Mr Martin W Hammett
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During the course of your employment as an Operating Department Practitioner by Gangwili Hospital you:
1. On or around 6 May 2012, made inappropriate comments and/or remarks to Colleague B in that you said ‘now I am telling you what to do, bend over and take your trousers down’, or words to that effect
2. Between November and December 2013, made inappropriate comments and/or remarks to and/or about Colleague A, in that you:
(a) Implied that she had cut her hair in the same way as your wife;
(b) Stated ‘you have new scratches on your car, I know where you have parked today and I’ve seen it…..I also know where your new house is and its very nice’ or words to that effect;
i. ‘you have got a nice bum’ and/or
ii. ‘you have got a nice ass’ and/or
iii. ‘you are beautiful’ and/or
iv. ‘you are sexy’ and/or
v. ‘I think about you at night when I am with my wife’ or words to that effect;
(d) Said that you had tickets to take her away for the weekend or words to that effect
3. On or around 31 December 2013, initiated dialogue with Colleague A despite being specifically told not to do so unless it was necessary as part of your role.
4. Touched Colleague A inappropriately, in that you:
i. put your arm across a bed with a patient in it and ran it down Colleague A's arm and/or;
ii. pulled the curtain and touched Colleague A's backside with your hand.
5. On or around the period of 2 to 5 December 2013:
i. you stood in the doorway of the recovery room blocking Colleague A’s exit and/or;
ii. called Colleague A after you left the recovery room and stated ‘are we okay?’ or words to that effect.
6. On or around 12 December 2013, you gave Colleague A a personal letter
7. In the period of January to April 2012:
i. touched colleague B’s hair; and/or
ii. said ‘oh that’s soft’ or words to that effect, with reference to Colleague B’s hair; and/or
iii. said ‘oh you’re feisty’ or words to that effect, when Colleague B told you not to touch her hair.
8. On unknown dates you:
i. touched Colleague B on the arm; and/or
ii. rubbed Colleague B’s back; and/or
iii. touched Colleague B near her breast.
9. Your actions described in paragraphs 1, 2c(i) - (v), 2d, 4(i) – (ii), 7(i) – (iii) and 8(i) – (iii) were sexually motivated.
10. The matters described in paragraphs 1 – 9 constitute misconduct.
11. By reason of that misconduct, your fitness to practise is impaired.
1. The Panel found that there had been good service of the notice of hearing by a letter sent to the Registrant’s registered address dated 9 March 2016. The Panel noted that in late May there was a recent change in the venue of the hearing to a different location in Cardiff. The Registrant was notified of the change of venue.
Proceeding in Absence
2. Ms Johnson made an application for the hearing to proceed in the absence of the Registrant. She referred the Panel to a letter from the Registrant’s solicitors, Lewis, Lewis & Company Ltd, dated 10 May 2016. This letter states “Thank you for your letter of 18 April 2016 enclosing the bundle of documents for the hearing in June 2016. We appreciate that the decision to grant the Special Measures Application in terms of evidence by video link has been granted and that our client can and may attend the hearing but we would reiterate that our instructions remain as in previous correspondence in that he does not intend to attend the Hearing, that he has retired from practice and has no intention of resuming practice in the future. For the avoidance of doubt however our client continues to deny the allegations against him”.
3. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Proceeding in the absence of the Registrant”.
4. The Panel found that all reasonable steps had been taken to notify the Registrant of the hearing. The Registrant is represented in this matter by solicitors and the letter dated 10 May 2016 is clear that he does not intend to attend the hearing. This position is consistent with earlier correspondence from the Registrant’s solicitors. The Panel concluded from the content of the letter that the Registrant has voluntarily waived his right to attend the hearing and that there is no prospect that he would attend the hearing if it was adjourned to a later date. Although the Registrant may be prejudiced by not attending the hearing, his interests are outweighed in the circumstances of this case by the public interest. In particular the allegations in this case are serious and they date back to 2012 and 2013. In this case there are significant factual issues and the witnesses’ recall of events is important for a fair determination of the case. There is a general public interest in this regulatory matter being dealt with expeditiously. There are also HCPC witnesses present who have attended to give evidence and it is in the public interest for this matter to be resolved.
5. Accordingly the Panel determined that the application for the hearing to proceed in the absence of the Registrant should be granted. Thereafter the Panel took steps to ensure that the hearing was heard as fairly as possible taking into account the Registrant’s interests.
Application to amend the allegation
6. Ms Johnson made an application to make minor amendments to the allegation set out in the letter to the Registrant dated 23 November 2015. The Registrant has not been given formal notice of the proposed amendments, but all of the substantive amendments are set out in allegation contained within the Case Summary. The Case Summary is contained in the bundle sent to the Registrant and receipt of the bundle was also acknowledged by his solicitors in the letter dated 10 May 2016.
7. The Panel accepted the advice of the Legal Assessor and carefully considered in the case of each of the proposed amendments whether there was any prejudice to the Registrant and, if not, whether the amendment was appropriate.
8. The first proposed amendment was to delete the words in paragraph 2(a) “gave her a personal letter”. This was included by error and is a duplication of particular 6. The Panel decided that this amendment does not prejudice the Registrant because it is a deletion rather than addition to the allegation. The Panel accepted the amendment on the ground that it was a typographical error in the letter dated 23 November 2015 and that the Case Summary, which recites the allegation without the typographical error, had been served on the Registrant.
