Mr Charles A Malone
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On 24 April 2017 at Dumfries Justice of the Peace Court, you were convicted of:
- Assault to injury (domestic, Dom abuse stat aggravation), and
- By reason of your conviction as set out at paragraphs 1 - 2, your fitness to practise as a Paramedic is impaired.
Application to amend the Allegation
1. At the start of the hearing, Ms Shameli applied to amend the particulars of the Allegation to change the date of the Registrant’s convictions from 24 April 2017 to 25 April 2017. The purpose of the amendment was to reflect the evidence of the certificate of conviction, which was in the bundle of evidence before the Panel.
2. Ms Flanigan agreed, on behalf of the Registrant that the amendment did no more than reflect the evidence and could be made without any prejudice to the Registrant.
3. The Panel heard and accepted the advice of the Legal Assessor, which it applied to its decision, set out below.
4. The Panel was satisfied that it was in the interests of justice that the Allegation be amended to reflect the evidence and that there was no prejudice to the Registrant who was represented and had seen all the evidence in advance.
5. Accordingly the Panel allowed the amendment.
Hearing part of the evidence in private
6. Both Ms Shameli and Ms Flanigan applied that those parts of the hearing that related to the Registrant’s health should be heard in private.
7. The Panel heard the advice of the Legal Assessor, which it accepted and incorporated into the decision set out below.
8. It had regard to Rule 10(1)(a) of the Health and Care Professions Council (Conduct Committee) (Procedure) Rules 2003 (the ‘Rules’) which states
“At any hearing
(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”
9. Accordingly the Panel decided to hear in private, those parts of the evidence that relate to the Registrant’s health.
10. The Allegation was read to the Registrant who admitted, through Ms Flanigan, the convictions particularised in the Allegation but denied that his fitness to practise was currently impaired.
11. The Registrant is an Ambulance Paramedic employed by the Scottish Ambulance Service at the Dumfries Ambulance Station. He has been employed there since 1989 initially in patient transport. In 1991 he qualified as an Ambulance Technician and subsequently as an Ambulance Paramedic in 1993.
12. There have been no disciplinary matters recorded against him, although for a number of years, he has had a very patchy attendance because of health difficulties.
13. On 25 April 2017 the Registrant appeared at the Dumfries Justice of the Peace Court and pleaded guilty to 2 charges of assault:
a. Assault to Injury - (Domestic, Dom Abuse Stat Aggravation)
14. He was fined £540 and ordered to pay £200 compensation.
Decision on Facts and Grounds
15. The Panel considered the documents in the HCPC bundle including the ‘Extract Conviction Report’, the Registrant’s employment record, the Registrant’s medical records, a report from Police Scotland, Dumfries Division summarising the evidence upon which the Registrant’s convictions were based and the report of a GP/Medical Officer in the Occupational Health and Safety Service of the Scottish Ambulance Service.
16. The Panel also heard evidence from the Registrant. The Panel found that he gave an honest account of his work and attitude to the assaults, which gave rise to his convictions. He admitted the convictions and said that he had pleaded guilty because he was guilty.
17. He did not hide that he had had a health issue at the time of the assaults and that he had struggled with this for many years. He expressed deep remorse, which the Panel accepted was entirely genuine.
18. He told the Panel that he could not remember the actual assaults or the events leading up to them and the Panel accepted that. Nevertheless, there were aspects of his work record, in particular his absences from work, about which he was vague and evasive. He also appeared surprisingly unprepared for the hearing, having apparently given little thought to adducing evidence of the steps he had taken to overcome his health issue or answering the contents of a report from the Medical Officer in which he appeared to admit that he still had a health issue
19. In the absence of any evidence from the Registrant about the circumstances of the assaults, the Panel relied upon the police report and the Registrant’s own medical records, as well as the Registrant’s recollections of the days leading up to the assaults.
20. The evidence was that the assaults occurred on the evening of 24 April 2017. The Registrant had been off work for several weeks with a minor illness (unrelated to his health issue). He had been receiving treatment from his GP.
