Brian Ellis

: Operating department practitioner

: ODP12465

Interim Order: Imposed on 05 Apr 2016

: Final Hearing

Date and Time of hearing:10:00 24/04/2017 End: 17:00 24/04/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

The allegation is as follows:

 

On 13 May 2016, whilst registered as an Operating Department Practitioner, you were convicted of:

 

1. Three counts of 'Making an indecent photograph or pseudo-photograph of a child'.

 

2. By reason of your conviction, as set out in particular 1, your fitness to practise is impaired

Finding

Preliminary Matters

Service

1. The Panel had sight of a letter dated 23 November 2016, sent to the Registrant at his registered address, giving notice of today’s hearing. It took legal advice and determined that service had been properly complied with in accordance with the requirements of the Health Professions Council (Conduct and Competence Committee) Rules 2003 (“the Rules”).

Proceeding in absence

2. The Panel accepted the advice of the Legal Assessor, who took the Panel to the Practice Note on Proceeding in the Absence of the Registrant, to Rule 11 and to the guidance given in the cases of Jones [2003] 1 AC 1 and Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC –v-  Adeogba [2016] EWCA Civ 162.

3. The Panel was provided with a letter dated 27 July 2015 sent by the Registrant to the HCPC asking for his name to be removed from the HCPC Register. The Panel was also provided with a Response Proforma entitled “Service of Papers”, completed and signed by the Registrant on 8 March 2017, in which the Registrant indicated that he did not intend to appear in person at the hearing, nor did he intend to be represented.

4. The Panel concluded that the Registrant had been served with the notice of hearing. He had not made an application to adjourn and the Panel concluded that it was unlikely that he would attend if the matter were to be adjourned. The Panel concluded that he had absented himself voluntarily from the proceedings. The Panel bore in mind that it was in the public interest to hear cases expeditiously. Accordingly, the Panel decided to proceed in the absence of the Registrant.

Background

5. The Panel was informed that the police had attended the Registrant’s home address in August 2014 and seized his computer, which was analysed and found to contain downloaded indecent images of children. The Registrant was interviewed by the police on 29 June 2015 and 18 December 2015 in the course of which he admitted viewing indecent images of children.

6. The Panel had sight of a certified Certificate of Conviction which confirmed that the Registrant entered pleas of guilty to three charges of Making an Indecent Photograph or Pseudo-Photograph of a Child, for which he was sentenced at Winchester Crown Court on 13 May 2016 to 8 months’ imprisonment suspended for 24 months, unpaid work for 80 hours, a rehabilitation activity for a maximum of 60 days and was placed on the Sex Offenders Register for 5 years.

7. The Panel had sight of a transcript of the sentencing hearing which provided further details of the three charges as follows:

• Charge 1: 95 images of Category A (defined as penetrative sexual activity between children and adults, sadism and bestiality) of which 80 were still images and 15 were moving images

• Charge 2: 350 images of Category B (defined as non–penetrative sexual activity between adults and children or children and children) of which 348 were still images and 2 were moving images

• Charge 3: 1640 images of Category C (defined as possession of images of children that are indecent and not A and B) of which 4 were moving images
The transcript indicated that the children involved in the images had been aged between 6 and 14.

8. The Registrant had made no further submissions or representations to the HCPC subsequent to his letter of 27 July 2015 save as to his completed Response Proforma dated 8 March 2017 in which he admitted the facts of the allegation.

Decision on Facts

9. The Panel accepted the advice of the Legal Assessor.

10. The Panel accepted the evidence provided by the Certificate of Conviction, and on that basis found Particular 1 proved.

Decision on Impairment

11. The Panel accepted the advice of the Legal Assessor who addressed the Panel on the meaning of impairment and referred to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery council (2) Paula Grant [2011] EWHC 927 and to the Practice Note on Conviction and Caution Allegations.

