Mr Steven P Lowe

Preliminary Matters

1. The final hearing of this case was originally scheduled to take place over seven days commencing on Monday, 4 March 2024. When the hearing commenced, the Registrant was not present. Accordingly, the Panel sought to be satisfied that there had been good service of the notice of hearing.

Notice of hearing

2. The Panel was satisfied that there had been good service of the notice of hearing. It was sent by post to the Registrant on 9 November 2023, and it informed the Registrant of the date and time of the hearing and of the fact that the hearing would be conducted remotely using Microsoft Teams.

Proceeding in the absence of the Registrant

3. After the Panel announced its decision that the Registrant had been given the appropriate notice of this hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant.

4. In reaching its decision on this application, the Panel acknowledged that it was not sufficient that good service of the notice of hearing had been demonstrated; a positive decision would be required that it would be fair in all the circumstances for the direction sought to be made. The Panel had regard to the HCPC Practice Note on the issue and considered the various factors in it.

5. Having given the matter very careful consideration, the Panel concluded that the hearing should proceed in the absence of the Registrant. The reasons for that decision were as follows:

• The notice of hearing had informed the Registrant of the date of the hearing.

• The Registrant’s communications to the HCPC and HCPTS clearly indicated that he had disengaged from involvement in the fitness to practise process. In a communication that was received by the HCPC on 18 August 2022, the Registrant stated that he had believed he had withdrawn from the HCPC. In a communication sent to the Listing Officer received on 1 November 2023, shortly before the Listing Officer sent the notice of hearing, the Registrant wrote, “I will not be contesting the charges, participating or attending the hearing".

• The Registrant had not sought an adjournment of the hearing or otherwise suggested that his absence was because of a difficulty in attending on the specific dates for which it had been listed.

• There were no grounds on which the Panel could conclude that the Registrant would attend on a future occasion were the case to be adjourned.

• These factors meant that the public interest required the hearing to proceed in the absence of the Registrant.

Hearing partially in private

6. At the commencement of the hearing the Panel directed that any reference to confidential information concerning the Registrant should be conducted in a private session of the hearing. This direction was required to protect the Registrant’s private life.

Amendment of the Allegation

7. The amendment set out above was amended in two respects during the course of the hearing:

• The wording of Particular 1(a) as referred to the Conduct and Competence Committee by the Investigating Committee, ended with the words, “…… not the immigrant soup kitchen". During the hearing the Presenting Officer applied to substitute “the” for the word “an”, which was the caption the Registrant added to the photograph when he shared it with the WhatsApp group. The Panel agreed to the application as it reflected the caption the Registrant actually wrote, he would have known that to be the case and it could cause him no prejudice to allow the correct wording to be alleged.

• Particular 2, which alleges that on a date unknown after 16 May 2020, the Registrant having returned to the department after speaking to the Matron, referred to the Matron as a “black bitch”. This amendment calls for a more detailed explanation.

8. During the evidence of Mr BE, he stated that he heard the Registrant speak the words alleged. That evidence was not foreshadowed in Mr BE’s witness statement and, accordingly, it had not been included as a Particular in the Allegation that was referred for hearing.

9. Before she made her closing submissions, the Presenting Officer informed the Panel that she had taken the HCPC’s instructions, and they were that she was not to apply for an amendment to include a specific Particular reflecting the evidence of Mr BE. Rather, it was submitted that the Panel could consider the evidence concerning that specific conversation in assessing those matters that had been specifically alleged. However, the Presenting Officer submitted that the Panel should be aware that it (i.e. the Panel) could direct that the Allegation should be amended to include the specific comment if it considered it necessary to do so.

10. The Panel was advised by the Legal Assessor as to its powers, and the Panel referred to the decision of the Court of Appeal in Professional Standards Authority v HCPC & Doree [2017] EWCA Civ 319. The conclusions of the Panel are contained in detail in a ruling that was handed down on 6 March 2024, but, in summary, the Panel concluded that if Mr BE’s evidence that the words had been spoken was to be accepted, then there was a realistic prospect that that finding would have a significant impact on the issues of misconduct and impairment of fitness to practise that were at the heart of the Allegation being considered. Accordingly, the Panel considered that the issue an amendment directed by the Panel should be considered.

