Carl Gardiner

Profession: Paramedic

Registration Number: PA06504

Interim Order: Imposed on 04 Aug 2015

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 13/06/2016 End: 16:00 15/06/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst employed as a Paramedic at City Health Care Partnership CIC:

1. On or between 17 February 2015 and 20 March 2015 you failed to maintain an appropriate professional boundary with Patient A in that:

(a) You sent approximately 324 text messages to Patient A’s personal mobile telephone.


(b) The text messages referred to in paragraph 1 (a) above were:

(i) sexual in nature and/or

(ii) unrelated to the clinical care of Patient A.

(c) On one or more occasion you engaged in a telephone conversation with Patient A that was unrelated to the clinical care of Patient A.

(d) On one or more occasion you made a non authorised visit to Patient A at her home, including:

(i) on or around 5 March 2015

(e) on or around 5 March 2015 you engaged in inappropriate physical contact with Patient A in that you:

(i) Attempted to kiss Patient A

(ii) Hugged Patient A

(iii) attempted to put your hand up Patient A’s top

2. On 5 March 2015, you did not record your visit to Patient A at her home.

3. Your actions as described at paragraphs 1(a), (b), (c) (d) and (e) above were sexually motivated.

4. Your actions as described at paragraphs 1 (a), (b), (c), (d), (e), 2 and 3 constitute misconduct.

5. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters

1.  The HCPC was represented by Miss Eales from Kingsley Napley
Solicitors.

2.  The Registrant did not attend and was not represented.

Notice & Jurisdiction


3.  The  Panel  was  satisfied  that  proper  notification  of this  hearing  had been given in accordance with the Rules, a notice setting out the date, time and venue of this hearing had been sent to the Registrant’s registered address on 8 March 2016. Accordingly, the Panel had jurisdiction to consider the case.

Proceeding in Absence

4.  The  Council  made  an  application  to  proceed  in  the  Registrant’s absence and the Panel took advice from the Legal Assessor.

5. The Panel was aware that Rule 11 of the Conduct and Competence Committee Procedure Rules 2003 confers a discretion to proceed in a Registrant’s  absence  and  that  the  principles  derived  from  case  law such as R v Jones and Tate v Royal College of Veterinary Surgeons confirm that the discretion  is not absolute, it is severely constrained and must be exercised with utmost care and caution. The Panel had regard to the Practice Note on Proceeding in Absence.

6.  The Panel applied the above principles and exercised the discretion in favour  of  proceeding  in  the  Registrant’s  absence  as  all  reasonable steps had been taken to notify him of this hearing. Firstly, he had been properly notified. Secondly, a copy of the Hearing Notice was also sent by email on the same date. Thirdly, the hearing bundle had been sent to the Registrant which also contained a copy of the notice. The panel was of the view that the Registrant was aware of the hearing. In an email from him of 8 May 2016, the Registrant  made it clear that he would not be attending this hearing nor would he be represented. In these   circumstances   the   Panel   concluded   that   the   Registrant’s absence  was  deliberate  and  that  he  was  voluntarily  absent.  In  the Panel’s  view it was unlikely  that the Registrant  would  attend  in the future if the case were to be adjourned. The case involves serious Allegations of unprofessional behavior dating back to early 2015, three witnesses were scheduled to give live evidence and it was both in the public and Registrant’s own interest for the case to be dealt with expeditiously by proceeding.

Amendment Application
 
7. The HCPC made an application to amend the Particulars. The Panel received advice from the Legal Assessor on the power to amend.

8.  The Panel exercised the discretion in favour of granting the application being satisfied that the amendments were non material, minor and clarified matters. The change, in Particular 1(d), from “non clinical” to “non authorised” better reflected the real issue. The inclusion of a date within Particulars 1(d)(i) and (1(e) provided better clarification. The inclusion of the word “attempted” within Particular 1(e)(iii) amounted to a less serious Allegation. The inclusion of “or around” to Particular 2 amounted to better clarification. The issue of a lack of competence was no longer pursued.

9. The Registrant was notified of the intention to apply for such an amendment by a letter dated 14 January 2016. In the Panel’s view this meant that the Registrant had adequate time to prepare for this issue or to register an objection. It is a relevant factor that no such objection was communicated in his email of 8 May 2016. .

10. In all, the panel was satisfied that the case had not been enlarged, no new issues had been introduced and there was no prejudice to the Registrant.

