Mr Simon Trafford

Profession: Paramedic

Registration Number: PA43299

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/11/2019 End: 17:00 07/11/2019

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered with the Health and Care Professions Council (HCPC) as a paramedic and employed with South East Coast Ambulance Service (SECAMB) you;

1. Between in or around June August 2017 and in or around June 2018, failed to maintain appropriate professional boundaries in in relation to Servicer User A, in that you:

a) Became friends with Service User A on Facebook        

b) Provided Service User A with your personal mobile number for professional advice

c) Provided on-going treatment and/or advice to Service User A and/or her family

d) Provided a loan of £40 to Service User A


2. Sent inappropriate messages to Service User A, including:

a) ‘It’s a shame yr with Person C otherwise I could have given you money in return for something Ive not had in nearly two years! Lol! (I so shouldn’t have text you that) I must behave! X’  and/or

b) ‘Oh I see so technically yr with him. Sorry I was mis behaving & feeling deprived ive had nothing sexual for best part of two years!!!! Getting old to!!!   
          
3. Your actions described at paragraph 2 were sexually motivated

4. The particulars set out at paragraphs 1 to 3 constitute misconduct

5. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters:

Application to Amend Particulars

1. At the outset of the hearing, Ms Luscombe on behalf of the HCPC applied to make the following amendments to the stem of Particular 1:

• Changing the alleged date of June 2017 to August 2017
• Changing the phrase “in in relation to” to “in relation to”

2. Ms Luscombe submitted that the first proposed amendment more accurately reflected the evidence in the case as the Registrant had not joined the Register as a Paramedic until 26 August 2017. She said that the second proposed amendment would correct a typographical error. Ms Luscombe submitted that neither of the proposed amendments would cause any significant change to the overall strength of the Allegation and neither would prejudice the Registrant.

3. Ms Fletcher on behalf of the Registrant did not oppose the amendments.


4. The Panel heard and accepted the advice of the Legal Assessor.

5. The Panel was satisfied that the first proposed amendment to Particular 1 would more accurately reflect the case against the Registrant, and that neither of the proposed amendments would cause substantial change to the overall strength of the Allegation or prejudice the Registrant. The Panel allowed the application.

Application to Conduct Parts of the Hearing in Private

6. Ms Fletcher informed the Panel that proper exploration of the evidence in this case would involve reference to aspects of the Registrant’s private life. She submitted that those parts of the hearing should be heard in private in order to protect the private life of the Registrant.

7. Ms Luscombe did not oppose the application.


8. The Panel heard and accepted the advice of the Legal Assessor.

9. In reaching a decision, the Panel had careful regard to Rule 10 (1) (a) of the Conduct and Competence Procedure Rules 2003 which provides:
“At any hearing 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,…or of any patient or client, the public should be excluded from all or part of the hearing.”

10. The Panel was satisfied that, for the protection of the private life of the Registrant, the public should be excluded from those parts of the hearing in which reference is made to the private life of the Registrant, and it so ordered.

Registrant’s Response to the Allegation

11. The Allegation, as amended, were read into the record. Ms Fletcher responded on behalf of the Registrant as follows:

• Particular 1 a): Admitted that the Registrant became friends with Service User A on Facebook, but not admitted that the Registrant was a Registered Paramedic at the time;

• Particular 1 b): Admitted that the Registrant provided Service User A with his personal mobile number for professional advice, but not admitted that the Registrant was a Registered Paramedic at the time;

• Particular 1 c): Admitted insofar as it relates to advice but not treatment;

• Particular 1 d): Admitted;
 
• Particular 2 (in its entirety): Admitted;

• Particular 3: Admitted.

Background

12. In summary, the Registrant is a Registered Paramedic, employed by South East Coast Ambulance Service (SECAMB) and based at the Medway Ambulance Station. The Registrant has been employed in various roles with SECAMB since 1996, including as an Ambulance Technician and as a Paramedic, registering on 26 August 2017.

13. Concerns first arose in June 2018 after an anonymous complaint was received about the Registrant sending inappropriate messages to Service User A.

14. It is common ground that the Registrant became Facebook friends with Service User A after attending to her as an Ambulance Technician in April 2017. The Registrant and Service User A exchanged a series of messages and the Registrant sent a message to Service User A alluding to having sex with her in exchange for money.

 
15. LS was appointed as the Trust’s Investigating Officer on 27 June 2018. Following the investigation, the matter was referred to the HCPC.

Decision on Facts

16. In considering the particulars, the Panel applied the principles that the burden of proving the facts is on the HCPC, that the Registrant is not required to prove anything and that a fact alleged is only to be found proven if the Panel is satisfied on the balance of probabilities that its occurrence was more likely than not. 

17. In reaching its decisions, the Panel had careful regard to all the evidence, both documentary and oral adduced in this case including the submissions of Ms Luscombe on behalf of the HCPC and Ms Fletcher on behalf of the Registrant.