11. The difficulty with proceeding to decide the issue whether the amendment should be directed was that the Registrant was not present. In directing that the case should proceed in the Registrant’s absence, the Panel had decided that the Registrant had disengaged from the process and that there were no grounds for thinking that he would attend a hearing in the future. However, that decision had been taken by the Registrant in the knowledge of what the specific allegations referred by the Investigating Committee were, and in the knowledge of what the expected evidence of Mr BE would be, and that did not include the contention that he spoke the words now in issue. In short, the Panel concluded that it would be unfair to the Registrant to deprive him of the opportunity to engage with regard to the evidence of Mr BE (by requesting that he be recalled to be cross-examined) and in relation to whether an amendment reflecting that evidence should be directed.

12. A letter was written to the Registrant on 6 March 2024 explaining what had occurred and informing him that the Panel intended to consider whether an amendment should be made to permit the issue to be considered as a discrete issue. No reply was received to that letter to enable the case to proceed in the dates originally scheduled to 12 March 2024. However, the Panel was conscious of the fact that the Registrant had not been provided with a significant amount of time to respond to the letter dated 6 March 2024. Accordingly, the conclusion of the Panel was that it would be necessary for the case to be adjourned to afford the Registrant a proper opportunity to reflect on whether he would wish to engage in the manner described. The Panel requested that he be written to with an explanation of the situation. On 15 April 2024, a further notice of hearing for the resumed hearing was sent by signed for post, and this was delivered and signed for on 19 April 2024. On 29 April 2024, an HCPC Case Manager sent an email to the Registrant on the email address the HCPC hold for him, and on 30 April 2024, the Hearings Officer sent an email to the same email address. None of these communications to the Registrant has resulted in any response.

13. Accordingly, when the hearing resumed on 13 May 2024, the Panel addressed the issue whether the amendment should be directed. The Panel’s conclusion was that it should be. In circumstances where the gravamen of the original Allegation was that behaviour had been racially motivated, it was appropriate that the further words allegedly spoken should be the subject of a discrete decision by the Panel. Were the Panel to find that Mr BE’s evidence as to those words to be true, it was desirable that they should be considered as a free-standing Particular in the Allegation. In view of the fact that the Registrant had been afforded a reasonable opportunity to address the issue of whether the amendment should be made, and, in the event that it was, the substance of the issue, the Panel was satisfied that there was no risk of prejudice arising from the amendment being made.

Background

14. The Registrant is registered with the HCPC as a Radiographer. At the relevant time he was employed by Dudley Group NHS Foundation Trust (‘the Trust’) working at Russell Hall Hospital (‘the Hospital’). He had formerly been a departmental lead working at Band 7, but from September 2020 he was performing the role of Interim Principal Computed Tomography Radiographer.

15. The circumstances in which it is alleged that the behaviour complained of occurred will be explained by the Panel when it deals with each element of the Allegation.

Decision on Facts

16. The HCPC called three witnesses to give evidence before the Panel. They were:

• Ms RR, the General Manager of the breast screening team, who conducted an investigation on behalf of the Trust into matters related to the Panel’s enquiry.

• Ms PS, a Radiographer who was employed by the Trust at the Hospital. Ms PS had known the Registrant since about 2015 during her training.

• Mr BE, a Radiographer since 2019, but previously a support worker in the radiology department from 2015. Mr BE had known the Registrant since about 2015.

17. In addition to the oral evidence of these three witnesses, the Panel was also provided with witness statements made by each of them for the purposes of this process. Additionally, approximately 200 pages of documentary exhibits were included in the HCPC’s hearing bundle. These exhibits included relevant sections of Ms RR’s investigation report and interviews conducted for the purposes of that investigation.

18. Although the Registrant did not participate in the hearing, the Panel was provided with a statement he made. The statement, which was received by the HCPC on 18 August 2022, extended to six handwritten pages.

19. In reaching its decisions the Panel has had regard to the totality of the evidence. It has throughout applied the principle that matters are to be proved against the Registrant on the balance of probabilities; at no stage has the Registrant been expected to disprove anything alleged.

