Mr Lars Stuewe

Profession: Paramedic

Registration Number: PA23252

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/01/2021 End: 17:00 08/01/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

During the course of your engagement with Concierge Practitioners NI Ltd and CPNI Ambulance Service Ltd:

1. You behaved inappropriately and/or offensively towards Colleague A, in that:

a. Between around 1 April 2012 and 25 May 2015 you:

i. Made homophobic comments towards Colleague A;

ii. Made homophobic gestures towards Colleague A;

iii. Not Found Proved

iv. Not Found Proved

v. Referred to Colleague A as ‘gay-boy’ or words to that effect;

vi. HCPC offered no evidence;

b. On or about 26 May 2013, you discussed Colleague A’s homosexuality with Witness 1 and:

i. Questioned how Witness 1 could associate with Colleague A given Witness 1’s religious beliefs;

ii. You referred to homosexual persons as being seen as:

1. ‘an abomination’ or words to that effect; and/or

2. ‘living in sin’ or words to that effect;

c. Not Found Proved

d. On or about 1 November 2013, you discussed Colleague A’s homosexuality with Witness 1 and;

i. Questioned whether Witness 1 was ‘comfortable going into business with someone who is gay’ or words to that effect;

ii. Said ‘what would Father think if he knew this?’ or words to that effect;

e. Not Found Proved

i. Not Found Proved

ii. Not Found Proved

iii. HCPC offered no evidence

f. Not Found Proved

i. Not Found Proved

ii. Not Found Proved

2. Your actions, as set out in particulars 1(a)-(f), constitute misconduct;

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

 

 

Finding

Background

1. The Registrant is registered with the HCPC as a Paramedic. The Registrant and the complainant, Colleague A, both worked for a private ambulance service, Company C (Company C appears to have two corporate entities). Company C was formed in 2012 and the Registrant, via his family company, was the majority shareholder. Colleague A was appointed a Director of Company C on 30 August 2013.

2. It is alleged that the Registrant made a number of discriminatory and homophobic comments about Colleague A. The inappropriate and offensive comments are alleged to have been made directly to Colleague A and at times to others when Colleague A was not present. The alleged behaviour occurred over a period of approximately 3 years.

3. Colleague A was suspended from Company C on 29 April 2015 and was dismissed on 25 May 2015 in relation to allegations of misconduct. Following his dismissal, Colleague A lodged an Employment Tribunal discrimination claim.

4. During the course of the hearing the Panel determined a number of applications. The applications made during the 5 - 18 September 2019 and 6 – 17 January 2020 hearing dates are set out in Annex A.

Half time submission

5. The Registrant provided the Panel with a written document setting out his submissions. He submitted that there was no case to answer in respect of all the particulars of the Allegation. He submitted that there were examples of inconsistent, tenuous, and vague evidence given by the HCPC witnesses and that the HCPC witnesses were not reliable or credible. He submitted that the HCPC witnesses had colluded and their evidence against him was due to an acrimonious falling out of personalities in a private enterprise.

6. Mr Olphert submitted that there was a case to answer and that the matter should proceed for the Panel to consider all the evidence. He submitted that the evidence of the HCPC witnesses was sufficient to require the Panel to move to the next stage and make a full assessment of the credibility of witnesses, after hearing the Registrant’s case. He submitted that the evidence of the HCPC witnesses had not been demonstrated to be so unreliable or discredited that a disposal of the case at this stage was appropriate.

7. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on half time submissions. It noted that the burden of proof was on the HCPC and that the standard of proof was the
 
balance of probabilities.

8. The Panel determined that there is a case to answer. The Panel noted that there appeared to be a significant conflict of evidence. The Panel has an open mind in relation to that conflict. It has not made any findings of fact, and it also retains an open mind in relation to the disputed issue of the credibility of the HCPC witnesses. In view of the importance of keeping an open mind, the Panel gives brief reasons for its conclusion that there is a case to answer.

9. The Panel noted that it has heard from four HCPC witnesses who have given oral evidence to the Panel. There is evidence from at least one of the witnesses on each particular of the Allegation. The Panel therefore found that the HCPC has presented some evidence upon which the Panel could find the Allegation and each particular of the Allegation proved.

10. The Panel next considered whether the evidence was so unsatisfactory in nature that the Panel could not find the Allegation or an element of the Allegation proved. In the Panel’s judgement, the evidence was sufficient to cross the threshold. It was not so unsatisfactory that the case should be dismissed at the half time stage.

11. The Panel considered that this was a case where the strength of the evidence rested on the Panel’s assessment of the reliability and credibility of the witnesses. Therefore, the Panel considered whether the evidence of the HCPC witnesses was so unreliable or discredited that the Allegation or any of the particulars of the Allegation were not capable of being proved. The Panel’s conclusion was that there were credibility issues which would need to be determined and noted the issues relating to credibility in the Registrant’s submissions. However, the Panel’s judgment was that the HCPC’s evidence was not so discredited or unreliable that the case should not proceed to the next stage.

12. For all these reasons, the Panel has concluded that there is a case to answer and that the hearing should proceed.

Documentary evidence

13. The Panel carefully read the HCPC bundle of exhibits, the Registrant’s bundle of documents, and additional documents R1-R11.

Witness and evidence and testimonial evidence

14. The Panel heard evidence from four HCPC witnesses Colleague A, SC, Witness 2, and Witness 1.
 
15. The Registrant submitted that the allegations against him are all entirely untrue and that there was a conspiracy or concoction of evidence between the HCPC witnesses due to dislike and prejudice against him.

16. The Panel accepted the Registrant’s submission that after the Registrant’s departure from Company C and Northern Ireland there continued to be links between the HCPC witnesses. This covered a range of connections such as participation in St John Ambulance activities, mutual friendships, and three of the witnesses (SC, Colleague A, and Witness 1) had involvement with a new company which conducted similar business to Company C. SC does not appear to have been part of a social group which included Colleague A, Witness 1 and Witness 2, but there were nevertheless some connections. In his evidence Witness 1 was sometimes evasive, for a variety of reasons which are explained later in this document, when he was asked about the connections and events relating to Company C after the dismissal of Colleague A.

17. The Panel did not conclude from these connections that any of the HCPC witnesses had conspired against the Registrant or concocted their evidence. The Panel noted that although the evidence of the HCPC witnesses was broadly consistent, there were differences in detail and that each witness brought a different and personal perspective. Their accounts were not so similar to suggest that they had been concocted. The Panel considered that each of the HCPC witnesses had given evidence which was fluent and/or of sufficient detail relating to the Particulars to be convincing.

18. The Registrant submitted in relation to Colleague A that he was lying about the Registrant as a vindictive act of revenge which stemmed from Colleague A’s dismissal from Company C. The Registrant provided the Panel with documentary evidence that in 2015 the Registrant together with the other directors of Company C, identified a wide range of allegations against Colleague A including serious financial impropriety. These concerns led to the suspension of Colleague A on 25 April 2015 and his dismissal on 25 May 2015.

19. On 24 August 2015 Colleague A sent a memo to the Registrant, copied to directors including Witness 1. This memo set out, in strong terms, Colleague A’s perspective on his dismissal and in it he clearly expresses his anger in relation to his treatment by the Registrant. Colleague A refers in this memo to his intention to “report to HCPC and companies house” unless he receives a severance package. In the memo Colleague A referred to slander, collusion, fraud, and deception relating to his dismissal and business matters. He did not mention homophobic
 
abuse or any of the allegations which form part of the HCPC Allegation.

20. The Registrant also provided the Panel with the first page of a “board letter of intention” dated 2 July 2015 from Colleague A to the directors of Company C. This letter is similar to the 24 August 2015 memo. It includes a threat of legal action and a threat to report matter to the press. Again, it refers only to Colleague A’s departure from Company C and makes no mention of any alleged homophobic abuse.

21. Company C instructed solicitors and on 22 September 2015, a “cease and desist” letter was sent to Colleague A on behalf of a Director of Company C. This letter concerned the appointment of Colleague A and Witness 1 as directors of Company C and it threatened court action unless Colleague A took action including terminating the appointments.

22. The Panel inferred from this correspondence that in mid to late 2015 there was mutual hostility in the relationship between the Registrant and Colleague A. That hostility was entirely focussed on business matters and the departure of Colleague A from Company C.

23. Colleague A brought a claim in the Employment Tribunal against Company C for unfair dismissal. The unfair dismissal claim was amended at a pre-hearing review to include a claim for discrimination. This change in the nature of the claim came about as a result of guidance given by the Employment Judge at a pre-hearing review. The Panel accepted that the guidance was pivotal in changing Colleague A’s perception of his rights. He told the Panel that prior to that he was unaware that adverse comments about his sexual orientation could be construed as discrimination in Northern Ireland.

24. Although Colleague A now makes a connection between the allegations of homophobic bullying and his dismissal from Company C, the Panel noted that in August and September 2015 he did not make that connection. Colleague A’s concern at that time were the disciplinary and financial matters he set out in his memo dated 24 August 2015.

25. The Panel observed that Colleague A was bitter and upset about the circumstances of his dismissal and that he regarded the Registrant as responsible for his dismissal. The dismissal process and allegations made by Company C appeared to have had a significant impact on Colleague A’s career because Colleague A thinks they resulted in Fitness to Practise proceedings at the Medical School where Colleague A was studying. Colleague A therefore had a motive or reason to lie about the Registrant. The complaint Colleague A made to the HCPC dated 31 October 2016 shortly after the conclusion of the discrimination
 
Employment Tribunal proceedings is not linked in content to the August 2015 memo.

26. The Panel did not find that Colleague A’s negative emotions towards the Registrant led him to invent an allegation and to involve three other individuals in an entirely concocted allegation as a vendetta against the Registrant. The Panel found that Colleague A was a credible witness in relation to his description of the matters set out in the HCPC Allegation. His oral evidence was consistent with his written statement and with the earlier statement for the Employment Tribunal.

27. Colleague A made no complaint about the conduct he described until after his dismissal and did not contemplate doing so. The Panel found that Colleague A initially had a friendship and that Colleague A was prepared to tolerate the Registrant’s conduct while Company C was prospering. Colleague A did not challenge the Registrant or suggest that the comments were inappropriate. The Panel considers that this was in part due to Colleague A becoming conditioned by the behaviour. His oral evidence on this was compelling. In addition, if Colleague A was not “out” he would not have wished to draw this aspect of his life to sharper focus. Colleague A did not raise any concerns until he had been dismissed and the dispute between himself and the Registrant was apparent.

28. The Panel noted that some other HCPC witnesses (not SC) described Colleague A as being openly gay whereas he described himself as being not “out” as a gay man at the material time. Colleague A accepted that the Registrant, who knew him well, might deduce his sexual orientation even if he had not been told directly. Colleague A told the Panel that at the time covered by the Allegation members of his family did not know that he was gay. The Panel’s view was that this difference did not indicate that Colleague A was misleading the Panel. Colleague A’s perspective was different from that of other witnesses who knew him well and had deduced that he was gay. Other witnesses would not know whether Colleague A had directly informed members of his family of his sexual orientation.

29. It was of particular significance to the Panel that several serious allegations about Colleague A which the Registrant made were not raised at all in cross-examination. For example, the Barclay’s bank cheque dated 16 September 2015 was alleged by the Registrant to have been an attempt by Colleague A to use company funds inappropriately after he had been dismissed. Another example was that the Registrant said that Colleague A had told him the new premises had been funded in part by “cooking the books”. As these matters were not raised in cross-
 
examination the Panel puts little weight on them.

30. The HCPC witness SC became involved with Company C in 2012. The Registrant invited SC to become involved in Company C in a training role and SC also took on administrative tasks for Company C. SC was candid in stating that his business relationship with the Registrant deteriorated and that this led to his resignation from Company C in August 2013.

31. The Panel found that SC was a credible witness. His evidence was balanced and, of all the HCPC witnesses, he appeared to the Panel to be the less emphatic and most neutral witness. He described that Colleague A used terms of abuse against the Registrant such as “Herman the German” and other insults. He described the comments on both sides as “entirely jocular”. He was clear in his recollection of the “gay boy” comment made by the Registrant when he and the Registrant were waiting for Colleague A to arrive in the office and the Registrant asked “Well, where is gay boy?” .

32. The Registrant submitted that SC disliked him and that his evidence was therefore unreliable. The Panel noted that the concerns that led to SC’s departure from Company C are historic and have not had a long-term impact on SC. SC left Company C in 2013 before the company experienced a financial downturn and he was able to sell his shares to Witness 1. The Registrant relied on a written statement from LH, a relative of the Registrant’s then partner. LH stated that SC had spoken to her negatively about the Registrant. In cross-examination SC was not asked about this matter at all, and in those circumstances the Panel could not reach a negative conclusion arising from it. The Panel did not give any weight to the hearsay statement.

33. In Panel questions SC was asked about a different matter; a suggestion of financial impropriety relating to the purchase of an ambulance in England by SC on behalf of Company C. SC had no recollection of a problem relating to the purchase. The Registrant provided the Panel with text messages dated 25 June 2013 that showed that the Registrant made an enquiry with SC about a sum of £7,000. However, there was no evidence that this continued to be an ongoing issue after SC’s departure from Company C. In cross-examination the Registrant acknowledged that in relation to business matters there were fall outs with SC and “back fallings ins as well, as with all other associates”.

34. Witness 1 became involved with Company C as a shareholder in September 2013 and he also held a role as an Ambulance Operational Officer. His direct involvement with Company C ceased in the summer of
 
2015.

35. Although the Panel had reservations about parts of the evidence of Witness 1, it found him to be a broadly credible witness in relation to the HCPC Allegation. The Panel acknowledged that the lengthy cross- examination was difficult for Witness 1 because he was being questioned directly by the Registrant, whereas other witnesses were questioned by Mr Templeton. Further, he was being challenged about his own conduct in the business of Company C which is not directly related to the Allegation. He was evasive in relation to some of these questions. The Panel noted that he was the most guarded of all the HCPC witnesses and demonstrated openly his hostility towards the Registrant.

36. By the time Witness 1 gave his evidence, he did not appear to the Panel to be strongly motivated to assist the Panel, and at times he gave the impression that he did not want to give evidence. In the Panel’s view the reluctance of Witness 1 stemmed primarily from his concern relating to matters outside the HCPC Allegation, including matters arising from the Registrant’s bundle of evidence. However, Witness 1 did demonstrate willingness to assist the Panel when he initially attended the hearing in person at considerable inconvenience to himself.