Background

11. The Registrant is a registered Paramedic.   He was employed by City Health Care Partnership CIC (“CHCP”) from December 2004 and held the role of Emergency Care Practitioner (“ECP”) Team Leader from 1 March 2007. The Registrant’s work mainly involved service users in residential  homes  but  also  responding  to  emergency  and  urgent situations elsewhere.

12. Patient A had been attended at her home by the Registrant in his role as an ECP in February 2015 which is how they initially met. The Allegations against the Registrant fell into three broad categories:


a.  The sending  of inappropriate  text messages  and engaging  in telephone conversations

b.  Making unauthorised visits to Patient A

c.  Inappropriate physical contact

13. It  is  further  alleged  that  the  Registrant’s  behaviour  was  sexually motivated.

14. Patient  A  reported  the  Registrant’s   conduct  to  her  Occupational Therapist, MH who worked for Humber NHS Foundation Trust. She referred the matter to Safeguarding.   ES, CHCP Adult Safeguarding Practitioner, investigated the complaints and following this PW, Service Manager for Urgent Care Services, was appointed as the Investigating Officer for the internal disciplinary investigation.
 
15. The Registrant provided representations to the Panel, he accepted that he was in contact with Patient A and maintained that 95% of the text messages and calls were initiated by the Patient.   He strongly denied that his motives were of a sexual nature.   He stated that some of the text messages were of a ‘humanistic nature’ and that he would give her a listening ear.  He accepted that he visited the Patient twice, first when called by the local ambulance service and secondly when requested by the patient.   The Registrant accepted that he hugged the patient but that this was momentary and he did not overstep the line.  He stated that he felt he was falsely called to the Patient’s home due to her intoxicated state.

The Hearing

16. Miss Eales opened and summarised the HCPC case. She referred to the evidence in support of the Allegations.

17. The Panel then heard the evidence from PW, MH and ES as witnesses for the HCPC.

18. The Panel, and where necessary the Legal Assessor, addressed the issues raised by the Registrant in his written representations with the witnesses so that their evidence on those points was available for consideration.

19. The Panel then heard closing submissions on behalf of the Council and received advice from the Legal Assessor.

20. The Panel noted that the Registrant, in his email for this hearing, had referred to personal statements from his friends and colleagues about him. The Panel was of the view that the Registrant had consented to testimonials submitted for the Investigating Committee to be placed before this Panel. The Panel thus received the testimonials and took them  into  account  in case  they were  relevant  to any of the stages under consideration.

Decision on facts

21. The Panel was aware that the burden of proving the facts was on the HCPC, that the Registrant did not have to prove anything and that the case is only to be found proved if the Panel was satisfied on a balance of probabilities.

22. The Registrant’s  partial-admissions  and/or absence  did not alter the burden or standard of proof.

23. The  Panel  took  account  of  all  the  oral  and  written  evidence,  the documents  in the  case  including  the  Registrant’s  written representations and the submissions.
 

24. The Panel accepted the evidence of all the HCPC witnesses as their evidence was honest, credible, balanced and persuasive. The Panel found them to be reliable.

25. PW  had  conducted  the  investigation   and  had  produced  relevant documentary evidence including the Registrant’s rota, information from the  vehicle  tracking  device,  a  mobile  phone  log  relating  to  the Registrant’s work mobile phone and the applicable policies within the Trust. He had also interviewed the Registrant and had produced a copy of  the  notes  which  had  been  signed  as  being  accurate  by  the Registrant. PW was unable to assist the Panel with the interpretation of the clinical records from System 1. The Panel found PW to be credible and reliable.

26. MH  had  produced   very  detailed   contemporaneous   notes  of  her discussions with Patient A. She knew Patient A well. MH’s evidence was impressive as she was clear, considered and persuasive.

27. ES was very knowledgeable about the applicable Policies at the Trust. ES had two telephone conversations with Patient A. Her evidence was clear and persuasive.

28. Patient A had not been asked for a statement nor was she called as a witness. Miss Eales explained that the HCPC’s decisions were based on Patient A’s unwillingness to become involved with the Trust investigation and there being a question about vulnerability. The Panel did not consider  this to be an adequate  explanation.  Patient  A was central to the case and a statement from her was important instead of reliance being placed on other evidence including her hearsay account given through her Occupational Therapist. The HCPC was obliged to contact Patient A to ascertain whether she still felt unable to assist. The option of a Witness Order did not appear to have been considered. There was no clear evidence about Patient A’s vulnerability, such that she would be unable to give evidence. In the Panel’s view this meant that the HCPC had failed to call a material witness.

