Mr Jonathan Moyes

Profession: Paramedic

Registration Number: PA41531

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/07/2021 End: 09:30 23/07/2021

Location: This hearing will be held virtually via video conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation as amended at final hearing:


As a registered Paramedic (PA41531) your fitness to practise is impaired by reason of misconduct. In that:
1. On 16 February 2018 you inappropriately demonstrated the use of your stethoscope on Colleague A, in that you moved the stethoscope onto Colleague A’s left breast and pressed it on her left breast for approximately 10-30 seconds;
2. On 19 January 2019 you pushed your hands down the back of Colleague B’s trousers, and/or grabbed the back of Colleague B’s trousers and/or her underwear resulting in a ‘wedgie’;
3. On 16 June 2019 you poked and/or smacked Colleague F on the back of the head and said “come on fatty” or words to that effect;
4. On 16 June 2019 you said to Colleague F “I would rather have my old crew member back as she was a good girl” or words to that effect;
5. On numerous occasions you pushed Colleague F
6. On 16 June 2019 you said to Colleague F that “I am going to punish you for your attitude by putting you over my knee and spanking you” or words to that effect;
7. On 16 June 2019 you threw a boot cleaning brush at Colleague F which hit her on her left buttock and threatened to throw it at her again;
8. On 19 June 2019 you saw a photo of Colleague F and said “you’re quite shaggable” or words to that effect.
9. On 8 June 2019 you told Colleague F that her horse needed to go to a glue factory, or words to that effect.
10. In June 2019 told a patient that Colleague F was a terrible driver and/or is only good for paperwork, or words to that effect.
11. Your conduct in relation to allegations 1, and/or 2, and/or 6 and/or 8 was sexually motivated.
12. The matters set out in allegation 1-11 above constitutes misconduct.
13. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters


Service

1. The Panel was aware that written notice of these proceedings was sent to the Registrant at his registered email address on 10 March 2021. The Panel was shown documents which established both the fact of the service and the identity of the Registrant’s registered email address. In these circumstances the Panel accepted that proper service of the notice had been effected.

Proceeding in the absence of the Registrant


2. It was submitted on behalf of the HCPC that the Panel should proceed in the absence of the Registrant, notice having been provided of both the date and the nature of the hearing and the manner in which it would be conducted remotely by electronic means. The HCPC had also made efforts to contact the Registrant and check whether he wished to attend. There is an email receipt which confirms delivery of HCPC documentation. Further steps had been taken on numerous occasions to engage with the Registrant who had not responded to any of the recent efforts to communicate with him.

3. The Panel took into account the HCPTS Practice Note on Proceeding in the Absence of the Registrant.

4. The Panel is aware that a decision to proceed in the absence of the Registrant was one to be taken with great caution. However, the Panel took the decision that this hearing should proceed in his absence. The reasons for this were as follows:

i) The Registrant had been put on notice of the date and nature of this hearing by an email sent to his registered address;
ii) The Registrant has given no indication that he wanted to attend;
iii) The Registrant had not requested an adjournment;
iv) The Registrant has been provided with the opportunity to attend, to make representations, or to be represented;
v) There would be no purpose served in adjourning, given no reason being provided for the Registrant’s non-attendance and that any adjournment was unlikely to secure the Registrant’s attendance at a future date;
vi) Six witnesses are ready to give evidence now and any delay could compromise their ability to recall;
vii) It was in the public interest, that the matter be dealt with expeditiously.

5. The Panel concluded that it was in the interests of justice that the matter should proceed today, notwithstanding the absence of the Registrant. There is some indication of the Registrant’s position and version of events available to the Panel. While the Panel conceded that this was not the same as presenting evidence and submissions, the Panel determined that the Registrant has voluntarily absented himself.

Privacy

6. An application was made to hear some matters in private. The Panel accepted the advice of the Legal Assessor. It determined that matters relevant to health of witnesses would not form part of any public decision and would be held in private.

Application to Amend the Allegation

7. The HCPC applied to amend the original Allegation in the following way. The areas that are in bold are new text and the strike through represents text that is to be removed:

Original Allegation with amendments:
As a registered Paramedic (PA41531) your fitness to practise is impaired by reason of misconduct. In that:
1. On 16 February 2018 you inappropriately demonstrated the use of your stethoscope on Colleague A, in that you moved the stethoscope onto Colleague A’s left breast and pressed it on her left breast for approximately 10-30 seconds;
2. On 19 January 2019 you pushed your hands down the back of Colleague B’s trousers, and/or grabbed the back of Colleague B’s trousers and/or her underwear resulting in a ‘wedgie’;
3. On 16 June 2019 you poked and/or smacked Colleague F on the back of the head and said “come on fatty” or words to that effect;
4. On 16 June 2019 you said to Colleague F “I would rather have my old crew member back as she was a good girl” or words to that effect;
5. On 16 June 2019 numerous occasions you smacked pushed Colleague F on the back of the head and pushed her;
6. On 16 June 2019 you said to Colleague F that “I am going to punish you for your attitude by putting you over my knee and spanking you” or words to that effect;
7. On 16 June 2019 you threw a boot cleaning brush at Colleague F which hit her on her left buttock and threatened to throw it at her again;
8. On 19 June 2019 you saw a photo of Colleague F and said “you’re quite shaggable” or words to that effect.
9. On 8 June 2019 you told Colleague F that her horse needed to go to a glue factory, or words to that effect.
10. In June 2019 told a patient that Colleague F was a terrible driver and/or is only good for paperwork, or words to that effect.
9. 11. Your conduct in relation to allegations 1, 2, 6 and 8 was sexually motivated.
10. 12. The matters set out in allegation 1-911 above constitutes misconduct.
11. 13. By reason of your misconduct your fitness to practise is impaired.”


8. The Panel considered the application to amend and accepted the advice of the Legal Assessor. It was aware that it could make amendments where it was fair and in the interests of justice to do so. The Panel had regard to the fact that the Registrant had been put on notice of these proposed amendments via email on 28 September 2020, and had the opportunity to respond.

9. The Panel considered each of the amendments in turn and the rationale provided by the HCPC for their application.

10. The Panel considered whether the amendments reflected the available evidence, and whether it was proportionate and just to allow this.

i) In Particular 1, “and pressed it on her left breast for approximately 10-30 seconds; …”
ii) In Particular 3: adding to “poked”, “and/or smacked” “on the back of her head”;
iii) In Particular 5: the date is removed, but replaced with “on numerous occasions” and “smacked” is replaced by “pushed”;
iv) Particulars 9 and 10 are new. The evidence was available at an earlier stage but not been fully particularised. Colleague F had given evidence regarding Allegation 9 and 10.

11. The Panel took into account that there are different types of amendment applied for in the main:

(a) In particulars 1 and 3 additional wording does better particularise existing allegations by providing more detail. The amendment allows the Registrant to better understand the case that he has to face and respond accordingly. This amendment does not cause significant prejudice to the Registrant.
(b) In Particular 5 the amendment moves from a specific date to encompass additional times. While these changes arguably extend the nature of the allegation, it does reflect the evidence of Colleague F.
(c) Particular 9 and 10 are new. While these particulars are new, the evidence that they reflect is not. That evidence has been given by Colleague F some time ago and the Registrant was aware of it and it has been presented to the Registrant at an earlier occasion.

12. The Panel was of the view that the proposed changes better particularise by adding more detail. Some are fresh allegations that reflect complaints made by witnesses and the number of times that these events occurred. Evidence given in complaints made by witnesses should be reflected in the charges that the Registrant faces.

13. The Panel has considered the merits of the application and found the changes to be based on the evidence before it. Further the Panel has taken into account that the Registrant has had time to consider the nature of the complaints from his three colleagues, and has had the opportunity to object to any of these proposed changes. The Panel has concluded that it would be proportionate and just for the amendments to be made, and allows these changes to be made as set out above.

Background

14. The Registrant is a Paramedic who was employed by South East Coast Ambulance NHS Trust, (“the Trust”). On 16 February 2018 it is alleged that the Registrant inappropriately used a stethoscope on Colleague A. On 19 January 2019 the Registrant allegedly pushed his hands down the back of Colleague B’s trousers and pulled up her underwear and trousers, resulting in a “wedgie”. These incidents were referred to a disciplinary hearing.

15. Other incidents of behaviour that caused distress to another colleague (Colleague F) have emerged. Words and actions used by the Registrant were not appreciated by Colleague F on occasion. These incidents emerged as a result of an internal investigation by the Trust.

