Mr Matthew Joseph

Preliminary Matters

Service

1. The Panel was provided with a Service Bundle from which it noted that the Notice of Hearing dated 04 October 2024 (“the Notice”) had been served on the Registrant by email to his registered email address. The Notice informed the Registrant of the date, time and place (virtual) of the hearing.

2. The HCPC also provided the Panel with a copy of the email header confirming delivery of the email and a certificate demonstrating the Registrant’s registered email address. The Panel was satisfied that notice of the hearing had been served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) (“the Rules”).

Proceeding in Absence

3. The Registrant did not attend the hearing and was not represented. Ms Bass made an application for the Panel to proceed in the Registrant’s absence. Ms Bass referred the Panel to the HCPTS’ Practice Note on ‘Proceeding in the Absence of the Registrant’ (“the Practice Note”). Ms Bass relied in addition on a small bundle of recent correspondence with the Registrant.

4. Ms Bass submitted that, although the Registrant had confirmed in correspondence his availability for the two hearing dates and an intention to attend, his engagement in the period prior to the hearing had been sporadic. Ms Bass submitted that the Panel could be confident that the Registrant is aware of the hearing. He had corresponded from the email address used for service of the Notice. Ms Bass said that the Registrant had not responded to recent attempts by the Hearings Officer to contact him. There was no request to adjourn the hearing. If the case was to adjourn, this would have to be for at least the 28-day period required for further notice, and the current hearing had been listed six months after the case was ready for hearing.

5. Ms Bass submitted that the Panel should consider the disadvantage to the Registrant in proceeding in his absence. She submitted that this was a ‘conviction’ case. There were no witnesses to question. The Panel, if proceeding, would not hear the Registrant on questions of impairment or other relevant matters. However, she submitted, the Registrant had not taken any earlier opportunity to provide submissions relevant to the matter of current impairment or any other possible stage of the proceedings.

6. Ms Bass submitted that the offences underlying the convictions are serious and the allegation of impairment is a serious one, with potentially serious consequences. In addition, she submitted, it was necessary to consider the public interest in dealing with the case expeditiously.

7. The Legal Assessor advised the Panel that, pursuant to Rule 11, it had a discretion to proceed, notwithstanding the absence of the Registrant, or any representative for him, if it was satisfied that all reasonable steps had been taken to inform him of the hearing. He referred the Panel to the cases of R v Jones [2002] UKHL 4 and GMC v Adeogba [2016] EWCA Civ 162 and the factors set out in those judgments. He advised the Panel that notice had been sent for both days of the hearing and the Panel could, if appropriate put back the hearing to 20 November, without needing to serve further notice.

8. The Panel took time to consider the application. It took into account the submissions made by Ms Bass and accepted the legal advice of the Legal Assessor. It took into account the Practice Note. The Panel bore in mind that the discretion to proceed in the absence of the Registrant must be exercised with utmost care and caution.

9. The Panel was satisfied that the Registrant had been served with the Notice and took into account that he had confirmed his availability for the two listed dates. It was clear that the Registrant is aware of the hearing today. The Panel acknowledged that, if proceeding, it would not hear further from the Registrant, and this would be to the Registrant’s disadvantage. The Panel took into account that the Registrant had provided no submissions or information regarding his position, in advance of the hearing, despite invitation to do so by the HCPC. It noted that the Registrant’s engagement had been sporadic. He had not responded to attempts to contact him by telephone and email.

10. The Panel took into account that the Allegation concerned convictions which were serious and in respect of which the HCPC’s written submissions were that there was a risk of harm to the public.

11. Although, if the Panel adjourned until the second day listed, the Registrant might attend then, the Panel had no indication this was the case. The Registrant had provided no indication of having a difficulty in attending, despite having been in communication with the HCPC previously. No request for an adjournment had been put before the Panel. The Panel took into account that the hearing, if not commencing on the first day, may not conclude within the allotted hearing time, which might result in a significant delay in concluding the proceedings.

12. Having carefully weighed the Registrant’s interests with the public interest, the Panel decided that it should proceed with the hearing in the Registrant’s absence and that this was fair and appropriate.

