Mr Daniel R Windust
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Whilst registered as a Paramedic, and during the course of your employment at South Central Ambulance Service, you:
1. Behaved in an inappropriate manner in that you:
a) On or around 6th may 2017, exposed your genital piercing, or an item purported to be your genital piercing, to Colleague A
b) Between 1st and 21st May 2017 you had inappropriate sexually explicit conversations with Colleague B and/or Colleague C in that you:
i. Said that Person X has been sleeping around and drinking to excess or words to that effect.
ii. Discussed sexual positions, oral sex and how you liked piercings or words to that effect
c) On or around 8th May 2017, you exposed your penis and genital piercing to Colleague C
d) On or around 8th May 2017, you said to Colleague E "you would **** her wouldn't you", or words to that effect, about Colleague D
e) On or around 8th May 2017, you said to Colleague D that Person X had been " ******* someone else" or words to that effect
f) On or around 5th July 2017, you exposed your underwear to Colleague G
g) On or around 30 March 2018:
i. Told a third party that your colleagues were "two young blondes you can meet, one of them is single" or words to that effect;
ii. Stated to a third party "Colleague O is single and good looking" or words to that effect
2. On or around 31 May 2017, you attended a call out to Patient Y, a young child with shortness of breath, and you:
a) Allowed a junior colleague to travel with the patient in the back of the ambulance while you drove
b) Continued to take demographic information on scene instead of obtaining it en route to the hospital
c) Did not send a pre-alert to hospital
d) Did not drive to the hospital under emergency conditions
3) On or around 3 July 2017, you:
a) Asked Colleague J that he was going to write in his statement about the call out to Patient Y
b) Stated to Colleague J that "if it was the other way round, I would have your back" or words to that effect
c) Told Colleague J your version of events of the call out to Patient Y
4) Your actions as described in paragraph 3 were an attempt to influence the statement Colleague J was going to provide about the call out to Patient Y
5) On or around 15 March 2018 you attended incident S1803151499 and you:
a) Behaved in an inappropriate and/or unprofessional manner in that you:
i. Disclosed information about your personal life to the patient
ii. Shared information about the patient's business on your social media
b) Did not obtain and/or record a full set of observations of the patient
c) Did not highlight the refusal box on the patient record
d) Did not arrange a suitable care/safeguarding package for the patient
6) On or around 8 April 2018 you:
a) Behaved in an inappropriate manner in that you made verbal threats of harm towards a colleague
b) Attended incident S1804080909 and:
i. Didn't take any base line observations
ii. Didn't complete the electronic Patient Record (ePR)
iii. Did not arrange a suitable care/safeguarding package for the patient.
7) The matters set out in paragraphs 1-6 constitute misconduct and/or lack of competence.
8) By reason of misconduct and/or lack of competence your fitness to practice is impaired.
1. Before the Presenting Officer opened the case the Panel dealt with four preliminary matters, namely:
- An application on behalf of the HCPC that it should be permitted to rely on hearsay evidence in relation to Colleague A.
- Whether it would be appropriate for elements of the hearing to be conducted in private.
- Whether the hearing should be conducted by the Panel first making and announcing its decision on the facts before proceeding to consider any further elements of the allegation that would need to be considered in the event of facts being found against the Registrant.
- Amendment of the factual particulars of the allegation.
2. The hearsay evidence of Colleague A. The HCPC based its application to be permitted to rely on hearsay evidence in relation to Colleague A because it had made concerted but unsuccessful efforts to locate her in order to present her as a live witness before the Panel. The HCPC had not been able to contact Colleague A and so there was not a witness statement prepared for the purposes of the present proceedings. Rather, the evidence the HCPC sought to present as hearsay evidence was a typed document extending to two pages that is a record of an interview of a meeting held on 17 July 2017 between Mrs SR, one of the SCAS investigators whose involvement will be further described below, and Colleague A. The document was prepared by or on behalf of Mrs SR, but it was signed and dated by Colleague A. In relation to this application the Panel accepted the advice of the Legal Assessor that it would not be appropriate to admit the evidence on the basis that the weight to be given to it could be assessed at a later stage when the Panel deliberated. Rather, the Panel was required to be satisfied that it would be fair to admit the evidence in the first place. In this regard, an important factor was that the statement contained only direct evidence of the incident alleged in particular 1(a) (the evidence of other witnesses called before the Panel was confined to accounts of Colleague A having told them that the incident had occurred). However, having carefully considered the matter, the Panel concluded that the statement should be admitted. The Panel’s reasons were as follows:
- The circumstances in which the interview took place were clearly formal and there cannot have been any doubt on the part of Colleague A as to why she was being asked about the event by Mrs SR or of the seriousness of the matter.
- Colleague A was accompanied by Mr JH, a Clinical Mentor, whose presence was stated to be support for her.
- The interview record did not suggest that Colleague A was motivated by malice towards the Registrant. For example, when asked by Mrs SR if she had a view of what the Registrant’s motives had been in behaving as alleged in the particular, Colleague A replied that she did not feel that it was a sexually driven conversation, but that the Registrant had been going through a difficult time and may not have been thinking about what he was doing.
- The interview took place approximately ten weeks after the alleged incident when it could reasonably be assumed that Colleague A’s recollection was good.
- As already stated, Colleague A signed the interview record as accurate a week after the interview took place.
- The HCPC’s Solicitors had made strenuous efforts to locate Colleague A to enable her to be presented as a live witness.
Having decided to admit the signed statement of Colleague A, the Panel recognised that its hearsay nature would require the evidence to be treated with appropriate caution, as would all of the hearsay evidence presented to it.
3. Part of the hearing in private. It was clear from the terms of the allegation, and from the HCPC’s hearing bundle, that it would be inevitable that the fact that the Registrant had a personal connection to one of the people connected to these matters would be disclosed. Words allegedly spoken by the Registrant about this person are relevant to the allegation, and as the individual is also a Paramedic it was apparent that her connection to other witnesses might arise, although she was not herself to be called as a witness. The Panel therefore accepted that the fact that this person was not identified by name would not prevent her being identified. In those circumstances it would be necessary for elements of the evidence to be received by the Panel in private to protect their privacy. Furthermore, there was a likelihood that there would be some evidence about the Registrant’s health that would also require the same direction.
4. Facts to be decided initially. At the outset of the hearing the Panel considered whether the parties, and in particular the Registrant, would be assisted if the Panel first decided the facts so that any submissions on the statutory grounds and current impairment of fitness to practise could be framed with knowledge of any facts found proved by the Panel. The Panel considered that it would be appropriate for this course to be followed.
5. Amendment of the factual particulars. The only respect in which amendment was required was to correct a typographical error in particular 3(a), which originally alleged, “Asked colleague J that he was going to write etc.”. It was clear that the word should have been “what”, there was no objection by the Registrant to the change and the Panel directed that the particular should be amended.
6. When invited to respond to the allegation the Registrant stated that he disputed the factual particulars save for the following:
- Particular 1(a) was denied but he would tender an explanation.
- In relation to both limbs of particular 1(g), he denied the contentions advanced saying that the context was incorrectly alleged.
- In relation to particular 2, he admitted sub-particulars (c) and (d).
- In relation to particular 3(b), he admitted that he had had a conversation with Colleague J, but stated that the context was not as alleged
7. In 2017 the Registrant was working for South Central Ambulance Service (hereafter “SCAS”) with the job title Enhanced Paramedic working at Band 6. At that time he had been a Paramedic for approximately ten years, although his employment by SCAS as a Paramedic had been preceded by approximately four years as a Technician.
8. The matters alleged by the HCPC in this case are said to have occurred in the months of May and July 2017 and in the months of March and April 2018. The Registrant was not at work for the whole of the period between those two periods because he was suspended by SCAS from mid-July 2017 until mid-December 2017.