20. Between paragraphs 22 to 36 below, the Panel has set out its decisions on Particulars 1(a) to (d) and 2. As each of them is alleged to have been racially motivated, after the finding with regard to each, the Panel has dealt with the racial motivation of each. Furthermore, after concluding the decisions on Particulars 1(a) to 1(d), the Panel has addressed in paragraphs 38 and 39 the Allegation that the Registrant behaved in an inappropriate way towards work colleagues made by the stem of Particular 1.

21. With regard to racial motivation, in reaching its decisions the Panel adopted the approach of Fordham J. in Lambert-Simpson v HCPC [2023] EWHC 481 (Admin). Accordingly, the Panel applied the following principles:

• The issue is advanced as a fact. Accordingly, it is to be proved against the Registrant on the balance of probabilities.

• The Allegation is that in saying and doing the things advanced in the preceding Particulars, the Registrant was “racially motivated”. It follows that the issue is directed to the Registrant’s subjective motivation, rather than how his conduct would be objectively viewed.

• To find the Particular made out, the Panel would need to be satisfied that the behaviour in question has a purpose behind it which, at least in significant part, was referable to race, and that the act was done in a way showing hostility or a discriminatory attitude to the relevant racial group.

• If the act was done as at attempt at humour, that fact would not inhibit a finding that it was racially motivated.

Particular 1(a) - On or around 21 September 2019 you did not communicate professionally; in that you sent a photograph via the messaging platform WhatsApp which showed your work colleagues eating at a buffet with the caption “not an immigrant soup kitchen”.

22. The photograph was added to a WhatsApp group named, ‘CT Shift Swap’, that was set up by people working in the department to discuss work issues. The photograph was of a number of people standing at a buffet table in the Registrant’s home during a social occasion that had been arranged to take place there. The Panel has been provided with an image of the photograph in the group chat that has been redacted to prevent the individuals being identified. However, the evidence heard by the Panel was that all but two of the people photographed were BAME colleagues. Beneath the photograph, the Registrant wrote the caption, “NOT an immigrant soup kitchen!”.

23. The photograph and caption speak for themselves. In deciding whether it had been proved that the sending of that photograph and caption constituted not communicating professionally, the Panel took into account the fact that the Registrant was in a senior managerial role vis a vis those depicted in the photograph and those included in the WhatsApp group. In the judgement of the Panel it was disrespectful because, even if the intention was humour, it created a link between the appearance of people standing at his table and immigrants, and a link between the financial resources of immigrants rendering them to be more likely to require the services of a soup kitchen than the population at large. Having regard to these circumstances, the Panel concluded that the sending of the photograph with the caption did represent a failure to communicate professionally.

24. Particular 1(a) is proven.

25. With regard to whether it had been established that the Registrant had been racially motivated in sending the photograph, the Panel was satisfied that his motivation was, at least in significant part, referable to race. The caption would have been meaningless if all the people depicted in it had been white because the link between immigrants and soup kitchens explained in the preceding paragraph would not have been present. The Panel did not find that it was proved that it was hostility towards a racial group that resulted in the Registrant’s posting, but it did find that it demonstrated a discriminatory attitude, again because the appearance of the BAME colleagues was necessary to give the reference to immigrants and a soup kitchen any meaning.

Particular 1(b) - On a date unknown you did not communicate professionally; in that you told a work colleague “they have said they want to put a black person on an interview panel who doesn’t know about the job” or words to that effect.

26. The Panel struggled to find evidence of any person to whom these words had been spoken by the Registrant. There was a suggestion in a report that the words had been spoken during a “huddle” meeting in the department. However, what the HCPC did present was evidence of what the Registrant had said when interviewed for the purposes of the Trust’s internal investigation. When, on 28 January 2021, the Registrant was invited to comment on the Trust’s allegation that was in similar terms to that being considered by the Panel, he replied, “Yes, I would have said something along those lines". On the basis of that acceptance by the Registrant, the Panel finds on a balance of probabilities that the words to that effect had been spoken, but the exact words used are unknown.