9. The second proposed amendment was to delete the reference to “A” in particular 1. Particular 1 refers to an alleged incident involving Colleague B on 6 May 2012. Colleague A was not involved and the reference to “A” is another typographical error. The Panel was satisfied that the Registrant would not have been misled by this error because he is fully aware from the witness statements that this incident relates to Colleague B. The correction was made in the HCPC Case Summary included in the bundle sent to the Registrant. The Panel allowed this amendment because there was no prejudice to the Registrant and the amendment is appropriate to correct the typographical error.
10. The next proposed amendment was to particular 4(ii). The letter dated 23 November 2015 refers to Colleague A’s “forearm” whereas under the proposed amendment it should read Colleague A’s “arm”. This proposed amendment is a very slight expansion of the particular and the Panel considered carefully whether the Registrant was prejudiced. The Panel noted from the documents that the Registrant’s position is that he denies that any such incident occurred. The Panel were satisfied that his position would not differ if the proposed amendment were made. The Panel were also confident that the Registrant would not be taken by surprise by this minor amendment because the witness statement of Colleague A clearly refers to the Registrant touching her arm from her shoulder, and the HCPC Case Summary also uses the word “arm” in the list of allegations the Registrant faces. The Panel decided to allow the amendment because it found that the Registrant was not prejudiced and the amendment was appropriate to correct the error in the letter dated 23 November 2015.
11. The final amendment was to delete “3” from particular 9. This is a deletion and therefore does not prejudice the Registrant. The “3” appears in error after a list of paragraphs ending with particular 8(i) to (iii). The Panel allowed this amendment because it is a deletion and was included in particular 9 erroneously.
12. The Panel also noted that a minor grammatical change was needed to paragraph (v) to close the quotation marks after the word “wife”.
13. The Panel made it clear that insofar as there were references in the case papers provided to the Panel to earlier matters involving the Registrant and which did not form part of the allegation, it would ignore these references and give them no weight in its assessment of the case.
14. At the time of the events alleged the Registrant was employed as an Operating Department Practitioner (ODP) at Glangwili Hospital (the “Hospital”). The Registrant was considered by his manager to be a very experienced ODP and a good worker.
15. The Hospital referred the Registrant to the HCPC during an investigation into a formal complaint of harassment dated 23 December 2013 submitted by Colleague A in a letter about the conduct of the Registrant. Colleague A was employed by the Hospital as a Staff Nurse in the Recovery Department. She had worked as a nurse in the Hospital since 2005. Person C, a Band 7 Senior Recovery Sister, was Colleague A’s line manager. She had a conversation with Colleague A on 13 December 2013 and advised her about the process to make a formal complaint. The Registrant approached Person C on 16 December 2013 in relation to Colleague A. Person C made a record of her conversations with Colleague A on 13 December 2013 and the Registrant on 16 December 2013.
16. In her letter dated 23 December 2013 Colleague A made complaints about the Registrant’s conduct, in particular complaints of inappropriate comments or remarks, inappropriate touching, an incident which occurred in the period of 2 to 5 December 2013 and giving her a personal letter on 12 December 2013.
17. On 31 December 2013 Colleague A added a further matter to her formal complaint, alleging that that on that date the Registrant approached her to speak with her after being told that he should not do so unless it was necessary as part of his role.
18. Colleague A’s complaint was investigated by Witness 1, who was at this time the Hospital’s Head of Midwifery. Her investigation included a telephone interview with Colleague A, an interview in person with Colleague A, two interviews with the Registrant, an interview with Person C and five other interviews with relevant staff members.
19. In its referral to the HCPC the Hospital stated that the allegations made by Colleague A arose twelve months after the Registrant had received formal counselling which related to an investigation of a similar nature. The previous investigation concerned a complaint made by Colleague B, a Health Care Support Worker. Colleague B had worked for the Hospital in this position for 21 years. Colleague B’s complaint primarily involved a remark made by the Registrant on or around 6 May 2012 that was overheard by Person D, a Health Care Support Worker.
Panel’s Review of the Witnesses
20. The Panel first considered the witnesses. The Panel found that Witness 1 was a confident, credible and consistent witness. She is an experienced investigator and she conducted a reasonably thorough investigation. The Panel found no evidence that her investigation was biased. The Panel found that Witness 1’s evidence of her interview with the Registrant on 6 February 2014 was particularly noteworthy. In this interview the Registrant was asked about a letter he had written and handed to Colleague A. Witness 1 had a very clear recollection that the Registrant initially denied that he wrote a letter, but when the letter was produced in the interview the Registrant agreed that he had written the letter. He pulled out of his jacket pocket a pre-prepared typed statement that he said would explain the letter and he read from this statement. Witness 1 conveyed to the Panel her shock at this unexpected turn of events. The Panel noted that she was bewildered by this sudden reversal by the Registrant.
21. The Panel found that Colleague A was an honest and reliable witness and that her emotions were genuine. Colleague A has a professional approach and she is a serious person. In her evidence she was measured and the Panel found that there was no exaggeration. She was consistent in the various accounts she has given of her complaints including her formal complaint letter, interviews, HCPC witness statement and her oral evidence. The Panel found that Colleague A is not of a nervous disposition.
22. The Panel found that Colleague B was an honest witness and that her emotions were genuine. She appeared to the Panel to be tense at times when giving her evidence. The Panel attributed this to the stress and difficulty of giving evidence and that her lack of confidence is attributable to her relatively junior status. The Panel found that Colleague B’s explanation for not mentioning during the Hospital investigation all the complaints set out in her HCPC witness statement was genuine.
23. The Panel found that Colleague B was not correct in her description of all the factual matters relating to the remark made by the Registrant on or around 6 May 2012. She was describing the events as she genuinely remembers them, but some of the details of recollection are not correct because of her emotional involvement and upset which relates to her previous contact with the Registrant. The details of her evidence that the Panel did not accept do not relate to the essence of the allegation that an inappropriate comment was made by the Registrant witnessed by Person D, and admitted by the Registrant when interviewed.