29. The  Panel  had  in  mind  the  guidance  from  cases  such  as  R  v Horncastle & Others [2009] UKSC 14, in which it was decided that reliance  should not be placed  on hearsay  evidence  that was based solely or to a decisive extent on the statement or of a witness whom the accused has had no chance of cross examining.

30. With all this in mind the Panel considered  the weight it was able to attach to Patient A’s hearsay evidence in all the circumstances of the case. The Panel concluded that it could place sufficient reliance on Patient A’s hearsay evidence.
 
31. There  was  no statement  from  Patient  A. However,  there  were  very clear, detailed and contemporaneous notes taken by MH of Patient A’s account. The Panel found the notes to be of a high quality as they contained direct quotes from Patient A. The Panel was satisfied that MH had been diligent with the notes and that the notes accurately reflected what Patient A had said. Copies of the notes were contained in the HCPC bundle as evidence.

32. The  Registrant  had not been  given  the opportunity,  even  if he had attended, to cross examine Patient A. However, it did not appear to be the Registrant’s case that Patient A had made up the entirety of the Allegation.  He accepted  that he had “behaved  unprofessionally”  and “had been foolish” with all his experience.  He accepted that he had failed his profession but had not done so with malice or motive. He apologised for his actions and accepted that he should have reported matters to his superiors.

33. Patient   A’s   account   was   consistent.   She   had   disclosed   to  her Occupational Therapist that the Registrant was sending her text messages, that he had visited her that he had hugged and tried to kiss her. There was evidence from MH that Patient A had disclosed to her Personal Assistant that the Registrant had attempted to put his hand up her top. The Allegations were broadly repeated to ES who had received the referral from the Occupational Therapist. It was material that at no point Patient A sought to resile from that which she had disclosed.

34. Patient A had confided in others. There was evidence from MH that Patient A’s Personal Assistant knew about the Registrant’s attempt to put his hand up her top. There was also evidence from MH that Patient A’s hairdresser was aware of some matters.

35. Patient A’s account was corroborated.  Patient A suggested  that she had been sent a huge number of text messages. There was incontrovertible evidence that 324 text messages had been sent by the Registrant to Patient A which was evidenced by the mobile phone logs. There was incontrovertible evidence from the vehicle tracking system and the work rotas to show that the Registrant had attended at Patient A’s home on 5 March 2015 as she suggested. The absence of clinical records for the visit on 5 March 2015 also served to corroborate Patient A’s account that the Registrant’s visit was not authorised.

36. There  was  further  corroboration  for  Patient  A’s  account  from  the circumstantial  evidence.  The  Registrant’s  mobile  phone  was synchronised with the Trust computer. In this way the text messages would  have  been  copied  onto  the  Trust  computer.  The  Registrant disabled this facility and explained this by saying it drained the phone battery.   The   Panel   came   to   the   inevitable   conclusion   that   the Registrant did so to ensure that the text messages were not copied due to their content. In addition, the Registrant was asked for his mobile phone by the Trust but did not provide this until the following day when all text messages had been deleted. The Panel again came to the inevitable conclusion that the Registrant did so to prevent the text messages  being  considered  due  to  their  content.  This  supported Patient A’s account about the sexual nature of the text messages.

37. The Registrant, in his Trust interview, accepted that some of the text messages  from  Patient  A  were  of  a  sexual  nature.  He  specifically referred to a text message from Patient A about “HSG” which he had queried and that her response had been that it was a reference to “hot sperm gargle”. Patient A had described the text messages as “filthy” and a “sexual come on”. She mentioned two specific texts in which the Registrant had said “are you up for it then” and “I have been thinking about your …”. It was clear from this that even on the Registrant’s own account,  there  were  text  messages  of  a  sexual  nature.  The  Panel found it likely that there were text messages of a sexual nature from the Registrant.

38. Patient A’s reaction to the situation was credible. She told MH that she felt silly, a bit like a person who had been raped who had been asking for it. She also felt frightened, terrified, feared that the Registrant may lose his job and what he may do to her.

39. Patient A did not participate  in the Trust investigation.  At the outset Patient A declined to become involved in the process and ES had no notes as to the reasons for this. However, Patient A was telephoned by ES  on  28  April  2015,  for  which  there  were  notes.  ES  gave  clear evidence about Patient A’s reasons for not becoming involved namely that she was scared of the consequences, it had been a horrendous experience, she had a lot going on in her life, she did not want this to happen to anyone else but felt she could not participate in the process. The Panel found this to be a reasonable explanation for the non- participation at the time bearing in mind the power imbalance between a senior practitioner and a patient who was vulnerable. The Panel did not consider the lack of participation by Patient A in the Trust process undermined her credibility.

