Mr Dean M Mahony
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As amended at the Final Hearing on 01 August 2016:
During the course of your employment as a Paramedic with South West Ambulance Service on dates between September 2000 and March 2015, you:
1. On or around 12 February 2014, at your then home address, sexually assaulted a member of the public Person "A" in that you;
a) Kissed her;
b) Put your hands on her chest and/or face;
c) Pushed her onto the bed and/or positioned yourself on top of her so that she could not move;
d) Attempted to rape her.
2. Misused your position of authority by attempting to obtain sexual favours in return for promotion and advancement, in that you:
a) In or around the period between September 2012 and December 2012, telephoned colleague B and;
(i) asked her about her sex life and/or if she performed oral sex and/or;
(ii) stated that if she 'paid you in kind', or words to that effect you would assist her in getting the job she wanted at the Ambulance Trust;
b) Between 2010 and 2011, in conversation with and/or through text messages to colleague C, implied that as a senior officer you could help colleague C get a job as an Emergency Care Assistant if she slept with you.
3. On dates between 2010 and 2014, made inappropriate comments to colleagues D and E, in that you:
a) In 2013, said to colleague D that she looked "sexy" and/or "hot" and/or that you would "lock her in a cupboard", or words to that effect;
b) said to colleague E that she "had sexy legs", or words to that effect
4. On dates between 2004 and 2014, made and/or attempted to make inappropriate physical contact with colleagues, in that you:
a) tried to kiss colleague E;
b) sat on the lap of a colleague D.
5. Told colleagues that you had had sexual relations with colleagues E and F when this was untrue.
6. On a date between October 2011 and December 2011, behaved aggressively to colleague C, in that you:
a) shouted and/or swore at colleague C;
b) placed your face close to colleague C’s face.
7. Your conduct as set out in paragraphs 1, 2, 3 and/or 4 above was sexually motivated.
8. The matters set out in paragraphs 1 - 6 constitute misconduct.
9. By reason of your misconduct your fitness to practise is impaired.
Application to hear the proceedings in private:
1. Miss Lewis on behalf of the Registrant applied for the whole of the proceedings to be heard in private in order to protect the private life of (i) the Registrant whose health was affected by the proceedings, and (ii) his young son, who is now aged 8 years, in light of concerns expressed by his head teacher as to the potential for these proceedings to impact adversely on his schooling. Miss Eales, on behalf of the Council, opposed the application. The Panel also heard representations opposing the application from a member of the Press who spoke on behalf of all members of the Press.
2. The Panel considered the following documents submitted by Miss Lewis for the Registrant: (i) a letter dated 14 January 2015 from his GP (ii) a letter from Dr B, dated 22 July 2016.
3. In reaching its decision, the Panel considered the HCPC’s Practice Note on Conducting Hearings in Private. It received and accepted advice from the legal assessor. It considered that it was not unusual for registrants to suffer stress where there were allegations such as these, and for this to result in the need for medical support. However, on the basis of the information before it, the Panel did not consider that there was a compelling reason in relation to the health of the Registrant to depart from the normal course of holding the hearing in public. This was not a case in which health formed any part of the background to the matters alleged against the Registrant.
Application to amend the Allegation:
4. Miss Eales for the Council, applied to amend the Allegation in a number of respects. Notice of the amendments had been provided to the Registrant by letter dated 16 January 2016. Miss Lewis for the Registrant did not oppose the application.
5. In reaching its decision, the Panel having received and accepted advice from the legal assessor, considered each proposed amendment separately. On the whole, the amendments could be characterised as providing further and better particulars of certain incidents in the Allegation. Having reviewed each separately, the Panel concluded that none of the proposed amendments would cause any undue prejudice or injustice to the Registrant. Indeed, no issues of prejudice or injustice had been raised on his behalf. The Council’s case remained essentially the same and sufficient notice had been given. The Panel therefore decided to grant the application in full.
Special Measures for witnesses:
6. Prior to the hearing, the Council submitted three applications for special measures in respect of Person A, and Colleagues B and C. Notice of these applications were sent to the Registrant’s solicitors, Messrs. Thompsons. These applications were considered in Preliminary Hearings by the Panel Chair who granted each application, having received and accepted advice from the legal assessor. She also had regard to the HCPC Practice Note on Special Measures.
7. Where special measures are granted, as here, the Panel wished to make it clear that it would not draw any adverse inferences against the Registrant arising from these measures.
8. During the hearing, Miss Eales for the Council, applied for the special measure granted in relation to Person A to be amended so that she could give her evidence in the hearing room from behind a screen rather than via video link from London. Miss Lewis for the Registrant did not oppose the application. The Panel considered this application and granted it. The criteria for granting special measures still pertained. The only difference now was that the Registrant would not be able to see the witness although he would be able to hear her. The witness would be visible to the Panel and to both legal representatives who would be able to see her demeanour as she gave her evidence. The Panel did not consider that the Registrant would suffer any undue disadvantage by not being able to see this for himself.