27. The evidence of Ms RR was that the Trust’s change of policy was not that the person (a nurse) should sit on an interview panel, but rather that an “inclusion champion” would be present for the interview in order to observe it. The Panel was unable to find on the evidence presented to it that the Registrant knew that the basis for his expressed objection was false. Had that been demonstrated, the Panel’s assessment of the appropriateness might well have been quite different. In the judgement of the Panel, the Registrant is not to be criticised because he expressed an opinion in appropriate surroundings that it would not be appropriate for a non-Radiographer to participate in the appointment of a Radiographer. However, what he can be legitimately criticised for is the manner in which he chooses to express his opinion. In the judgement of the Panel, it was not professional for the Registrant to speak the words the Panel found he did in the circumstances in which they were spoken, namely to his colleagues in the department, all of whom were junior to him. It is apparent that the Registrant himself realised that it was not appropriate, because a response he made to the Trust’s allegation on 28 January 2021, included the following, “I would stand by it [i.e. his view about the inclusion of the nurse in the interview process] and re word it and do it in a more appropriate way”.

28. Particular 1(b) is proven.

29. When the Panel addressed the question whether the inappropriate communication alleged by Particular 1(b) was proved to be racially motivated, it concluded that it was not particularly in the absence of the exact words used by the Registrant. In the circumstances it was not possible for the Panel to infer either hostility to a racial group or a discriminatory attitude. What the comments primarily suggested was a hostile attitude towards Trust management.

Particular 1(c) - On or around 19 October 2020 you did not communicate professionally, in that you said “the browns are working over there” or words to that effect.

30. Ms PS gave evidence before the Panel that on a day when a BAME colleague, Person A, took the role of team leader at lunchtime, she arranged for Ms PS (a white person) and the Registrant to work together on one side, and for herself (i.e. Person A) and another BAME colleague to work together on the other side. The Registrant made a comment along the lines of, “the whites are on one side and the brownies are on the other". Ms PS reacted to the comment in a manner that will be described. The Panel found Ms PS to be a reliable and truthful witness, and it accepted her evidence about this incident. There was some corroboration of it provided by the evidence of Mr BE, because although he accepted that he did not register the fact that the Registrant had spoken the words, he was told almost immediately by Person A that the Registrant had just made a reference to “brownies” and he witnessed Person A’s reaction to the comment.

31. An indication of the Registrant’s attitude when he spoke these words is provided by the evidence of Ms PS who told the Panel that when she heard the words spoken, she said “Steve!” to indicate disapproval. The Registrant’s response to Ms PS’s interjection was to say words to the effect of, “Fuck it I’m already being investigated". In the view of the Panel, this response demonstrated that the Registrant simply did not care how his words were perceived. This conversation would be inappropriate if made by anyone, irrespective of context or the seniority of the speaker. The Registrant was in a senior position in the department and spoke within the hearing of BAME colleagues whom he described as “brownies”. In doing so the Registrant was failing to communicate professionally.

32. Particular 1(c) is proven.

33. When the Panel addressed the question as to whether the comment was racially motivated, it concluded that it was. The words spoken in the context in which they were spoken meant that they were referrable to race. The Panel does not find that they demonstrated hostility, but they did, by their nature, show a discriminatory attitude.

Particular 1(d) - On dates unknown between 2018 and 2020 you did not communicate professionally; in that you spoke to colleagues in an intimidating manner when addressing their mistakes.

34. The Panel heard evidence that on occasions the Registrant shouted at individuals who had made mistakes. When addressing Mr BE with regard to perceived errors, the Registrant described him as an “idiot”. The Panel accepted the evidence of Mr BE that he felt intimidated by the way in which the Registrant spoke to him about perceived errors in his (i.e. Mr BE’s) work. Ms PS described an occasion on which the Registrant had shouted at her and separately described herself as “frightened” of him. The Panel found a passage of the Trust’s investigation interview conducted on 28 January 2021 to be relevant with regard to this Particular. When invited to say a little bit more about his leadership style, included in the Registrant’s reply was the following, “I think a Manager and a deputy work best as an enforcer and as a friend. Someone that there (sic) scared of and don’t want to offend”.