21. The Registrant had an argument with his son, who telephoned his mother, who was at work. When she returned home the Registrant punched her to the ground and then hit her again on the ground. When a family friend intervened, the Registrant hit him as well. It was in respect of these actions that the two assault charges were brought.
22. The Panel heard the submissions of Ms Shameli, who reminded the Panel of the provisions of Rule 10(1)(d) of the Rules and the Registrant’s admission. Ms Flanigan reminded the Panel that she had admitted the convictions on behalf of the Registrant. The Panel also heard the advice of the Legal Assessor, which it accepted. It bore in mind that the HCPC bears the burden of proving the Allegation on the balance of probabilities.
23. The Panel had regard to the provisions of Rule 10(1)(d) of the Rules which provides that:
“where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based;”
24. Having regard to all the evidence the Panel found that the Registrant has been convicted of the offences set out in the Allegation. It also found that the facts upon which the convictions were based were those set out in the report of Police Scotland, Dumfries Division dated 20 June 2018. It also found that the Registrant committed the offences, upon which the convictions were based, against the background of his health issue.
Decision on Impairment
25. The Panel next considered whether the Registrant’s current fitness to practise is impaired by his convictions.
26. The Panel had careful regard to the Registrant’s evidence. He accepted that he had a health issue for many years and this was the trigger for his offending, which he could barely remember. He described a constant battle to sleep, a problem created by shift patterns, which included many night shifts.
27. He told the Panel that he was “ashamed, disappointed and disgusted [in himself]” as a result of the assaults on his wife and friend. He did not try to minimise his offences, and said, “anyway you look at it, it was wrong. I am ashamed I could have done such a thing.”
28. He told the Panel that he had been given a final warning by his employers and allowed to continue to work. However, he had not returned to full time work, but for the last year, had worked part time as part of a job share. He said he was under much less pressure at work. His love for his work had returned. He was confident that should his health issue return he could speak to his manager at work if night shifts again became a problem for him.
29. He had received help from his GP for his health issue.
30. He did not understand why he had been overtaken by his health issue in 2017, at a time when he was not working. Nor could he remember how long he had been off work in 2014 or other years, as a result of his health issue.
31. The Panel also had regard to the Registrant’s work records which showed that he had been off work due to his health difficulties for significant periods over many years before his convictions
32. The Panel also had regard to his medical records, which showed that the Registrant’s account of being unwell before the convictions was correct.
33. The Panel also had regard to the report of the Medical Officer, who examined the Registrant shortly after his convictions. He was not optimistic that the Registrant could overcome his health issue. Nevertheless, having seen the Registrant on a significant number of occasions, he was of the opinion that the Registrant did not pose a risk to service users.
34. The Panel heard submissions from Ms Shameli who reminded the Panel that it must consider both the personal and public elements of impairment. With regard to the private element she drew the Panel’s attention to the evidence of the Registrant’s remorse, insight and remediation.
35. Nonetheless, she submitted, his convictions arose from an underlying health issue from which he had suffered for many years. She submitted that there was a striking lack of independent evidence that he had remained free from his health issue. He had been overtaken by his health issue in the past as his medical records indicate he did on the occasion of the convictions. She also reminded the Panel that the occasions when the Registrant had been overtaken by his health issue in the past had not always been associated with work in the way the Registrant believed they were.
36. Ms Flanigan submitted that the Registrant’s fitness to practise was not currently impaired. She submitted that at the time of the convictions, his fitness to practise may have been impaired, but 21 months later it was not. The convictions are the only ones recorded against him. In his 28 years of service in the ambulance service, he has had no disciplinary issues with his employer or with his regulator and won a bravery award in 1992. He lives with his wife and son.
37. She submitted that the Registrant carried out difficult and harrowing work. He had been frank about his struggle with his health issue and was now working as part of a job share, which reduced the stress to which he had been subject. Turning to the public element, she submitted that the Panel should be careful not to punish the Registrant for offences for which he had already been punished.
38. The Panel heard the advice of the Legal Assessor which it had accepted.
39. The Panel is aware that impairment is a matter for its own professional judgement.
40. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the offences and the critically important public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect.
