[2023] UKUT 275 (AAC)

MM’s offences were clearly serious: they involved repeated sexual touching, without consent, of the penises of two adult men who were then patients in his care. They involved an abuse of power as MM was in a position of trust as a nurse. MM’s actions breached clear sexual, social, professional, and legal boundaries. The consequences for MM were also serious: he lost his job, was struck off the nursing register by his regulator and, following a criminal trial, was sentenced to a term of immediate imprisonment.

Mr Kitching, for MM, argued that the Barring Decisions were in error of law because the DBS failed to give due weight to the lengthy passage of time since the offences without repetition of offending behaviour. He says the only objective evidence about the level of risk that MM presents was the fact that he had not, in the almost 23 years between his convictions and the Barring Decisions, engaged in any repetition of relevant conduct. To bar him after such a long period with no offences was, he contended, both irrational and disproportionate.

Mr Gray’s response to that was that, given that MM’s nursing career came to an abrupt end due to his offences, and the roles he has carried out since he left prison have not involved regulated activity, the risk that he may engage in relevant conduct again if placed in a position where he has access to vulnerable people has not been tested, despite the long time that has elapsed.

This scenario is a common one in barring appeals: the barred person points to a period without offending and the DBS retorts that this proves nothing because they haven’t had the opportunity to offend, leaving the barred person to ask how they can ever demonstrate that it is safe for them to come off the list when their continued inclusion prevents them from engaging in regulated activity.

This can seem like a scenario devised by Kafka, but there is a solution to the conundrum, and the solution is: insight.

While the passage of time without further offending is clearly positive, it does not on its own necessarily demonstrate a reduction in risk. However, if a barred person is able to demonstrate that in that time they have achieved an understanding of what drove them to carry out the conduct of concern and what the potential triggers to a repetition of their behaviour might be, and if they can show that they have learned strategies to prevent them from responding to those triggers in a potentially harmful way, or taken other steps to manage the risk of them responding in a potentially harmful way, these things are all capable of establishing a reduction in risk. Such a reduction in risk is, in turn, capable of tipping the balance between what is proportionate and what is not, when it comes to inclusion in the Barred Lists.

MM made representations to the DBS against his inclusion on the Barred Lists and he provided supportive references from his parish priest, his local MP (and friend) and two colleagues with whom he worked on trade union matters (see pages [53]-[56] of the appeal bundle).

In the representations made by MM’s solicitor on his behalf it is said that MM accepted that he had, in his offending, transgressed sexual, social, and legal boundaries and that his victims are likely to have experienced emotional harm. The representations pointed to the absence of any further offending, to his successes in employment and education since his release from prison, and to his vocation to engage in charity work and to seek ordination into the priesthood.

Father Murphy’s reference spoke of MM having a sincere desire to explore the possibility of ordination. It said that he was dedicated to prayer and social justice, and it spoke to MM having helped Father Murphy with administrative work in the parish. The references from MM’s colleagues spoke to his support for equality and diversity within the workplace and his interest in mental health and wellbeing issues. One of the colleagues describes MM as “honest, respectful, non-judgmental and considerate”. The other speaks of MM being “widely admired and respected for his openness and honesty” and notes his passion for the church. They confirm that they are aware that their reference is for the purpose of an appeal against barring and say they have witnessed no untoward behaviour on MM’s part in the time that they have known him. The reference from MM’s MP describes MM as a good and supportive friend and says she has no doubts about his truthfulness.

It is clear from the terms of the ‘Final Decision Letter’ and the ‘Barring Process Decision’ document that the DBS considered the representations and the positive references, as well as evidence provided of MM’s academic achievements since his release from prison. While the DBS assessed MM as having demonstrated some insight into the harm he caused his victims and as having acknowledged that his actions are likely to have caused his victims some emotional harm at the time, it was troubled by the lack of understanding of what had driven MM’s behaviour (see pages [92]-[93] of the appeal bundle), and it decided that the evidence of remorse and insight provided was insufficient to show that the risk that he might act in the same way again in the future had reduced to a safe level.

It was for the DBS to consider the evidence and to make its assessment of the appropriateness of including MM’s name in the Barred Lists. That is a matter on which the Upper Tribunal is prohibited from trespassing unless the DBS’s decision making was vitiated by the making of a material error of law or it was based on a mistake of fact.

We are satisfied that the DBS was entitled, on the evidence before it, to make the findings that it did on the degree of MM’s insight and remorse. We are satisfied that it was also entitled, based on those findings as to insight and remorse, to make the risk assessment that it did and to find that it was appropriate to include MM’s name on both Barred Lists.

However, we had the benefit of evidence that wasn’t available to the decision maker at the DBS when the Barring Decisions were made, namely the oral evidence that Father Murphy and MM gave at the hearing of the appeal. That is evidence that we are entitled to have regard to in deciding this appeal.

We found Father Murphy to be an honest witness, and we accepted his evidence. However, that evidence didn’t take us very far in terms of resolving the issues in the appeal as it shed very little light on MM’s understanding of his offending.