37. The Panel’s view was that while Witness 1 did not wish to give evidence, he also appeared to have a strong moral compass and wanted to give honest answers to the cross-examination questions. While the Panel accepted the Registrant’s submissions about Witness 1’s hostility towards the Registrant, it did not conclude that the evidence of Witness
1 about the HCPC Allegation was therefore not credible. The Panel came to this conclusion because it attributes Witness 1’s hostility to being significantly disturbed by having to be cross-examined by the Registrant. Witness 1’s oral evidence was consistent with his written statement and his statement for the Employment Tribunal.

38. The Panel did not resolve all issues raised in the Registrant’s cross- examination of Witness 1 which related to the business of Company C, its shareholders and Directors. The Panel considered these matters to the extent that they were relevant to the particulars of the Allegation and to the Panel’s assessment of the credibility of Witness 1 in relation to the HCPC Allegation.

39. The Panel accepted Witness 1’s evidence that he had had concerns about the Registrant’s behaviour towards Colleague A and had expressed his concerns on occasions. Witness 1 told the Panel that he had been limited in his challenge of things that the Registrant did
 
because he described the situation as being “suicidal” to go against the Registrant. The Panel also accepted Witness 1’s evidence that he had expressed concerns about what had been said about Colleague A during Colleague A’s disciplinary process. GK was one of the individuals present at the board meeting on 28 March 2015. The Panel considers that Witness 1’s assertion that he had expressed concerns in writing when the minutes were circulated and GK was included in the circulation. This was demonstrated to the satisfaction of the Panel by Witness 1’s insistence on having done so during the course of his oral evidence and because he was able to say to whom at the HCPC and on what date he had sent a copy of the note expressing his concerns.

40. Witness 2 worked for Company C as an Emergency Ambulance Technician, amongst other duties, for two years. She was made redundant in 2015, following this she was unemployed for a period of time.

41. In his evidence the Registrant suggested that Witness 2’s evidence could not be regarded as neutral because she had been made redundant by Company C. He also suggested that Witness 2 was supporting Colleague A due to her friendships with Colleague A and Witness 1.

42. The Panel would not describe Witness 2 as a neutral witness. She was critical of the Directors of Company C, including the Registrant, for their expenditure of company money. Although Witness 2 demonstrated some negativity towards the Registrant, the Panel’s assessment was that she was genuinely describing her recollection of events.

43. The Registrant provided the Panel with character testimonials from OC, TM, MM, GR, BM, AJ, RC, SM, GS, KS, MT and JA. These testimonials are from individuals who have known the Registrant for varied periods of time and some of them are addressed to the HCPC. The references confirm the Registrant’s professionalism, his integrity, and the high standards of his work as a Paramedic. The testimonials are also positive as to the Registrant’s character and his respect for all colleagues and patients. For example AJ described the Registrant’s work in his company and he did not witness the Registrant ridiculing anyone or showing disrespect for anyone’s sexuality. The positive statements include one from an individual who identifies as gay.

44. The Panel particularly noted the content of one reference from an individual who identifies as transgender. That individual describes the Registrant positively and refers particularly to the Registrant’s insight in recognising her sensitivity with regard to where the bathrooms were
 
located where she would feel safe.

45. The Panel took this evidence of the Registrant’s good character into account, but gave it limited weight because it noted that the majority of the testimonials described the Registrant’s conduct in organisations other than Company C. The Panel heard evidence that Company C as a start up company lacked the formalities and routines that are common in more well-established organisations with robust management procedures. For example, the Panel heard evidence that individuals handled large sums of cash and that premises were renovated for the Company without formal involvement by the Directors. Company C appeared to lack the checks and balances that are well established for mature companies. The environment in Company C, and the Registrant’s position as majority shareholder of Company C, was very different from other organisations for which he had worked. Initially the environment was very friendly and informal, but the personal relationships deteriorated.

46. The Panel also noted evidence from the HCPC witnesses that he was a dominant personality and that he made bullying remarks, such as comments about Colleague A’s body hair and weight.

47. The Panel read and noted the agreed witness statement of GK, former director of Company C. Whilst the Panel noted this evidence, where it was inconsistent with the oral evidence of Witness 1, the Panel preferred the evidence of Witness 1.

48. The Panel heard evidence from the Registrant’s witness, LS. LS and the Registrant are friends and the Registrant is a guardian of LS’s son. LS’s statement includes wide ranging criticism of the character and actions of the HCPC witnesses. There was no suggestion that LS was present when any of the conduct reported by the HCPC witnesses occurred.

49. The Panel found that LS had a clear motivation (related to his significant personal connections to the Registrant), which he himself admitted, to support the Registrant and that much of his evidence was based on what he had heard from other individuals. For these reasons the Panel gave limited weight to LS’s evidence despite concluding that he had done his utmost to assist the Panel and was considered in his responses. LS had worked intermittently for Company C and told the Panel that he was not aware of any adverse behaviour by the Registrant. However, he did describe other people’s lack of propriety in relation to Company C.

50. The Panel heard evidence from the Registrant. He has wide experience as a Paramedic in the field of emergency medicine, and the Panel had
 
no doubt that he is a skilled and experienced Paramedic.

51. The Registrant was emphatic in his denial of the entirety of the Allegation. His evidence to the Panel was not entirely consistent with his earlier statement for the Employment Tribunal. In that statement he acknowledged, to a greater extent, the context described by the HCPC witnesses, though he did not accept that any of the inappropriate conduct had taken place. For example, he stated that he attended the Radio 1 Big Weekend event, referring to Witness 1’s description of that event. In his oral evidence the Registrant stated that St John Ambulance did not participate in covering the event.

52. The Panel found that the Registrant’s denial of the entirety of the Allegation was not credible.

53. There were other aspects of the Registrant’s evidence that the Panel found not credible. He was adamant that in text communications he never used an emoji. He explained the widespread use of emojis (smiley faces) in the text messages sent from his mobile phone by stating that all the relevant messages had been sent by his partner while he was driving the car and not by himself. The Panel did not accept that all the relevant messages were written by the Registrant’s partner.

54. The Registrant produced a photograph which he stated supported his account that Witness 1 had been burning sharps which had then led to him being rebuked. The photograph did not match the Registrant’s description of the container used, and the Registrant also stated that he was not a direct witness to the incident.

55. The Panel considered that there were different aspects of the Registrant’s character. The Panel did not find that he holds homophobic views and it recognised that he has, with other individuals, demonstrated his respect and insight into diversity matters. This is supported by his very good testimonials and seemingly unblemished history. Nevertheless, the Panel found that in the particular and unusual environment of Company C, he displayed different aspects of his character which were dominant and controlling.

Decision on facts

56. The Panel bore in mind that the burden of proof is on the HCPC to prove every particular to the required standard which is the balance of probabilities. The Panel considered each particular separately.

57. The Panel accepted the advice of the Legal Assessor and made its own decision on the basis of the evidence. It did not take into account any
 
conclusion reached by the Employment Tribunal.

Particular 1(a)(i)

58. The Panel found particular 1(a)(i) proved by the evidence of Colleague A, Witness 1, and Witness 2.

59. Colleague A described that the Registrant referred to him as a “gay boy” and that this expression was used more frequently than his name. Colleague A told the Panel that he became conditioned to this behaviour.

60. This behaviour was inappropriate, because comments relating to an individual’s sexual orientation should not be made, particularly in a work environment. Colleague A became conditioned to the comments and accepted them. When the comments were first used there was a friendly relationship between the Registrant and Colleague A. Despite the initial friendship, from Colleague A’s perspective, the comments were offensive because he felt bullied. His emotional reaction had not reached a level which led to him taking any action to raise a formal complaint prior to his dismissal.

Particular 1(a)(ii)

61. The Panel found particular 1(a)(ii) proved by the evidence of Colleague A, Witness 1 and Witness 2. All three witnesses describe gestures made by the Registrant. The accounts of the witnesses are not identical. Colleague A described shivering gestures and used the expression “so its like walk over their grave”. Witness 1 in his witness statement described the Registrant making “gagging and physical gestures graphically imitating sexual actions”. Witness 2 in oral evidence stated that the shuddering and the hand motions were “frequent”.

62. This behaviour was inappropriate and offensive towards Colleague A because implicitly it was commenting on Colleague A’s sexual orientation.

Particular 1(a)(iii)

63. The Panel found particular 1(a)(iii) not proved. Although the Panel found the gestures described by the witnesses were made (which is the conduct in particular 1(a)(ii), in their evidence the witnesses described the gestures as a separate incidents rather than connected to a comment on homosexual acts.
 
Particular 1(a)(iv)

64. The Panel found particular 1(a)(iv) not proved.

65. In support of this particular the HCPC relied on text messages and submitted that these demonstrate baldly intrusive enquires about Colleague A and Person A’s interactions. The text messages relied on was an exchange between Colleague A and the Registrant dealing partly with business matters. The Registrant submitted that no reliance should be placed on the text messages for a range of reasons.

66. The Panel decided that the text messages relied on by the HCPC did not demonstrate that the Registrant was making intrusive enquiries as alleged. The Panel noted that there were unusual unexplained comments in the text messages, particularly the message “Lol use and abuse :-) and a bit of pleasure ;-)” (a message sent from the Registrant’s phone to Colleague A. In the Panel’s view this message, whatever its meaning might be, did not amount to an enquiry and did not prove particular 1(a)(iv).

67. In addition to the text messages the HCPC relied on the evidence of Witness 1 and Witness 2. Witness 1 described in his witness statement and in his oral evidence a business meeting at Frankie and Benny’s in August 2014 attended by himself, Witness 2, the Registrant’s partner and the Registrant. However, Witness 2 did not give the same description of what had been said.

68. For this reason the Panel was not satisfied that this Particular was proved.

Particular 1(a)(v)

69. The Panel found particular 1(a)(v) proved by the evidence of Colleague A and SC.

70. SC recalled the use of the phrase “gay boy”. The Registrant used the phrase, referring to Colleague A, when Colleague A was not present while SC and the Registrant were waiting for Colleague A.

71. This conduct is inappropriate. When the remark was made directly to Colleague A it was offensive.

Particular 1(b)

72. The Panel found particular 1(b)(i) proved by the evidence of Witness 1.

73. The Registrant knew that Witness 1 was a member of a Church and had
 
commitments on Sundays. The Registrant also knew from his friendship with Colleague A, that Colleague A was gay.

74. Witness 1 recalled a conversation with the Registrant which took place after a conversation at the Radio 1 “One Big Weekend” over the weekend of 25 May 2013. In that conversation the Registrant raised the issue of the compatibility of Witness 1 associating with Colleague A, given Witness 1’s religious beliefs.

75. The Registrant submitted that Witness 1’s account was untrue because St John Ambulance were not contracted to attend the event on this date. He provided the Panel with an e-mail from St John Ambulance dated 26 April 2019 stating that St John Ambulance were not on duty at the event and that another company Proparamedics were contracted for the event.

76. In his evidence in chief Witness 1 confirmed that he was present at the event as a member of St John Ambulance, and not as a representative of Company C. When the Registrant asked Witness 1 about the event and the e-mail from St John Ambulance, Witness 1 explained that St John Ambulance was not providing cover for the event itself, but that the local authority for the area arranged for St John Ambulance to provide cover outside the concert grounds because of the scale of the event. The Panel found that this was a cogent credible answer to the Registrant’s submission.

77. The Panel have already noted that the Registrant’s evidence about this weekend is not consistent. The Registrant’s first and more contemporaneous response to Witness 1’s statement in his statement to the Employment Tribunal was to recall that he attended the event on behalf of Company C.

78. The Panel found particular 1(b)(ii)(1) and (2) proved by the evidence of Witness 1.

79. This particular relates to the same conversation connected with the Radio 1 Big Weekend in May 2013. The Registrant submits that the conversation could not have taken place as described by Witness 1 because the Registrant does not have a detailed knowledge of biblical verses and would not have referred to Leviticus.

80. In his evidence in chief Witness 1 was asked about the biblical verses he had mentioned in his witness statement. He clarified his evidence that the Registrant did not refer to chapter or verse, but paraphrased using words to the same effect as the bible passage. Witness 1 recognised the source of the relevant passage. Witness 1 explained that “the word
 
abomination is very much associated with that chapter and verse”.

81. The Panel found that it was plausible that the Registrant used the words “an abomination” and “living in sin” as described by Witness 1. The Registrant had at one point stayed with a religious order and he had the relevant knowledge to use the language set out in particular 1(b)(ii).

82. The discussion by the Registrant of Colleague A’s sexual orientation was inappropriate and offensive towards Colleague A because the Panel has inferred that Colleague A would not have wanted this discussion to take place, particularly as he was not “out” at the time.

Particular 1(c)

83. The Panel found particular 1(c) not proved.

84. The HCPC relied on the evidence of Witness 2. The Panel did not find that evidence was sufficient to prove particular 1(c). The Panel took into account the length of time that has lapsed, the absence of corroborating evidence, the lack of detail about the circumstances of the social event, the absence of evidence of similar comments of this nature, and the undisputed evidence relating to the Registrant’s background and his personal connections. The Registrant was aware that matters relating to his family could be heard in private session, but he chose that they should be heard in public session.

85. The Registrant is a German national. He gave evidence about the culture of Germany and the complete intolerance of remarks about the Nazis or the holocaust. He pointed out that there were no extermination camps in the territory of Germany. He explained that members of his own family were not members of the Nazi party and that his father was placed in a slave labour camp. The Registrant’s then partner, and now wife, is of Jewish heritage. Her maternal grandmother was killed by the Nazis in Auschwitz.

Particular 1(d)(i) and 1(d)(ii)

86. The Panel found particular 1(d)(i) proved by the evidence of Witness 1.

87. The Registrant’s position is that the conversation could not have taken place as described by Witness 1 because of the timeline of events. The Registrant relied on the fact that the transfer of shares to Colleague A was in September 2013, and that the conversation described by Witness 1 was on or about November 2013. In his evidence Witness 1 became confused by the Registrant’s questioning and was uncertain in some of his answers relating to the dates. In the Panel’s view this was
 
understandable given the passage of time since the events and the fact that Witness 1 would not have anticipated that he would be asked about this matter.

