Mr Paul Hardy

Profession: Paramedic

Registration Number: PA06536

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 14/06/2018 End: 16:00 15/06/2018

Location: Radisson Blu Hotel, The Gasworks, 3 Cromac Place, Ormeau Road, Belfast, County Antrim, BT7 2JB

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

On 16 April 2016, while registered as a Paramedic with the Health and Care Professions Council, you:

1. Instructed/requested Person A and/or Person B to remove their upper clothing and/or bra for you to:
(a) conduct a chest examination; and/or
(b) assess/approve them as fit to participate in a boxing match

2. Your actions as described in paragraph 1(a) were not clinically justified.

3. Your actions as described in paragraph 1(a) were sexually motivated.

4. Your actions as described in 1(b) were outside the scope of practice of a paramedic.

5. The matters as described in paragraphs 1 – 3 constitute misconduct.

6. The matters as described in paragraph 4 constitute misconduct and/or lack of competence.

7. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Background

1. At the time of the Allegation, the Registrant was employed as a Paramedic.  He attended a white collar boxing match (“the event”) on 16 April 2016 in order to provide paramedic cover. Prior to the event the Registrant asked all female participants who had not had a medical examination conducted by their own General Practitioner (“GP”) to remove their upper clothing and bras so that he could conduct a chest examination.

2. The Panel heard from five live witnesses Persons A and C, Mr Girvan (a character witness), and two experts witnesses, Mr Jackson and Mr Murdoch. 

3. The Registrant responded to the Allegation.  He admitted charge 1 (a).  He denied the remainder of the charges, being 1 (b), 2, 3 and 4.

HCPC Opening

4. Mr Ferson for the HCPC opened the case and set out the background.  He summarised the HCPC case that the examination conducted by the Registrant was not clinically justified, was sexually motivated and was outside the scope of his practise in respect of two female participants in the event.

Witness - Person A

5. Person A took the oath and gave evidence.  She confirmed that the contents of her witness statement were true to the best of her knowledge and belief. She told the Panel she was an orthoptist.  

6. The witness told the Panel that she understood it was an advised step for all participants to have a chest examinations before a fight. She told the Panel that the Registrant had said there were forms to fill in to confirm she was fit and healthy to fight. She had not seen her GP to certify she was fit and healthy as she had not been unwell. She informed the Panel that when she was told to remove her top and bra the Registrant made comments saying “there are a lot of you to prove that I’m not doing something wrong” and he also mentioned court. She said she thought it was rather flippant but there was nothing specific about his demeanour that she recalled. She said she thought it “strange” that the Registrant had made those comments in the circumstances. 

7. The witness told the Panel that her chaperone was present and that she was standing as he used a stethoscope. She understood the Registrant was looking for chest asymmetry. She said it was not a long medical examination and she recalled that the Registrant had not tested her pupils. She told the Panel that she later discovered that another boxer had refused to remove her bra but she had participated in the boxing match. She said that the medical did not take long. Her blood pressure had been tested before, but it was not done on this occasion. She did not have her mouth checked either. She said as an Orthoptist she was interested in how people tested pupils. She also said that she had removed her nail varnish expecting a clip (pulse Oximeter) to be used as had been done by the Registrant in 2014.

8. The witness said that she had thought the examination was required for her to safely compete in the event, but afterwards thought that the chest examination was not right because of her previous experience in other sports. She confirmed that she had then made a referral to the HCPC. She explained she had been keen to participate as this was a local charity event. She said she was nervous, “hyped up” and had undertaken weeks of training and the only person that could stop her from boxing was the Registrant.

9. Mr Davidson for the Registrant apologised to the witness on behalf of his client. In response to questions from Mr Davidson, the witness confirmed this was an amateur, charity event. She explained the rules did not allow blows to the upper body but that you were at risk of injury. The witness confirmed that she had not seen her GP before the event. She told the Panel that when she was examined by the Registrant he was the only male in room with all the female boxers, about 8 or 9 women. She understood the Registrant was a Paramedic and not a doctor. She said the comment from the Registrant about court was not said in a serious manner, but she said the fact is, it was said. She said she did not know the Registrant well enough to know if the tone was flippant.

10. The witness said she was the first to be checked by the Registrant and a chaperone had been present, shoulder to shoulder. She was facing the Registrant, facing away from the others in the room.  She confirmed that the Registrant had not said anything sexual to her or made any sexual innuendo during the examination. She told the Panel that the Registrant did not touch her at all and the examination lasted a few minutes in total, with the examination of her chest taking about one minute.  She confirmed her bra was totally removed, not simply lifted.  She accepted that the Registrant did not say she required the examination in order to box or provide her with any paperwork.  She said that when asked to submit to examination she had done so as she believed there was a reason for it, to allow her to box, but she accepted that the Registrant did not say that to her.  She did not know whether or not Mrs Hardy, the Registrant’s wife, had been present in the room during the chest examinations.

11. On re-examination, Mr Ferson asked if the witness had seen Mrs Hardy in the room during the chest examination.  The witness said she did not recognise Mrs Hardy, who was present in the hearing room, and did not know if she had been present during the chest examination.

12. In response to Panel questions, the witness told the Panel that had been informed by her trainers that she needed a medical before she could box. There were no specifics provided.  She stated that she was fit and healthy and was confident she could box and so did not need a GP medical. She had not been told at the earlier 2014 charity event she had participated in, where the Registrant had also been the Paramedic that should get a GP medical.  At the 2014 event the witness recalled a medical examination where she did not have to remove any clothing and that she had signed a declaration.  She had not been asked by the Registrant about her medical history in 2014.

13. At the April 2016 event, the witness said there had been a group introduction by the Registrant. In the examination room, the witness did not recall the Registrant explaining anything more. She said that three of the boxers, including her, did not have a GP letter and so they had to sign a waiver in respect of their fitness.  She thought the other person who had refused the examination did not have a GP letter.

14. As to the examination, the witness told the Panel that the Registrant asked her to take off her boxing vest and her two bras to check for chest symmetry.  She was asked to take a few breaths in and out and the Registrant listened to her heart. The witness said that afterwards she had discussed the chest examination with her family and she had told them she had been asked to take her bra off. She later discussed the issue with the other boxers and they also reported that they had also been asked to take off their bras. She had not raised with the Registrant why the examination was different from that in 2014. 

15. The witness told the Panel that the examination took place in quite a big room. She said she was facing the Registrant and the rest of the participants were behind her. The witness stated that the Registrant had asked for someone to chaperone and thought he had told the chaperone to stand in that position but no further instructions were given in that regard. The chaperone was known to the witness and the witness asked her to stand with her. The chaperone stood shoulder to shoulder facing the other way, and she recalled the Registrant had asked the chaperone to face the other way. The witness stated that the group behind her were just milling about.  She had not faced the rest of the group with her bra off.

16. The witness said she had been asked to sign a waiver to declare that she was medically fit to box and the Registrant was not asked to countersign that waiver.

Witness – Person C

17. Person C took the oath and gave evidence.  She confirmed that the contents of her witness statement were true to the best of her knowledge and belief.

18. The witness told the Panel that the person who had organised the boxing event had told them on the night to all go to the room to be examined before they met the Registrant.  She explained that they had all been required by the organisers of the event to have a medical to make sure they were fit to box.  A few participants had not had time to get the required medical from their GP and they were told they would need a medical from the Registrant to make sure they were fit to box. Those without GP medicals were told by the Registrant they had to remove their tops and bras to be checked for breast symmetry. She recalled the Registrant had said this was required to be done before they could fight.

19. As to the comments made by the Registrant about being taken to court, the witness said that the Registrant had made these comments when Person A had stood up for examination.  The witness had said she was standing next to Person A at that time, shoulder to shoulder facing away from the Registrant. She said the comments were made in a “jokey” way as he had laughed. The witness confirmed that the Registrant examined her with her top off, but not without her bra. She referred to her email to the HCPC on 26 May 2016 and the discussion about the elements of the medical examination that were not carried out by the Registrant, such as blood pressure.  She had not queried that at the time with the Registrant.

20. In response to Mr Davidson for the Registrant, the witness confirmed that she had not been required to remove her bra as she had had a GP medical. It was her evidence that all she was asked to do was raise her arms. The witness said she knows Person A and Person B. She said she had not discussed the case with either person.  She did not report the Registrant to the HCPC and had learned of the referral from an email.  She had also been told by Person A that she was making a complaint. The witness did not make a complaint.  She had acted as Person A’s chaperone at the time, and had also chaperoned the two boxers who had not had a GP medical. The witness did not chaperone any other participants and was not present for all of the examinations. She recalled there were about six female bouts so there had been twelve boxers. She had left the examination room after about six examinations had taken place.