Background

13. The Registrant is a radiographer registered with the HCPC. The HCPC received a referral regarding the Registrant dated 07 October 2020 which raised concerns over the Registrant’s alleged conduct towards two female work colleagues.

14. The concerns were also reported to the Police. Criminal prosecutions had followed, and it was alleged that the Registrant had been convicted of four criminal offences and sentenced on 21 November 2023.

Facts Stage

15. Ms Bass submitted, at the factual stage of the hearing, that the Panel should find the facts alleged in Particular 1 of the Allegation proved. She referred the Panel to the certificate of conviction provided in evidence and Rule 10(1)(d).

16. The Legal Assessor advised the Panel that the burden of proving the facts lay on the HCPC, to prove the facts on the balance of probabilities. He referred the Panel to Rule 10(1)(d) which provides:

“…where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based…”.

Decision on Facts

1. On 21 July 2023, you were convicted at Sheffield Crown Court of four counts of “sexual assault on a female” contrary to section 3 of the Sexual Offences Act 2003.

17. The Panel was provided with a hearing bundle which included a certificate of conviction from the Crown Court at Sheffield dated 21 May 2024 together with the sentencing remarks of the learned judge on 21 November 2023.

18. The Panel noted that, pursuant to Rule 10(1)(d), a certificate of conviction shall be admissible as proof of the conviction and the findings of fact on which the conviction is based. The Panel found that the certificate of conviction proved that the Registrant had been convicted of four counts of sexual assault on a female contrary to section 3 of the Sexual Offences Act 2003, because these convictions were clearly set out in the certificate of conviction.

19. The Panel found particular 1 of the Allegation proved.

Grounds for Impairment Stage

20. Having found the facts proved, the Panel next considered the statutory grounds of impairment relied on in the Allegation.

21. It had been submitted on behalf of the HCPC that it relied on Article 22(1)(a)(iii) as the ground of impairment, being that there were convictions in the United Kingdom for a criminal offence.

22. The Legal Assessor advised the Panel that it should consider whether the facts found proved also satisfied the statutory ground of impairment relied on.

Decision on Grounds

23. The Panel considered Article 22(1)(iii) of the Health Professions Order 2001 (as amended) (“the Order”) which sets out that “a conviction or caution in the United Kingdom for a criminal offence…” is a statutory ground of impairment under the Order. It took into account the submissions of the HCPC and accepted the legal advice.

24. The Panel was satisfied that the facts found proved amounted to convictions in the United Kingdom for criminal offences and there was therefore, in its judgement, a valid ground of impairment.

Impairment Stage

25. On the matter of current impairment of fitness to practise, Ms Bass relied on the HCPC’s written Skeleton Argument. It was submitted that, notwithstanding the learned Judge’s sentencing remarks in November 2023, that the Registrant would never offend again, the evidence showed that the Registrant continued to present a real risk to the public of significant harm. Ms Bass submitted that the Panel was not bound by these particular sentencing remarks of the sentencing Judge (“the Judge”).

26. Further, it was submitted, the allegations were so serious that to not find impairment would undermine confidence in the profession and in the regulatory process.

27. Ms Bass reminded the Panel of the test of impairment taken from Dame Janet Smith’s Fifth ‘Shipman’ Report. She submitted that the Registrant had acted to put the patient at risk of harm, in particular in relation to the offence where a cannula had been knocked out of a patient’s arm due to the assault on the Registrant’s colleague. She submitted that the Registrant’s colleagues had also been put at risk of harm by his behaviour.

28. Ms Bass submitted that the conduct underlying the convictions amounted to a breach of professional boundaries, which had also breached the requirements of Standard 9.1 of the ‘Standard of conduct performance and ethics’ (“You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”).

29. Ms Bass submitted that the Panel had not heard anything from the Registrant concerning how he might have addressed a risk of repetition. There were the Judge’s sentencing remarks, but the Panel was at liberty to make its own conclusion. The Judge had referred to the Registrant’s ‘predatory’ behaviour.