18. The documentary evidence before the Panel included:

• Witness statements from LS and Service User A

• 28 June 2018 email from Registrant to HCPC


• 13 July 2018 email from LS to HCPC

• Registrant’s Letter of Suspension dated 27 June 2018


• Telephone Attendance Note from KA dated 13 July 2018

• Investigation report dated 22 July 2018


• Social Media Policy dated 12 October 2016

• Email from LS dated 9 August 2018


• Registrant’s bundle of documents including 2019 training certificates, feedback and appraisal documents, testimonials, messages of thanks, Registrant’s personal Statement and two reflective pieces, screenshots of Facebook messages.

19. Ms Luscombe opened the case for the HCPC and the Panel heard evidence from LS, Investigating Officer. The Panel found LS to be a clear, consistent and credible witness.

20. Ms Luscombe then attempted to call Service User A to give evidence by way of video link. Service User A was not in attendance at the external video link venue.

Application to admit the hearsay evidence of Service User A

21. Ms Luscombe applied to admit Service User A’s Witness statement as hearsay evidence. She reminded the Panel that Rule 10 (1) (b) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 provides that ‘subject to sub-paragraph (c) the rules on admissibility of evidence that apply in civil proceedings…shall apply.’ She submitted that Service User A’s witness statement was admissible under the Civil Procedure Rules,  but that even if it were not, Rule 10 (1) (c) allowed the Panel to receive evidence which would not be admissible in civil proceedings if it was satisfied that admission of that evidence was necessary in order to protect members of the public.

22. At the request of the Panel, Ms Luscombe provided a Chronology of Contact with Service User A by the HCPTS and Kingsley Napley, Solicitors. The contents of the Chronology were agreed by Ms Fletcher. The Chronology listed instances of contact on 23 different dates between March 2019 and November 2019. It included an email dated 4 July 2019 from Service User A agreeing to the suggestion that she give evidence by way of video link from a local hotel. It also included an email from her, sent on the first day of the Hearing, stating that she could not participate in the video link due to child care and school runs. 


23. Ms Fletcher opposed Ms Luscombe’s application on the grounds that, in the absence of live evidence from Service User A, the Statement was hearsay evidence and it would be unfair to allow it go before the Panel. Whilst she accepted it was not the sole or decisive evidence  in the case, she submitted that it was ‘significant’ and she would be prevented from questioning Service User A on its contents. 

24. The Panel accepted the advice of the Legal Assessor.

25. The Parties were agreed that the witness statement of Service User A was relevant to the matters the Panel was required to decide upon. The Panel considered that fairness to the Registrant and to the Regulator were central to the consideration as to whether or not the Witness statement should be admitted into evidence. The Panel considered the relevant case law in relation to this application. The Panel was mindful that the admission of the statement of an absent witness should not be regarded as a routine matter. To that end, it had particular regard to the following factors:


• The importance of the witness statement to the HCPC case;

• The extent to which the contents of the witness statement appeared to be challenged by the Registrant;

• The potential impact on the Registrant’s defence if the witness statement was admitted into evidence when there was no opportunity for cross examination of Service User A;

• The seriousness of the allegation against the Registrant and the potential impact on him of adverse findings by the Panel;

• The reasonableness of Service User A’s decision not to attend the Hearing in person or by way of video link;

• The nature and extent of steps taken by the HCPC to secure or facilitate the provision of live evidence by Service User A.

26. Having weighed all these factors in the balance, the Panel concluded that the balance of fairness lay in admitting the witness statement into evidence. In the Panel’s view, it was an important, albeit not entirely decisive, part of the HCPC case, much of which was not challenged by the Registrant for whom the inability to cross examine Service User A was consequently less severe than might otherwise have been the case. The Panel recognised the seriousness of the Allegation against the Registrant and the potential impact on him of adverse findings of fact in this case. However, it considered that the HCPC had been assiduous in its efforts to facilitate and secure the attendance of Service User A. This contrasted with Service User A’s failure to attend the Hearing in person or by way of video link, despite her assertion in her witness statement of her willingness to attend a Hearing to give evidence. In all the circumstances, the Panel determined to accede to Ms Luscombe’s application.

27. Having decided to admit the witness statement of Service User A into evidence, the Panel considered that the weight it could fairly afford to disputed or uncorroborated parts of that evidence might be reduced.


28. In light of the Panel’s ruling, Ms Luscombe requested that Service User A’s witness statement be incorporated into the transcript of the Hearing. The Panel acceded to this request.

Submission of no case to answer in respect of Particular 1b).

29. Ms Fletcher submitted that, on the basis of the evidence before the Panel, there was no case to answer in respect of Particular 1b). She accepted that the witness statement of Service User A contained the assertion “[The Registrant] gave me his mobile number”. However, she reminded the Panel that at the outset of the hearing she had admitted on the Registrant’s behalf that he provided Service User A with his personal mobile number for professional advice, but had expressly not admitted that the Registrant was a Registered Paramedic at the time.