21. The witness recalled that eyesight, pulse, blood pressure and breast examination had all been on the list that the event organisers had provided to participants in advance.  She said this list was in front of the Registrant when he did the examination at the event. The Registrant had not carried out some of the checks, although the event organiser had said that heart rate and blood pressure would be checked. The witness said that at the event they were all told that the medical was required before they would be allowed to box. The witness recalled that both the Registrant and the organiser had told the participants they all had to have the medical in order to be allowed to box.

22. The witness confirmed the Registrant was the only male in the examination room.  The witness said Mrs Hardy was not present. She had chaperoned and she did not recall the Registrant using any sexual explicit language or sexual innuendo. She told the Panel that some of the participants had said they had felt uncomfortable removing their bras. She recalled Person A had felt uncomfortable at the time of the examination.  The examinations took a few minutes and no concerns had been made known to the Registrant at the time. Some of the participants were uncomfortable but felt that they had to comply in order to be allowed to box, as both the organiser and the Registrant had told them that was the position.

23. In response to Panel questions, the witness confirmed that the event organiser had provided her with a pack containing a list for her GP.  The GP then assessed her and the witness said a form was completed by the GP and she handed that to the event organisers at the event. She confirmed that she chaperoned four boxers, two of whom were told to take off their bra. When she chaperoned, the witness said she understood that only those boxers who did not have the GP letter had been required to take off their bras.

24. The witness referred to her email to the HCPC on 26 May 2016.  She confirmed the Registrant had, after the fight, asked her if she was alright and she had said she was.  One of the boxers had told her that she had pains in her chest and had told her she had seen a doctor and may have to go to A&E.  The witness thinks that she had meant the Registrant by referring to “Doctor” as there was no Doctor present.  The witness said that the examinations were only 2 or 3 minutes per person, whether or not they had to remove their bras.

25. The witness said she had not chaperoned before.  She said she had been told it was to maintain the boxer’s dignity and she did not watch what the Registrant was doing as she was facing away.  She said the organiser told them weeks before that they had to get a medical before they could fight and that was repeated by the organiser on the night. She confirmed that she also recalled the Registrant repeating that on the night of the event.

26. The Panel accepted as evidence the written statement of Person B. It was accepted by both parties that this was hearsay evidence and that it was a matter for the Panel to attach such weight to it as it considered appropriate.

Witness – Michael Jackson

27. The witness took the oath. He was referred to his expert report and confirmed his signature and adopted the report as his evidence. He is a Consultant Paramedic and is currently employed by the North West Ambulance Service as the Assistant Medical Director. He is registered with the HCPC as a Paramedic.

28. The witness explained that the reference in his report to a “medical practitioner” means a person registered with the General Medical Council, not a Paramedic.   The witness was asked about the Registrant’s position in regard to carrying out a visual examination of the chest.  He said a visual examination is only one element of a chest examination. This would require one to place hands on the chest to measure expansion and listen to chest sounds with a stethoscope on various places on the chest, the back and under the arms.  None of that would require the removal of underwear. He referred to his report in that regard.

29. When asked if there were any circumstances where all clothing would require to be removed, the witness said that would only be where there was serious injury or illness, such as a cardiac arrest. The witness was referred to his addendum report dated 18 December 2017. He explained that in severe trauma it was necessary to remove all clothing to examine the whole area to check for injuries.  Where there was illness, such as a cardiac arrest, full access was required and clothing would be removed. The witness said that those were the occasions where all clothing would have to be removed.  In addition, an isolated injury to the chest would require removal of clothing to treat the injury.  He said that it was only in “extremely rare circumstances” that all clothing would need to be removed.

30. If clothing needed to be removed, apart from trauma, the witness told the Panel that consent would be sought and an explanation provided as to why it was necessary. Where possible, a chaperone would be present, ideally another health care professional, but sometimes a friend or family member.

31. The witness was referred to the Joint Medical Statement prepared in consultation with the medical expert for the Registrant, Mr David Murdoch dated 8 March 2018.  He confirmed that it was agreed between the experts that as a registered Paramedic, the Registrant would be “suitably trained to conduct a chest examination”.

32. The witness told the Panel that the circumstances at the event were not those where it was necessary to remove the patient’s bra. He said these were fit and healthy people and that it was beyond the scope of the practice of a Paramedic to carry out these examinations in these circumstances.  Even if an examination was required, his opinion was that there was no need to remove a bra in these circumstances.

33. As to Mr Murdoch’s different view on this issue, the witness said he understood that Mr Murdoch had given an example of having to request the loosening of a bra from a patient as a result of an unusual finding from physical examination.

34. The witness explained the role of a chaperone is to be an independent observer to protect both parties that is the examiner and the patient. Ideally it would be another health professional, but sometimes outside a hospital environment it may be a friend or family member. The Paramedic would explain the elements of the examination at each stage of the process. 

35. The witness explained that the chaperone needs to be in a position to view the examination of the patient.  If they could not see the assessment, the chaperone is in the wrong position. He explained the training of Paramedics in respect of chaperones had developed over the last few years.

36. The witness explained that modesty drapes were used when clothing is removed, but that did not justify an unnecessary examination.  Drapes were often used in a clinical setting.

37. The witness was cross examined by Mr Davidson, for the Registrant. The witness said that he did not recall seeing the letter from the Registrant’s solicitors to the HCPC dated 15 September 2017 which set out the Registrant's position on the allegation.

38. Mr Davidson told the Panel that he had no experience of white collar boxing events, but he had attended many professional boxing events. He was not aware of, and had not found, any regulations or guidance in respect of white collar boxing events. He agreed that such events were effectively unregulated. He understood that it was for event organisers to arrange appropriate medical cover, and that the Registrant had no responsibility for organising the event. He said he was not aware that at such an event Paramedics were required to examine boxers in order to allow them to participate.

39. The witness accepted that there was a risk of injury for participants.  If there was a pre-existing injury that might increase the risk injury, as would piercings, metal work or studs on the breast, breast augmentation or a chest infection. 

40. The witness agreed that as a registered Paramedic, the Registrant was suitably trained to carry out a chest examination and can also assess a patient for underlying medical conditions before an event. It was justified for the Registrant to carry out a chest examination, however, he stated that both himself and Mr Murdoch agreed in their joint medical expert statement, that to use this chest examination to approve a participant as fit to box, was outside the scope of a Paramedics practice.

41. When asked about the need to assess for any breast piercings or implants, the witness stated that these were all questions that could be asked of the patient. He said that only if there were abnormal findings in a normal examination, would a further examination without clothing be justified.  One would ask questions first and it would not be justified to examine further without asking questions.

42. As regards a chaperone, the witness said one must be present and observe the examination. If that was the case, he took no issue with the arrangements. As to use of drapes, one would never expose both breasts at the same time. If one needs to expose the breast, the witness said that one would keep one breast covered at a time.

43. The Panel had questions for the witness. The witness was referred to the Joint Expert Statements and to the reference to a “detailed physical examination” of the chest.  He said that such an examination would take 10 to 15 minutes.  It would include assessments of pulse and blood pressure and he would also expect auscultation, percussion, visual assessment, chest expansion, chest symmetry, jugular vein and heart apex.  These were all part of a detailed chest assessment. 

Application to Adjourn

44. Mr Davidson requested an adjournment to avoid the breaking of the Registrant’s evidence over the long bank holiday weekend. He required to consult with his client and he invited the Panel to adjourn until Tuesday morning. Mr Ferson submitted that he did not oppose the application.  The Panel took the advice of the Legal Assessor who reminded it of the interests of justice, the need to act fairly and to be mindful of the need for expedition and the public interest.

45. The Panel carefully considered the application.  It balanced the interests of the Registrant with the importance of the expediency of these proceedings.  It was mindful that fairness to the Registrant is crucial.  Should he not complete his evidence today, the Registrant’s evidence will be broken over a bank holiday weekend.  That is undesirable. In addition, Mr Davidson has told the Panel he requires an opportunity to consult with his client before he gives evidence and that would take some time. Further, it was anticipated that there may be travel difficulties due to the upcoming bank holiday weekend.  The Panel is also mindful that the Registrant’s expert is not, in any event, available to give evidence until 21 March 2018, being Wednesday of next week. This had already been agreed with the HCPC.

46. In all the circumstances and balancing fairness to the Registrant with expediency, the Panel consider that fairness to the Registrant does require that the proceedings be adjourned until Tuesday 20 March 2018. There will be full hearing days next week starting at 9.30am promptly.