24. Person D has no emotional involvement and she gave her evidence in a matter of fact way. The Panel found that she was a confident and clear witness with a good recall of events. Unlike Colleague B, Person D had little prior involvement with the Registrant and her account of events was objective. Where her account differed from Colleague B’s account, the Panel preferred the evidence of Person D.
25. The Panel found that Colleague C was an authoritative, credible, and consistent witness. The Panel found that she had no hostility towards the Registrant or his wife and that she was objective and professional. Colleague C recognised the seriousness of the matters in making written contemporaneous records of her conversations with Colleague A and the Registrant.
26. The Panel had no evidence or submissions from the Registrant. The Panel considered carefully all information available which sets out the Registrant’s position. This includes: his denial of the whole of the HCPC allegation; statements made in interviews in the investigation conducted by Witness 1 into Colleague A’s complaint on 6 February 2014 and 4 March 2014; statements made in an interview in the investigation into Colleague B’s complaint on 9 July 2012; and two written statements submitted to the investigation into Colleague B’s complaint. The Panel found that the notes of the interviews are reliable. In both investigations the Registrant was given the opportunity to review and amend the notes. He signed and dated the notes after making handwritten amendments.
27. The Panel had concerns about the reliability and credibility of statements made by the Registrant in the interviews and written statements. In particular the Panel identified several statements made by the Registrant which indicate that the Registrant was not always telling the truth. A particularly stark example is his denial that he wrote a letter to Colleague A which was immediately followed by his admission that he had written the letter and the production of a prepared statement which he said explained the letter. The reaction of Witness 1 to this was one of bewilderment and the Panel was equally struck by the sudden reversal of the Registrant’s position when confronted with the letter.
28. Another example of the Registrant not telling the truth is in relation to his statements about his conversation with Person C on 16 December. Person C made a contemporaneous record of the conversation which is consistent with her account. The Registrant denied in his interview that he requested that Person C should intervene, but it is clear from Person C’s e-mail record dated 16 December 2013 and her evidence that the Registrant was asking her to intervene.
29. A further example is the Registrant’s statement that Colleague A asked him to deliver logs to her home. Colleague A states that she does not have a log burning fire and the Panel accepted her evidence that she had no need for logs and did not ask the Registrant to deliver logs to her. This is a further example which indicates that the Registrant has lied about some aspects of this case.
30. When the Registrant became aware in December 2013 of a possible complaint by Colleague A his reaction was to express his concerns about his marriage, his home, and his job to Person C. He had a clear motivation to deny the allegations even in the face of credible evidence against him. The Panel had serious concerns about the reliability and credibility of statements made by the Registrant and placed limited weight on those statements.
Decision on Facts
31. The Panel considered the particulars of the allegation in chronological rather than numerical order because the chronology is relevant to the Panel’s conclusions.
32. Colleague B was unable to recall the date of the incident when the Registrant touched her hair but it occurred in 2012 and was some time prior to the inappropriate comment on or around 6 May 2012. Colleague B had attended a hair salon before starting her shift. While she bent down to retrieve equipment from a drawer in the Maternity Ward computer office she felt a hand touch her hair and she heard the Registrant say “Oh that’s soft”. She stood up quickly and asked the Registrant not to touch her hair again and said that only her hairdresser and her husband were permitted to touch her hair. The Registrant then stated “Oh you’re feisty”.
33. This incident was mentioned in Colleague B’s undated statement of complaint included as appendix 4 to the investigation report into her complaint against the Registrant.
34. The Registrant was not asked about this incident when he was interviewed on 9 July 2012 and he has made no statement other than his denial of the HCPC allegation.
35. The Panel accepted the evidence of Colleague B and found that particular 7 is proved.
36. Colleague B was unable to recall the dates of the incidents in particular 8, but they all occurred after the incident when the Registrant touched her hair, but prior to the inappropriate comment in or around 6 May 2012. On one occasion the Registrant touched Colleague B on her arm by running his arm from her shoulder down to her wrist. On another occasion he touched her back by running his hand from her sacrum up to her spine between the shoulder blades. On the third occasion he touched her with a sweeping motion from the top of her shoulder downwards towards her elbow and in this movement touched her close to her breast. All three incidents occurred in the Hospital corridors and no members of staff were present.
37. Colleague B did not raise a complaint at that time about these incidents because she thought that she would not be believed particularly because of her junior status. Colleague B did later complain after the incident on 6 May 2012 when another health care professional was present and witnessed the events.
38. In her undated statement of complaint Colleague B mentions that on one occasion the Registrant stroked her arm, but she does not mention the occasions when he touched her back or touched her near her breast. The Panel accepted Colleague B’s explanation that she did not mention these incidents because they made her feel “dirty”.
39. The Registrant has not responded to this allegation except in his overall denial of the whole of the allegation.
40. The Panel accepted the evidence of Colleague B and found that particulars 8(i), (ii) and (iii) are proved.
41. This incident took place in the Theatre on the Labour Ward. Colleague B was cleaning the theatre and Person D was assisting her. The Registrant was in the Theatre checking stock or equipment. While they were working Colleague B and Person D had a conversation about a social event unrelated to work. Colleague B had been told not to attend the social event and she stated that a member of staff could not tell her what to do in her private life.
42. The Registrant interrupted the conversation and made a comment directed to Colleague B “Now I’m telling you to bend over and pull your trousers down” or words to that effect, as confirmed by Colleagues B and D and admitted by the Registrant when interviewed. Both Colleague B and Person D hastily left the theatre.