30. Ms Fletcher observed that, at no point in her Witness statement did Service User A specify when the Registrant had given her his mobile number. Ms Fletcher submitted that in the absence of evidence as to when the Registrant gave Service User A his mobile number, the Panel could not be satisfied on the balance of probabilities that it had occurred on or after 26 August 2017 when he became a Registered Paramedic. For this reason, she submitted that there was no case answer in respect of Particular 1b).


31. Ms Luscombe referred the Panel to the Practice Note on ‘Half-Time’ Submissions and reminded the Panel of the guidance provided by Lord Lane in the criminal case of R v Galbraith that:

“If there is no evidence that the offence alleged has been committed by the Defendant there is no difficulty. The Judge will of course stop the case.
The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
…Where however, the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

32. Ms Luscombe submitted that this was not a case where there was no evidence that the Registrant had provided Service User A with his personal mobile number for professional advice at a time when he was registered as a Paramedic. She accepted that Service User A’s written statement did not refer to a specific date. However, she drew the Panel’s attention to the paragraph of the witness statement which dealt with the issue of Facebook Messenger messages and concluded with the assertion that the Registrant gave Service User A his mobile number. Ms Luscombe submitted that it would be open to a Panel to read that paragraph as narrating how, over a period of time, Service User A and the Registrant ‘became quite friendly’, resulting in him giving her his mobile number. She suggested that on that basis it would be open to a Panel to conclude that the Registrant had given Service User A his mobile number after 26 August 2017.

33. The Panel accepted the advice of the Legal Assessor.

34. The Panel had careful regard to the guidance provided in the case of Galbraith. It concluded that the second limb of the Galbraith test was engaged. While there was some evidence in support of Particular 1b), that evidence was of a tenuous character in that it made no specific mention of when the Registrant gave Service User A his mobile number. In the absence of any other evidence, the Panel concluded that a properly advised Panel could not properly come to the conclusion that, on the balance of probabilities, it was satisfied that the mobile number had been provided at a time when the Registrant was a Registered Paramedic.

35. The Panel accepted Ms Fletcher’s submission and determined that there was no case to answer in respect of Particular 1b).

36. The Panel then heard evidence from the Registrant. Overall, it found him to be sincere and forthcoming, as he made several admissions. He sought to assist, however, on a number of occasions, his memory was affected by the passage of time. The Panel also took into account the associated stress on the Registrant of giving evidence. However, the Panel considered that the Registrant’s evidence at times was repetitious and lacked depth, for example, when asked about the professional boundaries course he had undertaken his response was generic and lacked reflection and specificity.


Particular 1

37. In its approach to Particular 1, the Panel considered the factual elements alleged in each sub-particular before considering the stem of Particular 1 in relation to each.

Particular 1a) Found not proved

Whilst registered with the Health and Care Professions Council (HCPC) as a paramedic and employed with South East Coast Ambulance Service (SECAMB) you: Between in or around June 2017 and in or around June 2018, failed to maintain appropriate professional boundaries in relation to Service User A, in that you: Became friends with Service User A on Facebook      
     
38. The Panel had careful regard to the written statement of Service User A that: “I first met [the Registrant] when he attended my home address in early 2017 to treat me for gall stones. I was taken to hospital and advised to contact the GP. I did not see [the Registrant] for a few months after this until I was in a local Costa coffee shop with my husband and children when [the Registrant] approached me and said ‘hello stranger’. We had a brief conversation and left it at that. About a year later [the Registrant] added me and my husband as ‘friends’ on Facebook. I accepted this invitation to be friendly and did not think much of it.”

39. During the course of his evidence, LS referred the Panel to the notes of his interview with the Registrant on 13 July 2018. These indicate that the Registrant told LS that Service User A and her partner “found him on social media and became friends”, but no date was indicated.

40. In his evidence to the Panel, the Registrant stated that he was unable to recall when he had become Facebook friends with Service User A.


41. LS stated: “There is no Trust policy about becoming friends with a patient. However, the HCPC Standards of Conduct, Performance and Ethics states: ‘1.7 You must keep your relationships with service users and carers professional.’ In this instance, the relationship developed sometime after their professional interaction and as a coincidental consequence of meeting in a coffee shop and not instigated by [the Registrant]. However, despite this I would personally advocate best practice to seek the advice of a manager at the earliest opportunity in the spirit of honesty and transparency.”

42. The Panel accepted the evidence of LS as set out above. It was common ground between the parties that the Registrant and Service User A had become friends on Facebook but there was a lack of evidence as to when this had occurred. This was exacerbated by the fact that one can message on someone on Facebook Messenger without being “friends” on the Facebook platform. In the absence of evidence to corroborate the assertion in Service User A’s written statement as to when they had become Facebook friends, and in light of the Panel’s view set out above as to the weight it might attach to disputed or uncorroborated elements of Service User A’s statement, the Panel could not be satisfied on the balance of probabilities that the Registrant had been a Registered Paramedic at the time he became friends with Service User A on Facebook.