88. In his written witness statement Witness 1 stated that the conversation took place “when I bought SC’s shares”. In oral evidence he was unable to give a precise date for the conversation, but described that it was around the time he signed the share agreement. When challenged on this point Witness 1 explained that the date of transfer of the shares did not necessarily coincide with the date he signed the share agreement.

89. The Panel found that the date given in Witness 1’s witness statement might be inaccurate as to the share signing date, but that it was sufficiently close to 1 November 2013 that the Panel could find the particular proved.

90. Witness 1 described a conversation which was very similar to the conversation in particular 1(b). The Registrant referred to Witness 1’s religious beliefs and questioned whether Witness 1 should go into business with Colleague A. In his oral evidence Witness 1 expanded on his written statement and outlined that in response to the Registrant he referred to the position of the Catholic church which distinguishes between individuals who have a homosexual orientation, who are not sinful people, and homosexual acts which are sinful.

91. The Registrant described a discussion about Witness 1’s investment in Company C, but stated that the only point raised by the Registrant was about the risk involved in the investment given Witness 1’s young age. The Panel did not accept this version of the conversation because of the compelling nature of Witness 1’s evidence on this issue.

92. The Panel found particular 1(d)(ii) proved by the evidence of Witness 1.

93. The remark “what would Father think if he knew this” or words to this effect were said in the same conversation on the share signing date. By “father” the Registrant was referring to a Catholic priest. The Registrant was implying to Witness 1 that members of the clergy, within Witness 1’s church, would be concerned if Witness 1 proceeded with his investment and went into business with Colleague A.

94. This remark was both inappropriate and offensive towards Colleague A. Particular 1(e)
95. The Panel found particulars 1(e)(i) and (ii) not proved because the HCPC has not proved that the suggestion was made “to Colleague A” as
 
alleged. In support of this particular the HCPC relied on the evidence of Witness 1, corroborated by the evidence Witness 2 and Colleague A.

96. The Panel found that the Registrant spoke to Witness 1 on several occasions about the risk of HIV arising from sharps and an increased risk of infection where needles were used by homosexual staff. Witness
1 was clear in his description of the conversations that they were addressed to himself and not to Colleague A. Colleague A overheard the comments at events, but the comments were not directed to Colleague A.

Particular 1(f)

97. The Panel found particulars 1(f)(i) and 1(f)(ii) not proved. The HCPC relied on the evidence of Witness 1 and Witness 2. Witness 1 and Witness 2 were both present at a meeting at Frankie and Benny’s restaurant with the Registrant and the Registrant’s then partner. Witness 1 describes that the Registrant was asking about whether Colleague A and the Registrant’s partner slept in the same bed and if they were in a relationship. It is alleged that during the same conversation the Registrant also made jokes and said they must be having “bum fun”. Witness 2 was present at the same meeting, but she did not describe the same comments either in her written statement or in her oral evidence. She recalls different comments.

98. The Panel found that while Witness 1 was able to give the Panel further persuasive details about other incidents, his evidence relating to this incident was less detailed. Given the absence of detail and corroborating evidence the Panel found that there was insufficient evidence to prove this particular to the required standard.


Reconvened Hearing on 23 June 2020
Preliminary Matters
99. The hearing was listed to take place as a virtual hearing using Microsoft Teams software. The Hearings Officer had conducted test calls with the Panel and the Registrant which appeared to be satisfactory. The Registrant was participating from a location outside the United Kingdom. During the first day of the hearing (23 June 2020) the whole of the time was occupied by attempts to resolve Microsoft Teams connection problems. By the end of the day it had not been possible to resolve the difficulties to enable the Registrant to adequately hear the proceedings.

100. On 24 June the Registrant informed the Hearings Officer by e-mail that he was not well enough to participate in the hearing due to a headache. He said his health was linked to the difficulties he had experienced on 23 June 2020 including his attempts to hear the proceedings. He agreed that his e-mails should be seen by the Panel. The Registrant made an application for an adjournment of the hearing and stated that this application for an immediate adjournment was on the grounds of his wellbeing. Ms Sheridan did not oppose a short adjournment of the hearing until 25 June which would allow the Registrant to consult his GP. She proposed that a further attempt should be made on 25 June 2020 to resolve the connection problems to enable the Registrant to participate in the hearing. The Registrant did not oppose that suggestion and agreed that the Panel could determine his application on the basis that it was an application for a short adjournment on health grounds.

101. The Panel accepted the advice of the Legal Assessor who referred the Panel to the relevant Practice Note and the guidance from the case of CPS v Picton including the need to consider the extent to which the Registrant is able to participate fully in the proceedings.

102. The Panel exercised its discretion to grant the Registrant’s application for an adjournment. Although there was no medical evidence to support the application the Registrant informed the Panel that he was expecting to receive a call from his GP. The Panel decided that there was sufficient information in the Registrant’s e-mails and his submissions to support an application for a short adjournment. The Panel considered that the available information indicated that the Registrant’s health was having some impact on his ability to participate in the hearing on 24 June 2020 and that a short adjournment until 25 June 2020 was appropriate.

Reconvened Hearing on 25 June 2020

103. On 25 June 2020 the Registrant made a further application for an adjournment. He provided the Panel with a note from his GP which was provided to him following a telephone consultation. The note stated “This is to certify that the above mentioned patient is/has been suffering from: Headache-triggered by excessive screen time, advised to avoid”. The note indicated that the Registrant “is not fit for work 27/6/20”. The note was dated 24 June 2020.

104. On behalf of the HCPC Ms Sheridan informed the Panel that the HCPC opposed the application for an adjournment on the ground of the Registrant’s health. She submitted that adjustments could be made to the hearing to permit the Registrant to participate. Ms Sheridan also referred to the technical difficulties which had been persistent throughout the hearing in that the Registrant stated that he was unable to hear and see the participants in the hearing. The HCPC was neutral in relation to the Registrant’s application for an adjournment on the ground that he was unable to participate in the hearing due to technical difficulties.

105. The Panel accepted the advice of the Legal Assessor. She referred the Panel to the relevant Practice Note and advised the Panel that its decision should be a broad one, taking into account the contextual background. The Panel should balance the need for expedition and the principle that the Registrant is entitled to a fair hearing which would include considering the extent to which he is able to participate in the proceedings.

106. The Panel noted that the Registrant is fully engaged in the process and that he wishes to participate in the hearing and that he is representing himself. Despite the efforts made to resolve the connection problems, the Registrant told the Panel that he was unable to hear the proceedings. He reported that he heard part of the speech, but that it then became slurred and he was unable to hear. He also reported that he could see on the screen that the participants were speaking, but that he was unable to hear them. Every effort was made to use the available channels of communication to assist the Registrant during the very limited parts of the hearing that were completed. For example, the text facility on Microsoft Teams was used with the texts read into the hearing transcript. The Panel had no difficulty seeing and hearing the Registrant.

107. On the basis of the Registrant’s reports of the difficulties he was experiencing, the Panel decided that procedural fairness required an adjournment. On the basis of the Registrant’s reports, he was entirely unable to participate in the hearing in the way the Panel would expect. In these circumstances the Panel decided that the need for expedition was outweighed by the need to ensure that the hearing was fair for the Registrant. The Panel therefore decided to agree to the Registrant’s application for an adjournment.

108. The Panel is concerned that this matter should be brought to a conclusion expeditiously through a fair hearing. The Panel noted that the technical difficulties that have arisen in this case are unexplained and perplexing and it considers that exceptional steps should be taken by both parties so that the situation is not repeated. The Panel therefore prepared draft directions and invited submissions from the Registrant and Ms Sheridan on the proposed directions.


Draft Directions

1. The Registrant should update the HCPC of any change in his contact details as soon as practicable.

2. A Preliminary Hearing listed for two days should be scheduled by no later than 30 September 2020. The purpose of the Preliminary Hearing is to:
a) Test to confirm the workability of Microsoft Teams or other application in a virtual hearing environment.
b) Determine the Registrant’s application for a postponement on the ground that a virtual hearing is inappropriate and that the case should not be listed until a hearing can take place in person in London
c) Make any further directions for the substantive hearing if appropriate

3. A Substantive Hearing listed for four days should be scheduled to be concluded no later than 30 October 2020. The Substantive Hearing should be listed no less than 14 days after the date of completion of the Preliminary Hearing.

4. The HCPC must send the Registrant a copy of its guidance on virtual hearings by 31 August 2020.

For the Preliminary Hearing

5. If the Registrant intends to be represented at the hearing, he should provide details of his representative to the HCPC in advance, preferably by 31 August 2020.

6. On or before 31 August 2020 the HCPC should update the Registrant on any proposals for the commencement of in person hearings and whether such hearings are likely to be scheduled before 30 October 2020.

7. The Panel treats the Registrant’s submissions dated 16 June 2020 as a renewal of an application for postponement of the hearing on the ground that a virtual hearing is inappropriate.
8. If the HCPC wishes to oppose the Registrant’s application it should send written submissions to the Registrant on or before 31 August 2020.

9. If the Registrant wishes to respond to the HCPC written submissions in writing he should send any further written submissions to the HCPC on or before 14 September 2020.

10. The written submissions should be sent to the Panel and the Legal Assessor at least three days prior to the Preliminary Hearing.

11. On or before 31 August 2020, the Registrant should inform the HCPC where he will be residing on the date of the Preliminary Hearing. The Panel encourages the Registrant to use his best endeavours to be either in England or Gibraltar.

12. The HCPC should explore the option of arranging a neutral location for the Registrant in England or Gibraltar whilst the hearing is in progress. This is to facilitate the Registrant participating in a virtual hearing effectively. If appropriate, the HCPC should inform the Registrant of any such arrangement on or before 14 September 2020.

13. The HCPC should explore the option of providing a member of the HCPC Information Technology team to attend on the Registrant in England or Gibraltar to assist in all information technological issues whilst the hearing is in progress.
Reconvened Hearing on 26 June 2020

109. The Panel heard submissions on the proposed directions from both parties.

110. Ms Sheridan referred to paragraph 104 of the decision of the Panel and explained that it did not fully reflect the submissions she had made to the Panel in relation to the Registrant’s application for an adjournment on the grounds of his health. The HCPC opposed an application for an adjournment based on the medical evidence alone because the GP note was insufficient to justify an adjournment and adjustments could be made to the process. The Panel confirmed that Ms Sheridan had made this submission.

111. With the exception of paragraph 13 Ms Sheridan did not oppose the draft directions. She pointed out that adjustments were needed to the dates set out in the directions so that the directions were workable.
112. The Registrant provided written submissions and oral submissions. He informed the Panel that in early July he would be commencing a period of voluntary work in Africa for a minimum of three months. It was his expectation that he would return to Europe on 30 September 2020, but this was not certain and may not be in his control due to Covid-19 related reasons. The Registrant welcomed some of the directions proposed by the Panel.

113. Having heard from both parties the Panel considered that the proposed directions timetable it had envisaged was not likely to be realistic. It was difficult to formulate an effective timetable to ensure that the substantive hearing could be completed by the end of October 2020, which was the limit of the anticipated availability of all the members of the Panel. The Panel’s view was that it was not realistic that a virtual Substantive Hearing with the Registrant attending from a location in Africa would be workable, given the technical difficulties that he reported during this hearing and the difficulties in providing any information technology support for him.

114. The Panel therefore considered the possibility that it might direct that a hearing should reconvene in London in February 2021 (the first date that all Panel members are available). The Panel invited further submissions from the parties. Ms Sheridan submitted that the Panel should keep open the possibility that the hearing was conducted by a virtual hearing and that a Preliminary Hearing should be scheduled in October 2020. She submitted that this would provide flexibility to enable the hearing to be conducted as expeditiously as possible.

115. The Registrant provided further comments that he supported the Panel’s proposal that he should have an Information Technology employee to support him.

116. The Panel also invited the parties to comment on a further proposed direction relating to the possibility of a four-day hearing in London in October if the HCPC were scheduling such hearings. Ms Sheridan had no objection to this proposal. The Registrant also had no objection, but pointed out that he might be subject to a mandatory fourteen day quarantine period on arrival in London.

117. Although the Registrant supported the Panel’s proposal that an Information Technology employee should assist him, the HCPC opposed that direction. The Panel recognised that this was an onerous obligation that could not be imposed on the HCPC when that proposal was opposed. It therefore decided to remove this proposed direction. The Panel Directions are set out in Annex A.


