Mr David Hickling
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As a registered Paramedic (PA30437) your fitness to practice is impaired by reason of conviction and/or misconduct. In that:
1. On the 10th January 2018 you were convicted by North East Wales Magistrates Court for driving a motor vehicle on a dual carriage way road at a speed exceeding 70 miles per hour contrary to article 2(c) of the 70 Miles Per Hour, 60 Miles Per Hour, 50 Miles Per Hour (Temporary Speed Limit) Order 1977, section 89(1) of the Road Traffic Regulation Act 1984 and Schedule 2 to the Road Traffic Offenders Act 1988.
2. You did not disclose to your employer in a timely manner that you were given a Traffic Offence Report and Notice of Intended Prosecution (NIP) by the police on 16 July 2017.
3. On 14 February 2017, while driving a Trust vehicle to a training course, you exceeded the statutory speed limit on a public road.
4. You did not inform your employer in a timely manner that you had exceeded the statutory speed limit on a public road on 14 February 2017.
5. On 23 March 2016 you exceeded the statutory speed limit on a public road.
6. You did not inform your employer in a timely manner that you had exceeded the statutory speed limit on a public road on 23 March 2016.
7. Your conduct in relation to allegations 2, 4 and 6 above was dishonest.
8. The matters set out in allegations 2-7 above constitute misconduct.
9. By reason of your conviction and/or misconduct your fitness to practice is impaired.
1. Two preliminary matters were raised with the Panel at the commencement of the hearing, namely:
• The HCPC’s intention to offer no evidence in relation to particulars 5 and 7.
• Whether parts of the hearing should be conducted in private.
Offering no evidence in relation to particulars 5 and 7
2. The HCPC’s Case Summary included in the hearing bundle which had been supplied in advance of the hearing alerted the Panel to the fact that it was the HCPC’s intention to offer no evidence in relation to particulars 5 and 7. At the commencement of the hearing the Presenting Officer explained to the Panel why that was the HCPC’s intention. He stated that the reason was quite simply that the HCPC lacked the evidence to support the particulars. By way of example, he drew the attention of the Panel to the fact that in relation to the offence committed on 14 February 2017, the offence was committed by the Registrant in a vehicle of which his employing Trust was the registered keeper. The Registrant was not stopped by the Police at the time of the offence and there was no evidence that the Registrant knew that he had exceeded the speed limit on 14 February 2017. Accordingly, when a Notice of Intended Prosecution was issued it was sent to the Trust, so it was the Trust that informed the Registrant of the issue. The Panel appreciated that if it considered that the HCPC was failing to present a robust case by offering no evidence in relation to these particulars, it could require them to be pursued. However, Panel was satisfied that the course proposed by the HCPC was proper and responsible. Save that the fact that these particulars were denied on behalf of the Registrant when the allegation was read into the record of the hearing, no further mention will be made of particulars 5 and 7 in this determination.
Part of the hearing in private
3. It was apparent from information contained in the hearing bundle that it was likely that the evidence would include matters relating to the Registrant’s health and his domestic life. The Panel considered that it would assist the expeditious conduct of the hearing if it declared at the outset that it agreed to the joint application of the parties that evidence falling into those categories should be given in private to protect the Registrant’s private life.
4. When the Hearings Officer read the allegation into the record, the response given by Ms Bracken on behalf of the Registrant was as follows:
• Particulars 1, 2 3, 4 and 6 were admitted (although it was stated that mitigating circumstances would be advanced in relation to particular 2, and that in relation to particular 3 the extent of the admission was that Colleague A was not informed of the specific letter).
• Particulars 5, 7, 8 and 9 were all denied, as were the contentions of misconduct and current impairment of fitness to practise.
5. Although not a matter that arose at the commencement of the hearing, it is convenient to record at this stage that after the HCPC completed presenting its evidence, a submission of no case to answer was made on behalf of the Registrant in relation to particular 8. The Panel acceded to the submission and ruled that there was no case for the Registrant to answer in relation to particular 8. The parties having indicated that they would not require a full explanation of the Panel’s reasons for the decision on the submission, the Panel Chair briefly orally explained the reasons for the decision that had been reached before the hearing continued with the Registrant commencing his evidence. Although not a matter considered at the conclusion of the evidence along with the other particulars being considered, the full reasons for the ruling are contained in the Panel’s decision on the facts below.