30. Ms Bass submitted that, even if there was no risk of repetition found, the nature of the allegations and the findings of fact underlying the convictions meant that public confidence in the profession would be undermined unless there was a finding of impairment. She invited the Panel to find that the Registrant’s fitness to practise is impaired.

31. The Legal Assessor advised the Panel that Impairment is a matter for its own judgement. He referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’. He referred the Panel to the test of impairment from Dame Janet Smith’s report, also referred to in CHRE v NMC & Grant [2011] EWHC 927 (Admin) as being the correct test. The Legal Assessor advised the Panel that it should consider the risk of repetition, including whether the past conduct was remediable, had been remedied and was highly unlikely to be repeated. It had also to consider whether the Registrant’s past conduct leading to the conviction had violated fundamental rules of the professional relationship, such that a finding of impairment was necessary to maintain public confidence in the profession.

Decision on Impairment

32. The Panel considered whether there was a risk of the Registrant repeating his behaviour leading to the convictions. It took into account that the Registrant had been convicted of four offences of sexual assault on a female.

33. The Panel noted that the Judge had described the Registrant’s behaviour as predatory. The Judge had expressed that the Registrant had known what he had done was wrong and had known that he was ‘pushing on the boundaries’.

34. The Panel noted that it had no information that the Registrant had expressed any insight into the matters behind the convictions, including at the trial in which he contested the charges. Although the Judge had expressed a view he knew that the Registrant would never offend again, it considered this was an expression of opinion on the Judge’s part.

35. The Panel accepted the submission that the Registrant’s conduct had put, on one occasion a patient, but also his colleagues, at risk of significant harm. He had also breached a fundamental tenet of the profession, by not respecting boundaries and thereby not justifying the public’s trust in the profession.

36. The Panel considered that the repeated conduct which had led to the convictions indicated attitudinal issues regarding the potential for seriously inappropriate conduct which involved a risk to the public, including the Registrant’s colleagues, of significant harm. The Panel had no further information provided to it by the Registrant which demonstrated that he had reflected on the conduct which had led to the convictions, or that he had undertaken any work in remediation of the past conduct.

37. The Panel therefore concluded that there was a risk of the Registrant repeating the conduct which resulted in the convictions in this case.

38. Further, taking into account the serious nature of the convictions and that there were four such convictions, involving conduct both in the workplace and outside of work, the Panel considered that these demonstrated significant breaches of fundamental tenets of the profession. It concluded that members of the public would be very shocked by a professional having convictions of this nature. Therefore, a finding of impaired fitness to practise is also necessary in order to maintain public confidence in the profession and to declare proper professional standards.

39. The Panel found that the Registrant’s fitness to practise is impaired.

Sanction Stage

40. Having found that the Allegation is well-founded and that the Registrant’s fitness to practise is impaired, the Panel was required to consider its powers of sanction, pursuant to Article 29 of the Order.

41. Ms Bass made no positive submission on the matter of sanction, but outlined for the Panel the principles which she submitted should guide the Panel in its decision-making.

42. Ms Bass referred the Panel to the HCPC’s Sanctions Policy (March 2019) (“SP”), paragraphs of which she submitted the Panel might find had particular relevance to the case.

43. Ms Bass submitted that in terms of aggravating factors, there was evidence of repetition of conduct underlying the convictions, in that there were four convictions. She reminded the Panel of its finding that there were attitudinal concerns and a lack of insight or demonstrated remediation.

44. Ms Bass referred the Panel to paragraph 76 of the SP on the matter of ‘sexual misconduct’, paragraph 85 concerning the Registrant being listed on the Sex Offenders’ Register and reference to ‘sexual misconduct’ and ‘criminal convictions for serious offences’ in the list of types of behaviour in paragraph 130.

45. Paragraphs 85 and 86 of the SP state:

“85. Although inclusion on the sex offenders’ database is not a punishment, it does serve to protect the public from those who have committed certain types of offences. A panel should normally regard it as incompatible with the HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice while they are on the sex offenders’ database.

