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1. On 19 March 2014, you attended an incident (Incident Number 0530) at a call centre, Web Help UK, in respect of Patient A and during your attendance you acted in an unprofessional manner, in that:
a. You made derogatory comments about working conditions at call centres stating that the people were like ‘chickens in a coop’ or words to that effect;
b. You made derogatory comments about Vodafone stating that their ‘customer service was useless’ or words to that effect;
c. You made comments about staff in call centres abroad stating that they were not any good at their jobs;
d. You made comments that businesses would soon be charged for calling out an ambulance;
e. You made a comment about one of the workers’ breasts, stating ‘not with boobs like that’ or words to that effect;
f. You stated that your managers did not look like the managers at Web Help UK and you said you wished they did;
g. When Patient A asked for your name, you replied that she did not need to know; and
h. You bragged about your hourly rate of pay.
2. The matters described in paragraph 1 constitute misconduct.
3. By reason of your misconduct, your fitness to practise is impaired.
1. The Panel first considered whether service had been effected in accordance with the Rules. It noted that the Notice had been sent to the Registrant’s registered address, it contained all the relevant information and had been acknowledged by the Registrant’s Representative on his behalf. The Panel was therefore satisfied that Notice had been served.
2. In the light of the Registrant’s written statement saying he was unable to attend and the fact that he was being represented by Mr Barraclough the Panel was satisfied to proceed in the absence of the Registrant. Having taken the advice of the Legal Assessor it considered it fair to do so. The Panel accordingly proceeded in the absence of the Registrant.
3. Mr Walters on behalf of the HCPC requested that the allegation be amended and provided the Panel with the allegation as it currently stood together with the proposed amendments.
4. Mr Barraclough submitted that he had no objection to the proposed amendment. The Panel accepted the advice of the Legal Assessor and agreed to the amendment.
5. Mr Walters applied for the evidence of Patient A to be given by telephone as she as unwell, was a diabetic and had a small child. She had had an appointment for surgery yesterday at a hospital, which made it impossible for her to be at the hearing today. He submitted that it would be inappropriate to consider video evidence as the witness would be unable to travel for that to be undertaken. Mr Barraclough had no objection to this application. The Panel accepted the advice of the Legal Assessor. The Panel considered it was both proportionate and pragmatic that Patient A’s evidence should be given by telephone and agreed to the application.
6. Mr Walters also requested that the Panel dealt with the hearing in three distinct stages, facts, impairment and sanction. The Panel agreed to this.
7. The Registrant, through Mr Barraclough, denied all the particulars apart from particular 1f which he admitted.
8. Mr Walters then gave the background of the case to the Panel.
9. The Registrant was employed as a Paramedic with the Yorkshire Ambulance Service NHS Trust. Following a call he attended an incident at the Web Help UK call centre to attend to a patient, namely Patient A. Patient A worked at Web Help UK and had experienced a hypoglycaemic episode while pregnant that being the reason for the Registrant’s attendance. Whilst attending the call the Registrant made numerous comments which were deemed unprofessional. Witness A met the Registrant at the call centre door and took him to Patient A who was being attended to by Witness B, the first aider. Following a complaint by Witness A the Registrant was suspended, and made the subject of an investigation by his Trust followed by a Disposal by Consent meeting. Following this he was referred to the HCPC.
10. The Panel heard oral evidence from four witnesses as follows:
- Witness A, the Operation Manager at Web Help UK;
- Witness B, Team Leader at Web Help UK;
- Witness C, Investigating Officer at Yorkshire Ambulance Service and;
- Patient A (by telephone), Customer Adviser at Web Help UK.
The Panel was also provided with a bundle of documents from the HCPC, an Opening Note and a skeleton argument provided by Mr Walters for the HCPC, Notes from the fact finding meeting and the DBC Meeting, 07 August 2014 and a statement of Nigel Roberts (Registrant). The Registrant did not attend the hearing and therefore did not give evidence.
11. In coming to its decision the Panel has taken account of the submissions of Mr Walters for the HCPC and Mr Barraclough for the Registrant. It has also taken and accepted the advice of the Legal Assessor.
12. The Panel has noted that the burden of proof in respect of all the findings of fact is on the HCPC, the standard of proof being the civil standard namely on the balance of probabilities. It noted that the Registrant did not attend the hearing and did not make any adverse inference in the light of his absence.