41. The Panel also bore in mind that it was concerned with whether the Registrant’s fitness to practise is currently impaired. The Panel focused on the need to protect the public and the wider public interest in the future.
42. In deciding whether the Registrant’s fitness to practise is currently impaired, the Panel had regard to the following examples given by Dame Janet Smith in the 5th Shipman report and subsequently adopted by the High Court in Cheatle v GMC  EWHC 645 Admin and CHRE v NMC and P Grant  EWHC 927 (Admin):
“ a. Does the Registrant present a risk to patients
b. Has the Registrant brought the profession into disrepute
c. Has the Registrant breached one of the fundamental tenets of the profession
d. Is it the case that the Registrant’s integrity cannot be relied upon?”
43. The Panel also had regard to the reminder given to all panels by Cox J in the Grant case above, not to lose sight of the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. She said:
“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
44. The Panel had at the forefront of its mind that the Registrant’s convictions were 21 months old and did not arise from conduct at work. The Panel also accepted the evidence of the Medical Officer, who had examined the Registrant on a number of occasions, that he did not pose a risk to service users.
45. The Panel accepted that the Registrant’s remorse was genuine. His evidence was compelling, and his evidence of remorse was consistent with his early plea of guilty at the Justice of the Peace Court and the evidence that he had reported his convictions to the HCPC by email on 28 April 2017.
46. The Panel also found that the Registrant had developed some insight into the effect his convictions had had, not only on himself and his family, but also the reputation of the ambulance service.
47. The Panel also accepted that he had taken important steps to remedy the underlying cause of his convictions by making changes in his working life. The Panel was encouraged that the Registrant was now apparently able to discuss his problems with his line managers.
48. Nonetheless, the Panel was concerned that there was not any supporting evidence before the Panel to show that the Registrant had been able to maintain a good attendance record, in contrast to his bad attendance record in the past when he had been overtaken by his health issue.
49. The Panel was also concerned that the Registrant had not yet developed insight into his vulnerability to be overtaken by his health issue and hence repetition of his misconduct. In this regard the Panel noted that the convictions which brought the Registrant before the Panel occurred after an apparent period where his health issue was not in play and when the Registrant was not at work, much less doing night shifts.
50. That risk was now significantly reduced but will remain until the Registrant understands the depths of his problem and the need for constant vigilance.
51. Turning to the questions set out by Dame Janet Smith, the Panel does not find that the Registrant presents a risk to patients nor is he someone whose integrity cannot be relied upon. Nevertheless, the Panel does find that the Registrant has brought the profession into disrepute and in the way he did so, breached a fundamental tenet of the profession. In particular he breached the HCPC Standards of conduct, performance and ethics relating to, standard 9, specifically 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.”
52. Turning to the personal component of impairment, the Panel finds that the Registrant still poses a risk, albeit a significantly reduced risk, of repeating his misconduct.
53. Turning to the public component, and in particular the Panel’s duty to maintain public confidence in the profession and maintain proper standards of conduct, the Panel is satisfied that a finding of impairment is necessary in order to send a clear message that the profession takes a conviction and the conduct underlying it seriously.
Decision on Sanction
54. The Panel heard submissions from Ms Thompson and from Ms Flanigan on the question of sanction. The Panel also accepted the advice of the Legal Assessor and had regard to the HCPC’s Indicative Sanctions Policy (“ISP”).
55. Ms Thompson reminded the Panel of the correct approach to sanction and took the Panel through the relevant paragraphs of the ISP.
56. Ms Flanigan reminded the Panel that it had found the risk of repetition was greatly reduced and urged the Panel to take no action. She helpfully reminded the Panel of those passages of the ISP relating to the imposition of a Caution Order. She also submitted a bundle of testimonials, which the Panel read and found helpful, for the reasons set out below.
57. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to those using or needing their services in the future and determine what degree of public protection is required.
58. The Panel also had regard to the need to the wider public interest, which includes the need:
a. To maintain public confidence in the profession;
b. To promote and maintain proper professional standards and conduct for members of that profession.