35. The Panel finds that on occasions the Registrant spoke to junior colleagues in an intimidating manner when addressing mistakes, and that in doing so he did not communicate professionally.

36. Particular 1(d) is proven.

37. When the Panel addressed the question whether speaking to colleagues in an intimidatory manner was racially motivated, it concluded that it was not proved. The behaviour was not restricted to BAME colleagues, as demonstrated by the fact that Ms PS was shouted at. From the evidence before the Panel the Registrant’s subjective state of mind could not be inferred.

Particular 1 - the stem, “Whilst working for Dudley Hospitals Foundation Trust, you behaved in an inappropriate way towards work colleagues”.

38. The Panel has found that the Registrant did not communicate professionally in respect of each of the instances identified in Particulars 1(a) to 1(d). In the judgement of the Panel it necessarily follows that his behaviour was inappropriate towards work colleagues.

39. The stem of Particular 1 is proven.

Particular 2 - a date unknown after 16 May 2020, having returned to the department after speaking to the Matron, you referred to the Matron as a “black bitch”.

40. As explained above in relation to the amendment of the Allegation incorporating this Particular, the contention that the Registrant spoke these words was not one included in previous statements made by Mr BE. Accordingly, the Panel very carefully considered whether the absence of prior mention of the words meant that the oral evidence of Mr BE that they were spoken should not be accepted. The Panel was assisted in this exercise by the searching questions Mr BE was asked by the Presenting Officer on the issue.

41. The conclusion of the Panel was that Mr BE was an honest and accurate witness. The Panel accepted his evidence that the reason he had not previously referred to the words spoken by the Registrant about the Matron was simply that nobody had previously asked him. The documents showed that Mr BE had been asked to describe the Registrant’s behaviour towards him. He had also been asked about the Registrant’s behaviour towards others. It did not appear that Mr BE was asked about comments the Registrant might have made about other people.

42. In short, the Panel accepted the evidence of Mr BE that, in anger, following what Mr BE understood to be a discussion with the Matron at which he had not been present, the Registrant entered the room and described the Matron as a “black bitch”.

43. Particular 2 is proven.

44. When the Panel addressed the question whether this conversation was racially motivated, it came to the conclusion that it was. The words demonstrated that the phrase was referable to race, and the highly offensive nature of them demonstrated hostility based on grounds of race.

Particular 3 – Your conduct in relation to Particulars 1 and/or 2 above was racially motivated.

45. The test applied by the Panel and the findings in relation to each of Particulars 1(a) to (d) and 2 have already been explained. To summarise those findings, the Panel finds that Particulars 1(a), 1(c) and 2 were racially motivated. Each of them was, at least in significant part, referable to race. Particulars 1(a) and 1(c) demonstrated a discriminatory attitude towards a racial group. Particular 2 demonstrated hostility to a racial group.

Decision on Misconduct

46. Having found all of the Particulars to be proved (to repeat, in the case of Particular 3, on the basis of partial findings as detailed above), the Panel next decided whether the findings of fact amounted to misconduct.

47. The Panel began its discussions by deciding whether the Registrant had breached standards prescribed by the HCPC. The conclusion of the Panel was that the following Standards of conduct, performance and ethics had been breached:

Standard 1.5, Under the heading, “Challenge discrimination”, “You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide”. The Panel was of the view that this standard was engaged by those findings that involved racially motivated behaviour (Particulars 1(a), 1(c), 2 and 3).

Standard 2.5, Under the heading, “Work with colleagues”, “You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers”. In the judgement of the Panel, the inappropriate expression of anger towards a management decision (Particular 1(b)) and the intimidatory behaviour found by Particular 1(d), resulted in this standard being breached. The focus of the Registrant’s efforts should have been on benefiting service users and carers, but by creating a working environment that was described in the evidence as “toxic”, achieving the best outcome for service users was necessarily jeopardised.

Standard 2.7, Under the heading, “Social media and networking websites”, “You must use all forms of communication appropriately and responsibly, including social media and networking websites”. This standard was breached by the posting of the photograph and comment referred to in Particular 1(a).