9. In the summer of 2018 the Registrant’s employment with SCAS ended after he tendered his resignation.
Decision on Facts
10. The Panel accepted the advice that it had received from the Legal Assessor as to the way in which it should approach the decisions it was required to make. In particular, it accepted the burden rested on the HCPC to prove matters against the Registrant on the balance of probabilities.
11. The HCPC called a total of eleven witnesses to give evidence at the hearing. The first week of the hearing was devoted to the calling of that evidence and it was detailed. In total the HCPC hearing bundle extended to 687 pages. The bundle included the witness statements made by the witnesses called at the hearing that had been made for the purposes of this hearing. Very nearly 600 pages of the hearing bundle comprised documentary exhibits. Included in the documentary exhibits were records of interviews that had been conducted with the witnesses called at the hearing as well as the records of interviews of other individuals who had been interviewed during the SCAS internal investigations but who were not called to give live evidence before the Panel. The documentary exhibits also included records of activities relevant to interactions with patients and protocols relevant to the requirements imposed on employees by SCAS. With the exception of one document disclosed to the Panel, the Panel was satisfied that all of the documentation it received was relevant to issues to be decided. The exception was a copy of an email disclosed to the Panel at the conclusion of the seventh day of the hearing that related to evidence that the HCPC had wished to call in rebuttal of a contention made by the Registrant. In the event the HCPC was not able to produce the witness who might have spoken to that email within a timescale that would not have resulted in significant disruption to the progress of the hearing, and for that reason the witness was not called. In those circumstances the Panel decided that the information contained in that email should be wholly discounted.
12. In reaching its decisions the Panel had regard to the totality of the admissible evidence. However, it acknowledged that some of that evidence was hearsay in nature, and in relation to such evidence it accepted that it was required to approach it with caution, recognising that it was evidence that could not be challenged or explored to any meaningful extent.
13. The Panel recognises that it is customary to commence a decision on the facts by identifying all of the witnesses called by the parties and explaining its general assessment of their reliability. In this case, however, save for the three witnesses who undertook investigations for SCAS, the Panel considers that the most helpful approach would be to deal with an assessment of their reliability when the Panel explains its decision on the specific particulars spoken to by the witnesses. The Registrant also gave evidence and called as a witness Mr SG. As the evidence of the Registrant related to all of the particulars, and that of Mr SG related to a specific but general issue raised by the Registrant, the Panel will deal with their reliability at the outset.
14. Before any witnesses are assessed there is a general issue that must be described and dealt with by the Panel. It is the Registrant’s case that he was the victim of a management “witch hunt”. He suggested that the motivation for that was that the person with whom he had had a personal relationship with, was a Paramedic Team Leader who had contacts with others who had management responsibilities in SCAS. This was an issue explored with all of the witnesses. The Panel found that there was no coherent evidence that there had been a witch hunt, that any of the witnesses had been improperly motivated or that the investigation had been skewed against the Registrant. The Registrant asserted it but had no evidence of it. Mr SG is a Specialist Paramedic and Team Leader who had union responsibilities, and in that latter capacity supported the Registrant in one of the three SCAS investigations. Mr SG stated his belief that the integrity of the investigation of which he had knowledge had been breached, but upon enquiry that belief was based upon what the Registrant had told him and was not supported by any solid information. The Registrant produced an email dated 17 May 2021 that had been sent to him by Ms TJ, a Paramedic who holds the post of Secretary for a union branch. Ms TJ’s email contains what purports to be an email that had been sent by an unidentified person on an unidentified date relating to what is said to have happened on an unidentified date when it is contended that Mr SP discussed a disciplinary process concerning the Registrant with others. Before the email dated 17 May 2021 was produced, the Registrant cross-examined Mr SP in general terms about this matter, but Mr SP denied it. In the view of the Panel the vagueness of the information in the email was such that it did not undermine the Panel’s acceptance of Mr SP’s denial that he had acted improperly. The Panel carefully considered the Registrant’s contention that there had been a witch hunt, but it came to the conclusion that there was no substance in it. This was not only because there was no cogent evidence of it, but also because the circumstances in which the various complaints about the Registrant arose were not consistent with them being fabricated and also because it was satisfied that each of the witnesses was being truthful when they denied any such motivation.
15. The Panel heard evidence that all investigations undertaken by SCAS relating to these matters, had been conducted in accordance with published best practice. The three witnesses called by the HCPC who undertook SCAS investigations were as follows. All of them were Paramedics:
- Mrs SR, a Team Leader and the Registrant’s line manager at the material time. The Panel found her to be a confident and knowledgeable witness who gave her evidence in a straightforward manner. She was knowledgeable about the matters she was able to deal with yet did not prevaricate if there was an issue she could not remember or deal with. The Panel found that she was a witness upon whose evidence it could rely.
- Mr SR was a Clinical Mentor until December 2017, but thereafter became an Operational Team Leader. The Panel found him to be professional, fair and balanced. The Panel found him to be a credible witness.
- Mr SP, a Clinical Mentor. The Panel found him to be consistent in the evidence he gave. In particular, the Panel found the evidence he gave about the required procedures in relation to the incident reflected in particular 2 to have been logically presented in a clear manner. The Panel also found him to be a fair and open witness, as demonstrated by his preparedness to agree to suggestions made to him by the Registrant concerning a complaint that had been made against him in an unrelated matter. It was Mr SP who was the particular focus of the Registrant’s contention that he had been the victim of a witch hunt, but the Panel did not accept that suggestion. Again, the Panel found Mr SP to be a witness upon whose evidence it could rely.
16. As has already been stated the Registrant gave evidence. The Panel did not find the Registrant to be a reliable witness. Indeed, the conclusion of the Panel was that it would not be able to rely on his evidence without some external reassurance that what he said occurred is correct. This is not a conclusion any panel would reach lightly, and this Panel has not arrived at that conclusion in the case of this Registrant without solid grounds for reaching it. The following are examples of aspects of the evidence that has driven the Panel to this conclusion:
- The Registrant sought to blame others, deflect criticism directed at him and to avoid or minimise responsibility. The attempt to contend that his failure to travel with the infant Patient Y was as a consequence of Colleague K’s decision is an example of this. The attempt to explain away the details of Patient Y’s condition recorded in the ePR as the result of Colleague J fabricating matters to advance his portfolio is another example, the full details of the Registrant’s case in this regard being set out below.
- When the weight of the evidence rendered an outright denial impossible (examples being the two piercing exposures), he advanced an implausible explanation (in relation to the piercing exposures, that it had been merely a prank).
- He demonstrated marked inconsistency and selective memory. An example, yet again, concerns the Patient Y incident. When Mr SP wrote to him on 29 June 2017 asking the Registrant to give his account of the incident, he replied the same day stating, “This statement is true and accurate to the best of my knowledge. I am Danny Windust, Paramedic based at Whitchurch ambulance station. I have no memory of an incident on this date involving a 7-month-old male attended at a service station what-so-ever.” Also, on the same day Mr SP wrote again to the Registrant asking if he would like a copy of the ePRF. When the Registrant was subsequently interviewed by Mr SP on 30 October 2017 the following exchange occurred:
“SP added that DW had provided a statement of what he believed to have happened and that he did not recall it. DW confirmed yes. SP did at the time offer a copy of the EPR. DW stated ‘right’. SP did not believe that DW had responded to this offer. DW did not know. He knows the incident now – is aware of the incident.”
In evidence before the Panel, given very nearly four years after the event, the Registrant stated that he could remember such matters as where and how he had parked the ambulance at the service station, the body shape of the infant patient and even the type of child seat in which the child had travelled both in his mother’s car and to hospital. When all of this evidence is considered the only conclusion that can be reached is that the Registrant was prepared to say as little as he thought he could get away with and what would best suit his interests.
