Mr William Santos

: Radiographer

: RA62636

: Final Hearing

Date and Time of hearing:10:00 28/03/2017 End: 17:00 30/03/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

Allegation (as amended)

Between 13 July 2015 and 17 February 2016, during the course of your employment as a Radiographer at InHealth Limited, you:
 
1. on or around 19 January 2016:
 
a. stated to Patient A:

i. “Can I tell you a secret, I want to have sex with an English girl, If I had sex with an English girl I could die" or words to that effect;
 
ii. "DO YOU NOT LIKE ME THEN, I HAVE HEARD GREAT THINGS" or words to that effect.
 
iii. "WHAT DO YOU THINK ABOUT WHAT I SAID EARLIER" or words to that effect.
 
b. sent Patient A a private message on Facebook, stating:
 
i. "HI [Patient A], I APOLOGIZE FOR WHAT HAPPEN TODAY, I HOPE YOU'RE NOT GONNA HATE ME" or words to that effect;
 
c. pulled up Patient A's gown and/or brushed Patient A's breast with your hand.
 
2. The matters described in paragraph 1 were sexually motivated.
 
3. The matters described in paragraphs 1 to 2 constitute misconduct.
 
4. By reason of your misconduct, your fitness to practise is impaired.

Finding

Service

1. The Panel was informed that notification of the hearing was posted on 25 November 2016 to the Registrant’s address which he had previously registered with the HCPC and sent by email to the Registrant on the same date.

2. The Panel was satisfied, on the basis of the available documents, that proper notification of this hearing had been given to the Registrant, in accordance with Rule 3 of The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules Order of Council 2003 (“the Rules”). 

Proceeding in absence

3. The Registrant was neither present nor represented.  Ms Sheridan, on behalf of the Council, made an application that the Panel hears the case against the Registrant in his absence.  She submitted that the Registrant had not engaged in the process since June 2016 and that an adjournment would serve no useful purpose as there was no indication that the Registrant would attend any future date.  Ms Sheridan further submitted that there was a public interest in the expeditious disposal of cases.  She informed the Panel that there was a witness (Patient A) who was waiting to give evidence and that any further delay may affect her recollection of events which are alleged to have taken place in January 2016. 

4. The Panel had sight of an email from the Registrant to the HCPC dated 15 June 2016 in which he wrote:

“I regret to inform you that I would not be able to attend any present or future hearing for the reason that I am now out of the country and no plans of coming back.”

5. The Panel heard and accepted the advice of the Legal Assessor.  It noted that proceeding in the absence of the Registrant was a discretion which must be exercised with the utmost care and caution.

6. The Panel concluded that there would be no benefit in adjourning the case as there was a clear indication in his email of 15 June 2016 that the Registrant would not attend at any future hearing.  The Panel concluded that service of the Notice of Hearing had been effective, that the Registrant was or should be aware of the hearing and that he had voluntarily absented himself.  It noted the fact that there was a witness waiting to give evidence and further that it was in the public interest to proceed to hear the case as expeditiously as possible.  The Panel noted that the bundle of evidence contained answers to the allegations which the Registrant provided to both a local investigation carried out by the Trust and also to a police investigation.  Accordingly, the Panel concluded that it would be able to use those points in order to test the evidence of the HCPC and that a fair hearing could and would be conducted.  The Panel therefore determined that it was appropriate to proceed in the absence of the Registrant.

Application to amend the allegation

7. Ms Sheridan applied to amend the allegation as follows:

• In paragraph 1(a)(i) to delete the words “If I had sex with an English girl I would die” and replace with “Can I tell you a secret, I want to have sex with an English girl, if I had sex with an English girl I could die.”

• To delete the following paragraphs:

1(a) stated to Patient A:

(ii) “Can I tell you a secret, I want to have sex with an English girl” or words to that effect;

(iii) “If I will have sex with an English lady, I will die” or words to that effect;

(iv) “Your breast has fallen out” or words to that effect;

1(b) sent Patient A a private message on Facebook, stating:

(ii) “…please don’t hate me” or words to that effect.
1(c) sent Patient A a friend request on Facebook.
and to renumber the remaining paragraphs accordingly.

8. Ms Sheridan informed the Panel that notice of the HCPC’s intention to apply to amend the allegation had been sent to the Registrant on 12 September 2016 and that no reply had been received from the Registrant.  Ms Sheridan submitted that the proposed amendments better reflected the evidence and removed some duplicitous alleged facts.  She submitted that the proposed amendments did not increase the seriousness of the allegations against the Registrant and therefore there was no injustice to him if the amendments were allowed.