The Evidence of the Registrant

47. The Registrant affirmed.  He was referred to his CV in the bundle. He told the Panel that he retired as a Paramedic in 2016, but had a private practice and remains registered with the HCPC.  He had operated as “Event Medics” but ceased to operate as soon as the current matter was referred to the HCPC. He had been continuously employed prior to this matter.  He told the Panel that he has never previously faced any charges of a sexual nature in any area of his life. 

48. The Registrant attended the event as a private Paramedic. He did so having been contacted by the event organiser. There was no written contract or agreement in place, it was all verbal. He said there are no rules or regulations covering white collar boxing. He was not aware of the number of participants until the night of the event and had no medical information on any of them. He said he was asked to provide paramedic cover for the boxers.

49. The Registrant said that he had discussed the GP issue with the organiser and he had indicated to her that it was advisable that participants saw their own GP before the event.  There was no need for medical certification for this event.  He said he was not asked to certify the boxers as medically fit to box.

50. On the evening of the event, the Registrant said he wanted to get baseline observations to assist if there were any injury. He was made aware a few days before the event that some participants had not seen their GPs. He was not asked by the organisers to “pass” or certify those participants as fit to box, as that was not his remit at the event and was not necessary.

51. The Registrant said that his wife accompanied him to the event, but not in any official capacity.  There were no specific facilities, just male and female changing rooms. There were 8 to 10 females in the changing room, all were boxers. The organiser was also a participant.  There were no other males present in the changing rooms when he carried out the examinations.  He said he did some initial checks on all the boxer, such as pupils and knuckles. He explained that after the checks some of the boxers left the changing room.

52. The Registrant referred to and explained the “Eventmedics” form that he designed and had supplied for the event.  It was designed to bring up matters such as mental health or epilepsy and he had provided it in advance to the event organiser.  It was intended to be completed by all male and female participants. He did not issue a certificate to the boxers as to their fitness to box.

53. The Registrant attempted to explain the letter from his solicitor to the HCPC on 21 December 2016.  He said that the letter was issued before there was any allegation that he had certified participants as fix to box which was outside his scope of practise. He said he was devastated to learn that there was a complaint of a sexual nature. He said he had always tried to be professional and “I put the College of Paramedics profession at the forefront of what I can do”. He said that the letter did not use the correct terminology and did not reflect what he meant.

54. The Registrant explained that those participants who did not have the GP letter had a more extensive examination. He explained that he wanted to eliminate any major issues that might arise.  He wanted to check that the female boxers did not have any implants or piercings and he said he explained this to the boxers as he did the examination.  He had requested, not instructed, the removal of the bra.  The boxers did not wear any breast protections, as happens in professional boxing. He said he did not ask about these issues as there was a notoriety of participants not telling the truth at white collar boxing events.

55. The Registrant did not recollect the examination as described by the witnesses. He said both the boxer and the chaperone were facing him during the examination and the chaperone did not face away from him.  He did a rib flex test and had used a stethoscope on Person A but he did not touch her breasts at all. He said the boxer’s bras were only lifted for 30 to 45 seconds. The Registrant said one participant pushed her way to the front and was first to be examined. He said she refused to remove her bra.  She was allowed to box after discussion with the organiser and the coach.

56. The Registrant also saw the boxers after the fight and he had a post -fight questionnaire.  There was no physical examination at that stage.

Cross examination of the Registrant

57. The Registrant said that he had an interest in boxing and has over his career covered 5 or 6 boxing matches as a Paramedic.  This was the first time he had ever asked for bras to be removed by participants. He said he had never certified participants as fit to box.

58. The Registrant was referred to his solicitor’s letter to the HCPC Investigating Committee of 21 December 2016. At that time he thought the complaint was only about alleged sexual misconduct but the Registrant accepted that the letter also made clear that the complaint was about whether the examination was clinically justified.  Both experts agreed that approving a boxer as fit to fight was outside the scope of his practice and the Registrant agreed with that.  The Registrant said he had told the organiser it would be prudent to have participants medically examined before the event, but that was not an instruction to the organiser.

59. The Registrant accepted that he had also known that the allegation concerned clinical justification. He said the letter did not properly reflect his position and he said “his head was all over the place” given the sexual motivation allegation. He said he was an emotional wreck and that a close family member also had health issues at that time.

60. The Registrant said the letter dated 21 December 2016 was wrong when it said that he had “authorised” individuals to participate in the event. He said he did not do that. He refuted that meant that he had certified the boxers as fit to box. He said he did no such thing at the event and he referred to his form which does not contain such a statement. He refuted that he had said he had told participants that he was authorising them to take part.  He said the witnesses who had said that had been wrong in their recollection.

61. The Registrant was asked to comment on his change of position after seeking the expert evidence.  He denied that he had changed his position.  He said the first letter misstated his position on the issue of authorising participants as fit to fight. He denied changing his account to fit the evidence. He was referred to the form used at the event. The Registrant explained that he was trying to have the form honestly completed by participants.  The decision on whether they could box was for the organiser, not him. He refuted that he was “approving” the boxers to participate and it was not his intention to do so.  He said he was providing an examination to gather some baseline observations only.

62. The Registrant was asked about the chest examinations. He said that the examination formed part of his baseline observations on two of the participants. The Registrant thought at that time that he had sound clinical reasons to ask the participants to remove their bras.  With hindsight, the Registrant said he thought that his reasoning at that time was a mistake and he had subsequently changed his form for events.

63. The Registrant said he was looking for potential for serious injury such as that which could be caused by a piece of jewellery on the breast.  He could not stop them fighting. He said he had concerns that the boxers would not tell the truth.  With hindsight, he said he should have just asked them about breast piercing or jewellery but he said that he had asked them questions during the examination. He said he was also looking for lumps, bumps or discharge, basically signs of previous injury.

64. The Registrant said he was not doing a chest examination at the event.  He said he was checking for previous injury, or anything that might cause injury.  He was not doing a breast examination such as that which may be done by a GP. The Registrant agreed with Mr Jackson’s expert report which described a chest examination.  The Registrant said that was not what he was doing at the event. He agreed that it was important to explain the examination to the person and to maintain their dignity.  He said that he gave the boxers as much dignity as he could in the circumstances.   He accepted he could have just asked about lumps, bumps, discharge or piercings. He said he had done what he thought was in the best interests of the participant.

65. The Registrant said that he did not need to touch the chest to check for chest symmetry and did not consider it was necessary at that time. He said the witness was wrong when she had told the Panel that some measurements, such a blood pressure, were not taken by him at the time. He said he had explained to all of the participants what he was doing and why. He said he had concerns as the sport was violent.  It was an amateur, unregulated sport where the risk of injury was considerable. He said he thought he was doing the right thing at the time when he asked the participants to remove their bras.  He was seeking to bring some order and protection to the sport and was concerned that the female boxers were not wearing breast protectors. He accepted that Mr Jackson had not referred to this issue when giving evidence.

66. On the issue of chaperones, the Registrant thought that they were to ensure there was no impropriety.  He said they ought to stand to the side of the person being examined and face the same way.  He said that the two witnesses recollection had diminished in that regard.  He was sure that the chaperone was facing him during the examinations. He did not understand that the chaperone had to watch the examination, as they would not know what was right or wrong in the examination.  He accepted he had not used drapes during the examination.  He had done it on the night of the event and had not expected to do so. 

67. The Registrant denied that there had been sexual motivation in the examination. He now regrets the decision to examine and he should just have questioned the participants. He said that he did not recall making the comment about witnesses and taking him to court. He said he had never made those comments, they were not something he would normally say and had no recollection of saying them. He could not say why the witnesses had said that.

68. The Registrant explained that he had after the HCPC referral, changed the form that he used at boxing events. The form now made reference to breast lumps or discharge.  He said he had just been trying to do his job well and protect the participants. He said he admitted that the breast examination was a mistake and he would not repeat it, nor be involved in white collar boxing again. There was no re-examination.

Panel Questions

69. The Panel questioned the Registrant. The Registrant explained that he was concerned about the white collar boxers not telling the truth based upon his previous experience when asking participants to complete forms.  Some had lied on the forms. He said he had been prompted to ask the boxers to remove their bras as he had wanted to protect them. He said at previous events he had found that the boxers had not disclosed matters and recalled one female boxer who had worn jewellery he had not noticed until after the fight.  He had made the decision at the time and said he was probably “on the back foot” at the time.  He had thought it was the right thing to do, but now sees that it was not.

70. The Registrant told the Panel that he had covered some concerts and has also attended a football match as a Paramedic.  He had not been given any specific instructions or guidelines at those events. He had tried to bring his experience into the content of the form he had designed and used at the event. He had tried to deal with the situation in order to protect the fighters.  Objectively, despite it being intended to develop his practice, the Registrant did not think he had moved away from his core role as a Paramedic at the event.   