6. At the material time the Registrant was employed by the London Ambulance Service (“the Trust”) as a Clinical Team Leader in the Hazardous Area Response Team (“HART”). He was an experienced Paramedic working in a specialised area and he had management responsibilities for other members of Trust staff.
7. At the heart of the HCPC’s case against the Registrant are three separate occasions when it is alleged he drove in excess of the permitted speed limit. In chronological order, those offences were on 23 March 2016 (particular 6), 14 February 2017 (particular 4) and 16 July 2017 (particular 1). However, in relation to the last of those offences, the offence that occurred on 16 July 2017, additional matters were alleged, specifically, that the Registrant did not disclose to his employer the fact that he had been issued with a Notice of Intended Prosecution (particular 2), that he attended a meeting with a manager on 23 November 2017 and did not inform him that he had received a Single Justice Procedure Letter (particular 3) and that he signed a document relating to his driving licence on 13 September 2017 which included a declaration that he did not have a pending prosecution (particular 8). Those additional matters (together with the two particulars in respect of which the HCPC offer no evidence) are alleged to have been dishonest (particular 9).
8. The structure of the allegation advanced against the Registrant is such that there are two distinct allegations made. By particulars 1 and 11 it is contended that his fitness to practise is impaired by reason of the conviction resulting from the 16 July 2017 incident. In relation to the remaining factual particulars (i.e. particulars 2 to 9 inclusive) they are alleged to constitute misconduct impairing the Registrant’s fitness to practise.
Decision on Facts
9. The HCPC called two witnesses to give evidence before the Panel. They were:
• Mr MC, the Trust’s Head of Driving Standards. Mr MC undertook an investigation in the circumstances surrounding the incident of speeding on 16 July 2017.
• Colleague A, a senior member of the Trust’s management team to whom the Registrant spoke about the same incident.
The HCPC also produced an extensive bundle of documentary exhibits which included the appropriately redacted investigation report of Mr MC.
10. The Registrant also gave evidence before the Panel.
11. The Panel began its deliberations on the facts by undertaking a general assessment of the three witnesses who gave evidence. The following is a summary of the Panel’s views:
• Mr MC did not have any direct knowledge of any of the events, his role being confined to that of investigator. The Panel found him to be a straightforward witness who demonstrated no bias against the Registrant. He also was knowledgeable about matters within his area of responsibility.
• Colleague A gave evidence primarily about the meeting on 23 November 2017 which is relevant to particular 3. The Panel found him to be an honest witness who, like Mr MC, demonstrated no bias against the Registrant. In the judgement of the Panel the credibility of Colleague A was enhanced by the fact that he had clearly not studied policies and procedures for the purposes of giving his evidence and was very ready to admit to not knowing the answer to a question or that he could not remember an event.
• The Registrant. The Panel accepted the Registrant’s evidence about the personal difficulties he was experiencing in 2017. However, when it came to the events of 16 July 2017 and what resulted from his driving that day, the Panel found that there were occasions when his recollection was selective, and that that led to his evidence being somewhat evasive on some issues.
12. In reaching its decisions the Panel had regard to all of the evidence and recognised that the burden of proof rested on the HCPC, the standard of that burden being the balance of probabilities.
Particular 1 – found proved
On 10 January 2018 you were convicted by North East Wales Magistrates Court for driving a motor vehicle on a dual carriage way road at a speed exceeding 70 miles per hour contrary to article 2(c) of the 70 Miles Per Hour, 60 Miles Per Hour, 50 Miles Per Hour (Temporary Speed Limit) Order 1977, section 89(1) of the Road Traffic Regulation Act 1984 and Schedule 2 to the Road Traffic Offenders Act 1988.
13. The Registrant’s admission of this particular accords with the Memorandum printed on 27 September 2018 recording the conviction recorded by the Magistrates’ Court on 10 January 2018 following the Registrant’s guilty plea.
