Mr Noel C Scott

Profession: Paramedic

Registration Number: PA42513

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/02/2020 End: 17:00 12/02/2020

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered as a Paramedic with the Health and Care Professions Council, you:

1. On 11th December 2017, you drove an ambulance in an unsafe manner namely:
     a) On the wrong side of the road whilst negotiating a blind left hand bend;
     b) By driving in excess of the speed limit
     c) Through red traffic lights a set of traffic lights;
          i. when they were red and/or not yet green; and/or
          ii. on the wrong side of the road

2. Your actions as set out in paragraph 1 amount to misconduct.

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

Finding

Preliminary Matters
Application to hear evidence by telephone
1. Ms Hastie made an application for the evidence of GB, the Paramedic Locality Manager and National Interagency Liaison Officer for the Trust, to be given by telephone. She submitted that the Panel had administrative powers under Article 32(3) of the Health Professions Order 2001 to grant the application. She submitted that the application should be granted because bad weather had prevented his travel from Yorkshire yesterday to attend the hearing in person. She informed the Panel that he would be available to give evidence by phone. Doing so, she submitted, would not cause any unfairness and was a pragmatic step to take.

2. The Registrant did not object to the application.

3. Having heard and accepted the advice of the Legal Assessor, which is a matter of record, the Panel was satisfied that there was no unfairness or injustice in granting the application.

4. The application was therefore granted.

Application to amend the charge
5. Ms Hastie, on behalf of the HCPC, made an application to amend the Allegation. The Registrant had been put on notice of the proposed amendments in a letter dated 1 August 2019. She submitted that the proposed minor amendments did not change the substance of the Allegation the Registrant faced, but merely ensured that the Allegation better reflected the issues involved.

6. The proposed amendments are set out above.

7. The Registrant has not raised any objection to the Particulars being amended.

8. The Panel accepted the advice of the Legal Assessor and carefully considered the HCPC application to amend the Particulars. The Panel concluded, after reviewing each of the proposed amendments, that it would agree to the Particulars being amended for the following reasons:
i. the Registrant had been provided with significant notice of the HCPC’s intention to amend the Allegation, having been put on notice over six months before the commencement of the substantive hearing;
ii. the Registrant had not objected to the proposed amendments and;
iii. the proposed amendments do not widen the scope or nature of the Allegation, but merely seek to better reflect the evidence.

9. The Panel concluded that the proposed amendments of the Particulars are minor and did not materially affect the nature or seriousness of the Allegation. In all the circumstances, there was no likelihood of injustice to the Registrant. The Panel therefore agreed to the proposed amendments.

Background
10. The Registrant is a registered Paramedic with the Yorkshire Ambulance Service NHS Trust (“the Trust”).

11. Concerns were raised about the Registrant when security staff at Pinderfields Hospital noticed what appeared to be two ambulances racing each other. It transpired that one of the ambulances was being driven by the Registrant.

12. CCTV from the Hospital was viewed along with data from the ambulance’s Terratrack record. These showed that the Registrant drove his ambulance in excess of the speed limit, on the wrong side of the road on a blind left hand bend and through a set of red traffic lights.

13. The Registrant self-referred to the HCPC to inform it that he was the subject of a disciplinary investigation in relation to an allegation that he had raced another ambulance.

14. At a fact finding investigation undertaken by his employer, the Yorkshire Ambulance Service, he initially made no admissions of any wrongdoing. However, in a subsequent interview, he admitted to unsafe driving after viewing CCTV footage.

15. The factual allegations are admitted.

Assessment of witnesses
16. The Panel first considered the credibility of the witnesses who had given oral evidence. The Panel first heard from witness GB. He gave evidence about his investigation into the Registrant’s conduct with reference to the data used to assist him, the prevailing guidance documents for driving at work, the viewing of CCTV footage, and his fact-finding interviews with the Registrant and colleagues. The Panel considered his evidence was credible, consistent, and reliable.

17. The Panel carefully considered the weight, credibility and reliability to be attached to the Registrant’s evidence. The Panel considered the Registrant to be an honest witness who was remorseful for his actions. He had been willing to admit his failings, had tried to assist the Panel and had not been evasive.

Panel’s Approach
18. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual Particulars of the Allegation could only be found proved if the Panel was satisfied that that was the case on the balance of probabilities.

