Mr Damian Sherman

Profession: Paramedic

Registration Number: PA09264

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 12/04/2018 End: 16:00 13/04/2018

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

During the course of your employment as a Registered Paramedic with East of England Ambulance Service, you:

1. Posted photographs and comments on a social networking website in relation to a member of the public, that were derogatory and/ or abusive and/ or threatening, on dates including:
a) 7 May 2016; and/ or
b) 9 May 2016; and/ or
c) 11 May 2016; and/ or
d) 16 May 2016; and/ or
e) Two further unknown dates in 2016.

2. Did not take appropriate steps to safeguard a vulnerable member of the public, Person A, in that you:
a) did not identify Person A as being vulnerable and/or at risk;
b) did not contact the Local Management Team or Single Point of Contact to make a vulnerable person referral in respect of Person A; and/ or
c) did not call 999 for an ambulance for Person A, when he was in an unresponsive and/ or unconscious state.

3. The matters set out in paragraphs 1-2 constitute misconduct.
4. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters
Proceeding in private 
1. Mr Padley made an application under Rule 10(1)(a) of HCPC (Conduct & Competence) (Procedure) Rules 2003 for the hearing to proceed in private where any personal or private matters relating to the Registrant may be disclosed. Ms Sheridan on behalf of the HCPC did not oppose this. The Panel received advice from the Legal Assessor. The Panel considered the submission made by Mr Padey and determined in the exercise of its discretion that the hearing would proceed in public except where the evidence related to health matters which would be heard in private.

Application to amend the Particulars
2. Ms Sheridan applied to amend Particular 2 of the Allegation. She applied to amend Particular 2 by adding  Particulars 2(a), 2(b) and 2(c).

3. Ms Sheridan submitted that the amendments were necessary to clarify the case against the Registrant. The proposed amendments had been notified to the Registrant on 21 August 2017. Mr Padley on behalf of the Registrant made no objection to the amendments being made. The Panel received and accepted the advice of the Legal Assessor that an amendment to the Allegation could be made, provided no injustice was caused. The Panel noted that the Registrant had been made aware of the proposed amendments and Mr Padley had no objection.

4. The Panel considered that the proposed amendments did not alter the nature of the case against the Registrant but merely clarified the Allegation. Accordingly the Panel was satisfied that the amendments would not cause any prejudice to the Registrant and determined that they should be allowed.

Background
5. At the material time, the Registrant was employed as a Hazardous Area Response Team (HART) supervisor by the East of England Ambulance Service Trust (the Trust). He qualified as a Paramedic in 2001.

6. In mid-June 2016, it came to the attention of the Trust that photos and comments relating to a frequent service user, Person A, had been posted on social media site, Facebook by the Registrant.

7. It was also alleged that the Registrant did not follow safeguarding procedures, in a situation where Person A was deemed to be a vulnerable adult.

8. These concerns were investigated by an Investigating Officer, appointed by the Trust (Witness 1) in September /October 2016.

Decision on facts
Panel’s Approach
9. The Panel is mindful that the burden of proving the allegations rests throughout on the HCPC and the standard of proof is the civil standard based upon the balance of probabilities. There is no burden on the Registrant to prove anything. Individual Particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities. The Panel has given the words and phrases contained within the Allegation their ordinary English meaning.

10. The Panel heard submissions on behalf of the HCPC from Ms Sheridan and submissions on behalf of the Registrant from Mr Padley. It has accepted the advice of the Legal Assessor.

11. The Panel heard oral evidence from Witness 1 and also from the Registrant.

Witness 1
12. The Panel found  Witness 1 to be open, honest and credible in his evidence. The Panel was satisfied he had good recall and considered his account to be fair and balanced.

13. The Panel had the benefit of hearing from Witness 1 in person, as well seeing the documentary material exhibited in the HCPC bundle including the photographs and extracts from a social networking site referred to in Particular 1.

The Registrant
14. The Panel accepted the Registrant sought to provide a credible, reliable account of the events.

Particulars 1(a), 1(b), 1(c), 1(d), 1(e) – found proved
15. The Panel heard and accepted the Registrant’s evidence. The Panel had sight of the photographs and comments that the Registrant stated he had posted on the dates identified, on a social networking website in relation to a member of the  public, that were derogatory and abusive.