14. Accordingly, particular 1 is proven.
Particular 2 – found proved
You did not disclose to your employer in a timely manner that you were given an Offence Report and Notice of Intended Prosecution (NIP) by the police on 16 July 2017.
15. The Registrant admitted this particular. The HCPC’s exhibits contained a copy of the Notice of Intended Prosecution (“NIP”) that was generated by a Police Officer at the time the speeding offence took place and which handed to the Registrant at the scene at approximately 8:15pm on 16 July 2017. The Registrant does not contend that the NIP was disclosed to the Trust before he had a meeting with Colleague A on 23 November 2017. That disclosure was not only more than four months after it was issued, but also by that time the matter had been escalated by the issuing of the Single Justice Procedure (“SJP”) letter which had been received by the Registrant. The Panel are satisfied that these facts result in the disclosure of the NIP on 23 November 2017 not being made in a timely manner.
16. Accordingly, particular 2 is proven.
Particular 3 – found proved
You attended a meeting with Colleague A on 23 November 2017 and you did not inform Colleague A that you had received a Single Justice Procedure letter dated 14 November 2017.
17. The Registrant admitted this particular, and that admission accords with the evidence of Colleague A that at the meeting on 23 November 2017 he was not informed of the SJP letter that had been issued by North Wales Police on 14 November 2017. That included the following words: “NOTICE you are getting this pack because you have been charged with driving offence(s)”.
18. It follows that particular 3 is proven.
19. Before passing from this particular it is necessary for the Panel to record its findings in relation to the Registrant’s qualification of his admission of particular 3. It is the Registrant’s case that although he accepts that he did not specifically inform Colleague A that he had received the SJP letter, nevertheless at the meeting on 23 November 2017 he told Colleague A all the information that could have been gleaned from that document. The reason why it is important that the Panel should record its finding in relation to this is because it has a significant bearing on the issue as to whether the failure to inform Colleague A that the SJP letter had been received was dishonest as alleged in particular 9. The Panel recognised that on the part of Colleague A there was degree of uncertainty about the documentation and the significance of it. However, the Panel has concluded that on the central issue of whether, at the meeting on 23 November 2017, the Registrant made it clear to Colleague A that the matter had reached the stage where it had been decided that he would be going to court over the speeding matter, the Panel finds that that was not made clear to Colleague A.
Particular 4 – found proved
On 14 February 2017, while driving a Trust vehicle to a training course, you exceeded the statutory speed limit on a public road.
20. This particular was also admitted by the Registrant. Included in the documentary exhibits was a Licence Summary issued by the Driver and Vehicle Licencing Agency (“DVLA”) dated 13 September 2017. That document records an offence of exceeding the statutory speed limit on a public road that was committed by the Registrant on 14 February 2017. That the offence was committed in a vehicle of which the Trust was the registered keeper is supported by the fact that the posted NIP dated 22 February 2017 issued in respect of this offence was addressed to the Trust.
21. Accordingly, this particular is proven.
Particular 5 – found not proved
You did not inform your employer in a timely manner that you had exceeded the statutory speed limit on a public road on 14 February 2017.
22. Denied by the Registrant, no evidence offered by the HCPC and accordingly not proven.
Particular 6 – found proved
On 23 March 2016 you exceeded the statutory speed limit on a public road.
23. The Registrant admitted this particular and his admission is confirmed by the DVLA Licence Summary dated 13 September 2017 to which reference has already been made.
24. Particular 6 is proven.
Particular 7 – found not proved
You did not inform your employer in a timely manner that you had exceeded the statutory speed limit on a public road on 23 March 2016.
25. Denied by the Registrant, no evidence offered by the HCPC and accordingly not proven.
Particular 8 - found not proved
You signed a Driving Licence Holder Declaration form on 13 September 2017 and when completing that form you did not declare that you had a pending prosecution for the speeding offence from 16 July 2017.
26. This is the particular in respect of which the Panel ruled that there was no case for the Registrant to answer at the conclusion of the HCPC’s case.