13. The Panel first considered the weight it should attach to the evidence of each of the witnesses. It found the evidence of each of the witnesses to be credible and cogent. It noted that Witness A was sufficiently concerned about the demeanour of the Registrant to consult with Human Resources soon after his arrival. The Panel found Witness C’s evidence to be credible and notes that she found the answers given by Witness A, Witness B and Patient A to be credible when she interviewed them. The Panel considers that Patient A’s evidence was credible from the point that she was coming out of her hypoglycaemic attack. Patient A referred to the negative body language of her colleagues when in the company of the Registrant, and that she felt awkward and uncomfortable in the company of the Registrant. On the journey to and at the hospital she felt she was treated like a child by the Registrant particularly when forbidden to go to the toilet. She could not wait to be away from him and left before being seen in A&E. She walked home, a journey which took 45 minutes.
14. The Panel considered the statement of the Registrant and noted a number of inconsistencies between this and earlier accounts given. It has compared his answers at the meeting with Witness C in May 2014 and the notes of 07 August 2014 during the Disposal by Consent (DBC) meeting. It notes the words and phrases that he accepts were used, but that he denies they were derogatory. Previously, at his DBC meeting he had accepted that they were inappropriate.
Decision on Facts:
Particular 1 a
15. The Panel notes that Witnesses A and B say that he made comments relating to working conditions at call centres in general and that he used the phrase ‘chickens in a coop’. The witnesses considered this to be insulting. The Registrant in his interview with Witness C on 19 May 2014 admits saying this and admits in hindsight he should not have said this. He said he was referring to other call centres but notwithstanding this the witnesses considered the comment to be insulting. The Panel is therefore satisfied that the statement was derogatory and accordingly finds this particular proved.
Particular 1 b
16. Witness A said that as she was taking the Registrant to Patient A he made negative comments about his experience with Vodafone in particular he called their customer service “useless”. Further negative comments were made in the presence of Witness B. The Registrant admits that he was critical of Vodafone, having in the past experienced a problem with them. In the light of the comments being made by a Paramedic at a call centre in front of employees of that call centre where Vodafone was their main client, the Panel considers that the comment was derogatory and accordingly finds this charge proved.
Particular 1 d
17. Witnesses A and B say that the Registrant made a comment that businesses would be charged for calling out an ambulance. The Registrant says that he said this in a light hearted matter. As he admits the words the Panel finds this particular proved.
Particular 1 e
18. Witnesses A and B say that he made this comment although it is not clear whether he used the word breast, chest or boobs. The Registrant accepts that the comment was wrong. Witnesses A and B consider the comment to be offensive and inappropriate regardless of which word was used. The Panel considers that all the words mean the same thing and finds no distinction in the words. It accordingly finds this particular proved.
Particular 1 f
19. The Registrant has admitted this charge and accordingly the Panel finds it proved by admission.
Particular 1 g
20. Witnesses A, B and Patient A say that the Registrant did not introduce himself and that when Patient A asked the Registrant for his name he said ‘you do not need to know that’. The Registrant cannot recall the comment. The Panel finds this particular proved.
Particular 1 e
21. Witnesses A, B and Patient A state there was a discussion about money. They say Patient A told the Registrant her hourly rate and that he gave them information of his hourly rate. The Panel notes the specific details of the figures given in the interview undertaken by the Trust with Witness A. In the context of a Paramedic being called out to treat a patient, comments about his wages in comparison to others he considered to be on lower wages are in the opinion of the Panel, on this occasion, bragging. Accordingly it finds this particular proved.
22. The Panel next considered whether by reason of these findings the Registrant acted in an unprofessional manner. It has found that in considering each particular individually and collectively, the Registrant has acted in an unprofessional manner. None of the comments found proved were relevant to the treatment of Patient A or the reason for his being there. Patient A noticed that the Registrant was concentrating his attention on Witnesses A and B while she was coming out of her hypoglycaemic state. She observed the adverse body language of her colleagues namely, hands on hips and folded arms. The Registrant did not appear to notice or interpret this form of communication. It is clear that all present had expected him to concentrate on reassuring and treating Patient A. The Panel noted that each witness referred to each comment as being unprofessional in the context of a paramedic being called out to treat a patient.