9. The Registrant, Dean M Mahony is a qualified Paramedic. He has worked within the ambulance service, latterly with the South West Ambulance Service NHS Foundation Trust [the Trust], first as a trainee before qualifying in 2006 as a Paramedic. The Registrant told the Panel that since 2007 he had been employed as a manager within the operations function, holding a number of different roles and titles. In 2012 he became a Clinical Support Officer.
10. On 5 September 2014, the Registrant was arrested by police on suspicion of a serious sexual assault involving the attempted rape of a member of the public. He was interviewed under caution and released on police bail pending further enquiries. The Registrant notified the Trust of his arrest. He also notified the HCPC. On 12 September 2014, the Trust informed the Registrant by telephone that it had suspended him from duty pending those investigations. Written notice of the suspension was sent to the Registrant on 18 September 2014.
11. At around the same time, the Trust had received a complaint about the Registrant’s inappropriate behaviour towards a fellow Paramedic, Colleague D. It set up an internal investigation into this complaint. During the course of this investigation other allegations regarding the Registrant’s behaviour towards female colleagues emerged. The Trust reported these matters to the HCPC.
12. The police investigation involving Person A’s complaint concluded on 23 December 2014 after she decided that she did not wish to pursue the matter. At that stage the Registrant was released from his bail conditions and the criminal complaint against him concluded. The internal investigation continued and the Registrant remained suspended from duty.
13. On 3 March 2015, the Registrant tendered his resignation to the Trust. His resignation was accepted. Although the officer conducting the internal investigation produced his report dated 6 March 2015 setting out his findings, as a result of the Registrant’s resignation no formal disciplinary hearing took place.
Application to adduce the evidence of Colleague B as hearsay evidence:
14. A witness, Colleague B had been due to give evidence via video link on 2 August 2016 [Day 2 of the hearing]. On 1 August 2016, Colleague B sent an email to the HCPC indicating that she would not be attending, citing that this was for health reasons.
15. On 5 August [Day 4 of the hearing], Miss Eales applied for the evidence of Colleague B to be adduced as hearsay evidence under Rule 10 (1) (b) and/or (c) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. She submitted (i) that the evidence would be admissible in civil law and referred the Panel to the Civil Evidence Act 1985, and (ii) that the evidence was relevant to paragraph 2 (a) (i) and (ii) of the Allegation, and (iii) that it would be fair to admit it, as the Panel could in due course determine how much weight to give to that evidence. Miss Lewis, for the Registrant objected to the application. She conceded that the evidence was relevant but submitted that its admission would be unfair as it would be untested evidence which she would not be able to cross examine on behalf of the Registrant.
16. The Panel received and accepted advice from the legal assessor. It decided that it would not admit the evidence of Colleague B.
17. In deciding whether to admit the hearsay evidence, the Panel bore in mind that the fairness of the hearing is of paramount importance. It also had regard to The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 Rule 10 (1) (b) and (c). When considering the application, the Panel took into account the following matters:
• That it is entitled to receive hearsay evidence
• That there is no absolute rule under Article 6 of the ECHR or at common law which entitles a person in disciplinary proceedings to cross examine a witness
• That what is fair will depend upon the particular facts and circumstances of each case, and in this case the Panel has had the opportunity to read the statements and documents in the Council’s bundles. The Panel was well aware that at this stage of the hearing, it is not its function to determine the accuracy or veracity of that information
• That it must consider the seriousness and nature of the allegations and the effect on the Registrant of any findings against him
• That where the allegations are serious, the Panel needs to exercise care and caution to ensure that the hearing is fair and so there should be compelling reasons why in this case, the right to a fair hearing does not entitle the Registrant to cross examine Colleague B
• Whether the hearsay evidence is accepted or denied by the Registrant
• Whether the hearsay evidence is the sole or decisive evidence against the Registrant of a particular paragraph or part of the Allegation
• That if the Panel were to admit the hearsay evidence, it can attach less weight to it than if the witness was present to give evidence and be available for cross examination
• Whether or not there is a good and cogent reason for the non-attendance of a witness, although the absence of such a reason does not automatically mean that the evidence should be excluded.
18. The Panel decided that it would not be fair to admit the hearsay evidence of Colleague B because:
(a) Her hearsay evidence was the sole or decisive evidence of Paragraph 2 (a) (i) and (ii) of the Allegation
(b) This part of the Allegation was denied by the Registrant and there was no independent third party evidence in relation to it
(c) The charge was sufficiently serious involving allegations of sexual misconduct towards a colleague that the Panel was of the view that any adverse finding might impact on the Registrant’s career
(d) The reason for the non-attendance of Colleague B appeared to be partly on health grounds, but also because she believed that she had a choice, whether or not to attend and had simply decided not to attend. The Panel did not consider that there was sufficient evidence of Colleague B’s health condition or any other good reason for her non-attendance.
Half time submission:
19. At the conclusion of the Council’s case, Miss Lewis submitted that there was insufficient evidence as to the time when the alleged conduct occurred and as this might have been at a time prior to the Registrant becoming a registered Paramedic the Panel had no jurisdiction in respect of paragraph 4 a). She submitted that the evidence relating to the date on which the alleged attempt by the Registrant to kiss Colleague E had taken place was tenuous and it was inherently weak and/or vague. The dates alleged were very wide and in part encompassed a period when it was agreed by all parties, that the Registrant was not registered as a Paramedic. In order to have jurisdiction, the Registrant would have to have been registered as a Paramedic at the relevant time.