9. The Panel accepted the Legal Assessor’s advice.  It determined to grant the application as the proposed amendments had been sent to the Registrant in good time and that he had not responded to register any objection.  The Panel concluded that, notwithstanding the absence of any observations from the Registrant, the proposed amended allegation did not add any new or more serious alleged facts but in fact better reflected the written evidence and removed some duplicitous or repeated alleged facts.  In all the circumstances the Panel concluded that the proposed amendments could be made without injustice to either party.

Application to adduce hearsay evidence.

10. After the Panel had heard evidence from one HCPC witness (Patient A), Ms Sheridan applied to admit the statement and exhibits of Witness 2 as hearsay evidence.  Witness 2 had, at the time of the allegations, been employed as the Deputy Regional Director at InHealth Ltd and was the Senior Manager responsible for the MRI Centre at Eastbourne District General Hospital.  Witness 2 had carried out an investigation into the allegations made against the Registrant. She had interviewed two members of staff and had interviewed the Registrant.

11. Ms Sheridan informed the Panel that the HCPC had expected Witness 2 to attend in person to give evidence but she had failed to do so.  Enquiries during the course of the morning by the HCPC established that Witness 2 was not directly contactable, was not intending to attend the hearing as she had been made redundant and no longer wished to support her previous employer or the HCPC in this case.  Ms Sheridan informed the Panel that both she and officers of the HCPC had spoken to Witness 2’s partner who had said that he had spoken to Witness 2 but that she did not want to assist.  Ms Sheridan said that Witness 2 had, via her partner, been offered the possibility of giving evidence by telephone.

12. Ms Sheridan, having asked for a number of short adjournments to try (unsuccessfully) to make direct contact with the witness as opposed to her partner, submitted that the HCPC had done all that it could in order to secure the attendance of the witness at the hearing.  She cited the case of R (on the application of Shaikh) v General Pharmaceutical Society [2013] EWHC 1844 (Admin) and submitted that the hearsay evidence could be admitted provided that it did not cause unfairness.  Ms Sheridan acknowledged that the Panel would not have the opportunity to test Witness 2’s evidence or to observe her demeanour whilst giving evidence. She submitted, however, that the evidence was not sole or decisive in relation to any of the alleged facts but simply sets out the chronology and the details of interviews with witnesses and with the Registrant himself.  Ms Sheridan pointed out that Witness 2’s statement contains evidence about the Registrant having been upset during his interview and she submitted that such evidence would be beneficial to the Registrant’s case.

13. In reaching its decision on the hearsay evidence application, the Panel applied the principles drawn to its attention by the Legal Assessor which were drawn from the cases of R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) and Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin). 


14. The Panel was guided by the following principles in Bonhoeffer:

(i) Disciplinary proceedings against a professional, even though not criminal, may still bring into play issues, as set out in Article 6 of the Human Rights Act, regarding a fair hearing and the right to cross examine a witness;

(ii) The issue of a fair hearing in disciplinary proceedings is one which must be considered in the round, having regard to all relevant factors;

(iii) The relevant factors include the seriousness and nature of the allegations, the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true;

(iv) In disciplinary proceedings, which raise serious charges, amounting to in effect criminal offences, which if proved are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed upon the evidence of an accuser between whom and the accused there is an important conflict in evidence, as to whether misconduct took place, if that amounted to a critical part of the evidence, there would need to be compelling reasons why the requirement of fairness and the right to a fair hearing, did not entitle the accused party to cross-examine the accuser.

(v) “The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safe- guards. There is no public interest in a wrong result.” (paragraph 129 per Stadlen J). 


15. From Thorneycroft, the Panel had regard to the following additional guidance:

(i) The admission of a statement of an absent witness should not be regarded as routine. The Panel should consider the issue of fairness before admitting the evidence.

(ii) The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility.

(iii) The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence.

(iv) Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit it requires the Panel to make a careful assessment, weighing up the competing factors. The Panel should have regard to the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied that the evidence is demonstrably reliable, or alternatively that there will be some other means of testing its reliability.