19. In reaching its decision, the Panel took into account the CCTV footage, the oral evidence of the HCPC witnesses, together with all the documentary evidence provided to it, including the Registrant’s evidence and admissions, as well as the oral submissions made by Ms Hastie on behalf of the HCPC and by Mr Rowe on behalf of the Registrant.

20. The Panel also accepted the advice of the Legal Assessor, which, together with Ms Hastie’s and Mr Rowe’s submissions, are a matter of record.

Decision on Facts
Particular 1(a) – Found Proved
21. The Panel found the facts of Particular 1(a) proved for the following reasons.

22. It is not disputed that on 11 December 2017, the Registrant was the driver of the ambulance in question.

23. GB produced a report into his investigation following receipt of an email from MC, a Patient Flow Manager at Mid Yorkshire NHS Trust. That email stated that members of the security team at Pinderfields General Hospital had seen, via CCTV, two ambulances racing from the emergency department and that one was trying to overtake the other.

24. He stated that he reviewed the CCTV footage, which was shown to the Panel as part of Ms Hastie’s opening. This footage showed that the Registrant drove an ambulance on the wrong side of the road round a blind left hand bend, narrowly missing a van.

25. GB informed the Panel that there were two current policy documents in force at the time in relation to driving at work: “Driving at Work Policy and Procedure” and “Guidance for Driving at Work”. He stated that by driving on the wrong side of the road as alleged, the Registrant breached these procedures, placed himself, colleagues and members of the public at risk and that by doing so, his actions bring the Trust into disrepute.

26. In the Registrant’s second investigation interview, the Registrant accepted that: “I left Pinderfields and my colleague was on the inside lane and I went around it, a van came towards me and I pulled back in, I was driving not as to the Trust’s guidelines on that occasion and I went to Aberford Road and I went round my colleague ambulance and I was irresponsible on the occasion”.  
27. The Panel has had sight of the CCTV footage which shows the Registrant driving as alleged. In the circumstances, the Panel accepts the evidence of GB as being credible and reliable and notes that the Registrant admits the facts of this Particular.

28. It therefore finds that the Registrant drove on the wrong side of the road whilst negotiating a blind left hand bend. By doing so, the Panel finds that the Registrant drove an ambulance in an unsafe manner.

Particular 1(b) – Found Proved
29. The Panel found the facts of Particular 1(b) proved for the following reasons.

30. The Registrant admits the facts of this Particular.

31. GB informed the Panel that the ambulance the Registrant was driving was fitted with a system called ‘Terratrack’. The system tracks the speed and position of the vehicle at any time. He stated that if an ambulance exceeds the speed limit, this would be recorded by the Terratrack data which can be reproduced in a graph. The Terratrack system provides an exemption from speeding for times when the ambulance is on an emergency call.

32. The Panel has had sight of the Terratrack data which showed that on 11 December 2017, the Registrant was driving at 41 mph in Stanley Road. The speed limit is 30mph. At the time, the Registrant was not responding to an emergency call.

33. GB stated that by driving in excess of the speed limit as alleged, the Registrant placed himself, colleagues and members of the public at risk and that by doing so, his actions bring the Trust into disrepute.

34. The Panel accepts the evidence of GB as being credible and reliable and notes that the Registrant admits the facts of this Particular.
35. It therefore finds that the Registrant drove in excess of the speed limit. By doing so, the Panel finds that the Registrant drove an ambulance in an unsafe manner.

36. In all the circumstances, the Panel found Particular 1(b) proved.

Particular 1(c)(i) – Found Proved
37. The Panel found the facts of Particular 1(c)(i) proved for the following reasons.

38. The Registrant admits the facts of this Particular.

39. GB also stated that the CCTV footage also showed the Registrant driving through a red set of traffic lights and on the wrong side of the road. Colleague B, who was in the ambulance at the time with the Registrant, was interviewed as part of the fact finding investigation, and confirmed that the Registrant drove through a red light.

40. The Panel has had sight of the CCTV footage which shows the Registrant driving as alleged. In the circumstances, the Panel accepts the evidence of GB as being credible and reliable and notes that the Registrant admits the facts of this Particular.

41. It therefore finds that the Registrant drove through a set of traffic lights when they were red and/or not yet green. By doing so, the Panel finds that the Registrant drove an ambulance in an unsafe manner.

42. GB stated that by driving through a set of traffic lights as alleged, the Registrant placed himself, colleagues and members of the public at risk and that by doing so, his actions bring the Trust into disrepute.