20. Miss Eales made no submissions on behalf of the Council.
21. In reaching its decision, the Panel took note of the HCPC Practice Note on “Half-Time” Submissions and asked itself the questions which are set out in that Note. The Panel concluded that the evidence given by Colleague E as to the date when the Registrant tried to kiss her was unsatisfactory in nature and so it could not be sure to the required standard that it, as a Panel, had jurisdiction to deal with this sub-paragraph of the Allegation.
22. The Panel noted that in her evidence, Colleague E said that her memory “was rubbish”. She had said that the attempt to kiss her could have happened during a very wide period from July 2005 to the start of 2007. Her explanation of the former date was this was when she changed Ambulance Stations, while the latter date was when she and her husband had started dating. The Panel concluded that the evidence as to the date of the alleged matter was tenuous as it was so vague and could have been at any time during a period of some 18 months. There was no other evidence to assist in narrowing down the period to a time during which the Registrant was a registered Paramedic. In the circumstances, the Panel decided that it did not have jurisdiction to hear this paragraph and sub-paragraph of the Allegation.
Decision on facts:
23. The Panel heard live evidence from a number of witnesses and from the Registrant. The Panel also received documents in evidence, some of which included hearsay statements from a number of people who were not called as witnesses. The Panel has carefully scrutinised all this evidence.
24. The Panel first heard evidence from Witness 7 who was employed by the Trust as an Operations Manager and Quality Lead. Witness 7 was appointed as the Investigation Officer for the Trust’s internal investigation. The Panel found his evidence to be credible, factual and fair.
25. The next witness was Colleague D who was employed as a nurse by the Trust from 2010. She provided clear detail on all the relevant circumstances, and the Panel found Colleague D generally to be an honest witness.
26. Colleague E was the next witness. She was employed by the Trust and had worked with the Registrant for a period of some 10 months before being transferred to a different Ambulance Station. After that transfer she had still encountered the Registrant from time to time. The Panel considered that at the start of her evidence, Colleague E was a particularly nervous witness and unclear as to the timing of the particular matters about which she was giving evidence. However, as her evidence progressed she took much more care to try and recall the times when these matters occurred, relating them to being within a period which she could identify by other events in her life. Overall, the Panel considered her to be an honest and plausible witness.
27. The Panel found the evidence of the next witness, Colleague F, to be very credible and her account a fair one. Colleague F was employed by the Trust from about October 2013. The Panel found her evidence to be very clear about professional responsibilities and about boundaries for these. The Panel considered that in her evidence, Colleague F was fair towards the Registrant even after she was shown for the first time, a part of the Registrant’s witness statement that shocked her. The Panel was of the view that despite being upset by what she saw in that statement, Colleague F did not change her account in any way, by embellishing or exaggerating anything she had previously said.
28. The next witness was Colleague C who was employed as a Call Taker by the Trust from December 2009 in its Control Room. The Panel considered that Colleague C had given a good, clear description of the relevant Control Room environment and of the incident that gave rise to that part of the Allegation. The Panel considered Colleague C’s evidence to be honest, fair and detailed despite the passage of time. For example, although she had long since deleted what she described as suggestive text messages from the Registrant, she was able to recall an example of one relating to a time when she was unwell.
29. The Panel finally heard from Person A, who was a member of the public and who came to know the Registrant in 2014 in her own professional capacity. This was when the Estate Agency where she worked was engaged to sell the house in which he was living with his then fiancée. The Panel found the evidence of Person A to be credible, professional, plausible and consistent.
30. The Panel heard evidence from the Registrant and considered that in parts of his evidence, the Registrant was a plausible witness. However, there were parts where the Panel found him to have been inconsistent in his account and parts where his evidence was not plausible. For example, and bearing in mind that the burden is, at all times, on the Council to prove the Allegation, the Panel found it implausible that the Registrant would not have been able to identify who had collected his daughter from her nursery on 12 February 2014. The Panel also considered that the Registrant was selective in his memory of the various matters alleged against him. In relation to each of the paragraphs, the Registrant appeared to have at least one argument or factor which, he said, showed that he could not have done what was alleged against him. He sought to discredit each witness. However, on further questioning he was not able to expand with specific detail on most of these assertions.
31. The Panel was clear in its understanding of its duty in assessing the Registrant’s evidence, that it was not part of its function to pass any judgement on his morals in relation to matters not the subject of the Allegation which had been aired in evidence. It has not done so.
Decision on facts:
Paragraph 1 is found proved
32. In relation to Paragraph 1, the Panel first considered each of the sub-paragraphs separately. It noted that there was no dispute between the Registrant or Person A that on 12 February 2014, Person A was at the Registrant’s then home address in her capacity of an Estate Agent engaged to sell the property and that she was there on that day to show the property to some prospective buyers who were running a little late. It also noted that whilst there was some agreement between Person A and the Registrant as to certain elements of what happened at the property prior to the prospective buyers arriving. This involved sexual behaviour but there was no agreement as to whether that sexual behaviour was consensual, as asserted by the Registrant, or non-consensual as asserted by Person A. The Panel was aware that given the serious nature of this part of the Allegation that it should consider the evidence with particular scrutiny and care, bearing in mind that it was for the Council to prove its case.
