Mr Paul Cioccarelli

: Radiographer

: RA62420

: Final Hearing

Date and Time of hearing:10:00 02/03/2017 End: 17:00 02/03/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Caution

Allegation

(as amended at the Final Hearing)

 

Whilst registered as a Radiographer:

 

1.             Following an application by the Medical Radiation Practice Board of Australia, on the 7 December 2015 the State Administrative Tribunal (Western Australia) determined that you behaved in a way that constitutes professional misconduct and ordered that you be reprimanded, that your registration as a medical radiation practitioner be suspended for a period of 2 months and you pay the Applicant’s costs of the application fixed in the sum of $1,500.

 

2.             By reason of that determination your fitness to practices is impaired.

Finding

Preliminary matters

 

Service of Notice

 

1.             The Registrant has been given Notice of today’s hearing, by letter dated 15 November 2016 sent to the registered address of the Registrant, in accordance with Rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

 

2.             The Panel finds there has been good service of the Notice of hearing.

 

Application to proceed in absence

 

3.             The Presenting Officer made an application under Rule 11 of the Rules for the hearing to proceed in the absence of the Registrant, on the grounds that all reasonable steps have been taken to notify him of the hearing and he has sent a completed pro-forma and email to the HCPC, stating that he cannot attend because he lives in Australia and he is happy for the hearing to proceed in his absence. He was offered the opportunity to attend by telephone, but declined it due to current financial and work commitments.

 

4.             The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled “Proceeding in the Absence of the Registrant” and followed that advice. The Panel concluded that the Registrant is aware of the hearing today and has waived his right to attend. The Panel finds that a fair hearing can take place in the absence of the Registrant. He has stated that he does not wish to attend and adjourning the hearing is unlikely to result in the Registrant attending at a future date. The Registrant has provided detailed representations for the Panel to consider, admitting the facts but disputing that his fitness to practise is impaired. There is a public interest in dealing with this case expeditiously. In all the circumstances, the Panel has decided to proceed with the hearing in the absence of the Registrant.

 

Application to amend the allegation

 

5.             The original allegation was:

 

Whilst registered as a Radiographer:

 

1. On the 7 December 2015 the State Administrative Tribunal (Western Australia) made an order that you behaved in a way that constitutes misconduct, that you be reprimanded, that your registration as a medical radiation practitioner be suspended for a period of 2 months and you pay the Applicant’s costs of the application fixed in the sum of $1,500. The order was based on your admission that you had:

 

a. breached professional boundaries when, without clinical reason you:

 

i. asked Patient A for her mobile telephone number;

 

ii. invited Patient A out for a coffee;

 

iii. met with Patient A for coffee on two occasions; and

 

iv. sent text messages to Patient A on numerous occasions;

 

b. engaged in sexual misconduct when, on 3 February 2015, you sent two photographs of yourself from the Practice via text message to Patient A’s mobile telephone, which photographs comprised of:

 

i. one of your exposed torso in an unbuttoned shirt; and

 

ii. one of your exposed genitals and torso in an unbuttoned shirt that showed the Practice’s insignia; and

 

c. by engaging in the conduct referred to above you failed to practise in accordance with the ‘Code of Conduct for Medical Radiation Practitioners’.

 

2. By reason of that determination your fitness to practices is impaired.

 

6.             The HCPC applied for leave to permit the particulars of the allegation to be amended. There is no prejudice to the Registrant and he has not objected to the application. The Registrant was notified of the proposed amendment by letter dated 2 August 2016. The purpose of the amendment to particular 1 is to ensure that the allegation accurately reflects the determination made by the State Administrative Tribunal (Western Australia), following an application by the Medical Radiation Practice Board of Australia. Also the proposed amendment is designed to delete sub-particulars which set out details of the Registrant’s admissions, because it is unnecessary to include this level of detail in the allegation. The proposed amendment does not change the substance of the case and there is no prejudice to the Registrant by reason of the amendment. The Panel granted the amendment application, in accordance with the above amended particulars.

 

 

Decision on Facts

 

Determinations by another licensing body

 

7.             Article 22(1)(a)(v) of the Health and Social Work Professions Order 2001 provides that one of the grounds upon which an allegation may be made that a registrant’s fitness to practise is impaired is that, by reason of a determination by a licensing body responsible for the regulation of a health professional, his fitness to practise is impaired.