16. On 8 July 2019 the Registrant self-referred to the HCPC, stating that he was suspended under investigation for harassment and use of sexualised words as well as failing to follow Trust procedures. It is alleged that the Registrant smacked and/or poked and pushed Colleague F, and used inappropriate and sexually suggestive language towards her.

Witnesses
17. The witnesses in the case are:
a) Edward Davis: Investigating Officer;
b) Colleague A: Complainant;
c) Colleague B: Complainant;
d) Colleague D: Eyewitness;
e) Colleague F: Complainant;
f) Andrew Pattison: Investigating Officer.

18. Edward Davis gave evidence under affirmation. He adopted his written statement. He indicated that this was the first investigation he had done for potential disciplinary proceedings. He had no prior relationship with the Registrant before this and knew Colleague B only in passing.

19. Colleague A gave evidence under affirmation. She adopted her written statement. She supplemented her statement with additional information. She indicated that at the time of this incident she was 21 years of age and had done her second-year of her student Paramedic course at university and was on a placement for the practical component of her degree. She had not met the Registrant before the incident of which she complained but she estimated that he was in his early forties.

20. The incident was on a late shift and occurred at 10pm. She said that she did not “click” with the Registrant immediately and had not gained a good impression of him because of his poor social skills, such as his apparent inability to maintain eye contact. She was surprised that he was in the back of the ambulance rather than the front but could not say why. She remembered that he produced a new stethoscope to show her its properties during a more general conversation. She said that there were different patients seen during the shift and perhaps chests were listened to. However, heart and chest sounds are different. They had not listened to heart sounds that shift, and there had not been any prior conversation about heart sounds.

21. The Registrant mentioned the “Apex Beat” of a heart. He asked Colleague A if she could locate and listen to it. He first demonstrated this on himself. She did not remember all the details now but was taken to notes of her interview from two years ago. In those notes, she indicates that he asked her to listen to his, then to listen to her own, but she could not locate it. She said this may have been because she was wearing many layers. He took the stethoscope from her hands and put it on her chest; she said that this was on the left bottom centre of her left breast. He did not explain what he was going to do or ask her permission. She said that it lasted for more than 10 seconds but less than 30; it felt like a long time. She said she indicated that she did not want this to happen by a movement made, albeit she added that she did not have to fight him off in any way. She said that she felt uncomfortable because they were in the back of an ambulance and hoped that her mentor would interrupt. People were walking past the open back doors of the ambulance but this did not interrupt it. It stopped immediately at the time her mentor appeared. Colleague A said in evidence that at the time “It just felt odd but later, I wonder whether it was dodgy. To this day I am not sure if he was trying to teach me something, or whether even as a minor thing, it was sexual...”.

22. She said that he gave a nervous laugh when he removed his hand and stethoscope when her mentor entered the ambulance, and it was awkward because he did not continue the conversation if teaching was the purpose. She could not recall any teaching but has in her mind the Apex Beat reference even though she had to be corrected by her university given that the Apex Beat is something you feel, and the Mitral Valve beat is heard. She accepted in her oral evidence that she had a lot of things going through her mind at the time, as she processed her sense of being uncomfortable about someone she did not know entering her personal space, even though she did not feel unsafe given that people were around and the doors of the ambulance were open. Accordingly, she was not really listening to what the Registrant had been saying, which she said was supported by having to be corrected at university about what the Registrant may have been trying to teach her.

23. She indicated that she “went along with” the conversation about the stethoscope because she did not want to seem rude. She said that she did want to seem interested and willing to learn as a student and had gone along with what he may have been trying to teach her. However, later she indicated that she had shared this sometime later with two other student Paramedics to check whether this was “strange” and they agreed that it was. She said that she did get upset when talking about this but that it was a little bit of embarrassment in her feelings.

24. In Colleague A’s own mind this incident has had some impact upon her even if not greatly. It has made her nervous about working 1:1 with some older people. It has also made her less likely to move to the area in which the Registrant and those he knew worked although she liked it, in case word got around about her complaint. She accepted that this was unlikely given the passage of time between her being there and the complaint being raised and that her identity would not be known.


25. Colleague B gave evidence under affirmation. She also adopted her written statement and added some further details. She was 22 at the time of the incident as a student paramedic. She said that she knew of the Registrant but did not know him well at all. She had never had any social contact with him away from work. He was not in any way someone she considered a friend, rather just a work colleague.

26. On 19 January 2019, she shared that she was working with Colleagues C & D. She was in an area between two sets of doors which is a waiting area just beyond a resuscitation area, where patient handovers to nursing staff occur. The Registrant pushed a stretcher into her, and she thought it was meant as a joke because it was not hard enough to hurt. He invited her to do preceptorship hours with him when she qualified as a Paramedic but she declined. She said it was because word had got around that he had placed another colleague into a bin and gave him that as a reason for declining. She spoke to the Registrant because as a student one wants to learn from everyone but she thought it strange that he offered when she knew many other people better than him.

27. She said that she turned her back on the Registrant and that she then felt the skin of his hands on her back and her bottom inside her underwear to give her a “wedgie”; she shrieked and he immediately withdrew his hands. She looked to see if others had seen and another colleague was looking over. She said that she was surprised because she did not know the Registrant well. Later on she said she became aware of shock. She said that the Registrant walked away laughing without any conversation around the incident. She thought at the time that it was intended to be a joke but that she did not find it funny. She said that she was embarrassed by the situation. She said that describing it as a joke was her way of dealing with it but in retrospect wondered if there was anything else to it.

28. She did speak to her colleague witnesses who encouraged her to report it, knowing that she did not feel comfortable with confrontation. She said that she was focusing on qualifying and did not want to make a big deal about making a complaint about a member of staff. She said that she noticed that she was wary of something like that happening again, immediately after the event, albeit that she had not seen anything like that before or since.

29. She said that it changed her attitude that people in green uniforms are to be trusted by virtue of that uniform. Now she keeps her wits about her a little more. However, her sense that people can get too close to her physically has certainly receded.

30. She said that she did not classify the Registrant as a friend notwithstanding that they had previously worked one 12-hour shift together. In terms of the Registrant indicating that they had just been chatting and “mucking about” and that he said that he grabbed her by the belt and picked her up but did not touch her underwear, Colleague B disagreed. She said that if he had touched only her belt, her clothing would not have been in such disarray; she had had to go to the toilet to tuck in her shirt and undershirt back in and sort herself out.

31. She said that he did not speak to other colleagues when he was with her. She said that his engagement with her physically she thought was about a not well thought approach to making a connection with her. However, she said while she could not look into the Registrant’s mind, she said that he must have realised he had gone too far, in that he had let go of her quickly, gave an “embarrassed” laugh and walked away from the situation rather than waiting until the handover of patients occurred.

32. Andrew Pattison gave evidence under affirmation. He adopted his witness statement. As one of the investigating officers he added to his evidence orally.

33. He explained that he was an experienced investigator who at the time had had at least 10 investigations under his belt. He estimated that the Registrant was approximately in his forties at the time. He said that the written accounts he considered had been done at the instigation of line managers, but he interviewed the Registrant and Colleague F. He noted some admissions that the Registrant made, namely: making a comment about Colleague F’s horse, poking her, calling her “Fatty”, mentioning her driving and describing her as “shaggable” when seeing a photo of her. He knew of the Registrant rather than knowing him well.

34. In interviewing the Registrant he indicated that: Colleague F was “good” like his other crewmate Holly, but Holly had more experience while Colleague F had only been in the service for under five years but was competent. He accepted that may have undermined Colleague’s F confidence. He had said that he had made the comments about her horse as a joke. He indicated that he may have poked Colleague F and called her “Fatty” to get her to move. The Registrant said Colleague F was not a bad driver. He could not remember saying to a patient that she was a bad driver and thought she was careful but a little nervous. He may have made a joke about “be careful; she’s a woman driver” and accepted that this would be damaging to her confidence.

35. Mr Pattison told the Panel that the Registrant was very open and honest during the interview. The Registrant introduced the photograph himself unprompted. He left the interview quite deflated. He did not dispute any allegations put to him, save for the throwing of the boot brush. He said he could not remember that and there was no corroborating evidence to Colleague F’s account. In the course of the interview, the allegation about “putting Colleague F” over his knee was never put to the Registrant.