Paragraph 1a) is found proved
33 The Panel heard evidence from both Person A and the Registrant that he had kissed Person A whilst they were in the kitchen and in those circumstances found that it was more likely than not that he had done so. As to the context in which the kiss had occurred, the Panel was persuaded by Person A’s evidence that this had happened after what she considered to be a wholly inappropriate conversation about breast implants, to which she had voiced objections. The Panel accepted her evidence as credible when she said she had been taken by surprise, having thought the Registrant was leaning past her to the kitchen counter, when in fact he leant towards her to kiss her. The Panel was satisfied that Person A’s account of what happened in the kitchen was credible. The Panel rejected the Registrant’s account that the kiss had been consensual.
Paragraph 1b) is found proved
34. The Panel heard evidence from both Person A and the Registrant that he had placed his hands on Person A’s chest, whilst they were in the kitchen. The Panel therefore found that it was more likely than not that he had done so. The Panel has already referred to having preferred Person A’s evidence as to what occurred in the kitchen over the Registrant’s evidence. The Panel rejected the Registrant’s evidence that Person A had allowed him to touch her. Having seen Person A give her evidence, the Panel was satisfied that Person A had no idea that she was about to be touched before it happened and had immediately removed his hand.
Paragraph 1c) is found proved
35. The Panel has considered, with particular care, the evidence relating to what happened in the Registrant’s bedroom on that day. The Panel accepted as credible Person A’s evidence that after the events in the kitchen, she had removed herself from the Registrant’s presence by going to the toilet upstairs. The Panel wholly rejected the Registrant’s account that he and Person A had continued to kiss and touch each other whilst in the kitchen. It was satisfied that it was more likely than not that he had followed her upstairs to wait for her to come out of the toilet and that when she had done so, had grabbed her and taken her into the bedroom, pushed her on the bed and positioned himself on top of her so that she could not move. The Panel found that Person A’s oral evidence, including when cross examined on behalf of the Registrant, as to what happened in the bedroom to have been compelling. She was consistent in her account which the Panel found to be credible.
Paragraph 1d) is found proved
36. In considering this sub-paragraph, the Panel accepted the legal advice as to what constituted attempted rape. The Panel was satisfied that it was more likely than not that the Registrant had forced himself on Person A, first trying to insert his penis into her mouth, before then trying to insert it into her vagina. The Panel also considered that it was more likely than not that in doing so, the Registrant was attempting to rape Person A. The Panel was not persuaded in any regard by the Registrant’s account that he had specifically sought permission to perform sexual acts on Person A or that she was consenting to what he was doing to her. The Panel has already indicated that it found Person A’s evidence as to other sub-paragraphs of paragraph 1 to have been compelling and credible and it preferred her account of what happened in the bedroom to that of the Registrant, which it rejected as being wholly implausible.
37. The Panel was satisfied that it was more likely than not that at that time, Person A did not consent to sexual intercourse. The Panel accepted Person A’s evidence that she was struggling and telling the Registrant to stop and that she did not consent to what he was doing to her. The Panel also considered that Person A’s demeanor whilst inside the bedroom and indeed prior to that, was such that it must have been obvious to the Registrant that she was not consenting to what he was doing to her and she was not reciprocating in any way and so the Panel was satisfied that it was more likely than not that the Registrant did not reasonably believe that Person A consented.
Paragraph 1 as a whole – found proved
38. In relation to the stem of paragraph 1, the Panel having found each of the sub-paragraphs a) to d) proved, then considered whether the Registrant had sexually assaulted Person A. The Panel received legal advice as to what amounted to a sexual assault, and has applied that in reaching its decision as to whether the conduct found proved in the sub-paragraphs, either individually or collectively, amounted to a sexual assault on Person A. The Panel concluded that based on the conduct found proved in each of the sub-paragraphs, it was more likely than not that the Registrant sexually assaulted Person A by intentionally touching Person A in circumstances which made the touching sexual, either because of the nature of the touching itself (i.e. the attempted rape) or because of his intention in relation to it. The Panel’s findings in each sub-paragraph was that Person A did not consent to the touching, and in rejecting the Registrant’s account of these events, the Panel was satisfied that it was more likely than not that he did not reasonably believe at that time that Person A was consenting to any of his conduct as set out.
Paragraph 2a) (i) is found not proved
Paragraph 2a) (ii) is found not proved
39. In relation to Paragraph 2a) (i) and (ii), the Council did not adduce any evidence in relation to these charges and so failed to discharge its burden of proving that they were well founded. In those circumstances, the Panel found Paragraph 2a)(i) and (ii) not proved.