23. Accordingly the Panel finds the stem of particular 1 to be proved.
Decision on Misconduct:
24. Based upon the facts found proved the Panel first considered whether they amount to misconduct. Mr Walters, on behalf of the HCPC, reminded the Panel that there was no burden or standard of proof and it was a matter for the Panel’s professional judgement. He referred the Panel to the HCPC booklet Standards of conduct, performance and ethics and the Standard of proficiency for Paramedics. He submitted that the allegation found was sufficiently serious to amount to misconduct in that;
- There was a finding of a number of unprofessional comments made over a sustained period of time.
- These comments were made in front of Patient A and other service users.
- The nature of the comments were derogatory, being inappropriate and boasting.
- They were within earshot of employees at Web Help UK.
- Witnesses A, B and Patient A were offended, shocked, made to feel uncomfortable and did not trust him.
- The comments demonstrate poor attitude by the Registrant.
25. Mr Walters referred to a previous decision made by an HCPC Conduct and Competence Committee which was finalised on 7 November 2014 at which point the Registrant was suspended for 12 months. He provided the Panel with copies of this decision.
26. Mr Walters submitted that an investigation was carried out by the HCPC after the referral in August 2012. Papers were served to the Registrant before this event on 19 March 2014. He submitted that in the light of the impending HCPC hearing, which began on 26 June 2014, decision the Registrant’s conduct on this occasion should have been exemplary.
27. Mr Walters further submitted that provided the Panel found misconduct it would then consider whether by reason of that misconduct the Registrant’s fitness to practise is today impaired. He reminded the Panel that it must look forward, but in doing so would have to consider the Registrant’s past conduct. He referred the Panel to the case of CHRE and (1) NMC (2) Paula Grant and the Judge’s reference therein to Dame Janet Smith’s fifth Shipman report. He reminded the Panel of the test to be considered. In doing so he referred the Panel to the facts it had found proved, and how they might be considered in the light of this test. He asked the Panel to take account of the HCPC’s Practice Note on Impairment and to consider both the personal and public components relative to the facts found in this case.
28. Mr Walters submitted that two incidents had been referred to the HCPC, albeit 3 years apart, and that no evidence had been provided of any steps the Registrant had taken to remediate his behaviour; nor had the Registrant offered any evidence of current insight. He asked the Panel to note that previously the Registrant had made similar comments to those now found proved. The Registrant had clearly failed to remediate his failings, and lessons had clearly not been learnt.
29. Mr Walters submitted that there still remained a risk of repetition and accordingly the Panel should find the Registrant’s fitness to practise is currently impaired.
30. Mr Barraclough on behalf of the Registrant submitted that reference to the previous decision was not relevant to any finding of misconduct. He submitted that it did not aggravate or add to the seriousness of the conduct found proved by the Panel. He referred the Panel to particular 2 of the allegation which reads, ‘The matters described in paragraph 1 constitute misconduct’. He submitted that therefore the Panel should take account of only those matters found proved. Mr Barraclough made no further submission with regard to misconduct.
31. With regard to impairment Mr Barraclough said that it was unfortunate that the Registrant was unable to attend this hearing. He referred the Panel in particular to the DBC meeting in which he stated that the Registrant had apologised for having misread the situation. He submitted that the Registrant has had time to reflect and has accepted that comments about a female’s chest are inappropriate. He submitted that the Registrant had shown some insight and had expressed some remorse in respect of his conduct. He confirmed that he had no further written evidence to put before the Panel in relation to either courses attended or personal reflection.
32. The Legal Assessor reminded the Panel that in considering impairment it was a two stage process. It first had to consider whether the Registrant’s actions found proved amount to misconduct and only if so, should the Panel go on to consider whether his fitness to practise is currently impaired by reason of that misconduct. He reminded the Panel of the case of Roylance V GMC, UKPC16 (1999), in which it was held that ‘misconduct is a word of general effect involving some acts or omission which falls short of what would be proper in the circumstances’. He reminded the Panel that the professional misconduct must be serious. In considering misconduct they should refer to the HCPC booklet Standards of conduct, performance and ethics and the Standards of proficiency for Paramedics (2007-2014).