43. In all the circumstances, the Panel found particular 1(c)(i) proved.

Particular 1(c)(ii) – Found Proved
44. The Panel found the facts of Particular 1(c)(ii) proved for the following reasons.

45. The Panel has had sight of the CCTV footage which shows the Registrant driving as alleged. In the circumstances, the Panel accepts the evidence of GB as being credible and reliable and notes that the Registrant admits the facts of this Particular.

46. It therefore finds that the Registrant drove through a set of traffic lights on the wrong side of the road. By doing so, the Panel finds that the Registrant drove an ambulance in an unsafe manner.

47. In all the circumstances, the Panel found Particular 1(c)(ii) proved.

Decision on Grounds
48. On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct. It took into account the submissions made by both Ms Hastie and Mr Rowe and has accepted the advice of the Legal Assessor.

49. In considering whether the facts found proved amounted to misconduct, it noted that not all breaches of the HCPC’s Standards of Performance, Conduct and Ethics need to necessarily amount to a finding of misconduct.

50. Ms Hastie submitted that the Registrant’s conduct marked a serious departure from the standards expected of a registered Paramedic and was sufficiently serious to amount to misconduct.

51. She invited the Panel to conclude that the Registrant had breached Standards 6 and 9 of the HCPC Standards of Conduct, Performance and Ethics (2016) which state:
• 6 – Manage risk.
6.1. You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2. You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
• 9 – Be honest and trustworthy.
9.1. You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

52. Mr Rowe accepted on behalf of the Registrant that the facts found proved amounted to a serious falling short of the standard expected and amounted to misconduct.

53. The Panel heard and accepted the advice of the Legal Assessor, which included reference to the cases of: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581, and Calhaem v General Medical Council [2007] EWHC 2606 (Admin).

54. The Panel was referred to the case of Roylance v GMC (No.2) [2000] 1 AC 311, where it was stated that:

“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. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

55. In Nandi v GMC [2004] the Court referred to Roylance v GMC [1999], where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

56. The Panel first considered whether the facts found proved amounted to misconduct.

57. The Panel carefully considered all the evidence and submissions presented to it and considered the facts of the case in the round.

58. Given the Panel’s findings in relation to the facts found proved, it concluded that the Registrant breached Standards 6.1, 6.2 and 9.1 of the HCPC’s Standards of Conduct, Performance and Ethics (2016). However, the Panel was mindful that a finding of misconduct does not necessarily follow as a result. The Panel is also mindful that the question of misconduct is a matter for its own independent judgement irrespective of the Registrant’s admission. That admission is not determinative of the issue but is a factor for it to take into account.

59. The Panel carefully considered the seriousness of the Registrant’s failings. In his oral evidence, GB stated, and the Panel accepts, that the Registrant’s posed a risk of harm to himself, colleagues and other road users.

60. The Panel therefore concluded that the Registrant’s conduct and subsequent breaches of the HCPC’s Standards of Conduct, Performance and Ethics (2016) both individually and collectively, marked a serious departure from the standards expected of a registered Paramedic. The nature of the Registrant’s driving posed an unjustifiable risk to himself and others. The Panel therefore concluded that the Registrant’s behaviour amounts to misconduct. 

Decision on Impairment
HCPC submissions
61. Ms Hastie submitted, in summary, that the Registrant’s driving could have resulted in a road traffic accident and placed others at risk of harm. The Panel should be mindful of the need to maintain confidence in the profession and consider in particular the public policy issues. She submitted that the Panel should look at the Registrant’s conduct and consider its impact on his future behaviour. She submitted that the Panel should assess the level of the Registrant’s insight and remorse, and concluded that a finding of impairment was necessary to maintain confidence in the profession.

Submissions on behalf of the Registrant
62. Mr Rowe drew the Panel’s attention to the bundle of defence documents submitted. He referred the Panel to the Registrant’s reflective statements and submitted that the Registrant had demonstrated a significant level of insight. He submitted that despite an acceptance that the Registrant’s conduct amounts to misconduct, his fitness to practise was not currently impaired.

63. He stated that the Registrant had taken steps to remediate his failings in that he had taken and passed a driving course and had undertaken online driving hazard training. He submitted that the Registrant had provided a detailed reflection on his actions, was genuinely remorseful, ‘had held his hands up’ and had come to the hearing to tell the Panel the truth.                                                                 

64. He advised the Panel that the Registrant had not been suspended from duties after the Trust investigation, and that it was noteworthy that the Registrant was an otherwise competent paramedic and that he had been asked to supervise additional mentees, such was the regard in which he was held.