Standard 9.1, Under the heading, “Personal and professional behaviour”, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”. The Panel is satisfied that fully informed and fair-minded members of the public would have been appalled if they had discovered how the Registrant had chosen to behave.

48. The Panel recognised that more than mere breaches of standards would be necessary for a finding of misconduct to be made; such a finding could only be made if the Panel considered the failings represent serious fallings short from expected standards of behaviour.

49. In assessing the seriousness of the established breaches, the Panel did not overlook the evidence it received about the absence of appropriate senior managerial training provided to the Registrant, and what the Registrant had written in his August 2022 statement concerning the investigations he underwent in respect of a serious health condition between September and December 2020.

50. In the judgement of the Panel those issues that resulted in a finding of racially motivated behaviour necessarily amounted to serious breaches. That left Particulars 1(d) and 1(b) as matters in respect of which it would be necessary to decide if they had the degree of seriousness to be included in an overall assessment of misconduct.

51. The Panel concluded that Particular 1(d) was sufficiently serious to be included with the racially motivated findings for a decision on misconduct to be made. This was because of the patient safety implications that arise if junior colleagues are subjected to intimidatory behaviour. The Panel acknowledges that there is no evidence of actual harm to service users in this case and that the Registrant’s intention was to minimise mistakes. However, if members of staff are fearful, anxious, feel bullied or undermined, there is a real risk that mistakes will be made and/or that mistakes, if made, will be covered up. Factors such as that give rise to patient safety concerns.

52. The Panel thought long and hard as to whether Particular 1(b) should be included with the other Particulars in the assessment of whether misconduct had been made out. The Panel concluded that it should be included because it did not represent an example of isolated, stand-alone, behaviour. In the judgement of the Panel, it was one element of a pattern of inappropriate communications.

53. It followed from these findings that the Panel asked itself whether the totality of the findings of fact were sufficiently serious to be categorised as misconduct. The Panel concluded that they were. The Panel was satisfied that fellow professionals would regard them as deplorable.

Decision on Impairment

54. Having decided that misconduct was established, the Panel next considered current impairment of fitness to practise. In reaching its decision, the Panel paid close attention to the HCPTS Practice Note on the subject. Accordingly, the Panel addressed both the personal and public components appropriate to the issue of impairment of fitness to practise.

55. With regard to the personal component, the Panel began by considering the issues of acknowledgement, apology, insight and remediation. It is only when an assessment of those issues has been made that it is possible to form a sound judgement on the risk of repetition.

56. Comments made by the Registrant when interviewed in the Trust enquiry, and in the statement he submitted to the HCPC in August 2022, included elements of acceptance of inappropriate behaviour. For example, the Registrant acknowledged that he would approach his concerns over what he perceived to be unqualified involvement in an interview process (Particular 1(b)) differently in the future. However, even on the most generous interpretation to the Registrant, the acceptance of inappropriate behaviour is incomplete. For example, he stated that he did not recall the “brownies” remark (Particular 1(c)). There has been no response to the Particular 2 remark concerning the Matron since that surfaced as an issue in March 2024. Essentially, all of the shortcomings were attitudinal in nature. The fact that they were attitudinal does not mean that they could not be remediated, but it does mean that they would be more difficult to remediate than other types of shortcomings (for example, those relating to knowledge and skills), and cogent positive evidence would be required for there to be confidence that similar matters would not recur. In circumstances where there is an absence of evidence of serious and sustained remedial steps having been taken, the Panel is driven to conclude that the attitudinal deficit that resulted in the proven Particulars occurring in the period 2018 to 2020 is still present. It follows from this that there is a significant risk of repetition.

57. The significant risk of repetition has the consequence that the Panel has concluded that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

58. The finding that there is a risk of repetition means that it is necessary to find that the public component of impairment is made out. However, such was the seriousness of these matters that the Panel is of the view that the wider public interest would require a finding of current impairment of fitness to practise even if there was not the degree of risk of repetition there is. This is because not to make such a finding would be to fail to declare and uphold proper professional standards. Furthermore, confidence in the profession of Radiography and the regulation of it by the HCPC would be undermined were a public marker of the inappropriateness of the Registrant’s behaviour not laid down.