36. He said that he knew that the Registrant had been at the Trust for some time and had been supported by the Trust to do his Paramedic training. He shared that the Registrant appeared to have felt comfortable enough to make the comments that he had but had misjudged the situation. He said that he did not have a sense of whether the comment regarding “shaggable” was intended to be a joke, compliment or a throwaway line, but that it was not a word that he would have used when seeing a photo of a work colleague, even if he had thought it.

37. Mr Pattison indicated that the Registrant appeared to have left the interview with a very different approach to when he had entered it. He appeared to have come to a realisation that what he had intended as banter had not been perceived as such and had had a negative impact on a colleague. He indicated that the Registrant looked quite remorseful and regretful of what he had said to Colleague F who had originally looked forward to working with him, the two of them having “third-manned” on shifts together previously.

38. Mr Pattison indicated that this area of the ambulance service within the Trust has its particular pressures being set in a rural location. It can involve long drives between places, and colleagues can spend 12 hours together in close proximity. The high stakes involved in the work means that down-time at the station and horse-play may be, “the only thing that makes the job bearable”; however, he indicated that all members of staff had a responsibility to assess how their conduct would be perceived by others.

Colleague F

39. Colleague F gave evidence under affirmation. She adopted her written statement and added to it in giving oral evidence.

40. She explained that on 23 May 2019 the Registrant was made her regular crew mate. She did not know him before that date. It appeared that they had third manned together without incident before this. She was, “looking forward to having a permanent crew-mate who I highly looked up to. He was a qualified paramedic and I had only been there for six months at the time. The first half an hour we spent together was very pleasant. One or two comments made me feel a bit uncomfortable. I passed these off as comments made in an unthinking way. However, this pattern continued.”

41. When talking to a colleague, and showing her a photo of herself, he interrupted but she ignored him. In the ambulance he said: “You’re going to get me into trouble.” She did not know what he meant but felt uncomfortable about his intentions.

42. On one day when she had been unwell, she did not come into work. On her return he indicated he was unhappy with her having placed him in a position where he had to work with someone else who he did not like. On three or four later occasions Colleague F booked sick for duty to avoid working with the Registrant. She spoke to colleagues at an early stage informally. Senior colleagues told her to: “grow a backbone” so she felt going “off-sick” was the only way that she could reduce the number of shifts she worked with him.

43. She shared via text messages with a colleague how she felt and said she felt “in crisis” and not able to carry on working with the Registrant. She shared how she was upset that her horse would have to be put down at some stage and had told a colleague this but that the Registrant had overheard and made comments about going to a “glue-factory” on approximately ten occasions. She was upset and considered it unwarranted because she did not want comments about her personal life from him. These comments were made in the presence of others. Sometimes they would tell him that it was unacceptable but other times they would laugh with him.

44. After her first big job which she found traumatic, because the patient was so young, she confided in the Registrant as it caused her difficulty sleeping. She said she regretted telling him anything and asking for support because she felt belittled by his response. She said that he kept comparing her with Holly unfavourably by making comments like: “Holly would do this” - “Holly would do that” - “Holly wouldn’t answer back”; it made her feel like she was not good enough and impacted her self-confidence to an extent. She stuck to her training but knew that she was not Holly, who was a student paramedic with more experience. She felt she did not blossom but rather followed the black and white tasks she had training for.

45. There were three or four times when the Registrant made her feel bad during the time they worked together. On 16 June 2019 she arrived at work early and was cleaning her boots with her leg propped up on a bench in a long corridor. When she saw the Registrant she stood up. She said that he made a few snide comments and she responded in kind but cannot recall the detail of what was said by either. He had to walk past her and she walked away. She felt the brush hit her when there was a distance of a couple of metres between them. There was nobody else in the corridor. It made her jump because it was unexpected. She said “Ow…what the fuck was that?!” because it was a shock rather than because it hurt. She had never had anything thrown at her before and was not happy about it. If there had been anyone else around, she would have reported it. He ran to get the brush, swooping down to pick it up but she indicated strongly that he should not do it again. That was the end of the incident. She could not recall if someone else arrived to interrupt the moment or not but thought this might have occurred.

46. She described when the Registrant hit her around the head, and said, “Come on Fatty”; there was enough force to knock her head forward and hurt her. She was upset by this and wasn’t happy with his actions. The more that she was unhappy the worse things seemed to get. Those sorts of words were used on more than one occasion. She did not think that it was a joke, but something more sinister, because at no time did he explain himself or apologise.

47. She said that the Registrant said that he would prefer Holly to be with him rather than her, and pushed her to put her off her stride, with his hand/shoulder many times. She said that she had stumbled over several times when pushed, but on one occasion had fallen, and had near falls more often. This occurred three or four times every shift. After the brush incident, she noticed the pushing. It started subtly but she started to “notice” the pushes after the hit around the head.

48. She said that she never got the impression that it was a joke. She said that they never had that connection as far as she was concerned. By June 2019, Colleague F was showing a photo to Holly of her dressed up for an anniversary dinner with her husband. She did not intend for the Registrant to see the photo. Later on when she was in the ambulance with him, he said: “You’re quite shaggable”. Those words were unwelcome and she said that she felt “repulsed”. “It came out of the blue. We did not have that type of relationship; we had a professional one and that was going southward.”

49. She indicated that: “I don’t know if he was trying to make a flippant joke or not honestly. He didn’t apologise when he must have been able to see I was upset.”

50. She shared that she would not say that personal lives were a topic of conversation. He did talk about his wife and children. That came up quite often. In terms of her talking about sexual encounters to him, she denied such conversations ever took place with him.

51. When she attempted to complain about the Registrant via text messages, the Registrant accused her of playing games on her phone. She scowled at him from her seat in a lounge in a patient’s home which was about five metres away from him. At this time, she indicated that he said that he would put her over his knee and spank her. In terms of this context, the only possible context could reference back to the start of their shift. A conversation with Holly had occurred 10 minutes earlier but was not one that she would have had with the Registrant. Looking back, she considered that it was sexual on the basis that he had previously said that she was “shaggable” which she believed indicated that he fancied her and that they were adults rather than her being a child to be chastised.

52. She said that the Registrant knew that she was cautious in her driving. She had heard others say: “put your seatbelts on: my colleague is a crazy driver!” but as a joke. However, the comments from the Registrant about her driving to patients were not ones that she took as a joke and were unnecessary. She considered that they were part of a pattern like “Come on Fatty”.

53. The last planned shift with the Registrant was the week before 23 June 2019. Colleague F described that she felt “broken” because she did not want to work with him and changing her crew-member did not appear to be an option for the Trust. Since working with other crew-members she has not had similar difficulties. Her confidence in her ability had improved since then. She has applied to do a course and hopes to ultimately progress her career to paramedic level. She trusts her colleagues more now.

54. In October 2019 she indicated that her health had significantly been impacted as never before. She attributed this in part to the events of May and June 2019. She was getting a lot of back-lash from colleagues who knew the Registrant. Even having the Registrant not working at the station did not improve her health.

55. In the end she was taken off work and supported. She said that in giving evidence today she has had to rely on her written statements because she had spent time and money to forget what has happened. She said it had impacted her career and marriage and health but she said she had made huge strides in the last 12 months and is now in a better place.

56. She explained in response to a Panel question that: “What happens in the cab, stays the cab” is a reference to things that stay between your colleague and you unless safeguarding concerns arise. It is an unspoken rule that operates in the ambulance service. She did not recall saying it on 19 June 2019 but could well have done.

57. She did not believe that the Registrant was joking now when he said “I will spank you over my knee as a punishment; but you might enjoy it,” She said that she scowled and made the response: “Clearly not as much as you!”. She said she made it clear that the comment was uncalled for in her tone and body language.

58. In terms of ‘giving as good as she got’, she indicated that she employed a number of strategies to deal with the Registrant. She said that she worked to show “fake happiness” because ambulance crew cannot be seen as looking anything other than helpful and happy. In the public eye, with patients it was important to present this façade. Her unhappiness and stress were caused by the Registrant’s behaviour.

59. She indicated that the response of some of her colleagues had originally made her feel “pathetic” because pressures of the job were to be expected, and because the Registrant was known as “Ex-army” and just the way he was. She said that she pushed him back and had told him to “Fuck off” a few times. She indicated that she “gave him lip” on occasion. She said her tactics were defensive but may have come across as aggressive. Additionally she said: “When he was fine, I was fine.” She clarified that this was because one wants a pleasant shift and that she tried to get on with everyone and get on with the job, but she was never the aggressor; her responses were simply a defensive mechanism.