59. The Panel also bore in mind the principle of proportionality and balanced the Panel’s duty to protect the public with the rights of the Registrant.
60. The Panel had regard to the following mitigating factors:
a. There are no other criminal or regulatory matters recorded against the Registrant;
b. He pleaded guilty to the offences;
c. The Registrant reported the convictions to the HCPC and has fully engaged in the regulatory process;
d. He has developed insight into the cause of his offending and impairment;
e. The Registrant has taken important steps towards ensuring there will be no repetition by reducing his working hours;
f. The Registrant demonstrated genuine remorse from the outset by pleading guilty and he gave compelling evidence of that remorse in his evidence to the Panel;
g. He has the benefit of good current testimonials from colleagues and managers, who know of his convictions and still support him and value him as member of the ambulance service. They contain good evidence that he is now attending work regularly and coping well with his reduced workload. There is also a testimonial from a member of the public, which attests to the Registrant’s contribution to his profession, including saving someone’s life.
61. The aggravating feature of the convictions is that they arose from serious violence which occurred in a domestic setting.
62. In order to ensure that it imposed a sanction that was no more restrictive than was necessary to protect the public and the public interest, the Panel considered the sanctions available to it in ascending order of severity.
63. The Panel considered that to take no action would not be appropriate given the serious nature of the convictions. It would not uphold the public interest, nor would it address the residual risk of repetition which the Panel has identified.
64. The Panel considered a Caution Order and had regard to the following paragraphs of the ISP:
“A caution order must be for a specified period of between one year and five years. Cautions appear on the register but do not restrict a registrant’s ability to practise. However, a caution may be taken into account if a further allegation is made against the registrant concerned.
28. A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”
65. The Panel did not consider these convictions to be minor but it did regard them as an isolated incident by a man who had not previously been convicted and has not repeated his offending for nearly 2 years.
66. The Panel has identified a residual risk of recurrence but found that to be low, for the reasons set out above. It also found the Registrant has developed sufficient insight and taken appropriate remedial action, for the reasons also set out above.
67. The Panel also found paragraph 28 helpful in resolving the question whether a more restrictive sanction is required. The Panel found this was a case “where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate”
68. The Panel found that meaningful practice conditions could not be imposed because these convictions did not arise out of his practice and the testimonial evidence showed that, when at work, the Registrant has been and remains a good and competent paramedic who has the respect of his colleagues.
69. The Panel also found that suspension from practice would be disproportionate because of his past work record and his conduct since these convictions, reducing his workload, tackling his health issue and impressing his colleagues with the quality of his work. The public interest would not be served by depriving the public of the services of the Registrant.
70. Accordingly, the Panel decided that a Caution Order is the appropriate sanction.
71. The Panel then considered the appropriate length of the Caution Order. The Panel had regard to paragraph 29 of the ISP:
“At the Panel’s discretion, a caution order may be imposed for any period between one and five years. In order to ensure that a fair and consistent approach is adopted, Panels should regard a period of three years as the ‘benchmark’ for a caution order. However, as Panels must consider sanctions in ascending order, the starting point for a caution is one year and a Panel should only impose a caution for a longer period if the facts of the case make it appropriate to do so.”
72. The Panel considered the public interest in maintaining public confidence in the profession and upholding standards of conduct for the profession. It found that the effect of domestic violence on the standing of the profession is so serious that nothing less than the maximum period of 5 years would be sufficient to maintain public confidence that the profession takes such conduct sufficiently seriously.
73. Therefore, the Panel imposes a Caution Order for 5 years from the date this order comes into effect.
That the Registrar is directed to annotate the Register entry of Mr Charles A Malone with a caution which is to remain on the Register for a period of 5 years from the date this order comes into effect.
No notes available
History of Hearings for Mr Charles A Malone
|Date||Panel||Hearing type||Outcomes / Status|
|15/03/2019||Conduct and Competence Committee||Final Hearing||Caution|
|08/01/2019||Conduct and Competence Committee||Final Hearing||Adjourned part heard|