16. The Panel also had its attention drawn to the seven factors set out in paragraph 56 of Thorneycroft, including: whether the statement is the sole and decisive evidence in support of the charges; the nature and extent of the challenge to the contents of the statement; whether there was any suggestion that the witness had fabricated the allegations; the seriousness of the allegation and potential impact on the Registrant’s career; whether there was a good reason for the non-attendance of the witness; whether the HCPC had taken reasonable steps to secure the attendance of the witness and the fact that the Registrant did not have prior notice that the witness statement was to be read.

17. The Panel concluded that the evidence of Witness 2 was not the sole and decisive evidence in relation to any of the allegations.  Other evidence was contained within the bundle which sought to corroborate or support the allegations.  The Panel noted that Witness 2 was not a witness of fact to the specific allegations raised by Patient A and that her evidence was therefore indirect.  The Panel considered whether the admission of the statement would result in adverse consequences to the Registrant’s case but it concluded that there were no such adverse consequences.  Moreover, the Panel noted that certain parts of Witness 2’s statement assisted the Registrant’s case.

18. The Panel considered that the HCPC had taken all reasonable steps to secure the attendance of the witness at the hearing, particularly today, by having made numerous telephone calls, adjourning the hearing to provide more time for Witness 2 to make contact and offering Witness 2 other methods of giving live evidence.  Although there is no good or cogent reason for the absence of Witness 2, the Panel was not satisfied that such a factor should automatically result in excluding the evidence. 

19. In all the circumstances the Panel determined that it would be fair and reasonable to admit the evidence as hearsay, attaching such weight as it considered appropriate in the circumstances.

Background

20.  The Registrant was employed as a Senior Radiographer with InHealth Ltd and worked at Eastbourne District General Hospital (‘the Hospital’) from 13 July 2015 until 17 February 2016.

21. On 19 January 2016, Patient A attended the Hospital for an MRI scan on her small bowel.  It is alleged that during the appointment, the Registrant made inappropriate comments to her and touched her inappropriately.  It is also alleged that the Registrant communicated with Patient A by Facebook after the appointment.  The HCPC alleges that all of the matters complained of were sexually motivated.

22. The Panel considered the bundle of documentary evidence which consisted of 123 pages. It also took into account an on-table exhibit which was an email sent to the HCPC from the Registrant on 15 June 2016.

23. The Panel considered the submissions of Ms Sheridan which are a matter of record and it is not intended to rehearse them in detail here.  In opening the case for the HCPC, Ms Sheridan invited the Panel to find all of the facts proved.  She submitted that the facts demonstrate that the Registrant’s actions fell seriously short of what would be proper in the circumstances and therefore amounted to misconduct.

24. The Panel heard evidence via video-link from Patient A.  It found her evidence to be balanced, credible and mostly reliable.  For example, Patient A was able to qualify her interpretation of events by acknowledging that her first interpretation of the Registrant’s suggestive statement towards her might have coloured her perception of his actions later on during the appointment.  Patient A was willing to accept alternative interpretations of the Registrant’s alleged actions and was frank when she was unable to recall specific details about some of the facts, for example where in the Hospital she was at the time the Registrant allegedly made certain comments to her.  However the Panel considered Patient A’s evidence to be fair and reasonable with no exaggerations or embellishments.  It found that in her answers, Patient A was being fair to the Registrant.

25.  The Panel also took into account the hearsay evidence of Witness 2.  It carefully considered the documents exhibited by Witness 2 which included:
• her investigation report;

• an email from the police summarising answers given by the Registrant when interviewed by them on 25 January 2016;

• notes from the investigation hearing on 2 February 2016 conducted by Witness 2;

• notes from the disciplinary hearing with the Registrant on 10 February 2016.

26. The Panel concluded that Witness 2’s statement was of limited weight in assisting with the facts of the allegation as she was not a direct witness to anything other than the interviews and enquiries which she conducted. 

27. The Panel also took into account policies written by InHealth Ltd. Including Privacy and Dignity of Patients (January 2013).  It also considered a screen printout of a page from Facebook.

28. The Panel carefully considered the on-table exhibit of the email sent by the Registrant to the HCPC on 15 June 2016 in which he stated: “I swear to God that I didn’t not sexually assaulted Her.  Yes, I did say something unprofessionally and message Her in Facebook but to sincerely apologized to Her with what happen.” [sic].

29. The Panel accepted the advice of the Legal Assessor.  In so far as its assessment of the facts, the Panel was careful not to draw any adverse inference from the Registrant’s absence from the hearing, reminding itself that it was for the HCPC to prove the case on the balance of probabilities.  In assessing the disputed facts, the Panel also carefully balanced the Registrant’s previous good character and lack of previous regulatory or disciplinary findings.  It accepted that his good character may make it less likely that he acted in the way alleged by the HCPC.