60. She indicated that when he cuffed her around the head she thought that he had no reason to lay “hands” on her and thought: “No – I’m not having this anymore.” She said that she had ignored the build up to this but this action crossed a definite line and led to her complaining.

61. She said that the conversation including “spank” was not one that followed any conversation regarding spanking. It may have been on the same day as the “shaggable” comment and the photograph, which would have occurred some hours earlier because the “spank” conversation was at the house of the second patient of the day. She said that she considered it a “sexual thing and didn’t see it just as chastisement.” She said that he had smirked when he used the word spank and thought “he was being clever”. Her response was bravado; she regarded his comment as a continuation of other derogatory comments such as “Fatty” and criticisms of her driving.

62. Colleague F indicated that she tried a number of strategies to stand up to the Registrant. She indicated that she had tried to be aggressive, defensive, physical, cheeky but: “He did not seem to get the idea that I was not happy with his actions.” She said her main strategies were to complain about him and ignore him by having no contact other than that which was professionally required, or to “bite back”.

Colleague D

62. Colleague D gave evidence under affirmation. He adopted his written statement. He also supplemented this evidence with additional evidence.

63. He indicated that on 19 January 2019, he was working as a crew with Colleague C, with Colleague B third-manning as a student Paramedic with them. He knew these colleagues reasonably well as they had worked together. He had social contact with Colleague B, but thought that this was since the incident but could not be sure. He described Colleague B as a friend now rather than just a work colleague. He did not know the Registrant save by virtue of his professional position as a colleague and had no social contact with him.

64. While waiting with a patient and apologising for the wait time, he saw the Registrant approach Colleague B. He was 6-8 feet away and had a good view. He heard Colleague B tell a joke about when the Registrant had put a student in a bin.

65. He said that Colleague B was facing him straight on. He saw the Registrant behind her. He said that he saw the Registrant’s hands move towards her bum and her facial expression change. The Registrant walked away laughing. His hands had been behind her for a short period of time, a matter of seconds.

66. Afterwards she said he had given her a wedgie and her tone of voice suggested that she was not happy about this. Later he had a proper conversation with Colleague B about it. While her back was obscured from his view at the time of the incident, but he could see that her shirt had been untucked from her trousers.

67. He said that Colleague C and he had encouraged Colleague B to make a complaint. He said that this was because although it may seem just like banter it was unprofessional to do this with patients around. He had not seen this behaviour before in the ambulance service.

68. A statement given to the Trust on 21 January 2019 indicated that he had been told by Colleague B that the Registrant had touched her underwear. By February 2019 at the next stage of the Trust investigation he could not remember as much detail. He did think that this was a joke “done for a laugh”, rather than for any sexual pleasure. He said that from what he saw he thought it was more of a joke.

69. He had previously said in a statement and when interviewed at the Trust investigation that he had seen the Registrant lift Colleague B. He said that he saw Colleague B be lifted onto the balls of her feet and onto her toes by grabbing her belt. He indicated that this carried on for no more than 10 seconds and that he saw that Colleague B was shocked as she was not expecting it. It was only when he spoke to her afterwards that he realised that she was upset. He could not see her back which was facing away from him, and the Registrant has consistently said he did lift Colleague B by her belt.

Further Amendment

70. Before the conclusion of the HCPC case on facts, the HCPC applied for a further amendment to the Allegation in relation to Particular 11.

“Your conduct in relation to allegations 1, and/or 2, and/or 6 and/or 8 was sexually motivated.”

71. This would mean that the words in bold are to be included. The Panel was mindful that the Registrant had not been put on notice of this amendment. However, not to make this amendment was said to be perverse because the particular could fail if either any of the facts at 1 or 2 or 6 or 8 was not made out, or any of these were not found to be sexually motivated. This would not provide the requisite level of public protection.

72. Accordingly, the Panel permitted the amendment.

Decision on Facts

73. The Panel heard the submissions on behalf of the HCPC who presented a case whereby there had been evidence to support a finding of fact for each particular alleged. It accepted the advice of the Legal Assessor who did address the fact that there was no evidence before the Panel to suggest that the Registrant had any previous HCPC findings against him. During the Panel’s deliberations she further explained that this good character was relevant to propensity and that the Registrant was entitled to have the Panel take this into account in regard of his denials given as part of the Trust investigation. Her advice in the main was as follows:

a. We have now reached the end of the fact-finding stage. It is now for this Panel to consider the evidence and announce its findings of fact in relation to the allegations.

b. The Panel will need to consider the evidence in relation to each allegation separately. The allegations must be in an appropriate form as required by Article 22(5) of Health and Social Work Professions Order. That is they must be in writing, sufficiently identify the registrant, set out the nature of the allegation and the events giving rise to it, in sufficient detail to allow the registrant to respond. Responses have been given.

c. The burden of proving each charge in dispute is on the HCPC. The registrant has to prove nothing, nor to disprove anything. Where there is doubt, it should be resolved in the registrant’s favour. The registrant does not have to incriminate themselves.

d. The standard of proof required is the civil standard of proof, that is, proof on a balance of probabilities. A fact will be established if it is more likely than not to have happened. It is the Panel to decide upon that.

e. The evidence in this case must be considered carefully. The HCPC case involves evidence given by multiple witnesses and documentary evidence. The Panel must decide the case only on the evidence heard or is properly before it.

f. The fact that there had been a previous disciplinary hearing was included in the papers and formed part of the opening of the HCPC case. While the Panel knows about the disciplinary investigations, they should not know of a panel’s previous findings on the very issues that they themselves need to decide. Normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this committee.

g. While documentations from a previous disciplinary hearing in fitness to practise proceedings, can be used in a fitness to practice case, they should be redacted so that no previous findings of fact are contained within the documents. This is in order to prevent the potential for panels to be tainted by a previous panel’s findings on the same issues that they are to determine. That had been done in this case. However, further to a question asked on behalf of the HCPC, the HCPC witness has provided some opinion of the Registrant and how he gave his evidence.

h. The case in which the High Court made it clear that the potential for Panels to be tainted by a previous panel’s findings should be avoided is Enemuwe v NMC [2015] EWHC 2081 (Admin). In that case, an appeal was allowed on the basis that there must have been a risk that in some way the Panel allowed themselves to be influenced, even if only peripherally, by their knowledge of what had been upheld by a previous Panel.

i. Applying that here means that no evidence of the outcome of the investigation should be included by the Panel in their consideration of the facts in dispute before them now.

Belief

j. The Panel has heard what the HCPC witnesses have said. Two investigating officers obtained different impressions of the Registrant. One acknowledges that the impression he gained and his belief was not positive. The other gained a positive impression. The opinion of the HCPC witnesses does not change the fact that it is for the Panel alone to determine any facts and grounds in relation to the Allegation before it.

k. Some of the evidence the HCPC witness gave as to the Registrant’s demeanour and conduct during interview is admissible just as character evidence would be. What is inadmissible, is any conclusion any person reaches as to whether the Registrant committed the factual particulars and whether this amounts to misconduct.

Sexual misconduct

l. It is alleged that how the Registrant behaved and the things that he said were sexually motivated. In order to ascertain whether this is correct or not it is necessary for the Tribunal to put these actions into context and to consider the evidence before it. It is possible to prove sexual motivation by inference, but similarly the Tribunal will consider whether there were other explanations for why the Registrant behaved as he did, particularly in circumstances where there is a discrepancy between the actions and the behaviour.

m. The following matters may therefore be considered:

a) The nature of what was done in terms of physical contact;
b) How the recipients felt, (albeit there is a change acknowledged over a period of time for some of them);
c) That a complaint was raised, (albeit there was a considerable delay between one of the complaints and the occurrence).