71. The Registrant accepted that breast lumps and bumps could not be detected without a full breast examination. He said he was only looking for obvious deformity with a visual examination. He accepted that, with hindsight, there was an inference in the form that he had used at the event that he was certifying the boxers as fit to fight, although he was not.  He recalled the breathless boxer after the event.  He had spoken to her and she had declared on the form that she was an asthmatic. She was hyperventilating and her chest pain was alleviated when she used her inhalers.

72. The Registrant recalled examining the older of the three female boxers first.  He explained the method he had used for taking blood pressure using a wrist band.  The Registrant said this was not an accurate method, but was “good enough” for this event that he was not aware that the female boxers had felt uncomfortable during the examination, but he now accepted that he should have.

73. As regards the issue of the chaperone, the Registrant said he had no experience of the role of the chaperone but he understood that it was to ensure a girl doesn’t feel uncomfortable and his actions were not appropriate. When asked further questions by the Panel he said he had used a chaperone in a situation with a child or a female, but he did not know about the particular duties or proper position for a chaperone. He said the chaperones at the event had been facing him and they could see what he was doing. He had not told the chaperone to stand any particular way. The Registrant did not precisely recall the details. 

74. The Registrant said his wife could see him, as she was in the room, but she could not see the examination.  He said that he had explained to the event organiser he would need a chaperone. The event organiser said she would arrange that.  The organiser, who was also a participant, did most of the chaperoning. He said he always used a chaperone at female boxing events. The Registrant had not planned to carry out the breast examination and had made the decision in the changing room at the event. 

75. The Registrant said that all the participants who had a GP letter were also checked by him, and that was before he did the examination on those who did not have a GP letter. The Registrant confirmed that he did not recall making the comments and so was very sure he did not make the comments about the court before the examination.  He accepted that some of the examinations he did were perhaps the same as those already done by the GP, but he understood that had been about 6 - 8 weeks before the event. 

76. On the post-fight examination, the Registrant explained that it consisted of a series of questions to see if the boxer was orientated and was not injured or concussed. It was not a routine assessment.   The Registrant confirmed that he had tried to carry out the examinations as quickly and efficiently as possible and he accepted that the breast examination was a significant change. Before asking the boxers to remove their bras the Registrant said he explained that he had asked them he was looking for piercings or chest augmentation. The Registrant said that some of the boxers had signed waiver forms that he had supplied, but the organisers had dealt with that.

Witness - John Girvan

77. The witness took the oath. The witness produced a character reference for the Registrant dated 13 March 2018. He is the Director of a private ambulance service based in Northern Ireland.  He explained he is an ambulance technician and is not registered with the HCPC or other regulator.  He explained the role of the ambulance discharge service his business supplies. 
78. The witness explained that he has known the Registrant for about a year, since early 2017, having met him at various events.  He said that he liked the Registrant’s work and his experience.  He worked with the Registrant in a paramedic and technical crew. He said he had never had any complaints about the Registrant.  He told the Panel that he works with the Registrant 2 or 3 days a week depending on availability. As regards the sexual motivation allegation, the witness said he did not think that was likely.  He said the Registrant frequently deals with female patients, often putting on heart monitors.  He said he had no reason to be concerned about any aspect of the Registrant’s behaviour. He confirmed he had worked with the Registrant since early 2017.
79. In response to Panel questions, Mr Girvan told the Panel that he had met the Registrant at public events where the Registrant was working for a sub-contractor, one was a marathon the other a fireworks display. These were on a self-employed basis and were not part of the ambulance service. There were applicable protocols. He explained he had worked at first aid stations. Mr Girvan said he had seen the Registrant deal with both 3 and 12 lead ECGs with female patients. He explained that they would explain the procedure to the patient before attaching the leads. There have been no complaints or any patients refusing the procedure. He said he had seen the Registrant put the “dots” on the patient’s chest to apply the ECG leads.

Witness – Mr Murdoch

80. The witness took the oath and confirmed that his expert report represented his expert opinion.  He is a specialist Paramedic. He confirmed that he works full time as a Paramedic and has worked in that role since 1991.  He has worked at sporting events, but not at boxing events. He was referred to and confirmed the terms of the Joint Medical Expert Statement which he signed with Mr Jackson.

81. The witness confirmed that he considered the Registrant was suitably trained to conduct a chest examination before a boxing event, as set out in the Joint Medical Expert Statement. A physical examination at any level should be a structured process and that will vary depending on the circumstances.  He confirmed his view was that the chest examination by the Registrant before the boxing event was justified. The Registrant had a duty of care to the boxer and he was required to consider each element, such as the risk of trauma and he could assess the baseline before the boxer was subjected to trauma.

82. As regards to the removal of clothing of the boxers, the witness explained that he considered a chest examination was justified and removing clothing was appropriate. He said from his experience sometimes clothing removal was appropriate.  There were cases where breast augmentation can be denied by a patient, and he considered, on balance, that on this occasion it was justified to remove the bra, but modesty drapes and a chaperone were essential, as well as full consent.  It must, of course, be within the medical professional’s scope of practice. He said it was part of fulfilling the duty of care.

83. Mr Ferson cross-examined the witness. He referred the witness to his report of August 2017. The witness accepted that removal of the bra would be necessary for a detailed examination and that the Registrant had accepted he was not carrying out a detailed examination. In those circumstances the witness accepted that removal of the bra was not necessary. As to lumps and bumps the witness agreed that questions can be asked. He explained that a detailed examination could include issues such as breast augmentation and piercings so he considered that what the Registrant did was a detailed examination. Breast examination was a step beyond chest examination.  He said he had never carried out a breast examination which required touching the breasts. The witness said he has visually examined breasts for lumps and bumps when carrying out a chest examination as a result of an ailment or injury.  

84. The witness confirmed that removal of the bra was rare in a chest examination. He said it was not a black and white situation. If questions were not asked of the patient first about breast augmentation or piercing or the like, the witness agreed that removal of the bra would not be justified.  Some bras can interfere with listening to the chest and that is an issue the witness had experienced. Questioning the patient first, then obtaining consent were required. This would include providing options to the patient prior to the removal of any clothing. Modesty drapes would always be required with male and female patients and one must be very conscious of modesty. He gave evidence that if the patient was not asked the questions they ought not to have been asked to remove their bra. 

85. On the issue of chaperones, the witness agreed they were to protect the patient and the Paramedic.  It was not essential for the chaperone see the examination. He explained that the level of examination, the identity of the chaperone and how to proceed.  If the chaperone were medially trained the chaperone may need to have a better view of the examination. If they were facing away from the patient that may not fully protect the patient and the clinician. Facing away was not typical, but positioning of the chaperone depended on the nature of the examination. If a detailed examination of the breast was taking place, the witness said that it would take seconds. 

86. The witness explained he would ask the chaperone to sit at the patient’s shoulder area.  He said that he would want the chaperone to be physically present to ensure that the patient was reassured, but without the chaperone necessarily looking at the examination. He said that a chaperone standing shoulder to shoulder was sufficient.

87. The Panel had questions for the witness. The witness said a detailed chest examination would include a visual inspection, listening to and palpating the chest wall, checking the integrity of the skin and assessing the shape of the chest wall. It would also include auscultation of the chest that is, listening to the lungs and percussion.

88. The witness explained that Paramedic practice had developed over the years.  He said that as of 2016 as a Paramedic, not a Specialist Paramedic, at this event with female boxers, he would have visually looked at their chests with the bra on.  He would have asked about patient history to rule out underlying issues.  He would have used a stethoscope and, in the vast majority of cases, he would not take the bra off. He said he may ask for the bra to be removed depending on breast size, but the chances were that he would leave the bra in place. If he ever needed to remove the bra there would have to be a discussion with the boxer to explain the rationale. One would make sure there was a chaperone. Verbal or documented consent would be needed, as would draping, which could be improvised.  If the underside of the breast needed to be viewed, the witness explained that you would ask the patient to lift their breast themselves.  

89. As to Paramedic practice in 2016, the witness said he was not aware of any changes in the national guidance on chest or breast examination at or since that time.  He was asked to comment on the form used by the Registrant at the event. 

90. Mr Davidson objected to questions about the form on the basis that they were matters of fact for the Panel. Having taken legal advice from the Legal Assessor, the Panel determined not to proceed with questions about the form.

91. The witness said a detailed chest examination would be tailored to the scope of one’s Paramedic practice and to the circumstances of the event. The witness said one would tailor the amount of percussion to how the patient presents and to issues such as age. 

92. Mr Davidson referred the Panel to the character references for the Registrant in the bundle.  He closed the case for the Registrant.

