Mr Edward McGarrell
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(as amended at Substantive Hearing):
Whilst registered as a Paramedic:
1. On 31 October 2008 at Glasgow Sheriff Court you were convicted of an offence under section 3 of the Road Traffic Act 1988;
2. On 7 February 2014 at Paisley Sheriff Court you were convicted of an offence under section 3 of the Road Traffic Act 1988;
3. On 20 January 2015 at Glasgow Sheriff Court you were convicted of an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010;
4. On 22 May 2017 at Glasgow Sheriff Court you were convicted of:
a) two offences of assault (domestic);
b) one offence of assault to injury;
c) two offences under section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010;
5. You did not declare your conviction at particular 1 to the HCPC:
a) at any time; and/or
b) when you renewed your registration in 2009, 2011, 2013 and/or 2015;
6. You did not declare your convictions at particulars 2 and 3 to the HCPC:
a) at any time; and/or
b) when you renewed your registration in 2015;
7. Your actions at particulars 5 and/or 6 were dishonest;
8. Your actions at particulars 5 and/or 6 and/or 7 constitute misconduct;
9. By reason of your convictions at particulars 1-4 and/or your misconduct your fitness to practice is impaired.
Proof of Service and Proceeding in absence of the Registrant
1. The case for the Health and Care Professions Tribunal Service (the “HCPTS”) was presented by Mr Alexis Dite of Kingsley Napley. The Registrant was not present or represented.
2. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules. The Panel thereafter considered Mr Dite’s application to proceed in the Registrant’s absence. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel has been advised that the only contact from the Registrant was in response to an email sent by Kingsley Napley, Solicitors on 13 March 2018 when the Registrant spoke to a member of staff at Kingsley Napley and was provided with a password to enable him to access the bundle. It is therefore clear to the Panel that the Registrant is aware of today’s hearing. He has not asked for an adjournment of today’s hearing and the Panel has no reason to believe that he would attend at a future date if the matter were adjourned. The Panel has therefore concluded that in all of these circumstances, the Registrant has voluntarily absented himself and that it is in the public interest to proceed with this hearing in the Registrant’s absence
Application to amend the Allegation
3. The Panel considered Mr Dite’s application to amend particular 5b) of the allegation by adding “2011, 2013 and/or 2015” at the end of the particular, to delete particular 5c) and to amend particular 9 of the allegation by inserting the words “at particulars 1-4” after the word “convictions”.
4. Mr Dite advised that the proposed amendments did not substantially alter the case against the Registrant and better reflected the evidence. Mr Dite advised that the Registrant had been on notice since 21 February 2018 and had not provided any response to that notice.
5. The Panel considered the submissions of Mr Dite together with the advice of the Legal Assessor. The Panel was satisfied that the amendments better reflected the documentary evidence within the bundle. The Panel was also satisfied that they did not cause any prejudice or injustice to the Registrant and therefore agreed to grant the application.
6. The Registrant is a paramedic registered with the HCPC. In February 2016, the HCPC received an anonymous referral stating that the Registrant was subject to a police investigation and that he had failed to declare previous convictions to the HCPC. Police Scotland informed the HCPC that the Registrant had been convicted of several offences between 2008 and 2017 and provided Certificates of Conviction.
Decision on Facts and Grounds
7. The Panel considered the submissions by Mr Dite and the advice of the Legal Assessor. The Panel also had sight of four extract convictions dated 16 December 2016, 21 December 2016, 21 December 2016 and 10 July 2017 respectively, each signed by an Officer of the Court. The Panel accepted these as proof of the convictions and of the findings of fact upon which they was based in terms of rule 10(1)(d) of the Conduct and Competence Committee Procedure Rules. The Panel is therefore satisfied that the facts and grounds of particulars 1, 2, 3 and 4 have been proved.
8. The Panel also considered the statement of Sammuel Yemane, Registration Manager within the Registration Department of the HCPC which was supported by a copy of the Registrant’s renewal form dated 8 June 2009 in which he confirms that there have been no changes to his good character. In addition the Panel has had sight of a screenshot of an internal communication log from HCPC which shows that the Registrant completed and submitted renewal forms online on 27 June 2011, 15 July 2013 and 9 July 2015. The Panel has also had regard to Standard 4 of the HCPC Standards of Conduct, Performance and Ethics which states that “…you must let us know straight away if you are convicted of a criminal offence, receive a conditional discharge for an offence, or if you accept a police caution.” The Panel has also considered the Registration Renewal Guide which was sent to the Registrant on each occasion when he was required to renew his registration. It is clear from this document that in making a professional declaration, the Registrant was confirming that there was no change to his good character and that this included any conviction or caution.
9. The Panel is satisfied from Sammuel Yemane’s statement and the supporting documentation that the Registrant failed to declare his conviction at particular 1 at any time and when he renewed his registration in 2009, 2011, 2013 and 2015. In addition the panel is satisfied that the Registrant failed to declare his convictions at particulars 2 and 3 at any time and when he renewed his registration in 2015. The Panel is therefore satisfied that the facts of particulars 5 and 6 have been proved to the requisite standard.
10. The Panel next considered whether the Registrant’s actions in particulars 5 and 6 were dishonest. In considering this issue, the Panel has applied the test set out in the case of Ivey v Genting Casinos Ltd. In both particulars 5 and 6, it is clear to the Panel that the Registrant was aware from the Standards of Conduct, Performance and Ethics and from the Renewal Guide that he should have declared his convictions and that he failed to do so in order to conceal these convictions. The Panel has therefore concluded that reasonable and honest people would consider his behaviour to be dishonest. The Panel is therefore satisfied that his actions in each of these particulars amount to dishonesty.