40. The Registrant’s account, set out in his Trust interview and email of 8 May  2016  for  this  hearing,  indicated  that  he  was  evasive.  Whilst accepting that he had behaved unprofessionally, he did not take responsibility for his own conduct. He sought to minimise his behaviour by suggesting that 95% of the texts were initiated by Patient A. He suggested that he had been the victim of “a narcissistic individual of dubious credibility” who felt that he deserved to be punished.

41. Accordingly,  unless  stated  otherwise,  the  facts  were  proven  on  the strength of the HCPC evidence.
 
42. Particular 1(a) was proved. The mobile phone records clearly showed that 324 text messages were sent from the Registrant’s mobile phone to that of Patient A between 17 February 2015 and 20 March 2015. In addition the Registrant in the exploratory meeting on 8 April 2015, accepted that he sent text messages to Patient A stating that “conversations  would go on, SUA would contact  me so I would text back”.

43. The  Panel  was  satisfied  that  the  sending  of  324  text  messages amounted to a failure to maintain professional boundaries. The volume of text messages went far beyond that which can be regarded as appropriate   in   the   circumstances.   The   Trust   fair   usage   policy suggested  that  50  text  messages  could  be  sent  each  month  on  a personal use basis. In this case, for example, 75 text messages were sent on 3 March 2015 and 31 text messages were sent on 4 March 2015. The Registrant knew that Patient A was vulnerable and should have maintained professional boundaries. There was no clinical justification for the volume of text messages. The text messages were sent at different times of day and night including 6am and at midnight. In the Panel’s view it was inappropriate even if this was a response to Patient   A’s   text   messages.   The   Panel   took   into   account   the Registrant’s  case  that  95%  of  the  text  messages  were  initiated  by Patient  A.  In  the  Panel’s  view  this  did  not  alter  the  Registrant’s obligation to maintain professional boundaries.

44. Particulars 1(b)(i) and (ii) were proved. The Panel was satisfied that there was no clinical justification for the text messages as there were no recordings made on System 1 about them. The volume of text messages made it unlikely that they were associated with clinical care. The number of text messages from the Registrant made it unlikely that this was simply a listening ear as he suggested. On 25 March 2015, Patient A, whilst completely sober, described the text messages to MH as “filthy”, “a sexual  come on” and her quoted examples  were of a sexual nature. Patient A described the text messages as “banter” with which she had engaged. The Registrant also described the messaging as banter. The Registrant was asked about these text messages in the exploratory interview when he stated that he could not remember. The Registrant has signed the notes from that interview as being accurate. In  the  panel’s  view  it  is  material  that  the  Registrant  did  not  deny sending   those   messages   but   simply   stated   that   he   could   not remember. It was reasonably open to the Registrant to deny the sexual nature  of  the  text  messages   but  he  chose  not  to  do  so.  The Registrant’s  own  account  about  the  nature  of  a text  message  from Patient A also made it likely that the text messages were of a sexual nature.

45. The  Panel  was  satisfied  that  this  represented  a failure  to  maintain professional boundaries. The sending of 324 text messages without clinical  justification,   was  inappropriate.   It  meant  that  professional boundaries were not respected. The relationship had gone beyond the bounds of a professional relationship, even though that is how it may have started and continued for some of the time. The Registrant was personally involved with Patient A as a friend. The Panel found that this breached     the     boundaries     of     the     professional     relationship.

46. Particular 1(c) was proved. The mobile phone log for the Registrant's mobile  phone  established  that  there  were  several  calls  from  the Registrant to Patient A. The Panel was satisfied that the calls were inappropriate. One call related to the Registrant suggesting he would deliver a patient form. There was evidence that such surveys were not carried out by paramedics,  that they were anonymous  in nature and that any feedback about the Registrant could be put onto a card left with a patient. The Panel was thus satisfied that this call was inappropriate.  The  Registrant  failed  to  maintain  professional boundaries by seeking feedback directly from Patient A. There was nothing in the clinical records about the other calls. The Panel was satisfied  that  in  the  absence  of  evidence  of  a  clinical  reason  the remaining calls were also inappropriate and amounted to a failure to maintain professional boundaries. In the exploratory interview the Registrant acknowledged that Patient A was not a patient, that the calls were not clinical, that they had struck a chord and that it was hard to say  what kind of relationship they had.