Closing Submissions for the HCPC

93. Mr Ferson summarised the evidence and the HCPC’s position in his closing submissions.  He invited the Panel to accept the evidence from Person A and Person C as credible and consistent and they had a good recollection of the event. He reminded the Panel that Person A was a registered Orthoptist, registered with the HCPC.  He submitted that the Registrant’s evidence of the event differed from his account submitted by letter to the HCPC before the hearing. He submitted that the Registrant did “certify” or approve the boxers as fit to box, and that was the understanding expressed in the evidence of Persons A and C.  That was outside the Registrant’s scope of practice, and the Registrant accepted that in his evidence.

94. Mr Ferson referred the Panel to the evidence of the experts and the Registrant. He submitted the evidence was clear that the Registrant had not been clinically justified in conducting a chest examination without a bra. The evidence from the experts was that questions could, and should have been asked and that removal of the bra was unjustified.  Person A said in her evidence that she was not asked questions by the Registrant before the chest examination.  

95. On sexual motivation, Mr Ferson referred to the definition of “sexual” in the Sexual Offences Act 2003 and to R v H (2005) EWCA (Crim) 732. He submitted that sexual motivation can be inferred from other evidence. Inappropriate or unnecessary examination was relevant to the assessment of motivation.  Mr Ferson invited the Panel to reject the Registrant’s various explanations for the chest examinations which were not consistent and failed to properly explain why the examination took place. Person A told the Panel she had been uncomfortable about the examination. Both witnesses, Persons A and C, recalled the comments made by the Registrant about the court at the time. The Registrant denied it.  Mr Ferson submitted that the comment was an indication that something inappropriate was taking place. He pointed out the inconsistency in the evidence about the chaperone arrangements. He asked the Panel to prefer the evidence of the witnesses Persons A and C to that of the Registrant. He referred the Panel to the issue of good character evidence and the evidence from Mr Girvan. He noted and agreed with Mr Davidson’s request that the Panel disregard those parts of the references in the bundle that comment on the allegation. 

Closing Submissions for the Registrant

96. Mr Davidson reminded the Panel that the test to be applied is the balance of probabilities.  The Registrant admitted particular 1 (a).  He said that it is admitted that “an examination” took place. The particular did not contain any specifics as to the extent or nature of the examination.

97. Mr Davidson reminded the Panel that the event was unregulated and no rules or regulations applied.  A clinical examination was justified and that was the evidence of both experts. The experts distinguish the issue of passing the boxers as fit from that of the clinical justification. Mr Davidson submitted that responsibility lay with the event organiser and there was no contract setting out the services to be provided by the Registrant.

98. The Registrant’s evidence was that he was present at the event to act in the best interests of the boxers. Person A said she had received no certification that she was fit to box and she had passed herself as fit to box.  Person C said that the Registrant did tell her the purpose of the examination was to pass the boxers as fit to box, but she did not state that in her witness statements.  Mr Davidson submitted that the Panel should prefer the evidence of the Registrant.

99. Mr Davidson said that the earlier letter from the Registrant’s solicitors to the HCPC did not refer to the purpose of the alleged examinations, which was only later added.  On a fair reading, the Registrant’s position was clearly stated at the time of the HCPC initial letter and his reply. He asked the Panel to take account of the Registrant’s personal circumstances at the time.

100. Mr Davidson referred to the form used by the Registrant and submitted the decision to allow a boxer to fight clearly rested with the event organiser and not with the Registrant.  That was clear from the evidence about the boxer who had refused examination but was nonetheless permitted to box.

101. Mr Davidson referred the Panel to the circumstances of the case and submitted that in those circumstances, and given the evidence of both experts, the examination was clinically justified. The boxers were at risk of injury to the chest. He submitted that removal of the bra was also clinically justified. The Registrant now recognises that it was a mistake not to question the boxers.  It was for the Panel to decide whether putting questions alone would have been sufficient in all the circumstances. Mr Davidson said that if particular 1 (b) is established then particular 4 will follow as the examination will be outside the scope of the Registrant’s practice as he and the experts accept.

102. On the issue of sexual motivation, Mr Davidson submitted that the Panel must consider the Registrant’s intention.  He referred to the Registrant’s good character and that he had been a Paramedic since 1993.  He has not previously faced any allegations of sexual impropriety. Even if not clinically justified, there was a logical basis for the examinations carried out in the circumstances. Mr Davidson referred to the chaperone arrangements and that there was no touching. The examinations were very brief. Any comments made by the Registrant were said by Person C to have been made in a “jokey” way, and were not a precursor to anything sexual. The Registrant did not recall making the comments.  Mr Davidson submitted that there was no evidence of sexual motivation.

103. The Chair asked Mr Davidson for clarification as to whether the Registrant was now changing his position in relation to his denial (when giving evidence) of making the comments to a position now of saying he just could not remember making them. Mr Davidson, after speaking with the Registrant, said that he was now saying he could not recollect making the comments. Mr Ferson, on behalf of the HCPC, responded to confirm that his note of the evidence was in accordance with that of the Chair and that the Registrant had denied making them.

Legal Advice

104. The Panel accepted the advice of the Legal Assessor and applied the relevant principles. He advised the Panel on the approach to facts and that the applicable, civil burden of proof, the “balance of probabilities”, rested on the HCPC. The Registrant need prove nothing. He reminded the Panel of the Registrant’s previous good character and that such evidence was relevant in the assessment of the evidence.

105. On the issue of sexual motivation, the Legal Assessor referred the Panel to the case of Arunkalaivanan v GMC [2014] EWHC 873 (Admin).  This case provides helpful guidance on the approach the Panel ought to take to the assessment of the evidence. The Panel would have to be satisfied on the balance of probabilities that sexual motivation can properly be inferred from all the circumstances, if there is no direct evidence of motive.  The Panel was reminded that character evidence was a part of that assessment.

Decision on Facts

The witnesses

106. The Panel carefully considered the live evidence, the witness statement, the expert reports, all the documents before it and the submissions of Mr Ferson and Mr Davidson.

107. The Panel assessed all the witnesses. The Panel found Person A clear, reliable, measured and consistent. It noted that she is a health professional and registered with the HCPC.  She had a good recollection of the event, but accepted where she did not clearly recall. The Panel found that some of the detail she spoke to, such as the removal of nail varnish, tended to strengthen her credibility.  When speaking about the visual examination of her breasts, Person A’s discomfort was evident.

108. The witness, Person C, was clear in her evidence and about her role as chaperone. She said she was aware of Person A’s discomfort during the chest examination. She was credible and reliable and the Panel consider that she had no reason to lie.  She was clear that she was told by the Registrant that he was certifying her as fit to box.

109. Mr Jackson was credible and reliable and he gave relevant professional examples and his evidence was of assistance. 

110. Mr Murdoch was also credible and reliable.  The Panel, however found that he gave medical or trauma examples which were not relevant to the circumstances that the Registrant found himself in at the event.

111. Mr Girvan was credible but he had only worked with the Registrant over the last year. He is not a Paramedic. The Panel found his evidence was credible but was of limited assistance.

112. The Panel considered the witness statement of Person B.  It was mindful that the evidence was hearsay evidence and of limited assistance, but that it did corroborate the evidence about removal of bras by the female boxers.

113. The Panel were concerned about the Registrant’s evidence regarding the clinical need to examine the chest.  His explanations lacked logic and a clear rationale. The Panel considered that the Registrant failed to provide the Panel with a credible rationale for his examinations which appeared to be unstructured. The Panel found that the Registrant was not able to properly and coherently explain his decision to conduct the examination and his explanations for the examination did not make professional sense. 

114. The Registrant did not provide evidence that would have justified the examinations he undertook. He said he had heard of incidents where injuries had been sustained during white collar boxing events, however, he did not satisfactorily explain his lack of consistency in approach to the examinations, or explain the evidence upon which he found that boxers often would not tell the truth. He accepted in his evidence that, with hindsight, his reasons for the examinations were a mistake. He failed to explain why, having attended previous white collar boxing events as a Paramedic, his practice on chest examination had suddenly altered at this particular event. 

115. The Panel noted that the terms of the letters written to the HCPC by the Registrant’s solicitors on 21 December 2016. These set out a position that is inconsistent with the Registrant’s account in his evidence. The Registrant gave evidence that is not consistent with that earlier account as he said in his evidence that he did not assess the participant and did not certify the boxers as fit to box, but in the letter he clearly says that he did so. The Registrant did not satisfactorily explain in his evidence this material change in his position and he appeared to state there was no change in his position.  

116. Where there is an inconsistency in the evidence about the event, the Panel preferred the evidence of Persons A and C to that of the Registrant.