33. The Legal Assessor advised that if the Panel find misconduct then in considering whether the Registrant’s fitness to practise is impaired it should take into account whether his conduct is remediable; if so whether it has been remedied and is unlikely to be repeated and whether the Registrant has gained insight.
34. The Legal Assessor reminded the Panel that there was no burden or standard of proof and it would have to apply its own independent judgement.
Decision on Impairment:
35. The Panel in coming to its decision has taken account of all the evidence presented in this case, the submissions of both Mr Walters on behalf of the HCPC and Mr Barraclough on behalf of the Registrant. It has also accepted the advice of the Legal Assessor.
36. The Panel first considered whether the facts found proved amounted to misconduct. The Panel is satisfied that the Registrant’s behaviour fell far below the standard expected of a Paramedic. In doing so it has considered the lengthy period of time the Registrant was at the call centre, with Patient A in the car, and at the hospital. The inappropriate and derogatory remarks were made throughout this lengthy period. It considers that the Registrant’s remark about Witness B was completely inappropriate and that in the context of female anatomy breast, chest and boobs are synonymous, and therefore equally inappropriate. The Panel notes that Patient A was pregnant and had experienced a hypoglycaemic episode and she was entitled to have been cared for with dignity and respect. The Panel considers that remarks relating to the call centre’s environment and his own personal pay are in conflict with his duty to prioritise patient care. The number and nature of his remarks over this period of time had an adverse effect upon all those involved at the call centre.
37. The Panel is satisfied that the Registrant’s conduct breaches the HCPC Standards of conduct, performance and ethics in paragraphs 1, 3, 7 and 13;
1 – You must act in the best interest of service users.
‘…if you are providing care, you must work in partnership with your service users and involve them in their care as appropriate’
3 – You must keep high standards of personal conduct.
7 – You must communicate properly and effectively with service users and other practitioners.
13 – You must….make sure that your behaviour does not damage the public confidence in you and your profession.
38. The Panel is satisfied that the Registrant’s conduct breaches the Standards of proficiency of Paramedics in paragraphs 1b.1, 1b.3 and 1b.4;
1b. Professional Relationships
Registrant Paramedics must;
1b.1 – Be able to work where appropriate, in partnership with other professionals, support staff, service users and their relatives and carers.
1b.3 – Be able to demonstrate effective and appropriate skills in communicating information, advice, instruction and professional opinion to colleagues, service users, their relatives and carers.
‘….be aware of the characteristics and the consequences of non-verbal communication and how this can be affected by…..age….gender…’
‘recognise that relationships with service users should be based on mutual respect and trust’
‘Be able to identify anxiety and stress in patients, carers and others and recognise the potential impact upon communication’
1b.4 – Understand the need for effective communication throughout the care of the service user.
‘recognise the need to use interpersonal skills to encourage the active participation of service users’.
39. In the light of the above the Panel is satisfied that the Registrant’s conduct as found proved amounts to misconduct.
40. The Panel then considered whether by reason of that misconduct the Registrant’s fitness to practise is currently impaired.
41. It first considered whether the conduct is remediable. The Panel considered that this depended upon how deep the Registrant’s attitudinal problems are. It carefully considered the previous decision to which it has been referred, and the Panel is satisfied that in the light of this the Registrant should have acted in accordance with the standards of his profession when attending to, and communicating with, patients.
42. The Panel notes that he had had ample time between his meeting with the fact finding officer, Witness C, in May 2014, and the suspension of his registration in November 2014 to begin to remediate his behaviour by undertaking courses and providing written reflection. The Panel notes that he has not offered, to this Panel, any evidence of training or reflection following his previous hearing. The Panel is satisfied that the conduct complained of and found proved is potentially remediable in a Registrant who demonstrates insight. This Panel has not been provided with any evidence of remediation, or insight, and only limited evidence of remorse by this Registrant.
43. The Panel next considered whether the Registrant is likely to repeat his misconduct. After his referral to HCPC on 15 August 2012 he should have been aware his practice would be under scrutiny, and needed to change. Misconduct has occurred again and the Panel can therefore not be satisfied that it is unlikely to be repeated.