27. The Trust required employees whose jobs involved driving periodically to complete a declaration relating to the status of their driving licence and driving-related offences. The document was headed, “Driving Licence Holder Declaration”. The documentary exhibits provided to the Panel included a copy of the document concerning the Registrant. it showed that on 12 April 2013, 6 January 2017 and 13 September 2017 he signed a declaration in these terms: “I declare that the details of my licence I have presented are correct and that I have/do not have* any undeclared prosecution or pending prosecutions for driving offences (*delete as applicable).” In fact no deletion was made to make it explicit which option was being declared, although that was not the point taken by the submission of no case to answer. That submission was made on the basis that when the declaration was signed on 13 September 2017 there was no pending prosecution. The details presented that were the subject of the declaration was the DVLA Licence Summary document of the same date that has already been referred to in explaining the decisions on particulars 4 and 6. As has been stated in relation to those particulars, the offences of 23 March 2016 and 14 February 2017 were recorded on the DVLA Licence Summary. The speeding offence committed on 16 July 2017 was not included in that document as the conviction was not recorded until approximately four months after the date of the DVLA Licence Summary and the Registrant’s declaration in relation to it.
28. The issue that was central to the submission of no case to answer was whether there was a realistic prospect of the HCPC establishing that there was a pending prosecution as at 13 September 2017 when the Registrant signed the declaration. On behalf of the Registrant, Ms Bracken submitted that there was not. On behalf of the HCPC, the Presenting Officer conceded that the issuing of the NIP did not constitute the commencement of the prosecution. However, he submitted that the Panel could have regard to the wider circumstances, namely the facts that the Registrant had been stopped travelling at 116mph and had been issued with a NIP at the roadside, it could be considered inevitable that a prosecution would follow. He submitted that that inevitability fell within the definition of “pending prosecution”.
29. In acceding to the submission made on behalf of the Registrant and ruling that there was no case to answer in relation to particular 8, the Panel found as follows:
• It could only be said that a prosecution was “pending” if the prosecution had been commenced but not concluded.
• The issuing of the NIP was a step that would have permitted a prosecution to be brought, but it did not constitute the commencement of the prosecution, a fact highlighted by the words on the NIP itself, “You will be reported for consideration of the question of prosecuting you ….”.
• The prosecution of the Registrant in respect of the speeding on 16 July 2017 did not commence until 14 November 2017, some two months after the declaration was signed, when the SJP letter was issued.
• As the prosecution had not been commenced by 13 September 2017, it could not be said to be pending, and that was so however inevitable the future prosecution was and however inevitable the Registrant might have believed it to be.
30. Accordingly, particular 8 is not proven.
Particular 9 – found proved
Your conduct in relation to allegations 2, 3, 5, 7 and 8 above was dishonest.
31. The findings made in relation to particulars 5, 7 and 8 necessarily had the consequence that the consideration of dishonesty was required only in relation to particulars 2 and 3.
32. The Panel accepted the advice it received that it was necessary to determine whether the HCPC had proved that the Registrant’s behaviour would be considered by reasonable and honest people to be dishonest. In order to decide that issue it was necessary to consider the circumstances in which the events occurred. In this context the Panel took into account that at the relevant time between 16 July 2017 to 23 November 2017 there were a number of factors as to which the Panel received evidence in private. The Registrant had issues with the line of management above him (a factor recognised by Colleague A who was not the Registrant’s line manager, but who understood why the Registrant might have chosen to speak to him in preference to his line manager) and his domestic life was extremely unhappy (and there were aspects of that particular factor that overlapped into his work life). Furthermore, in relation to the specific Trust procedure documents that have been relied upon by the HCPC as creating the obligation to disclose the NIP, the Panel accepts that they were numerous and that the Registrant would have been unlikely to have had a detailed knowledge of them. Nevertheless, the incident on 16 July 2017 involved driving a Trust vehicle when in uniform and accompanied by a colleague at the grossly excessive speed of 116mph. The Panel finds that despite the factors relating to his personal turmoil he was experiencing at the time and that he may not have known of the precise terms of the procedure documents, nevertheless the Registrant knew that the issuing of the NIP was something that he should have disclosed to the Trust and done so promptly. He knew that the incident was serious, as demonstrated by his description of the disquiet he felt the same evening and by the fact that he telephoned a paramedic at a different Trust to discuss the matter. Similarly, in relation to the SJP letter, as has been stated in paragraph 19 above, the Panel finds that Colleague A was not told that the matter would be going to court. In relation to both particular 2 and particular 3 the Registrant was motivated by a desire to withhold information on the off chance that he would be lucky, not face prosecution, and the issue would disappear.