86. Where the panel deviates from this approach, it should provide clear reasoning.”

46. The Legal Assessor advised the Panel that, having found the Allegation well-founded, it had to consider its power to sanction, pursuant to Articles 29(4) and 29(5) of the Order. It should approach the potential sanctions in order from the least restrictive, imposing the minimum sanction which was sufficient to protect the public. The Panel should be guided in its decisions by the SP, and if departing from the guidance, should provide clear explanation. In imposing any sanction, he advised, the Panel must balance the Registrant’s interests with the public interest.

47. The Legal Assessor also referred the Panel, in light of the reference to paragraphs 85 and 86 of the SP, to the cases of CHRE v GDC & Fleischmann [2005] EWHC 87 (Admin) and PSA v GDC & Patel [2024] EWHC 243 (Admin), concerning a Registrant’s return to practice whilst subject to criminal sanction. In Patel, the court had stated that the ‘general principle’ from Fleischmann - that an individual who had been convicted of a criminal offence should not be permitted to resume practice until he/she had completed their sentence - had to bend to the requirement to impose a sanction which is just, proportionate and necessary to maintain public confidence.

Decision on Sanction

48. The Panel reflected on its findings of fact and impairment at earlier stages of the proceedings. It took into account that the Registrant had been convicted of four sexual assaults and, in passing sentence, the court had decided that this had passed the threshold for imposing a custodial sentence.

49. The Panel considered whether there were any aggravating or mitigating factors to take into account at the stage of deciding sanction. It considered that the repetition of the offences aggravated the case. Further, the Panel had no information that the Registrant had insight into the convictions. The Panel considered that there were no particular factors which mitigated the convictions.

50. The Panel also took into account the guidance in the SP concerning criminal convictions, where this guidance states that further action is only required if impairment of fitness to practise had been found as a consequence of a conviction, as the Panel had found in this case.

51. The SP also states that a Registrant normally should not be allowed to resume practice, whilst a criminal sentence has not been satisfactorily completed. The Panel considered that this reference to the Fleischmann ‘general principle’ was to be measured against the general principle of proportionality.

52. The Panel took into account that, although the Registrant had completed the custodial part of his sentence, his name was to remain on the Sex Offenders’ Register for 7 years from the date of conviction. The Panel considered that this had relevance to the question of the Registrant being allowed to return to practice.

53. The Panel considered each possible sanction in ascending order of restriction. It decided that this is not an appropriate case for engaging in mediation or taking no action. In either case, this would allow the Registrant to return to unrestricted practice and this would leave the public unprotected when the Panel had found a risk of repetition.

54. The Panel decided that a caution order, which it could impose for up to 5 years, would serve to mark disapproval. However, in light of the seriousness of the four convictions and the risk of repetition of harm found by the Panel, it considered this case too serious for a caution order.

55. The Panel next considered a conditions of practice order. It noted paragraph 107 of the SP. This states:

“Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings…”

56. The Panel considered that it had no information which indicated that the Registrant is committed to resolving any concerns. He had not engaged with the hearing and the convictions were serious. Also, paragraph 108 of the SP stated that conditions are less likely to be appropriate in more serious cases, for example, ‘sexual misconduct’ and ‘criminal convictions for serious offences’.

57. The Panel took into account paragraphs 76 and 77 of the SP, which state:

“76. Sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating someone.

The misconduct can be directed towards:
• service users, carers and family members;
• colleagues; and
• members of the public.

77. Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning.”

58. The Panel decided that it was not commensurate with the seriousness with which the Panel regarded the four convictions to impose a conditions of practice order.

59. The Panel therefore went on to consider whether it should impose a suspension order on the Registrant’s registration, which could be imposed for up to one year. The Panel took into account that suspending the Registrant’s registration served to protect the public, for the period of the suspension. It also sent out a signal to the public and to the profession of the conduct which was regarded as appropriate for professionals.

60. The Panel noted that the SP states that a suspension order “is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the Registrant to be struck off the Register” (paragraph 121). The SP goes on to state that, typically, the case would exhibit certain factors, namely:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

61. The Panel considered that there had been a serious breach of the requirement to justify public trust in the profession. In this case, however, the Panel has no information that the Registrant has insight into the convictions. The Panel has also found that there is a risk of repetition of behaviour, and it has no sufficient reassurance that the Registrant is able to resolve or remedy his failings.