65. He accepted that the Registrant had been exceptionally foolish and that his conduct was an isolated incident, and one that would not be repeated. The Registrant, he submitted, had remediated his failings, was a safe practitioner and was highly unlikely to repeat his misconduct. A member of the public, being aware of all the facts, would not consider that a finding of impairment was necessary in these circumstances.

Decision
66. The Panel went on to decide whether, as a result of his misconduct, the Registrant’s fitness to practise is currently impaired. In doing so, it had regard to all the evidence presented in this case and the submissions of Ms Hastie and Mr Rowe.

67. It heard and accepted the advice of the Legal Assessor and took into account the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

68. In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

69. Paramedics are expected at all times to act in a professional manner. They must make sure that their conduct at all times justifies both service users’ and the public’s trust in the profession. In this regard, the Panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74, she said:
“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical 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 medical profession; and/or
d…”

70. Given its findings regarding ‘seriousness’, the Panel considered that limb b was engaged by the Registrant’s past actions.

71. Mrs Justice Cox went on to say in paragraph 76 of her decision:
“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.”

72. The Panel firstly considered whether the Registrant’s misconduct was remediable. It concluded that his misconduct was remediable as it related to poor driving standards.

73. The Panel then considered the level of the Registrant’s insight and whether he had remediated his failings. In reaching its conclusion, it took account of the following:
• The Registrant had demonstrated a high level of insight, reflecting on and appreciating the impact of his actions on colleagues, other road users and the reputation of the profession;
• He has expressed what the Panel accepted was genuine remorse for his actions, expressing his shame for, and unacceptability for his actions and a determination not to repeat them;
• He self-referred to the HCPC;
• He had undertaken and passed an appropriate driving course and undergone online hazard training;
• He has fully engaged with the process and made frank admissions at the start of the hearing.

74. The Panel, having determined that the Registrant’s failings were capable of remediation, concluded that he has demonstrated significant insight and that he has taken appropriate steps to remediate his failings.

75. In all the circumstances, in relation to the personal component of impairment, the Panel therefore concluded that it was highly unlikely that his misconduct would be repeated. The Panel therefore determined that the Registrant is not currently impaired in reference to the personal component.

76. The Panel went on to consider the public component and determined that on the first element of the public component, the need to protect service users, the Registrant is not currently impaired. However the Panel took into account its overarching responsibility to promote and maintain professional standards, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the Paramedic profession.

77. The Panel considered that the public would be seriously concerned if the failings identified were not marked by a finding of current impairment. The Registrant’s driving was repeatedly reckless, albeit that it related to a short period of time, and put his colleagues and other road users at risk of serious harm.

78. The Panel therefore concluded that there needed to be a clear message sent both to the profession and to the wider public of the importance of adhering to professional standards. In the Panel’s view, public confidence in the profession would be undermined if a finding of impairment were not made in all the circumstances.

79. Having regard to all of the above the Panel found that, by reason of his misconduct, the Registrant’s fitness to practise is currently impaired on the public component of impairment.

Decision on Sanction
HCPC’s submissions
80. Ms Hastie made submissions to the Panel on sanction. She referred to the HCPC’s Sanctions Policy (2019) (“the Sanctions Policy”) and reminded the Panel of the need to act proportionately.

81. Ms Hastie reminded the Panel that its role was to protect the public and the public interest. It was, she submitted, an exercise in addressing public safety having regard to the wider public interest and the reputation of the profession and confidence in the regulatory process. She set out the available sanctions open to the Panel, reminding it that the Panel is under no obligation to impose a sanction. She submitted that it should consider these in an ascending order of severity, not imposing any more severe a sanction than is necessary to achieve its objective. In doing so, the Panel should consider all the information before it and balance the public interest with the Registrant’s interests. She invited the Panel to take into account any aggravating and mitigating factors identified.

Submissions on behalf of the Registrant
82. Mr Rowe submitted that, having considered the Sanctions Policy, all the factors that would make this case suitable for such an outcome were present. He accepted that the misconduct was not minor in nature, but that the misconduct was nevertheless isolated and limited in time.

83. He submitted that this was a ‘one-off’ error and that there had been no recurrence of his misconduct. He reminded the Panel of its earlier conclusion that it considered that it was highly unlikely that his misconduct would be repeated and that the Registrant had taken appropriate steps to remediate his failings.

