Miss Frances Henderson
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1. On 26 September 2017, after providing treatment to a patient used an inappropriate and/or racist term by describing him as exhibiting "Dying Paki
Syndrome", or words to that effect.
2. The matters described in paragraph 1 constitute misconduct.
3. By reason of your misconduct your fitness to practise as a Paramedic is
1.The Panel received a bundle of documents from the HCPC comprising a case summary and Exhibits running to 47 pages.
2.The Registrant submitted a bundle of documents of 48 pages, including her written submissions in response to the allegations, previously submitted to the Investigating Committee; a number of character references; a thank you card from a patient; emails in relation to the Registrant’s equality training in February 2018 and her subsequent intention to take on an equality enabler role within the East of England Ambulance Service NHS Trust; and a number of course certificates in respect of training undertaking by the Registrant between 2017 and this final hearing.
3.At the outset of the hearing, the Registrant admitted factual particular 1 of the Allegation, accepting that she referred to a patient as exhibiting “Dying Paki Syndrome” or words to that effect.
4.The Registrant denied that the comment was racist as set out at particular 2.
5.The Registrant accepted that her conduct as set out at particular 1 amounted to the statutory ground of misconduct.
6.The Registrant denied that her fitness to practise is impaired.
7.The Registrant is registered with the HCPC as a Paramedic. At the time of the matter which is the subject of these proceedings, the Registrant was employed by the East of England Ambulance Service NHS Trust (the Trust) as a Senior Paramedic. The Registrant has been employed by the Trust since 2009 and qualified as a Paramedic in 2011.
8.On 26 September 2017, the Registrant attended to a patient in response to an emergency 999 call. The patient was attending a funeral and complained of chest pain. The Registrant’s crew-mate was Colleague A; Colleague B, a final year student doctor, was also present in the ambulance. The Registrant completed the relevant observations on the patient and the patient was taken by ambulance to Lister Hospital (the Hospital).
9.It is alleged that, after the patient was transferred to the Hospital, the Registrant returned to the ambulance and used the phrase “Dying Paki Syndrome”.
10.On 4 October 2017 Colleague A submitted a DATIX (a system used by staff to report any incidents or issues) reporting that the Registrant “stated ‘classic case of DPS’, when I did not understand she continued, ‘Dying Paki Syndrome’”.
11.The Registrant was the subject of a Trust investigation, conducted by CH, Investigating Officer. On the instruction of the Trust, the Registrant self-referred to the HCPC on 24 October 2017.
12.The HCPC called two witnesses, CH and Colleague A. Both witnesses confirmed the contents of their witness statements, were asked a number of supplementary questions by the Presenting Officer and were cross-examined by Mr Attenborough.
13.At the time of the alleged incident, CH was employed by the Trust as the Communications Director. He conducted the investigation into the allegation made against the Registrant and conducted three separate interviews: with the Registrant on 26 October 2017; with Colleague A on 20 October 2017; and with Colleague B on 7 November 2017.
14.CH said that he was asked to investigate the alleged incident by a Human Resources Adviser at the Trust, as the allegation was similar to a previous incident that he had investigated. CH said that the purpose of the investigation was to establish whether such terminology was used and, if so, whether it was used during patient contact or away from the patient. CH said that he was only aware of this term being used on the two occasions that he investigated “but this does not mean that this term has not been used by others within the Trust…I feel that it would be naïve, given that two instances of Trust employees using the term “Dying Paki Syndrome” have been reported, to conclude that these were isolated incidents.” CH recommended that further work be undertaken relating to diversity and cultural understanding within the Trust.
15.CH confirmed that his investigation did not identify any issues with the Registrant’s care of the patient concerned; that the Registrant admitted in the investigation that she had used the term and subsequently apologised to Colleague A; and that the Registrant told him that she had heard the term used within the Trust. CH was of the view that the Registrant had reflected deeply on the incident and come to show insight and understanding into her actions on that day.
16.Colleague A was employed by the Trust as an Assistant Ambulance Practitioner. She said that she had worked well with the Registrant on one or two shifts prior to the shift of 26 September 2017 and she had no concerns about the Registrant, whose role, in addition to operational duties, involved providing mentoring support to other members of staff. Colleague A said that, after the patient in question had been taken to the Hospital and handed over by the Registrant, the Registrant returned to the ambulance and sat next to Colleague A in the front of the vehicle. Colleague A said that the Registrant then said, ‘classic case of DPS’. Colleague A stated “I did not know what this term meant so I recall that I either asked her what this meant or looked confused. [The Registrant] then said ‘Dying Paki Syndrome.’ This was not something that I expected to hear so I felt shocked to hear this comment from a Senior Paramedic who was the same age as me. I did not respond to this remark.”