- A further example of selective memory is provided by the evidence given to the Panel by the Registrant in relation to the attendance on 15 March 2018 to the man whom the Registrant asserted was not to be considered a patient. In the context of seeking to persuade the Panel there was no reason for him to have concerns about the man’s well-being, the Registrant stated that he could not only remember that the man had turkey twizzlers cooking in the oven, but also claimed to remember the number of twizzlers being cooked. The Panel found this evidence to be wholly implausible.
17. It is also appropriate to assess Mr SG as a witness. It has already been stated that, when analysed, the content of the evidence given by Mr SG did not support the issue the Registrant intended to demonstrate by calling him. Nevertheless, it is right that the Panel should record that it considered Mr SG to be a balanced and composed witness who was quite prepared to make appropriate concessions. The Panel found him to be a credible witness.
18. With these more general matters dealt with, the Panel will now explain its decisions in relation to the specific factual particulars alleged against the Registrant by the HCPC.
Particular 1(a), “Behaved in an inappropriate manner in that you: (a) On or about 6th May 2017 exposed your genital piercing, or an item purported to be your genital piercing, to Colleague A.”
19. Colleague A did not appear as a witness before the Panel. As a result of the Panel’s ruling in relation to the admission as hearsay of the record of her interview conducted on 17 July 2017, that document was relied upon by the HCPC. Colleague A was the only witness as to the actual incident although two further witnesses, Colleagues D and E gave evidence that related to events that followed the incident. The reliability of Colleagues D and E will be dealt with below when particular 1(d) is addressed.
20. The Panel is satisfied that an event occurred which led Colleague A to believe that the Registrant had exposed his genital piercing to her. The reasons for this finding are as follows:
- While acknowledging the care that must be taken with hearsay evidence, the Panel found the account given by Colleague A to be compelling for a number of reasons, including:
o The fact that she did not ascribe a sexual motivation to the Registrant.
o She accepted that there had been no full exposure of the penis and that no skin had been visible. She also said that she did not feel that the incident needed to be reported.
- Colleague A’s reaction was consistent with her believing that the Registrant had exposed his genital appearance because she mentioned it to colleagues at the location where she worked. She had only just started in the role and the terms in which she raised it was more in the nature of an enquiry as to whether that was behaviour that was normal at that location rather than as a specific complaint.
- The Registrant admitted that during what he described as a prank he pretended to show a genital piercing. He said that he did not say to Colleague A that he had not actually shown her a piercing. It was therefore understandable that Colleague A should have believed that the Registrant had exposed a genuine piercing.
21. The HCPC’s contention is that the exposure was of the Registrant’s genital piercing or of an item purported to be his genital piercing. The Panel finds that it was indeed a genital piercing that was exposed to Colleague A. It was the Registrant’s case not only that his prank was of a purported piercing but also that he did not in May 2017 have a genital piercing. In this latter regard the Registrant produced a written statement at the request of Mr SG. In this document his former partner stated that the Registrant had a genital piercing in 2005 which he had removed several years later while they were still together. On occasions he would replace it for short periods of time. She said that in 2012 the Registrant attempted to replace the piercing but found that the aperture had closed, and he decided not to have the piercing procedure undertaken again. To her knowledge he did not have a genital piercing. The Panel carefully considered all of the evidence and it concluded that what had been seen was a genital piercing rather than a purported piercing. This conclusion was arrived at for the following reasons:
- For reasons that will be explained below under particular 1(c), the Panel finds that on 8 May 2017, the Registrant exposed a pierced penis to Colleague C. It would clearly be wrong for the Panel to find that because the Registrant had acted in this way to Colleague C he had, on a separate occasion in a different location, done the same to Colleague A. But in circumstances where the Panel is satisfied that the Registrant’s penis was pierced on 8 May 2017, it is appropriate to find that his penis was pierced two days earlier when the Colleague A incident occurred. It follows that exposure of an actual piercing was something that the Registrant could have done.
- As to whether the Registrant did in fact expose a piercing to Colleague A, the Panel finds that two elements lead to that finding that he did. One is that the incident occurred during a conversation that both Colleague A and the Registrant agree was one in which tattoos and piercings were being discussed; it is more likely that in the context of such a conversation that a piercing would be shown than that a prank would be performed. The other is that even on the Registrant’s own case he did not say to Colleague A that he had performed a prank on her; had a prank been performed by him the natural thing to do after it had been played would have been to disclose to Colleague A that he had been joking.
- It follows that the Panel rejected the Registrant’s version of the incident with Colleague A, and as to the evidence of his former partner, whatever the position had been at the date when she was last able to say whether or not the Registrant had a genital piercing when she had knowledge of it, her evidence did not accord with matters as they stood in early May 2017.
22. Accordingly, the Panel finds that particular 1(a) is proven on the basis that it was the actual piercing that was exposed.
Particular 1(b)(i)&(ii) and (c), “Behaved in an inappropriate manner in that you:
b) Between 1st and 21st May 2017 you had inappropriate sexually explicit conversations with Colleague B and/or Colleague C in that you:
i. Said that Person X has been sleeping around and drinking to excess or words to that effect.
ii. Discussed sexual positions, oral sex and how you liked piercings or words to that effect
c) On or around 8th May 2017, you exposed your penis and genital piercing to Colleague C.”
23. The Panel considers that it is appropriate to deal with these issues together because the HCPC’s case is that the words were spoken and the exposure of the penis and genital piercing occurred during the same shift when working with the same two colleagues.
24. On the occasion of this incident the Registrant had been working with two colleagues, Colleague B and Colleague C, both of whom are and were at the material time Paramedics. The Panel found Colleague B to be a confident, credible and honest witness whose recollection of the events was accurate. She had a clear recall of the events, and the Panel was particularly struck by the fact that she accepted that she had engaged in some of the conversation of which the complaint is made, albeit that she did so reluctantly. The Panel also found Colleague C to be an impressive witness. He was very clear, concise and consistent, did not waiver and did not become flustered. In short, the Panel found him to be believable.
25. It follows that in relation to these particulars the Panel was faced with a conflict in evidence between these two witnesses and the Registrant. The Registrant’s denial of particular 1(c) was based on the same footing as his case in relation to particular 1(a), namely that he performed a prank in which he pretended to show a piercing, but in fact did not expose his penis but pretended to do so by showing a key ring.
26. The Panel accepted the evidence of the two witnesses that the Registrant made the remarks about Person X referred to in particular 1(b)(i) and that he discussed matters of the sort referred to in particular 1(b)(ii). Colleague B had been travelling in the rear section of the ambulance, initially near the opening to the front where Colleague C and the Registrant were positioned. However, as the conversation progressed, she decided that she no longer wished to be involved in it so she moved her position to the back of the vehicle away from the opening. It is noteworthy that this was something that Colleague C was aware of. In relation to Colleague B, the Panel also found it significant that following this incident, Colleague B requested that her shift for the following day should be changed so that she should not be required to work with the Registrant. The Panel found this to be particularly significant as the evidence of Colleague B was that she had worked with the Registrant for a period of approximately 5 years and had never previously encountered any difficulties with him.
27. Although it occurred on the same day and in the same ambulance, the exposure alleged in particular 1(c) was not witnessed by Colleague B (who, being in the rear of the vehicle, would not have been able to see it). The Panel found Colleague C’s description to be compelling. The Registrant was driving the vehicle and with one hand exposed his penis. Colleague C was a reluctant participant in the Registrant’s conversation, and once the penis was exposed, he sought to look to his left out of the door window (something he would not otherwise have done), but eventually obliged the Registrant by looking at the piercing in the hope that the Registrant would thereafter concentrate on driving the vehicle. Colleague C was absolutely clear that he saw the skin of the Registrant’s penis, and the Panel accepts his evidence in this regard. It follows that the Panel rejects the evidence of the Registrant that he performed a prank and that it was performed while he was in the passenger seat of the ambulance. For reasons already stated in relation to particular 1(a), the Panel does not find that the statement of the Registrant’s former partner undermines the evidence of Colleague C.