44. The Panel next considered the attitude of the Registrant following both these referrals to the HCPC. The Panel notes that at the DBC meeting on 07 August 2014 he said that he was ‘gutted has let standards slip’. He said he would do courses at his own expense. Mr Barraclough today told the Panel that the Registrant has reflected on his misconduct. However the Panel notes the Registrant’s statement of 12 August 2015, in particular the final paragraph where the Registrant implies that there may be dishonesty on the part of those persons who were present at the time of the incident, and that he maintains his original stance that his comments were light hearted banter. The Panel is satisfied that anyone with insight and who has reflected would not have made points such as these.
45. Witness C informed the Panel that it was not uncommon for people to admit to things to avoid going before a disciplinary hearing and to request a DBC instead. The Panel notes that the Registrant’s view of what happened on 19 March 2014 as recorded in his statement to the Panel differs from what he said to the Trust on 7 August 2014 at his DBC meeting.
46. The Panel next considered the public interest and what the public would think if a finding of impairment were not to be made today. The Panel is satisfied that the Registrant’s attitude put Patient A at risk, as she was made so uncomfortable by the Registrant that she left the hospital before being assessed in A&E rather than remain with him. Witness A was so concerned for Patient A that she telephoned the hospital to check that Patient A was safe. Service users were not reassured and their view of Paramedics was damaged. Their evidence indicated that they felt that they could not trust him. Witnesses A, B and Patient A had wide experience of other Paramedics and therefore were able to indicate to the Panel a clear distinction between how other Paramedics behaved and communicated, in comparison with the Registrant. The Panel is satisfied that the public’s perception of paramedics would be undermined if a finding of impairment were not made in this case.
47. In summary the Panel notes that there is no evidence of remediation, reflection or insight and only limited evidence of remorse.
48. In all the circumstances the Panel is satisfied that by reason of the Registrant’s misconduct his fitness to practise is currently impaired.
Decision on sanction:
49. Having found the Registrant’s fitness to practise impaired the Panel then went on to consider what sanction, if any, should be imposed upon the Registrant’s registration.
50. Mr Walters submitted that the Panel should refer to the HCPC’s Indicative Sanctions Policy (ISP) and rely upon the guidance in it. He reminded the Panel that its primary aim was to ensure that the risks identified in its impairment decision are adequately addressed. Additionally a sanction could have a deterrent effect and consideration should also be given to the reputation of the profession and the regulator. He further reminded the Panel that any decision had to be proportionate, balancing the interests of the public with those of the Registrant.
51. He submitted that the Panel should read paragraphs 10 – 14 of the ISP in particular under the heading of ‘Insight and Remorse’. He said that insight in this case was a key factor and that the Panel’s determination that the Registrant lacked insight and had shown limited remorse were central factors in its determination. He reminded the Panel of the aggravating features identified in its decision and suggested that it was difficult to see what mitigation there was. He said that the misconduct was not isolated as the Registrant had previously appeared before a HCPC panel which also found misconduct. He submitted that the impairment was not at the lower end of the scale.
52. Mr Walters then reminded the Panel of all the available sanctions indicating that these should be considered in ascending order of restriction. He said that this Registrant does not offer any insight, remediation, reflection and his remorse was limited.
53. Mr Barraclough submitted that the Panel should consider both the personal and public components relative to the facts of the case. He submitted that the Panel had identified potential remediability but accepted that the Registrant had been unable to provide evidence of any remediation, insight or reflection but expressed limited remorse. He said that if the Registrant had been able to attend this hearing he may have been able to give evidence on oath to demonstrate insight.
54. Mr Barraclough with regard to the public component submitted that the findings were not clinical but attitudinal. He asked the Panel to note that Patient A did not criticise the Registrant’s clinical care but said that in view of his attitude she could not trust him. She compared this with her wide experience she had had of other paramedics. He reminded the Panel that any sanction had to be proportionate and that it had to consider the available sanctions in ascending order of restriction.
55. The Legal Assessor advised the Panel that it first had to consider whether any sanction at all needed to be imposed. If it did it had to consider all the available sanctions in ascending order, starting with the least restrictive. He then advised the Panel of the available sanctions; reminding them that the Panel had to exercise its own independent judgement, that it should consider the criteria for sanction set out in the ISP and take account of the wider public, interest which is not only the protection of patients but also the confidence the public have in the paramedic profession, and the standards expected of paramedics. It had to balance the public interest with the personal interests of the Registrant.
