Mr Michael J Scott

Preliminary Matters

Service

1. The Panel first considered the issue of service as the Registrant was not in attendance or represented at the hearing.

2. The Panel had been provided with the Registrant’s e-mail within the Certificate signed by the Registrar dated 14 November 2023. This confirmed the email address for the Registrant.

3. The Panel had sight of the Notice of Hearing dated 14 November 2023, which confirmed the date and time of the hearing, as well as informing him this would be a virtual hearing. It also offered the Registrant an opportunity to make submissions at the hearing and informed him that the Panel may proceed in his absence.

4. The Panel noted that the Registrant’s representatives were copied into the email.

5. The Panel accepted the advice of the Legal Assessor that good service was effected by notifying the Registrant of the time and date of the hearing at his registered email address or by post to the address within the HCPC register.

6. The Panel was satisfied that fair, proper and reasonable notice of the hearing today had been served on the Registrant by post and served on his representative by email. The Panel determined that notice had been properly served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).

Proceeding in the absence of the Registrant

7. The Panel had sight of the telephone attendance note dated 29 September 2023 where Capsticks LLP, acting for the HCPC, returned a call to the Registrant’s representative and informed the representative that a final hearing will be listed. The Registrant’s representative confirmed there were no documents to provide, the Registrant did not intend to attend the hearing. The Registrant’s representative had been copied into the email when the Notice of Hearing dated 14 November 2023 was served and there had been no response.

8. In support of the application to proceed in the Registrant’s absence, the Panel has been provided with submissions by the HCPC. Mr Collins submitted that there had been concerns about listing and delays via the Registrant’s representative, thus indicating the Registrant is keen to resolve this as soon as possible. He also submitted that the Registrant’s representative confirmed that there are no documents to be submitted and that there is no intention to attend the hearing. Mr Collins submitted that the Registrant has voluntarily absented himself and that even if it was adjourned there is no indication of attendance. Finally, he submitted that there is a public interest to conclude the case expeditiously.

9. The Panel considered the HCPTS Practice Note on “Proceeding in the absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution. The Panel was satisfied that the Registrant had received reasonable notice of today’s hearing and had waived his right to appear.

10. The Panel determined that it was fair and reasonable and in the interest of justice to proceed in the Registrant’s absence as it had found that good service has been effected and that there is a general public interest for a hearing to take place within a reasonable time. It determined that it is in the interests of justice that the hearing takes place as soon as possible.

11. The Panel concluded that the Registrant has voluntarily absented himself as per the telephone call between Capsticks LLP and his representative, no adjournment had been sought and adjourning would serve no useful purpose. Any disadvantage to the Registrant is significantly outweighed by the public interest in ensuring that this hearing proceeds expeditiously. The Panel therefore determined to proceed in the absence of the Registrant.

Application to amend particulars

12. The Panel heard an application made by Mr Collins, representing the HCPC, to amend the wording of particulars.

13. The proposed amendment was to change the date in the stem of particular 1 and to add wordings into particular 1a namely as follows:

1. On 22 September 2022 31 August 2022 you were convicted at Bromley Magistrates’ Court of the following:
   a. On or before 29/10/2020 at a location within the jurisdiction of the central criminal courts made an indecent photograph, namely one category A indecent image of a child contrary to sections 1(1)(a) and 6 of the Protection of Children Act 1978.

14. Mr Collins relied upon the skeleton argument within the bundle. Within this, he had submitted that the proposed amendments reflect the wording of the Certificate of Conviction and take into account the guilty plea presented by the Registrant on 31 August 2022, following which the conviction took effect. In the hearing, he also submitted that the wording to be added to particular 1a reflected the Certificate of Conviction, the same wording was in fact used in particulars 1b and 1c, and had been omitted in error by the HCPC. Mr Collins submitted that the Registrant had been put on notice of the application to amend the allegation on 28 September 2023.

15. The Panel had sight of the letter dated 28 September 2023 from Capsticks LLP to the Registrant’s representative where the Registrant was put on notice and requested to inform whether he objected to the proposed amendment. The Panel also had sight of the telephone attendance note dated the following day, on 29 September 2023, where the Registrant’s representative discussed various matters but made no comment in relation to the proposed amendments.

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

17. The Panel noted that the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’) were silent on amendments in such circumstances; the key question was one of fairness.