43. The Panel noted that there are differences in the evidence as between Colleague B, Person D and the Registrant. These differences go to the factual circumstances leading up to the words being said by the Registrant. The Panel places no particular weight on these differences and accepts that they are likely to reflect the relative distress of Colleague B, the relative objectivity of Person D, and the Registrant’s unreliability as to matters of fact. The Panel was particularly struck and accepted Person D’s account, given during her oral evidence. She explained that Colleague B had said to her “No one tells me what to do” [in her private life]; Person D had then said to Colleague B in a friendly tone “Well I’m telling you to come to lunch”; and then the Registrant had intervened with “Now I’m telling you to bend over and take your trousers down” or words to that effect. The Panel concluded that Person D’s account was a fair reflection of what had happened.
44. The difference in the evidence between Colleague B and Person D was regarded by the Panel as evidence of a lack of collusion between the witnesses.
45. The comment made by the Registrant was inappropriate because it is lewd. The Registrant did not have a close or friendly relationship with Colleague B or Person D and did not know them well enough to know that such a comment could be acceptable to either of them. In any event, the Panel takes the view that such a comment is wholly inappropriate as between professionals in the workplace. The comment was made after Colleague B had already indicated that she objected to the Registrant touching her hair and after further incidents of inappropriate touching of Colleague B.
46. The Panel found that particular 1 is proved.
47. Colleague A wished to limit her contact with the Registrant to professional matters only. She did not socialise or wish to socialise with the Registrant. She did not invite the Registrant to her house, nor did she ask him to deliver logs to her house. She did not do or say anything to indicate that she wished for anything more than a professional working relationship with the Registrant. Several months prior to December 2013 the Registrant began making remarks to her and invading her personal space. In response to this conduct Colleague A told the Registrant to shut up and leave her alone. The Registrant ceased making the comments for a period of time.
48. The Registrant recommenced his harassment of Colleague A in or around October 2013. Colleague A cannot remember the dates of the incidents when the Registrant touched her, but in her oral evidence she said that they occurred around October or November 2013.
49. The incidents occurred in the recovery area. This is a room containing three bays with curtains that can be drawn. In the first incident the Registrant had transferred a patient into the central bay and the curtains were pulled around the bay. Colleague A was on the opposite side of the bed and was preparing medical equipment. She was wearing gloves and holding suction equipment. The patient was unconscious on the bed. The Registrant put his hand on Colleague A’s right shoulder and dragged his hand down her arm to her hand.
50. The Panel did not accept the Registrant’s denial of this incident and accepted Colleague A’s account of this event.
51. In the second incident Colleague A was treating a patient in the central bay of the recovery area. She saw the Registrant enter the recovery area. He then transferred a patient into the bay directly behind Colleague A and pulled the bay curtain across. The bay curtain is made of relatively thick material. The Registrant then grabbed Colleague A’s backside through the curtain. This contact made Colleague A jump, but she did not react further because she was attending to the patient.
52. The Panel accepted Colleague A’s account and rejects the Registrant’s denial.
53. The Panel found that the touching was in both instances inappropriate. The Registrant and Colleague A were work colleagues, not friends. Colleague A was not tactile towards the Registrant. She had previously told the Registrant to stop making remarks and indicated that his interest in her was not welcome. The Registrant had appeared to understand this because his comments had stopped for a period.
54. In some situations arm stroking can be a friendly gesture, but this touching occurred over an unconscious patient at a time when Colleague A was engaged with her work. There is no background context which would indicate that touching was appropriate. The touching was not accidental because there was no reason for the Registrant to be reaching over the bed towards Colleague A. Accordingly, the Panel concluded that the Registrant’s action was inappropriate.
55. The touching of Colleague A’s backside through the curtains was wholly inappropriate because this type of grabbing is suggestive or sexual and not a friendly gesture. The grabbing was not accidental: the Registrant grabbed Colleague A deliberately.
56. The Panel found that particulars 4(i) and (ii) are proved.
57. In late November 2013 there were readily visible scratches on Colleague A’s car. The Registrant approached Colleague A and spoke to her about scratches on her car. Colleague A replied that her father was an experienced car mechanic and paint sprayer and that she did not need anyone else to look at her car. The Registrant then made comments about Colleague A’s house saying “I know where you live”. He commented on the colour she had painted her house. Colleague A was concerned about these remarks because the Registrant had no reason to know where she lived or any details about her house.
58. Colleague A’s evidence that these comments were made to her is corroborated by the oral evidence of Person C and Person C’s e-mail dated 16 December 2013 confirming that she had heard these remarks made by the Registrant “a few weeks ago”.
59. Although the comments could be considered entirely innocuous if they are considered separately from other evidence, they were not innocuous in the context of the Registrant’s interest in Colleague A and the previous events. The previous events include the earlier comments made by the Registrant and Colleague A’s reaction to them and the incidents of inappropriate touching. The Registrant was seeking to engage with Colleague A and targeting her for attention beyond what would be expected between two work colleagues. In particular the references to Colleague A’s house and the words “I know where you live” sent a clear message to her that the Registrant was interested in and had knowledge of details relating to her private life. Colleague A interpreted the remarks in this way and felt vulnerable when she was at home. She also requested a different parking space because of her concern about walking to and from her car at night.
60. The Panel found that particular 2(b) is proved.
Particular 2(c) and 2(d)
61. The Panel accepted the evidence of Colleague A and found that all the comments were made by the Registrant as alleged. The Registrant’s pursuit of Colleague A included making remarks which were either directly complimentary of her appearance or suggestive. The Panel did not accept the Registrant’s complete denial that he made any inappropriate comments to Colleague A.