Findings of Fact:

1. on or around 19 January 2016:
 
a. stated to Patient A:

i. Can you tell me a secret, I want to have sex with an English girl, if I had sex with an English girl I could die" or words to that effect;

Found PROVED.

30.  The Panel accepted the written and oral evidence of Patient A who stated: “[The Registrant] took my hand and pulled me towards him and said to me, ‘Can I tell you a secret, I want to have sex with an English girl, if I had sex with an English girl, I could die.” 

31. Furthermore the Panel took note of the Registrant’s admissions in the investigation meeting in which he stated: “She was asking me some personal things and I felt that she was flirting with me and this could be unprofessional.  I said that if I had sex with an English lady I could die after.”  Similarly, in his disciplinary interview on 10 February 2016 the Registrant admitted saying words to that effect.

32. In all the circumstances the Panel was satisfied that it was more likely than not that the Registrant did make the comment, or words to that effect, to Patient A.

1. on or around 19 January 2016:

a. stated to Patient A:

ii. "DO YOU NOT LIKE ME THEN, I HAVE HEARD GREAT THINGS" or words to that effect.

Found PROVED.

33. In her evidence, Patient A could not recall precisely where the Registrant made the comment but stated that she was “100% sure” he had said it.  She told the Panel that the Registrant had said the comment in a “sleazy” tone and that she had interpreted it as meaning that she would be the English girl he chose to have sex with.

34. The Panel also noted that in his police interview the Registrant is said to have admitted making the comment, although the Panel noted that he denied it in the investigation and said he was unable to remember, when asked at the disciplinary hearing.  It also took into account the alleged wording of a Facebook message.

35. The Panel also considered its finding of fact in relation to paragraph 1(a)(i) which was similar in nature to the comment alleged in this paragraph.  It concluded that its finding in that respect gave some support to this paragraph.  When taken together with the persuasive evidence of Patient A and the comments to the police, the Panel was satisfied that it was more likely than not that the Registrant did make the comment, or words to that effect.

1. on or around 19 January 2016:

a. stated to Patient A:
 
iii. "WHAT DO YOU THINK ABOUT WHAT I SAID EARLIER" or words to that effect.

Found PROVED.

36. The Panel noted that this allegation was not put to the Registrant in the police interview or in either the internal investigation or disciplinary hearing.  However, the Panel accepted the credible evidence of Patient A in her statement and in her oral evidence in which she described the Registrant as being persistent and repeating the question.  Patient A stated that the Registrant followed her within the Hospital, spoke to her when she was leaving and was speaking quietly to her.  The Panel concluded that there was nothing to suggest that Patient A was making up the alleged comment and found that it was more likely than not that the Registrant did make the comment, or words to that effect.

1. on or around 19 January 2016:
b. sent Patient A a private message on Facebook, stating:

i. "HI [Patient A], I APOLOGIZE FOR WHAT HAPPEN TODAY, I HOPE YOU'RE NOT GONNA HATE ME" or words to that effect;

Found PROVED.

37. The Panel had sight of a printed screenshot of the Facebook page which showed the message sent by William Santos to Patient A.  Furthermore, in his investigatory, disciplinary and police interviews the Registrant admitted sending the message to Patient A.  The Panel also noted the on-table email of 15 June 2016 from the Registrant to the HCPC in which he appears to admit this allegation.

38. The Panel was satisfied on the balance of probabilities that when Patient A returned home following the MRI scan appointment, she found that the Registrant had found her on Facebook and had sent her a message in the terms alleged. 
1. on or around 19 January 2016:
c. pulled up Patient A's gown and/or brushed Patient A's breast with your hand.

Found PROVED in the alternative.

39. The Panel approached this allegation in two parts.  First it considered whether the Registrant had pulled up Patient A’s gown.  The Panel accepted the evidence of Patient A who stated that whilst she was in the process of lying down on her stomach on the scanning table, her hospital gown slipped down and the Registrant pulled it up.  This was further demonstrated by Patient A in her oral evidence to the Panel.