59. It follows from these findings that the Registrant’s fitness to practise is impaired on both the personal and public components. The Panel will therefore proceed to consider the issue of sanction.

Decision on Sanction

60. After the Panel handed down its written determination explaining its reasons for finding the Allegation to be well founded, the Presenting Officer made submissions on sanction.

61. The Presenting Officer stated that the HCPC did not submit that the Panel should apply any particular sanction, or even submit that a sanction should be imposed. Rather, she submitted that the decision was one for the discretion of the Panel, albeit one to be exercised having reviewed the guidance contained in the HCPC’s Sanctions Policy. The Presenting Officer directed the Panel’s attention to the fact that two elements of the Panel’s findings, namely discrimination and failure to work in partnership, are categorised in the Sanctions Policy as cases that can be viewed as “Serious Cases”. The Presenting Officer also suggested matters that the Panel might view as both aggravating and mitigating factors when reaching its decisions.

62. The Panel accepted the advice of the Legal Assessor. It follows that it applied the principle that a sanction should not be imposed to punish the Registrant; the factors that can justify a sanction are conveniently identified in paragraph 10 of the Sanctions Policy. As a finding that an Allegation is well founded does not of itself require the imposition of a sanction, logically the first question to be answered whether the particular factors of the present case demanded that a sanction should be imposed. If a sanction is required, then the available sanctions must be considered in an ascending order of gravity until one that satisfies the factors already identified is reached. Having then alighted upon a sanction that is thought to be appropriate, the Panel is then required to be satisfied that it represents a proportionate response to the findings made in the case. The Panel confirms that it has followed this approach in reaching its decision.

63. The Panel began its discussion by identifying aggravating factors and those it considered to be appropriate to take into account in favour of the Registrant.

64. The factors that the Panel considered aggravated the findings were the following:

• Matters of a similar nature were repeated over a period of time. Not only were they repeated, but there was repetition after the Registrant was being investigated by the Trust (as his reply to Ms PS when she challenged him on the “brownies” comment that is referred to in paragraph 31 above demonstrates).

• Such expressions of apology and remorse from the Registrant were far from full. They tended to be of the “If I caused offence, then ….” type.

• The insight expressed by the Registrant was far from complete. Even after two investigations (initially by the Trust and subsequently by the HCPC), there was no indication that the Registrant had a clear understanding of the impact of his behaviour on others.

65. The Panel does not use the term “mitigating factors” to identify those matters it thought should be taken into account in favour of the Registrant because they did not bear directly upon the allegations that had been found proven. The Panel noted that the Registrant did not have any previous regulatory findings made against him. Furthermore, the behaviour established against him occurred in a department in which there was an unsatisfactory culture – a culture that did not result from the Registrant’s actions and attitudes alone.

66. With all these factors in mind, the Panel first asked itself the question whether a sanction was required. The clear answer was that it is; the findings in this case are far too serious to result in the Panel passing from the case without the imposition of a sanction.

67. When the Panel considered whether a Caution Order should be imposed, it had regard to paragraph 101 of the Sanctions Policy. The conclusion of the Panel is that the present case did not meet any of the factors identified in that paragraph as those which would be likely to be appropriate for a Caution Order to be made. The issues were not isolated or limited and were not relatively minor in nature. It cannot be said that there is a low risk of repetition, the Registrant has not shown good insight and he has not undertaken appropriate remediation. The Panel rejected a Caution Order as an appropriate sanction.

68. The Panel next considered a Conditions of Practice Order, and in that context had regard to paragraphs 106, 107 and 108 of the Sanctions Policy. Putting to one side for a moment the question whether a serious case involving discrimination and a failure to work in partnership is too serious to result in such an order (the issue raised in paragraph 108), the factors that would be expected to be present for conditions of practice to be imposed were not present. Although this misconduct is difficult to remediate as it is an attitudinal matter, it would not be impossible, but the Registrant has shown no inclination that he is minded to do so. No realistic or verifiable conditions could be imposed to address an attitudinal problem, and in any event the Registrant has been very clear that he does not wish to practise as a Radiographer. In all the circumstances the Panel rejected a Conditions of Practice Order as an appropriate sanction.

