Mr Neil T Durrant

Profession: Paramedic

Registration Number: PA32195

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/05/2021 End: 17:00 07/05/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Caution

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

 

Allegation

Allegation (as amended at the final hearing following the adjournment application when the HCPC withdrew the Health allegations):


As a registered Paramedic (PA32195) your fitness to practise is impaired by reason of misconduct. In that:

1. Between October 2018 and November 2018, you sent inappropriate messages via social media platform Snapchat to Colleague A. In that:
     a. You said “Dick pics always make nice presents”, or words to that effect;
     b. You said “Dick pics make me horny”, or words to that effect;
     c. You posted a picture of a penis with a message that read “Merry Xmas”, or words to that effect;
     d. You posted a picture of a penis with a message that read “Happy New Year”, or words to that effect;
     e. You said “are you not interested Rocket, show me your pocket rocket”, or words to that effect.

2. On or around 31 December 2018, you created an account on social media platform Snapchat with a similar user name to Colleague A, and posted numerous sexually explicit photographs of Person B, purporting these to be from Colleague A.

3. Your conduct in relation to allegation 2 above was misleading and/or dishonest.

4. Your conduct in relation to allegations 1 and 2 above was sexually motivated.

5. The matters set out in allegations 1 to 4 above constitute misconduct.

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

 

Finding

Preliminary matters:
Proceeding in Private
1. Ms Bayley submitted that an adjournment application which she wished to make should be heard entirely in private, on the basis that the protection of the private life of the Registrant required such a direction as there would be mention of confidential matters concerning his health.  The HCPTS Practice Note on Conducting Hearings in Private states: most health allegations require Panels to consider intimate details of a registrant’s physical or mental condition. A Panel is justified in hearing such a case in private in order to protect the registrant’s privacy, unless there are compelling public interest grounds for not doing so; a situation which is highly unlikely to arise. The decision to hear such a case in private is unlikely to be contentious but, nonetheless, is one which the Panel should make formally and after giving the parties the opportunity to make representations.

2. The Panel directed that the adjournment application should be conducted in private, to protect the private life of the Registrant. The Panel also directed that any further parts of the hearing are conducted partly in private, in respect of any health matters, to protect the private life of the Registrant.

Disclosure by Registrant Panel member

3. During the consideration of the preliminary matters, the Registrant provided information to the Panel that he attended professional training courses (between 2007 and 2010) at which the Registrant Panel member Mr Peter Woodford was an instructor.
4. Mr Woodford had notified an HCPTS Manager well in advance of this hearing that a personal interest could be thought to arise, because he recognised Mr Durrant’s name. Mr Woodford was satisfied, after receiving advice from the HCPTS Manager, that there is no real danger or possibility of bias or a perception of bias and therefore he did not disqualify himself from the Panel.
5. The Panel were advised by the Legal Assessor to consider whether Mr Woodford’s connection with the Registrant, or with the HCPC witness Colleague A, (whose name he also recognised once it was disclosed to him); could give rise to an apprehension or perception of bias.
6. Neither party has requested that Mr Woodford recuse himself from this hearing. The Panel finds that an outside observer in possession of all the relevant facts, would be satisfied the Registrant has received a fair hearing from an impartial Panel.

Background

7. Neil Durrant (the Registrant) is a registered Paramedic, who at the relevant time was employed by South Central Ambulance Service NHS Foundation Trust (SCAS) as Clinical Operations Manager, a senior role with management responsibility for other members of staff.

8. In January 2019 Colleague A, a colleague of the Registrant, informed his Team Leader that the Registrant had set up a fake Snapchat account impersonating Colleague A and had sent sexually explicit photographs to Person C using this account. Colleague A also stated that he had received sexually explicit messages, and photographs, from the Registrant via another Snapchat account.

9. A formal investigation was carried out by NW, then Assistant Director of Operations at the London Ambulance Service NHS Trust.  The Registrant was interviewed and admitted he set up both Snapchat accounts, and sent messages to 5 different people using the “fake” account purporting to be in Colleague A’s name. The Registrant stated that he had been suffering from a medical condition.

10. The HCPC submits that if the conduct alleged, in any or all of the particulars are proved, this will establish that the Registrant acted in a way which fell far short of what would be proper in the circumstances and of what the public would expect of a senior HCPC registered Paramedic.