16. The Panel also heard and accepted the evidence of Witness 1 who had carried out the investigation into the Registrant’s behavior in relation to the Allegation. He stated that the postings were on a website where access was not restricted to a particular group and therefore the postings could be circulated and commented upon. Witness 1 stated that the Trust’s policy on the use of social media stated that staff must not use social media to post derogatory or offensive comments about service users.

Particular 2(a) - found proved
17. The Panel heard and accepted the Registrant’s evidence that he did not take appropriate referral steps to safeguard a vulnerable member of the public, by not identifying Person A as being vulnerable and at risk. Witness 1 gave evidence that Person A was well known to the local emergency services as someone with an alcohol problem who was known to committee criminal acts in order to secure accommodation in police custody. He was known to be potentially  vulnerable.

Particular 2(b) – found proved
18. The Panel heard and accepted the Registrant’s evidence that he did not take appropriate referral steps to safeguard a vulnerable member of the public, Person A; in that the Registrant accepted that he did not contact the Local Management Team or Single Point of Contact to make  a vulnerable person referral.

19. Witness 1 gave evidence as to the statutory guidance reflected in the Trust’s ‘Safeguarding Vulnerable Adults Policy’. Witness 1 confirmed that the Registrant was trained in the relevant policies as part of his mandatory training.

Particular 2(c) – found not proved
20. The Panel accepted the Registrant’s account that Person A  was asleep but awakened on the approach of the Registrant and his dogs. The Panel accepted that Person A was not in an unresponsive and/or unconscious state.

Decision on grounds
21. The Panel heard submissions on behalf of the HCPC from Ms Sheridan and submissions from Mr Padley on behalf of the Registrant .  It has accepted the advice of the Legal Assessor.

22. The Panel noted that there were at least six incidents relating to the Registrant’s misuse of a social networking website where he posted pictures of a vulnerable member of the public, Person A. Specifically, the Registrant had posted abusive and derogatory comments in respect of Person A  to accompany these photographs.

23. The Panel also found proved that the Registrant, a Paramedic, had not taken steps to safeguard Person A, an at risk, vulnerable member of the public, nor had the Registrant contacted the Local Management Team or Single Point of Contact to make a vulnerable person  referral.

24. The Panel reminded itself that misconduct is a matter for its judgment. The Panel considered all the facts and circumstances giving rise to the facts found proved. The Panel took account of the information available that the Registrant was under pressure due to some serious health issues he was suffering from at the time. On the other hand, the Registrant’s actions were deliberate and the behaviour continued over a protracted period of time. The incidents of misconduct occurred in the context of posting the photographs and comments  on a social networking website, the members of which were fellow employees at the Registrant’s employment. These postings could be easily circulated to third parties. The incidents which were the subject of referral were within the period of time, during which, the Registrant had not been at work.

25. The Panel found the behaviour in Particular 1(a) to 1(e) was a deliberate course of action by the Registrant. The Panel decided that this action was sufficiently serious to amount to misconduct.

26. The Panel next considered the Registrant’s conduct in relation to Particular 2(a) and 2(b). The Registrant accepted he had not done what was required of him to protect Person A, hence potentially putting person A at risk. Whilst the Panel accepted that the Registrant had been experiencing health issues this was not such as would satisfy an explanation as to excuse his behaviour. The Panel noted that the Registrant had subsequently sought assistance to address his problem. The Panel found this was a deliberate act by the Registrant. The Panel decided that this action was sufficiently serious to amount to misconduct.

27. The Panel considered the behaviour in Particulars 2(a) and 2(b) to be totally unacceptable conduct by the standards of Paramedics. The Registrant was putting Person A at potential risk by not appropriately taking steps to safeguard him.

28. The Panel identified a breach of the following provisions of the HCPC Standards of conduct, performance and ethics, January 2016:
Standard 1.1 You  must   treat  service users and  carers  as individuals, respecting their privacy 
Standard 2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites;
Standard 6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible;
Standard 7.1 You must report any concerns about the safety of well-being of service users promptly and appropriately;
Standard 7.3 You must take appropriate action if you have concerns about the safety or well being of children or vulnerable adults;
Standard 9.1 You must make sure that your conduct justifies the publics trust and confidence in you and your profession.

