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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.
1. The HCPC was represented by Miss Eales from Kingsley Napley
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.
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.
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.
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  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  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
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  EDCA Civ 1319 and Cohen v General Medical Council  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: 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).
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.
History of Hearings for Carl Gardiner
|Date||Panel||Hearing type||Outcomes / Status|
|13/06/2016||Conduct and Competence Committee||Final Hearing||Struck off|