Particular 1b) No case to answer

Particular 1c) Found Not Proved in relation to Providing Treatment. Found

Proved in relation to Providing Advice

Whilst registered with the Health and Care Professions Council (HCPC) as a paramedic and employed with South East Coast Ambulance Service (SECAMB) you: Between in or around June 2017 and in or around June 2018, failed to maintain appropriate professional boundaries in relation to Service User A, in that you: Provided on-going treatment and/or advice to Service User A and/or her family

43. The Panel had regard to the written statement of Service User A, to the 13 July 2018 notes of the Registrant’s interview with LS and to the evidence of LS. They contained references to the Registrant providing advice to Service User A and to her family, and to the Registrant taking the temperature of Service User A’s sister and assessing Service User A’s son’s rash by reviewing a photograph Service User A had sent him. The Panel also noted LS’s evidence that a thermometer is used for diagnosis and not treatment. The Panel did not consider that any of these actions constituted treatment.

44. In all the circumstances, the Panel accepted the Registrant’s evidence that he had never provided treatment to Service User A and/ or her family.


45. The Panel then considered whether in providing this ongoing advice the Registrant failed to maintain appropriate professional boundaries. The Panel took into account LS’s evidence that “Friends and family, knowing you are a Paramedic, do ask for advice. One off response is okay.”
 
46. The Registrant told the Panel the circumstances in which Service User A first asked him for advice and he described how the situation developed to the point that Service user A “was constantly asking me for advice.” He told the Panel of a “bombardment” of requests for advice “every other day”. He said “I knew I should calm it down and stop it and thought I could do it. I understand now that I should have sought advice about this.” The Registrant described a one-sided relationship that developed with Service User A which he accepts in hindsight he should have stopped.

47. The Panel was satisfied that the Registrant had provided on-going advice to Service User A and/or her family during the period alleged, and at a time when he was a Registered Paramedic. The Panel was also satisfied that this had constituted a failure to maintain appropriate professional boundaries in relation to Service User A.

Particular 1d) Found Proved

Whilst registered with the Health and Care Professions Council (HCPC) as a paramedic and employed with South East Coast Ambulance Service (SECAMB) you: Between in or around June 2017 and in or around June 2018, failed to maintain appropriate professional boundaries in relation to Service User A, in that you: Provided a loan of £40 to Service User A.
 
48. The Panel had careful regard to the evidence of the Registrant. He told the Panel that he had provided Service User A with a loan of £40.

49. LS referred the Panel to the notes of his interview with the Registrant on 13 July 2018. These indicate that the Registrant told LS that Service User A had asked for a loan because she had no money to buy presents for her son. “[The Registrant] said that in his mind, it was like an apology so he did loan them £40 and looked on it as a birthday present for Service User A’s son.”

50. In her witness statement Service User A stated that when the Registrant had asked her if she still needed a loan she had said she did as she needed to buy her son a birthday cake. However, she went on to state “he never lent me any money. I can confirm he did not give me any money.”


51. LS told the Panel “I did not ask Service User A about the loan. I did not want to suggest she had taken advantage of him in any way.”

52. The Panel considered that the Registrant had been consistent in his account to LS and to the Panel that he had loaned Service User A £40 after he had sent the messages referred to in Particular 2. For the reasons set out in its decision to admit into evidence Service User A’s written statement, the Panel determined not to give corresponding weight to the account provided by Service User A in her statement. In these circumstances, the Panel accepted the account of the Registrant in this regard.

53. During the course of his evidence, the Registrant accepted that he had been aware that Service User A had been vulnerable by reason of financial need and the fact that she had very recently given birth to her third child. He also accepted that he had provided Service User A with the loan as alleged.

54. The Panel had no doubt that lending money to Service User A in the

circumstances in which the loan was made constituted a failure by the Registrant to maintain appropriate professional boundaries in relation to Service User A.


Particular 2 Found proved in its entirety

Whilst registered with the Health and Care Professions Council (HCPC) as a paramedic and employed with South East Coast Ambulance Service (SECAMB) you: Sent inappropriate messages to Service User A, including:

a) ‘It’s a shame yr with Person C otherwise I could have given you money in return for something Ive not had in nearly two years! Lol! (I so shouldn’t have text you that) I must behave! X’  and/or

b) ‘Oh I see so technically yr with him. Sorry I was mis behaving & feeling deprived ive had nothing sexual for best part of two years!!!! Getting old to!!!   


55. LS referred the Panel to screen shots of the messages in issue, and to the Registrant’s acknowledgment in interview that he had sent the messages to Service User A.

56. LS told the Panel “I was taken aback by the messages. They were not what you would expect of a healthcare professional.”

 
57. The Registrant told the Panel: “My intention in sending the first message about sex was really stupid. I took it too far…I knew it was wrong and overstepping the mark and I should not have sent it… It was not an appropriate message to send to anyone. I should not have done it and I am really sorry I did. I am proud of the ambulance service and would not want to bring it into disrepute.”