28. It follows from these findings that particulars 1(b)(i)&(ii) and 1(c) are proven.
Particulars 1(d) and (e). Behaved in an inappropriate manner in that you:
d) On or around 8th May 2017, you said to Colleague E "you would **** her wouldn't you", or words to that effect, about Colleague D.
e) On or around 8th May 2017, you said to Colleague D that Person X had been "******* someone else" or words to that effect.
29. The Panel considers that it is appropriate to deal with these particulars together as they are both alleged to have occurred during the same shift when he was working with Colleague D and Colleague E, both of whom are and were Paramedics.
30. Colleague D gave evidence that the Panel found to be clear, concise and entirely credible. Furthermore, the Panel found her evidence to be fair, as demonstrated by the fact that she volunteered the evidence that the Registrant desisted from discussing inappropriate matters when patients were present. The Panel found the evidence of Colleague E to be less reliable than that of Colleague D. Colleague E gave his evidence in a cautious and guarded manner. The Panel accordingly decided that it had to treat the evidence of Colleague E with a degree of reserve.
31. The Registrant’s account was that he accessed the Registrant’s Facebook profile in the context of ensuring that he would be able to contact her to discuss swapping shifts. He said that this happened in the crew room at the ambulance station. He concedes that words such as scrubbing up well were used, but that it was used in the context of the Facebook photograph which showed Colleague D and her partner dressed formally. Colleague D’s account was quite different. She stated that while she, the Registrant and Colleague E were waiting at a hospital in Southampton, the Registrant accessed her Facebook photograph, made a comment about her scrubbing up well and then stated to Colleague E words to the effect of “you [i.e. Colleague E] would **** her [i.e. Colleague D] wouldn’t you?”. Colleague D’s evidence was that Colleague E shook his head and said to the Registrant words to the effect of “No mate, that’s not how to behave.” The evidence of Colleague E was that he did not recall such a conversation, although he did accept that if it had been said the words attributed to him by Colleague D would be the sort of response he would have made to the Registrant’s question.
32. The Panel found the account of Colleague D to be compelling. She stated that the remark made with regard to her made her feel that she had allowed the conversation to develop, but that it made her feel objectified and diminished. She spoke to her Team Leader about the incident after the event. The Panel accepts her account of the Facebook ”scrubbing up” incident and rejects the account of the Registrant.
33. The Panel also accepts the evidence of Colleague D that the Registrant stated to her words to the effect that Person X had been ******* someone else. It accepts that Colleague D said to the Registrant words to the effect that that was a topic they should not be discussing. It rejects the Registrant’s account that words to this general effect had been overheard when he had a telephone conversation with a third party concerning childcare arrangements.
34. It follows from these findings that particulars 1(d) and 1(e) are proven.
Particular 1(f). Behaved in an inappropriate manner in that you:
f) On or around 5th July 2017, you exposed your underwear to Colleague G.
35. The sole witness to this event called as a witness by the HCPC was Colleague G. At the time she was an Emergency Care Assistant, but subsequently qualified as a Paramedic. On 5 July 2017 the Registrant was requested to attend Eastleigh Ambulance Station in connection with an investigation into other matters. Colleague G had met the Registrant in the course of her work, but they did not work from the same station and she did not know him well. She stated that he had seemed quite friendly. On the day in question she was on a meal break seated on a sofa when the Registrant entered the crew room and walked over and stood beside her. Her evidence was that the Registrant stood within touching distance of her when he undid his trousers and lowered them. He then put a shirt over his white under-shirt before doing up his trousers. It was Colleague G’s evidence that his trousers were lowered, leaving her head level with his underwear for approximately 30 to 40 seconds. Her evidence was that she believed the Registrant knew what he was doing and did it to make her feel uncomfortable. Furthermore, her evidence was that his actions were accompanied by him stating in relation to the meeting he had been requested to attend words to the effect of, “I don’t know what they mean by inappropriate behaviour”.
36. The Registrant’s account of the incident was that he arrived at the ambulance station wearing sports shorts following a game of badminton, and that in fact what he did was to put on his green uniform trousers over the sports shorts for the purposes of the meeting.
37. The Panel accepted the evidence of Colleague G and rejected that of the Registrant. The Panel found the Registrant’s version of events to be implausible. When he was asked why, if he had arrived for the meeting after playing badminton and wearing sports clothing, he did not go to a changing room or to the toilet area to change he did not provide any real answer. The consequence is that particular 1(f) is proven.
Particular 1(g). Behaved in an inappropriate manner in that you:
g) On or around 30 March 2018:
iii. Told a third party that your colleagues were "two young blondes you can meet, one of them is single" or words to that effect;
iv. Stated to a third party "Colleague O is single and good looking" or words to that effect.
38. The witness called by the HCPC to give evidence before the Panel whose evidence went to the heart of this particular was Colleague O. The Panel found Colleague O to be a straightforward individual who gave her evidence clearly and answered questions with a refreshing frankness. For example, she accepted the Registrant’s suggestion to her that at work she had a mug with a risqué logo and that she would sometimes herself use coarse language.
39. The Registrant’s account of the incident was that he played a prank on Colleague O, pretending to speak to a third party on his mobile telephone in which he referred to Colleague O.
40. The Panel accepted the evidence of Colleague O and rejected that of the Registrant. The words were spoken by him and a friend of the Registrant (who was not a SCAS employee) subsequently visited the ambulance station to collect fishing equipment from the Registrant. The effect of the conversation on Colleague O is reflected in the fact that she falsely stated that she did in fact have a boyfriend to avoid further embarrassment.
Particular 1(a) to (g) inclusive – summary.
41. The Panel has found all of the factual issues alleged to be proven. It also finds, as alleged in the stem of particular 1, that when that behaviour is considered both individually and collectively, the Registrant behaved in an inappropriate manner.
Particular 2. On or around 31 May 2017, you attended a call out to Patient Y, a young child with shortness of breath, and you:
a) Allowed a junior colleague to travel with the patient in the back of the ambulance while you drove;
b) Continued to take demographic information on scene instead of obtaining it en route to the hospital;
c) Did not send a pre-alert to hospital;
d) Did not drive to the hospital under emergency conditions.
42. On 31 May 2017 Colleague K responded to a call while working alone in a rapid response vehicle at a service station on a main road approximately 10 miles from Winchester. He found a mother and her 7-month-old child. The mother, who did not live in that immediate area, explained that the child had a history of breathing difficulties, and as the child had previously been treated at hospital in Winchester, she was taking him there. The evidence suggests that the mother may have been uncertain of her location in relation to Winchester, possibly believing that she had missed a road junction that she would have needed to have taken to reach the hospital. Colleague K did not give live evidence at the hearing, but the Panel saw documents presented as hearsay evidence relating to his account of events that took place that day.
43. The Registrant was working on an ambulance with a newly qualified Emergency Care Assistant, Colleague J. Colleague J was the only witness called to give evidence before the Panel whose evidence was directly relevant to this particular. When he commenced his evidence Colleague J appeared to be somewhat uncomfortable and uneasy. However, as his evidence progressed the Panel found him to be a straightforward witness who had a recollection of the incident. The reason why he remembered the incident is because he learned something new that day as a result of hearing discussion between the Registrant and the nursing staff at the hospital about intercostal recession, a concept of which he had previously been unaware. The Panel found that it could rely on his evidence
44. The Registrant and Colleague J attended at the scene some time after Colleague K as ambulance back up to his rapid response vehicle attendance. It was not disputed by the Registrant that the decision taken at the scene was that mother and child would be taken in the ambulance to hospital in Winchester. In his evidence Mr SP, who undertook the SCAS investigation into this incident, took the Panel to the established protocol documents which the HCPC contend would have determined whether the Registrant, as the senior clinician on the ambulance, should have been required to travel in the rear of the ambulance with the infant patient, whether a pre-alert should have been sent to the hospital and whether the ambulance should have been driven to the hospital under emergency conditions. In summary, the documents relied upon demonstrated that if a child of the age of this patient was believed to have a serious problem involving breathing, they must be treated as being time critical, frequently re-assessed and rapidly transferred to an appropriate receiving hospital with a suitable pre-alert having been communicated to that hospital. The Registrant did not challenge that these protocols existed or that they would have been engaged if the child’s condition had in fact been as the HCPC alleged it was. Rather, his denial of this particular was based on two contentions. One was that Colleague K, who was an Enhanced Paramedic and Team Leader, stated that it was acceptable for the Registrant to drive the vehicle leaving Colleague J to travel in the rear of the vehicle. The other was that the child was not believed to have a serious condition, and therefore the protocols just referred to were not engaged. The Registrant described the requirement for the attendance of SCAS personnel as “social”, as the child’s mother had become distressed and her condition was worse than that of the child.