 


Evidence
11. The Panel heard oral evidence from the following HCPC witnesses: NW and Colleague A. Special Measures were adopted in respect of Colleague A’s evidence, in accordance with case management directions dated 19 January 2021. Therefore, Colleague A gave his evidence via video link, and for the duration of this evidence the Registrant attended the remote hearing via telephone link only.

12. The Panel also heard oral evidence from the Registrant and his current employer CP. The Registrant admitted particulars 1 and 2. Also particular 3 on the basis of being misleading but not dishonest and misconduct. The Registrant denied particular 4, (which alleges that he was sexually motivated in respect of particulars 1 and 2) and that his fitness to practise is currently impaired.

13. The Panel granted an application by Ms Bayley which was not opposed by the HCPC, to exclude irrelevant hearsay evidence from the hearing bundles, from pages D59 to D71 and paragraphs 30 to 33 in the statement from MW.

Assessment of the Evidence
14. The Panel made an assessment of the credibility and the reliability of all of the evidence presented to it. The Panel found NW’s evidence to be credible, professional, open and clear. Colleague A’s evidence was open, honest, confident and clear but also emotional and he appeared to be angry at times.

15. The Panel found the Registrant to be open, honest and clear when he gave evidence, despite being emotional. He admitted sending the inappropriate messages to Colleague A and that he set up a fake account, used to send sexually explicit photographs purporting to be from Colleague A, to 4 or 5 other people who were either the Registrant’s colleagues or friends.

16. The Panel took account of the fact that the Registrant’s previous good character is relevant to his credibility and he is less likely to have acted as alleged by the HCPC. The Registrant produced testimonials and references from JH and CP stating that he is highly respected by colleagues and patients, in his current workplace, and has demonstrated excellent professional skills.


Facts
Submissions of the HCPC
17. The HCPC submitted that particulars 1 and 2 are admitted by the Registrant. His admissions are consistent with the evidence and the documents and therefore those particulars should be found proved by the Panel.

18. As regards the allegation of dishonesty in particular 3; the Registrant had initially lied to Colleague A when he denied setting up the fake Snapchat account at their meeting on 3 January 2019. He had set up that account to give the impression that Colleague A had sent the sexually explicit messages. The Registrant admits this was misleading but denies he was impersonating Colleague A; the Registrant states that Colleague A was aggressive at their meeting, which is why he denied setting up the fake account. It was not put to Colleague A when he gave evidence that he was aggressive to the Registrant and Colleague A gave evidence that he was trying to support the Registrant on 3 January 2019. The Registrant later admitted in a WhatsApp message to Colleague A, that he had sent the messages using the fake account. This suggests that the Registrant’s conduct in relation to particular 2 was dishonest.

19. With regard to the allegation of sexual motivation, in relation to particulars 1 and 2, Colleague A in his evidence queried whether the Registrant’s motive in sending the messages, was sexual gratification. The Panel could draw inferences to determine the Registrant’s motivation. The HCPC submitted that some of the messages were pornographic and the purpose of pornography is sexual arousal. Sending such images is overtly sexual which suggests that they were sexually motivated unless they were sent for their shock value. Alternatively the motive may have been to pursue a sexual relationship but this has been denied by the Registrant. He states he does not know why he sent the messages but he was not sexually motivated. If they were sent as “revenge porn” the HCPC submitted that amounts to serious misconduct.

Submissions on behalf of the Registrant
20. Ms Bayley submitted that the HCPC had failed to prove dishonesty or sexual motivation. Such allegations require cogent evidence. The Panel should consider the Registrant’s previous good character, the contemporaneous documents and the consistency of the evidence. The Registrant lied initially to Colleague A about the fake account because he felt threatened when he was in Colleague A’s flat. He had no explanation for sending these messages and he admitted it was him on the following day via Whatsapp rather than face-to-face. In the circumstances it has not been proved that he was dishonest, when he purported to be Colleague A and sent these messages.

21. As regards sexual motivation the Registrant had no desire to engage in a sexual relationship with Colleague A and there is no allegation of sending pornographic images of Colleague A. The Registrant cannot explain his motivation, but it was not sexual gratification. His consistent account is that he was unwell and in a “very bad place” at the time. In addition, he said that he may have been trying to provoke a reaction, seeking attention or it was a cry for help. This is consistent with his health problems at that time. He has admitted what he did and that he behaved in a way which was appalling and inexcusable; but it was also entirely out of character.

