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1. The Panel found that there had been good service of the notice of hearing by a letter dated 21 September 2015.
2. The Registrant stated that he was content for evidence relating to his health to be heard in public.
3. The Registrant is a registered Paramedic. He was employed by the Welsh Ambulance Service until his resignation on 10 September 2014. In June 2014 he discovered that his long term partner (Person A) had engaged in a relationship with two men. The Registrant obtained the telephone numbers for the two men from his partner’s mobile phone. He sent texts to the two men demanding money or he would tell their families about their relationship with his partner. The following day one of the men reported the matter to the police.
Decision on facts
4. The Certificate of Conviction of Caernarfon Crown Court shows that on 29 August 2014 the Registrant was convicted on his own confession of two counts of blackmail. He was sentenced on 16 December 2014 to ten months of imprisonment on each count to run concurrently and he was ordered to pay a victim surcharge of £100. The Panel found that the conviction is proved by the Certificate of Conviction.
Fitness to Practise
5. The Panel received and accepted the advice of the Legal Assessor and followed the guidance in the HCPC Practice Notes “Conviction and Caution Allegations” and “Finding that Fitness to Practise is Impaired”. The Panel must be careful not to “go behind” a conviction and seek to re-try the criminal case. The Panel should consider the nature, circumstances and gravity of the offence.
6. The Panel took into account the evidence in the HCPC bundle and the evidence in a bundle provided by the Registrant.
7. The Registrant did not give evidence to the Panel. He made submissions and answered questions from the Panel. Although the Registrant did not give evidence and his statements were therefore not tested by cross-examination, the Panel’s view is that he answered the Panel’s questions honestly.
8. The Panel considered the nature, circumstances and gravity of the offence. In around 2010 the Defendant’s marriage failed. There is no medical information before this Panel, but medical evidence was available to HH Judge Hale, the Crown Court Judge. He accepted that the Registrant became depressed after the breakup of his marriage. The Registrant sought help in 2013 and was absent from work for a period of time. In around 2011 the Registrant met Person A. She had a medical qualification, supported and assisted the Registrant in seeking help, medication and counselling. The Registrant’s health was improving in early 2014 and in February 2014 he returned to work on light duties. The Registrant invested a substantial amount into the relationship with Person A emotionally.
9. When the Registrant discovered in June 2014 that Person A was unfaithful to him with two men this was emotionally devastating to him. He discovered communications of an intimate sexual nature. There were also negative comments about himself from Person A which were upsetting. In his sentencing remarks HH Judge Hale stated that the Registrant then “decided to take a remarkable course of action” in blackmailing the two men. HH Judge Hale stated: “They were married family men who probably should not therefore have been involved with your partner when they had been, but they were family men devastated to be challenged and to have to hand over £5,000. They went through 40 hours, until one of them went to the police and it all ended. They spent 40 hours in emotional turmoil of an extremely serious kind. That is the gravamen of what you did, that during that period of 40 hours, as a blackmail victim, those two men suffered that turmoil”.
10. The Panel’s assessment is that the Registrant’s reaction was an emotional irrational reaction which was out of character. It was not pre-meditated. The Panel’s assessment, based on the information in the HCPC bundle and the Registrant’s statements, is that the Registrant’s mental health was frail at this time and that this was a contributing factor in his irrational reaction. In concluding that the reaction was out of character for the Registrant the Panel took into account the character references provided by the Registrant. The Panel noted that the character references are not addressed to the HCPC, but found that they could nevertheless be taken into account.
11. The seriousness of the offence was marked by the imposition of an immediate custodial sentence. HH Judge Hale was urged by the Registrant’s counsel to consider a suspended sentence, but he decided that this was not appropriate.