Set against this is:

a) Alternative explanations provided for the physical contact without sexual motivation;
b) A lack of clarity about whether all of the recipients perceived different behaviours to be sexually motivated by the Registrant;
c) The history of no other inappropriate contact with Colleague A and B.
d) The absence of any sexual remarks to Colleagues A and B.

n. All relevant matters should be considered. It is not a case of numeric assessment of factors on each side. Rather a broad view must be taken putting all the circumstances into the balance and coming to a conclusion on the balance of probabilities, following the format suggested by Arunkalaivanan v GMC [2014] EWCH 873 as outlined above in looking at criteria that supports or does not support a finding of sexual motivation.

o. In the event that this assists, the Sexual Offences Act 2003 has a definition of ‘sexual’. The definition of sexual is contained within section 78. Penetration, touching or any other activity is sexual if a reasonable person would consider that:

a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

p. The following may assist in considering what is sexual and is drawn from the CPS guide for prosecutors:
“In deciding whether an activity is sexual one can look first at the nature of the activity. If the activity is by its nature sexual (e.g. sexual-intercourse, masturbation) then it is sexual.
Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.
Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.
Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732”

q. Touching may be sexual because it involves the touching of a part of the body associated with primary or secondary sexual characteristics. However, touching even these areas may occur for another purpose. The Panel does need to look into the mind of the Registrant, but can take into account the circumstances surrounding anything done or said, what was indicated was intended, and how that has been perceived.

r. The Panel has been referred to the case of: Basson v GMC [2018] 2198 (Admin). In that case, it was alleged that a doctor fleetingly touched the leg of a patient when there was no clinical reason to do so while making a comment about the length of her skirt. She complained and was categorical:

“I did not feel like it was an innocent touch; I felt like it was sexually motivated.”
The doctor in the case responded:
“As the patient was a lady in her twenties, I can understand that people may think that it was sexually motivated. This did not occur to me at the time. The police officer described it as a laddish act. This is probably an apt description.”

He went on to acknowledge the profound unacceptability of his behaviour, particularly given the power differential between patient and doctor and admitted the words and actions did occur.
The Tribunal found that the Doctor had acted with sexually motivation. It said that: a sexual motive means that the conduct was done either in pursuit of sexual gratification, or in pursuit of a future sexual relationship.
The appeal was based on the Tribunal conflating inappropriate and sexually motivated, albeit what the sexual motive was had not been specified. The appeal was dismissed on the basis that the court recognised that it was possible for a professional to have had a fleeting aberration and then dismissed the incident but that this did not mean it had not taken place.

s. The Tribunal should not conflate unacceptability and sexual motivation. They are separate issues. While unwanted sexually motivated conduct in the workplace is not acceptable and to this extent there is crossover, it is possible for behaviour that is not sexually motivated to nonetheless be unacceptable.

t. The Panel has also been referred to the case of: GMC v Dr Raied Haris [2020] EWHC 2518 (Admin) . This promotes a more robust approach by disciplinary tribunals towards findings of sexual misconduct. The facts of the case in brief are as follows:

Dr Raied Haris came before the General Medical Council in 2019. Two patients alleged that he had conducted “non-clinically indicated, intimate examination[s] without informed consent” (§5 of the judgment). The invasiveness of the examinations (§7-9) supported the allegation that they were “sexually motivated” (§13(4)).
The Dr denied the acts (§6) and claimed to be asexual (§15). The tribunal found that most of the acts had happened and were “overtly” sexual. The Dr had, however, explained that they “were not for his own sexual gratification, since he had…no interest in sexual matters at all” (§19). The tribunal found the GMC had failed to prove “sexual motivation”.
The GMC appealed that “the tribunal was wrong to find that there was no sexual motivation…where there was no reasonable alternative explanation for [the Dr’s] behaviour” (§25). The Doctor objected that this imposed a reverse burden of proof (§41).
The Court of Appeal considered Jagjivan [2017] EWHC 1247 (Admin) and Bawa-Garba [2018] EWCA Civ 1879. The latter established that the Court “may interfere both where there is an error of principle when carrying out the evaluation [of misconduct], or where the decision is beyond the bounds of what could properly and reasonably be decided by a tribunal” (§30, §33).
The Court considered the facts. The Doctor had touched the sexual organs of both patients without consent. There was no clinical justification or other reason for doing so (§47). The Court cut through the unreasonable finding of the tribunal. This “was deliberate, unconsented, touching of a woman’s sexual parts…a sexual assault in all but name” (§52).
Terms like “sexual motivation” or “sexual gratification” had distracted the tribunal. It did not matter whether the Doctor enjoyed what he did. The point was that he did it, and it was sexual. The Sexual Offences Act 2003 was cited as an aide to understanding the issue (§57-60).
The appeal succeeded. The Court made a finding of sexual motivation (§62). The case was remitted to the tribunal for sanction to be reconsidered. Haris does not create a reverse burden of proof. Regulators must still prove that misconduct is “sexual”.

u. Haris is a recommendation as the HCPC acknowledge that an allegation can be drafted as “sexual” rather than “sexually motivated” to reduce the room for manoeuvre available to registrants. In these circumstances, the likely defences to sexual misconduct will be accident, consent, or clinical justification. Absent these, it may well be “impossible [for a tribunal to reach] any conclusion other than that the touching was sexual” (§60).

v. The Allegation in this case has been drafted as “sexually motivated” but the Panel will nonetheless have regard to the criteria outlined and the approach recommended above in the case of Arunkalaivana in considering all the relevant circumstances before it.

w. The Panel should consider each particular of the Allegation in turn. It may accept some of the evidence of any witness, all of it or none of it. It may similarly find that sexual motivation is proved in respect of some of the Allegation as particularised in the charges, but not in others. Or to find that all or none of the facts where words or actions are found to be proved are sexually motivated.
Submissions

x. The Panel has heard submissions on behalf of the HCPC. However, these are no more than submissions, and the Panel will need to make their own decisions that reflect the evidence.

y. The Panel will be required to give reasons for any decision that it makes.

z. The HCPC has been given advance sight of this advice now being provided.

74. The Panel had regard to the evidence before it in relation to the HCPC witnesses who appeared to give measured advice and be clear where they were relying upon documentary evidence because they could not remember events. Colleagues A, B, and F were all emotional in giving evidence, with a combination of nerves, upset, embarrassment and anger expressed. However, this did not detract from the evidence that each provided.

75. The Panel considered each particular of the Allegation in turn:

As a registered Paramedic (PA41531) your fitness to practise is impaired by reason of misconduct. In that:

1. On 16 February 2018 you inappropriately demonstrated the use of your stethoscope on Colleague A, in that you moved the stethoscope onto Colleague A’s left breast and pressed it on her left breast for approximately 10-30 seconds;


76. The Registrant acknowledged in his interview with an investigating officer that he did get his stethoscope out but that Colleague A did not consent, so he did not touch her. Colleague A however was completely clear that her consent had not been sought. Further, there was the issue that this conduct stopped as soon as her mentor arrived. If the Registrant had not been doing anything of concern, or that teaching had been provided, there was no need for an abrupt ceasing of actions. Colleague A dismissed it as the “creepy stethoscope guy” incident and did not report it at the time. However, her reasons for not doing so were because she was a student paramedic who wanted to get on, but she later changed her mind after discussing this with colleagues and finding out about other allegations. The Panel preferred the clear and consistent recollection of Colleague A which was tested by Panel questions to the version of events the Registrant gave during the Trust investigation.

Particular 1 of the Allegation: Fact found proved.

11. Your conduct in relation to allegations 1 was sexually motivated.

77. In terms of sexual motivation, the Panel considered the evidence it had heard and the legal advice given. The Panel has taken into account that the Registrant is a man of good character without any HCPC findings recorded against him. It has also taken into account that Colleague A expressed some uncertainty about the Registrant's motive: "To this day I am not sure if he was trying to teach me something, or whether even as a minor thing, it was sexual...". However, on the basis of its sudden cessation when the mentor appeared, and the lack of continued conversation on the topic at this time if it was a teaching experience, the Panel finds that the Registrant was acting out of desire for sexual gratification. If the Registrant had been intending to teach Colleague A about the stethoscope, he could have used it on himself and asked her to listen.

Particular 11 in respect of particular 1 of the Allegation: Fact found proved.

2. On 19 January 2019 you pushed your hands down the back of Colleague B’s trousers, and/or grabbed the back of Colleague B’s trousers and/or her underwear resulting in a ‘wedgie’;


78. Colleague D had been told that the Registrant gave Colleague B a “wedgie”. Nobody else had seen exactly what happened but Colleague D did observe that the Registrant was behind Colleague B when she was pulled onto the balls of her feet and her toes with a shocked expression on her face. The Registrant acknowledged that he had grabbed the back of Colleague B’s trousers by her belt and lifted her up but indicated that he thought the Registrant did this as a joke.


79. The Panel did have regard to some of the differences given between Colleague B in describing skin to skin touching from his hand and her back, which is different to skin to skin touching from his hand on her buttocks. Given how this particular is drafted, and given the burden and standard of proof the Panel does find that the Registrant grabbed hold of Colleague B by her trousers, in front of a patient, and in an unwanted way.