58. The Panel was satisfied that the Registrant had sent both messages to Service User A as alleged. It had no doubt that the messages were by their nature inappropriate.

Particular 3 Found proved

Your actions described at paragraph 2 were sexually motivated

59. During the course of his evidence, the Registrant told the Panel that the messages had been sexually motivated.

60. The Panel had careful regard to the submissions of Ms Luscombe and the advice of the Legal Assessor in relation to the guidance provided in the cases of Basson v GMC, R v Karl Anthony H, and Arunkalaivanan v GMC. It considered that the messages demonstrated a clear and obvious effort on the part of the Registrant to encourage Service User A to enter into a sexual relationship with him. As such the Panel was in no doubt that the sending of those messages had been sexually motivated.


Decision on Grounds

61. The Panel had careful regard to the submissions of Ms Luscombe and Ms Fletcher. It accepted the advice of the Legal Assessor.

62. Ms Luscombe referred the Panel to the Privy Council case of Roylance v GMC (No2) [2001] 1 AC 311 in which Lord Clyde stated: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances.”

63. Ms Luscombe submitted that the Registrant had fallen seriously below the standards expected of a Social Worker set out in the 2016 edition of the HCPC Standards of Conduct, Performance and Ethics.

64. Ms Fletcher accepted that the matters admitted by the Registrant in relation to Particulars 2 and 3 were serious and constituted misconduct but submitted that the Panel should pay careful regard to the colour and complexion of this case including the amount of time passed and distance in time before the sending of the messages to Service User A.

65. In reaching a decision the Panel was mindful that the decision whether facts found proved amounted to misconduct was a matter for its independent judgement.


66. The Panel bore in mind that not every breach of the Standards and not every falling short of what would be proper in the circumstances will constitute misconduct; the breach must be serious, or as Elias LJ put it in R (on the Application of Remedy UK Ltd) v GMC: “sufficiently serious...that it can properly be described as misconduct going to fitness to practise.”

67. The Panel found that, by reason of all the matters found proved, the Registrant was in clear breach of the following Standards of the HCPC’s Standards of Conduct, Performance and Ethics:


“ 1.7 You must keep your relationships with service users and carers professional.

2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.
 
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

68. The Panel considered that the Registrant had been well aware of what was expected of him in terms of maintaining professional boundaries with Service User A. In the Panel’s view, the Registrant fell significantly short of those expectations. From the outset, key to the development and continuance of the relationship with Service User A was his professional role as a Paramedic. The result was the development of an inappropriate and unhealthy relationship, which the Registrant described as a ‘nuisance’ and ‘a problem’ but had become ‘flirty’ and in hindsight he should have stopped. However, this continued  over a period of months, culminating in an opportunistic and thinly disguised request for paid sex when the Registrant knew Service User A was vulnerable due to financial need and having given birth only weeks before.

69. In the Panel’s view, the Registrant behaved in a way which breached the Standards by which he was bound and would bring the profession into disrepute. The Panel determined, in all the circumstances, that the matters found proved were so serious as to constitute misconduct.

Decision on Impairment

70. The Panel went on to consider whether the Registrant’s fitness to practise is impaired by reason of his misconduct. It had careful regard to all the evidence before it and to the submissions of Ms Luscombe and Ms Fletcher. It accepted the advice of the Legal Assessor and had particular regard to the HCPC’s Practice Note on Finding that Fitness to Practise is “Impaired”.


71. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found. In reaching its decision, the Panel had particular regard to the issues of insight, remediation, remorse and history.


72. In considering the issue of insight, the Panel acknowledged that the Registrant had co-operated fully with the Trust Investigation and the HCPC’s own process. At the start of the Hearing, he had made formal admissions to most of the facts alleged and had sought to assist the Panel by providing it with a substantial bundle of documents including 2019 training certificates, feedback and appraisal documents, testimonials, messages of thanks, a personal statement and two reflective pieces. Further, he gave oral evidence before the Panel. In the course of his evidence, he had provided the Panel with an account of how his relationship with Service User A had come about and how it had developed. He shared with the Panel the difficulties he had been facing in his private life at the time he sent the messages referred to in Particular 2. He repeatedly acknowledged that he had been at fault and had repeatedly expressed his apologies, and the Panel found him to be genuinely remorseful, for the impact his misconduct would be likely to have had on Service User A and the profession.
 
73. Despite all these positive indicators of insight, the Panel found itself unable to conclude that the Registrant had demonstrated full insight into his failings. The Panel was concerned that the Registrant’s view of his failings appeared to focus on the social media aspect of the case rather than the underlying issue of the inappropriacy of his developing and maintaining a relationship with Service User A. The Panel has reviewed that part of the transcript where the Registrant gave evidence about his purchase of a lawnmower from Service User A and her partner. The extract is set out below:

CHAIR: Okay. Did you see her after the messages, after the events?