62. The comments “you are beautiful”, “you are sexy” and “I think about you when I am with my wife” are not referred to in the investigation carried out by Witness 1. When she gave her oral evidence Colleague A was asked about this and she explained that she had set out all the comments in a written account, though this document was not included within the paperwork in the HCPC exhibits bundle. The Panel accepted Colleague A’s evidence on this point and found that in the period December 2013 to January 2014 she had listed all the complaints that appear in the HCPC allegation even though some of these do not feature in the HCPC papers.
63. The Panel found that all the comments are inappropriate. They refer to the Registrant’s body, her appearance or they suggest that the Registrant was interested in a sexual relationship with Colleague A.
64. The Panel found that particulars 2(c) and 2(d) are proved.
65. On a date between 2 and 5 December 2013 Colleague A was working on night-duty. The Registrant approached her in the recovery room and tried to explain that he really liked her and believed that she felt the same way about him. The Registrant was alone in the recovery room. Colleague A’s reaction was to shout and swear at the Registrant. During this exchange the Registrant was standing by the nurse’s bay next to one of the main doors to the recovery unit and this made Colleague A feel nervous. The Registrant left the recovery room and telephoned her from the night duty on-call room asking “Are we okay?”
66. The Panel accepted Colleague A’s consistent account of the incident. Colleague A recounted the incident to Person C. This is confirmed by Person C and Person C’s e-mail dated 16 December 2013. This e-mail records “It has now escalated to the point where she needed to swear at him and ask him to leave the recovery room during a night shift. She was alone in the recovery room doing checks and he did leave the recovery room after her outburst. He went to his on-call rest room where he continued to harass her by telephoning the recovery room to speak to her. She asked him again to stop ringing and again told him after a few phone calls that she would have to report him if he didn’t stop it”. This e-mail conveys Colleague A’s reaction to the Registrant’s continuing behaviour.
67. In the interview on 6 February 2014 the Registrant accepted that something happened on or about 2 December 2013, but stated that Colleague A was upset for personal reasons. The Panel did not accept the Registrant’s account of events.
68. The Panel found that particulars 5(i) and (ii) are proved.
69. The Registrant prepared a handwritten letter and handed this to Colleague A on or about 12 December 2013 in a Hospital corridor near the anaesthetic room. Colleague A reported to Person C that she had received the letter. Person C referred to the letter in her e-mail dated 16 December 2013. A copy of the handwritten letter is included in the HCPC exhibits bundle. The Registrant initially denied that he had handed a letter to Colleague A, but when he was interviewed on 6 February 2014 he accepted that the letter was in his handwriting and that he had written it. This was confirmed in the Registrant’s handwritten annotations to the notes of the interview. The Registrant now denies all the allegations including particular 6.
70. The Panel accepted the evidence of Colleague A, Person C and Witness 1, rejected the Registrant’s denial, and found that Particular 6 is proved.
71. After the Registrant had made her formal complaint on 23rd December 2013 the Registrant was told by his line manager that he should only speak to Colleague A if professionally necessary in the course of his duties. The Panel accepted the evidence of Colleague A that she was told by the Registrant’s line manager that this instruction was given. This was confirmed by the statement of the Registrant’s line manager included as an exhibit in the HCPC bundle and by an e-mail from the Registrant’s line manager to Person C dated 17 December 2013 which states “I also instructed him not to speak to [Colleague A]”.
72. The Panel accepted the hearsay evidence of the instruction to the Registrant because it is supported by contemporaneous written evidence and because the Registrant did not suggest in any of his interviews that he was unaware that he should not speak to Colleague A. His statements in interviews imply that he was aware that he should not speak to her.
73. On 31 December the Registrant spoke to Colleague A when she entered the small staff kitchen next to the recovery room. The Registrant said “I need to speak to you” and he then pleaded with Colleague A to speak to him. The Panel did not accept the Registrant’s account that Colleague A approached him “with a grin on her face and stamped her feet”. The Panel found that the account given by the Registrant was unlikely to be correct because Colleague A had already made a formal complaint against the Registrant and had no wish to engage with the Registrant. The account of the incident given by Colleague A is supported by hearsay evidence from another colleague (LT) who stated that the on 31st December the Registrant was following herself and Colleague A. In addition, there is clear evidence that by this stage the Registrant wanted Colleague A not to persist in a complaint because of his fears that a complaint would impact on his job and marriage. Accordingly there is clear evidence of a motive for the Registrant to approach Colleague A, but no evidence of a motive for Colleague A to approach the Registrant.
74. The Panel found that particular 3 is proved.
75. When the Registrant was interviewed by Witness 1 on 6 February 2014 the Registrant made statements about Colleague A’s appearance. He stated that comments had been made to him by other people that Colleague A had cut her hair in the same way as his wife had. The implication of the Registrant’s statements was that Colleague A was deliberately trying to make herself look like the Registrant’s wife because she was interested in him. This fitted with other statements made by the Registrant about Colleague A’s behaviour which invited a similar inference.
76. Colleague A had not changed her hair in any way. This is confirmed by the evidence of Person C who had been her line manager for several years.
77. The Registrant’s comment about Colleague A was inappropriate because it was untrue, the Registrant knew that Colleague A had not changed her hair, and by making the comment the Registrant was inviting Witness 1 and others to make an incorrect inference that Colleague A was interested in him.