29. The Panel was satisfied the proven facts in 1 and 2 do amount to the statutory ground of misconduct.

Decision on impairment
30. The Panel decided that the Registrant’s fitness to practise is currently impaired.

31. The Panel has heard submissions from Ms Sheridan, on behalf of the HCPC. She submitted that the Registrant had continued his behavior, in relation to Particular 1, over a period of time. She submitted there was evidence that as recently as February 2017 the Registrant had once more made a posting on a social networking website in relation to a member of the public, that was derogatory and/ or abusive. Ms Sheridan submitted that whilst the Registrant had submitted a reflective statement   there was no evidence of a recognition of the seriousness of what had occurred and there was evidence of repetition and a risk of further repetition.

32. Ms Sheridan submitted that a finding of impairment was necessary to maintain confidence in the profession, to protect the public and was in the wider public interest.

33. Mr Padley on behalf of the Registrant accepted that the Registrant is impaired. He submitted that the public component is met and acknowledged that this behaviour would have an adverse effect on the public’s confidence in the Registrant’s profession.

34. Mr Padley did not accept that the Registrant’s fitness to practise was impaired by the personal component. He submitted that at the time of the misconduct the Registrant’s decision-making was adversely affected by  his personal difficulties. Mr Padley submitted that the Registrant’s decision-making was no longer adversely affected.

35. In reaching its decision on current impairment, the Panel has considered both the personal component and the public component and has accepted the advice of the Legal Assessor. The Panel has also had regard to the HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’.

36. The Panel reminded itself that a finding of impairment was a matter for its judgment and that it must consider whether the Registrant’s fitness to practise is currently impaired.

37. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.

38. The Panel considered both the mitigating and the aggravating circumstances surrounding this case at the time of the misconduct.

39. The Panel was aware that the Registrant had identified some serious personal issues around the time of these incidents. The Panel had limited information as to the impact that these personal issues may have had upon the Registrant. It noted from the Registrant’s Statement of Reflection submitted for the purposes of this hearing that he has developed insight and reflected upon the importance of referring vulnerable members of the public. However, he has now demonstrated only limited insight with regard to the careless use of social media. Mr Padley stated he was now receiving treatment and developing insight. There was limited documentary evidence in respect of this and also evidence of recent attendance at a course on safeguarding children. It was submitted that this course also related to adult safeguarding too. There were also several testimonials from colleagues none of whom demonstrated knowledge of the current fitness to practise proceedings.

40. In terms of the personal component, the Panel has found serious failings in the Registrant’s conduct which indicated derogatory and abusive treatment of a vulnerable service user and exposed him to potential risk of harm. The Panel was concerned that it had limited information from the Registrant demonstrating any training or development activity undertaken by him, any reflection on the incidents or any development of insight. The Panel was particularly concerned to note the recent evidence in relation to the Registrant misusing social networking by posting inappropriate and abusive content in February 2017. This appeared to arise in relation to his current employment. 

41. Whilst the Registrant demonstrated some insight into the risks associated with the behaviour in Particulars 1(a) to 1(e) and 2(a) to 2(b) which resulted in the finding of misconduct, the Panel noted the repetition of similar such behaviour in February 2017. This demonstrated to the Panel that not only had there been a repetition of the behaviour since this allegation, but there remained a risk of repetition of such behavior. While accepting that in some circumstances such failings may be remediable, in the Registrant’s case, the Panel did not find evidence that he has taken sufficient steps to address fully those failings, to the contrary the behaviour had been repeated. Taking these matters into account, the Panel has concluded the Registrant had made progress but that there is a risk of repetition.

42. Having considered the seriousness of the incident, the reputation of the profession, the need to declare and uphold public standards and the wider public interest, the Panel found the Registrant’s fitness to practise to be currently impaired.

Decision on sanction
43. In determining the appropriate sanction, if any, the Panel took into account the aggravating and mitigating factors. The Panel identified the following aggravating factors:
• The Registrant’s photographs and postings on a social media networking site referred to a member of the public known to the local emergency services;
• The subject of the postings was a  potentially vulnerable member of the public.