12. When interviewed by the police the Registrant admitted that he took possession of Person A’s phone and photographed text and pictures. He admitted contacting the two men over a two day period and sending text messages demanding money. The Registrant pleaded guilty. The Registrant told the Panel that he now accepts the conviction and that he would never react in the same way again. He stated that he is aware that he has let his down his colleagues, friends and family. In the Panel’s view the Registrant was contrite in respect of his conduct. He told the Panel that he has resolved issues relating to his medication and that his “head is now clear”. He believes that he was not in a fit state of mind in June 2014.
13. The Panel asked the Registrant about an e-mail he wrote to the HCPC dated 5 May 2015 where he appears to set out a completely different position, suggesting that he had come under pressure to plead guilty and that this prevented the victim going to court. The tone of this e-mail is of anger and bitterness. The Registrant acknowledged that at the time he wrote the e-mail he was angry. He explained that he was influenced at the time by advice he received from other people and by the fact that at the time his medication was not settled and reiterated that he was now in a completely different frame of mind.
14. The Panel found that there was no remaining element of the anger or bitterness in the Registrant’s statements and was satisfied that the Registrant has significantly changed his position from May 2015. His current position demonstrates that he now has insight. He recognises the seriousness of his conviction and he expressed his remorse to the Panel.
15. Since his release from prison in May 2015 the Registrant has been supported and accepted by his local community. He values the support of his community and has contributed by volunteering and charitable activities. He has engaged in CPD to maintain his skills. He has set up a small business providing training in first-aid. The Registrant has taken a forward looking approach to his rehabilitation. He recognises that his conviction will continue to have consequences for him and that it will take time to rebuild trust.
16. The Panel’s view is that the risk of repetition of similar criminal offending is low. The Registrant is now aware of the fragility of his health and the importance of very careful monitoring and appropriate management. The Panel is satisfied that it is very unlikely that he would repeat similar threatening behaviour.
17. The Panel next considered the critically important public policy issues as set out in the Practice Note on Conviction and Caution Allegations. The Registrant’s conviction brought the profession into disrepute and it also has the potential to undermine public confidence in the profession. It is relevant that the Registrant was sentenced to immediate imprisonment. The Panel considered the HCPC Standards of Conduct, Ethics and Performance standard 4. This requires Registrants to provide to the HCPC important information about their conduct and competence. It states:
“we will consider rejecting an application for registration, or removing you from the Register if you are already registered, if you are convicted of a criminal offence or accept a police caution that involves on of the following types of behaviour……offences for which you received a prison sentence”
18. This standard sets out clearly for Registrants that a criminal conviction which results in a prison sentence will be taken extremely seriously by the Regulator. The Registrant did not in breach standard 4, because he informed the HCPC of his suspension from work and court hearing on 1 July 2010. The standard was nevertheless relevant in the Panel’s deliberations because it is a very clear indicator of the seriousness of the conviction and it suggests that such convictions are very likely to damage confidence in the profession.
19. The Panel were also referred to Standard 3 “You must keep high standards of personal conduct” and standard 13 “You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession”. The Registrant’s conviction is a breach of both standards.
20. The Panel’s overall assessment is that the Registrant’s conviction is so serious that public confidence would be undermined if a finding that fitness to practice is impaired was not made. It is necessary for the regulator to mark the seriousness of the Registrant’s past conduct.
21. The Panel therefore concluded that the Registrant’s current fitness to practise is impaired.
Decision on sanction
22. The Panel received and accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions policy. The purpose of a sanction is not to punish a Registrant, though it may have that effect. The purpose of a sanction is to protect public safety and the wider public interest which includes maintaining confidence in the profession and the regulatory process and acting as a deterrent to other Registrants. The Panel applied the principle of proportionality and balanced the public interest against the Registrant’s interest in continuing to practise as a Paramedic.
23. The Panel noted the guidance in the case of Fleischmann that if a Registrant has been convicted of a serious criminal offence and is still serving their sentence at the time the matter comes before a Panel, normally the Panel should not permit the Registrant to resume their practice until that sentence has been satisfactorily completed. In this case the Registrant has satisfactorily completed his sentence.