40. However the Panel was not satisfied that the Registrant brushed Patient A’s breast with his hand.  During her evidence, Patient A frankly described how the Registrant had moved the gown and that there was some contact with her skin but she stated she did not know if it was to the breast area.  She described to the Panel that she was wearing a sports bra and when asked where the Registrant touched her, Patient A pointed to the mid-level of her chest but not to the breast area.  Furthermore, in her written statement Patient A was stated: “I cannot remember exactly where William Santos touched me…he did not grab my breasts; he just touched me in the area of my chest.” 

41. In those circumstances, the Panel was satisfied that it was more likely than not that the Registrant pulled up Patient A’s gown but it was not so satisfied, on the balance of probabilities, that he brushed Patient A’s breast with his hand. 
2. The matters described in paragraph 1 were sexually motivated.

Found PROVED in relation to paragraph 1(a)(i) and 1(a)(ii).
Found NOT PROVED in relation to paragraph 1(a)(iii), 1(b)(i), 1(c).

42.  In considering whether the facts found proved were sexually motivated, the Panel adopted the definition of sexual motivation as set out in section 78 of the Sexual Offences Act 2003.  Namely:

“Would a reasonable person consider that,

(a) whatever its circumstances or any person's purpose in relation to it, it is - because of its nature - sexual; or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”

43.  In relation to paragraph 1(a)(i), the Panel concluded that by using the word “sex” in his comment to Patient A, the statement as a whole was, by its very nature, sexually motivated.  The Panel considered the circumstances surrounding when the statement was made.  The Registrant said in his interviews that he believed Patient A had been flirting and that “it was very difficult to contain myself…because of her behaviour I got carried away…”  In her oral evidence, Patient A stated that the Registrant had made the comment with a smile and in a suggestive tone as if she was the English girl he was going to choose to have sex with.  In all the circumstances the Panel concluded that this comment was sexually motivated.

44. In relation to paragraph 1(a)(ii), the Panel concluded that the nature of the words, in themselves, were not sexual.  However taken in context and in the circumstances of the Registrant’s behaviour the Panel accepted the evidence of Patient A that she was 100% sure that the question had been asked, that it was asked in a “sleazy way” and that she had found it to be upsetting, telling the Registrant “You should think of your wife and child.”  In all the circumstances, the Panel was satisfied that this comment was sexually motivated.

45. In relation to paragraph 1(a)(iii) the Panel noted that the comment made by the Registrant had not been put to him in any of the interviews.  The Panel was unable to find sufficient evidence to indicate what the Registrant might have been referring to in making such a statement.  Patient A’s interpretation was not, in this regard, persuasive enough that it was more likely than not that the comment was sexually motivated and accordingly the Panel found that element of the allegation not proved.

46. In relation to paragraph 1(b)(i) the Panel considered that the Registrant was offering an apology to Patient A.  Even taking into account his earlier sexually motivated behaviour, the Panel did not accept that there was anything other than an apology in the statement.  There was nothing suggestive or sexual in the nature or circumstances of the message and therefore the Panel found that the HCPC had not satisfied it to the required standard that the message was sexually motivated.

47. In relation to paragraph 1(c), the Panel noted that Patient A had stated that she did not need the Registrant to rearrange her gown or to touch her at all.  In her oral evidence, Patient A said “It could’ve been an innocent thing.  He could have been just trying to cover me up.  It felt inappropriate.  I felt uncomfortable, especially after the way he had been.” 

48. In his disciplinary hearing the Registrant stated that he was trying to maintain Patient A’s dignity.  He demonstrated that he was aware of the InHealth Privacy and Dignity of Patients policy.  The Panel also noted the evidence contained within the disciplinary outcome letter which was sent to the Registrant stating: “I have taken into account the consistent witness statements from colleagues who were proven to have been in the same room at the time of the alleged incident and your responses during the hearing.  You have given plausible responses to the allegations consistent with not making inappropriate contact and the only contact you did make was to adjust the service user’s gown in an effort to maintain her dignity as she positioned herself onto a table to lie face down.”

49. The Panel was aware that conclusions or findings of an investigator are not admissible as being persuasive to this Panel, and that it is a matter entirely for this Panel as to whether it finds allegations proved or not proved.  Nevertheless, the absence of any other evidence to contradict Patient A’s acceptance that the touching might have been innocent, led the Panel to conclude that it was not satisfied on the balance of probabilities that the sexual motivation part of this allegation has been proved.

Decision on Grounds

50. The Panel is aware that any finding of misconduct is for the Panel’s professional judgement, independent of the HCPC and the Registrant. 