 

8.             This case arises from a determination made by the State Administrative Tribunal in response to an application by the Medical Radiation Practice Board of Australia. The relevant documents have been produced by witness LM, a Solicitor at Kingsley Napley. The HCPC relies on her statement and the documents produced by her. The Registrant has agreed the statement of LM.

 

9.             The Panel is satisfied that this constitutes a “referral by a national board of professional misconduct by a registered health practitioner” under “an Act to provide for a national registration and accreditation scheme for health practitioners”.

 

10.          The Board in question is the Medical Radiation Practice Board of Australia and the Panel is satisfied this Board is a licensing body for health professionals, as confirmed in a letter to Kingsley Napley from the Australian Health Practitioner Regulation Agency. On 7 December 2015, a determination of the State Administrative Tribunal was made by agreement between the Registrant and the Medical Radiation Practice Board of Australia that the Registrant behaved in a way which constitutes professional misconduct.

 

11.          The Registrant is a HCPC-registered Radiographer. During the course of his practice as a Radiographer in Australia, he provided radiotherapy treatment for breast cancer to Patient A between December 2014 and January 2015. During this time he crossed professional boundaries with Patient A in a number of respects; he asked her for her mobile telephone number, sent her text messages and met her for coffee on two occasions.

 

12.          On 3 February 2015, after he stopped seeing Patient A as a patient, he sent her inappropriate and explicit photographs of himself. He also sent inappropriate texts including messages suggesting that she had “a nice body”, asking whether she was interested in him sexually and in commencing a sexual relationship.

 

13.          Patient A had just received treatment for cancer from the Registrant and is likely to have been very vulnerable.

 

14.          The Registrant had provided voluntary undertakings about maintaining appropriate professional boundaries. He stated that he had breached professional boundaries but “acknowledged my wrongdoing at the first opportunity”. He said that he has insight into the seriousness of his conduct and “genuine remorse…for what I put the patient and her family through”. He has been trying to resume his career since the end of his suspension on 7 February 2016. He has suffered a financial loss for a “one off aberration in an otherwise unblemished practice”. He has worked in radiation therapy since 2006, including posts in the UK. He underwent mentoring to avoid any repetition of his behaviour and his mentor, Dr SM, reports that he has gained a greater sense of insight and understanding of his actions.

 

15.          He has supplied a testimonial from VP, a Senior Radiation Therapist who has worked with the Registrant for approximately nine years, dated 25 October 2015, which describes him as “dedicated and caring” and states his actions were “out of character”.

 

 

Decision on Impairment

 

16.          The Panel considered the HCPC Practice Note on “Finding that Fitness to Practise is Impaired”. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:

 

1. The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

 

2. The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

 

17.          The Shipman Report identified the circumstances where impairment might arise as: (a) where a registrant presents a risk to service users; (b) has brought the profession into disrepute; (c) has breached one of the fundamental tenets of the profession; or (d) has acted in a way that his integrity can no longer be relied upon.

 

18.          In respect of the public interest, the following additional guidance was provided in the case of Grant: “In determining whether a practitioner’s fitness to practise is impaired… the relevant panel should generally consider…whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.”

 

19.          The Registrant was dismissed from his employment as a result of the behaviour giving rise to these proceedings.

 

20.          The Registrant has engaged with the HCPC process and has demonstrated sufficient insight, remediation and remorse in his written submissions to the HCPC. This is corroborated by the testimonial evidence of VP, who describes him as “taking responsibility for his actions”. The Registrant has also undergone a weekly mentoring process from March-August 2015 with Dr SM, who stated in written testimonial evidence that the Registrant engaged with the mentoring discussions “openly, enthusiastically and honestly”. Dr SM stated that the Registrant “is keenly aware of his inappropriate conduct and that he failed in his responsibilities to his patient, his employer, [and] his professional community … he has engaged in a learning plan to ensure that he maintains the level of continuing professional development necessary for future radiation therapy practice.” For all these reasons, the Panel finds that the Registrant is not currently impaired on the personal component.