17.Colleague A said that the term was repeated to Colleague B, who was sitting in the back of the ambulance. Colleague A could not remember whether or not Colleague B said anything in response. Colleague A confirmed that no members of the public were present at this time.
18.In relation to this patient, Colleague A recalled that he appeared quite unwell, that his family was “fussing around him”, such that he had “a nice audience”, and that he was Asian. Colleague A said that she took the DPS comment to refer to a patient who is reacting in an “over the top”, dramatic manner and that it was aimed at people “of a certain culture”.
19.In oral evidence, Colleague A confirmed that “Dying Paki Syndrome” was not a phrase that she had heard before and that she was shocked because “it’s not a phrase I’d expect anyone to use…it’s a racist term…it’s not something to be said.” She said that it “played on [her] mind” for quite a while afterwards, that she spoke to two colleagues about it who advised her to speak to her manager, which she did. Colleague A then submitted a DATIX on 4 October 2017.
20.Colleague A stated that she did not believe that the Registrant was a racist person. In Colleague A’s opinion, the Registrant said the term “almost accidentally” and she did not say it maliciously. Colleague A confirmed that the manner in which the Registrant had behaved with the patient had not given her any cause for concern.
21.The Registrant gave evidence to the Panel and was cross-examined by the Presenting Officer. In her oral evidence to the Panel, the Registrant denied using the words “classic case of [DPS]” as this would not be her turn of phrase. She accepted that she made a comment to Colleague A along the lines of, “that was a bit DPS”, which she said was meant to refer to the dramatic situation they had recently encountered with the patient, rather than the patient himself.
22.The Registrant said that she was trying to communicate the fact that different people and different ethnicities react in different ways to pain or distress. The Registrant said that she was not intending to criticise or to be hostile. Although she stated that there was no racist intent at all behind her comment, she acknowledged that “it could be taken as racist.” She said that it was an isolated incident and error of judgment that she regrets. When the Presenting Officer asked the Registrant whether it was her belief that Asian people could be more dramatic than other ethnicities, the Registrant responded, “It may have been at the time, potentially.”
23.The Registrant agreed that she then asked Colleague B if she had heard of the term “DPS”. It was the Registrant’s recollection that the student doctor said that she had and responded with a comment about how other cultures tend to receive bad news.
24.The Registrant further stated that she had been taught the phrase by a senior Paramedic in the Trust. She referred to there being a current HCPC case concerning another Paramedic facing similar allegations, and was of the view that it was a wide-spread problem within the ambulance service, not just restricted to one station. In the Registrant’s view, she had become “desensitised”. She stated that she would “absolutely, not ever” use the term again and realises that it is a negative stereotyping and is not an appropriate way to convey what she was trying to convey at that moment. The Registrant said that she was now aware of the power that words can have and had reflected deeply on the incident of 26 September 2017.
25.The Registrant spoke of the very negative reflection that the use of the term had on her profession, and of her desire to keep to the HCPC standards and the Standards of her own profession. The Registrant also acknowledged the deeply negative impact that the use of such a term would have on colleagues, patients (including the specific patient in this case, if he had known) and the public. She told the Panel that she has completed one-to-one equality training at the Trust and has subsequently applied to perform the role of Equality Enabler, to encourage further training in equality and diversity within the Trust.
26.In relation to Colleague A’s complaint about her, the Registrant stated that Colleague A raised no concerns at the time and did not do so for ten days. She acknowledged, however, that Colleague A had only been in the job for 5 weeks. The Registrant said that she was disappointed that she did not have the opportunity to discuss the matter with Colleague A nor was she offered any mediation by the Trust.
Legal Advice on facts
27.The Panel received and accepted the following advice from the Legal Assessor.
28.The burden of proof was upon the HCPC, which brought the allegations. It was not for the Registrant to prove her innocence.
29.The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that it occurred.
30.In relation to Particular 2 and whether the comment was racist, the Legal Assessor noted that the Oxford dictionary defines the word racism as: “Prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one's own race is superior.” The Oxford dictionary defines the word racist as: “Showing or feeling discrimination or prejudice against people of other races, or believing that a particular race is superior to another.”