18. The Panel was of the view that the proposed amendment was in the interest of justice and would also assist in making the particulars more accurate. The amendments were minor and the change was proportional to the issues to be considered. The Registrant had raised no objection to the proposed amendment. The Panel was satisfied that there would be no prejudice to the Registrant and no injustice would be caused to either party by the proposed amendment being allowed.

19. The Panel acceded to the application and allowed the amendments.

20. The amended stem of particular 1 and amended particular 1a were now as follows:

1. On 31 August 2022 you were convicted at Bromley Magistrates’ Court of the following:
a. On or before 29/10/2020 at a location within the jurisdiction of the central criminal courts made an indecent photograph, namely one category A indecent image of a child contrary to sections 1(1)(a) and 6 of the Protection of Children Act 1978.

Background

21. The Registrant was a self-employed as an Art Therapist.

22. On 18 June 2020 the HCPC received a handwritten letter from the Registrant by post, dated 8 June 2020, informing the HCPC that he had been arrested for an offence and released on bail pending further investigation.

23. On 22 December 2022, South London Magistrates’ Court emailed a copy of the Certificate of Conviction confirming that the Registrant had pleaded guilty and was convicted on 31 August 2022. The following orders were made:

• Community Order was made with a curfew and electronic tag requirement from 22 September 2022 to 21 September 2023;
• Rehabilitation Activity Requirement up to a maximum of 30 days;
• The Registrant was required to register with the police in accordance with the Sexual Offences Act 2003 from 22 September 2022 for five years.

The Hearing

24. No formal admissions had been made.

25. No live evidence was heard and no witness statements were submitted.

26. The HCPC relied upon the Certificate of Conviction. Mr Collins relied upon his skeleton argument as well as submissions made at the hearing.

27. The Panel did not have any live evidence or submissions from the Registrant to consider.

Decision on Facts

28. Before making any findings on the facts, the Panel heard and accepted the advice of the Legal Assessor. The Panel has read the bundle from the HCPC and noted the Registrant’s representative had stated on 29 September 2023 that there were no documents relied upon by the Registrant.

29. In reaching its decision on the facts, the Panel has borne in mind that the burden of proof rests on the HCPC and it is for the HCPC to prove the Allegation irrespective of any admissions made by the Registrant. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities. The Panel has carefully considered the evidence in the round, giving appropriate weight to the documentary evidence.

30. The Panel acknowledged that the Registrant has no previous fitness to practice history.

Particular 1a – c - Proved

31. The HCPC obtained a Certificate of Conviction from South East London Magistrates’ Court signed by a representative of the court on 22 December 2022. This confirmed that the Registrant had pleaded guilty to making indecent photographs of children, namely one Category A indecent image, three Category B indecent images and three Category C indecent images. The Registrant was convicted on 31 August 2022.

32. It also confirmed that on the same date the Registrant was required to register with the police in accordance with the Sexual Offences Act 2003 from 22 September 2022 for five years.

33. The fact of the Registrant’s conviction as alleged in Particular 1 is proved by the extract of conviction. The Panel relied on Rule 10 (d) of the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003 states that “where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland an extract of conviction) shall be admissible as proof of the findings of fact upon which it was based.”

Decision on Impairment

34. The Panel took into account the submissions of Mr Collins on behalf of the HCPC. The Panel had regard to the HCPTS Practice Notes on “Fitness to Practise Impairment” and “Conviction and Caution Allegations” and accepted the advice of the Legal Assessor.

35. The Panel has approached its decision on impairment by looking at the situation as it is today. It has had regard to the HCPTS Practice Note “Fitness to Practise Impairment”.

36. The Panel’s primary objective is the protection of the public, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

37. In reaching a decision on impairment, the Panel has considered all of the evidence and the submissions and has exercised its’ own judgment on impairment.

38. Whilst there is no statutory definition of impairment, the Panel was assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report, as adopted by the High Court in CHRE v NMC & Grant [2011]. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in that he:

a) Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b) Has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c) Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession.

39. In approaching the question of impairment, the Panel has considered the personal and public components.

40. The Panel noted there was no character evidence or submission of references on behalf of the Registrant. The Panel did accept the Registrant had no previous regulatory findings against him.