45. The Panel rejected both limbs of the Registrant’s defence for the following reasons:
- The Electronic Patient Report (“ePR”) form completed in relation to this incident, which contained information provided by both Colleague K and Colleague J, was signed by the Registrant. In the view of the Panel this document very obviously described a child who had a serious problem with breathing. In a manner the Panel found to be wholly unconvincing the Registrant sought to deflect the clear implications of the ePR. He advanced a case that as a newly qualified Emergency Care Assistant, Colleague J was required to compile a portfolio of cases in which he had participated, and one of the required categories was a case of an unwell child. In effect, he suggested that Colleague J had fabricated information for the purposes of the ePR to satisfy his portfolio requirement. When he cross-examined Colleague J, the Registrant asked him about the portfolio requirement, but he did not put to him that the information had been fabricated to satisfy it. Having regard to the Panel’s general assessment of Colleague J it would have rejected this contention without more. In fact there was further information that supported the overall picture of this being an ill child, namely a document described as a “Patient Outcome Response” dated 2 February 2018 which was provided to Mr SP and which recorded the hospital records regarding the child. This document included the statement that the child had been admitted to a paediatric ward with increased work of breathing requiring high flow oxygen. A chest x-ray showed an upper lobe collapse and further changes in the mid-left zone.
- The Registrant further sought to advance a case that the child had not been ill by producing a document that had been in his possession (R1) which he contended demonstrated that the child had been discharged from hospital at an early stage. The Panel accepted the evidence of Mr SP that the timings on the document produced by the Registrant represented times the child was in the Accident and Emergency Department at the Hospital, and that the timings on that document stopped once the child was admitted to the paediatric ward.
- The Panel did not accept the Registrant’s case that he had been justified in allowing the newly qualified Emergency Care Assistant to travel in the rear of the ambulance with the infant patient because Colleague K had given his authority for that to happen. Passing over the question quite why the Registrant should have sought Colleague K’s permission for something that would not have been out of the ordinary if the child was not presenting with a significant problem, the Panel does not accept the Registrant’s evidence that he was given permission by Colleague K. The reason why the Panel do not accept that Colleague K gave permission is because it was Colleague K seeing the Registrant driving the ambulance away from the scene, rather than being in the rear with the child, that was the issue raised by Colleague K which started the SCAS investigation. Furthermore, even if Colleague K had said words that the Registrant could reasonably have understood as giving permission for him to delegate care of the child to Colleague J, that did not absolve him from his personal responsibility to decide who should, and who should not, attend unwell patients. The Registrant was an experienced, autonomous practitioner working at Band 6 with the job title Enhanced Paramedic, and from the moment it was decided that the child would be taken to hospital in the ambulance in which he was the senior clinician, it was his personal responsibility to make decisions about what was, and what was not, appropriate.
46. The Panel is entirely satisfied that from the outset of the Registrant’s involvement with the child there was the presentation of a serious problem with breathing. That being the case he should have travelled in the back of the ambulance; the hospital should have been pre-alerted and the journey to the hospital should have been made under emergency conditions. None of those things occurred. Accordingly, sub-particulars (a), (c) and (d) are proven.
47. So far as sub-particular (b) is concerned, it is correct that Colleague K complained that he had to urge the Registrant to start the journey to hospital because he believed that too long was being taken in the obtaining of demographic information before the journey was commenced. However, Colleague K was not called as a witness at the hearing and the hearsay accounts of his complaint did not include timings from which the Panel could form a proper and fair judgement as to whether an excessive period of time did in fact elapse. Accordingly, the Panel finds that in relation to sub-particular (b) that the HCPC has not discharged the burden of proof. Particular 2(b) is therefore not proven.
Particulars 3 and 4.
3) On or around 3 July 2017, you:
a) Asked Colleague J what he was going to write in his statement about the call out to Patient Y;
b) Stated to Colleague J that "if it was the other way round, I would have your back" or words to that effect;
c) Told Colleague J your version of events of the call out to Patient Y.
4) Your actions as described in paragraph 3 were an attempt to influence the statement Colleague J was going to provide about the call out to Patient Y.
48. It is appropriate to explain the Panel’s decision on what was said and why the words were spoken together. The witnesses called by the HCPC who gave evidence relevant to these particulars were Colleague J and Colleague D. The Panel has already explained its general assessment of the reliability of these witnesses. There was also the hearsay evidence of Colleague L.
49. The Registrant admits that following the request made by Mr SP that he and Colleague J should give their accounts of the incident involving the young child with a breathing problem, he spoke to Colleague J. However, he denied that he spoke as alleged by the HCPC or that he sought to influence Colleague J’s account of the incident to Mr SP. Rather, the Registrant contended that all he did was to warn Colleague J that he (i.e. Colleague J) should be careful that what he did say was not changed by SCAS management, as he claimed that previously a statement he had made about a matter which had been looked into had been changed without his knowledge or agreement.
50. On 3 July 2017 Colleague D and Colleague L were coming to the end of a night shift, whereas the Registrant and Colleague J were preparing to commence their shift and were having a cup of tea in the crew room. Colleague D, although ignorant of the incident which underpinned the issue, was clear as to the nature of the conversation, that it appeared to make Colleague J uncomfortable and that it was clear that the purpose of the Registrant’s remarks was to try to get Colleague J to side with him about whatever the issue was. Colleague J recalls there being conversation in the crew room, a conversation that made him feel uncomfortable and which caused him to tell the Registrant that he did not wish to discuss it. Indeed, Colleague J recalls the Registrant continuing to talk about the incident on 31 May 2017 during the shift they worked together on 3 July 2017. The hearsay evidence of Colleague L is consistent with that of Colleagues D and J.
51. The Panel accepts the evidence of Colleagues D and J and rejects that of the Registrant as to the words spoken by the Registrant to Colleague J in the crew room on 3 July 2017. Accordingly, particulars 3(a) to (c) inclusive are proven.
52. Given the words spoken by the Registrant and the context in which they were spoken, the Panel finds they were spoken with the clear intent of the Registrant to influence what Colleague J would say about the Patient Y incident. That is how the conversation appeared to Colleagues D and L despite the fact they knew nothing of the call out to Patient Y. Particular 4 is proven.
Particular 5. On or around 15 March 2018 you attended incident S1803151499 and you:
a) Behaved in an inappropriate and/or unprofessional manner in that you:
i. Disclosed information about your personal life to the patient;
ii. Shared information about the patient's business on your social media;
b) Did not obtain and/or record a full set of observations of the patient;
c) Did not highlight the refusal box on the patient record;
d) Did not arrange a suitable care/safeguarding package for the patient.
53. This incident occurred on 15 March 2018 when the Registrant was crewed with Colleague O. Colleague O was the only witness called by the HCPC who gave evidence about what occurred during the call out. The Panel has already explained its general assessment of Colleague O as a witness. Mr SR gave evidence as to the expectations of SCAS in the circumstances as he believed them to be.