62. The Panel therefore decided that a suspension order would not protect the public, particularly in light of the Panel’s finding that the repeated conduct had indicated attitudinal issues, involving a risk to the public of significant harm and it had found that there was a risk of repetition.

63. The Panel noted that the SP states, at paragraph 130, that “a striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts” and listed both ‘sexual misconduct’ and ‘criminal convictions’ as the type of behaviour which may be involved. The Panel considered that the convictions were serious matters, had been repeated acts, and the Registrant had been found criminally culpable for the assaults.

64. Further, paragraph 131 of the SP states:

"A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”

65. In this case, the Panel considered that it had no demonstration of insight from the Registrant. There was no indication of a willingness on the Registrant’s part to resolve matters. The Panel had found that the Registrant had been convicted of four sexual assaults on female colleagues.

66. The offences were serious, and the Panel considered that it had to act to protect the public from the risk of repetition, to maintain public confidence in the profession and the regulatory process and also to declare proper professional standards to the profession and to the public. The Panel concluded that no lesser sanction than striking off satisfied those aims.

67. The Panel acknowledged that it must weigh the Registrant’s interests with the public interest, when determining sanction. The Panel had not heard from the Registrant as to the effect of any sanction, but it took into account that a striking off order may well have a serious effect on the Registrant, in that it may cause the Registrant damage to his professional reputation and/or financial damage.

68. Having considered the seriousness of the convictions, together with the Panel’s finding of impairment, the guidance of the SP and all the circumstances of the case, the Panel was satisfied that the public interest outweighed the Registrant’s interests, and its sanction decision is appropriate and proportionate.

69. The Panel decided that the appropriate and proportionate order is a Striking-off Order.

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

Interim Order

Application

1. Ms Bass applied to the Panel to impose an Interim Order of Suspension, pursuant to Article 31(2) of the Order, on the Registrant’s registration, to cover the period for an appeal of the Panel’s substantive Order, or the period any such appeal would take to dispose of.

2. Ms Bass submitted that, given the Panel’s findings, a Striking Off order was necessary for public protection and in the wider public interest, it would be contrary to those findings for the Registrant to be allowed to return to unrestricted practice during any appeal period. Ms Bass referred the Panel also to Article 31(15) and submitted that the Notice of Hearing had informed the Registrant that he should read the HCPC’s ‘Substantive Hearing Factsheet’. The factsheet informed the Registrant that an interim order can be made at a final hearing.

3. The Legal Assessor advised the Panel of its powers under Article 31(2) to impose either an interim conditions of practice order or an interim suspension order, provided it is satisfied that it is necessary for protection of the public, is otherwise in the public interest, or in the interests of the person concerned. He advised the Panel that it had to be satisfied that the Registrant had been afforded an opportunity to attend and to be heard on the matter. The Panel had to bear in mind its findings so far and, if making an interim order, impose the least restrictive interim order which met those findings. The Panel had to specify the period of any interim order, the maximum being 18 months.

Decision

4. The Panel had previously made a decision to proceed with the hearing in the Registrant’s absence. It considered that the Notice of Hearing had afforded the Registrant an opportunity to attend the hearing. The Notice of Hearing had made clear that the Registrant should read the Substantive Hearings Factsheet. That factsheet had made clear that an Interim Order might be made at the hearing. The Panel was satisfied that the Registrant had therefore been afforded opportunities to attend and be heard on the matter of an order.

5. The Panel took into account its findings on the convictions, impairment and sanction. On the basis of those findings, the Panel found that an Interim Order is necessary for public protection. The public would not be sufficiently protected by interim conditions of practice, based on the Panel’s decisions on sanction as above. In light of the need for public protection, the need for maintaining public confidence meant it is also in the wider public interest for there to be an Interim Order. Since any appeal, if made, was likely to take time to be disposed of, the Interim Order should be for 18 months from today.

6. The Panel therefore makes an Interim Suspension 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.

7. 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 and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mr Matthew Joseph