 

21.          The Panel next considered whether the Registrant is currently impaired on the public component. The Panel noted that the Registrant breached professional boundaries with a highly vulnerable cancer patient by sending inappropriate text messages and a sexually explicit photograph. This was an abuse of trust of the Registrant’s position as a registered professional.

 

22.          The Panel did note that the Registrant’s period of suspension in Australia has expired. However, the behaviour is so serious that a finding of impairment on the public component is required in order to maintain public confidence in the profession and the regulatory process, to uphold proper standards of conduct and behaviour, and deter other registrants from similar behaviour. The Panel concluded that a right-minded, well-informed member of the public would consider that a finding of impairment is required to mark the serious nature and gravity of the Registrant’s behaviour.

 

23.          Therefore, the Panel finds that the Registrant is currently impaired on the public component.

 

 

Decision on Sanction

 

24.          The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to all the circumstances of this case and all the evidence which contributed to its finding of current impairment.

 

25.          It has considered the submissions and has accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had due regard to the HCPC “Indicative Sanctions Policy”. The Panel has noted that any sanction must be proportionate, that it is not intended to be punitive although it may have a punitive effect, and that it should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public and otherwise meeting the wider public interest in protecting the reputation of the profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards. All sanctions are available in this case but they must be considered in ascending order of gravity and the least serious sanction which protects the public and upholds the public interest will be applicable.

 

26.          The Panel first identified the aggravating and mitigating factors that it should take into account. The aggravating factors are:

 

               The Registrant abused his position of trust as a registered professional;

               The inappropriate sexual nature of the Registrant’s behaviour;

               Patient A was highly vulnerable;

               The explicit nature of the photograph sent to Patient A, in which the Registrant’s uniform and the insignia of his employer was clearly visible;

               The Registrant’s conduct only ceased when a complaint was made by Patient A’s husband.

 

27.          The mitigating features are:

 

               The Registrant’s previous good character;

               The testimonial evidence from VP and Dr SM’s mentor reports;

               The Registrant has engaged with the mentoring and the HCPC processes;

               The Registrant has demonstrated sufficient insight, remorse and apology;

               The Registrant has already been sanctioned by the Medical Radiation Practice Board of Australia;

               The Panel only found the Registrant impaired on the public component.

 

28.          In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.

 

29.          Taking no action would not be appropriate as it would not reflect the seriousness of the Registrant’s behaviour and does not sufficiently address the public interest in this case. Offering mediation would not be workable or proportionate.

 

30.          The Indicative Sanctions Policy states that a Caution Order should be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the Registrant has shown insight, the conduct concerned is out of character, the risk of repetition is not high and thus suspension from practice would be disproportionate.

 

31.          The risk of recurrence is low due to the Registrant’s insight and the fact he has taken appropriate remedial action. This was an incident involving one patient and the testimonial evidence states that his behaviour was “out of character”.

 

32.          The Panel found the Registrant was only impaired on public interest grounds, but it considers that the public interest has been partly satisfied by the sanction previously imposed by the Medical Radiation Practice Board of Australia. It therefore concluded that a Caution Order was sufficient to mark the public interest and was proportionate in all the circumstances.

 

33.          The Panel considered that a Caution Order for a period of less than three years would not reflect the serious nature of the Registrant’s behaviour or satisfy the public interest. It noted in the Indicative Sanctions Policy that three years would be the benchmark for a Caution Order and considered that this is the appropriate length.

 

34.          The Panel also considered Conditions of Practice, but concluded they are not an appropriate or workable sanction, because the Registrant is not currently practising as a Radiographer or residing in the UK.

 

35.          The Panel considered that a Suspension Order would be disproportionate, as the Registrant has already received a period of suspension in Australia.

 

36.          In all the circumstances, the Panel has determined that a Caution Order for three years would therefore be sufficient to mark the seriousness of the misconduct and deter other registrants from similar behaviour.

 

 

Order

The Registrar is directed to annotate the Register entry of Mr Paul Cioccarelli with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.

Notes

The order imposed today will apply from 30 March 2017 (the operative date).

Hearing history

History of Hearings for Mr Paul Cioccarelli

Date Panel Hearing type Outcomes / Status
02/03/2017 Conduct and Competence Committee Final Hearing Caution