12. The Panel referred to this practice note and to the practice note on Finding that Fitness to Practice is impaired. The Panel took into account the Registrant’s previous good character together with the fact that he had made admissions in the course of his police interviews and had subsequently entered pleas of guilty at the Crown Court. However, the Registrant had not provided any evidence of remediation or insight. Further, the Panel took account of the following passage in the record of the police interview:

“Ellis stated that “deep down I feel that I’m not hurting anybody” and that the youngest ILOC he has viewed is 9 years old, and had not knowingly downloaded any younger”.

13. In light of the lack of evidence of remediation or insight the Panel concluded that there remained a risk that the Registrant would repeat his behaviour.

14.  In considering the public component the Panel found, in light of the seriousness of the conviction, that a finding of impairment of fitness to practise was justified on the ground that it was necessary to reaffirm clear standards of professional conduct, in order to maintain public confidence in the Registrant and the profession. The offending had taken place over some six years and had included the making of the highest category of indecent images involving children aged as young as 6. In all the circumstances of the case the Panel concluded that the public would be extremely concerned if a finding of impairment was not made in this particular case.

15. The Panel therefore found that the Registrant’s fitness to practise is currently impaired by reason of his conviction.

Sanction

16. The Panel heard submissions from Ms Partos and accepted the advice of the Legal Assessor. It referred to the Indicative Sanctions Policy.

17. The Panel bore in mind that its purpose was not to be punitive, but to protect the public interest. It understood that it must act proportionately, balancing the interests of the Registrant with those of the public. It considered the range of available sanctions in ascending order of seriousness, starting with the option of taking no action.

18. The Panel found, by way of aggravating factors, that the offending that lay behind the convictions:

• had taken place over a period of six years.

• had involved the making of indecent photographs and videos of the most serious category, category A

• had involved vulnerable children, some as young as six years of age

• had not been balanced with any evidence of insight, remorse or remediation

19. The Panel found by way of mitigation that the Registrant

• had admitted his behaviour in his police interviews, in his appearance at the Crown Court and in his HCPC Proforma

• had been of previous good character

20. In view of the seriousness of the case, the Panel concluded that to take no further action or to impose a caution order would not maintain public confidence in the profession and in the regulatory process.

21. The Panel concluded that conditions of practice would be insufficient in light of the seriousness of the allegation, and would be unworkable in light of the nature of the allegation.

22. The Panel gave consideration to a suspension order.  The Panel concluded that such an order would be insufficient because the offences were so serious that a suspension order would fail to maintain public confidence in the profession and in the regulatory process. Furthermore, the Registrant had been made subject to a Sexual Harm Prevention Order for 5 years, commencing on 13 May 2016, and the Panel concluded that to allow the Registrant to remain on the HCPC register whilst he remained subject to registration as a sex offender would be incompatible with the HCPC’s obligation to protect the public.

23. In those circumstances the Panel concluded that a striking off order was the only appropriate order. Such an order was necessary due to the seriousness of the convictions which had led to a sentence of imprisonment, albeit suspended, for behaviour that had involved vulnerable children and the making of the highest category of indecent photographs or pseudo-photographs. Furthermore, the suspended sentence of 2 years from May 2016 is still in effect. The Panel understood that a striking off order was the most serious of all sanctions. However, the Panel had received no reassurance that the Registrant would not repeat the behaviour that led to the convictions and the Panel concluded that there remained a risk that he would reoffend. This was of concern to the Panel as the Registrant’s work as a Operating Department Practitioner had provided the Registrant with access to vulnerable children. Further, the Panel concluded that any lesser sanction would undermine confidence in the profession and the regulatory process.

 

Order

The Registrar is directed to strike the name of Brian Ellis from the Register on 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 Brian Ellis

Date Panel Hearing type Outcomes / Status
24/04/2017 Conduct and Competence Committee Final Hearing Struck off
28/03/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
06/01/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
17/10/2016 Conduct and Competence Committee Interim Order Review Interim Suspension
22/04/2016 Investigating committee Interim Order Application Interim Suspension