33. When the Panel addressed the question whether reasonable and honest people would consider it to be dishonest deliberately to withhold information in these circumstances with that motivation, the Panel concluded that they would.
34. Accordingly, particular 9 is proven by reference to particulars 2 and 3.
Decision on Grounds
35. In relation to the allegation that the Registrant’s fitness to practise is impaired by reason of the conviction, the finding of fact as to particular 1 also constitutes the ground.
36. So far as the allegation that the Registrant’s fitness to practise is impaired by reason of misconduct, the Panel has considered the issue of misconduct by reference to those factual particulars which have been proven, namely particulars 2, 3, 4, 6 and 9.
37. Although the Panel accepted the proposition that it is permissible to aggregate findings of fact in order to decide if the statutory ground of misconduct has been satisfied, it considered that fairness required a distinction to be drawn between particulars 2, 3 and 9 on the one hand and particulars 4 and 6 on the other hand.
38. The dishonest withholding of information represented by particulars 2, 3 and 9 engaged Standard 9 (“Be honest and trustworthy”) of the HCPC’s Standards of conduct, performance and ethics, in particular because it breached standard 9.1, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.” The information withheld was relevant to the day-to-day professional activities of the Registrant and was important information to the Trust to make sound assessments of risk. The particulars being considered represented serious shortcomings and in the opinion of the Panel fellow professionals would view them as conduct that was deplorable. It crossed the threshold properly to be categorised as misconduct.
39. Different considerations applied to particulars 4 and 6. For two reasons the Panel considered that it would not be appropriate to include the incident on 16 July 2017 in its assessment of the seriousness of particulars 4 and 6. One reason was because the incident on 16 July 2017 was not advanced as misconduct. The other is because the speeding offences represented by particulars 4 and 6 occurred before 16 July 2017, and so the gravity of them cannot increase by a later occurring event, particularly when that later event is not advanced as misconduct. The Trust’s response to matters does not determine how they should be viewed in this fitness to practise process, but it is nevertheless the case that the Trust did not impose any restriction on the Registrant’s ability to drive service vehicles as a consequence of the speeding offences represented by particulars 4 and 6. Having regard to all the relevant information, the Panel finds that those two particulars do not constitute misconduct when viewed individual or together, and furthermore, that it is not appropriate to include them with the finding of misconduct made in relation to particulars 2, 3 and 9.
40. The result of these findings is that misconduct is established in respect of particulars 2, 3 and 9.
Decision on Impairment
41. The findings made on the statutory grounds have the consequence that the Panel must consider the issue of current impairment of fitness to practise in relation to conviction and in relation to the misconduct founded on particulars 2, 3 and 9. In relation to both the conviction and misconduct both the personal and public components are required to be addressed.
42. The conviction – personal component. In the view of the Panel the exceeding of the speed limit by the Registrant on 16 July 2017 was a breach that is remediable. As to whether it has been remedied by the Registrant, the Panel accepted his evidence that he recognised the seriousness of his actions, and the likely impact of them from the point of view of safety, the perception of the public and colleagues as well as the reputational damage to the Trust and himself. Although the Registrant’s driving of Trust vehicles after the incident has been limited, the Panel also accepted his evidence that since the July 2017 he has driven very many miles without any recurrence of a speeding offence since July 2017. Indeed, he has had a clean licence for very nearly a year. Taking all these factors into account, the Panel finds that there is not a sufficiently high risk of recurrence to necessitate a finding of current impairment of fitness to practise in this respect.
