striking off order was not the only possible outcome, the Panel then returned to consider whether a suspension order should be made.  Its conclusion was that this case met the factors suggested in paragraph 170; the Registrant has insight and the issues are unlikely to be repeated.  As to the third suggested factor, “there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings, particularly in cases where the registrant has demonstrated they have begun to do so or given a credible explanation for how they will do so”, it will be apparent from the Panel’s decision on the personal component of impairment of fitness to practise that this has already been achieved.

33.    The Panel therefore decided that a suspension order should be made.  As to the length of that suspension order, the Panel again reminded itself that it was the public perception of the level of dishonest that has already been described that was the determining feature requiring suspension to be ordered.  The conclusion of the Panel was that a period of six months was the shortest period consistent with the reason why suspension is required.

34.    Before confirming that the sanction to be imposed should be a suspension order for a period of six months, the Panel assessed whether such an order would represent a proportionate response.  In making this decision it recognised the possible consequences of a suspension order so far as the Registrant’s continued employment was concerned and the impact that this will have on his private life.  Nevertheless, it was the view of the Panel that suspension for a period of six months represented the least restrictive outcome consistent with the need to maintain public confidence.

35.    Consistent with the provisions of Paragraph 168 of the Sanctions Guidance, the panel considered that a future reviewing panel may be assisted by:

•    Mr Barroso’s attendance in-person at the review hearing
•    A further reflective piece addressing his developing thinking in relation to the impact on public confidence in the profession, arising from the matters found proved

The Registrar is directed to suspend the registration of Mr Hugo Barroso for a period of 6 months from the date this Order comes into effect.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order:

Application

36.    Following the Panel announcing their decision Mr Slack for the HCPC applied for an Interim Suspension Order for 18 months to cover the 28 days until the Interim Suspension Order is imposed and to cover any potential appeal.

37.    Dr Mulligan addressed the Panel, submitting that such an order would not be necessary or proportionate in the particular circumstances of Mr Barroso’s case. Dr Mulligan confirmed that Mr Barroso had been working without restriction for two years and that there would be an immediate impact on the patients that he is currently seeing. 

Decision

38.    The Panel sought and accepted advice from the Legal Assessor and then retired to consider the application. The Panel discussed that although they had determined the dishonesty to be serious they had imposed an order on the grounds of public interest alone and were aware of the high bar in imposing an interim order in those circumstances. The Panel therefore decided that an interim order was not necessary and that they did not believe that public confidence would be undermined if an interim order was not put in place.

History of Hearings for ​​Hugo Barroso​