Particular 1 (a) - Proved

117. This particular is admitted by the Registrant and supported by the other evidence heard by the Panel from Persons A and C.

Particular 1 (b) - Proved

118. The Panel considered the Registrant's evidence and the letter from his solicitors of 21 December 2016.  The Registrant said in that letter that he “believed it was his responsibility to ensure that each individual was examined prior to fighting in the same way a GP would to ensure no health problems” and “Mr Hardy authorised the individuals to participate in the examination.” (The Registrant accepted in evidence, in answer to questions from his Counsel, that the word should have said “bout” not “examination” in the letter.) 

119. The letter further states that “Mr Hardy did not instruct, but rather requested, and received fully informed consent from all male and female participants he examined to remove the top half of their clothing so that he could perform the necessary examination to deem them medically fit to participate in the boxing match.” 

120. He further states in that letter “Mr Hardy undertook the examination with the best interests of each participant in mind and performed a clinically necessary examination in order to ensure each participant could safely participate in a boxing match.”  The Registrant made his position very clear in that letter written on his instructions by his solicitors. He significantly altered his position in his evidence before the Panel stating he did not assess, certify or approve the boxers as fit to fight.  He failed in his evidence to credibly explain the serious inconsistency in those two positions.

121. The evidence of Person A and C is consistent and credible.  It accords with the initial response of the Registrant in the December 2016 letter. It also accords with the terms of the “Eventmedics” form designed and used by the Registrant which contains a medical declaration which states - “This form is required to be signed by the Fighter.  Failure to do so will eliminate the Fighter from medical cover and could eliminate the Fighter from the event” 

122. The Panel determined that whilst that language may be somewhat ambiguous, the clear implication is that the form requires to be completed by the boxer to allow or permit the boxer to fight.  That is supported by the clear understanding expressed by both Person A and Person C in their evidence about what the organisers and the Registrant told them at the event.

123. The Panel, taking account of the evidence of Persons A, and C, the “Eventmedic” form, the Registrant’s evidence and his position set out in the December 2016 letter, determined that, on the balance or probabilities, the Registrant did assess/approve Person A and B as fit to participate in the boxing match.

Particular 2 - Proved

124. The Registrant's evidence was that he accepted that the examination without a bra was not clinically justified. The Panel are mindful that both experts said that a chest examination could be clinically justified, but both said that this particular examination without a bra in the circumstances of the event was not clinically justified in the absence of the Registrant first asking questions of the boxers. Both experts took the view that the examination following removal of the bra in the absence of questions to the participant was not clinically justified.

Particular 3 – Proved

125. The Panel considered the case law carefully.  It reviewed the guidance in the cases of GMC v Jagjivan  [2017] EWHC 1247 (Admin) and in Arunkalaivanan v GMC. It was mindful of the need to consider and assess all the evidence, including the character evidence. It considered all the circumstances of the case, particularly those of the event itself at which the examinations took place. It bore in mind that it may find sexual motivation only if it finds on the balance of probabilities that there was sexual motivation from direct evidence or where it can reasonably draw inferences of sexual motivation from the evidence.

126. The Panel considered the definition of “Sexual” in section 78 of the Sexual Offences Act 2003 which states;
“78 “Sexual”

For the purposes of this Part ( [except sections 15A  and 71] 1), penetration, touching or any other activity is sexual if a reasonable person would consider that -

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”

127. The Panel were mindful that section 78(b) is relevant.  It noted that the test is that of a reasonable person and that an act may be sexual without touching. An act may be sexual because of its nature, because of its circumstances, and because of the purpose.

128. The Panel determined that the evidence did not indicate that the Registrant was incompetent or lacked appropriate training.  The Registrant undertook a visual examination of the exposed breasts. The Panel accepted the evidence of Persons A and C that he carried out no auscultation or percussion of the chest.  He did not carry out a consistent examination on all the boxers, such as for chest symmetry, which the experts said would have been clinically justified.  He could not explain or justify the inconsistency. The Panel do not accept the evidence that the Registrant’s wife was present during the examinations. The Panel also noted that the Registrant did not seek to explain the examinations as wrong or incompetent.  It was noted that he was under some time pressure, but the examinations were not time critical.

129. The witness, Person A is registered with the HCPC and is a health care professional.  The Panel found Person A was a credible and compelling witness. In her evidence she said that she had felt that there was something wrong with the examination and she had felt uncomfortable. 

130. The Panel has found that the Registrant did not carry out a clinically justified examination, which he now accepts.  He changed his practice at the event and there was no clinical justification for what he did. He did not carry out a chest symmetry test and did not carry out either a detailed or a consistent examination of the boxers. The Panel determined that this undermines the Registrant’s explanation that he was trying to reduce risk and bring order to what he said was a violent and unregulated sport.  The Panel also determined that the Registrant’s admission that he used an Automatic Wrist Blood Pressure Cuff, which he said was not as accurate, but was “good enough for this event”,  also undermines his explanation that he was trying to improve the safety of what he said was a violent and unregulated sport.  There was no credible evidence that the Registrant has actually taken steps to improve his practice, although he did change the form after the event.

131. The Panel found there was a power imbalance between the Registrant and the female boxers.  This was in part created by the use of the form and is clear from the evidence of Persons A and C who were both certain that they required to submit to the chest examination in order to be certified as fit to box. Person C was sure she had been told that by the Registrant. The evidence given by Person A was that she was “hyped up”, nervous and her friends and family were all there and had raised money for the charity. It was her evidence that the only person that could prevent her from boxing was the Registrant.  In the circumstances in which the examinations took place, Persons A and C were vulnerable. Both understood that they were required to comply with the examination in order to be permitted to box. 

132. The comments made by the Registrant were denied by him in his evidence.  He said he did not recall them but he was also certain he had not make the comments.  The Panel do not accept the Registrant’s evidence and prefer the evidence of Persons A and C who clearly recalled the comments.  Those comments were inappropriate.  The comments were not overtly of a sexual nature. However, the Panel consider that the comments were indirectly of a sexual nature as they contained a sexual innuendo in the form of a denial that the examinations that the Registrant was about to conduct were sexual. That they were, perhaps, made in a “jokey” way, only serves to increase the sexual innuendo they sought to hide.

133. The Panel asked itself what motivated the Registrant to make such a comment in the particular circumstances and at the particular time just before he conducted the clinically unjustified chest examination which involved viewing the exposed breasts of the boxers. The Panel found that the motivation for the comments, and the chest examination that immediately followed them, were sexually motivated.

134. The Registrant was not alive to the discomfort of Person A during the examination despite the evidence of Witness C who said her discomfort was obvious.  He said that at the time he had sound clinical reasoning.  After the event he accepts that he was wrong, but the Panel requires to assess the Registrant’s motivation at the time of the examination, not with hindsight.  Both experts said that the Registrant’s clinical reasoning could not stand in the absence of asking the obvious and necessary questions of the boxer.  

135. The Panel found that the chest examinations were a sudden, unexplained and significant change in the Registrant’s practice. He could not explain his rationale or justification.  He did not give evidence that he had actually improved his practice, and he did not state that the examination was a simple or foolish error of judgement.

136. The Panel were concerned that there was no plausible medical rationale for the examinations taking place and that is aggravated by the fact that they were also clinically unjustified. The Panel found that the Registrant appeared unprofessional in his approach and he did not appear to even consider using drapes or asking the obvious questions of the boxers before conducting the examination. The Registrant could not offer any plausible explanation as to why he behaved as he did at the event.

137. The Panel considered the evidence that the Registrant did not touch the boxers and he made no overtly sexual remarks. The Registrant has never denied the examinations took place and there was no evidence that he experienced sexual gratification The Registrant has a long and unblemished career as a Paramedic and is of good character.

138. However, the Panel did not find him to be a credible witness.  He has altered his position on crucial matters without a credible or coherent explanation. He has not plausibly explained his examinations, his motivation or his significant change of practice at the event. He has denied the comments that he made, which two other credible and reliable witnesses were certain he did make. The Panel could not find in all the evidence a credible explanation for why the examination was conducted in the way it was. 

139. The Panel having carefully assessed all the evidence, including the Registrant’s good character evidence, have reached the view that it can properly draw reasonable inferences of sexual motivation from the following aspects of the evidence;

• The sudden and unjustified change in the Registrant’s practise in deciding to view the exposed breasts as part of a chest examination

• The lack of any plausible explanation for that decision

• The lack of any clinical justification for the visual examination of the breasts

• Person A felt uncomfortable during the examination and felt it was “strange”

• Failure to consider the use of modesty drapes

• The evidence given by the Registrant that the visual examination took 30 – 45 seconds without any other examination taking place simultaneously

• The comments made by the Registrant, which he denies, that “there are too many witnesses to take me to court…there are a lot of you to prove that I’m not doing something wrong” which the Panel found contained a sexual innuendo

• The power imbalance between the Registrant and those he examined

• The failure of the Registrant to carry out a consistent and / or a proper chest examination on all the boxers

• The lack of credibility of the Registrant’s explanation for his motivation for the manner in which he conducted the chest examination

140. From these findings the Panel has drawn the inference that, on the balance of probabilities, the Registrant was sexually motivated in his action as described in Paragraph 1 (a).