84. He further submitted that a Conditions of Practice Order was inappropriate given the basis for the Panel’s determination on public interest grounds alone, and further that a period of suspension was disproportionate. He submitted that should the Panel conclude that a period of suspension should be imposed, he asked that it be for 1 day only. Suspending the Registrant would deprive the public of an otherwise competent paramedic.

85. He submitted that if the Panel accepts his principal submission that a caution order was appropriate, that it be for a period of between 3 and 4 years to mark the gravity of the misconduct.

Decision
86. The Panel accepted the advice of the Legal Assessor who referred it to HCPC’s Sanctions Policy. He reminded the Panel that the purpose of a sanction was not to be punitive but that the imposition of a sanction may have a punitive effect. He advised the Panel that it should consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public and the public interest. It should also consider any aggravating and mitigating factors and bear in mind proportionality. He also advised the Panel that the primary purpose of imposing a sanction was the protection of the public and the public interest and that there was a need to balance those interests with the interests of the Registrant.

87. The Panel considered all the information before it. In doing so, the Panel identified the following aggravating factor:
• the Registrant’s driving was reckless and put himself and others at risk of serious harm had a collision occurred.

88. The Panel identified the following mitigating factors:
• The Registrant self-referred to the HCPC and positively engaged in the regulatory process;
• In its finding on impairment, the Panel has identified that the Registrant has demonstrated significant insight into his failings and had remediated them;
• There have been no previous adverse regulatory findings against the Registrant and that the misconduct found proved relating to a very short period of time in an otherwise unblemished career;
• The Panel has had regard to the positive references supplied confirming that the Registrant is an otherwise competent Paramedic.

89. In accordance with the Sanctions Policy guidance, the Panel approached the issue of sanction starting with the least restrictive first, bearing in mind the need for proportionality.

90. It considered that taking no further action would not reflect the serious nature and gravity of the misconduct found proved. Nor would that be adequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

91. The Panel considered mediation, but considered that this was not an appropriate outcome given the facts of this case in that it would not be relevant to addressing the public interest concerns identified.

92. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99 - 102 of the Sanctions Policy as to when such an order might be appropriate.
93. Paragraph 101 of the Sanctions Policy identifies when a caution is likely to be an appropriate sanction. The Panel carefully reviewed its findings against these criteria. The Panel recognised that the misconduct found proved was not minor in nature. However, the Panel has identified that the Registrant’s misconduct was an isolated failing in an otherwise unblemished career.

94. In respect of the Registrant’s insight and the risk of repetition, the Panel found that he has recognised his failings and has undertaken appropriate remediation such that the Panel concluded that there was little likelihood of further public harm. The Panel noted that the Registrant has continued to work as a Paramedic since the incident without concern. In the circumstances, the Panel concluded that, despite the seriousness of his failing, a Caution Order was the appropriate and proportionate sanction to impose to meet the public interest concerns.

95. In considering the length of the Caution Order, the Panel had regard to paragraphs 103 and 104 of the Sanctions Policy and concluded that the order should be imposed for a period of one year. This effectively balanced the seriousness of the misconduct with the Registrant’s interests and met the overarching need to maintain public confidence in the profession and the regulatory process.

96. Having concluded that a Caution Order was the appropriate sanction to impose, the Panel considered whether the next available sanction, namely a Conditions of Practice Order, was appropriate. It has had regard to paragraphs 105 - 117 of the Sanctions Policy. It has concluded that, given that the Panel’s finding was made on public interest grounds alone, a Conditions of Practice Order, which focusses on the need to remedy practice deficiencies, would not be appropriate.

97. Given that a Conditions of Practice Order was inappropriate, the Panel considered whether to impose the sanction of suspension. However, the Panel concluded that such a sanction which would prevent the Registrant from practising for a period of up to 12 months, would be disproportionate and unduly punitive. The Panel did not consider that the public interest required that the public and the profession be deprived of an otherwise competent Paramedic who had recognised and addressed his isolated failings and who had continued to practise safely since.

98. The Panel accordingly determined to impose a Caution Order for a period of one year.

Order

The Registrar is directed to annotate the register entry of Mr Noel Scott with a Caution which is to remain on the register for a period of 1 year from the date this order comes into effect.

Notes

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

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

Hearing History

History of Hearings for Mr Noel C Scott

Date Panel Hearing type Outcomes / Status
10/02/2020 Conduct and Competence Committee Final Hearing Caution