Particular 2 of the Allegation: fact found proved.


11. Your conduct in relation to allegation 2 was sexually motivated.

80. The Panel considered the evidence of Colleague D and accepted that this appeared to be a badly judged joke rather than sexually motivated. The Panel took into account that this incident occurred with colleagues and a patient present, rather than covertly.


Particular 11 in respect of Particular 2 of the Allegation: Fact found not proved.

3. On 16 June 2019 you poked and/or smacked Colleague F on the back of the head and said “come on fatty” or words to that effect;

81. In the Trust investigation the Registrant accepted using the language alleged and that he may have poked Colleague F to get her to move. Colleague F recalled multiple instances of the Registrant referring to her as “fatty”. Both the Registrant’s admission in the Trust investigation interview, and Colleague F’s evidence which extended to her admitting that she poked him back, were sufficient for the Panel to find this particular of the Allegation proved, given the burden and standard of proof.

Particular 3 of the Allegation: Fact found proved.

4. On 16 June 2019 you said to Colleague F “I would rather have my old crew member back as she was a good girl” or words to that effect;

82. The Registrant told the Trust that he did say words to this effect and gave context to this which was not negative. He acknowledged that there were comparisons made. Colleague F’s evidence is that his old crew member was more experienced. The Panel accepted on the balance of probabilities that this was found proved.

Particular 4 of the Allegation: Fact found proved.

5. On numerous occasions you pushed Colleague F

83. In the Trust investigation the Registrant denied hitting Colleague F but said that he may have pushed her from behind. Colleague F told the Panel that this was pushing with a hand or shoulder and occurred repeatedly. Given the burden and standard of proof, the Panel finds this particular proved.

Particular 5 of the Allegation: Fact found proved.

6. On 16 June 2019 you said to Colleague F that “I am going to punish you for your attitude by putting you over my knee and spanking you” or words to that effect;

84. The Registrant had never been asked about this in the Trust investigation and therefore has not had an opportunity to respond to this in that investigation. Colleague F indicated that she had specific recall of this comment, and its setting, and reported it to a senior manager. It is given further weight by her admission of her response to what he had said: “you might enjoy it” which was: “not as much as you!” This detail, which is not self-serving to Colleague F, provided a sense of credibility for the Panel. There is no evidence to contradict it before the Panel.

Particular 6 of the Allegation: Fact found proved.

11. Your conduct in relation to allegation 6 was sexually motivated.

85. The Panel considered that what was said was ‘saucy banter’. The context in which it was said in a patient’s house while waiting for a call back, was one where the Registrant considered that Colleague F may have been playing games on her telephone. He may have considered this behaviour inappropriate, but it is unlikely that he intended to carry out this suggestion. The Panel was mindful that Colleague F had indicated that this word was used close in time to the word “shaggable” concerning her, but the Panel noted that the “shaggable” comment only came three days later, meaning that Colleague F may have conflated the two events in hindsight. The Panel did have regard to the connotations associated with the word “spanking” but did not consider that it was said in the context of sexual gratification or to pursue a sexual relationship. Rather the Panel considered it was a word with sexual associations and which should not have been used in a professional context.

Particular 11 in relation to Allegation 6 is not found proved.

7. On 16 June 2019 you threw a boot cleaning brush at Colleague F which hit her on left buttock and threatened to throw it at her again;

86. Colleague F gave oral evidence of this incident but the Registrant does not remember it. There was no evidence to detract from what Colleague F had said. Accordingly, given the burden and standard of proof, the Panel had no other version of events to consider.

Particular 7 of the Allegation: Fact found proved.

8. On 19 June 2019 you saw a photo of Colleague F and said “you’re quite shaggable” or words to that effect.

87. Colleague F gave oral evidence regarding this and the Registrant in the Trust investigation acknowledged this in the interview notes also. She recalls the incident because the comment was made shortly after the Registrant had seen Colleague F showing another colleague a photo of herself on her wedding anniversary. The Panel considered that there is no contradictory evidence to suggest that this did not occur.

Particular 8 of the Allegation: Fact found proved.

11. Your conduct in relation to allegation 8 was sexually motivated.

88. The Panel regarded this comment as a clumsy and insensitive way of complementing Colleague F and indicating that she looked nice in the photograph. The descriptor of “shaggable” has obvious sexual connotations and is a sexual word, but given the burden and standard of proof, the Panel were prepared to give the benefit of the doubt to the Registrant. The language was sexual and should not have been used in a professional setting but was not found to be used for sexual gratification or to pursue a sexual relationship with Colleague F.

Particular 11 in relation to Allegation 8 is not found proved.

9. On 8 June 2019 you told Colleague F that her horse needed to go to a glue factory, or words to that effect.

89. The Registrant made admissions in regard to saying this in the Trust investigation and Colleague F indicated that this had been said repeatedly. She indicated that it upset her but that she could see that it was humorous for some of her colleagues who laughed with the Registrant. The Panel considered that this was an insensitive joke at the expense of Colleague F.

Particular 9 of the Allegation: fact found proved.

10. In June 2019 told a patient that Colleague F was a terrible driver and/or is only good for paperwork, or words to that effect.

90. The Registrant did indicate that he did comment on her driving but only as a joke about “women drivers”. Colleague F gave oral evidence that negative comments about her driving were made in front of patients on several occasions. Colleague F gave no oral evidence about paperwork but the Panel was left with the impression that she understood that the implication was perhaps that she should stick to the paperwork although this was not said. Given the drafting of this particular of the Allegation and that it is particularised in the alternative, the Panel considered that the Registrant, on a balance of probabilities had by implication been critical of Colleague F’s driving even if this was said as a sexist joke.

Particular 10 of the Allegation: fact found proved.

Decision on Grounds

91. Mr Walters made submissions on behalf of the HCPC on both the statutory grounds and current impairment of fitness to practise. In advancing his submissions on the former, he suggested that the Panel should consider that this is a case of misconduct. He drew the attention of the Panel to the Standards the HCPC alleges were breached by the Registrant and submitted that he was impaired on both personal and professional components.

92. The Panel accepted the advice of the Legal Assessor which was as follows:

Grounds

a. The Panel has to decide whether the facts amount to a statutory ground under Article 22 of the Health and Social Work Professions Order. In this case the HCPC submission is that this is that the Registrant is impaired by reason of misconduct.

b. Misconduct is, and remains, the basic concept for disciplinary proceedings being commenced against a member by his or her professional regulatory body. Misconduct is said to be the oldest and perhaps still the most widely used form of allegation. Misconduct leaves it to the disciplinary tribunal to decide its ambit in any particular case, as opposed to individual offences of narrow scope.

c. It is inappropriate to attempt any exhaustive definition of misconduct but caselaw is helpful.

d. The Privy Council has identified “the essential elements of the concept” which I will now set out below.

e. Misconduct is of course 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 medical practitioner in the particular circumstances.

f. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession... Secondly, the misconduct is qualified by the word “serious”.

g. It is not any professional misconduct which would qualify. The professional misconduct must be serious (Meadow v. General Medical Council [2007] 1 All ER 1; Auld LJ emphasised that the conduct in any given case must be serious before being branded as “misconduct” in a professional context.

h. As Lord Clyde noted in Roylance v. General Medical Council (No 2) [2000] 1 AC 311 at 330-332, “serious professional misconduct” is not statutorily defined and is not capable of precise description or delimitation… it must be linked to practice or conduct that otherwise brings the profession into disrepute, and it must be serious.

i. As to seriousness, Collins J. in Nandi v. General Medical Council [2004] EWHC 2317 (Admin), rightly emphasised at [31] the need to give it proper weight, observing that in other contexts it has been referred to as “conduct which would be regarded as deplorable by fellow practitioners.”

j. It is clear that “misconduct” may be quite removed from the professional practice of the registrant. (A County Council v. W (Disclosure) [1997] 1 FLR 574 in which a question arose whether the alleged sexual abuse by a father of his daughter, could constitute serious professional misconduct as being too remote from the father’s occupation as a doctor since it was outwith any medical treatment of the child. But Cazalet J held, at p 581, that: “it seems to me that this doctor can be said, if he had sexually abused his daughter, to have demonstrated conduct disgraceful to him as reflecting on his profession …and/or indeed conduct disgraceful to him as a practising doctor.”

k. It is now well established that misconduct may also include incompetence or negligence of a high degree.

l. There is no need to prove intentional recklessness; conduct may be conduct unbefitting even though a professional attempted to conform to the highest professional standards. Negligent conduct may amount to conduct unbefitting a professional: Re a Solicitor [1972] 2 All ER 811 and Connolly v. Law Society [2007] EWHC 1175 (Admin) at [62].

m. Where there is provision that a member must comply with identified fundamental principles, the Panel may be assisted by consideration of which principles have been breached, and the extent to which this is done, in terms of whether an act or omission will constitute misconduct.

n. Misconduct must be considered only in relation to the facts found proved.

o. The Panel is entitled to consider some or all of the facts found proved collectively in determining whether the statutory ground of misconduct is made out.