Legal Assessor’s advice
22. The Legal Assessor advised the Panel that the burden of proof is upon the HCPC on the balance of probabilities, in relation to findings of fact.

23. In respect of the alleged dishonesty: in accordance with the case of Ivey v Genting [2017] UKSC 67 the legal test is as follows: When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

24. Furthermore, in the case of Lucas (1981) it was stated that people sometimes tell lies for reasons other than to conceal guilt. Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:

(1) The lie must be deliberate;
(2) It must relate to a material issue;
(3) The motive for the lie must be a realisation of guilt and fear of the truth; and
(4) The statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness. If a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. The Panel must be satisfied on the balance of probabilities that there was no innocent explanation for any untruthful answers, before this evidence could be used against the Registrant.

25. As regards the alleged sexual motivation, in the case of Basson v GMC [2018] EWHC 505 it was stated that sexual motivation means that the conduct was done either in pursuit of sexual gratification, or in pursuit of a future sexual relationship.

26. In the case of GMC v Haris [2020] EWHC 2518 the Sexual Offences Act 2003 was cited, as an aide to understanding the issue of sexual assault. Section 78 of the Act states:
For the purposes of this part…penetration, touching or any other activity is sexual if a reasonable person would consider that-
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

Decision on Facts:

27. The Panel accepted the advice of the Legal Assessor.

Particulars 1a-e
28. The Panel finds these particulars are proved because they are admitted by the Registrant and he has the benefit of legal advice. Also, his admissions are consistent with the contemporaneous evidence in the hearing bundles and the oral evidence of NW and Colleague A.

Particular 2
29. The Panel finds this particular is proved on the basis of the Registrant’s admission. This is also consistent with the contemporaneous evidence in the hearing bundles and the oral evidence from NW and Colleague A.

Particular 3
30. The Panel finds this particular is proved on the basis that the Registrant’s conduct giving rise to particular 2, was misleading as he admits. This is consistent with the contemporaneous evidence in the hearing bundles and the oral evidence from NW and Colleague A.

31. The Panel has also specifically considered the Registrant’s state of mind, in respect of the dishonesty element alleged in particular 3. The Panel considered possible motives for the alleged dishonesty and the Registrant’s explanations for his behaviour. He admits creating a fake account and sending messages from that account purporting to be Colleague A. In relation to his state of mind at the relevant time: he had a health condition which is consistent with his account that he cannot explain his behaviour. The contemporaneous documents are consistent with a health condition leading to risk taking. This is consistent with his message sent to Colleague A (in which he admitted setting up the account) and his evidence to the Panel when he stated his behaviour was stupid and misleading, but not dishonest.

32. By the standards of ordinary decent people, the Panel finds it has not been proved that the Registrant was dishonest. Accordingly, this particular is proved only on the basis that the Registrant’s conduct giving rise to particular 2 was misleading, as he admits, but it was not dishonest.

Particular 4
33. The Panel finds on a balance of probability, in respect of the matters set out in particulars 1a-e and 2, the Registrant was not sexually motivated. The evidence suggests there was no possibility that a sexual relationship was being contemplated at the relevant time, by either Colleague A or the Registrant. It has also not been proved that the Registrant was motivated by sexual gratification. The most likely explanation for sending the messages and setting up the fake account was to provoke a reaction. This is consistent with the witness evidence, the contemporaneous documents and the Registrant’s health condition. Accordingly, this particular is not proved.

Ground and Impairment
Submissions of the HCPC
34. The HCPC submits the Registrant acted in an inappropriate and unprofessional manner towards colleague A, causing a high level of distress to him. In doing so, the Registrant breached standards 2 and 9 of the HCPC Standards of Conduct, Performance and Ethics (January 2016). He has admitted misconduct and his behaviour was sufficiently serious to cross the misconduct threshold. The HCPC submits that the Registrant’s conduct is so serious, that a finding his fitness to practise is not impaired would undermine both public confidence in the profession, and in the regulatory process.  Furthermore, a finding of impairment is necessary in order to declare and uphold the standards of conduct to be expected of HCPC Registrants. He fell far below the applicable HCPC standards in 2018. Since November 2019 he has been working to a high standard as confirmed by the oral evidence of his employer CP. Furthermore, he has demonstrated his remorse. However, he breached fundamental tenets of the profession when he was in a senior Paramedic role and he is clearly currently impaired under the public component.