51. Ms Sheridan submitted that the facts, if found proved, individually and collectively were serious enough to amount to misconduct.  She drew the Panel’s attention to a number of standards which, she submitted, the Registrant had breached.  Ms Sheridan further submitted that when taking into account the public and the personal components of impaired fitness to practise, there was very little to show that the Registrant understands the gravity of his actions and nothing to show that he has remedied any shortcomings. 

52. The Panel, in accepting the advice of the Legal Assessor, adopted a sequential approach.  First it considered whether the facts found proved amounted to misconduct which was serious.  In so doing the Panel had regard to all the evidence.

53. The Panel applied the definition of misconduct which was given by Lord Clyde in Roylance v GMC [2000] 1 AC 311:
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

54. The Panel reminded itself that any breach of rules or standards does not automatically result in a finding of misconduct.  With reference to the HCPC Standards of Conduct, Performance and Ethics (2012 version), the Panel found that the Registrant’s actions breached the following standards:

Standard 1 You must act in the best interests of service users
Standard 2 You must respect the confidentiality of service users
Standard 3 You must keep high standards of personal conduct
Standard 7 You must communicate properly and effectively with service users and other practitioners
Standard 13 You must behave with…integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

55.  The Panel also considered the HCPC Standards of Proficiency – Radiographers.  Whilst a number of the standards were present in both documents, the Panel also concluded that the following applied specifically from the Radiographers’ standards:

Standard 2 Registrant radiographers must be able to practise within the legal and ethical boundaries of their profession
Standard 2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users…
Standard 2.4 recognise that relationships with service users should be based on mutual respect and trust…

56. The Panel considered the facts found proved.  It noted and accepted as genuine the impact the Registrant’s actions had upon Patient A.  She told the Panel that she had been upset by the Registrant’s actions, and that he had made her feel uncomfortable.  In his disciplinary hearing, the Registrant himself was asked:
Q: Do you consider your actions were honest and trustworthy with this patient acting in their best interests?
A: No

57. The Panel concluded that those allegations which were sexually motivated (namely paragraphs 1(a)(i) and 1(a)(ii)) were actions which fell seriously below the standards to be expected of a radiographer.  In the Panel’s judgement, it is of fundamental importance that patients are able to trust their radiographer and that boundaries would be maintained.  The actions demonstrated by the Registrant amounted to a breach of trust.  He abused his position and took advantage of a patient who was already nervous and whose dignity was already compromised by reason of the procedure she was undergoing.  On this occasion, the Registrant crossed those boundaries.  The Panel agreed with Patient A that other female patients may be more vulnerable to such behaviour.

58. The Panel considered that the remaining facts found proved were inappropriate.  However in the Panel’s judgement, none of the remaining facts, individually or collectively, were serious enough to amount to misconduct.  Whilst contacting Patient A via a message on Facebook for personal reasons was inappropriate, the Panel noted that the Registrant did not breach patient confidentiality.  He did not use personal data to which he had access professionally in the Hospital in order to telephone, email or visit Patient A.  The Panel also concluded that the Registrant’s intention in sending the Facebook message was to apologise to Patient A.  The Panel noted that the message was a single, one-off contact and that it did not contain any suggestion that the Registrant wished to maintain or continue contact with Patient A.

59. In all the circumstances, the Panel concluded that the Registrant’s actions in making sexually motivated comments to his patient as set out in 1(a)(i) and (ii) were serious and could properly be categorised as misconduct.

Decision on Impairment

60. The Panel next considered whether the Registrant’s fitness to practise is currently impaired as a result of the misconduct found.  In considering this issue, the Panel exercised its own independent judgement and had reference to the HCPC Practice Note.  In so doing, the Panel had regard to all of the evidence and to the HCPC’s Practice Note Finding that Fitness to Practise is “Impaired.”

61. The Panel was concerned that in his various interviews, the Registrant appeared to attribute some blame to Patient A by suggesting that she had been flirting with him.  The Panel noted Patient A’s denial in that regard but in any event, it is a professional’s duty to ensure that he or she maintains an appropriate distance from patients to avoid breaching professional standards.

62. The Panel considered what insight, if any, the Registrant has demonstrated.  It noted that the Facebook message, whilst inappropriate, was an attempt by the Registrant to apologise to Patient A.  The Panel noted that such an apology was repeated by the Registrant at all of the interviews which he attended.  The Registrant appreciated that he had “crossed the line and [he] did not follow the company policies and HCPC guidelines.” The Panel concluded that the remorse and apology was genuine and that the Registrant accepted at an early stage that he had acted in an inappropriate way.