REGISTRANT: Once, yeah – with her partner there and the child.

CHAIR: Was this in the Costa?

REGISTRANT: No. No it was – this is going to sound daft but it was outside their flat because I bought a lawnmower from them. They haven’t got a garden or anything. They were selling a lawnmower on social media and I bought the lawnmower which [inaudible 16.59] picked it up.

CHAIR: And at any time have you apologised to her for the messages?

REGISTRANT: I haven’t been able to because I haven’t seen her since and I’ve had absolutely no contact because obviously – because of the investigation and that it was completely stopped. So, not a formal apology but I’d be more than happy to and in person if necessary.


At paragraph 24 of his witness statement, LS states that Service User A had received the messages in issue from the Registrant on 26 June 2018. This was not challenged by Ms Fletcher. At Paragraph 7 of his witness statement, LS states that the anonymous email complaint was received on 26 June 2018. (The email appears at Appendix 6 of LS’s Investigation Report and is timed and dated 18.22 on 26 June 2018.)  It appears to be common ground that the Registrant met with Operating Unit Manager WB the following day (27 June 2018) and was suspended with immediate effect. (The Panel had sight of the Suspension Letter which stated: “Following our meeting held today, 27 June 2018 at Medway Ambulance Station, I am writing to confirm that, as of the date of this letter, you are suspended…”). It follows that, on the basis of unchallenged evidence before the Panel, the Registrant must have been aware of the complaint against him no later than the day after he sent the messages which formed the subject of Particular 2. The Panel was alarmed by the Registrant’s responses because it appeared to the Panel that there was a high degree of probability that the visit had taken place at a time when the Registrant was aware of the complaint which had been made against him.

In all the circumstances set out above, the Panel concluded that while the Registrant had demonstrated developing insight, it was not yet complete.

74. In considering the issue of remediation, the Panel recognised that remedying misconduct where there have been findings of fact which relate to sexually motivated failings is likely to be less easy than in cases involving clinical errors or incompetence. The Panel had careful regard to all the steps the Registrant indicated he had taken to guard against repetition. In considering the various recent training courses undertaken by the Registrant, the Panel took the view that the most relevant to his failings was an online CPD course entitled “Professional Boundaries in Heath [sic] & Social Care Level 2”, which the Registrant completed on 21 February 2019 and for which he earned “2 CPD Points/Hours.” The Panel accepted that attendance on this course was likely to have had some value in the Registrant’s efforts to remediate his misconduct. However, it considered that successful completion of a face to face course spanning a considerably longer period of time would have been likely to provide it with more significant reassurance that the Registrant had developed deeper insight into his failings than was currently apparent.

75. The Panel had careful regard to the Registrant’s evidence as to the assistance he had gained in addressing the issues in his private life which he told the Panel had meant that he was “not thinking straight” at the time he sent the messages referred to in Particular 2. While the Registrant had made clear in his evidence that he did not consider his personal difficulties to be an excuse for his misconduct, he did consider they were a significant aspect of the context in which that misconduct occurred. The Panel was unclear as to whether or to what extent it was suggested that the Registrant’s personal difficulties had contributed to misconduct which had been sustained over a significant period of time.

76. In these circumstances, the Panel concluded that the Registrant has made genuine and ongoing efforts to remediate his misconduct, but that this is currently a work in progress.

77. In considering the issue of history, the Panel recognised that the Registrant has achieved an apparently otherwise unblemished career of 23 years in the ambulance service, and in 2017 was awarded the Queen’s Medal for Long Service and Good Conduct. Further, there has been no suggestion that any new regulatory concerns have arisen since the matters in issue were first raised. By reason of the substantial period of time over which the Panel has found the Registrant failed to maintain appropriate professional boundaries in relation to Service User A, and whilst recognizing it related to a single service user it was unable to conclude that this was a single isolated incident.

78. In light of its findings on insight, remediation and history, the Panel concluded that while it appears that progress has been made, there remains a real risk of repetition. For this reason the Panel found that the Personal Component of Impairment is engaged.


79. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds.  In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:

 “Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

80. The Panel considered that maintaining professional boundaries is a fundamental requirement of the Paramedic profession. In the Panel’s view, informed members of the public would be concerned to learn of these failures to do so by a registered Paramedic, and would be shocked that in respect of Particular 2, the inappropriate messaging had been sexually motivated. The Panel had no doubt that the public component of impairment is engaged in this case. In the Panel’s judgment, the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case.

81. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest. 

Decision on Sanction

82. The Panel next considered what, if any, sanction to impose on the Registrant’s registration.

83. In the course of her submissions, Ms Luscombe drew the Panel’s attention to relevant parts of the HCPC’s Sanctions Policy and submitted that the question of sanction is a matter for the Panel’s own independent judgment.