Impairment

p. If facts are found proved and these are found to amount to a statutory ground, the Panel will go onto the second stage of the fitness to practice hearing, where a decision will be made on impairment.

q. Under the Health and Social Work Professions Order, Article 22 (1)(a)(v), the Panel may determine that a registrant’s fitness to practice is impaired by reason of: i) misconduct;

r. The Panel has to decide whether the grounds found amount to impairment further to Article 22(1). It has to consider and announce its decision, giving reasons that explain it.

s. The legal test for impairment is concerned with a Registrant’s current and future fitness to practise, not about punishment for things done in the past. The Panel will consider if the Registrant IS impaired as of today. However, the Panel will look at things that have happened in the past to take account of the way the Registrant has acted or failed to act previously. Cranston J in Cheatle [2009] EWHC 645 (Admin), indicated that whilst misconduct is about the past, impairment is an assessment addressed to the future, albeit made in the context of the past misconduct.

t. In considering impairment, the Panel will look at two components:
i) Personal position: the current competence and the behaviour of the individual Registrant; (CHRE v GRANT & Cohen v. General Medical Council [2008] EWHC 581 (Admin): are these matters so serious as to amount to misconduct, such that the practitioner’s registration might be called into question?
ii) Public position: this includes the need to protect the individual service users, declare and uphold standards of behaviour which the public expect and maintain public confidence in the profession and its regulation.

u. In assessing the likelihood of harm in the future that the registrant could cause, Panel should take account of:
i) That the degree of harm caused by the registrant; and
ii) The registrant’s culpability for that harm.

This is because the degree of harm may have been different to that intended or reasonably foreseeable. Deliberate harm, is more serious than reckless disregard of risk.

v. In Zygmunt v. General Medical Council [2008] EWHC 2643 (Admin), the appellant, a neurosurgeon, challenged the panel’s finding that his fitness to practise was impaired by reason of misconduct and the imposition of a two-month suspension. The allegation arose out of a wrong diagnosis made by Professor Zygmunt that the patient suffered from a tumour and not an infected abscess.

w. Mitting J in the case of Zygmunt noted that even if a panel properly finds that a practitioner has been guilty of misconduct, it may nonetheless conclude that his or her fitness to practise is not impaired. In many, perhaps the great majority of cases, the issue will not be live, but in cases in which it is, it must be separately and appropriately addressed by the panel.

x. As to the meaning of fitness to practise, Mitting J adopted the summary of potential causes of impairment offered by Dame Janet Smith in the Fifth Shipman Inquiry Report (2004, paragraph 25.50). Dame Janet Smith considered that impairment would arise where a doctor (a) presents a risk to patients; (b) has brought the profession into disrepute; (c) has breached one of the fundamental tenets of the profession; or (d) has acted in such a way that his integrity can no longer be relied upon. Mitting J noted that Dame Janet Smith recognised that present impairment of fitness to practise can be founded on past matters. A doctor’s current fitness to practise must be gauged partly by his/her past conduct of performance. It must also be judged by reference to how he/she is likely to behave or perform in the future.

y. It is to be remembered that notwithstanding some of the material that has come before the Panel, this issue here is one of health. This is not about misconduct, but about a health condition. It is for the Panel to decide whether by reason of a health condition that the Registrant’s current fitness to practise is impaired or not.

z. In summary, at the end of this stage when impairment of fitness is considered, the task of the Panel is to take account of the misconduct of the registrant. As the Panel finds a statutory marker under Article 22(1) proved by the HCPC, it must then consider this in the light of all the other relevant factors known in answering whether by reason of the registrant’s behaviour or state, that his fitness to practise is currently impaired. The Panel may find:

i) that the registrant’s fitness to practise is impaired;
or
ii) that the registrant’s fitness to practise is not impaired.

93. The Panel began its deliberations by assessing whether standards had been breached and the seriousness of these breaches. The conduct of the Registrant appears to have differed in respect of Colleague A and B and Colleague F. The touching which invaded the personal space of Colleagues A and B was not repeated with Colleague F in a similar way. However, the Trust Investigation made clear that what may have been intended as banter with Colleague F had a very negative impact on her at a time when she was struggling with her new job and had been affected by a patient incident which she considered traumatic.

94. The Panel considered the possible breaches of the HCPC’s Standards. With regard to the HCPC’s Standards of Conduct, Performance and Ethics, the following standards were breached:

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

95. Colleagues A and B were student paramedics who should have been nurtured. Particular 1 having been sexually motivated is a clear breach of standard 6. Particular 2 while not sexually motivated was clearly unwanted. This occurred in front of a patient and is inappropriate contact that brings the profession into disrepute. Particulars 3, 4, 5, 6, 7, 8, 9 and 10 were considered to be both unacceptable and an unwanted course of conduct that caused distress to a colleague.

96. While the extent of the distress that Colleague F did experience may not have been something that the Registrant could envisage, particularly given that Colleague may have successfully employed strategies to stand up to the Registrant, it was not appropriate conduct towards a colleague. Colleague F did indicate that the Registrant “did not appear to understand that I was not happy with his behaviour” but simultaneously indicated that she had shared with him that she was struggling professionally following a traumatic incident, but he did not appear to take this into consideration in his treatment of her. The Registrant’s actions had a negative impact on Colleague F’s wellbeing.

97. The seriousness of each failing in Particulars 3-10 varies but there has been evidence from Mr Pattison that the Registrant, when interviewed, did appreciate with hindsight, that his conduct was capable of undermining the self-confidence of a colleague. Particulars 1 and 2 taken individually, and in the case of Colleague F, particulars 3-10 taken collectively amount to serious examples of a Registrant falling foul of the standards expected. This is the case irrespective of the intention behind the behaviour in Particulars 2-10, given its inherent nature. This is particularly so in the instance of Particulars 5 and 6 which involved sexual content inappropriate for a workplace even if not found to be sexually motivated.

Decision on Impairment

98. The Panel next considered whether the established misconduct is currently impairing the Registrant’s fitness to practise. The Panel heeded the submission of the HCPC of the necessity to address both the personal and public components relevant to that consideration.

99. The breaches identified by the Panel’s findings are all of a type that are capable of being remedied. However, when the Panel considered whether they had in fact been remedied, the Panel had little information before it to conclude that this was the case.

100. Inappropriate and unwanted behaviour is something that the Registrant appears to regret. This is evidenced in part by a Reflective Piece from him, albeit it is scant in its content. While it identifies an on-line course that may be undertaken for remediation there is no evidence that this has been completed. Accordingly, there is a risk of repetition. The Panel also took into account that the misconduct related to three different colleagues spanning a significant period of time and that different kinds of unwanted behaviour were directed to each colleague.

101. The Registrant’s conduct carried with it a risk of harm to the wellbeing of the three complainants who have given evidence. That risk of harm graduated to actual harm in some instances. The impact on Colleague F and the emotional account she gave make this clear. Her enthusiasm for her work was eroded over time and her wellbeing disintegrated. It also caused harm to Colleagues A and B also who detailed the short and long term effects on them caused by the Registrant’s behaviour.

102. The absence of remediation had the consequence that the Panel was driven to conclude that if the Registrant were to be permitted to practice without restriction, there would be a substantial risk of repetition with the attendant risk of harm that flowed from the shortcomings identified by the Panel in respect of the three colleagues in this case. The Panel’s findings of fact, grounds and the risk of repetition, necessitate a finding that the Registrant’s fitness to practise is impaired on the personal component. 103. In the judgement of the Panel a finding of current impairment of fitness to practise is also required with regard to the public component. So serious are the findings of the Panel that a finding of impairment is required in order to address the concern of fair-minded members of the public regarding a Paramedic who had acted as the Registrant did. Even if there were a negligible risk of repetition this would be the case, the fact that there is a significant risk of repetition makes that finding the more necessary. Furthermore, were the Panel not to make a finding of current impairment of fitness to practise it would fail in its duty to declare and uphold proper professional standards and to send a clear signal to other practitioners who might feel tempted to depart from the standards expected of them.