Particular 4 - Proved

141. Having found particular 1(b) proved the Panel find particular 4 proved.  It agreed with Mr Davidson’s submission that such a finding must logically follow from the finding that particular 1(b) is proved.  

142. The Panel determined that the change in the Registrant’s practice in the form he designed and used, was an acknowledgement by him that the way he carried out the visual examination of the breasts was not clinically justified. Further, the Panel determined that the Registrant set out his true position in the letter to the HCPC in December 2016 where he clearly stated  that he performed “the necessary examination to deem them medically fit to participate in the boxing match” and carried out “a clinically necessary examination in order to ensure each participant could safely participate in a boxing match”  The Panel did not find that Registrant’s explanation in his evidence about the change in his position on this issue coherent or credible and consider the earlier explanation in the December 2016 more understandable and more credible.

143. The Panel determined that the actions in particular 1 (b) were outside the scope of practice of a paramedic.

Application for an Interim Order

144. The Panel having handed down its decision on facts, heard from Mr Ferson and Mr Davidson regarding the issue of an Interim Order. This was necessary given that the hearing required to be part heard due to the lateness of the hour.

145. Mr Ferson submitted that given the Panel’s findings that it was appropriate on the grounds of protection of the public and on public interest grounds to impose an Interim Suspension Order for 6 months.

146. Mr Davidson explained to the Panel that the Registrant works on the patient transport service with Mr Girvan. Patients are transported by ambulance to hospital. The Registrant works at all times with another health care professional, usually Mr Girvan an ambulance technician. The Registrant also works for an event management company working at all times with a team of 6 or 8 people. It was a reactive service only.  Thirdly, he attends about two show jumping events per month as a Paramedic in a team.  Again it is a reactive service.  Mr Davidson sought an Interim Conditions of Practice Order.  He suggested that the conditions could prevent any intimate examination and no other examination at all unless a chaperone is present being a family member or another health professional.

Decision on Interim Order

147. The Panel has taken account of all the information before it and the submissions of the HCPC. The Panel accepted the advice it received from the Legal Assessor.  He referred the Panel to the HCPTS Practice Note on Interim Orders and reminded the Panel that the primary purpose of an interim order is protection of the public.  He reminded the Panel that it is necessary to balance the interests of the Registrant with the need to protect the public.

148. There are three grounds that can lead to the imposition of an interim order - it is necessary for the protection of the public, otherwise in the public interest, or in the interests of the Registrant. By reference to these grounds the Panel is undertaking a risk assessment.  If a statutory grounds is met, the next question is to consider whether Interim Conditions of Practice can be imposed that would address the concerns.  Any conditions of practice imposed should be realistic, workable, verifiable and proportionate. If an Interim Order is required, but Interim Conditions of Practice are not appropriate, only then should an Interim Suspension Order be made. 

149. The Panel is mindful that it is carrying out a risk assessment exercise.   The facts found proved are serious.  It would be wholly incompatible with the factual findings of the Panel to conclude that an Interim Order is not necessary for protection of the public or in the public interest. The Panel accordingly find that an Interim Order is necessary on both grounds.  

150. The Panel have not at this stage heard from the Registrant on insight and remorse.  It noted the current employment circumstances of the Registrant and that in these Paramedic roles he is the lead clinician. The Panel does not consider that in light of the nature and gravity of the facts found proved that it is appropriate or proportionate to impose Interim Conditions of Practice.  Further, the Panel found that it is not possible to devise workable, proportionate or realistic conditions of practice.

151. The Panel has considered the interests of the Registrant. It has determined that in light of the seriousness of its findings, that the appropriate and proportionate Order is an Interim Suspension Order for 6 months. That Order serves to protect the public and is in the wider public interest to maintain confidence in the Profession and the Regulator.

Resumed Final Hearing - 14 June 2018

152. The hearing resumed on 14 June 2018.  The Registrant was not present but was represented by Counsel, Mr Davidson and his Solicitor, Ms Wilson.

Submissions on Grounds and Impairment

153. Ms Thompson for the HCPC made submissions regarding the issue of grounds.  She addressed the Panel on the issues of both lack of competence and misconduct.  She referred to the guidance in Calhaem v GMC [2007] EWHC 2606 (Admin) and Holton v GMC [2006] EWHC 2960. Ms Thompson submitted that the Panel may find that on the evidence there is not a fair sample of the Registrant’s work. She also referred to the guidance on misconduct in Roylance v GMC (No 2) [2001] 1 AC 311.

154. Ms Thompson referred to the relevant HCPC Paramedics Standards of proficiency paragraph 1, 2, 2.3, 4.  She also referred to 2016 HCPC Standards of conduct, performance and ethics, paragraphs 1, 1.1, 3, 3.1 and 9.1. She referred to Nandi  v GMC [2004] EWHC 2317 (Admin) and reminded the Panel of its finding of sexual motivation.

155. Ms Thompson made submissions on impairment and referred the Panel to the HCPTS Practice Note on Finding Fitness to Practise Impaired and to the guidance in the Fifth Shipman Report and CHRE v NMC and Grant [2011] EWHC 927 (Admin). She reminded the Panel of the need to assess current impairment and the public and personal component.  The Registrant’s level of insight and remediation required to be considered by the Panel. Ms Thompson reminded the Panel of its findings as regards the Registrant’s evidence. She submitted that the issue of public confidence in the profession was an important issue for the Panel to consider. She submitted that both the personal and public components of impairment were engaged in this case.

156. Mr Davidson for the Registrant explained he had instructions from his client who had chosen not to attend the hearing due to level of stress he had experienced during the last two days of the hearing in March 2018.  He submitted that this was not a competence issue. The Registrant made no submissions on the issues of either misconduct or impairment which he understood were a matter for the Panel in its professional judgement.

Decision on Grounds and Impairment

157. The Panel accepted the advice of the Legal Assessor.  He reminded it of the guidance in the case of Roylance and the definition of misconduct. He advised the Panel to consider the HCPTS Practice Note on Impairment and the relevant case law, including Grant.  He reminded the Panel that it must consider the issues of insight, remediation and risk of repetition when assessing impairment and that the Panel must exercise its own professional judgment on these issues. The Panel should, at all times, keep in mind the central importance of the public interest.

158. The Panel considered the HCPTS Practice Note and the guidance in the case law. The Panel determined that this case does not engage the lack of competence ground, as there is no evidence of a fair sample of the Registrant’s work. 

159. The Panel determined that the facts it has found proved amounts to misconduct.  The sexually motivated conduct is serious.  The witnesses the Registrant examined were misled, and the Registrant has acknowledged that he worked outside his scope of practise. The Panel, exercising its own professional judgement, found that the Registrant’s conduct could be described by fellow practitioners as deplorable, and the conduct found proved fell seriously short of what would be proper in the circumstances.

160. The Panel next considered the issue of current impairment and bore in mind the guidance in the Grant case. The Panel first carefully considered the public component of impairment. In light of the findings of fact, the Panel determined that the public would be shocked and that public confidence in the profession would be undermined, were there to be no finding of current impairment. The Panel determined that it is necessary to make a finding of current impairment in order to protect service users, to uphold and declare proper standards and to maintain public confidence in the profession and the regulator. 

161. The Panel next considered the personal component of impairment, and considered the Registrant’s current competence, evidence of insight, risk of repetition and remediation.

162. The Panel considered the letter from the Registrant to the HCPC dated 29 May 2018.  The Registrant does apologise.  However, he appears to seek to justify, and to minimise his behaviour, particularly as to the use of a chaperone. The Panel found little evidence of meaningful insight and it concluded that the Registrant’s insight is very limited. 

163. On the issue of remediation, the Panel acknowledges that sexual misconduct is difficult to remediate.  That said, the Registrant has provided no evidence to the Panel of his attendance, for example, at any relevant courses, or that he has sought to maintain his continuing professional development.  The Panel found no evidence of remediation. 

164. There is no evidence that the Registrant clearly understands the behaviour that led to the finding of misconduct. The Panel has found that the Registrant has very limited insight and does not appear to have fully recognised that what he did was wrong. The Panel determined that there is a risk of repetition. 