Paragraph 2b) is found proved
40. The Panel first considered the matters set out in sub-paragraph 2b). The Panel considered that in her oral evidence and in her witness statement, Colleague C’s account had been very clear and credible. It concluded that it was more likely than not that the Registrant had implied to her in conversation and/or in text messages that he could help her get a job if she slept with him. There was no dispute that at the relevant time, the Registrant was in a more senior position to that of Colleague C. The Panel preferred Colleague C’s evidence as to what he said in conversation and/or in text messages, to the Registrant’s evidence. Although, Colleague C no longer had any of the text messages, the Panel accepted that these would have been sent to her some years before she was first asked about them. The Panel noted that despite that, she had been able to recall one text which she had received when she was in a particularly vulnerable state and was unwell. The Panel accepted her evidence that she had discussed the Registrant’s unwanted sexual behaviour towards her with her mother and that she had made up an imaginary boyfriend in an attempt to put a stop to this.
41. Based on its findings in relation to sub-paragraph 2b), the Panel decided that the stem of paragraph 2 was proved. It had no doubts that the Registrant had attempted to get Colleague C to sleep with him in return for his assistance in her promotion and advancement and that this was a clear and blatant misuse of his position of authority over her.
Paragraph 3a) is found proved
42. The Panel first considered sub-paragraph 3a) and decided that it was more likely than not that the Registrant had said the words alleged, or words to that effect to Colleague D. It preferred the evidence of Colleague D to that of the Registrant about these matters. Colleague D recalled the specific occasion not only by reference to the date but also where she had been going at the time when the Registrant told her that she looked “sexy” and/or “hot”. The Panel noted that Colleague D had given a different account of the precise location of where the remarks were said to have been uttered by the Registrant to the investigating officer and to the HCPC in her witness statement. However, the Panel did not consider that this undermined her evidence as to what the Registrant had said to her, which it found to be credible.
43. The Panel also found that Colleague D’s evidence detailing the occasion on which the Registrant had said he would “like to lock her in the cupboard”, or words to that effect to be particularly compelling. Again, the sort of detail Colleague D gave as to the context in which the words had been said led the Panel to conclude that her evidence was credible. For example, she had said that at the time she laughed it off as a joke, telling the Registrant that he would not know what to do with her. She had done this to feel in control and to diffuse the situation. The Panel heard unchallenged evidence that in certain Ambulance Stations at that time, there was a culture of banter between members of staff in which sexual innuendo was not unknown. Colleague D referred to there being a “male macho” culture which at the time she felt unable to challenge. The Panel did not consider the fact that the matter may not have been reported at the time to undermine in any way Colleague D’s account of what was said to her by the Registrant.
44. In relation to the stem of paragraph 3, the Panel was in no doubt that these comments, which were of a personal nature, made by the Registrant to Colleague D were inappropriate in a work context, particularly taking account of his senior managerial role at that time.
Paragraph 3b) is found proved
45. The Panel first considered sub-paragraph 3b) and concluded that it was more likely than not that the Registrant said to Colleague E that she had “sexy legs” or words to that effect. Colleague E was very clear in her recollection of precisely where the comment had been made and that it was said in the context of him asking her out for a drink. Whilst initially unclear about when this had occurred, on further questioning Colleague E had used the reference points of the birth of her son and when she was on maternity leave to give a more precise time span. The Panel accepted her evidence as credible.
46. The Panel rejected the Registrant’s evidence that he had not made this comment to Colleague E. It did not consider that his denial was credible.
47. The Panel concluded that the comment was wholly inappropriate for the Registrant to have made to a junior work colleague.
Paragraph 4a) is found not proved
48. In light of its decision on the half time submission made by Miss Lewis on behalf of the Registrant, the Panel could not be satisfied that the alleged conduct in sub-paragraph 4a) occurred whilst the Registrant was a registered Paramedic. It determined that it could not find this sub paragraph proved, as it was not satisfied that it had jurisdiction to hear the matter.
Paragraph 4b) is found proved
49. The Panel accepted Colleague D’s evidence that the Registrant had sat on her lap. The Panel found Colleague D’s evidence as to the circumstances to be plausible. Whilst unable to put a precise date on the incident, Colleague D was able to recall that when the Registrant had sat on her lap, it had hurt her legs as they were sore from being in the gym the day before. The Panel considered that her recollection of that sort of detail added credibility to her account. The Panel preferred her evidence to that of the Registrant who had denied that it had happened. The Panel concluded that it was more likely than not that it had.
50. The Panel then considered the stem of paragraph 4 and concluded that the conduct in paragraph b) clearly amounted to inappropriate physical contact with Colleague D. There was no occasion where it would be appropriate in a work context for a paramedic to sit uninvited on a colleague’s lap.
Paragraph 5 is found proved
51. With regard to paragraph 5, the Panel first considered the evidence in relation to Colleagues E and F separately. The Panel accepted the evidence of Colleague E that two different colleagues had implied to her that the Registrant had told them that she had slept with him. The Panel noted that this was hearsay evidence as neither of the two colleagues mentioned by Colleague E were called to give evidence, nor had either been interviewed by Witness 7 as part of the Trust’s investigation. The Panel also accepted Colleague E’s evidence that she had never been in a personal relationship with the Registrant, although he had pursued her to go out with him. The Panel considered that Colleague E’s forced move from one Ambulance Station to another was partially motivated by the rumours of her relationship with the Registrant which were unfounded. The Panel decided that it was more likely than not that the Registrant had spread untrue rumours about a relationship with Colleague E amongst his colleagues.