84. Ms Fletcher submitted that any sanction which prevented the Registrant from working as a Registered Paramedic would be disproportionate. She told the Panel of the impact an order which prevented the Registrant from practising would have on him and submitted that the public interest would best be served by keeping an otherwise good Paramedic in practice.  Further, she submitted that the facts of this case did not fit the Sanctions Policy’s category of predatory behaviour or sexual misconduct.

85. Ms Fletcher referred the Panel to paragraphs 101 and 102 of the Sanctions Policy and submitted that a Caution Order would be appropriate and proportionate in the circumstances of this case. She submitted that the misconduct had been isolated in the sense that there had been no previous or subsequent misconduct in a career of 23 years. She submitted that the misconduct had been limited to a single family. She reminded the Panel of its findings that the Registrant had demonstrated insight and remediation, albeit that they were not yet complete. She submitted that the Registrant had been shaken by the regulatory process. In the circumstances, she submitted that the Panel could conclude that the risk of repetition is low. She did not address the Panel on the length of such an order.

86. Ms Fletcher said that if the Panel was not with her on the suitability of a Caution Order, it should impose a Conditions of Practice Order. She suggested that appropriate conditions might include requirements that the Registrant undertake a professional development program focusing on maintaining professional boundaries, remain under the care of his GP, provide the Registrant’s employer and the HCPC with reports from his GP,  and make available to his employer and the HCPC his personal and work mobile and computer devices.  Ms Fletcher submitted that a Conditions of Practice Order would be proportionate and realistic and that the Panel can be confident that the Registrant would comply  with such an Order.

87. The Panel accepted the advice of the Legal Assessor.

88. In reaching its decision, the Panel has taken into account the HCPC’s Sanctions Policy, the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.

89. The Panel reminded itself that the decision of what if any, sanction it should impose was for it to make exercising its own independent judgement.

90. In respect of Predatory Behaviour, the Panel considered that the Registrant had sought to take advantage of Service User A by sending the messages which formed the subject of Particular 2. However, this was an isolated, opportunistic act occurring over the space of what would amount to no more than a few minutes on a single occasion. In the Panel’s view, this misconduct is at the lower end of the spectrum of Predatory Behaviour.

91. In respect of Sexual Misconduct, the Panel considered whether the sexually motivated sending of inappropriate messages which it had found proved also constituted Sexual Misconduct. The Panel had particular regard to that part of Paragraph 76 of the Sanctions Policy which states that Sexual Misconduct “includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating someone.” In the Panel’s judgement the misconduct in relation to Particulars 2 and 3 was not pre-meditated in the sense that it was a fleeting and opportunistic effort to test the waters by allowing the Registrant to assess Servicer User A’s reaction to the possibility of entering into a sexual relationship with him. In the Panel’s view, this misconduct lies on the cusp of Sexual Misconduct at the lower end of the spectrum.

92. The Panel had regard to all the circumstances of the case, including the following mitigating and aggravating features:


Aggravating

· The duration of the misconduct as it relates to the failure to maintain professional boundaries
· The Registrant’s abuse of his professional position
· The vulnerability of Service User A at the time of sending the messages in Particular 2
· The opportunistic nature of the messages in Particular 2 which were sent at a time when the Registrant knew Service User A was in financial need
· The Registrant exposed Service User A to risk of harm.

Mitigating

· The Registrant's otherwise unblemished 23 year career in the Ambulance Service
· The difficulties the Registrant was experiencing in his personal life at the time of the misconduct
· The Registrant’s early admissions
· The Registrant’s genuine expressions of remorse and apology
· The levels of insight and remediation already achieved by the Registrant at the start of the Hearing including testimonials and the two reflective pieces

93. The Panel has been careful throughout its deliberations to undertake a comprehensive evaluation of the Registrant’s mitigation, properly weighing in the balance the public interest.

94. The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraphs 97 and 98 of the Sanctions Policy. The Panel recognised that taking no action after a finding of impairment is likely to be an exceptional outcome, but may be appropriate in cases where the Panel concludes that there is no risk to the public or to public confidence in the profession if no action is taken. Given its finding of impairment on both public protection and public interest grounds and its finding that there is a risk of repetition, the Panel had no doubt that taking no action would be insufficient and inappropriate. It would neither protect against the risk of repetition nor serve the public interest in maintaining confidence in the profession and the regulatory process and in declaring and upholding proper standards.

95. The Panel next considered the potential for mediation in this matter. It gave careful consideration to Paragraph 96 of the Sanctions Policy. It noted that such a course may only be used if the Panel is satisfied that the only other appropriate course would be to take no further action. The Panel had no doubt this is not such a case.

96. The Panel went on to consider the imposition of a Caution Order. It had careful regard to the matters set out in Paragraphs 99 to 104 of the Sanctions Policy, and particular regard to Paragraphs 101 and 102 which indicate where such an order is likely to be appropriate.  The Panel considered that the misconduct was serious, particularly because it involved sexually motivated inappropriacy with a person the Registrant knew to be vulnerable. Although there was no suggestion of similar conduct at any other time in the Registrant’s 23 year career in the Ambulance Service, he had failed to maintain appropriate professional boundaries in relation to Service User A over a sustained period of time. Given its findings that the Registrant has yet to demonstrate complete insight and remediation, and that there is a real risk of repetition, the Panel considered that a Caution Order would be neither sufficient nor appropriate.