47. Particular 1(d)(i) and Particular 2 were proved. The Panel was satisfied that the Registrant visited Patient A on 5 March 2015. This was clear from Patient A’s evidence, the vehicle tracking information for the car used by the Registrant and his work rota. The Registrant accepted that he had attended Patient A’s home on that date. Patient A had fallen and called for assistance using the Help Line facility fitted at her home. She also called the Registrant on his mobile phone. PW was clear that patients cannot self-refer to the ECP service and the call was personal rather  than   professional.   The   Registrant’s   visit   had   not   been authorised.   This  was  evidenced   by  the  absence   of  any  clinical recording relating to the visit. The Registrant was present at Patient A’s home for one and a half hours as shown by the vehicle tracking record. He attended to Patient A who had fallen. He was obliged to record his clinical care but failed to do so. He remained at the property for much longer than was appropriate as there was evidence that he had made Patient A a coffee and that they had sat in the kitchen for some time. The Panel was not satisfied on the quality of the evidence that the Registrant   had   visited   Patient   A’s   home   on   other   occasions.

48. Particular  1(e)(i)  was  not proved,  Particular  1(e)(ii)  was  proved  and Particular 1(e)(iii) was not proved. In light of earlier findings the Panel was satisfied that the Registrant was at Patient A’s home on 5 March 2015 for one and a half hours. The Panel found that the initial reason for the attendance was to assist Patient A as she had fallen however this had been dealt with and the visit became social with coffee being made. The Panel found it likely that the Registrant and Patient A were in her kitchen as she suggested. The Registrant told MH that the Registrant had hugged her in the kitchen. The Registrant accepted in the exploratory interview that “the only time that I was in the kitchen I put my arm around her and gave her a bit of a hug.” The Panel was thus  satisfied  that the Registrant  had  hugged  Patient  A. The  Panel found this to be a clear and obvious example of engaging in physical contact which was both inappropriate and a failure to maintain professional  boundaries.

49. In light of the quality of the evidence the Panel was not satisfied that the HCPC had proved that the Registrant had attempted to kiss Patient A or put his hand up her top. It might have been the case  that by hugging  Patient  A the Registrant  drew her closer  to him.  However, without Patient A giving greater detail as to exactly what had occurred the Panel felt unable to make a finding that there was an attempt to kiss or put his hand up her top. It may well have been Patient A’s perception that these things were attempted given the nature, circumstances  and  purpose  of  the  hug  but  there  was  insufficient evidence to find that there was an attempt to kiss her or to put a hand up her top. In respect of the hand being put up her top, the evidence was particularly  weak. It was based on second hand hearsay which came from Patient A’s Personal Assistant rather than from Patient A directly in a conference call with MH. Whilst Patient A did not dispute the Allegation or object at the time, she did not make the Allegation herself or repeat it.

50. Particular 3 was proved in respect of Particulars 1(a), (b) and (e)(ii). The nature, circumstances and purpose of the text messages and hug disclosed that the Registrant was sexually motivated. The content of the text messages were sexually explicit and described as “filthy”, “a sexual come on” and “sexual”. The examples cited by Patient A and the Registrant were manifestly and obviously sexual in nature such as “I've been thinking about your …”, “Are you up for it” and “HSG” being hot sperm gargle. The text messages were sent at all times of the day and  night.  The  visit  on  5  March  2015  was  preceded  by  75  text messages being sent on 3 March 2015, 31 on 4 March 2015 and 35 on
5 March 2015 itself. In that set of circumstances  combined  with the nature of the physical engagement being a hug drove the Panel to an inevitable conclusion that the Registrant was sexually motivated. The Panel did not accept the Registrant’s case that this was a supportive hug without a motive in the context that has been outlined. Patient A’s reaction to step back and to ask what he was doing confirmed that this was more than a platonic hug, but was sexual in nature, circumstance and purpose.

51. The Panel was not satisfied that there was sufficient evidence about the content of the telephone calls to be satisfied that they were sexually motivated.  The Panel has found  the telephone  calls amounted  to a failure  to  maintain  professional  boundaries  as  the  Registrant  was seeking feedback about himself when this was inappropriate. However, there was no clear evidence  that the content  of the telephone  calls were sexual in nature and the Panel felt unable to draw this inference. In relation to the visit on 5 March 2015, the Panel was not satisfied that this  was  made  with  a  sexual  motive  or  aim.  It  was  clear  that  the Registrant   had  responded   to  Patient  A’s  request  for  assistance. Therefore the visit was made with the intention of assisting Patient A with her clinical difficulty. The purpose of the visit was dealt with and the time at Patient A’s home continued during which the Registrant hugged Patient A. The Panel has made a finding that the hug was sexually motivated.