56. The Panel first considered the mitigating circumstances relevant to this Registrant. It notes that he has engaged albeit to a limited extent. Although he has not attended he has been represented throughout the hearing. He has expressed remorse although this is limited.
57. With regard to aggravating features the Panel notes that he has appeared previously at a HCPC hearing, that this was a second event when he was aware of his first referral, some of the original allegations are similar to those identified in this case and there is no evidence of remediation, insight or reflection. The Panel notes that the Registrant did not treat Patient A with dignity or respect. He did not engender reassurance and trust with Patient A or Witnesses A and B. The comments he made have been found to be derogatory and inappropriate over an extended period. He did not introduce himself or give his name when this was requested of him by Patient A. When Witness B, the company’s first aider, presented herself he did not acknowledge her. He was not a new or inexperienced paramedic. He changed the views he expressed at the DBC meeting when he provided his statement to the Panel. He denied all the particulars in the allegation apart from one.
58. The Panel then considered each of the available sanctions in ascending order of restriction. It considered that taking no further action, imposing a Caution order or mediation would be insufficient as the misconduct in this case is too serious. Such orders would be insufficient to protect the public.
59. The Panel then considered whether to impose a Conditions of Practice Order. It noted that it had not been provided with any evidence of remedial action by the Registrant. It noted that the issue is attitudinal and no conditions could be devised to meet this. Additionally the Panel has no evidence of commitment to change on the part of the Registrant and the Panel has no evidence to show he would cooperate even if conditions were to be imposed. Additionally the Panel has no evidence of his future intention to work as a paramedic. Accordingly the Panel is satisfied that a Conditions of Practice Order will be insufficient.
60. The Panel next considered whether a Suspension Order would be adequate in the circumstances. It has taken a careful note of the decision that was finalised on 07 November 2014. Paragraph 100 of that decision states;
‘…nor did the Panel accept his [representative’s] submission that the Registrant’s behavioural issues could be remedied by attending a basic communication course. The Panel took the view that there is a high requirement for self-awareness and self-regulation in the Registrant’s role, and the Panel was not convinced that the Registrant fully understood this.’
Paragraph 101 states;
· ‘the evidence that the Registrant now recognised that his behaviour and attitude were unprofessional was limited;’
· ‘…and [in] the four months since the Panel found the facts proved, the Registrant had failed to undertake any significant or meaningful steps to reflect on, or address, the issues raised by this case.’
Paragraph 105 states;
‘…a future review panel would be assisted by evidence to show that the issues raised in this determination had been fully addressed. This evidence should be substantial, supported and should not be limited to reflective practice.’
The previous Panel stated theirs was a finding balance decision and that they had given careful consideration to a Striking off order. They had given the Registrant many clear indications as to the information a review panel would find helpful that same information would have been helpful to this Panel but none has been provided.
61. The Panel has received no evidence to suggest the Registrant attended even a basic communication course. Nor has it received any evidence that the Registrant has recognised that his behaviour and attitude were unprofessional either in the November 2014 hearing or at this hearing. Furthermore the Panel has not received any evidence that the Registrant has undertaken any steps to reflect on, or has addressed, the issues raised in either of these two cases. The Panel notes that the previous hearing was finalised on 7 November 2014 and would have expected to have received some evidence of action taken following that hearing that could have been put before this Panel.
62. In all the circumstances the Panel does not believe that the Registrant would use a further period of suspension beyond that which has been imposed on his current registration by the November 2014 panel to make the changes to his behaviour and attitude needed for the Registrant to remain on the register. Additionally the public interest also would not be satisfied. The Panel considers that the facts found in this case are so serious that only a Striking Off Order is appropriate. The Panel has considered the aspect of proportionality and in light of the Panel’s findings it is satisfied that a Striking Off Order is proportionate.
Order: The Registrar is directed to strike the name of Nigel Roberts from the Register
The order imposed today will apply from 18 September 2015 (the operative date)
History of Hearings for Nigel Roberts
|Date||Panel||Hearing type||Outcomes / Status|
|19/08/2015||Conduct and Competence Committee||Final Hearing||Struck off|