31.The Legal Assessor referred the Panel to the High Court case of Director of Public Prosecutions v Stoke on Trent Magistrates’ Court  which concerned the chanting of the words “a town full of Pakis” at a football match. Lord Justice Auld, sitting with Mr Justice Goldring, ruled that there was no doubt that the word “Paki” was a slang expression which is racially offensive. The judge said, “It is odd and a shame that this is so in this country, but the unpleasant context in which it is so often used has left it with a derogatory or insulting, racialist connotation.” The Legal Assessor advised the Panel, however, that the use of the word “Paki” must be looked at and assessed by the Panel in its context, in the particular circumstances of the case.
Decision on Facts:
32.The Panel considered all the evidence in this case, together with the admission made by the Registrant at the start of proceedings in relation to particular 1 of the Allegation. It heard the submissions made by the Presenting Officer and Mr Attenborough, on behalf of the Registrant. The Panel had in mind that, although the Registrant had admitted factual particular 1, the burden of proof remained on the HCPC.
33.The Panel first considered the overall credibility and reliability of the witnesses it heard from, including the Registrant.
34.The Panel found CH to be a credible and straightforward witness who did his best to assist the Panel during his evidence. The Panel found no inconsistencies in his evidence. He was clear around the parameters of what he had been asked to investigate at the Trust. The Panel considered that CH was fair to the Registrant in his evidence and had no reason to mislead the Panel.
35.The Panel found Colleague A to be a credible witness who provided consistent evidence. She relied heavily upon her witness statement of June 2018 and her DATIX of 4 October 2017. The Panel considered that she provided a fair account of her professional relationship with the Registrant.
36.When considering the Registrant’s evidence, the Panel acknowledged that she was nervous and, at times, distressed. The Panel found her to be candid, genuine and consistent. She answered all questions put to her. The Registrant was very clearly remorseful and ashamed.
37.The Panel considered both of the Particulars and made the following findings:
Particular 1 – Proved
On 26 September 2017, after providing treatment to a patient you referred to the patient as exhibiting “Dying Paki Syndrome”, or words to that effect.
38.The Registrant admitted this Particular.
39.The Panel found the facts of this particular proven to the required standard. The Panel was satisfied that the Registrant, having treated the patient and transferred him to the Hospital, referred to him as exhibiting “Dying Paki Syndrome”, or words to that effect. It based its finding on the evidence adduced on behalf of the HCPC from Colleague A, CH, the documentary evidence and the Registrant’s own admission.
Particular 2 – Proved
Your comment described in paragraph 1 was racist
40.The Panel considered whether the Registrant’s comment in respect of the factual particular it had found proved was racist, which the Registrant denied. The Panel took into account the evidence of Colleague A: “I do not believe that she is a racist person and her manner with the patient did not concern me. It appeared to me that this was an ignorant remark that she made accidentally initially and then repeated in some attempt to justify herself.”
41.The Panel considered the particular context in which the comment was made. It was used as a descriptor of an individual but was not directed at an individual, in that the patient was not present. Nonetheless, the Panel was satisfied that the comment was racist because the Registrant was making a judgment about the Pakistani race, describing the patient.
42.Therefore, Particular 2 is proved.
Decision on Grounds:
43.Having determined the facts and found the factual particulars proved, the Panel was required to judge whether the facts found proved amounted to the statutory ground of misconduct, as advanced by the HCPC.
44.The Presenting Officer made submissions regarding the issue of misconduct. She referred to the relevant HCPC Standards of Proficiency for Paramedics (2014) as being paragraphs 2, 2.2, 5, 5.1, 5.2 and 6. She also referred to the HCPC Standards of Conduct, Performance and Ethics (2016), particularly paragraphs 1, 1.1 and 1.5.
45.Mr Attenborough acknowledged that, even if the comment was not racist, it was ill-judged, inappropriate, unintentionally offensive and sufficiently serious to amount to misconduct.
46.In reaching its conclusion, the Panel considered all the evidence and information before it, together with the submissions of both parties.
47.The Panel accepted the advice of the Legal Assessor. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.
48.The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It was also aware that the statutory ground of misconduct is qualified by the word “serious”. It is not just any professional misconduct that will qualify.
49.The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved.