Reconvened Hearing on 19 October 2020

Decision on adjournment application
118. The Registrant made an application to adjourn the hearing on the ground that he wished to present his case to the Panel in person rather than remotely via video link using Microsoft Teams. On behalf of the HCPC Mr Olphert opposed the application for an adjournment.
119. The Registrant submitted that an adjournment would not cause any harm to the process or the public and that the HCPC should not impose a requirement for a remote hearing. He emphasised the importance of the matters to be determined and the fact that he is not represented by a lawyer.
120. The Panel accepted the advice of the Legal Assessor. She referred the Panel to the relevant HCPTS practice notes and the cases of CPS v Picton, Municpio de Mariana v BHP Group Plc (formerly PHP Billiton) [2020] EWHC 928, Re One Blackfriars Ltd (in liquidation) [2020] EWHC 845, A (Children)(remote hearing): Care and Placement Orders) [2020] EWCA 583, and B(Children)(Remote Hearing: Interim Care Order) [2020] Civ 584.
121. The Panel noted that this was a matter for the Panel’s discretion, that it was a case specific decision, and that a multiplicity of factors should be considered. The Panel must be satisfied that a fair resolution can be achieved by way of a remote hearing.
122. The Panel noted that the HCPC has made all reasonable efforts to ensure that the Registrant can participate fully in the remote hearing. Arrangements have been made for the Registrant to attend at a hotel in Gibraltar and the arrangements for participation in Microsoft Teams have been tested by the Registrant. The Panel has been and will continue to be alert to any technical difficulties that may arise. The Panel Chair has already indicated that if there are difficulties which arise solely relating to the Registrant’s participation, this will be addressed and dealt with.
123. The Panel considered that there were a number of strong factors that pointed to the appropriateness of continuing to complete this part heard hearing by way of a remote hearing:
(a). The findings of fact have been made. Any additional witness evidence is likely to be limited in scope and time;
(b). The limited scope of the matters that remain to be determined. The Panel did not anticipate that remaining issues would require lengthy evidence, submissions or Panel determination time;
(c). The continuing uncertainty as to when it might be possible to continue the hearing at an in person hearing in London. The current situation is that there is an increase in the level of COVID restrictions;
(d). The public interest. The Panel did not agree with the Registrant’s submission that a further delay (in the Panel’s view lengthy delay), would not cause harm to the public. In this case findings of fact have been made and there is a pressing need to conclude the case expeditiously.
124. The Registrant suggested that other Regulators do not impose remote hearings. The Panel did not consider that the approach taken by other Regulators was relevant. The HCPC is not currently conducting hearings in person and the Panel’s decision is made in that context.
125. The Panel carefully considered whether the Registrant is subject to a particular disadvantage because he is not represented by a lawyer. The Panel recognised that participating in a remote hearing may be stressful and may be more difficult for those who are not participating in a professional capacity. However, the Panel considers that most people would probably regard all hearings as potentially stressful for Registrants.
126. It is not unusual for Panels to consider cases where the Registrant is unrepresented and some cases proceed without the Registrant in attendance. Every effort is made to ensure fairness and proper opportunity is provided for procedural guidance to be given to the Registrant by the Legal Assessor and Presenting Officer. This Panel is cognisant of the need to ensure and demonstrate fairness and will take appropriate action when necessary, even if no other party has requested it. The Panel will strike a balance between the need for all parties to have proceedings managed at a reasonable pace versus the requirement to conduct hearings expeditiously.
127. This is a case specific decision. The Panel’s experience of the Registrant is that he is an intelligent and competent individual both in the in person hearing and in the remote hearing that has so far taken place. He has the ability to prepare and present detailed written and oral submissions and to cross-examine a witness at length. The Panel was of the view that the Registrant has the confidence to raise concerns, to ask for time if he needs a short break. The Panel’s assessment was that the Registrant has the ability to manage the demands of the remote process.
128. The Panel therefore decided that it was not unfair to proceed by way of a remote hearing. The Panel will continue to ensure that the Registrant is able to participate in the hearing and to present his case in relation to the remaining issues.
129. The Panel therefore decided to reject the Registrant’s application for an adjournment.
130. The Panel also considered the possibility of the Registrant participating in the hearing by telephone. Having considered the Registrant’s submissions and the legal advice, the Panel decided that this possibility would not be fair or appropriate.

Decision on application for Panel to recuse itself
131. The Registrant submitted that Mr Hannell (sitting on the Panel as a member of the paramedic profession) should have declared a conflict of interest and was biased. Mr Hannell is a trade union member, labour party member, and in his election address stated that he opposed the privatisation of the NHS and other public services. The Registrant believes that this affiliation blurred Mr Hannell’s judgment and caused unfairness against himself as someone who worked for a private ambulance service. The Registrant provided the Panel with evidence to demonstrate that Mr Hannell was an active union steward, branch activist, and stood as a candidate for election on behalf of the public service union UNISON.
132. Mr Olphert submitted that the issues in the case were not pertinent to the privatisation of the ambulance service and that the members of the Panel were capable of making a fair determination of the issues. The factual determination suggests that the Panel had a balanced and even handed perspective with some of the facts made out, and some not made out. The evidence provided by the Registrant did not warrant the recusal of the Panel given the nature of the issues and the fact the Panel is composed of three members.
133. In the open session of the hearing Mr Hannell provided further information. He explained that while he is opposed to the privatisation of the NHS, he is not opposed to paramedics working in private practice. He carries out work for a private company providing services to Wembley Stadium.
134. In response to this information the Registrant explained that CPNI was not simply an ambulance company carrying out private services. It sought to obtain work that would otherwise have been carried out by the NHS.
135. The Panel accepted the advice of the Legal Assessor. She advised that the test for bias is set out in the case of Porter v Magill [2002] 2 AC 357 and that “the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. The Legal Assessor advised that the Panel is concerned with the appearance of independence and impartiality, as well as the possibility of actual bias and that public perception of the possibility of bias is the key.
136. The Panel noted that the Registrant did not rely on any other evidence to support his submission that the Panel should recuse itself. The Panel reflected on its substantive decision on the facts and agreed with Mr Olphert’s submission that the determination on the facts indicated that the Panel’s approach was careful and balanced, with some of the facts found proved and some found not proved.
137. The Panel did not consider that a fair minded and informed observer would consider the fact that Mr Hannell is a labour party member, has campaigned for UNISON, and is a trade union member has any relevance or gave rise to a conflict of interest. There is no pre-existing relationship between Mr Hannell and either the Registrant, CPNI, or any of the witnesses.
138. The Panel also did not consider that a fair minded and informed observer would conclude that there is a real possibility that the tribunal is biased because Mr Hannell is ideologically opposed to the privatisation of the NHS. In the Panel’s view the fair minded observer would recognise that there is no meaningful connection between the issues in this case as set out in the Allegation and Mr Hannell’s opinions. Although the Registrant and the other witnesses in the case were involved with CPNI as a private enterprise at the time of the disputed events, this was the background and context. Paragraphs 35 and 38 of the determination demonstrate that the Panel’s focus on corporate issues was only to the extent that those matters related to the particulars of the Allegation which have been summarised as inappropriate and offensive comments about Colleague A in relation to Colleague A’s sexuality. The status and business of CPNI as a private company was not material to the disputed factual issues. None of the evidence or submissions touched on political issues relating to the desirability or otherwise of privatisation of the NHS. The issues related entirely to conduct matters, not to clinical matters.
139. The Panel considered that an informed observer who was aware of all the circumstances and evidence in the case would be surprised by the suggestion of bias or apparent bias in the circumstances of this case. The Panel did not consider that an informed observer would identify any substantial link or connection between Mr Hannell’s political opinions and the issues that have been or will be determined in the case.
140. The Panel concluded that a fair-minded and informed observer would not conclude that there was a real possibility that Mr Hannell or the tribunal was biased. The Panel therefore decided not to recuse itself.

Application to adjourn
141. The Registrant explained to the Panel that he did not agree with the Panel’s decision not to recuse itself. He explained that he was considering whether or not he would continue to participate in the hearing. He wished to have the opportunity to take advice from a qualified lawyer who has already provided him with some assistance. The lawyer who had assisted him was currently engaged in a court hearing.
142. Mr Olphert submitted that it was fair that the Registrant should be given some time to consider the Panel’s decision and to seek legal advice, but that it should not be an open-ended adjournment with no limitation of time.
143. The Panel accepted the advice of the Legal Assessor who referred the Panel to the guidance in the HCPTS Practice Note on adjournments and postponements.
144. The Panel decided to adjourn the hearing until 12.30 p.m. UK time (1.30 p.m. Gibraltar time). This would give the Registrant time to consider the detail of the Panel’s decision and an opportunity to liaise with the lawyer who has been providing him with assistance. The Panel anticipated that this time might allow the Registrant to contact the lawyer during a lunch break.

Application to review the Panel’s findings of fact
145. After speaking to the Legal Assessor and the Presenting Officer, the Registrant stated that he did wish the Panel to consider the information and documents he presented in Exhibit 12 (sent by the Registrant to the HCPC on or around 16 June 2020) and Exhibit 13 (sent by the Registrant to the HCPC in September 2020) and to review its findings of fact.
146. In his submissions Mr Olphert acknowledged that the Health and Care Professions Council (Conduct and Competence Committee)(Procedure) Rules 2003 differ from the General Medical Council Rules which were considered in the case of TZ v General Medical Council [2015] EWHC 1001. He acknowledged that the Panel has some flexibility to reopen findings of fact if it is necessary to do so to ensure fairness to the Registrant. He submitted that in the circumstances of this case it was not appropriate for the Panel to exercise its discretion to reopen the findings of fact because the evidence relied on by the Registrant was not new evidence or would not have had a significant impact on the findings of the Panel and did not cross the threshold.
147. The Legal Assessor provided all parties and the Panel with a copy of the case of TZ v General Medical Council [2015] EWHC 1001. She advised the Panel that the Panel was not barred from reviewing or re-opening the findings of fact. The Panel had discretion to admit further evidence and to reconsider its earlier decision if the Panel decided that there were grounds to do so. The Legal Assessor advised the Panel that in exercising its discretion helpful guidance was provided in paragraphs 99-100 of the decision in TZ v General Medical Council [2015] EWHC 1001.
 “..the issues for the Panel on the exercise of discretion would have been:
(i) what was the relevance of the new evidence?
(ii) Why had it not been called before?
(iii) What significance did it have in the context of the draft findings of the Panel?
(iv) What effects would its admission have on the conduct of the hearing, and in particular on
a) The need to recall witnesses
b) The length of the hearing
(v) Taking all matters into account, would justice be done if it were not received and heard?
It is of course for the Panel what weight they give to the various elements. It is not to be thought that the existence of the discretion means that it is always or even often to be exercised. The Panel, like judges in criminal or civil trials, will be astute to avoid the unnecessary prolongation of hearings by those who are simply dissatisfied by the draft factual decisions which have been made. Applications must, and I am sure will, receive anxious scrutiny.”
148. The Panel accepted the advice of the Legal Assessor.
149. The Panel carried out a careful review of all the information in Exhibits 12 and 13. Both Exhibits included submissions from the Registrant referring to the transcripts and detailed disagreement with the Panel’s factual findings. In the Panel’s view these points were not new information or new evidence. The Panel also identified a number of items of new information or new evidence which were not before the Panel when it made its decision on the facts.
150. Exhibits 12 and 13 included information relating to training undertaken or due to be undertaken by the Registrant:
(a)  A CPD Certificate Equality and Diversity dated 27 May 2020
(b) Information that the Registrant had registered to attend a course on Human rights in open societies – no date provided but after May 2020
(c)  A certificate translated from German “Examination of Professional knowledge to lead organisations in pre-Hospital Emergency Medicine and Ambulance Services” dated 6 December 2002
(d)  A Certificate from the Labour Relations Agency for a seminar “discipline, Grievance and investigations” dated 3 July 2015.
151. The training referred to at 150(a) and (b) post-date the Panel’s determination. It therefore has no relevance at all to the Panel’s findings of fact. This evidence is relevant to the issues the Panel may consider at subsequent stages of the hearing including remediation, insight, and the risk of repetition.
152. The training referred to at 150(c) and (d) pre-date the relevant events in the Allegation and the Panel’s decision, but the Panel considered that at best these documents had marginal relevance. The Panel acknowledged that this evidence could be linked to the Panel’s comments about Company C in paragraph 45 of the decision. The Panel did not consider that the training certificates undermined or had any direct relevance to the Panel’s conclusions because they demonstrated that the Registrant received training, not that the training was implemented in practice. Further, the Registrant did not bear sole responsibility for the management of Company C. In paragraph 45 of the decision the Panel gives reasons based on the evidence it heard for its conclusions relating to Company C. The Panel did not attribute personal blame or responsibility to any individual in relation to those matters. Therefore, the Panel concluded that 150(c) and (d) were not significant in the context of the Panel’s findings of fact.
153. The Registrant provided new information that his licence to practice has not been renewed in Gibraltar. While this information may be relevant to subsequent stages of the hearing, it does not have any relevance to the Panel’s findings of fact or undermine those findings.
154. The Registrant provided an e-mail dated 11 September 2020 referring to information he had obtained from Facebook relating to CPNI Training Solutions, CPNI Ambulance Service and internal blackboards. He summarised that this information related to “1 Colleague A was not involved in the day to day running of the business. In fact he was not present. 2. Mr SC was not involved in running the business he was not present. 4. Mr ND has active role in running the business 5. The friendly work environment 6. Pictures of behaviour among staff 7. Training events 8. Awarding bodies events 9. A timeline of operations of the company.”
155. The Panel noted that these headlines were not inconsistent with the evidence or the Panel’s findings of fact. The Registrant had previously provided the Panel with photographs showing himself with other staff entirely consistent with points 5 and 6.  The Panel considered that this new evidence, taken at its highest, was of marginal relevance and certainly did not reach the threshold for the Panel to reopen its factual findings.
156. [REDACTED]
157. The Panel therefore decided not to exercise its discretion to reopen its findings of fact on the basis of the new evidence provided by the Registrant in Exhibits 12 and 13.

Decision on adjournment
158. On 21 October 2020 the Registrant made an application for an adjournment until 10 a.m. on 22 October 2020. He explained that his witness, Mr RS, had been available to give evidence to the Panel on Monday 19 October, the first day of the reconvened hearing, but was not available at any time today. RS was a professional colleague of the Registrant at CPNI and was a witness to the Registrant’s behaviour at work. The Registrant spoke to his witness and confirmed the position.

159. Mr Olphert submitted that the Panel should consider the extent to which the evidence of RS might be relevant to the issues in the next stages of the hearing. The Panel might take the view that the evidence was more relevant as mitigation should the Panel find impairment and go on to the sanction stage.

160. The Panel asked both the Registrant and Mr Olphert to comment on the possibility that the Panel proceeded today to consider whether the statutory ground of misconduct was made out on the facts found proved. The Registrant was opposed to this suggestion and wanted the evidence of RS to be heard by the Panel. He submitted that it was important that the Panel retained an open mind and that the evidence of RS could be relevant on a range of issues. Mr Olphert submitted that the Panel could consider the option of proceeding on the discrete issue of misconduct.
161. The Legal Assessor referred the Panel to relevant practice notes including the HCPTS Practice Note on adjournments and postponements and the Practice Note on finding impairment. She advised that the Panel should make its decision whether or not to adjourn on the basis that there is uncertainty about the scope and content of RS’s evidence. She advised that character evidence may be relevant to the issue of current fitness to practise, as explained in the practice note.

162. The Panel was aware that if it decided to adjourn, the completion of the hearing within its allocated listing was in jeopardy. This would be highly undesirable for the parties and the public interest. Nevertheless, the Panel considered that the requirement of fairness to the Registrant outweighed these considerations. The Panel cannot predict the evidence that might be given by RS and therefore cannot make a realistic assessment of its relevance. It would be unfair for the Panel to proceed and make any decision without allowing the Registrant a reasonable opportunity to call his witness.

163. The Panel therefore agreed to the Registrant’s application for an adjournment until 9:30 a.m. on 22 October 2020. This will allow time for consideration of any issues prior to RS giving evidence at 10 a.m.