165. In all these circumstances, the Panel has found that the Registrant has in the past acted, and is liable in the future to act, so as to put service users at unwarranted risk of harm; that he has in the past brought, and is liable in the future to bring, the profession into disrepute, and that he has in the past breached, and is liable in the future to breach, one of the fundamental tenets of the profession, namely trust and integrity.

166. The Panel also considered the HCPC Standards of proficiency for Paramedics (2014).  It determined that in light of its findings that the Registrant was in breach of the following paragraphs:-

1. be able to practise safely and effectively within their scope of practice

1.1 know the limits of their practice and when to seek advice or refer
to another professional

2. be able to practise within the legal and ethical boundaries of their profession

2.1 understand the need to act in the best interests of service users
at all times

2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing

3. be able to maintain fitness to practise

3.1 understand the need to maintain high standards of personal and
professional conduct

4. be able to practise as an autonomous professional, exercising their own professional judgement

4.4 recognise that they are personally responsible for and must be
able to justify their decisions
 
167. The Panel also considered the HCPC Standards of conduct, performance and ethics (2016).  It found the Registrant was in breach of the following paragraphs :-

1. Promote and protect the interests of service users and carers.
Treat service users and carers with respect.

1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

3. Work within the limits of your knowledge and skills. Keep within your scope of practice.

3.1 You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.

9. Be honest and trustworthy. Personal and professional behaviour.

9.1 You must make sure that your conduct justifies the public’s trust
and confidence in you and your profession.


168. In light of all of the above, the Panel found that the Registrant is currently impaired.


HCPC Submissions on Sanction

169. Ms Thompson made submissions to the Panel on the issue of sanction.  She maintained a neutral position on sanction, but did submit that no order or a Caution Order would not be appropriate in this case. She referred to the HCPC Indicative Sanctions Policy and reminded the Panel it ought to start from the least restrictive sanction, bearing in mind the need to act proportionally.  She reminded the Panel that in PSA v General Pharmaceutical Council & Onwughala [2014] EWHC 2521 the court stated that suspension was not appropriate to allow insight to develop. Miss Thompson submitted that the Panel was also required to consider the Registrant’s insight.  She submitted that the aggravating factors were the power imbalance, sexual motivation and the breach of trust.
Submissions for the Registrant

170. Mr Davidson referred the Panel to the Registrant’s CV.  He submitted that the Registrant has had a lengthy career in public service and was an Ambulance Technician for 10 years from 1983 and became a Paramedic in 1993, retiring from the Northern Ireland Ambulance Service in 2016. He also gained an MSc in that period.  He has had no previous referral to any professional regulator and has no criminal record.  Mr Davidson referred to the thank you letters produced to the Panel which had been received by the Registrant from service users during his career.  He also referred to the testimonials from colleagues.

171. Mr Davidson reminded the Panel that the Registrant had admitted a number of the particulars of the allegation and had been working at an unregulated boxing event when the incident occurred.  He submitted that the welfare of the boxers had been part of the examinations that the Registrant had undertaken at the event, despite the finding of sexual motivation in respect of some of the examinations. 

172. In mitigation, Mr Davidson submitted the breast examinations had been very brief and only two boxers were examined.  Only one boxer had said she was “uncomfortable”, the other boxer had said she was not uncomfortable.  No touching had been involved.   He submitted that some auscultation of the chest had taken place. Mr Davidson accepted there had been deficiencies in the provision of a chaperone, but there had been some attempt by the Registrant to obtain one.

173. Mr Davidson told the Panel that the Registrant had changed the medical form used, abandoned his paramedic business and he had also apologised to witness A.  The Registrant had accepted he had made a mistake in failing to ask questions of the boxers. Mr Davidson told the Panel that the Registrant has not worked as a Paramedic since the last hearing and has attended only one boxing event, but not as a Paramedic. He has provided first aid at some events. The Registrant had expressed remorse and regret.  He has read up on issues to do with chaperones.  The Registrant could not afford to attend courses due to his financial position.

174. Mr Davidson referred to the HCPC Indicative Sanctions Policy and reminded the Panel about the need for proportionality. The Registrant was the sole earner and supported his family. The Registrant expects a shortfall in his annual income. He faces the stigma and shame of the finding of this Panel and has concerns about his personal safety.  Mr Davidson submitted that a Suspension order would be proportionate and that the Panel ought to have regard to the three months during which the Registrant has been subject to an interim suspension order. 

Decision on Sanction

175. The Panel accepted the advice of the Legal Assessor who referred it to HCPC Indicative Sanctions Policy. He reminded the Panel it should consider any sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind proportionality and the public interest.  He reminded the Panel that the primary purpose of sanction was protection of the public and that there was a need to balance that with the interests of the Registrant. 

176. The Panel considered all the information before it including the Registrant’s letter of 29 May 2018, the testimonials and cards made available today.  It first considered the mitigating and aggravating factors. The Panel found that the mitigating factors were the Registrant’s long and unblemished career, and his expressions of remorse. However, the Panel considered that the remorse shown was somewhat limited.

177. The Panel also considered the aggravating factors, which it considered were the breach of trust and the serious undermining of public confidence in the profession. The Panel also considered that as the boxing event in question was unregulated, that the Registrant ought to have taken particular care to remain within his scope of practice and to act professionally.

178. The Panel approached the ladder of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the nature and gravity of the misconduct and the finding of impairment.  These sanctions would not be adequate given the wider public interest of maintaining confidence in both the profession and the regulatory process.  Neither order was appropriate or proportionate given the misconduct found in this case.

179. The Panel next considered a Conditions of Practice Order. The allegation found proved is very serious and involves a breach of trust, a fundamental tenet of the profession. It includes a finding of sexual motivation. The Panel has found that the Registrant has shown very limited insight and there is no evidence of remediation.  In these circumstances the Panel does not consider that a Conditions of Practice Order would be an adequate or proportionate sanction and would not satisfy the public interest.  Furthermore, the Panel was not able to devise realistic, workable, proportionate or appropriate conditions that would address the behaviour that led to the finding of misconduct and the risk represented by the Registrant.

180. The Panel next considered the sanction of suspension.  The Panel has found that the Registrant has shown very limited insight and there is no evidence of remediation. The Panel is mindful of paragraph 41 of the Indicative Sanctions Policy; “If the evidence suggests that the Registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option”.

181. The Panel having found no evidence of remediation and that the Registrant  has very limited insight, determined that in light of those findings there is little, if anything, to suggest that the Registrant is able to resolve or remedy his failings.  The Panel was also mindful that sanction is primarily about public safety, that the public interest is important and that suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight.

182. Given its findings as to the nature and gravity of the misconduct found coupled with the lack of insight and remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate.  Suspension would fail to adequately address the public interest and the need to send an appropriate deterrent message to the profession.

183. The Panel carefully considered paragraphs 47 – 49 of the Indicative Sanctions policy.  The Panel has found that the Registrant’s actions were serious and deliberate and involved an abuse of trust. It has also found that the Registrant has very limited insight and has provided no evidence of remediation.

184. The Panel considered the Registrant’s interests.  However, in light of its findings, the Panel considered that the need to protect the public and the public interest by sending a clear message upholding and declaring proper standards outweighs the Registrant's interests.

185. The Panel determined that any lesser sanction than a striking off order would fail to reflect the nature and gravity of the misconduct, it would lack the necessary deterrent effect on the profession and would not provide the necessary protection for the public.

186. The Panel accordingly determined to impose a striking off order.

Interim Order

187. Miss Thompson for the HCPC applied for an interim order in light of the Panel’s findings.  Mr Davidson made no submission. The Panel accepted the advice of the Legal Assessor as to interim orders.  The Panel decided to impose an interim order, it being necessary to protect members of the public and being otherwise in the public interest.  It first considered an interim conditions of practice order.  The Panel concluded that this would not be an appropriate level of protection in light of its earlier findings.  It considered that in light of those findings that an interim suspension order is necessary for protection of the public and is also in the public interest. It would be wholly incompatible with the Panel’s findings and its decision as to sanction not to impose an interim suspension order.  It has decided to impose that order for a period of 18 months to cover the period any appeal lodged may take.

 

Order

ORDER

That the Registrar is directed to strike the name of Mr Paul Hardy from the Register with effect from the date this order comes into effect.

Notes


You may appeal to the High Court in Northern Ireland against the Panel’s decision and the order it has made against you.


Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

This interim suspension order will expire if no appeal is made against the Panel’s decision when the appeal period of 28 days has expired.

Hearing History

History of Hearings for Mr Paul Hardy

Date Panel Hearing type Outcomes / Status
14/06/2018 Conduct and Competence Committee Final Hearing Struck off