50.The Panel considered that the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:
•2 - Communicate appropriately and effectively – You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users
51.The Panel considered that the Registrant had breached the following paragraphs of the HCPC’s “Standards of proficiency for Paramedics” (2014 edition):
•3.1 – understand the need to maintain high standards of personal and professional conduct
•8.1 - be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others
52.The Panel next considered whether the facts proved could amount to misconduct. The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards would be sufficiently serious that it could properly be described as misconduct. However, the Panel was in no doubt that both Particulars 1 and 2 found proved in this case were serious and amounted to the statutory ground of misconduct. The Panel found that it was not the Registrant’s intention to cause offence. However, the Panel’s view was that the use of the term “Paki” was commonly perceived to be a derogatory and racist term and the use of the phrase ‘Dying Paki Syndrome’ by a professional was inexcusable.
53.Firstly, the Panel considered that the Registrant's actions, albeit on a single shift, fell significantly short of the conduct that would be expected of a Paramedic. It was a comment made within the workplace and one which would never be acceptable from a professional, notwithstanding the context. The Panel was of the view that making a racist comment to a colleague or colleagues in the workplace about a patient is unacceptable and would be considered deplorable by other members of the profession.
54.Furthermore, at the time relevant to the matter alleged and found proved, the Registrant was the Senior Paramedic on duty in the ambulance. Her racist comment was even more serious since it was incumbent on her to show leadership and be an example of good practice.
55.The Panel considered that, on the facts found proved, the Registrant had breached a fundamental tenet of the profession, namely that Paramedics are expected to act with professionalism and integrity at all times. The Panel found that the Registrant’s conduct demonstrated behaviour that lacked professional integrity and that fellow registrants would consider it to be nothing short of deplorable. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.
Decision on Impairment:
56.The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct.
57.The Panel heard the submissions of both parties and accepted the advice of the Legal Assessor. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant  EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired. The Panel also took into account the HCPTS Practice Note “Finding Fitness to Practise Impaired” of March 2017.
58.Paramedics occupy a position of privilege and trust in society and are expected at all times to be professional. The Panel considered the question of insight and remorse and considered whether the conduct is capable of remedy, whether it has been remedied and whether it is likely to be repeated in the future. It took account of the public interest, that is to say the need to protect patients, the maintenance of public confidence in the profession and its regulation and the upholding and declaring of proper standards.
59.For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman Inquiry by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct show that her fitness to practise is impaired in the sense that she:
a) has in the past acted and/or is liable in the future to act so as to put patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Paramedic profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
d) has in the past and/or is liable in the future to act dishonestly?”
60.The Panel determined that the Registrant had, in the past, breached a fundamental tenet of professional integrity. In considering whether she would be liable in the future to breach one of the fundamental tenets of the profession, the Panel had careful regard to matters of insight, remorse and remediation and the risk of repetition. It took into account the Registrant’s academic research into ethnicity and diversity, including how these issues impact upon healthcare and internal groups within the NHS and her decision to take on the role of Equality Enabler at the Trust.
61.This case concerns a single comment that the Registrant made on a single shift. Although the Panel has found that it was serious, displaying a disregard for the dignity and respect due to members of the Pakistani community, the Panel believed that the racist comment was reckless rather than underpinned by intent and was satisfied that she had learned from her serious error of judgment. The Panel considered that the Registrant had reflected fully on her actions and demonstrated a high level of insight and indeed remorse. Furthermore, she had remediated her misconduct by undertaking personal research and writing a reflective essay about ethnicity and diversity. The Registrant had demonstrated developed insight into her failings, including the impact it had and could have on colleagues, the Trust, her profession and the public.
62.The Panel also bore in mind that the Registrant has continued to work in the same Ambulance Station at the Trust, as a Senior Paramedic, for a further 19 months, with no further issues raised. The Panel took into account the positive character references, including from her current line manager who, since this matter occurred, has described her as “professional in all aspects of her work…she is caring and empathetic to everyone. Her clinical skills are excellent and she manages the scene in a calm, timely fashion.”
63.In these circumstances, the Panel considered the risk of repetition to be low. It has therefore concluded that in relation to the personal component, the Registrant’s fitness to practise is not currently impaired.
64.The Panel bore in mind that the overarching objectives of the HCPC are to protect, promote and maintain the health, safety and well-being of the public. It also exists to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the professions of those it regulates and upholding the proper professional standards for members of those professions. With regard to the public component, the Panel determined that, in this case, a finding of impairment on public interest grounds is required. Paramedics occupy a position of privilege and trust and are expected at all times to be professional. Patients must be able to trust them and, to justify that trust, they must act with integrity. The Panel considered that, in light of the nature of the misconduct in this case and bearing in mind that the Registrant was in a position of trust as Senior Paramedic at the time of these matters found proved, a member of the public would be concerned if the Registrant’s fitness to practise was found not to be impaired on the grounds of public interest.