41. By reason of his conviction, the Registrant was in breach of the following standards of the HCPC Standards of Conduct, Performance and Ethics (2016):

• Standard 9.1 - “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.” The Registrant had abused the public’s trust in him by reason of the offences and conviction.

42. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel took into account both the “personal” and “public” components of impairment referred to in the case of Grant. The “personal” component relates to the Registrant’s own practice as an Art Therapist, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

43. With regard to the “personal” component of impairment, a guilty plea at the first opportunity would indicate greater insight but the Panel noted the ‘Case file summary – Police report’ within the bundle. The Registrant had been interviewed on 29 October 2020 and on 19 May 2022. On both occasions he did not answer any of the questions, and accordingly the investigation remained ongoing as there was no guilty plea. The Certificate of Conviction confirms the guilty plea at that stage on 31 August 2022. The Registrant waited until later in the court process before pleading guilty.

44. Part of insight involves recognising the consequences of one’s actions. There had been no evidence from the Registrant on his insight at all. It was noted by the Panel that this type of conduct is difficult to remediate. The Panel were not satisfied that the Registrant had demonstrated any action to adequately address his behaviour and to avoid future repetition. There was no evidence of insight, and the delayed guilty plea had a reduced effect on displaying any potential insight. There was no evidence that Registrant understood the implications of the offence and thus there remained a risk of repetition. The Panel therefore found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.

45. The Panel also found the “public” component of impairment to be satisfied in this case. A member of the public would be extremely concerned if an Art Therapist convicted of possessing indecent images of children was permitted to continue in practice without restriction. In the Panel’s judgement, the Registrant poses a potential risk to members of the public and a finding of current impairment is necessary for public protection.

46. In addition, the Panel considered that a finding of current impairment is necessary to uphold professional standards. Public confidence in the profession and in the HCPC as its Regulator would be seriously undermined if there were no finding of impairment given the gravity of the conviction.

47. Accordingly, the Panel found that the Registrant’s fitness to practise is impaired having regard to both the “personal” and “public” components of impairment.

Decision on Sanction

48. The Panel heard submissions from Mr Collins and in reaching a decision on the sanction it has taken these submissions into account. He submitted the HCPC do not make any specific submissions on sanction and referred the Panel to the Sanctions Policy.

49. There was no evidence from the Registrant in relation to sanctions for the Panel to consider.

50. The Panel accepted the advice of the Legal Assessor and has reached its decision on sanction by following the guidance in the HCPC Sanctions Policy.

51. The Panel has had regard to all the evidence presented. It reminded itself that a sanction is not intended to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality and that a sanction must be reasonable and the least restrictive possible.

52. The primary function of any sanction is to address public safety from the perspective of the risk which the Registrant may pose to patients and to the wider public interest; namely the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

53. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

54. The Panel considered the specific guidance on ‘Offences related to indecent images of children’ within the HCPC’s Sanction Policy:

‘87. Under the Protection of Children Act 1978 it is illegal to take, make, distribute, show or advertise indecent images of children.

88. The courts categorise offences relating to indecent images of children based on the nature of the images and the offender’s degree of involvement in their production.

89. Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter. In particular, it undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction.’

55. The Panel began its deliberations on sanction by considering the mitigating factors. The Registrant has not been subject to any previous fitness to practise proceedings. There was a guilty plea, although this was certainly not on the first available occasion.

56. The Panel then considered the aggravating factors and considered there had been a criminal conviction in relation to offences relating to indecent images of children, which are always a very serious matter. There remained a risk of repetition. There was no evidence available to the Panel of remediation or reflection.

57. The Registrant’s actions had led to convictions by the criminal court. The Registrant was still on the sex offender’s database which is normally a strong factor against a return to unrestricted practice.

58. The Panel next considered the sanctions in ascending order of gravity.

59. It has found that it is not appropriate to make No Order because of the serious nature of the incident.

60. A Caution Order is not appropriate because the conduct found proved was too serious. The misconduct was of a serious nature, there was no evidence of insight, there is a risk of repetition and no evidence of remediation.

61. The Panel next considered a Conditions of Practice Order. The Panel did not consider conditions as appropriate for sexual misconduct. There had been no insight displayed. There was no evidence that the misconduct could be remedied. There were no workable conditions that could be formulated in this specific case, and the Panel had no confidence that in any event conditions formulated would be complied with by the Registrant. The Registrant’s misconduct was serious and there was a risk of repetition. In the circumstances it has determined that the Registrant’s misconduct was too serious for a Conditions of Practice Order to be appropriate.