Application to separate the stages of Misconduct and Impairment
164. The Registrant made an application that the Panel should consider the two stages of whether the facts found proved constituted the statutory ground of misconduct and whether the Registrant’s fitness to practise is currently impaired as separate stages. The Registrant expressed his concern that the two stages should not be considered together and that the Panel should only hear submissions on impairment if it had concluded that the proved facts constituted misconduct. The Registrant went on to say that it may be prejudicial to his case if misconduct and impairment were considered together. He told the Panel that he had discussed the issue of misconduct with his adviser.

165. Mr Olphert submitted that although the Panel did have power to separate the two stages, it was common practice to consider the two stages together and that this did not create unfairness.

166. The Legal Assessor confirmed that it is common practice for the two stages to be considered together. She invited the Registrant to elaborate on any prejudice that might arise. She also reminded the Panel that the Registrant is not represented and that the Panel should itself consider any possible prejudice to if the two stages were considered together.

167. The Panel decided to agree to the Registrant’s request and consider the two stages separately. The Panel considered that would provide the Registrant with reassurance that the Panel is clearly separating the two stages and may assist the Registrant if he wishes to take legal advice on impairment if the hearing reaches that stage. The Panel’s view was that the separation of the two stages would assist progress in the hearing.

Application for an adjournment
168. The Panel reconvened at 9.30 a.m. on 22 October 2020 in the expectation that RS would be available to give his evidence at 10 a.m. The Registrant informed the Panel that he expected RS to be available at a time between 10 a.m. and 11.30 a.m. He informed the Panel that RS was likely to be driving in a rural part of Ireland and that he may not be easily contactable. The Panel received regular updates on attempts made to contact RS by the Hearings Officer and by the Registrant. By 12 p.m. no contact had been made with RS. The Registrant confirmed that he had no information as to when or whether RS would be available to give evidence.

169. At 12 p.m. the Panel indicated that it would now move to the next stage of the hearing which was to consider whether the facts constitute the statutory ground of misconduct.

170. The Registrant made an application for an adjournment. He stated that he wished to call RS to give evidence before the Panel made a decision on the issue of misconduct. He submitted that it would not be fair for the Panel to proceed without hearing the evidence of RS.

171. Mr Olphert submitted that the Panel should reject the Registrant’s application for an adjournment and proceed to hear submissions on the issue of misconduct. He submitted that the Panel has now made a decision to separate the stage of misconduct. It was unlikely that RS’s evidence would touch on this discrete issue.

172. In response to Mr Olphert’s submissions, the Registrant submitted that it would not be fair for the Panel to proceed because the Panel had previously allowed adjournments to ensure that the evidence of Witness 1 could be heard.

173. The Legal Assessor referred the Panel to the Practice Note on adjournments which sets out relevant factors for the Panel to consider. It was the Panel to assess what fairness to both parties required in the circumstances of this case.

174. The Panel are at this stage deciding only whether to proceed with the next stage of its decision making and consider whether or not the facts found proved constitute the statutory ground of misconduct. Any decision the Panel makes at this stage does not limit the Registrant calling a witness at a later stage. That is likely to be an option available to the Registrant, given that today is the last day of the scheduled hearing and it will not be possible to complete the case.

175. The Panel carefully considered the Registrant’s submissions referring to the Panel’s previous decisions in relation to Witness 1. The Panel’s view was that the circumstances are not comparable. Witness 1 was a key witness central to the Panel’s factual determination, whereas the evidence of RS could be relevant at the impairment stage, if the Panel were to reach that stage. The Registrant would be able to call his witness at that stage. If the Panel were to reach the stage of consideration of sanction, the Registrant would have further opportunity to call his witness or witnesses.

176. Further, the Panel was provided with information about the availability of Witness 1. The Registrant stated yesterday that he expected RS to be available this morning, and the Panel granted an adjournment to enable the witness to be heard as requested by the Registrant. There is no information about when or whether RS will be available to give evidence.

177. In addition, the issue is whether the Panel should proceed to consider the discrete issue of whether the facts constitute the statutory ground of misconduct. This is a retrospective assessment dependent on the factual findings the Panel has already made.

178. The Panel considered that it would not be unfair to the Registrant to proceed to the issue of misconduct in these circumstances. If there was any prejudice to the Registrant, the Panel decided that it was outweighed by the public interest. There is a strong public interest in the Panel making progress in the case particularly because findings of fact have been made.

Decision on Statutory Ground

179. The Panel considered carefully the submissions of Mr Olphert and the Registrant and accepted the advice of the Legal Assessor. The Panel entirely excluded from its mind the evidence it had heard relating to the facts which were not found proved and any comment prejudicial to the Registrant which was not contained in the facts found proved.

180. The Registrant’s submitted that there was no misconduct. The Registrant’s further submissions covered a wide range of matters that extend beyond the issue of whether the facts found proved constitute misconduct and included calling into question whether proceedings had been fair, whether the standard of proof applied had been correct, matters relating to an Industrial Tribunal and general repetition of other matters which had been raised previously.

181. The question of whether the proven facts constitute misconduct is for the judgment of the Panel and there is no burden or standard of proof.

182. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “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 conduct must be serious in that it falls well below the required standards.

183. In considering the seriousness of the Registrant’s acts and omissions the Panel considered the context and surrounding circumstances.

184. The Panel considered the 2008 and 2012 HCPC Standards of Conduct, Performance and Ethics. Both contain standard 3 which states in the 2012 issue:

“You must keep high standards of personal conduct.
You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and your profession.”

185. The Panel decided that the Registrant’s conduct in all the particulars found proved was a breach of this standard. The Registrant’s conduct did not relate to his clinical work and it did not involve service users, but it did involve the Registrant’s colleagues and it had the potential to undermine confidence in the Registrant and in the profession. Personal behaviour to colleagues which is discriminatory and unpleasant is a breach of standard 3.

186. The Panel next considered the extent to which the Registrant’s conduct in each of the proved particulars fell below the required standard, and whether it was sufficiently serious to constitute misconduct.

187. The behaviour in particular 1(a)(i), 1(a)(ii) and 1(a)(v) included making homophobic comments, making homophobic gestures and referring to Colleague A as “gay boy” was:

(i)    directed at Colleague A;
(ii)   repeated;
(iii)  in the presence of others who overheard the comments;
(iv)  had an attritional effect on Colleague A leading to the Panel concluding that Colleague A felt bullied.

188. In the Panel’s judgment this conduct would be regarded as deplorable by fellow practitioners. It is conduct that is entirely inexcusable within a workplace environment. The Panel decided that this conduct was sufficiently serious to constitute misconduct.

189. The Panel took a different view of the seriousness of the conduct in particulars 1(b) and 1(d). These particulars both involved conversations between the Registrant and Witness 1 discussing Colleague A. The context of these conversations is that the Registrant knew that Witness 1 was a committed member of the Catholic Church. The Panel recognised that in normal conversation colleagues at work might discuss the attitude of the Catholic Church to sexual orientation and that such conversations might include reference to the attitude of the clergy or to individuals who are committed members of the church.

190. In the finding of fact in particulars 1(b) and 1(d) the Registrant overstepped the mark and went beyond the generality of a debate about the attitude of the church because he was referring to the sexual orientation of an individual, Colleague A, and his remarks implied a negative judgment about Colleague A. The Panel has already found that the discussions were inappropriate and offensive towards Colleague A. In considering the Registrant’s conduct the Panel took into account:

(i).    The incidents in particulars (b) and (d) were one off incidents not continuing acts;
(ii).   Colleague A was not present in either conversation;
(iii).  The Registrant appears to be raising a query which is less suggestive of being judgemental;
(iv).  The Panel has made a finding in (b)(ii) and d(ii) of “words to that effect”, the Panel has not made a finding on the precise words used by the Registrant;

191. The Panel’s view was that the Registrant’s conduct in particulars 1(b)(i), 1(b)(ii), 1(d)(i) and 1(d)(ii) fell below the required standards for a Paramedic, but was not sufficiently serious to constitute misconduct.

192. The Panel therefore decided that the Registrant’s conduct in 1(a)(i), 1(a)(ii) and 1(a)(v) constituted misconduct, but that the facts found proved in particulars 1(b)(i), 1(b)(ii), 1(d)(i) and 1(d)(ii) did not constitute misconduct.

193. This case started on 5 September 2019 and has adjourned part heard in January, February, June and October 2020. Given the requirement for expeditious disposal of cases and the necessity to issue case management directions to ensure a smooth process the Panel issues Directions as set out in Annex A.


Reconvened Hearing on 4 January 2021

Decision on Registrant’s application regarding Panel bias
194. The Registrant made an application that the Panel should recuse itself on the ground of appearance of bias. He submitted that the Panel members were not independent of the HCPC. In particular the Panel members are appointed by the HCPC, paid by the HCPC and are subject to its influence. He submitted that there is no real distinction between the HCPC which brings the case against him and the Health and Care Professions Tribunal Service.
195. Mr Olphert referred the Panel to the case of Porter v Magill [2002] 2 AC 357 which set out the test for bias which is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Mr Olphert highlighted that the observer is “informed” and that in this particular case the observer would know that:
(a). This Panel has already made findings adverse to the HCPC. It has found some of the facts not proved and it has found that some of the proved facts do not constitute misconduct.
(b). The HCPTS is a separate entity from the HCPC and its purpose is to provide an independent tribunal service.
(c). The Panel members are subject to a comprehensive conflict of interest policy.
(d). There is a robust system, including a competency framework, for ensuring that Panel members exercise their judgment fairly in a non-biased way with independence of mind
196. Mr Olphert submitted that there was no evidence in this case to demonstrate that any member of the Panel had a vested interest in the proceedings applying the principle in R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No2)  [2000] 1AC  119. He further submitted that the Panel demonstrated the appearance of independence having regard to their decision making in this case and the structures in place for addressing any conflict of interest.
197. In response to Mr Olphert’s reference to the conflict of interest policy, the Registrant asked the members of the Panel to confirm whether they had acted in compliance with the HCPTS conflict of interest policy.
198. The Legal Assessor reminded the Panel of the test in Porter v Magill and the guidance in Lawal v Northern Spirit Ltd [2003] UKHL 35 that an informed observer will adopt a “balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, at para 53 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”.
199. The Legal Assessor also referred the Panel to the decision in Sadighi v General Dental Council [2009] EWHC 1278 which involved a challenge to the impartiality of members of the Professional Conduct Committee of the General Dental Council. In this case the knowledge of the “informed” observer included awareness of central matters relevant to the appointment of the committee members. The Legal Assessor advised that the knowledge of the informed observer could extend to a broad range of matters relating to the selection, appointment, and role of Panel members, including the points raised by the Registrant and Mr Olphert.
200. The Legal Assessor was not able to identify case law in support of the Registrant’s submission that the existence of connections between the HCPC and the HCPTS, such as the appointment system and payment for panel members, gave rise to a lack of independence or the appearance of bias on the part of panel members.
201. In its deliberations the Panel considered that the informed observer would be aware of the following:
 (a). The HCPTS is an independent decision making service, but it remains part of the HCPC’s regulatory function;
 (b). All HCPC partners (including Panel members) are independent contractors not employees of the HCPC;
 (c). Panel members are appointed by and paid by the HCPC;
 (d). The appointment of panel members by the HCPC is underpinned and required by statutory instrument (The Health Professions Council (Practice Committees and Miscellaneous Amendments) Rules 2009. This statutory instrument sets out various parameters for the appointment and service of panel members;
 (e). The selection and retention of panel members includes a competency framework-which requires panel members to demonstrate their ability to make independent and non-biased decisions;
 (f). There are processes and procedures to ensure that panel members maintain the required standard of competency including the requirement for independence and impartiality. For example, the scheduling team are responsible for the selection of panel members for each case. Panel members therefore sit with different panel members and Legal Assessors in each case. Panellists are assessed every two years and have to complete mandatory training;
 (g). Panellists are appointed because of their ability to challenge appropriately. This attribute is demonstrated by lines of enquiry during hearings, and in particular when making decisions. Panellists are aware of the need to remain vigilant to the potential bias of colleagues. There is a system for panellists to provide feedback whenever they consider that a colleague may have fallen short of required standards.
 (h). Panel members are required to disclose any conflict of interest under the HCPTS conflict of interest policy. Each of the panel members in this case have in the past declared a conflict of interest while sitting as a panel member at the HCPTS or for another regulator. The Registrant has previously in this case asked the panel to recuse itself on the ground that Mr Hannell should have declared a conflict of interest and was biased. The Panel rejected this submission, concluding that there was no bias, or appearance of bias for the reasons cited in its earlier decision.
 (i). At various stages of the case the Panel has made decisions which are adverse to the HCPC and favourable to the Registrant. In particular the Panel has found a number of the factual particulars not proved and decided that some of the proved particulars did not amount to misconduct.
202. The Panel noted the absence of any evidence that the panel has demonstrated partiality, or that the HCPC has influenced the Panel’s decision, except in the sense of making submissions to the Panel as one of the parties.
203. Taking a balanced approach, the Panel concluded that the informed observer, having considered the facts above, would not consider that there was a real possibility that the panel was biased, or that the panel lacked independence.
204. The Panel therefore rejected the Registrant’s submission that it should recuse itself. 

The Registrant’s application for the Panel to stay the proceedings

205. The Registrant raised a further preliminary matter for the Panel’s consideration. He informed the Panel that he has recently instructed a team of lawyers to commence legal proceedings relating to the Northern Ireland Employment Tribunal decision in the case brought by Colleague A (the “NI ET decision”). These proposed legal proceedings appear to be based on a decision of the Gibraltar Supreme Court in Cassaglia v Employment Tribunal and Ors [2020] Claim No 2019 MISC 049.

206. Dr Cassaglia was not a party to Gibraltar employment tribunal proceedings which had concluded that he had bullied a colleague. One of Dr Cassaglia’s challenges to the Gibraltar employment tribunal decision was that his interests were adversely affected by that decision, but he did not receive a fair hearing. The Registrant informed the Panel that Dr Cassaglia’s regulatory body has stayed its investigation into the matter pending the conclusion of the Gibraltar court proceedings.

207. The Registrant highlighted a parallel between Dr Cassaglia’s position in relation to the Gibraltar employment tribunal proceedings and his own position in relation to the NI ET decision. He was also not party to an employment tribunal decision which adversely affected his reputational and other interests.