54. The Panel accepted the evidence of Mr SR that if a Paramedic attends someone who is properly to be regarded as a patient, then it is inappropriate for the Paramedic to discuss personal matters and inappropriate to become involved in the patient’s business dealings. The Panel also accepts that it is the Paramedic’s responsibility to obtain as full a set of observations as it is possible to obtain, and if it is impossible to do so because of refusal on the part of the patient to cooperate, then the refusal box on the patient record must be highlighted. Furthermore, there is a duty to arrange suitable care or a safeguarding package for a patient.
55. In evidence the Registrant contended that he was inexperienced in using electronic Patient Records (“ePRs”), but it appeared to the Panel that that element of his case was subsidiary to his contention that the man upon whom he attended that evening was not a patient, and for that reason the obligations that have just been identified did not arise.
56. The man attended upon by the Registrant and Colleague O had been communicating with an acquaintance. He had stated something to the effect that he had had enough, a remark that resulted in the acquaintance fearing that self-harm was a risk. It was this fear on the part of the acquaintance that resulted in the ambulance service being requested to visit. The arrival of the Registrant and Colleague O therefore not only did not come as the result of a request made by the man visited, but also came as a surprise to him.
57. The Panel does not doubt that the man attended had not wished Paramedics to attend. But attend they did and it was clear from the Registrant’s evidence, that although he might have thought the call to have been mistaken, it was a call that had been made in good faith. Once they attended they gained admittance to the man’s home and remained there for approximately an hour. During that hour the Registrant discovered that the man had a number of personal problems and described his mood as low. Furthermore, the Registrant himself filed an ePR in relation to the incident. In these circumstances the Panel has concluded that the man was certainly properly to be considered a patient. The Registrant’s case that there was no patient is rejected.
58. Some of the patient’s personal problems were not dissimilar to those the Registrant had experienced in the then recent past, and the Panel accepts the evidence of Colleague O that the Registrant discussed aspects of his personal life with the patient. The Panel also accepts that in the context of the patient discussing business and financial difficulties, the Registrant posted information concerning the patient’s business on his (i.e. the Registrant’s) social media. Either a full set of observations should have been taken and recorded, or, if it had not been possible to do that the refusal box should have been highlighted. In fact neither was completed. At the end of the attendance no steps were taken by the Registrant with regard to the patient’s care or safeguarding.
59. The consequence of these findings is that particulars 5(a) to (e) inclusive are proven.
Particular 6. On or around 8 April 2018 you:
a) Behaved in an inappropriate manner in that you made verbal threats of harm towards a colleague
b) Attended incident S1804080909 and:
i. Didn't take any base line observations;
ii. Didn't complete the electronic Patient Record (ePR);
iii. Did not arrange a suitable care/safeguarding package for the patient.
60. Although the two limbs of particular 6 concern allegations of a different nature, they both occurred during the same shift and the evidence of the Paramedic with whom the Registrant was working that day, Colleague Q, is relevant to both. The Panel found Colleague Q to be a good witness. He was concise, consistent and gave a clear account of the events of 8 April 2018. The Panel was struck by the fact that Colleague Q was conscious of a number of conflicts. One was that he was concerned for the Registrant’s welfare (asking him more than once whether he shouldn’t sign off sick but, recognising the Registrant’s mood, could only go so far in suggesting that), yet because of the Registrant’s presentation, he was troubled by the Registrant’s conversation when threats of harm were made. In relation to the clinical incident, Colleague Q was a competent practitioner who had a clear idea of how things should be done and recognised that the Registrant had not done what he knew he should have done. Yet despite that, Colleague Q deferred to the Registrant’s seniority until a point was reached when he recognised that his professional duties required him to act.
61. In relation to this day, the Registrant recognised that he had not behaved as he should have done. In evidence before the Panel he described the day as probably the worst day of his life. Contemporaneously, during the evening of 8 April 2018 he sent a text message to Colleague Q apologising for his earlier “grouchiness”.
62. The Panel accepted the evidence of Colleague Q that after a patient had been handed over and he was sitting in the cab of an ambulance with the Registrant, the Registrant said in an aggressive manner words to the effect that he wanted to pummel Colleague R into the ground, and that he also stated that if he saw Colleague R that day he (i.e. the Registrant) wasn’t sure that he could control himself. The manner in which those words were spoken, coupled with the Registrant’s general body language, led Colleague Q to believe that they were not said in jest.
63. It follows that particular 6(a) is proven.
64. The attendance referred to in particular 6(b) was to an elderly female patient. The request to SCAS that there should be an attendance had been made by a GP and not by the patient, who aggressively and rudely told the Registrant and Colleague Q that she did not wish to engage with them. The division of responsibilities agreed between the Registrant and Colleague Q was that for that particular incident the Registrant was the attending clinician. The responsibility for dealing with the paperwork (or the electronic record) therefore fell to him.
65. As recognised by Colleague Q, the completion of a Patient Report Form is required in relation to every patient attended, and the expectation is that the form is completed before the Paramedic clears from the job to which the report relates, thereby making himself or herself available to attend another call. In this particular case Colleague Q initially raised with the Registrant the subject of doing some paperwork and received a reply to the effect that he would do it later. Colleague Q again asked if he was going to do the paperwork, but lacking confidence that the Registrant would actually do it, completed a paper Patient Report Form himself. Colleague Q wrote on this document, “PRF completed by the ‘driver’. Attending did not want to complete paperwork. Written in retrospect. Incident times not accessible ….”
66. So far as baseline observations are concerned, the Panel recognises that the patient’s lack of cooperation would limit the observations that could have been made. However, as the observations recorded by Colleague Q in the paper document completed by him, it was possible to comment on such matters as airway, response, breathing, Glasgow Coma Score, and appearance of skin. In circumstances where none of this information was recorded by the Registrant it is legitimate to conclude that he did not take the necessary observations.
67. The HCPC’s case is not that the Registrant and Colleague Q could have compelled the patient to go with them to the hospital, but that the steps taken by the Registrant with regard to later care were not sufficiently robust. Colleague Q considered that 111 should have been contacted with a request that the patient’s General Practitioner should contact them. However, the Registrant cleared from the job without asking Colleague Q if he agreed with that, and instead of contacting 111 and following the procedure just explained, he passed the patient back to the Out of Hours G.P. via the Emergency Operations Centre. Colleague Q had not previously experienced such a course, but deferred to the Registrant when told that he had done it that way previously. Colleague Q subsequently checked to establish whether the patient had been referred back to the Out of Hours GP and discovered that she had not. He told the Registrant this hoping that it would provoke the Registrant into ensuring that the referral was made, but instead was met with an apparent lack of interest on the part of the Registrant. Eventually, lacking confidence that the Registrant would attend to it, Colleague Q started the referral process to ensure that the patient was safe.
68. The consequence of these findings with regard to the elderly female patient is that particulars 6(b)(i) to (iii) inclusive are proven.
69. It follows from the decisions just explained that the Panel has found proven all of the factual particulars advanced by the HCPC against the Registrant save for particular 2(b).
70. The Panel must therefore proceed to consider whether the facts found amount to misconduct and/or lack of competence, and, if a statutory ground is made out, whether there is current impairment of fitness to practise.
Decision on statutory grounds
71. After the Panel handed down the full, unredacted determination explaining its decision on the facts it allowed the parties two hours to digest the contents. It then asked the Presenting Officer to make submissions on statutory grounds and current impairment of fitness to practise. The Panel then adjourned again for an hour to enable the Registrant to consider what he wished to say to the Panel with the benefit of hearing the HCPC’s submissions. The Panel invited submissions from the parties on both the statutory grounds and impairment at one time. However, the Panel acknowledged that the two issues were to be considered separately and sequentially, the decision on current impairment of fitness to practise arising in the event that a statutory ground is satisfied.