62. The Panel next considered a Suspension Order. The Panel noted suspension was not appropriate where there is a lack of insight and a risk of repetition. There was no evidence to indicate that the Registrant is likely to be able to resolve or remedy his failings. The Panel considered the offences were serious involving sexual misconduct involving Category A-C indecent images of children, there was a lack of insight, an absence of remediation and there remained a risk of repetition. The Panel considered it was not in the interest of the public for there to be a Suspension in such circumstances.

63. Finally, the Panel considered a Striking Off Order, which was an option that was open to the Panel. The Panel were fully aware that a Striking Off Order is a sanction of last resort for serious, persistent, deliberate, or reckless acts involving sexual misconduct and criminal convictions. The Panel was satisfied that given the circumstances of this case a Striking Off Order was necessary and appropriate. There had been no insight shown into the criminal behaviour of the Registrant, and the Panel remained concerned of the high risk of repetition.

64. The Panel was satisfied that due to the nature and gravity of the concerns that any lesser sanction than a Striking Off Order would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process. There was no insight and the serious misconduct was fundamentally incompatible with remaining on the HCPC register.

65. The Panel was satisfied that a Striking Off Order was the most appropriate sanction, having considered lesser sanctions before arriving at this order.

ORDER: That the Registrar is directed to strike the name of Mr Michael J Scott from the Register on the date this order comes into effect.

Application for an Interim Order

Application to proceed in the Registrant’s absence:

66. Mr Collins made an application in relation to two preliminary matters. The first that the Registrant was clearly on notice by virtue of the Notice of Hearing email dated 14 November 2023 that an application for an Interim Order may be made in the event of the Panel determining a sanction of Conditions of Practice, Suspension Order or Strike Off. Mr Collins also made an application to proceed in the absence of the Registrant for all the reasons previously raised.

Panel decision to proceed in the absence of the Registrant:

67. The Panel heard and accepted the advice of the Legal Assessor. The Panel determined that the Registrant was on notice that such an application may be made. The Panel also determined that it should proceed in the absence of the Registrant. For the reasons set out earlier in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined it would be fair, proportionate and in the interest of justice to consider this application.

Application for an Interim Suspension Order:

68. The Panel heard an application from Mr Collins to cover the appeal period by imposing an Interim Suspension Order on the Registrant’s registration.

69. Mr Collins submitted that given the Panel’s findings, the HCPC seek a Interim Order to cover the appeal period for 18 months.

Panel decision on an Interim Order

70. The Panel accepted the advice of the Legal Assessor. The Panel had careful regard to Paragraphs 133-135 of the Sanction Policy and to Paragraph 3.4 of the HCPTS Practice Note on Interim Orders, which offer guidance on interim orders imposed at final hearings after a sanction has been imposed.

71. The Panel recognised that its powers to impose an interim order are discretionary and that imposition of such an order is not an automatic outcome of fitness to practice proceedings in which a Striking Off Order has been imposed. The Panel took into consideration the impact of such an order on the Registrant.

72. The Panel decided to impose an Interim Order under Article 31(2) of the Health Professions Order 2001. It has had regard to the nature and gravity of the conduct it has found proved. The Panel was satisfied on the basis and requirement of an Interim Order given the facts found proved. In the judgment of the Panel, the risk of repetition identified in the substantive decision and the associated risk of harm that could result from repetition mean that an Interim Order is necessary to protect members of the public. It is also required in the wider public interest. The Panel was in no doubt that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an Art Therapist during the appeal period.

73. The Panel first considered whether an Interim Conditions of Practice order should be imposed. The Panel had already determined that there were no workable conditions relevant to this case and this remained true now. There was no information as to what the Registrant is currently doing in terms of his work, and the Panel had no confidence that he would comply with any such conditions. Accordingly, the Panel determined the only appropriate interim order is an Interim Suspension Order.

74. The period of the Interim Suspension Order is for 18 months to allow for the possibility of an appeal to be made and determined.

75. If no appeal is made, then the Interim Order will be replaced by the Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.

Interim Suspension Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This Order will expire (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision an Order) the final determination of that appeal; subject to a maximum of 18 months.

History of Hearings for Mr Michael J Scott