208. The Registrant submitted that the decision in Cassaglia and his proposed legal challenge to the NI ET decision is highly relevant. That NI ET decision was fundamental to and the foundation of every aspect of the HCPC Allegation, including the fact of the complaint by Colleague A, and the nature and scope of the HCPC investigation. He further submitted that the twenty seven HCPC allegations were formulated to destroy him and were not to uphold confidence in the profession. There had been a vendetta against him and it was now appropriate in the light of the Cassaglia decision that the HCPC should cease its investigation and close the case.

209. The Registrant invited the Panel to stay the proceedings as an abuse of process or to re-open the factual determination on the basis of new evidence.

210. Mr Olphert referred the Panel to case law which sets out general principles relating to abuse of process, Attorney-General’s Reference (No 1 of 1990) [1992] QB 630, R v Maxwell [2011] 1 WLR 1837, and Haikel v General Medical Council [2002] UKPC 37. He submitted that the circumstances outlined by the Registrant were not exceptional, the Registrant has not established that it will be impossible for him to have a fair hearing, and the continuation of the proceedings does not offend justice and propriety.

211. Mr Olphert submitted that there was a clear separation between the NI ET decision and the HCPC Allegation against the Registrant. Colleague A had raised his complaint to the HCPC separately from the NI ET decision. The matters were separately raised, investigated and evaluated. The conclusions of the NI ET decision on the substantive matters were irrelevant to the HCPC proceeding. The NI ET decision had been redacted in accordance with the leading authority of Enemewe v Nursing and Midwifery Council [2015] EWHC 2081 that the conclusions of other bodies should not cloud the decision of the Panel.

212. The Legal Assessor advised that the decision whether a case should be stayed as an abuse of process is a discretionary decision. She referred to Attorney-General’s Reference (No 1) of 1990 [1992] QB 630 which set out the general principle that the imposition of a stay should be an exception rather than the rule. An abuse of process may take different forms, including a complaint about the manner in which the regulator has prosecuted the case, delay or other matters.

213. The Legal Assessor also referred to R v Maxwell [2011] 1 WLR 1837 which set out two categories of case where the Panel has the power to stay proceedings. The first category of case is where it will be impossible to give the Registrant a fair hearing. The second category of case is where it offends the Panel’s “sense of justice and propriety” to be asked to continue the hearing. The second category of case involves balancing competing interests and in a regulatory case the Panel should balance the public interest in ensuring that fitness to practise matters are determined and the public interest in ensuring the integrity of the proceedings.

214. The Legal Assessor repeated the advice that she gave previously on the circumstances in which the Panel might re-open factual findings it has made in the light of new evidence with reference to the case of TZ v General Medical Council [2015] EWHC 1001.

215. The Panel did not accept the Registrant’s submission that the HCPC improperly formulated the Allegation as an abuse or a vendetta against the Registrant. The HCPC is under an obligation to investigate allegations, to ensure that there is no under-prosecution, and to present the evidence for the consideration of the Panel. The Panel did not consider that any errors that may have been made by the HCPC in the conduct of the case, were of a sufficient gravity to pass the high bar required for the case to be stayed on the basis of abuse of process.

216. The Panel did not consider that the information that the Registrant will be pursuing legal proceedings relating to the NI ET decision had any bearing on the fairness of the continuation of these regulatory proceedings. The Panel recognised that the Registrant has a strong sense of personal injustice about the decision of the NI ET decision which has negatively impacted on him. The Panel did not accept the Registrant’s submission that the complaint by Colleague A and the HCPC Allegation were dependent on the NI ET Decision. In any event the Panel has reached entirely separate findings of fact based on the documents and the testing and probing of credibility and reliability of witness evidence.

217. The stage this case has reached is that the Panel has made findings of fact and concluded that some of those facts constitute misconduct. The Panel’s view was that it is entirely consistent with justice and propriety that the Panel proceeds to the next stage of considering whether the Registrant’s fitness to practise is impaired as a result of that misconduct. Public confidence in the profession and its regulation would be undermined if the Panel were to stay the proceedings.

218. Having regard to the two categories of case in R v Maxwell the Panel decided that it remains possible for the Registrant to have a fair hearing, and that it does not offend the Panel’s sense of justice and propriety to continue the proceedings.

219. The Panel did not consider that there were grounds for re-opening the factual determination. The new information presented by the Registrant is that he plans to commence legal proceedings relating to the decision of the NI ET decision. While this is new information about the Registrant’s current intentions, the Panel was previously aware of the Registrant’s dissatisfaction with the NI ET decision. At the facts stage he presented documentary and oral evidence relating to this topic.

220. The Panel therefore decided to reject the Registrant’s application and proceed to the next stage of its determination.


Decision on impairment

221. The Panel considered carefully the submissions of Mr Olphert and the Registrant. Mr Olphert submitted that the Registrant had demonstrated little or no insight, and that given the Registrant’s defence and lack of remorse there is no evidence of meaningful remediation. This should be factored into the Panel’s assessment of the risk of repetition. In respect of the public component of impairment, Mr Olphert submitted that the Registrant had engaged in a pattern of unnecessary and cruel abuse targeting Colleague A over a sustained period, often in the earshot of colleagues and other professionals. Any finding that this misconduct does not amount to impairment would undermine public confidence in the profession and the regulatory process.

222. The Registrant submitted that remorse can only be expected from someone who is guilty and that it would be morally entirely unacceptable for him to demonstrate remorse. He submitted that he has fully engaged with the entirety of the HCPC process and has represented himself. He referred to the fact that the HCPC published the Allegation in advance and this had significant consequences in that he has had no paid employment since that publication. There have been no restrictions placed on his registration while the HCPC case has continued. He initially continued in paid employment and then after the HCPC publication of the Allegation he has undertaken roles as a volunteer to share his expertise. That ongoing service has not been considered to undermine public confidence.

223. The Registrant referred to his very strong belief in the European Union and its values and stated that he had not breached any law. He referred to the HCPC Standards of conduct, performance and ethics and said that he had in the past fully participated as a member of the College of Paramedics in listening events. He has continually trained on the themes of equality and diversity and his Continuing Professional Development Record is up to date. He provided the Panel with documentary evidence to support this statement. He emphasised that in the entirety of his practice, other than the matter referred to the HCPC, he has never been subject to a disciplinary matter or a complaint from a patient. The Registrant referred to the testimonials which refer to his conduct both at the time of the HCPC Allegation and subsequently. He referred to the positive work he has undertaken including his voluntary work with refugees, foreign nationals, people from deprived countries, and his work supporting LGBT events.

224. The Legal Assessor referred the Panel to the HCPTS Practice Note on impairment and to case law including Meadow v GMC [2006] EWCA Civ 1390, Cohen v GMC [2008] EWHC 581, Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927, and Yusuff v General Medical Council [2018] EWHC 13.

225. The Panel accepted the advice of the Legal Assessor and referred to the guidance in the HCPTS Practice Note. The Panel considered the Registrant’s fitness to practise as at today’s date.

226. The Panel first considered the personal component, which is the Registrant’s current competence and behaviour. The Panel considered that the Registrant’s behaviour is remediable. Although it is more difficult for the Registrant to demonstrate insight and to remediate behaviour where he denies entirely that behaviour entirely, the case of Yusuff confirms that Registrants may be able to do so. The Registrant expressed his commitment to complying now and in the future with the required Standards of conduct, performance and ethics, which is a positive starting point.

227. The Panel’s view was that the Registrant’s resources have been entirely dedicated to his determined defence on the facts. He has expended considerable personal intellectual and time resource on all aspects of his defence. While the Registrant has always recognised the seriousness of the proved facts that amount to misconduct, he has not demonstrated a more reflective position, where he is able to look objectively at the Panel’s findings and address the Panel’s concerns. The Registrant may not have had the benefit of legal advice on the approach the Panel takes to the question of current impairment and may not have fully appreciated that the Panel’s approach is not punitive, but forward looking as confirmed in the case of Meadow. The Registrant does not appear to have been able to reflect self-critically on broad issues, such as how he had a responsibility to set standards of behaviour and lead by example, specifically in relation to communication in a work environment, or how he might in the future address difficulties in relationships with colleagues. 

228. The Panel is aware that the Registrant has undertaken training in equality and diversity, but the Registrant has not informed the Panel of any new insight, learning, or how the training might contribute to him behaving differently in the future.

229. For those reasons the Panel considered that the Registrant’s insight and remediation is limited.

230. The Panel had regard to guidance in the Practice Note which states: “It is unlikely that a registrant who lacks insight and thus has not accepted their failure or taken remedial steps would be regarded as being at low risk of repetition”. The Panel’s view was that the Registrant was not entirely lacking in insight because he has throughout the case accepted the seriousness of the matter and the importance of compliance with the required standards of conduct.

231. While the Panel accepted that there is generally a correlation between the level of a registrant’s insight and the risk of repetition, it was of the view that there were exceptional features in this case which reduced the likelihood of repetition.

232. In its determination on the facts the Panel noted that there were different aspects of the Registrant’s character. It found that the Registrant does not hold homophobic views and that he has demonstrated his respect and insight into diversity matters. There was independent evidence in the testimonials confirming the Registrant’s commitment to equality and that he has provided support to vulnerable individuals who might be subject to prejudicial treatment. The Registrant’s behaviour to Colleague A was exceptional and arose in the particular and unusual environment of Company C. In its earlier determination the Panel concluded that the environment at Company C was very different from other organisations in which the Registrant worked and that Company C appeared to lack the checks and balances that are well established in other organisations.

233. In the view of the Panel it was not likely that the Registrant would work again in that unusual environment with its unique combination of circumstances.

234. In addition the Panel was of the view that the HCPC proceedings have had a profound impact on the Registrant. Exceptionally the case has continued, with a number of adjournments, for approximately thirty-three days spread over more than one year. The Registrant has therefore repeatedly revisited this matter and has engaged comprehensively with the process. The Panel has had a full opportunity to assess the Registrant over the lengthy period of time this case has continued. It considered that he has a strong belief in himself, but that during the hearing he has demonstrated the ability to exercise self-control over his behaviour towards other individuals. The Panel has concluded that he is therefore likely to be able to do so in the future so as to ensure that he does not face a similar allegation.

235. The Panel concluded that the risk of repetition was low in the particular circumstances of this case.

236. The Panel next considered the wider public interest considerations including the need to maintain public confidence in the profession and to uphold standards of conduct and behaviour.

237. The Panel considered that the test for fitness to practise proposed by Dame Janet Smith and commended in the Grant case is engaged. The Registrant has in the past brought the profession into disrepute and he has in the past breached a fundamental tenet of the profession. The Panel considers that it is a fundamental tenet of the profession that paramedics should not make homophobic comments and gestures to a colleague. The Registrant’s departure from the required standards of conduct (Standard 3) was serious and would be recognised as serious by members of the profession and members of the public. Members of the public would expect the Registrant to act with decency and his misconduct was inconsistent with that expectation.

238. The Registrant’s behaviour in particulars 1(a)(i), 1(a)(ii) and 1(a)(v) had an attritional effect on Colleague A. The Panel recalled the evidence of Colleague A where he described how he became conditioned to the behaviour, the language became normalised, and that the expression “gay boy” was used like a nick name. This repeated conduct took place within the workplace and in the presence of others. Members of the public expect a paramedic to treat colleagues with respect and the Registrant’s behaviour was a serious departure from the standards expected of a paramedic. 

239. The Panel therefore decided that a finding of impairment is required to mark the seriousness of the Registrant’s departure from the required standards and to maintain public confidence in the profession.

Decision on sanction

240. The Panel heard submissions from Mr Olphert and from the Registrant. Mr Olphert referred the Panel to passages from the HCPTS Sanctions Policy (SP) and highlighted aggravating and mitigating features. The Registrant in his submissions emphasised the long gap in time between the relevant events and today’s date. He also referred to the public benefit in the service he can provide to vulnerable members of the public and asked the Panel to consider how members of the public would perceive the imposition of a restrictive sanction. He said that the sanction imposed by the Panel made no difference to him because for him this case was purely about his reputation and honour.

241. The Legal Assessor reminded the Panel of the purpose of a sanction which is not to punish the Registrant, but to protect the public and the wider public interest. The wider public interest includes maintaining confidence in the profession, maintaining confidence in the regulatory process, and acting as a deterrent to other Registrants. The Legal Assessor advised that the Panel should apply the principle of proportionality.

242. The Panel accepted the advice of the Legal Assessor and had regard to the guidance in the SP.

243. The Panel identified the following aggravating features:

• A pattern of unacceptable behaviour sustained over a period of time;

• The absence of remorse or apology and limited insight and remediation as set out in the Panel’s decision on impairment;

• The behaviour was discriminatory in nature which is described as “serious” within the SP;

244. The Panel identified the following mitigating features:

• The Registrant’s misconduct occurred only in a specific and unique workplace setting.

• The Registrant’s positive testimonials. The Panel gave weight to this mitigating feature because the testimonials were provided from individuals of varying levels of seniority in a range of healthcare settings. Some of the referees referred to the Registrant’s intolerance of homophobic behaviour. The referees included individuals who described themselves as “transgender” or “gay” or a member of the “LGBT community”. The Panel has noted particular comments within the testimonials provided by the Registrant including the following:

- “I am aware that on occasions during restroom banter Mr Stuewe has actively discouraged conversations that were deemed to be offensive/racist/insensitive”;

- “He treats everyone with respect, dignity and courtesy in a manner that is befitting of a health care provider”;

- “I have witnessed similar occasions where Lars has actively discouraged conversations which are homophobic no matter what the circumstances”.

• The Panel’s finding that the Registrant did not hold homophobic views;


• There is nothing to suggest that the Registrant’s care and treatment of patients has been anything other than exemplary;

• The Registrant has not been able to obtain work in a paid capacity for a considerable period of time but has dedicated his time to voluntary work and has continued to maintain his professional knowledge and skills;

• The length of time which has elapsed since the events in question with no repetition;

• The Registrant’s otherwise unblemished record since his qualification in 2003;

• The Registrant’s full engagement with the HCPC;

• The low risk of repetition.

245. In its deliberations the Panel had regard to the guidance in the SP at paragraphs 63-66 on discrimination. The guidance indicates that in discrimination cases it is more likely that the Panel will impose a serious sanction.