Decision on grounds

52. The Panel took into account the guidance from Roylance  v General medical  Council  [2001]  AC  311.  The  Panel  is  satisfied  that  all  the proven Particulars amount to misconduct. The Registrant’s actions fell far below those that can be expected of a registered Paramedic. There were departures  from fundamental  tenets of the profession  including the need to be trustworthy and to carry out their work with integrity.

53. Patient  A  was  vulnerable   she  had  had  a  life  changing  medical condition. As she had been drinking, she said she was an alcoholic, she was struggling with her life, she required the services of a Personal Assistant, she lacked roles and routines having worked full time previously,  she had an on and off relationship  with a boyfriend  with whom she spent some weekends, it was not unusual for her to use the Life Line and she had fits due to stress.

54. The Registrant  abused  the trust and confidence  placed in him as a Paramedic. Most of the activity took place during working hours when his  attention   should   have   been   focused   on  proper   professional activities.  He took  advantage  of his status  to interact  with  and  hug Patient A who was a vulnerable service user.

55. There  was  a  power  imbalance;  the  Registrant  was  in  a  powerful position as the professional on whom Patient A came to rely.

56. He took advantage of the original clinical visit to Patient A in her home, to pursue an agenda of sexually motivated behaviour.

57. The Registrant tried to blame the patient for initiating and continuing the text messages.

58. The Panel discounted the notion that the Registrant  may have been trying to be supportive as his behaviour persisted over a period of a month, there was a large volume of text messages with some being sexually  explicit  and  he  then  hugged  the  patient.  This  was  not  an isolated lapse but a continuous sequence of unprofessional behaviour when boundaries were not maintained including a telephone call, the text messages and the hug during a visit. The hug was totally unacceptable and his actions represented a total disregard for what is proper by crossing this boundary when he chose to engage in sexually motivated  physical  contact.  The conduct  demonstrated  a willingness and persistence to take risks through the continuation of the behaviour. There  was  also  an  element  of  pre-planning  as  the  Registrant  had disabled the sync facility on his mobile phone.

59. In the Panel’s view the totality of the conduct fell far below what can be accepted as proper.

60. The behaviour was deliberate and intentional. The Registrant accepted that he had behaved unprofessionally and had been foolish.

61. As a Paramedic  in a senior  post,  the Registrant  should  have  been aware that he was transgressing professional boundaries and should have sought guidance through supervision but he failed to do so.

62. The misconduct has caused emotional harm to Patient A who blamed herself, was distressed and described it as a horrendous experience. She felt frightened and scared in case of reprisals. It was a particular concern that Patient A was scared to call for assistance in case the Registrant attended.

63. The Registrant  breached  the following  HCPC  Standards  of Conduct
Performance and Ethics:

Standard  1 – The Registrant  failed to act in the best interests  of
Service Users.

Standard  3 – The Registrant  failed to maintain  high standards  of professional conduct.

Standard 10 – The Registrant failed to keep accurate records.

Standard 13 – The Registrant failed to behave with integrity and his behaviour has damaged confidence in him and his profession.

64. The Registrant, whilst there was no Allegation of lack of competence, breached the following HCPC Standards of Proficiency:

2.3. The Registrant did not practice within the legal and ethical boundaries of the profession. He did not uphold the rights and dignity of the service user.

2.4. The Registrant failed to recognise that his relationship with the service user needed to be based on mutual respect and trust.
 

65. In the Panel’s view the established behaviour would convey a degree
of moral blameworthiness to the ordinary intelligent citizen.

66. In all the circumstances the Panel’s assessment was that the proved facts amounted to misconduct

Decision on impairment

67. In considering  this aspect the Panel has taken into account that the purpose of these procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

68. The Panel took into account the HCPC Practice Note on Finding that Fitness  to  Practise  is  “Impaired”.  The  Panel  took  account  of  the guidance in General Medical Council v Meadow [2006] EDCA Civ 1319 and Cohen v General Medical Council [2008] EWHC 581 (Admin).

69. The   Panel   took   into   account   the   documents   submitted   by   the Registrant  including  the testimonials  on his behalf.  The testimonials were general and related to the Registrant’s character rather providing help on the question of remediation. The Registrant’s decision not to attend this hearing or to provide more detailed evidence has meant that the Panel is left with only his limited reflections provided in his email of the 08 May 2016.

70. In the Panel’s assessment the Registrant’s current fitness to practise is impaired.

71. The  established   misconduct   is  serious  as  it  involved   deliberate, persistent and sexually motivated behaviour through which the service user suffered from harm.