11. The Panel next considered whether the Registrant’s actions in particulars 5, 6 and 7 amount to misconduct. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Mr Dite on behalf of the HCPTS. The Panel has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired and accepted the advice of the Legal Assessor.
12. The Panel has found that the Registrant has acted dishonestly on a number of occasions and failed to declare his convictions despite being provided with very clear instructions as to the requirement to do so. As a paramedic, the Registrant must behave with integrity and honesty in order to maintain confidence in the profession and justify the trust of service users. The Panel is of the view that the Registrant’s conduct in particulars 5, 6 and 7 fell far short of what would be proper in the circumstances and breached the following standard of the HCPC’s Standards of Conduct, Performance and Ethics:-
• 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.
13. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in particulars 5, 6 and 7 is serious and amounts to misconduct.
Decision on Impairment
14. The Panel next considered whether the Registrant’s current fitness to practise is impaired by his convictions set out in particulars 1, 2, 3, and 4 and by his misconduct in respect of particulars 5, 6 and 7. The Panel considered the submissions of Mr Dite, who drew the Panel’s attention to the circumstances of the convictions. Mr Dite advised that the convictions included two offences of careless or inconsiderate driving; domestic assault of his partner by seizing hold of her arm and dragging her from a motor vehicle and compelling her to enter a motor vehicle being driven by the Registrant; stalking his partner on various occasions between 13 October 2010 and 29 February 2012 by repeatedly attending at her home address and place of work, repeatedly making telephone calls and sending text communications to her and her daughter and repeatedly threatening to harm himself in an attempt to resume their relationship. Mr Dite also advised the Panel that the second domestic assault involved kicking his partner on the body and occurred while she was holding her two year old son and that the third assault was on his fifteen year old daughter and involved kicking her on the body. Mr Dite also stated that the second offence of stalking related to a different partner.
15. The Panel is aware that the question of impairment is a matter for its own professional judgement. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the offences and the critically important public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect.
16. The Panel has first considered the personal component of the Registrant’s conduct. The Panel has noted that there has been no evidence from the Registrant as to any insight, remorse or remediation. This leads the Panel to conclude that there is a risk of repetition. Taking this into account and taking account of the very serious nature and gravity of the offences, the Panel is satisfied that there are concerns in relation to the personal component of the Registrant’s actions. In the Panel’s view, there is a risk to the public from a health professional who has been convicted of offences of this nature, particularly those contained in particulars 3 and 4.
17. In respect of the critically important public policy issues, the Registrant’s actions clearly bring the profession into disrepute and undermine public confidence in the profession. As a paramedic, the Registrant works with vulnerable service users and is in a position of trust. His actions which include his conduct found proved by the convictions and his subsequent dishonest actions in failing to disclose those convictions have very clearly undermined that trust. The Panel has concluded that given the nature and circumstances of the Registrant’s convictions, the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. The Panel has therefore concluded that the Registrant’s fitness to practise is currently impaired on both the personal and public components and the allegation is therefore well founded.
Decision on Sanction
18. The Panel has heard submissions from Mr Dite on the issue of sanction. The Panel has also accepted the advice of the Legal Assessor and had regard to the HCPC Indicative Sanctions Policy.
19. The Panel is aware that the purpose of sanction is not to be punitive and that they must consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.
20. The Panel can find no mitigating factors in this case. The Panel has considered the main aggravating factors which are the repeated dishonesty over an extended period of time; the very serious and violent nature of the offences against his partner and his fifteen year old daughter and stalking of two different females.
21. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a caution would not be appropriate given the very serious nature and circumstances of the convictions and a finding of dishonesty. The Panel also considered that a Conditions of Practice Order would not be appropriate given the nature of the Registrant’s conduct and the fact that the conduct took place outside of a professional setting and also given the finding of dishonesty.
22. The Panel next considered a suspension order. In terms of the Indicative Sanctions Policy, a suspension order is appropriate where the Panel considers that a Caution Order or Conditions of Practice Order would provide insufficient public protection and where the allegation is of a serious nature but there is a realistic prospect that repetition will not occur. However the Panel has found that in the absence of any evidence of insight, remorse or remediation, there is a risk of repetition, particularly where there has been a persistent pattern of violent behaviour against different individuals and the offences of stalking. While a Suspension Order would be sufficient to provide the necessary degree of public protection in that the Registrant would not able to practise during this period, the Panel is of the view that, given the number and nature of the convictions, a Suspension Order would not be sufficient to address the critically important public policy issues.
23. The Panel next considered a Striking Off Order. The Panel is of the view that the nature of the Registrant’s convictions are such that they are incompatible with ongoing registration, in that members of the public would have serious concerns if a registered health professional who is in a position of trust were able to return to practise with convictions of this nature and repeated acts of dishonesty. The Panel has therefore concluded that given the nature and gravity of the convictions, a Striking Off Order is the only sanction which would adequately address the wider public interest considerations in terms of maintaining public confidence in the profession and declaring and upholding proper standards of conduct.
ORDER: The Registrar is directed to strike the name of Edward McGarrell from the Register on the date this Order comes into effect.
Interim Order Application
Mr Dite applied for an Interim Suspension Order for a period of 18 months on the grounds that it was otherwise in the public interest given the findings of the Panel. The Panel considered Mr Dite’s submission together with the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Interim Orders. The Panel agreed to consider the application for an interim order in the Registrant’s absence, having noted that he was warned of the possibility of such an application being made in the notice of hearing that was served on him on 22 February 2018. The Panel considered that such an Order was both necessary for the protection of the public and otherwise in the public interest given the risk of repetition identified and the wider public interest concerns.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
History of Hearings for Mr Edward McGarrell
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