246. While it recognised the serious nature of discrimination, as set out in the SP, the Panel’s view was that the discrimination in this case was at the low end of the scale of seriousness for discrimination. There were unusual features, in particular the Panel’s conclusion that the Registrant does not hold homophobic views and the other mitigating features. In addition, the Panel noted that initially there was a friendly relationship between the Registrant and Colleague A. Colleague A worked with Company C for approximately three years and did not raise concerns until he had been dismissed when the dispute between himself and the Registrant was apparent.

247. The Panel was of the view that there is a public interest in the Registrant, as a skilled and experienced paramedic, continuing to provide services to members of the public. While this consideration does not override the importance of maintaining confidence in the profession and the regulatory process, the Panel’s view was that this public interest in the Registrant continuing to practise as a paramedic is amplified by the current pandemic.

248. The Panel considered the options available to it in ascending order of seriousness. The Panel decided that it would not be sufficient to take no action. This option would not be sufficient to mark the seriousness of the Registrant’s departure from the required standards and would not be sufficient to maintain public confidence in the profession and the regulatory process.

249. The Panel next considered the option of a Caution Order and had regard to the SP. The Panel considered that the guidance was not applicable. The Panel would not describe the Registrant’s conduct as relatively minor. While it was isolated within the context of Company C, there was a pattern of conduct over a period of time. While the Panel has found that there is a low risk of repetition, the Registrant has not demonstrated insight. Further, the Panel had regard to the SP guidance at paragraphs 63-66 which highlights the seriousness of discrimination and its impact on public confidence in the profession. The Panel decided that a Caution Order would not be sufficient to maintain public confidence in the profession and the regulatory process. It would also not be sufficient as a deterrent to other Registrants.

250. The Panel next considered the option of a Conditions of Practice Order. It noted that there were paragraphs in the SP which indicated that a Conditions of Practice Order might not be sufficient or appropriate. Paragraph 108 states that conditions are less likely to be appropriate in more serious cases such as discrimination cases. Paragraph 109 states that Panels should only impose a Conditions of Practice Order in such cases where it is satisfied that the conduct was minor, out of character, capable of remediation and unlikely to be repeated.

251. In its decision on impairment the Panel concluded that the Registrant’s misconduct was capable of remediation and unlikely to be repeated. The misconduct can also be described as out of character because it took place only in the unique environment of Company C, has not been repeated before or in subsequent years, and because of the testimonial evidence confirming the Registrant’s demonstrated commitment to equality and diversity. While the Panel would not describe the conduct as minor, there were mitigating features, which in the Panel’s judgment carried significant weight.

252. When considering the guidance in paragraphs 108 and 109 of the SP, the Panel also looked at the option of the more serious sanction of a Suspension Order. The Panel’s decided that a Suspension Order would be disproportionate and would not serve the public interest. The Panel had regard to the mitigating features. It also had in mind the impact that the ongoing lengthy proceedings have already had on the Registrant. The Registrant told the Panel that due to the HCPC’s publication of the Allegation, his employer terminated his employment. Since that time he has engaged in voluntary work. The Panel also took into account the public interest in a skilled and experienced paramedic, who does not present a risk to public safety, continuing to practise and provide services to members of the public, particularly during a pandemic.

253. The Panel was of the view that conditions of practice could be formulated which were sufficient to address the wider public interest concerns in this case. Conditions of practice would be a serious sanction which would reinforce for members of the profession and members of the public the unacceptability of the Registrant’s conduct. The Panel considered that it could formulate conditions of practice to ensure that there is regulatory oversight of the Registrant’s continued compliance with the required standards of conduct and that he does not work in an environment similar to that at Company C.

254. For the avoidance of doubt, the conditions of practice are not intended to prevent the Registrant from being engaged in the ownership of a company if that company is purely for the purpose of arranging for payment to be made to the Registrant for paramedic services. The conditions also do not prevent the Registrant being involved in the management or ownership of a company if he is not providing services as a paramedic.

255. The Panel was of the view that the conditions of practice would be a proportionate response to the Panel’s finding of misconduct and current impairment. The Registrant would be able to practise as a paramedic, but within the parameters set by the conditions of practice. The conditions of practice would be sufficient to mark the seriousness of the Registrant’s departure from the required standards. They maintain confidence in the profession, and act as a deterrent to other Registrants, because the conditions of practice are publicly available, employers will be alerted to the regulatory concern, and the Registrant will remain subject to regulatory oversight.

256. The Registrant has stated clearly to the Panel that he does not accept the Panel’s conclusions and that he has no interest in the particular sanction imposed by the Panel. While there is uncertainty about whether he will be motivated to engage with the conditions, the Panel was sufficiently confident that he will continue to engage with the HCPC as he has done to date, and will not act in breach of the conditions of practice.

257. The Panel considered the appropriate length of the Conditions of Practice Order. It decided that the appropriate and proportionate length of the Order is eighteen months. In setting this length the Panel considered that the Registrant might not choose to take up employment immediately or he may find it difficult to secure employment as a paramedic. If the Registrant were to obtain a position as a paramedic within a relatively short period of time and obtain evidence to demonstrate his full compliance with the conditions of practice, the option of applying for an early review of the order is available to him.

258. The Panel therefore decided that the appropriate and proportionate order is a Conditions of Practice Order for a period of eighteen months.

259. The Conditions of Practice Order will be reviewed before it expires. A future reviewing Panel will be assisted by the following evidence:

• Any further evidence of CPD.

 

 

Annex A

Application to Amend the Allegation

1. At the outset of the hearing Mr Olphert made an application for the Allegation to be amended. He referred the Panel to the case summary, which had been served on the Registrant in advance of the hearing, and confirmed that the HCPC intended to make an application for the following amendments:

• Particular 1(vi) – Offer No Evidence.

• Particular 1(b)(ii) – replacing the original wording with the words, ‘When talking about Colleague A with Witness 1, you quoted Chapter 22, Verse 18 of Leviticus , stating that…’

• Particular 1(b)(ii)(1) – replacing the original wording with the words, ‘It was an “abomination to lie with another man” or words to that effect; and/or…’

• Particular 1(b)(ii)(2) - insertion of the words ‘He was’ at the beginning.

• Particular 1(e)(iii) – Offer No Evidence.

2. Mr Templeton did not object to the proposed amendments.

3. The Panel accepted the advice of the Legal Assessor. She advised the Panel that early notice and minor changes are less likely to cause injustice than late notice and substantial alterations that heighten the seriousness  of the Allegation.

4. The Panel was satisfied that the Allegation should be amended, as requested, as the proposed amendments:

i. provided helpful clarification;

ii. avoided ambiguity;

iii. more accurately reflected the HCPC’s case; and

iv. did not widen the scope or meaning of the Allegation as originally drafted.

5. In these circumstances, the Panel concluded that the amendments would cause no injustice to the Registrant as they were minor in nature.
 
Application for a Witness Summons

6. Mr Templeton made an application for a witness summons to be issued in order to secure the attendance of GK. He provided the Panel with a written application in which he stated that requests had been made for the witness to attend voluntarily. Mr Templeton informed the Panel that GK had not confirmed that he would be willing to attend the hearing. He stated that GK’s attendance was required for the following reasons;

i. he was the Chairman of the directors in the misconduct case against Colleague A;

ii. the cease and desist letter to Colleague A was drafted by GK;

iii. in a letter to the solicitors for the Employment Tribunal he stated that he did not see or hear any homophobic expressions / comments from the Registrant;

iv. he was the Whistleblowing Officer for CPNI and did not receive any complaint from the witnesses regarding Colleague A until after his dismissal;

v. his testimonial, on behalf of the Registrant, refutes assertions made by the witnesses with regard to homophobic comments.

7. In response to a question from the Panel, Mr Templeton confirmed that GK is a registered Pharmacist, and that during the relevant period he worked, for the majority of the time, from his pharmacy which was in close proximity to CPNI. Mr Templeton stated that GK was the most senior director and had the final decision on operational matters.

8. Mr Olphert was neutral as to whether the application for a witness summons should be granted. He stated that he was not in a position to support or oppose the application as it was not clear what evidence GK would be able to provide. However, he acknowledged that it was likely to support the Registrant’s case.

9. The Panel accepted the advice of the Legal Assessor and took into account the HCPC’s Practice Note – ‘Witness and Production Orders’.

10. The Panel considered the specific reasons put forward by Mr Templeton in turn:

i. The Panel noted that GK was a Director of CPNI but was not satisfied that his role, in and of itself, indicated that he would be able to provide the Panel with direct evidence which either
 
supported the Registrant’s case or undermined the HCPC’s case. The Panel noted that none of the witnesses had suggested GK was present at the time of any of the alleged misconduct.

ii. The hearing bundle contained a copy of the suspension letter that had been sent to Colleague A. The Panel noted that the letter, dated 25 April 2015, had been signed by both GK and the Registrant. Therefore, the Panel took the view that any evidence relevant to the content of the suspension letter could be addressed by the Registrant, even though he did not draft it.

iii. The Panel noted Mr Templeton’s assertion that GK did not see or hear any homophobic expressions from the Registrant. However, as GK conducted CPNI business from his pharmacy the Panel considered that that was unsurprising. The Panel took the view that even if GK was able to provide evidence that he had not witnessed any homophobic behaviour from the Registrant, such evidence would be of limited assistance as it would not establish that the comments had not been made; simply that he had not heard it.

iv. Any evidence that GK could provide with regard to the absence of any complaints from Colleague A until after Colleague A’s dismissal is already in evidence. In particular, Colleague A did not dispute that he made his allegation of discrimination until after the Employment Tribunal claim had already been submitted. However, the Panel noted that Witness 1 said in his statement that he raised concerns with GK. The parties will have the opportunity to clarify this when Witness 1 gives evidence.

v. The Panel noted that Mr Templeton anticipated that GK would be able to refute the assertion that the Registrant made homophobic comments. However, there were other witnesses who have provided positive testimonial evidence, on behalf of the Registrant, which the Panel would be able to evaluate at the end of the fact-finding stage.

11. In these circumstances, the Panel was not persuaded that it would be appropriate to issue a witness summons to secure the attendance of GK. In reaching this conclusion, the Panel took the view that the issuing of a witness summons is a serious case management measure which should only be exercised if the evidence to be adduced is relevant and necessary.
 
Application for Postponement of Witness 1’s Evidence

12. Mr Olphert made an application for the evidence of Witness 1 to be delayed until Wednesday, 11 September 2019, or Thursday, 12 September 2019. He reminded the Panel that Witness 1 had attended to give evidence in person on Thursday, 5 September 2019, but a decision had been taken not to commence his evidence that afternoon as it was unlikely that it would be concluded that day. Therefore arrangements  had been made for Witness 1 to give evidence via video-link on Monday, 9 September 2019. Mr Olphert informed the Panel that provisions had been made to send Witness 1 an electronic copy of the HCPC bundle and the Registrant’s bundle in preparation for his oral evidence. Mr Olphert stated that, having read the Registrant’s bundle shortly before he was due to give evidence, Witness 1 noted that serious allegations had been made against him by the Registrant which had prompted him to seek legal advice. Mr Olphert informed the Panel that Witness 1 confirmed that he had made arrangements to meet with his legal representative on Wednesday, 11 September 2019.

13. Mr Templeton opposed the application. He stated that the Registrant was concerned that his hearing bundle had been sent to Witness 1 who would be able to ascertain the Registrant’s strategy, anticipate the questions he will be asked and ‘collude’ with other witnesses in this case. Mr Templeton submitted that the application made by Mr Olphert should be refused.

14. The Panel accepted the advice of the Legal Assessor that it was unfortunate that Mr Templeton and the Registrant were unaware that the defence bundle had been provided to Witness 1. However, it was usual for witnesses to be provided with the bundles in the case. She reminded the Panel that fairness cuts both ways; the Registrant is entitled to a fair hearing and the HCPC are entitled to a fair and reasonable opportunity to adduce evidence in support of its case.

15. The Panel noted that it is usual practice for hearing bundles to be provided to witnesses shortly before they are due to give evidence. The Panel acknowledged that because Witness 1 is due to give evidence by video-link, an electronic copy of the bundles had been provided to him and, as a consequence of the concern he raised, he will have the opportunity to consider the contents much more closely than would usually be the case. The Panel recognised the Registrant’s unease. However, the Panel noted that Witness 1 had provided a witness statement to the HCPC in advance of the hearing. The Panel took the view that if there were any material changes to Witness 1’s evidence it would assess whether this was for good reason and ultimately would be
 
able to apply as much or as little weight to his evidence as it considered to be appropriate. The Panel also noted that Mr Templeton would be able to cross examine Witness 1 to test the veracity of his account and his credibility.

16. The Panel concluded that it was fair and reasonable to accede to Mr Olphert’s request. Although a delay in the conclusion of the HCPC’s case was unfortunate, the Panel was satisfied that it was in the interests of justice for the HCPC to be given a reasonable opportunity to present its best evidence. Where evidence is disputed, as in this case, the best evidence is oral testimony from a witness which can be tested by cross examination.

Applications to Adjourn – 12 September 2019, 13 September 2019 and 16 September 2019

17. On 12 September 2019, Mr Olphert gave the Panel an indication that he would be making an application for a witness summons to secure the attendance of Witness 1 as it had not been possible to make contact with him. The Panel indicated that the application would be unlikely to be granted, subject to further representations from both parties.

18. On 13 September 2019, the Registrant was informed by email that Mr Templeton was unable to continue representing him due to a personal emergency. The Registrant made an application for the hearing to be adjourned until Monday, 16 September 2019 to enable him to make enquiries about instructing a new representative. Mr Olphert did not oppose the application. The Panel concluded that it was fair and reasonable to give the Registrant the opportunity to instruct a new representative and granted the application to adjourn.

19. On 16 September 2019, the Registrant confirmed that he had contacted his union representatives and had made a request for legal assistance. He stated that his union had not yet been able to confirm that they would be able to provide him with representation and that matters were complicated by the fact that the hearing is taking place in England although his last registered address in the UK was in Northern Ireland. The Registrant requested a further adjournment until 18 September 2019. Mr Olphert did not oppose the Registrant’s application for an adjournment and confirmed that contact had been re-established with Witness 1. He concluded by stating that, if the Registrant was able to secure representation, the HCPC would be in a position to close its case within the time left available.
 