72. In the Panel’s view the Registrant has expressed no remorse for the experience  of  the  Service  User  affected  by  his  conduct.  He  has expressed regret that his career has come to an effective end.

73. The Registrant has not demonstrated insight into his failings, and he sought to blame the service user. He superficially recognised that he had been unprofessional and foolish but did not demonstrate how he would ensure that this behaviour would not be repeated in the future.

74. Accordingly, the misconduct is not easily remediable and certainly has not been remedied.

75. In considering the likelihood of recurrence the Panel was of the view that the absence of insight, remorse and evidence of effective remedy means  that  there  is  a  high  risk  of  this  registrant  repeating  these behaviours. There can be no confidence that the Registrant will behave with integrity in the future. He was unable to regulate his behaviour in respect of a vulnerable  service user over a period of a month, in a number of different ways including hugging and a large number of text messages. These were not isolated lapses but were part of a pattern of escalating misbehaviour.

76. The Registrant has damaged public confidence in himself as members of the public and colleagues would find it difficult to trust the Registrant as  he  has  chosen  to  depart  from  fundamental  standards  and  then sought to justify his behaviour.

77. This Registrant has breached fundamental tenets of the profession to such  a  degree  that  his  actions  certainly  negatively  affect  public confidence in the profession.

78. In such circumstances it is important to make a finding that fitness to practice   is   currently   impaired   in  order   to   restore   and   maintain confidence  in both the profession and regulatory process; to send a clear message to both the public and profession that such behaviour is not   acceptable.

79. In the Panel’s assessment critically important Public Policy issues are
engaged in this case.

80. Accordingly, the HCPC’s case is well-founded.

Decision on sanction

81. The Panel took account of the submissions made by Miss Eales who highlighted the aggravating features found by the Panel, the application of  the  Indicative  Sanctions  Policy  and  the  need  to  approach  the question of Sanction in a proportionate manner.


82. The Panel also took into account the mitigation that could be inferred and had regard to the testimonials submitted by the Registrant.

83. In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor.
84. The Panel finds that the aggravating features of the case include: (a)   The high volume/intensity of sexually motivated text messages
being sent including texts at night.
(b)   An instance of physical engagement which was also sexually motivated.
 
(c)   There was an element of pre-planning.
(d)   The misconduct was deliberate and intentional.
(e)   The misconduct was repeated, and persisted for over a month.
(f)  The misconduct took place largely on duty when the Registrant’s
focus should have been on the needs of service users.
(g)   A vulnerable service user suffered from emotional harm and was scared.
(h)   There has been a serious breach of trust and confidence.
(i)  The Registrant tried to deflect responsibility by seeking to blame the service user.
(j)  Fundamental standards have been breached.
(k)   It has been over a year since the incidents despite which the Registrant has not used the time to demonstrate any understanding of the matters proven against him.
(l)  The Registrant has shown no remorse, limited regret and limited responsibility for his actions.
(m)  There is very limited evidence of insight or remediation.


85. The Panel finds that the mitigating features include:


(a)  The Registrant may have been well intentioned if misguided at the outset.


(b)  The Registrant did stop when asked to do so by Patient A.


(c)   The Registrant had engaged with his employers’ Disciplinary process.


(d)  He had engaged to an extent with this regulatory process.


(e)  This was the first time the Registrant was before his Regulator.

(f)  There were positive testimonials about the Registrant’s general
character, trustworthiness and commitment to his work.


86.This is a serious case in which fundamental standards have been breached, it involved abuse of trust and confidence, it involved a vulnerable  Service  User  and  the behaviour  was  sexually  motivated. There was a degree of pre-planning in disabling the sync facility. There is an on-going risk from which the public must be protected, there is a lack of confidence in the Registrant and a clear message needs to be sent out to the profession and public.


87.The misconduct cannot be regarded as being of a minor nature. The misconduct  was  repeated  and  persisted  over  a  period  of  a  month. There is a high risk of recurrence as the Registrant has shown very little   insight   and   he   has   failed   to   show   any   remedial   action.
 


88.The Panel is of the view that the nature, gravity and seriousness of this case is such that the step of taking no action was not an option and a Sanction was necessary.

89.A Caution Order, even for the maximum duration, was inadequate as this case cannot be regarded as being minor, the misconduct was not isolated, there is minimal insight and there is a high risk of recurrence. The Indicative Sanctions Policy is clear that such an Order may be inappropriate in such circumstances.