52. In relation to Colleague F, the Panel found that it was more likely than not that the Registrant had told colleagues that he had had sexual relations with Colleague F which were untrue. Although the only evidence in relation to this matter comes from Colleague F herself, the Panel found her evidence to be particularly compelling. She had been approached by a number of people who had told her of rumours circulating that she had been sleeping with the Registrant. She confirmed that the colleagues who had told her this were not interviewed as part of Witness 7’s investigation and she named one person, as DW. The Panel also considered that its findings in relation to Colleague E supported Colleague F’s evidence that the rumours about her having sexual relations with the Registrant emanated from the Registrant himself. There was no evidence that Colleague E and Colleague F had colluded in any way in their complaints about the Registrant.
53. The Panel rejected the Registrant’s evidence that he and Colleague F had been in a sexual relationship. He sought to support this evidence by reference to details of the inside of Colleague F’s flat and to other personal details. However, Colleague F in her evidence showed that his supporting evidence was either wrong or that he could easily have obtained the information about her, for example, via social media or from his role as her Manager.
Paragraph 6a) is found proved
Paragraph 6b) is found proved
54. The Panel considered each of the sub-paragraphs of paragraph 6 separately. In relation to sub-paragraph 6a), the Panel found that it was more likely than not that the Registrant shouted at Colleague C in the circumstances she described in her evidence. The Panel accepted her evidence that she had been rude to the Registrant inside the control room and that she had gone outside for a cigarette. In relation to sub-paragraph 6b), the Panel accepted Colleague C’s evidence that the Registrant had followed her out and had positioned himself so that his face was very close to her face when he was shouting at her and berating her for what she had said to him in the control room.
55. The Panel found that there was some support for Colleague C’s account in the evidence provided to Witness 7 by another colleague who had witnessed this incident. Another colleague had witnessed some of what happened between Colleague C and the Registrant in the control room. The colleague said he thought that this was initially banter which turned into an argument. Later he had been outside and seen the Registrant “pin” Colleague C against a wall and standing “face to face”. The colleague could not hear what was said, but his impression was that the altercation was a hostile one. The Panel took care before relying on the colleague's evidence as supportive of Colleague C’s evidence. It was hearsay evidence and the other colleague was not a witness called by the HCPC.
56. The Panel did not find the Registrant’s evidence persuasive, particularly his evidence that he could not recall any situation in which Colleague C had sworn at him or been abusive towards him. The Panel accepted Colleague C’s evidence that this is what had preceded the behaviour outside the control room on the evening in question.
57. The Panel then considered the stem of paragraph 6 and was in no doubt that the Registrant’s behaviour towards Colleague C was aggressive. He had raised his voice in a situation and he had also invaded Colleague C’s personal space.
Paragraph 7 is found proved in relation to paragraph 1 a) to d), paragraph 2 b), and paragraph 3b) and not proved in relation to paragraphs 3a and 4b).
58. The Panel received and accepted legal advice as to what amounted to sexual motivation.
59. In relation to paragraph 1 of the Allegation, the Panel noted that Miss Lewis accepted that if this paragraph was found proved, the conduct involved was sexually motivated. The Panel had no difficulty in finding that it was more likely than not that the Registrant’s conduct on the 12 February 2014 was sexually motivated.
60. In relation to paragraph 2b), the Panel considered that it was more likely than not that the Registrant’s misuse of his position of authority in an attempt to obtain sexual favours from Colleague C in return to help in a job application was sexually motivated behaviour.
61. In relation to paragraph 3a), the Panel took the view that whilst what was said was not appropriate in the workplace, the conduct found proved did not amount to sexually motivated behaviour on this occasion.
62. In relation to paragraph 3b), the Panel concluded that the inappropriate comment made by the Registrant to Colleague E was said by him in the context of inviting her out for a drink. In her evidence, Colleague E gave clear and credible evidence that the Registrant had tried to ask her out before and that she made a point of not going out with work colleagues. The Panel considered that it was more likely than not in uttering the words that he did in the context of inviting her out, the Registrant’s behaviour was sexually motivated.
63. In relation to paragraph 4b), the Panel took the view that the conduct found proved did not amount to sexually motivated behaviour. The Registrant had behaved inappropriately in sitting on Colleague D’s lap but there was nothing in the context of that behaviour which indicated that it was, at the time, sexually motivated.
Decision on Grounds
64. In reaching its decision on the statutory ground of misconduct, the Panel has taken into account the submissions of both parties and has accepted legal advice.
65. In deciding whether the facts found proved amounted to misconduct, the Panel considered each paragraph of the Allegation individually. It concluded that the facts found proved in each individual paragraph amounted to misconduct.
66. The conduct proved in Paragraph 1 was particularly serious as it amounted to potentially criminal behaviour. The Panel noted that it was accepted by Miss Lewis that if paragraphs 1 and 7 were proved, a finding of misconduct would inevitably follow. The Panel has no hesitation in finding that this amounted to serious misconduct.