20. The Panel was satisfied that it was in the interests of justice to grant a further adjournment. The Panel noted that it would be highly unlikely that the case would conclude within the allocated timeframe, but it would be in the interests of all parties to conclude the HCPC’s case, if at all possible.

Application to Adjourn and Case Management – 18 September 2019

21. On 18 September 2019, the Registrant made an application for a substantive adjournment of the case. He informed the Panel that the hearing bundle and available transcripts had been provided to a firm of solicitors, via the College of Paramedics, who are undertaking a review of the documents. The Registrant stated that he had not received confirmation that he would be legally represented but he expressed confidence that he would be able to secure representation in advance of the re-scheduled hearing. The Registrant also made an application for Witness 1 to be summonsed to attend the re-convened hearing in person.

22. Mr Olphert did not oppose the application to adjourn. He informed the Panel that he had spoken to Witness 1, who had confirmed that he would prefer to be cross examined by a representative rather than being cross examined directly by the Registrant. Mr Olphert further submitted that although Witness 1 would prefer to give evidence via video-link he would not object to any requirement that he attend to give evidence in person. However, Mr Olphert informed the Panel that if Witness 1 was required to attend in person he would appreciate a chaperone or friend to attend the hearing with him. Mr Olphert did not make an application for a witness summons but stated that the HCPC would not object if the Panel, of its own volition, determined that a witness summons should be issued.

23. The Panel determined that the hearing should be adjourned and re- scheduled with a time estimate of 10 days. The application for an adjournment was granted for the following interrelated reasons:

i. The Panel concluded that it is fair and reasonable to provide the Registrant with an opportunity to secure alternative representation, given that at the commencement of the hearing the Registrant was represented, and the subsequent unavailability of his representative is due to unforeseen circumstances. Furthermore, the Registrant bears no responsibility for the sudden unavailability of his representative.
 
ii. The Panel is satisfied that the Registrant has made significant efforts to secure alternative representation, but it has not been possible to confirm arrangements within the limited time available.

iii. Refusal of the application to adjourn would adversely affect the presentation of the Registrant’s case as he had anticipated that he would be represented for the duration of the hearing. The Panel noted that the Registrant had prepared his case on the basis that he would not be required to cross examine any witnesses directly and it accepted that direct cross examination of Witness 1 would not be appropriate given the history and circumstances of this case. The Panel was mindful that Witness 1 had sought legal advice following receipt of the Registrant’s hearing bundle and noted that he expressed some concern about being cross-examined directly by the Registrant.

iv. The Panel is satisfied that no alternative arrangements could be made at this moment which would avoid the need for an adjournment without undermining the Registrant’s right to a fair hearing.

24. The Panel was satisfied that it would not be appropriate to issue a witness summons to secure the attendance of Witness 1. In reaching this conclusion, the Panel noted that Witness 1 had attended the hearing on Day 1 and that his intermittent contact with the HCPC was due to the legal advice he had received. Witness 1 had not refused to give evidence and there was no indication that he would refuse to give evidence in person or via video-link. The Panel determined that if any issues were to arise, these should be addressed within the framework of case management directions.

Case Management Directions

The following case management directions will come into effect from the date of service.

Representation and Communication

1. Liaison between the Registrant and his Case Manager at the HCPC must take place within 14 days so that both parties have agreed on the best form of communication between them.
 
2. Once the Registrant has secured representation, he must provide the HCPC with the name and contact details of his representative within 7 days.

Further Applications

3. The HCPC, the Registrant, or his representative, must notify the HCPTS of any substantive preliminary matters no less than 14 days before the hearing is due to reconvene.

4. The HCPTS must give consideration to the Chair being asked to make a decision prior to the hearing reconvening if such matters arise.

Witnesses

5. The HCPC must warn Witness 1 to attend for two days.

6. The HCPC must make arrangements for Witness 1 to be available to give evidence at the hearing either:

i. in person, or

ii. via video link.

7. The HCPC should make arrangements for Witness 1 to have an appropriate support person if he attends the hearing in person.

8. The HCPC must make contact with Witness 1, no later than 14 days prior to the hearing to confirm his attendance.

9. If there appears to be any problematic engagement with Witness 1, the HCPC must consider an application for a witness summons in advance of the hearing reconvening.

10. The Registrant and his representative must ascertain the availability of the witnesses that they wish to call and have made appropriate provision for how those witnesses could be scheduled.

11. The Registrant must give the HCPC the names of witnesses he intends to call at least 21 days before the reconvened hearing commences.

12. The Panel has determined that video evidence for all of the Registrant’s witnesses is acceptable. For this reason, the Registrant must provide the HCPC with contact details for any witnesses that will be giving evidence by video link at least 21 days before the reconvened hearing commences, so that the HCPC can make appropriate arrangements, if required.
 
Case management – 7 January 2020

13. On 7 January 2020 the Registrant was due to begin his cross- examination of Witness 1. He referred to the difficulties in establishing a quality video link with Witness 1 and he made an application that the Panel should make directions. He told the Panel that he was unable to hear details of the evidence given by Witness 1 because the Skype  and telephone link was of a poor quality. He requested that the Panel should either direct that the HCPC should make arrangements for Witness 1 to give evidence by a better link at a commercial venue or that the Panel should require Witness 1 to attend the hearing in person by a Witness Summons.

14. Mr Olphert submitted that the matter was for the discretion of the Panel, but that the Panel should consider the likely consequences of any decision or Order. In particular the issue of a Witness Summons would be likely to lead to an adjournment of the hearing.

15. The Panel accepted the advice of the Legal Assessor and exercised its discretion carefully, bearing in mind the need for the hearing to be fair for both parties. The Panel noted that the Skype and telephone link was of a poor quality and was of the view that the Registrant’s inability to hear the evidence of Witness 1 would impede his right to cross- examine Witness 1. This right is an important aspect of a fair hearing and the Panel therefore decided to adjourn the hearing to enable the HCPC to make arrangements for a better quality video link to be established.

 


Directions made on 26 June 2020

1. The Registrant should update the HCPC of any change in his contact details including email address and telephone numbers as soon as practicable.

2. By 7 September 2020, the HCPC may be in a position to schedule hearings in London. If so, the HCPC must schedule a four-day Substantive Hearing to take place in October 2020 to enable the Panel to conclude the case.

The Panel recognises that there is a possibility that significant Covid-19 related restrictions, such as a 14-day quarantine requirement, may have an adverse effect on the Registrant’s ability to participate in person in a hearing in London. In these circumstances the Substantive Hearing would revert to a Preliminary Hearing with the provisions as set out below.

3. If by 7 September 2020, the HCPC is not in a position to schedule with any confidence a Substantive Hearing to take place over four days in October 2020, a Preliminary Hearing listed for two days should be scheduled to take place in October 2020. The purpose of the Preliminary Hearing is to:

a) Test to confirm the workability of Microsoft Teams or other application in a virtual hearing environment.
b) Determine the Registrant’s application for a postponement on the ground that a virtual hearing is inappropriate and that the case should not be listed until a hearing can take place in person in London
c) Make any further directions for the substantive hearing if appropriate
d) The HCPC must send the Registrant a copy of its guidance on virtual hearings by 14 September 2020.

4. If the Registrant intends to be represented at the hearing, he should provide details of his representative to the HCPC in advance, no later than 14 days before the commencement of the hearing.

5. If a virtual Preliminary Hearing is scheduled for October 2020, the following will apply:

a) The Panel treats the Registrant’s submissions dated 16 June 2020 as a renewal of an application for postponement of the hearing on the ground that a virtual hearing is inappropriate.
b) If the HCPC wishes to oppose the Registrant’s application it should send written submissions to the Registrant no later than 20 days before the commencement of the hearing.
c) If the Registrant wishes to respond to the HCPC written submissions in writing he should send any further written submissions to the HCPC no later than 10 days before the commencement of the hearing.
d) The written submissions should be sent to the Panel and the Legal Assessor at least three days prior to the Preliminary Hearing.
e) No later than 10 days before the Preliminary Hearing, the Registrant should inform the HCPC where he will be on the date of the Preliminary Hearing.
f) The HCPC should explore the option of arranging a suitable neutral location with good and stable internet connection for the Registrant whilst the hearing is in progress. This is to facilitate the Registrant participating in a virtual hearing effectively. If appropriate, the HCPC should inform the Registrant of any such arrangement no later than 5 days before the Preliminary Hearing.


Directions made on 22 October 2020

1. The next reconvened hearing will take place “virtually” as the Panel has already made a decision about the appropriateness of virtual hearings for this case.  The reconvened hearing must be listed for five days and will be scheduled for 4 – 8 January 2021.

2. If the Registrant is going to be represented, notice of that Representative’s contact details must be provided to the HCPC at the earliest opportunity.  If the Registrant is not represented, but wishes to liaise with an advisor, the availability of that person must ensure that any undue delay in proceedings is avoided.

3. The HCPC should explore the option of arranging a suitable neutral location with good and stable internet connection for the Registrant whilst the hearing is in progress. This is to facilitate the Registrant participating in a virtual hearing effectively. The Registrant must liaise as necessary with his Case Manager to ensure that they know where the Registrant will be and how to contact him to send him a copy of the Notice of Hearing should he be away from his registered address. It will also be necessary for the Registrant to liaise with his Case Manager to ensure that the HCPC knows where he will be residing during the period of 4 – 8 January 2021 so that a suitable hearing venue can be identified. The HCPC should inform the Registrant of any such arrangement no later than five days before the reconvened hearing. 
4. The Registrant must use his best endeavours to ensure that he has access to suitable electronic devices allowing him to receive and read documents sent to him during the course of the hearing.

5. If the Registrant wishes to call any witnesses to give evidence at the reconvened hearing:

(i) By 11 December 2020 he must provide the name and contact information for the witness to the HCPTS to facilitate a Microsoft Teams test call;

(ii) By 11 December 2020 he must inform the HCPTS and/or HCPC of any date and/or time during the listed reconvened hearing that the witness will not be available. Any witness that the Registrant wishes to call at the Impairment stage must be available during day 1 and 2 of the reconvened hearing (4 and 5 January 2021). The duration of the hearing day is between 9.30 a.m. and 5.30 p.m, except on 4 January when the hearing will commence at 10 a.m. All of the times cited are UK time.

6. If the Registrant wishes to rely on evidence from a witness who cannot be generally available for the hearing, the witness can write an informal statement which the Registrant can submit and which the Panel will consider.

Order

ORDER: The Registrar is directed to annotate the HCPC Register to show that for eighteen months from the date that this Order takes effect, you Lars Stuewe, must comply with the following conditions of practice:

1. You must limit your paramedic practice to working for an organisation or company which you do not own in whole, or in part. For example, it would be appropriate to work for an ambulance service, health authority, health service provider, or a charity or voluntary organisation providing medical services.

2. You must not engage in paramedic practice on behalf of a company which you own in whole, or in part. This does not preclude you from working for an organisation such as those cited in Condition 1 whilst being a director of a company which receives fees for that work.

3. You must provide the HCPC with up-to-date testimonials or references for paid or unpaid work from colleagues who can attest to your conduct while undertaking that work. These testimonials or references must be provided to the HCPC no later than 14 days before the date of any review hearing.

4. You must promptly inform the HCPC if you take up professional appointment as a Paramedic.

5. You must allow the HCPC to exchange information with your employer, agency or any organisation with which you have a contract or arrangement to provide paramedic services.

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

7. 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 agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).

Notes

The Order imposed today will apply from 5 February 2021 if no appeal is made.

This Order will be reviewed again before its expiry.

 

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 Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

 

Application for interim order

1. Mr Olphert submitted that the Panel should impose an Interim Conditions of Practice Order, in the same terms as the substantive Conditions of Practice Order, for the maximum period of eighteen months. He submitted that an order was otherwise in the public interest to maintain public confidence in the profession.

2. The Registrant submitted that an order was not required and would be disproportionate. He informed the Panel that he intended to appeal the Panel’s decision. He referred the Panel to the decision of Davey v General Dental Council [2015] WL 6757832.

3. The Legal Assessor confirmed that the Panel has the power to impose an Interim Conditions of Practice Order and that this was a discretionary decision. She referred to decision of Davey and reminded the Panel that there is a high bar for imposing an interim order solely on the public interest ground. It is also important for the Panel to consider this application as a separate matter and that the considerations were not necessarily the same as those in Panel’s previous decisions. She advised that the Panel should take into account the impact of an interim order on the Registrant, if he were to appeal the Panel’s decision. The fact that the Registrant was not previously subject to an interim order might also be a relevant consideration.

4. The Panel decided that an interim order is not necessary for the protection of members of the public. This case does not involve public safety issues and the Panel has found that the risk of repetition is low.

5. The Panel decided that the high bar for imposing an interim order solely on the public interest ground is not met in the circumstances of this case. The Panel decided that an interim order was not necessary or proportionate. It was not necessary because the decisions the Panel has made on impairment and sanction are sufficient to mark the seriousness of the Registrant’s conduct. The Registrant has not been previously subject to an interim order and over the last eight years since the events that gave rise to this hearing there has been no suggestion of any wrongdoing. An informed member of the public would recognise that in its decisions the Panel has taken appropriate steps to uphold the required standards of conduct and to maintain confidence in the profession. The Panel was of the view that the imposition of an interim order had the potential to have a punitive effect and would be disproportionate.

6. In coming to this conclusion, the Panel has noted that the Registrant may appeal aspects of the case. If no interim order is made, the Registrant will be able to practice without restriction for 28 days until the substantive order takes effect. If the Registrant exercises his right to appeal, the substantive order will not take effect until the appeal is determined. The Panel is satisfied that the Registrant is very unlikely to repeat his misconduct in the interim.

Hearing History

History of Hearings for Mr Lars Stuewe

Date Panel Hearing type Outcomes / Status
04/01/2021 Conduct and Competence Committee Final Hearing Conditions of Practice
19/10/2020 Conduct and Competence Committee Final Hearing Adjourned part heard
23/06/2020 Conduct and Competence Committee Final Hearing Adjourned part heard
06/01/2020 Conduct and Competence Committee Final Hearing Adjourned part heard
05/09/2019 Conduct and Competence Committee Final Hearing Adjourned part heard