Submissions for the Registrant
35. Ms Bayley submitted that the Registrant has accepted all the matters found proved against him and that this amounts to misconduct, from an early stage. His conduct at the relevant time fell far short of what is to be expected of an HCPC registrant. It is sufficiently serious to amount to misconduct. The Panel’s role is to protect the public and to have regard to the principles of proportionality. However the Panel should not stray beyond the line between individual rights and the public interest in upholding professional standards; into the private life of the Registrant, as stated in the case of Beckwith [2020] EWHC 3231.

36. The Registrant has been open with his current employer and the regulatory process itself can be sufficient to uphold professional standards, where there is insight and remorse. In this case the Registrant has reflected on the impact of his actions and his subsequent dismissal by SCAS. He has been conscientious and open to show there is no risk of repetition. There is a public interest, in particular due to the COVID-19 pandemic, in allowing an outstanding Paramedic to continue to practise. Taking into account his health problems at the relevant time, his previous good character and full remediation, his fitness to practise is not currently impaired.

Legal Assessor’s advice
37. The Panel was advised by the Legal Assessor that: whether any of the proved facts amount to the statutory ground of misconduct and the issue of current impairment, are not matters which need to be proved. They are matters for the Panel’s judgement. The ground of misconduct has been admitted by the Registrant.

38. The Panel should consider the HCPTS Practice Note on Finding that Fitness to Practice is Impaired, to determine whether fitness to practise is impaired. Panels must take account of a range of issues which, in essence, comprise two components:

1. the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
2. the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

39. The Panel should also take into account the critically important public policy issues. In the case of CHRE v Grant (2011) it was decided that impairment might arise: (a) where a registrant presents a risk to service users; (b) has brought the profession into disrepute; (c) has breached one of the fundamental tenets of the profession; or (d) has acted in a way that his integrity can no longer be relied upon. In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider: whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.

Decision on Ground and Impairment

40. The Panel accepted the advice of the Legal Assessor. The Panel finds that the proved factual particulars 1a-e, 2 and 3 (on the basis of being misleading) do amount to the ground of misconduct. The Registrant’s behaviour was sufficiently serious to amount to misconduct because it was deplorable and likely to bring the profession into disrepute. The Registrant fell far short of what is to be expected of an HCPC registered Paramedic by sending inappropriate messages and photographs via social media to colleagues and friends and setting up a fake social media account. The following HCPC standards were breached by the Registrant:

2.7 You must use all forms of communication appropriately and responsibly, including social media and networking websites.

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.


41. The test of impairment is expressed in the present tense, that his fitness to practise is impaired, at the current date. The Panel has taken into account the lapse of time since these matters occurred, but has also looked at the Registrant’s past actions in order to assess the likelihood of future misconduct. The Panel finds the Registrant’s fitness to practise is not impaired under the personal component. His health problems have been addressed. He has demonstrated insight and taken remedial action. He had a previously unblemished career and his current employer has provided evidence to the Panel that, since November 2019, the Registrant has demonstrated outstanding professional performance, in a senior role.

42. However, the Registrant’s behaviour in this case, fell far short of what is to be expected. It is necessary to maintain public confidence in the profession and the regulatory process, by finding that there is a current impairment of his fitness to practise. The Registrant breached the boundaries of decency and integrity. He sent inappropriate messages and photographs and set up a fake account. A reasonable member of the public would be dismayed by such behaviour. Confidence in the profession and the regulatory process would be undermined if a finding of impairment was not made. Accordingly, due to the need to uphold proper professional standards, the Panel finds that the Registrant’s fitness to practise is currently impaired under the public component only.


Sanction

43. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the circumstances of this case and to its findings on the facts, the statutory ground and current impairment.

44. The Panel has considered the submissions made on behalf of the HCPC and the Registrant and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had regard to the HCPC Sanctions Policy (2019), which states:

Panels make independent decisions, and must decide each case on its merits. The Policy is intended to be a guide and not to provide fixed ‘tariffs’ or constrain a panel’s independence in any way. However, where a panel deviates from the Policy, they must provide clear reasons for doing so.

The primary function of any sanction is to protect the public. The considerations in this regard include:
•any risks the registrant might pose to those who use or need their services;
•the deterrent effect on other registrants;
•public confidence in the profession concerned; and
•public confidence in the regulatory process.

In writing any decision on sanction, the panel must provide clear and detailed reasoning to support its decision, explaining the issues it has considered and the impact any aggravating or mitigating factors have had on the outcome.