The Conviction – public component
43. The driving of the Registrant on 16 July 2017 can only be described as atrocious. There was no reason to exceed the speed limit at all, still less to the extent that he did. It occurred while he was in uniform, driving a Trust vehicle and accompanied by a colleague. Fortuitously, no accident occurred, but there was clearly potential for serious injury to be caused to other road users, the colleague travelling with him and to himself. The Panel has not overlooked the fact that the incident occurred nearly four years ago and the conviction in respect of it over three years ago, but notwithstanding that passage of time, the Panel is of the clear view that the gravity of the Registrant’s behaviour requires a finding of impairment of fitness to practise. It is necessary to reassure the public that driving of this nature will not be overlooked and it is required to declare and uphold proper professional standards.
Misconduct – personal component
44. In relation to the dishonest withholding of information the Panel is satisfied the Registrant knew he should have disclosed to the Trust, the Registrant has been less forthcoming in his acknowledgment of his failings than he has been in relation to the speeding. The Panel has already stated that it accepts that there was considerable turmoil in the Registrant’s private life at the relevant time, but even allowing for that the Panel finds that his failure to acknowledge that he was consciously withholding information equates to insufficient insight into his failings. That being so, the Panel is unable to find that there is no appreciable risk of the Registrant again acting inappropriately if he finds himself in a similarly difficult situation. In the judgement of the Panel this has the consequence that there is current impairment of fitness to practise in respect of the aspect here being considered.
Misconduct – public component
45. The risk of recurrence underpinning the personal component decision is a factor that requires the same finding to be made in respect of the public component. Furthermore, the finding of dishonesty against a professional whom the public is entitled to expect to be honest and trustworthy is an additional factor that requires the finding.
46. These findings in respect of current impairment of fitness to practise result in the allegation based on the conviction and that based on misconduct (in respect of particulars 2, 3 and 9) being well founded. The consequence is that the Panel must proceed to consider sanction.
Decision on Sanction
47. After the Panel handed down the decision on the facts, statutory grounds and current impairment of fitness to practise, the parties were allowed time before making submissions on sanction.
48. On behalf of the HCPC, the Presenting Officer reminded the Panel of the proper approach to the imposition of a sanction and of the importance of heeding the terms of the HCPC’s Sanctions Policy. While making clear that the HCPC did not make a submission that the Panel should select any particular sanction, he took the Panel to passages in the Sanctions Policy which dealt with cases of dishonesty and the various sanctions options available.
49. On behalf of the Registrant, Ms Bracken began her submissions by acknowledging that any finding of dishonesty is a serious matter. However, she urged the Panel to take the view that the dishonesty established in the present case was not of the most serious type, was unsophisticated and hopeless in the sense that it was bound to result in disclosure. As to the sanction she asked the Panel to consider, she acknowledged that what she sought might be considered unusual, but she requested that the Panel should consider the imposition of a Caution Order. She submitted that on a proper analysis a Caution Order would meet the circumstances of the case, the imposition of conditions of practice was not appropriate and the removal of the Registrant from practice by suspension or striking off would be unnecessary and disproportionate.
50. The Panel accepted the advice it received as to the decision it is required to make in relation to sanction. In particular, it accepted that a sanction should not be imposed in order to punish a registrant against whom a finding has been made. Although the effect of a sanction may be punitive, it should only be imposed to the extent that is required to protect the public, to maintain a proper degree of confidence in the registered profession on the part of the public and to declare and uphold proper professional standards. If the Panel determines that a sanction is required, in order to ensure that no greater restriction is placed on a registrant’s ability to practise than required, the available sanctions must be considered in an ascending order of seriousness. The Panel confirms that in the present case it has applied these principles. It also confirms that it has paid close attention to the HCPC Sanctions Policy.
51. The Panel commenced its deliberations by identifying the factors that it considered to be aggravating and mitigating circumstances that would be appropriate to consider in the context of the sanction decision. Factors that aggravated the findings included the fact that the conviction reflected atrocious driving, and, while acknowledging that remediation of dishonesty is not easily achieved, nevertheless there had been incomplete reflection on the part of the Registrant in respect of the reason why he had acted as he did. Mitigating factors included the insight into, and acceptance of the risks created by, the atrocious driving on 16 July 2017, and the combination of negative experiences the Registrant was experiencing at both work and in his domestic life with the resulting considerable turmoil that could be considered to have contributed to both the conviction and the dishonesty.