78. The Panel found Particular 2(a) proved.
79. In considering this particular the Panel accepted the advice of the Legal Assessor and considered both direct evidence of the Registrant’s state of mind and inferences about his state of mind which could be drawn from the facts. The Panel was careful to approach this particular on the basis that the fact that the Registrant’s conduct was inappropriate does not necessarily mean that it was sexually motivated.
80. The Panel took account of the 2008 guidance on “Clear sexual boundaries between healthcare professionals and patients guidance for fitness to practise panels”. This guidance was prepared by the Council for Healthcare Regulatory Excellence (now replaced by the Professional Standards Authority). Although this document concerns relations between a Registrant and patients and carers, the Panel noted that the guidance includes at Appendix B a list of examples of sexualised behaviour. In the Panel’s view some of the examples apply in the context of behaviour to colleagues. Examples that were relevant in this case include “asking for or accepting a date”, “sexual humour”, and “inappropriate or demeaning comments”.
81. In this case there is limited direct evidence on the Registrant’s state of mind. The available evidence is the content of the Registrant’s letter handed to Colleague A on 12 December 2013 and the statements he made when interviewed in both investigations.
82. The handwritten letter is not completely legible nor has it been copied very well, but appears to read as follows:
“Dear [Colleague A]
Got to [sic] close to you!
I only wanted to see if you felt the same [way] as me. And now I know that you don’t! If I hurt you then I’m very sorry, but I hurt myself even more! I would never ask you for anything only [want]ed to know your feelings. What’s yours is yours and I [resp]ect that.
In future I will never bother you again as I ….you. And it’s in your both our interests if I keep away [from] you don’t you think?
Please don’t tell anyone, especially on facebook … was a misunderstanding on my part and is [bet]ween us only. Sorry for wasting your time and mine.
83. Although it is difficult to interpret parts of this letter, there are parts which can be understood and they indicate that the Registrant believed that he had got too close to Colleague A, that he had feelings for her that he then understood were not reciprocated, and that he had been “bothering” her. The statements made in the letter indicate that the Registrant feared that Colleague A would make a complaint against him and was trying to dissuade her from doing so.
84. In his interviews relating to both Colleague A and Colleague B the Registrant minimises his behaviour. In his interviews relating to Colleague A’s complaint he asserts that she initiated friendship with him. The untrue statements made by the Registrant, particularly about Colleague A, indicate that he had a defensive state of mind when challenged about his behaviour.
85. The direct evidence of the letter indicates that the Registrant’s interest in Colleague A was not friendship, but that he was attracted to her sexually. There is less direct evidence of the Registrant’s state of mind in relation to the conduct towards Colleague B, but the Panel noted that there was a significant overlap in the complaints of Colleague A and Colleague B. In both cases the Registrant targeted a woman and the instances of harassment mostly occurred when no witnesses were present. Both Colleague A and Colleague B were junior to the Registrant. Colleague B was particularly sensitive to the difficulties she faced because of her junior position. In both cases the conduct was repeated even after both Colleague A and Colleague B had made it clear that they did not welcome the Registrant’s attention.
86. The Panel considered first the conduct towards Colleague B which is alleged to be sexually motivated. The conduct of touching Colleague B’s hair and at the same time stating “oh that’s soft” was deliberate conduct. It was more than a simple compliment of Colleague B because the conduct included touching the hair which is an intimate act. There was no friendship or social relationship between the Registrant and Colleague B which might indicate that such tactile conduct was acceptable. The response of the Registrant to Colleague B’s reaction objecting to his conduct was to say that she was “feisty”. In the Panel’s judgment the use of the word feisty in this context has a sexual undertone.
87. The Panel decided, taking into account both the general factors referred to above and the specific circumstances of this incident, that the Registrant’s conduct was sexually motivated. The Panel considered other possible explanations for the Registrant’s conduct including that the Registrant was simply being friendly, but dismissed them.
88. The Registrant’s conduct of touching Colleague B on her arm, her back and near her breast made her feel vulnerable and uncomfortable. Colleague B describes that during these incidents the Registrant leered at her and remained very calm. The Registrant was aware that Colleague B did not appreciate tactile conduct from him because of her reaction when he had previously touched her hair. The Panel decided that the touching was not accidental or friendly. Given the Registrant’s persistence in touching Colleague B, the Panel decided that he was motivated by his own interests and those interests were sexual. The Panel drew the inference from all the circumstances that the Registrant’s conduct was sexually motivated.
89. The Registrant’s words “now I am telling you what to do, bend over and take your trousers down” were directed to Colleague B. Colleague B did not perceive this comment as a joke, whereas Person D thought that the Registrant might have been joking. The different perception of Colleague B and Person D is explained by their different level of involvement. The previous conduct of the Registrant had had an emotional impact on Colleague B, whereas Person D did not know the Registrant well and had no emotional involvement. The Registrant interrupted a conversation between Colleague B and the Person D to make a crude and offensive sexual joke at the expense of Colleague B. The fact that the Registrant was joking does not exclude the fact that the joke was deliberately demeaning to Colleague B, and that demeaning impact is emphasised by the Registrant’s more senior status within the Hospital.
90. The Panel rejected the explanation that the Registrant was simply making a playful joke intended to amuse Colleague B and Person D. His comment was for his own personal benefit and the wording of the “joke” has a sexual connotation. The CHRE guidance confirms that sexual humour can be sexualised behaviour. The Panel concluded that the Registrant’s conduct was sexually motivated.
91. The Panel next considered the Registrant’s conduct towards Colleague A which is alleged to be sexually motivated. The comments “you have got a nice bum”, “you have got a nice ass”, and “you are beautiful” refer to Colleague A’s body and there is an express sexual connotation. The comment “you are sexy” again expressly indicates sexual motivation. The comment “I think about you at night when I am with my wife” has a strong sexual connotation to it and stating that he had tickets to take Colleague A away for the weekend was inviting her on a date. The Panel had no hesitation in concluding that all the comments were sexually motivated. There is no other conceivable explanation for making such comments.