The panel’s written decision should clearly explain why the sanction is necessary to protect the public having regard to the full facts of the case and associated risks. It should also make clear what process the panel followed, by considering each available sanction in turn, in the same order in which the panel has assessed their suitability. Panels should explain why they have rejected one sanction before moving on to a more severe sanction, and outline why the less restrictive sanction is insufficient to protect the public. Where appropriate, they should also explain why the next more severe sanction is not required to protect the public, having regard to the specific circumstances of the case.

Sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating someone. Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning.

45. The Panel first identified the aggravating and mitigating factors that it should take into account.

46. The aggravating factors are:

• There was a serious breach of the HCPC Standards of Conduct, 2.7 and 9.1.
• The sexual content of the messages and photographs sent by the Registrant.
• The harmful impact on Colleague A of the Registrant’s misconduct.

47. The mitigating factors are:

• The Panel has not found the Registrant to have been dishonest or sexually motivated.
• He has been found to be currently impaired under the public but not the personal component.
• He did not misuse his position as a senior manager.
• He promptly expressed his regret to Colleague A via a Whatsapp message.
• He has been a Paramedic since 2010 with a hitherto unblemished reputation.
• The Registrant is highly regarded and has helped to change the culture in his current workplace in relation to mental health issues.
• He has expressed remorse and regret and taken remedial action.
• He admitted all the facts proved and misconduct.
• The Registrant has reflected on the impact of his actions and his subsequent dismissal by SCAS.
• There is a public interest, in particular due to the COVID-19 pandemic, in allowing an outstanding Paramedic to continue to practise.
• He had health problems at the relevant time.

48. The Panel has considered sanctions in ascending order of gravity. All sanctions are available in this case. Taking no action and mediation would not be appropriate to mark the serious nature of the misconduct.
49. The Sanctions Policy states:
Where a panel finds that a registrant’s fitness to practise is impaired, the least restrictive sanction that can be applied is a caution order. A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.

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. The panel can impose a caution order for any period between one and five years. As discussed earlier, the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.

50. The Panel finds that the Registrant’s misconduct can properly be viewed as an isolated issue, rather than a pattern of behaviour. The factual particulars took place over a limited time when the Registrant was suffering from an underlying health condition.

51. The Panel has decided that a caution order is an appropriate sanction in this case. This is an isolated issue with a low risk of recurrence because the Registrant has shown full insight and taken remedial action. This case is therefore not too serious to be dealt with by a caution.

52. The Panel has carefully considered the length of sanction it considers to be appropriate and proportionate.

53. In the more serious case of PSA v HCPC and Doree [2017] EWCA Civ 319 the Court of Appeal decided that the sanction imposed by the Panel was not “unduly lenient”. In the particular circumstances, the imposition of a caution order for the maximum period of 5 years was an appropriate sanction, having regard to Mr Doree’s misconduct and the impairment of his fitness to practise; giving due weight to the protection of the public and the wider public interest. A caution order is not an insignificant sanction and it will appear on the online register entry for five years, with a link to the Panel’s decision. Any prospective employer will have access to it and it may be taken into account if a further allegation is made.

54. The Panel concludes that a caution order for 3 years is sufficient to address the public confidence concerns of a reasonable member of the public, in possession of all the facts. It will maintain public confidence in the profession and the regulatory process, in view of the proved factual particulars and misconduct which include sexual messages and photographs and misleading behaviour.
55. Conditions of practice are not appropriate in this case because there is no risk of harm to patients and workable conditions could not be formulated to address the misconduct.
56. A suspension order would be disproportionate because of the extensive mitigating circumstances listed above at paragraph 54 and the Registrant has demonstrated full insight and remorse and consequently there is no realistic risk of repetition.

57. The Panel concludes that although there was a serious breach of HCPC standards, a 3 year caution order is a sufficient deterrent and reflects the seriousness of the misconduct.

Order

Order:  That the Registrar is directed to annotate the register entry of Mr Neil Durrant with a caution which is to remain on the register for a period of three years from the date this order comes into effect.

 

Notes

The Order imposed today will apply from 4 June 2021 if no appeal is made.

 


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

 

Hearing History

History of Hearings for Mr Neil T Durrant

Date Panel Hearing type Outcomes / Status
07/03/2022 Investigating Committee Interim Order Application Interim Suspension
04/05/2021 Conduct and Competence Committee Final Hearing Caution