MM’s evidence was much more to the point. While we accept that MM did his best to give full and truthful answers to the questions put to him by the panel and by Mr Gray, we were struck by the partial nature of his insight into his offending: why he offended as he did, what the impact on his victims was, and the risk of his offending again should he be placed in a position which gives him access to vulnerable individuals, and indeed should he find himself in a position that gives him power over vulnerable people (such as in the priesthood or another role in the church). We found that his evidence was impaired by this lack of insight, and by an inability to square his past behaviour with his values and beliefs, and indeed his faith.

MM says that he deeply regrets his offending and that it never leaves him. The panel accepts that MM has spent time reflecting on his offending. However, we note that he has not sought any external support other than in the confessional and in conversations with Father Murphy. He has not undergone any counselling or psychotherapy and he has not engaged in any relevant training, such as sex offender work.

While nearly a quarter of a century has passed since his offences, it was apparent from MM’s evidence at the hearing that he struggles to understand his offending.

It was put to MM at the hearing that it was most improbable that a patient who was in hospital because he was due to undergo surgery or to receive treatment, with whom MM had had no prior contact other than carrying out observations or providing treatment, with whom MM had not spoken except to explain pre-operative tests or the treatment administered, and with to whom MM was assigned in his role as a nurse, would receive pleasure from unsolicited sexual touching at a time when he was particularly vulnerable. However, MM continued to maintain that his motivation in touching the penises of the two patients whom he assaulted was to give them pleasure.

MM’s explanation of this was that as “a passive” he had no intent to penetrate or to cause any harm, and his focus was giving others pleasure. The way he spoke about his assaults indicates that he doesn’t understand the key difference between a situation in which consenting adults meeting in a social context indulge their sexual preferences, and the situation where a patient has gone to hospital for treatment or assessment and finds himself sexually touched by the nurse in whom he has placed his trust.

We do not accept that MM was motivated by the desire to give his victims pleasure. Instead, we find that he committed the acts that he did to satisfy his own needs and he was, at best, highly reckless as to the impact of his actions on the vulnerable patients who had placed their trust in him. We are troubled by his inability to accept this.

In his oral evidence at the hearing MM described that one of his victims, whose penis he had stroked with his elbow three times, only pulled away when he stroked his penis the third time, in an apparent attempt to suggest that he genuinely believed that his patient was consenting. This tends to undermine MM’s assertion that he has gained significant insight into his offending.

When asked at the hearing about the circumstances of his victims at the time of the assaults, MM said one was waiting to go into theatre for surgery, which he clarified that the surgery was “not major surgery”, and the other was in hospital because he was ill, but “not seriously ill”. We found that these clarifications were attempts to minimise the gravity of his offending, which again tended to undermine MM’s claim to have gained insight.

It was apparent from what MM said in his oral evidence that his understanding of the importance of the boundaries applicable to medical professionals working with patients is worryingly superficial. MM said that he was “a fool” and that what he did was wrong because he didn’t check that the men consented to be touched sexually, but he didn’t recognise that his behaviour was predatory and exploitative of the power imbalance that was inherent in him being a medical professional, and the other party being a patient under his professional care.

MM told us that the issue of the risk of exploitation arising from an imbalance of power between two people with different statuses, such as a nurse and a patient, was not something that had even occurred to him until very recently. We accept MM’s evidence in this regard to be honest, but we consider such a lack of insight to be very concerning in terms of his ability to understand the potential triggers for his behaviour and the risk that he might engage in exploitative and harmful behaviour towards vulnerable people (whether adults or children) in the future.

The explanation that MM had given in his representations of the circumstances of his offending was that, when he saw these young men lying in their hospital beds, he found them attractive and he “couldn’t wait”. He elaborated on this at the hearing, saying that he became overwhelmed by his sexual urges and the boundaries became “blurred” and he simply couldn’t wait to pursue a legitimate sexual encounter outside work, so he satisfied his urges by touching his patients. He sought to reassure the panel that, due to his anti-depressant medication, diabetes and significant weight gain, his libido had diminished significantly, and he no longer has such urges.

We are not reassured by these assertions. A mere assertion of a reduction in libido is insufficient to establish a reduction in risk, and even if that assertion is accepted at face value, it leaves open the possibility that these circumstances might change, and his libido might increase again. MM’s insight is so incomplete that we cannot have any confidence that he would be able to control any urges that he might have.

Were MM to pursue ordination into the priesthood he would have access to vulnerable adults and children. Father Murphy’s evidence was that safeguarding measures would be put in place to avoid MM being alone with vulnerable adults and children, but he did not expect such arrangements to continue if MM were taken off the Barred Lists. A priest, or even a church volunteer, can be expected to hold a great deal of power over a member of his congregation or someone seeking solace from the church in time of crisis. The fact that issues around power dynamics remain wholly unexplored by MM is a cause for concern.

Nothing in the additional evidence we heard persuades us that any of the findings that the DBS made were “wrong”. Rather, the evidence we heard tended to add further support for the DBS’s findings.

Neither does that new evidence persuade us that the DBS erred in law in its assessment of the appropriateness of including MM’s name on the Barred Lists or the proportionality of doing so, notwithstanding the passage of such a long period since his offences without any further convictions or evidence of further allegations, due to its assessment of MM’s insight.