90.The Panel then considered and excluded the imposition of a conditions of Practice Order on the grounds that such an Order was insufficient to protect members of the public when there is a lack of insight, there is an absence of remediation and there is a high risk of recurrence. Such an Order is unworkable  in circumstances  when the required level of trust and confidence cannot be vested in the Registrant. Such an Order would not sufficiently address the public reassurance requirements or act  as a sufficient  deterrent  for  others.

91.The Panel then considered the imposition of a Suspension Order for up to 12 months and concluded that such an order was insufficient from every perspective. It would not reflect the seriousness of the case, it would   not  be  an  adequate   deterrent,   and  it  would   not  restore confidence in the profession and would undermine confidence in the regulatory   process.


92.There was no merit in imposing an Order that was capable of being reviewed. In light of the passage of time, it being over a year since the incidents, the Registrant has had that time to reflect despite which he has chosen not to present any evidence of change, take responsibility or give the Panel any confidence that he would benefit from a period of Suspension  by  altering  his  approach,  and  developing  remorse  or insight. In the Panel’s view there is no evidence that this attitude would change  which  gives  the Panel  no confidence  that he would meaningfully  engage  in  the  future.  In  any  event  developing  insight would be insufficient to remedy the serious shortcomings and certainly would not overcome issues of trust. The evidence suggests that the Registrant  would  be unable  and  unwilling  to resolve  or remedy  the issues  in     this     case     if     he     were     to     be     suspended.
 
93.The sexually motivated  behaviour  towards  a vulnerable  service user who has been caused emotional harm is so serious that a Suspension Order is an insufficient sanction.


94.In such circumstances the Panel had no alternative but to invoke the
Order of last resort and to impose a Striking Off Order.


95.In the Panel’s  view this Order reflects  the seriousness  of a case in which a vulnerable Service user was harmed. The failure was compounded by the fact that there was an abuse of position and the behaviour was sexually motivated. There was a degree of pre-planning and the misconduct occurred when the Registrant should have been focused  on  his  duties.

96.It is only such an Order that can sufficiently reinforce the requirement to uphold and declare proper standards of behaviour when fundamental standards  have been breached  such as the need to act in the best interest of service users. This is particularly the case here, given the Registrant was dealing with a vulnerable service user. It needs to be made plain that a failure to act in the best interests of Service Users cannot   be   tolerated.

97.This Order will act as an adequate deterrent to others who may contemplate   departing  from  fundamental   core  duties  and  values.


98.This Order will restore confidence in the profession as members of the public will be aware that those who act in such a way have no place in this profession and that the practising profession are aware of the consequences   of   such   failures.

99.The  Order  will  maintain  confidence  in  the  regulatory  process  as members of the public will be reassured by the fact that cases such as this  are  taken  seriously  and  departures  from  fundamental  and  core duties such as these are not tolerated.

100. The Panel took account of the fact that that such an Order is punitive in nature and that it will permanently prevent the Registrant from practising in  his  chosen   profession.

101. These  individual  considerations  were  balanced  against  the  need  for public reassurance in a case as serious as this and the Panel concluded that the public’s rights were dominant.
 
102. In all the circumstances the Panel believes this to be a necessary and proportionate sanction.

103. Having reached this conclusion the Panel gave consideration, of its own initiative, to the imposition of Interim Order of Suspension.  The Panel was  satisfied  that  the  Registrant  had  been  notified  that  such  an application  may  be made  when  he was  notified  of this hearing.  The Panel   was   satisfied   that   an   interim   order   is   necessary   in   the circumstances  of  this  case  rather  than  it being  an  automatic consequence.  The  Panel  made  the  order  on  two  of  the  statutory grounds, namely the need to protect the public and it being otherwise in the wider public interest. The absence of an Order would have left the public at risk pending  the substantive  order coming into force. In the Panel’s view this represented an unacceptable risk to public protection and would have also seriously undermined confidence in the profession and this regulatory process. Furthermore, in the event of an appeal, the public would be left at risk for an even longer period. The Panel adopts the reasons in the main decision as further justification for the exclusion of  an  Interim  Conditions  of  Practice  Order  and  the  imposition  of  an Interim Suspension Order.

Order

Order: That the Registrar is directed to strike the name of Mr Carl Gardiner from the Register on the date this order comes into effect.

The order imposed today will apply from 13 July 2016 (the operative date).

Notes

Interim Order:

The Panel  makes  an Interim  Suspension  Order  under  Article  31(2)  of the Health and Social Work 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.
 

Hearing History

History of Hearings for Carl Gardiner

Date Panel Hearing type Outcomes / Status
13/06/2016 Conduct and Competence Committee Final Hearing Struck off