92. The Panel considered the inappropriate touching of Colleague A. Inappropriate touching may not be sexually motivated, but in this case the Panel concluded that it was. The Registrant’s conduct was deliberate and occurred after Colleague A had indicated to him that she did not welcome his attention. There was nothing in the circumstances which indicated that the touching was merely platonic or for reassurance. The circumstances of both incidents were that Colleague A was carrying out work related tasks and was not engaging in any way with the Registrant. The second incident of touching was to Colleague A’s backside which has a sexual connotation. The Panel drew the inference from all the circumstances that the Registrant’s state of mind was that he was sexually motivated.
93. The Panel found that Particular 9 proved in respect of all the particulars.
Decision on Grounds
94. The Panel noted that there is no definition of misconduct, but there is guidance in the case of Roylance v GMC that misconduct is “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the standards that are expected.
95. Ms Johnson submitted that the Registrant’s conduct was in breach of the HCPC Standards of Conduct, Performance and Ethics particularly standard 3 “you must keep high standards of personal conduct”, standard 7 “you must communicate properly and effectively with…other practitioners” 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 Panel found that the Registrant’s sexually motivated harassment of Colleague B and Colleague A was a breach of these standards.
96. The Registrant’s behaviour had a very significant and adverse impact on the individuals affected. At the time of events Colleagues A and B were very distressed. This is indicated by the fact that they both had periods of sick leave which was linked to their complaints. Colleagues A and B were evidently deeply affected and upset when recounting the events during the hearing, even after a significant lapse of time. As a result of the Registrant’s behaviour shift patterns were altered, Colleague A was provided with a different car parking space, and Colleague A was concerned for her safety at home.
97. The Panel also considered the wider impact of the Registrant’s behaviour. On two occasions the Registrant touched Colleague A when she was attending to patients. More generally the Registrant’s conduct undermined the ability of both Colleague A and Colleague B to carry out their important work in caring for patients. A serious failure to treat colleagues with respect and dignity undermines the ability of professionals to work collectively together in the interests of service users. The Panel therefore found that the Registrant was also in breach of the HCPC Standards of Conduct, Performance and Ethics standard 1 “You must act in the best interests of service users”.
98. A breach of the HCPC standards is not determinative, but in this case the Panel’s view was that the Registrant’s breaches were serious. The Registrant’s conduct involved two complainants and took place over a period of time. The conduct occurred in the face of being asked not to repeat his conduct by both A and B. The conduct was demeaning to both Colleague A and Colleague B and this was exacerbated by the Registrant’s more senior status. In addition the Panel has found that the Registrant’s conduct was sexually motivated. His conduct has had and continues to have a significant adverse impact on both Colleagues A and B personally and professionally. His behaviour also impacted on other staff, and undermined their individual and collective abilities to care for patients. Taking into account these factors the Panel found that the Registrant’s conduct was serious and fell well below the standards that are expected of a healthcare professional. Taken overall his conduct was persistent and sexually predatory.
99. Accordingly the Panel found that particulars 1-9 constitute misconduct.
Decision on Impairment
100. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired”. The Panel considered and applied guidance from cases of CHRE v NMC and Grant and Cohen v GMC. The Panel considered the Registrant’s fitness to practise at today’s date.
101. The Panel considered the question of the Registrant’s current fitness to practise from the personal perspective and from the public perspective. The Panel first considered the personal perspective.
102. The Panel carefully reviewed all the evidence when considering the level of the Registrant’s insight. The Panel noted that during the investigation into the remark made to Colleague B the Registrant accepted that his comment was inappropriate. In a note of a counselling meeting on 7 February 2013 he stated that he had learned that “he should be mindful of his behaviour towards work colleagues in the future and of his responsibility and role as ODP”.
103. The Panel’s view was that the Registrant made these statements because he had little choice in the matter as he was aware that there was a witness, and not out of genuine remorse or insight. He now denies the whole of the HCPC allegation including this incident. The Registrant did not change his attitude or behaviour as a result of the statements he made either in the interview or in the counselling. The Registrant has minimised his conduct rather than acknowledged the impact of his behaviour on Colleague B.
104. The Panel also noted that the Registrant’s handwritten letter to Colleague A in December 2013 includes an apology. However, the Panel’s view was that this letter was written not to express remorse, but in an effort to persuade Colleague A not to make a complaint against him. The Registrant asks Colleague A in the letter not to tell anyone. This is consistent with the Registrant’s approach to Person C on 16 December asking her to intervene to prevent Colleague A making a complaint. The Panel therefore found that this apology was not a genuine expression of remorse or insight. In the letter the Registrant is expressing concern about the impact on himself and he suggests that he has hurt himself more.
105. The Registrant’s statements in interviews contain denials, minimisation, untrue statements about the complainants, and accusations that others are lying. The Registrant challenges the integrity of colleagues and attempts to shift the blame. In his statements there is no real sense that the Registrant understands the impact of his conduct on others.
106. There is no reflective statement from the Registrant and no evidence of remediation. The Panel found that the level of the Registrant’s insight is minimal. There is evidence of repetition of similar conduct in the findings of fact the Panel has made and the Panel found that the risk of repetition in this case is high, taking into account the low level of insight and the history of repetition.
107. The Panel concluded that the Registrant’s current fitness to practise is impaired considering the personal component.