67. In relation to the other findings involving sexually motivated behaviour towards Colleagues [paragraphs 2b) and 3b)], the Panel also considered these each amounted to serious misconduct. Such behaviour fell far below the standard of behaviour to be expected of a Paramedic towards colleagues, particularly junior colleagues. The Panel did not consider that what might have been a culture in the workplace at the relevant time in any way excused what had happened, or made it in any way a less serious form of misconduct.
68. In relation to the findings in paragraphs 3a), 4b), 5 and 6a) and 6b), the Panel considered that the Registrant’s behaviour was serious misconduct. It indicated a pattern of inappropriate behaviour towards female colleagues which covered inappropriate comments of a personal nature, inappropriate physical contact, aggressive behaviour and spreading untrue rumours of a sexual nature. All of these aspects of the Registrant’s misconduct were serious in that they occurred when he was in a managerial role and they involved junior colleagues. They occurred over a long period of time and had the potential to upset and/or cause embarrassment to those colleagues and in most instances had done so.
69. In reaching its decision on misconduct, the Panel has also had in mind the HCPC Standards of Conduct, Performance and Ethics and concluded that the following standards are engaged and have been breached:
Standard 3: You must keep high standards of personal conduct
70. The Panel took the view that the Registrant’s conduct towards Person A fell far below the high standards expected of a paramedic in his personal life.
Standard 13: You must behave with …..and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
71. The Panel concluded that in acting the way he did, the Registrant had not acted with either integrity or in a way that would ensure his behaviour did not damage the public’s confidence in the Paramedic profession and he has let down his professional colleagues.
72. The Panel also considered the HCPC Standards of Proficiency for Paramedics and concluded that the following standard had been engaged and breached:
Standard 1b - Professional Relationships:
Registrant paramedics must:
1b.1 be able to work, where appropriate, in partnership with other professionals, support staff, ….
73. The Panel concluded that the Registrant’s behaviour towards his colleagues as found proved in paragraphs 2 to 6 had fallen far short of the standard expected of a paramedic.
Decision on Impairment:
74. In making its determination in relation to impairment the Panel has borne in mind that the purpose of these hearings is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. It has also borne in mind the HCPC’s Practice Note regarding Impairment.
75. The Panel has found that the Registrant’s fitness to practise is impaired. The Panel has very serious concerns about the Registrant’s judgment and understanding not only of how to conduct himself with female colleagues in the workplace, but also outside of work.
76. In reaching its decision, the Panel considered the evidence of how the Registrant had conducted his work as a paramedic in the past. It was clear from testimonials provided to the Panel that the Registrant is a good and competent Paramedic in a clinical setting. However, the misconduct found in this case does not concern his clinical competence. The Panel noted that the Registrant has not worked as a paramedic since he resigned in March 2015 and is currently employed working for a Funeral Director where he appears to be doing well.
77. The Panel considered that the Registrant had shown very little, if any, insight or remorse for his misconduct. The Panel appreciated that this might have been difficult for him to do in light of his denial of any wrongdoing in this case. In his evidence, the Registrant said that he had reflected on how his behaviour may be viewed and how those who had made allegations against him had felt about his behaviour towards them. However, it appeared to the Panel that what reflection there may have been was largely to do with the impact of the allegations on himself. For example, the Registrant said how upset he was to think that Person A felt that her life and health had been significantly affected by her complaint against him. The Panel considered that the Registrant has very little insight into his shortcomings.
78. In addition, the Registrant has shown no remorse for what had happened. The Panel is aware that some types of misconduct are more difficult than others to remedy and to demonstrate that they have been remedied. There was some evidence that since his misconduct came to light, the Registrant has undertaken a course in equality and diversity. It is also the case that the Registrant has engaged with the regulatory process in the sense that he has been actively involved at all stages of that process, having self-referred to the HCPC in September 2014. However, the Panel took the view that it was clear the Registrant sees himself as the victim in this case and so it could only conclude that there was a significant risk of recurrence of the misconduct.
79. In relation to the wider public interest, the Panel has no doubt that an informed member of the public would consider that public confidence in the Paramedic profession would be seriously undermined if there was no finding of impairment in this case. This was particularly so where the misconduct involved findings of sexual motivation by a paramedic who had not only sexually assaulted a member of the public who was acting as his Estate Agent, but who had also, over a long period of time, taken advantage of his senior position with female colleagues whilst at work.
80. The Panel also took the view that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in the Paramedic profession if it did not find impairment in this case. Paramedics should be in no doubt that this sort of behaviour is unacceptable.
Further preliminary matter: to hear the remainder of the proceedings in private
81. At the outset of the resumed hearing on 24 November 2016, Ms Lewis on behalf of the Registrant applied to have the whole of the remainder of the hearing heard in private, on grounds that it was in order to protect the Registrant’s health. In addition to the documents relating to this referred to in paragraph 2 above, the Panel received a further letter from his GP dated 18 November 2016.
82. Miss Eales on behalf of the Council opposed the application for the whole of the remainder of the hearing to be in private, but accepted that if Ms. Lewis wanted to expand upon those matters relating to the Registrant’s health, set out in the most recent GP’s letter, these might be heard in private.