72. The submissions of the Presenting Officer on the statutory grounds included guidance on approaches to the concepts of misconduct and lack of competence that have been taken by the courts. The Presenting Officer adopted terms of the Case Summary contained in the hearing bundle as to the standards it was contended were breached. He submitted that it is the HCPC’s case that this is a case of misconduct rather than of lack of competence, not least because of the limited evidence concerning the Registrant’s clinical work.
73. The Registrant made it clear that he had difficulty in advancing his submissions because he did not believe that he had in fact acted as the Panel found that he had. The Panel considered that his submissions were more relevant to the issue of current impairment of fitness to practise and will be summarised in that context.
74. The Panel began its deliberations on the statutory grounds by considering whether a finding of lack of competence should be made. The Panel came to the clear conclusion that this is not a case of lack of competence. Quite apart from the fact that the evidence about clinical performance is limited, the Panel concluded that even in relation to those particulars found to be proven which involved a patient (i.e. particulars 2, 5 and 6(b)), the shortcomings did not arise because of any lack of knowledge and skills on the part of the Registrant. Rather, they arose because the Registrant, knowing full well how he should have acted, decided that he would not follow established procedures. In short, the problem was one of attitude and behaviour rather than one of competence.
75. When considering whether the proven particulars amounted to misconduct, the Panel considered that it was appropriate to group categories of proven matters to decide whether they reached the threshold of seriousness properly to be considered to be labelled misconduct. In reaching this judgement the Panel found helpful the approach of considering whether fellow professionals would consider them to be deplorable. The groupings were as follows:
- The sub-particulars 1(a) to (g). Included were two instances of exposure of the genital piercing, to, respectively, a female and male colleague. It was clear that the exposure resulted in both being embarrassed. It was clear that the conversation referred to in particular 1(d) was still upsetting for Colleague D nearly four years after the event. The events of 1(g) resulted in Colleague O inventing a boyfriend to deflect the embarrassment she felt. In short, the Panel was satisfied that each of the sub-particulars reached the misconduct threshold.
- The proven aspects of particular 2 (i.e. not including 2(b)) created a serious risk of harm for the infant Patient Y and was very serious. Fellow practitioners would undoubtedly consider the Registrant to have behaved deplorably in deciding not to travel with the patient.
- Particulars 3 and 4 can properly be taken together. It was a very serious matter for a more senior person to seek to manipulate the response to a proper enquiry made by SCAS of a very junior colleague. The inappropriateness of the Registrant’s actions can be assessed by the contemporaneous response of not only Colleague J whom he sought to manipulate, but of the other two colleagues who witnessed what he said. This was misconduct.
- Particular 5 represents an incident with a patient whom it suits the Registrant to contend was not a patient. The evidence the Panel heard suggests that the Registrant developed a good rapport with the patient, but the proven sub-particulars demonstrate that instead of taking all reasonable steps so that the safety of the patient was ensured, the intervention became skewed by the Registrant breaching proper professional boundaries. This too was a serious incident amounting to misconduct.
- Although they occurred on the same shift when the Registrant was working with the same colleague, particulars 6(a) and 6(b) are of a different nature and, in the context of deciding if they should be included in a finding of misconduct, the Panel considered them separately. Given the context in which it occurred, the particular 6(a) threat of harm was serious. That it would be viewed by fellow professionals as grave can be gauged by the way it was received by Colleague Q (an individual who was not malicious and who had been concerned about the Registrant’s welfare), who thought it necessary to report it. The elements of particular 6(b) add up to a failure to take adequate steps to protect the safety of a patient who had been sufficiently vulnerable that a G.P. had asked the ambulance service to take her to hospital.
76. The Panel considered that the Registrant’s actions as found proven by the Panel amounted to breaches of the following standards of the HCPC’s Standards of conduct, performance and ethics:
Standard 1.7 under the heading, “Maintain appropriate boundaries”, You must keep your relationships with service users and carers professional.”
Standard 2.7 under the heading, “Social media and networking websites”, “You must use all forms of communication appropriately and responsibly, including social media and networking websites.”
Standards 4.1 and 4.2 under the heading, “Delegation, oversight and support”, “You must only delegate work to someone who has the knowledge, skills and experience needed to carry it out safely and effectively” and, “You must continue to provide appropriate supervision and support to those you delegate work to.”
Standards 6.1 and 6.2 under the heading, “Identify and minimise risk”, “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible”, and “You must not do anything, or allow someone else to do anything, which could put the health or safety of a service users, carer or colleague at unacceptable risk.”
Standard 7.2 under the heading, “Report concerns”, “You must support and encourage others to report concerns and not prevent anyone from raising concerns.”
Standard 9.1,under the heading, “Personal and professional behaviour”, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”
Standards 10.1 and 10.2 under the heading, “Keep accurate records”, “You must keep full, clear and accurate records for everyone you care for, treat or provide other services to”, and “You must complete all records promptly and as soon as possible after providing care, treatment or other services.”
77. In these circumstances the Panel found all of the proven particulars amounted to misconduct.
Decision on impairment of fitness to practise.
78. As has already been stated, the Panel received submissions from the parties on the statutory grounds and impairment of fitness to practise together.
79. The Presenting Officer requested the Panel to consider the terms of the HCPTS Practice Note on the subject as well as underlining the importance of considering both personal and public impairment components. In relation to each of those components he indicated factors to be considered.
80. The Registrant reminded the Panel that, although no longer working for SCAS, he had undertaken some work as a Paramedic since 2018, as well as advancing an interest in forensic practice. He told the Panel that no issue had been taken with his medical practice for some 15 years before the matters being considered by the Panel. The Registrant also gave evidence about his personal circumstances and matters pertaining to his health. Finally, he asked the Panel to remember that the events occurred some years ago and stated that he did not believe that he was a threat to patients or the public.
81. The Panel heeded the terms of the HCPTS Practice Note. Consistent with the advice in that document, the Panel kept in mind that the issue is whether the past misconduct is currently impairing the Registrant’s fitness to practise. In reaching that decision the Panel considered separately the personal and public components.
82. The Panel considered that the risk of repetition was a factor that lay at the heart of the personal component. In order to assess whether there is a risk of repetition, the Panel re-visited the extent to which the Registrant had accepted wrongdoing in relation to the proven matters. This was an important issue because without acknowledgement of responsibility for past shortcomings it is difficult to find that similar matters will not be repeated.
83. The conclusion of the Panel was that the obfuscation, minimisation of responsibility and deflection of blame was such that there could be no confidence that matters would not be repeated. This finding necessarily means that the Registrant’s fitness to practise is impaired when the personal component is assessed.
84. Different considerations arise in relation to the public component. The risk of future harm is one, but only one, element to be decided. Other factors are the need to maintain a proper degree of public confidence in the Paramedic profession and to declare and uphold proper professional standards, one consequence of which will be to operate as a deterrent to other practitioners who might otherwise fail to behave as they should.
85. The conclusion of the Panel was that the risk of repetition which has already been decided necessarily has the consequence that there is a risk of future harm. The clinical incidents reflected in particulars 2, 5 and 6(b) created a risk of harm to the respective patients and it is purely fortuitous that no harm has been reported. There could be no guarantee that if the Registrant acted as he wished, as opposed to how he knew he should, that patient harm would not materialise. Furthermore, creating significant disturbance to colleagues also runs the risk that they will not respond as efficiently as they should.
86. The finding of a risk of future harm is sufficient to result in a finding of public component impairment of fitness to practise. However, the Panel’s view is that these matters are so serious that such a finding would have been required in any event in order to reassure the public that behaviour of the sort committed by the Registrant will not be overlooked and to remind fellow practitioners that such behaviour will result in action being taken.
87. It follows from these findings that there is current impairment of fitness to practise in relation to both the personal and public components.
88. The consequence that the Registrant’s fitness to practise is impaired by reason of misconduct means that the allegation is well founded. The Panel must now proceed to consider the issue of sanction.