52. There were other factors the Panel considered it thought it proper to have in mind when making the sanction decision. They were:
• While the Panel is of the clear view that all dishonesty committed by a health professional is a serious matter, the dishonesty in the present case was not at the most serious end of the spectrum. It did not involve patients or service users, there was no personal pecuniary gain and it was behaviour that would inevitably be discovered. Furthermore, the period over which the dishonesty occurred (a period from mid-July 2017 when the NIP was issued to late November 2017 when the meeting with Colleague A took place) concluded a short while later by the Registrant himself disclosing to the Trust that he would be going to court. In short, the Panel considers that the matter can properly be viewed as a series of very poor decisions taken over three years ago against a background of very difficult personal circumstances.
• The Registrant is a highly experienced and skilled Paramedic, and his role as a senior member of the Hazardous Area Response Team means that he has a set of highly specialised skills which, absent any reason which should result in him being removed from practice, is of enormous benefit to the public at large. The Panel accepts that it is for it to assess the issue of risk to the public, but in making that independent assessment it is proper for the Panel to have regard to the fact that not only has the Trust reappointed the Registrant to undertake the same role he was performing before these events occurred, but it has done so at a higher banding.
53. When the Panel considered whether the findings it had made on the allegations required the imposition of a sanction, it came to the conclusion that they did.
54. It followed that the Panel first considered a Caution Order. In that regard it paid close attention to paragraphs 101 and 102 of the Sanctions Policy. There are some respects in which the present case does not fall four square within the factors listed in paragraph 101 that are suggested to be likely to be present in cases resulting in a Caution Order. It could be argued that the findings are limited in nature as they are connected albeit that they manifested in different forms over a period of some months. However, the Panel would be reluctant to describe dishonesty, even that in the present case, as “relatively minor”. Again, although the Panel has found that the Registrant has shown good insight into the conviction issue, his insight in relation to the dishonest withholding of information is less developed. However, the guidance contained in paragraph 102 (“A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate”) caused the Panel to consider the applicability of the next available sanctions.
55. The Panel was of the clear view that a Conditions Of Practice Order is not appropriate in this case because there are no conditions that would meet the identified shortcomings.
56. So far as the suspension is concerned, the conclusion of the Panel was that such an order would be disproportionate for the following reasons:
• As has already been stated, unless there are reasons to prevent the Registrant from practising because he presents a risk of harm to service users, his skills are of benefit to the public.
• The limited risk of repetition arises in relation his past dishonest behaviour, not in relation to the atrocious driving. The consequence of his dishonest behaviour was that the Trust was deprived of the opportunity to decide if the Registrant’s ability to drive service vehicles should be removed; his past actions did not create a direct risk of patient harm, and any future repetition would not translate to any greater risk of tangible patient harm. These factors led the Panel to conclude that it is not necessary to prevent the Registrant from practising to ensure that the public are safe.
• On the wider issue of whether public confidence requires the Registrant to be suspended, although the Panel considers that a sanction is required for that purpose, it does not consider that it is necessary to suspend the Registrant’s ability to practise to mark the gravity of the matter.
57. The findings that a Conditions of Practice Order is not appropriate and a Suspension Order is not necessary had the consequence that this is a case that falls within the category described in the opening sentence of paragraph 102 of the Sanctions Policy (as quoted in paragraph 54 above). The Panel is satisfied that a lengthy Caution Order is one that is a necessary but sufficient marker of the seriousness with which the Panel has viewed the Registrant’s actions. It will reassure the public that behaviour of the sort he committed will not be overlooked, and remind other professionals that they cannot behave in that manner without significant repercussions. It will also serve as a timely reminder to the Registrant. In all the circumstances the Panel considers that the appropriately length of the order is the maximum duration of five years.
The Registrar is directed to annotate the register entry of David Hickling with a caution which is to remain on the register for a period of 5 years from the date this order comes into effect.
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
History of Hearings for Mr David Hickling
|Date||Panel||Hearing type||Outcomes / Status|
|07/06/2021||Conduct and Competence Committee||Final Hearing||Caution|