83. The Panel re-considered the HCPC’s Practice Note on Conducting Hearings in Private and the HCPC’s Fitness to Practice Publication Policy. It received and accepted advice from the legal assessor. In its earlier decision, the Panel noted that it was not unusual for registrants to suffer stress in relation to the sort of allegations made in this case. It noted that the Registrant had had to await the outcome of the fact-finding and impairment stages of the hearing until late October and considered that this too would have been stressful. The Panel was still of the view that there was no compelling reason in relation to the health of the Registrant to depart from the normal course of holding the remaining part of this hearing in public. However, it decided that if there were additional submissions relating to the Registrant’s health, in order to protect his private life in relation to those specific details, it would hear these additional submissions in private session.
Decision on Sanction:
84. In considering the appropriate and proportionate sanction in this case the Panel was referred to and took account of the HCPC Practice Note on Indicative Sanctions Policy. It was also referred to and took account of:
(i) the HCPC Standards of Conduct, Performance and Ethics –
Standard 3 – You must keep high standards of personal conduct
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
and (ii) the HCPC Standards of Proficiency for Paramedics Standard 1b.1 which states that Registrant paramedics must be able to work, where appropriate, in partnership with other professionals, support staff,...
85. The Panel also considered the written submissions of both parties, the letter from the Registrant’s current GP dated 18 November 2016 and the evidence adduced in the case, including the various letters in the Registrant’s bundle of documents under the headings “Plaudits” and “References”. The Panel noted that these letters address the Registrant’s clinical skills about which there are no concerns. The Panel was aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect service users and to maintain confidence in the Paramedic profession and to uphold its standards of conduct and behaviour. It also had in mind that any sanction it imposed must be appropriate and proportionate bearing in mind the misconduct involved.
86. The Panel considered mitigating and aggravating factors. In relation to mitigating factors, the Panel noted that the Registrant had communicated and co-operated with the HCPC in these proceedings, and that he had attended the hearing in August 2016.
87. In relation to aggravating features, the Panel took note of the serious nature of the misconduct involving Person A, and of misconduct involving breaches of professional boundaries in relation to more junior female colleagues.
88. In addition, the Panel noted the Registrant’s lack of remorse and the fact that he had breached the standards and fundamental tenets of his profession, as referred to in paragraphs 69, 70, 71 and 72 above.
89. In reaching its decision on sanction, the Panel considered that the Registrant had shown very little insight or remorse. It has already referred to this in paragraphs 77 and 78 above. The Panel noted that it had not received any further evidence since the hearing adjourned in August 2016, to indicate that the Registrant had developed any insight into his shortcomings or that he had shown appropriate remorse. The Panel considered that it was clear from the contents of the GP’s letter dated 18 November 2016 that the Registrant has continued to focus on the effect of these allegations on him personally and not on the effect on the complainants in this case.
90. The Panel considered the written submissions on behalf of the Registrant where it is suggested that the Registrant’s evidence had shown that he had recognised that his behaviour towards his female colleagues was not appropriate and that he was now a different person. However, the Panel was not confident that this was the position or that the Registrant had understood his shortcomings or accepted that they existed. There was no evidence that he had undertaken proper reflection on these or identified how he might take steps to remedy them.
91. The Panel considered the available sanctions in ascending order of seriousness. It decided that to take no action or to impose a Caution Order in this case would not be appropriate or proportionate given the gravity of misconduct concerned, which involves findings of sexual assault and sexually motivated behaviour. It was satisfied that to ensure that public confidence in the profession was not undermined it had to consider a more severe sanction.
92. The Panel considered a Conditions of Practice Order but decided that it was neither sufficient nor proportionate in this case. The lack of insight shown by the Registrant into his misconduct raised issues of public protection which could not be addressed by any conditions. In addition, an informed member of the public would be concerned if a registrant with such lack of insight was able to practice even subject to conditions.
93. The Panel next considered a Suspension Order. It took account of the relevant paragraphs in the Indicative Sanctions Policy and determined that it would not be adequate to protect the public or sufficient to satisfy the wider public interest concerns. It had particular regard to paragraph 34 which states:
“If the evidence suggests that the Registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option…”.
94. The Panel was not satisfied, given his lack of insight, that the Registrant was able to remedy his failings.
95. The Panel concluded that the only appropriate and proportionate sanction was an order striking the Registrant off the Register. In reaching its conclusion, it took account of the following paragraphs of the Indicative Sanctions Policy:
Para. 40 Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual, dishonesty or persistent failure.
Para.41 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.
Para.42 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.”
96. The Panel decided that given the Registrant’s lack of insight and the nature and gravity of the allegation, involving as it does not only a serious sexual assault on a member of the public but also sexually motivated conduct towards junior female colleagues, that to ensure the public’s confidence in the profession it is appropriate and proportionate to order that the Registrant’s name be struck off the register.
The order imposed today will apply from 22 December 2016 (the operative date).
An Interim Suspension Order was imposed at this hearing.
History of Hearings for Mr Dean M Mahony
|Date||Panel||Hearing type||Outcomes / Status|
|24/11/2016||Conduct and Competence Committee||Final Hearing||Struck off|
|01/08/2016||Conduct and Competence Committee||Final Hearing||Adjourned part heard|
|02/03/2016||Conduct and Competence Committee||Interim Order Review||Interim Suspension|