104. The consequence of the findings that the proven facts constitute misconduct currently impairing the Registrant’s fitness to practise is that the Panel must proceed to consider the issue of sanction.

Decision on Sanction

105. In considering what sanction, if any, to impose, the Panel took into account the submissions of Mr Walters, who commended the Indicative Sanctions Policy to the Panel and indicated that given the findings to date, that the options of suspension and striking off were open to the Panel. It accepted the advice of the Legal Assessor. The advice given by the Legal Assessor was as follows:

a. HCPC’s Indicative Sanctions Policy is a document that provides guidance on procedure; this is not binding but I commend it to you as helpful.
b. The purpose of sanction is not to be punitive, although it may have a punitive effect.
c. The Panel will want to consider what sanction, if any is appropriate given all the circumstances of the case.
d. Purpose of sanction is to protect the public, which will include service users, the reputation of the profession, and the upholding of appropriate standards.
e. The Panel should consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required.
f. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.
g. The Panel may decide that there is a public interest in permitting, a trained and experienced Paramedic to continue to practice if that is not incompatible with the wider public interest.
h. The Panel should bear in mind both the aggravating and mitigating factors that can be identified. Examples may be:


1. Was this a single incident or not?
2. Did offending cover multiple failings of a different nature?
3. Was the offending planned in full knowledge of wrongdoing or not?
4. Are there relevant personal circumstances to take into account?
5. Was there any causal link between the personal circumstances and behaviour?
6. What has the attitude of the Registrant been?
7. Was there a guilty plea, or admission of wrongdoing, in full or in part?

This is a non-exhaustive list.


i. The Panel should consider the sanctions available to it in ascending order of severity:
Take no further action • Impose a Caution Order of between 1 and 5 years in length • Impose a Conditions of Practice Order of up to 3 years in length • Suspend your registration for a period of up to 1 year • Direct the Registrar to strike your name from the register

j. The Panel should considered whether it is appropriate to take no action. This will be relevant to few cases. Guidance on this is at paragraphs 97-99.

k. In a situation where it is not appropriate to take no action, the Panel may consider whether issuing a caution of between 1-5 years, is the right course of action. This remains on the Registrant’s record and could be brought up if there are future instances of wrongdoing or concerns regarding impaired fitness to practice. Questions that the Panel which may want to consider are whether the findings are such that this is a historical minor matter, which is unlikely to be repeated, and where the Registrant has already tried to make good any wrongdoing? Guidance appears at paragraphs 100-104.

l. Guidance on where a conditions of practice order may be appropriate is set out at paragraphs 105-117. Whether there are verifiable, measurable and appropriate conditions that can address the issues of risk needs to be considered, along with whether the Panel is satisfied that the Registrant would be committed to meeting these conditions and a future panel could assess whether these have been met or not. The Panel may wish to consider whether remediation of any kind has been attempted or is appropriate.

m. A suspension order is the next most serious sanction. Paragraphs 118-126 set out where a conditions of practice is not suitable.

n. Paragraph 127 onwards deals with a striking off-order. This is a sanction which is appropriate where wrongdoing is incompatible with continued registration.

o. The principle of proportionality is important. The gravity of the behaviour and the risk identified should be addressed by an appropriate sanction if one is to be administered. The Panel will need to indicate that it has considered factors both aggravating and mitigating.

p. Whatever decision the Panel makes, how it arrived at this conclusion must be explained.

q. Sanctions within case law in the area of sexual misconduct are fact specific. Should the Panel decide to impose a sanction, it should reflect the risk identified and gravity of the earlier findings.

106. The Panel bore in mind that the purpose of a sanction is not to punish the Registrant, even if this may have a punitive effect. The Panel identified a number of aggravating and mitigating features in this case, considering its earlier findings.

As aggravating factors, the Panel noted:
• The misconduct took place over a period of some 15 months;
• The misconduct involved three junior female colleagues;
• The misconduct involving the third colleague came after the complaints of Colleagues A and B had been brought to the Registrant’s attention, indicating that his behaviour was not acceptable;
• The misconduct caused the three colleagues varying degrees of harm, impacting their wellbeing;
• There is no evidence that the Registrant’s own action plan for remediation has been implemented;
• There is only limited evidence of insight in a Reflective Statement; and
• There remains a risk of repetition.
As mitigating factors, the Panel noted:
• The Registrant was described by Mr Pattison as “open and honest” when confronted with his behaviour by the Trust;
• The Registrant did appear to come to a realisation when confronted with his behaviour at an early stage in the investigation that his behaviour could cause harm;
• The Registrant did outline an Action Plan for remediation in his Reflective Statement;
• There was evidence that the Registrant had not intended to cause harm in most of his interactions.
• No Service Users were harmed or put at risk of harm;
• The Registrant is of previous good character and has no previous regulatory findings recorded against him in his ambulance career;
• The Registrant had been supported in his career to complete his Paramedic training by his employer who clearly valued him.

107. The Panel was concerned that given the limited evidence of the Registrant’s insight and remediation, there is a risk of repetition of the Registrant’s behaviour. In view of this, to take no further action, would not be appropriate and fails to address the risk to other colleagues and the public interest.

108. Similarly, imposing a caution order would be inappropriate given the Registrant’s failure to evidence sufficient insight or to demonstrate remedial action taken. The Registrant’s conduct has included words and behaviours of different types. While Colleague D described that some of these actions could be seen as banter in one context, the need to be aware of how these would be received and the environment in which they took place was not something that the Registrant appeared to factor in. Even in a high-pressured environment where life and death incidents occur, three different colleagues complained of the Registrant crossing professional boundaries. Accordingly, such an order would be insufficient to protect the public, maintain confidence in the profession and maintain confidence in the regulatory process.

109. The Panel went on to consider the imposition of a Conditions of Practice Order and considered the same to be inappropriate given the limited information it has to date about the Registrant’s position. Without current information about the Registrant it determined that there are no verifiable, realistic or measurable conditions of practice that it could impose given its concerns regarding the Registrant’s limited insight, and the extent of his behaviour which captures words and actions of different kinds rather than an isolated incident that indicate a lack of respect for junior colleagues. In such circumstances, the Panel considered a Conditions of Practice Order impractical, given that it was unaware of whether the Registrant would be willing to comply with any conditions it did formulate. It would be difficult to formulate conditions that deal with an attitudinal issue and without evidence into insight and a willingness to change his attitude a Conditions of Practice Order is not appropriate.

110. The Panel next considered a Suspension Order, which would have the effect of protecting colleagues for the duration of the Suspension Order. Such an order would also protect the public interest as well as providing the Registrant with the opportunity for remediation and demonstration of this. The Panel considered that the showing of some insight when confronted at interview was an encouraging sign. It considers that the indication points towards the misconduct being remediable albeit that this has not been remedied. Accordingly, the Panel considered this to be in the interests of the Registrant, in addition to meeting the public protection and public interest requirements. No lesser order was sufficient to meet the risks identified.

111. The Panel did not consider that a Striking-Off Order was appropriate given that it identified the Registrant’s early, albeit incomplete insight, as an indication that his misconduct, while unacceptable, was capable of being remediable.

112. In considering the length of the order, the Panel considered that a period of 12 months was appropriate. The time would give the Registrant the opportunity to address further insight and remediation and engage with his regulator. The Panel considered that anything less than a year would be insufficient when it was unaware of his current status. In addition, a Suspension Order for 12 months reflects the seriousness of the misconduct and will be a deterrent to other members of the profession.

113. The Panel did consider that a review before the end of the order would be helpful for a reviewing panel to consider the Registrant’s current position at that stage. It further considered what might be helpful to a reviewing panel and identified the following:
- Attendance at the review panel;
- Evidence of his developing insight;
- Evidence of his remediation;
- Evidence of working with a mentor;
- Evidence of any courses he attends to address his previous misconduct.

Order

ORDER: The Registrar is instructed to suspend the registration of Mr Jonathan Moyes for a period of 12 months.

Notes

No notes available

Hearing History

History of Hearings for Mr Jonathan Moyes

Date Panel Hearing type Outcomes / Status
21/07/2022 Conduct and Competence Committee Review Hearing Hearing has not yet been held
19/07/2021 Conduct and Competence Committee Final Hearing Suspended