63. The Panel also noted the hearsay evidence of Witness 2 that in the investigatory meeting, the Registrant was “very upset…he apologised for his behaviour and agreed that it was inappropriate. It was quite difficult to understand his position in relation to the allegations as he did not address each point individually and repeatedly referred to his family and the impact of the incident on his career.”

64. Whilst acknowledging some developing insight, the Panel considered that the Registrant’s insight was limited.  When asked in the disciplinary interview about the impact his actions may have had upon the patient, his colleagues and the profession as a whole, the Panel concluded that the Registrant’s responses did not fully appreciate the impact of his actions.  In fact, the Registrant himself was asked “Do you feel you have provided sufficient evidence of insight and remorse and efforts to remediate your practice?” to which he replied: “No sir.”

65. The Panel considered whether the Registrant’s actions had been remediated.  It considered that the misconduct was capable of remediation but other than an expression by the Registrant to the investigators that he “would not do it again” there was no evidence that it had been remedied.  In those circumstances the Panel concluded that there remained a real risk of repetition of the misconduct.
66. The Panel took into account the critically important public policy issues and reminded itself of:
“the need to protect the individual [service user] and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect... and that public interest includes amongst other things the protection of [service users] and maintenance of public confidence in the profession”.

67. The Panel considered the approach set out by Cox J in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and concluded that the Registrant has in the past acted, and is liable in the future to act, so as to put a patient or patients at unwarranted risk of harm, bring the profession into disrepute and breach fundamental tenets of the profession.  The Panel was satisfied that an informed member of the public would be concerned if he or she learned of radiographer acting in a sexually motivated manner during a diagnostic procedure.  Accordingly the Panel determined that confidence in the profession of radiography and in the HCPC as regulator would be undermined if a finding of impairment were not made.

68. In all the circumstances the Panel concluded that the Registrant’s fitness to practise is currently impaired by reason of his misconduct and that the allegation is well-founded.

Decision on sanction

69. The Panel is aware that the purpose of these proceedings is not to punish the Registrant but is to protect the public against the acts and omissions of those who are not fit to practise without restriction.  The Panel is aware, however, that sanctions imposed by these proceedings may have a punitive effect and that as a result any sanction must be proportionate, balancing the public interest with Registrant’s interests.

70. The Panel has had regard to the submissions of Ms Sheridan who referred the Panel to the Indicative Sanctions Policy, in particular paragraph 40, and invited the Panel to consider the aggravating and mitigating features of the case. Ms Sheridan submitted that the Panel may wish to consider that the misconduct was a breach of trust of a sexual nature and that any lesser sanction than a striking-off order may lack the deterrent effect and may undermine confidence in the profession and in the regulatory process.

71. The Panel accepted the advice of the Legal Assessor and referred to the Indicative Sanctions Policy in arriving at a decision.

72. The Panel had regard to its earlier findings.  It considered that the Registrant’s misconduct was aggravated by the following features:

• The Registrant’s inability to accept full professional accountability for his actions and his attempt to apportion some blame to Patient A for “flirting” with him;
• The Registrant abused the trust placed in him by Patient A by taking advantage of the situation for his own personal interests;
• The Registrant’s misconduct crossed professional boundaries and was a violation of those boundaries;
• The Registrant has failed to engage fully or meaningfully with his regulator during the investigation and hearing of this allegation.

73. The Panel considered the following mitigating features:

• The Registrant repeatedly expressed his remorse in interviews with his employer and with the police;
• The Registrant offered to send a letter of personal apology to Patient A;
• The Registrant did apologise to Patient A via Facebook which, although inappropriate and misguided, the Panel has found was genuine and not sexually motivated;
• The Registrant has no previous findings of a regulatory nature and his employer commented that there were no concerns with his clinical skills or abilities;
• The misconduct, whilst serious, was isolated to one episode on one day with one patient and there is no evidence of any repetition.

74. The Panel considered the purpose of imposing any sanction was primarily to address the risk to public safety from the perspective of the risk which the Registrant may pose to those who use or need his services.  However, the Panel also considered the wider public interest which includes:
• the deterrent effect to other registrants;
• the reputation of the profession of radiography;
• public confidence in the regulatory process.

75. The Panel considered the available sanctions in ascending order with the least serious sanction from the Registrant’s perspective first. 