65.Having regard to all the above, the Panel determined that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction
66.Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of both parties.
67.The Panel has taken into account HCPTS’ Indicative Sanctions Policy. It has accepted the advice of the Legal Assessor who advised the Panel that it should bear in mind that its over-arching duty is:
(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated by the HCPC;
(c) to promote and maintain proper professional standards and conduct for members of those professions.
68.The Panel was aware that the public interest includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.
69.The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect and bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.
70.The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public interest. It should take into consideration the aggravating and mitigating factors in the case. The Panel also reminded itself that it must apply the principle of proportionality, weighing the Registrant’s interests against the public interest.
71.The panel considered the aggravating factors in this case to be:
•The Registrant’s misconduct amounted to a fundamental breach of the values that any decent member of society should espouse, let alone those which should be held by a Paramedic;
•Her comment referred to a patient to whom she had provided treatment;
•The Registrant had 6 years’ experience as a Paramedic and was acting in a mentoring/supervisory capacity with a more junior colleague, and could have influenced her.
72.The Panel considered the following to be mitigating features in this case:
•The failing in this case was isolated, on a single shift and should be considered in the context of the Registrant’s apparently unblemished professional career of some ten years;
•The Registrant admitted what she had said at the outset and apologised to Colleague A; she has completed one-to-one equality training, undertaken academic research and reflection and volunteered for a role to develop equality issues within the Trust.
•The Registrant has demonstrated developed insight and sincere remorse into her misconduct and its possible consequences to colleagues, her employer, her profession and patients;
•The Registrant has cooperated fully throughout the Trust’s investigation and throughout her HCPC proceedings;
•The Registrant has attended this hearing and submitted to cross-examination.
73.The Panel first considered imposing no sanction but was mindful that this is an exceptional outcome and concluded this would be inappropriate and insufficient to uphold the public interest in the particular circumstances of this case.
74.The Panel then considered a Caution Order. The ISP identifies that a Caution Order may be an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature; there is a low risk of recurrence; meaningful practice restrictions cannot be imposed; the conduct is out of character; and suspension from practice would be disproportionate.
75.The Panel bore in mind that a Caution Order would not restrict the Registrant’s right to practise. Whilst this matter is not relatively minor in nature, the Panel was satisfied that it was conduct that was isolated and was a comment made recklessly rather than with intent. The evidence before the Panel was that the use of the term was not isolated within the Trust and that the Registrant had become aware of the term from her own mentor, a senior Paramedic. The Panel was mindful of its finding that the Registrant has demonstrated insight and has demonstrated that she is unlikely to repeat her misconduct. The Registrant has been held to account, and proper standards of practice and behaviour have been declared by the finding of misconduct and current impairment on public interest grounds alone. The Panel recognised that the HCPC proceedings have had an impact on the Registrant and noted that she has expressed her deep remorse and regret. The Panel was of the view that the effect of the Caution Order would be a salutary reminder to the Registrant of the need to act with integrity.
76.The Panel determined that, in this case, the public interest could be met by the imposition of a Caution Order as a sanction. The Panel considered that a member of the public who was fully informed of the above considerations and the particular circumstances of this case, would consider it proportionate for a Caution Order to be imposed in these circumstances. It would, in addition, send a message to other registrants of the importance of conducting themselves appropriately. It would satisfy the public interest requirement for these failings to be marked with a proportionate sanction.
77.The panel next considered the appropriate length of time for the caution order. A caution order can be between one year and five years. As set out in the ISP, the Panel considered one year as the starting point. Having carefully considered the nature of the misconduct and the aggravating and mitigating factors, the Panel decided that a one year Caution Order was appropriate and proportionate; and sufficient for public confidence to be upheld and a deterrent effect on the profession at large.
78.In reaching this decision, the Panel has reviewed all available options including Conditions of Practice, Suspension and Strike off and deemed them to be neither appropriate nor proportionate in this case. Furthermore, the Panel considered that the public interest would be well served by the retention of a registrant who is able to make a valuable contribution to the profession and to patients.
79.The Panel therefore decided that the appropriate and proportionate outcome was a Caution Order for one year.
That the Registrar is directed to annotate the register entry of Miss Frances Henderson with a Caution which is to remain on the register for a period of one year from the date this order comes into effect.
No notes available
History of Hearings for Miss Frances Henderson
|Date||Panel||Hearing type||Outcomes / Status|
|13/05/2019||Conduct and Competence Committee||Final Hearing||Caution|