69. The Panel next considered a Suspension Order. Paragraph 121 of the Sanctions Policy is in these terms:

“A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• 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”.

70. Of the four factors set out in the bullet points in paragraph 121, only the first (a serious breach of the Standards) is present in this case. The Registrant does not have insight, there is a risk of repetition and there is no evidence to suggest that the registrant will be likely to be willing (and therefore be able) to resolve his failings. The conclusion of the Panel is that a Suspension Order would not be appropriate because the position that would be presented to a reviewing panel before the expiry of any period of suspension imposed would be exactly the same as it is now.

71. The Panel therefore arrived at consideration of a Striking Off Order. The Panel is satisfied that this case falls within the guidance contained in paragraph 131 of the Sanctions Policy because the Registrant lacks insight, and, over a protracted period of time, has demonstrated an unwillingness to resolve matters. Before confirming that the outcome should be striking off, the Panel addressed the question whether it would be proportionate to make that order. The conclusion of the Panel was that it would. It is not the Panel’s view that all cases in which findings of the type made in this case would necessarily have to result in striking off. What makes a Striking Off Order a proportionate response in this case is the fact that the Registrant’s failure to address the factors that resulted in his failings occurring in the first place makes any lesser sanction inappropriate.

72. For all these reasons, the Panel has determined that a Striking Off Order should be made.

Order: The Registrar is directed to strike the name of Steven P Lowe from the Register on the date this Order comes into effect.

Interim Order

Application for Interim Order

1. After the Panel announced its decision that a striking off order is the appropriate sanction to be imposed in this case, the Presenting Officer applied for an Interim Suspension Order to cover the period during the appeal period, that is to say, initially the 28 days period during which the Registrant could commence an appeal, and, then if commenced, the longer period until the determination of the appeal.

2. The Presenting Officer submitted that an Interim Order is necessary for protection of members of the public and is otherwise in the public interest. She requested that the order should be made for a period of 18 months.

3. The Presenting Officer produced for the Panel a letter dated 6 March 2024 that was posted to the Registrant informing him that an application for an interim order might be made.

Decision

4. The Panel accepted the advice it received from the Legal Assessor. Accordingly, it approached the application on the basis that the default position established by the legislation is that when a substantive sanction is imposed, there will be no restriction on their ability to practise while their appeal rights are extant. It follows that a positive reason is required if that position is to be departed from. An Interim Order can be made if it is (i) necessary for protection of members of the public, (ii) otherwise in the public interest, and (iii) in the interests of the registrant concerned. If one or more of those grounds is met, then the Panel should first consider whether there are any conditions of practice that can be imposed on an interim basis that will satisfactorily address the factors requiring an interim order. An Interim Suspension Order should only be made if an Interim Order is required but interim conditions of practice are not appropriate.

5. The Panel was satisfied that the Registrant was put on notice that an application for an Interim Order might be made by the sending of the letter dated 6 March 2024.

6. The Panel was also satisfied that it was appropriate to proceed to consider the application notwithstanding the absence of the Registrant. The Panel considered whether an Interim Order is required in relation to the two grounds on which the present application was founded, namely that it is necessary for protection of members of the public and otherwise in the public interest. The Panel decided that those two grounds were satisfied for the reasons already expressed by the Panel in relation to the substantive decision.

7. The Panel then decided whether interim conditions of practice would satisfactorily address the reasons why an interim order is necessary for protection of members of the public and in the wider public interest. The Panel concluded that they would not for the same reasons the Panel rejected a substantive Conditions of Practice Order as an appropriate sanction.

8. It followed that the Panel concluded that an Interim Suspension Order is required.

9. As to the duration of the Interim Suspension Order, the Panel decided that it would be appropriate to make it for the maximum period of 18 months. If the 28 day period during which the Registrant can launch an appeal passes without an appeal having been commenced, then the interim order will simply fall away. However, if the Registrant does appeal the Panel’s substantive decision, a final resolution of that appeal could well take a period of 18 months.

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

History of Hearings for Mr Steven P Lowe