97. The Panel then considered the imposition of a Conditions of Practice Order. It had careful regard to the matters set out in Paragraphs 105 to 117 of the Sanctions Policy. The Panel had particular regard to the circumstances set out in Paragraph 106 which indicate where such an order is likely to be appropriate. In the Panel’s view the Registrant had demonstrated insight, albeit not yet complete; his failings were capable of remediation and he had made some progress in remediating them. There are no failings which are not capable of being remediated by him. The Panel determined given the particular features in this case that appropriate, proportionate, realistic and verifiable conditions could be formulated. The Panel accepted Ms Fletcher’s assurances that the Registrant would comply with conditions. A reviewing Panel would be able to determine whether or not the conditions had been or were being met. The Registrant does not pose a risk of harm by being in restricted practice. For all these reasons, the Panel considered that the imposition of a Conditions of Practice Order would be proportionate and sufficient to protect the public, maintain confidence in the profession and declare and uphold proper standards.

98. The Panel did consider whether a Suspension Order might be an appropriate and sufficient response to its findings in this case. However, in light of its finding set out above in relation to the imposition of a Conditions of Practice Order, the Panel considered that a suspension order was neither necessary nor proportionate at this time.
 
99. In the Panel’s view, a 1 year Conditions of Practice Order would be sufficient to protect the public and serve the public interest in marking the unacceptability of the Registrant’s misconduct. In the Panel’s judgement this period of time should be sufficient for the Registrant to demonstrate to a reviewing panel his full compliance with all of the conditions.

100. For all these reasons, the Panel decided to impose a Conditions of Practice Order of 12 months duration. This Order will be reviewed shortly before it expires.

Order

The Registrar is directed to annotate the Register to show that, for 12 months from the date this Order comes into effect (“the Operative Date”), you, Mr Simon Trafford, must comply with the following conditions of practice:
 
1. Within three months of the Operative Date you must:

a. satisfactorily complete a face to face training course of no less than one day’s duration on the subject of maintaining professional boundaries in healthcare; and
b. forward a copy of your results to the HCPC.

2. You must continue to remain under the care of your general practitioner and inform him or her that you are subject to these conditions.

3. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

4. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5. You must inform the following parties that your registration is subject to these conditions:

a. any organisation or person employing or contracting with you to undertake professional work;
b. any prospective employer (at the time of your application);
c. Any prospective employer at the time of your application.

6. You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within one month of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.

7. You must work with your supervisor to formulate a Personal Development Plan designed to address the shortcomings in the following areas of your practice:

• Professional boundaries
• Social Media
• Knowledge and understanding of the HCPC document “Standards of Conduct Performance and Ethics” with particular regard to Standards:

“1.7 You must keep your relationships with service users and carers professional.
2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites. 
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

Notes

Interim Order:

1. The Panel heard an application from Ms Luscombe to cover the appeal period by imposing an 18 month Interim Conditions of Practice Order on the Registrant’s registration. She submitted that such an order is required because there is a serious and on-going risk to service users or the public and because the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis during the appeal period.

2. Ms Fletcher reminded the Panel its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome. She told the Panel that the Registrant has been working without restriction and submitted that an Interim Conditions of Practice order is not required during the appeal period. She submitted that if the Panel was not with her on this point, the interim order should be of no more than 13 months duration as otherwise the duration of the Interim Order could be longer than the substantive Conditions of Practice Order.


3. The Panel heard and accepted the advice of the Legal Assessor and had careful regard to Paragraphs 133-135 of the Sanctions Policy.

4. The Panel was mindful that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Conditions of Practice Order has been imposed and that the Panel must take into consideration the impact of such an order on the Registrant. However, the Panel was mindful of its findings on impairment and that there remains a real risk of repetition. In the circumstances, it considered that an interim order is necessary to protect the public and public confidence in the profession and the regulatory process during the appeal period.


5. For the reasons set out above, the Panel makes an Interim Conditions of Practice Order, in the same terms as the substantive order, under Article 31(2) of the Health and Social Work Professions Order 2001, because there is a serious and on-going risk to service users or the public and because the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis during the appeal period. In the Panel’s view an interim order is necessary in order to protect the public and is otherwise in the public interest.
 
6. This order will expire: if no appeal is made against the Panel’s decision and Order, upon the expiry of the period during which such an appeal could be made; or, if an appeal is made against the Panel’s decision and Order, the final determination of that appeal, subject to a maximum period of 13 months.

Hearing History

History of Hearings for Mr Simon Trafford

Date Panel Hearing type Outcomes / Status
04/11/2019 Conduct and Competence Committee Final Hearing Conditions of Practice