The Panel identified the following mitigating factors:
• The network of users with whom the postings shared were work colleagues within the Registrant’s place of employment;
• The Registrant has engaged throughout these proceedings;
• The Registrant has no previous regulatory findings;
• The Registrant provided good character references;
• There was no evidence of any  harm to a member of the public;
• The Registrant indicated he was experiencing some health issues.

44. The Registrant produced medical evidence showing that he had made significant progress in dealing with his health issues.

45. The Panel was satisfied the Registrant was genuinely remorseful.
The face of Person A on the photographs posted on the social media networking site had been covered to ensure anonymity.

46. This was a one-off incident.

47. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct, to take no action on his registration would be inappropriate. Although the circumstances were unique, the Panel was not satisfied that it amounted to exceptional circumstances which justified no action. In the absence of exceptional circumstances, the Panel concluded that taking no action would be insufficient to maintain public confidence in and uphold the reputation of the profession.

48. The Panel went on to consider a Caution Order.  The Panel noted the Indicative Sanctions Policy which states:
A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.

49. The Panel took the view that the Registrant’s misconduct could be described as relatively minor and it was limited in nature in that it related to a discrete set of circumstances which was highly unlikely to be repeated. The Panel noted that the Registrant’s postings of a potentially vulnerable member of the public on a social media networking site and not referring him for safeguarding took place over a short period in May 2016 and related to one individual.

50. The Panel accepted that this behaviour was entirely out of character for the Registrant. It occurred in the course of a stressful period of employment. The Registrant had identified that his behaviour at the time of the incident had  been adversely affected by a health condition which he had subsequently taken steps to address.

51. The Panel accepted that this was an isolated incident for the Registrant who had been a Paramedic since 2001. He was remorseful. The Panel had the benefit of seeing the Registrant’s demeanour in giving evidence. They observed his deep distress at his own conduct and the clear realisation it was not acceptable and why. The Panel was made aware of a subsequent posting in 2017, which was not the subject of this sanction, but took the view that this was not of the same nature as this misconduct and did not necessarily demonstrate a repetition of this behaviour. It also noted that the February 2017 posting was to a closed group. The Panel was satisfied the Registrant had developed insight and was satisfied that any risk of repetition of the behaviour was low.
The Panel noted that the Registrant had also changed his employment and was now working in a more supportive environment. He now has an awareness and appreciation of the need to use social media responsibly and has attended a safeguarding course. The Panel also noted that during the proceedings the Registrant has developed sufficient insight into his role as a professional to justify imposing a sanction towards the lower end of the scale.

52. The Panel concluded that given the nature of the misconduct it would not be appropriate to impose restrictions on his practice as his deficiencies are not amenable to conditions of practice and there are no patient safety concerns. The Panel also took the view that as the risk of repetition was low, despite the absence of full insight, a Suspension Order would be punitive in nature and disproportionate.

53. The Panel determined that the public interest could be met with the imposition of a Caution Order. It concluded that, given the  distinct circumstances of this case, no restriction of the Registrant’s practice is necessary and that a Caution Order would send a signal to the Registrant, the profession and the wider public that irrespective of the failings of others, registered professionals are required to uphold high standards of conduct and behaviour at all times. The Panel was also satisfied that a Caution Order is proportionate and strikes a proper balance between the need to mark the gravity of the Registrant’s actions and his long and unblemished career together with the significant mitigating circumstances. Furthermore the public interest is best met in these circumstances, by not depriving the public of an otherwise competent and dedicated practitioner.

54. The Panel determined that the Caution Order should be imposed for one year to mark the seriousness of the Registrant’s conduct and to maintain the public’s confidence in the regulatory process.   

55. The Panel decided that a Caution Order of more than one year would be disproportionate in all the circumstances of this case.

Order

That the Registrar is directed to annotate the register entry of Mr Damian Sherman with a caution which is to remain on the register for a period of 1 year from the date this order comes into effect.

Notes

The order imposed today will apply from 11 May 2018.

Hearing History

History of Hearings for Mr Damian Sherman

Date Panel Hearing type Outcomes / Status