76. The Panel considered that the Registrant’s misconduct was too serious to take no further action.  To take no further action would send out the wrong message to the profession and to the public about how sexually motivated behaviour should be addressed and would undermine confidence in the profession and in the HCPC as the regulator.  It would also do nothing to address the areas of concern about the Registrant’s professional attitudes and behaviour which are in need of remedying.

77. For the same reasons the Panel also concluded that mediation was inappropriate in this case. 

78. In considering whether to impose a caution order, the Panel noted that the misconduct was an isolated incident and did occur within the context of one appointment with one patient.  However, the misconduct was not minor in nature.  The two sexually motivated comments made to Patient A were serious failings which crossed the boundaries between patient and practitioner.  Furthermore, the Panel concluded that the risk of repetition which exists in view of a lack of evidence of full insight or remediation, indicates that a caution order would not be appropriate.

79. The Panel next considered whether to impose a conditions of practice order.  The Panel has no recent information from the Registrant as to his current status or intentions regarding work.  The most recent information dated back to June 2016 when, in his email to the HCPC, the Registrant stated: “I am now out of the country and no plans of coming back.”  Whilst the Panel could have devised conditions that would protect patients, the Panel concluded that such an order would not satisfy the public interest in view of the seriousness of the misconduct in this case.   In addition, due to the lack of engagement by the Registrant the Panel has no confidence that the Registrant would comply with any conditions imposed upon him.

80. Taking into account the Registrant’s misconduct, which has the potential to cause harm to patients, and the Registrant’s failure to acknowledge the seriousness of his failings, the Panel is of the view that a Suspension Order for 12 months is appropriate. The Registrant’s misconduct was a one-off, isolated incident and is remediable.  The Panel consider that the Registrant may have the capacity to resolve the prevailing issues and a period of suspension will enable him to seek to address those issues. 

81. The Panel is also of the view that a Suspension Order will adequately protect the public as, given the risk of recurrence, it will restrict the Registrant from practising.  There is also a particular need in the circumstances of this case to deter others, who may find themselves in similar situations, from acting in the way proved against this Registrant.

82. The Panel is aware that suspending the Registrant’s right to practise may well impact upon him financially and may have an adverse effect upon his professional reputation.  However, the Panel considers that the Registrant’s interests are outweighed by the public interest in this regard as it is necessary to impose such an order to protect service users, to maintain and uphold proper standards of conduct and to maintain confidence in the profession and the regulatory process.

83. The Panel considered whether to impose a Striking Off Order but it determined that the Registrant’s failures, whilst serious, were not fundamentally incompatible with his remaining on the Register.  The Panel noted that the evidence stated that there had been no concerns about the Registrant’s competence.  It noted that since working as a radiographer there have been no previous findings against the Registrant.  For these reasons the Panel concluded that to permanently deprive the public of the services of the Registrant would, at this stage, be disproportionate.  The Panel concluded that the Registrant should be given an opportunity to address the findings of this Panel and the reasons which led to the referral, and on that basis, a Suspension Order would be appropriate.

84. This Order will be reviewed before its expiry.  The Reviewing Panel may be assisted by the Registrant’s attendance at the hearing and by having before it (submitted by the Registrant) the following:

• Evidence that the Registrant has understood the gravity of his misconduct;
• Written evidence from the Registrant addressing how he has reflected upon this Panel’s findings, upon the HCPC standards which he breached, how he intends to ensure that his misconduct will not be repeated and his intentions regarding returning to work;
• Evidence that the Registrant has kept his professional knowledge up to date;
• Written testimonials from any paid or unpaid work which the Registrant has undertaken during the period of the suspension order.

85. In view of the absence of any information from the Registrant as to his current status with regards to his employment and the serious departure from the standards expected of the Registrant, the Panel concluded that imposing the maximum period of 12 months was appropriate.  Such time will give the Registrant the opportunity to address and reflect upon the findings of the Panel.

Order

That the Registrar is directed to suspend the registration of Mr William Santos for a period of 12 months from the date this order comes into effect.

Notes

An Interim Suspension Order was imposed to cover the appeal period.

Hearing history

History of Hearings for Mr William Santos

Date Panel Hearing type Outcomes / Status
28/03/2017 Conduct and Competence Committee Final Hearing Suspended
14/03/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
08/12/2016 Conduct and Competence Committee Interim Order Review Interim Suspension
24/06/2016 Investigating committee Interim Order Application Interim Suspension