108. The Panel next considered the public component. Although there is no evidence that the Registrant’s conduct caused actual harm to patients, the Panel found that indirectly there is an ongoing risk to patients. By the Registrant’s actions in the workplace he undermined the ability of other health care professionals to perform important work to the best of their ability. There is a significant risk that he would repeat his conduct and this carries a risk that he would undermine the ability of others to carry out their duties effectively. The Panel therefore found that there is an ongoing risk to members of the public.
109. The Panel next considered the important public policy issues of the need to maintain public confidence in the profession and the regulatory process and to uphold standards of behaviour. Members of the public expect the ODP profession and the Regulator to uphold standards of behaviour to ensure that the dignity of colleagues is respected, whatever their grade. The Registrant’s conduct clearly demonstrates a breach of basic standards of decency and courtesy within the workplace and is wholly unacceptable. Public confidence in the profession and the regulatory process would therefore be undermined if the Panel did not find that the Registrant’s current fitness to practise is impaired.
110. The Panel concluded that the Registrant’s current fitness to practise is impaired considering the public component.
Decision on Sanction
111. The Panel applied the guidance in the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor. The purpose of a sanction is not to punish the Registrant, but to protect the public and the wider public interest. This includes maintaining confidence in the profession and the wider regulatory process. The Panel applied the principle of proportionality and balanced the interests of the Registrant and the public interest.
The Panel identified the following aggravating factors:
• Part of the Registrant’s conduct was sexually motivated;
• There was a pattern of repeated conduct involving two women over a period of time;
• The conduct was of a sexually predatory nature involving the Registrant taking advantage of his status particularly in relation to Colleague B;
• The misconduct in relation to Colleague A took place after the Registrant had received counselling in relation to his conduct towards Colleague B;
• The conduct took place in the face of both Colleague B and Colleague A stating that his interest in them was unwelcome;
• The Registrant’s minimal insight;
• The high risk of repetition; and
• A significant risk of harm to individual health care practitioners, and consequently to team working and the potential risk of harm to patients who may not receive the appropriate level of care.
112. The Panel identified the following mitigating factors:
• There is no evidence of actual harm to patients; and
• No previous regulatory matters in the Registrant’s long ODP career.
113. The Panel dismissed the apologies made by the Registrant and found that there was no genuine expression of remorse.
114. The sanction should be the least restrictive that is sufficient to protect the public and the wider public interest. The Panel therefore considered the sanctions in ascending order of severity. The Panel decided that taking no action would be wholly inappropriate. It would undermine confidence in the profession and the regulatory process and it would not manage the risks the Panel has identified. Mediation is not relevant in this case.
115. The Panel next considered a Caution Order. This case does not involve an isolated incident, but persistent repeated acts. The Registrant’s level of insight is minimal and there is a high risk of recurrence. All these factors indicate that a Caution Order is not sufficient or appropriate. The public would not be protected if the Registrant was free to practise without restriction.
116. The Panel next considered a Conditions of Practice Order. There is no evidence that the Registrant would engage or comply with conditions. The evidence that is available indicates that he persists in inappropriate conduct in the face of instructions. The Panel therefore has no confidence that the Registrant would comply with conditions if appropriate conditions could be formulated. The Panel considered that workable conditions could not be formulated which would adequately protect against the risks in this case. It is not practicable in a hospital setting for the Registrant to be accompanied at all times. Given the Registrant’s minimal insight the Panel saw no prospect that the Registrant will remediate his failings. The Panel therefore decided that a Conditions of Practice Order was not sufficient to protect the public.
117. The Panel next considered a Suspension Order. A Suspension Order appropriately balances the public interest and the Registrant’s interests where the allegation is serious but there is a realistic prospect that the Registrant will be able to resolve or remedy the failings and reduce the risk of repetition to an acceptable level. In this case the Panel’s view was that there is no such realistic prospect. The Registrant has had repeated opportunities to recognise his failings, but has not done so. There are no signs of any development in the position taken by the Registrant which is simply to deny the allegations. The Registrant abused the trust placed in him as a relatively senior member of staff by taking advantage of his status. He also took advantage of his working environment especially on night shifts when staff members work in isolated situations. This undermines the way in which a hospital functions with reliance placed on healthcare professionals to behave responsibly. Healthcare workers, of whatever grade or role, can have a legitimate expectation of being able to practise without being subjected to sexually motivated and inappropriate attention. The Registrant did not respect that legitimate expectation. Taking into account all the circumstances, the Panel decided that a Suspension Order was not sufficient or appropriate.
118. In the Panel’s view Paragraph 41 of the HCPC Indicative Sanctions Policy applies. This states that “Striking Off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”.
119. In the Panel’s view, Paragraph 42 of the HCPC Indicative Sanctions Policy also applies. This states that ‘Striking Off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process.’
120. Taking into account the aggravating features and the absence of any significant mitigating features the Panel decided that the Registrant’s conduct was so serious that no lesser sanction than a Striking Off Order is appropriate.
121. In reaching the decision that a Striking Off Order is appropriate the Panel took into account the Registrant’s interests. The Panel noted that the Registrant has retired and stated that he has no intention to return to practise as an ODP. The Panel decided that the Registrant’s interests are outweighed in this case by the public interest and that the sanction of last resort is appropriate.
122. The Panel decided that the appropriate and proportionate sanction is a Striking Off Order.
The Panel directs the Registrar to strike the name of Martin W Hammett from the Register from the date this Order takes effect.
History of Hearings for Mr Martin W Hammett
|Date||Panel||Hearing type||Outcomes / Status|
|06/06/2016||Conduct and Competence Committee||Final Hearing||Struck off|