24. The Panel identified the following aggravating circumstances:
• Stress caused to others
• A serious offence involving threats
• A custodial sentence
25. The Panel identified the following mitigating circumstances:
• An isolated incident
• Out of character for the Registrant and health issues a contributory factor
• No repetition
• Positive rehabilitation steps taken by the Registrant including community work
• No issue of clinical competence
• Many letters of support
26. The Panel considered the sanctions in ascending order of severity, starting with the option of taking no further action. The Panel found that this would not be sufficient because it would not be a deterrent to other Registrants, nor would it maintain confidence in the profession and the regulatory process. Mediation is not appropriate in the circumstances of this case.
27. The Panel decided that the choice of the appropriate and proportionate sanction in this case was between a Caution Order and a Suspension Order. The Panel decided that the sanction of last resort, a striking off order, was not proportionate, taking into account the mitigating circumstances. The Panel also considered that conditions of practice were not appropriate because this case does not involve a lack of competence or misconduct relating to clinical practice.
28. In deciding between a Caution Order and a Suspension Order the Panel bore in mind that the sanction should be the least restrictive which is sufficient to provide the necessary degree of public protection. The Panel’s view was that the guidance in the Indicative Sanctions Policy for a Caution Order applied. This was an isolated incident, there is a low risk of repetition and the Registrant has demonstrated insight. This is guidance only, and the Panel also took into account the need for the sanction to act as a deterrent for other Registrants and to uphold standards. The option of suspending the Registrant was carefully considered by the Panel particularly because standard 4 of the Code of Conduct, Performance and Ethics indicates that a Registrant may face the ultimate sanction of being struck from the Register for a criminal offence where an immediate custodial sentence is imposed.
29. The Panel decided that a Caution Order would be a sufficient deterrent, and would maintain confidence in the profession and the regulatory process, but that the Caution Order should be for the maximum period of five years. In reaching the decision that a Caution Order was sufficient the Panel took into account the mitigating circumstances. The Panel was particularly influenced by the circumstances of the offence. This was an isolated incident which occurred over a very short period of time and a contributory factor was the Registrant’s state of health. This is not a case where there is a clear benefit in a period of suspension to allow the Registrant to reflect on his conduct or to remediate his conduct. The Panel has found that the Registrant has insight. He is maintaining his medication and monitoring his health. The Panel also had regard to the public interest in the wider sense. A suspension order would deprive the public of a skilled clinician, whereas a Caution Order would allow the Registrant to continue his rehabilitation and the process of rebuilding trust.
30. The Panel’s concluded that the appropriate balance between the public interest and the Registrant’s interests was a Caution Order of the maximum length of five years. The Panel considered a Caution Order for one year, but decided that this would not be sufficient. This is a case where the Panel in its deliberations considered suspending the Registrant because of the seriousness of the conviction. Without the mitigating factors the Panel has identified, the Registrant would have faced at least a Suspension Order and he would have been at risk of being struck off the Register. The Caution Order should be of the maximum length to send a very clear message to other Registrants that they must maintain high standards in their private lives. For the same reasons a Caution of three years, which is the benchmark, would not be sufficient or proportionate.
31. In deciding that a Caution Order was sufficient the Panel considered the perspective of a member of the public who was aware of all the relevant circumstances, including the mitigating factors. The Panel decided that a member of the public would consider that a Caution Order of five years sufficiently marks the seriousness of the Registrant’s conviction and is sufficient to act as a deterrent to other Registrants.
32. The Panel decided that it was not proportionate to step up the severity of the sanction to a Suspension Order because a Caution Order provides a sufficient degree of protection for the public interests in this case.
33. The Panel therefore decided that the appropriate and proportionate sanction is a Caution Order for five years.
History of Hearings for Eifion Howatson
|Date||Panel||Hearing type||Outcomes / Status|
|21/09/2020||Investigating Committee||Interim Order Application||Interim Suspension|
|10/12/2015||Conduct and Competence Committee||Final Hearing||Caution|