Decision on sanction
89. After the Panel handed down the written determination explaining its reasons for finding that the statutory ground of misconduct is established and why the Registrant’s fitness to practise is impaired, the parties were allowed in excess of an hour to prepare their submissions on sanction. The Registrant was provided with the HCPC’s Sanctions Policy document the previous day.
90. The Presenting Officer stated that the HCPC remained neutral on the issue of sanction, although he did suggest that this is perhaps not a case which should result in no action being taken. He urged the Panel to have regard to the Sanctions Policy and took the Panel to various passages by which he suggested the Panel might be assisted.
91. The Registrant addressed the Panel. He informed the Panel that the events occurred at a low point in his life. He said that he had taken steps which meant he was now completely changed and had a more positive outlook. He said he had been to a dark place where he would never go again. He also said that he had been working since the relevant events without blemish.
92. The Panel accepted the advice it received that a sanction should not be imposed to punish a registrant against whom a finding has been made. Rather, a sanction should only be imposed to the extent that it is required to protect the public, to maintain confidence in the registered profession and to declare and uphold proper professional standards. As a finding that an allegation is well founded does not necessarily require the imposition of a sanction, logically the first question the Panel must answer is whether the findings in this particular case require the imposition of a sanction. If a sanction is required then the available sanctions must be considered in an ascending order of seriousness, stopping at that which provides sufficient public protection and adequately addresses the other relevant factors such as public confidence and the declaration of proper professional standards. The Panel confirms that it has accepted this advice. It has also heeded the terms of the Sanctions Policy.
93. When explaining its decision on misconduct the Panel has already stated why it has found the Registrant’s actions to be serious. It is not necessary for all that has already been said to be repeated, but it is important for the Panel to underline that his actions were not only grossly inappropriate and upsetting for colleagues, but also gave rise to a real risk of patient harm. The Panel must also address two further matters which are relevant to the issue of sanction. One is the fact that to Colleagues B and O the Registrant tendered apologies. However, the fact remains that both apologies were expressed on the basis of the Registrant’s accounts of the relevant incidents, as he contended that both were pranks. The apologies were tendered on the false basis that he had failed to ensure that Colleagues B and O had failed to appreciate that what he did was in each instance a prank. A different consideration arises in relation to the Registrant’s case that the incidents occurred against a background, and as a result of, personal unhappiness that has now resolved, and that there can be confidence they will not be repeated. If that case had been advanced on the basis that the full extent of what happened in 2017 and 2018 was acknowledged, that might be a significant consideration. However, in circumstances where the Registrant has not only denied in the past, but still denies, the substance of the findings against him, the Panel is unable to attach much weight to his assertion that they will not recur.
94. In the Registrant’s favour it should be recorded that he has engaged in this fitness to practise process, and although the Panel has expressed its view about the content of what he has said about relevant events, it remains the fact that he has been polite and respectful in the conduct of his case. Also, despite the fact that the Panel has concluded that his actions had the potential to result in harm to patients, the HCPC has not advanced the case on the basis that any tangible harm was in fact caused. Further, it has not been contended that the Registrant has a past history of regulatory findings, and that accords with the Registrant’s own evidence.
95. With these general findings the Panel first considered whether the findings in this case required the imposition of any sanction. The clear conclusion was reached that the seriousness of them does require a sanction.
96. The Panel next considered whether a caution order should be imposed. Paragraph 101 of the Sanctions Policy sets out in bulleted form the factors that would be likely to result in the imposition of a caution order. The Panel concluded that the shortcomings in this case were not isolated, limited or relatively minor in nature. Nor is there a low risk of repletion, the Registrant has not shown good insight and the Registrant has not undertaken appropriate remediation. The Panel considered that a caution order is not appropriate.
97. The rejection of a caution order as an appropriate disposal meant that the Panel next considered a conditions of practice order. Again in bulleted form, paragraph 106 identifies the circumstances that will be likely to result in the imposition of such an order. There are two reasons why the Panel considered that a conditions of practice order is not appropriate in the present case. One relates to the realistic prospect of remediation. There might be cases in which failings of the sort identified by the Panel could be remediated, but in this case the Panel has found that they occurred because of an attitudinal problem. That fact coupled with continuing denial and lack of insight has the consequence that there can be no confidence that there could or would be remediation. The other reason why a conditions of practice order is not appropriate is because there are no realistic conditions that could be formulated. In relation to the purely behavioural findings made by the Panel the breaches were of obligations that are the ordinary requirements imposed on all HCPC registrants. As to those findings that had a clinical aspect, they represented a failure on the part of the Registrant to undertake what he well knew he should have done. In the case of an autonomous practitioner conditions of practice to ensure compliance with such obligations are not appropriate.
98. The Panel therefore next considered a suspension order and paid close attention to paragraph 121 of the Sanctions Policy. When the Panel addressed the factors identified in that paragraph, it accepted that the concerns in the present case do indeed represent a serious breach of the Standards of conduct, performance and ethics. However, that apart, the Panel concluded that the present case does not meet the other factors identified. For reasons already explained the Registrant does not have insight, it cannot be said that the issues are unlikely to be repeated and there is no convincing evidence to suggest that the Registrant will be likely to resolve or remedy his failings. In short, given the Registrant’s continuing denial, there are no solid grounds for believing that the position would be any different at the end of a period of suspension. Though a suspension order could be appropriate in a serious case such as this with a prospect of future remediation, it is not appropriate in this case.
9. The Panel therefore arrived at the conclusion that the appropriate sanction in this case is a striking-off order. The Panel noted paragraph 131 of the Sanctions Policy and concluded that this is indeed a case where the Registrant lacks insight, there is a risk of repeated misconduct and the continuing denial of the substance of the findings does result in effect to there being an unwillingness to resolve matters.
100. The Panel acknowledges the seriousness of the conclusion at which it has arrived and is aware of the hardship that it will cause for the Registrant. However, the making of a striking off order is the only sanction that will provide a proper degree of public protection and serve to reassure the public that they can have confidence in Paramedics. For those reasons the Panel is satisfied that a striking off order is proportionate in the circumstances of this case.
ORDER: The Registrar is directed to strike the name of Daniel Windust from the Register on the day this order comes into effect.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Reasons for the making of an interim suspension order:
- The Panel was satisfied that it had jurisdiction to consider the making of an interim order because in the notice of hearing email sent to the Registrant dated 18 January 2021, the Registrant was informed that, in the event of a substantive striking off order being made, an application for an interim order might be made. Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.
- The Panel approached its decision on whether an interim order should be made by accepting that the default position is that when a substantive sanction is imposed a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.
- However, the Panel has concluded that the risk of repetition presented in this case carries with it a risk to the safety of the public. This has resulted in the Panel concluding that a restriction on the Registrant’s ability to practise during the appeal period is necessary for the protection of members of the public and is also required in the wider public interest. It follows that an interim order is required.
- The Panel considered whether conditions of practice imposed on an interim basis would provide an adequate degree of protection and sufficiently maintain public confidence while the Registrant’s appeal rights remain outstanding. However, having carefully considered the matter, the Panel concluded that interim conditions of practice are not appropriate for the same reasons already expressed by the Panel for rejecting substantive conditions of practice as a substantive sanction outcome.
- The result of these findings is that the Panel concluded that an interim suspension order is the necessary and proportionate order to make.
- It is appropriate that the interim order should be made for a period of 18 months. Such a period is appropriate because the interim order will automatically fall away if the initial 28 day period passes and the Registrant does not appeal, yet if he does appeal it could be 18 months before that appeal is finally determined.
History of Hearings for Mr Daniel R Windust
|Date||Panel||Hearing type||Outcomes / Status|
|10/05/2021||Conduct and Competence Committee||Final Hearing||Struck off|
|04/11/2019||Conduct and Competence Committee||Final Hearing||Adjourned|