Kenneth Tovee

Profession: Paramedic

Registration Number: PA21949

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 25/01/2022 End: 17:00 25/01/2022

Location: Virtual Hearing via Video Conference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Paramedic (PA21949) and during the course of your employment
with East of England Ambulance Service NHS Trust:

1) On or around 9 March 2019 you put your hand between Colleague A’s legs at the top of their thighs.

2) On or around 15 April 2019 whilst attending a patient call out with Colleague A,
you:

a) put your hand into Colleague A’s shirt and/or bra; and/or

b) placed your hand on Colleague A’s breast; and/or

c) made contact with Colleague A’s nipple; and/or

d) said “that has got me going” or words to that effect.

3) On dates unknown you:

a) said to Colleague A:

i) “You smell nice” or words to that effect; and/or

ii) “Your bum looks good in uniform” or words to that effect.

b) hugged Colleague A and/or touched Colleague A’s buttocks.

4) Your conduct in relation to particulars 1 - 3 was sexually motivated.

5) The matters set out in particulars 1 – 4 above constitute misconduct.

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

Finding

Preliminary Matters

Application to amend the Allegation

1.Ms Reid, for the HCPC, applied to amend the Allegation in order to correct an administrative/typographical error in relation to Particular 2. Ms Bracken, on behalf of the Registrant, did not oppose the application.

2. A panel of the Investigating Committee had originally referred an Allegation to the Conduct and Competence Committee on 7 December 2020. This included in Particular 2 four sub-particulars. The Registrant was notified of the Allegation in a letter dated 17 December 2020. At a Preliminary Hearing held on 28 May 2021, the HCPC applied to amend parts of the Allegation, but this application did not include any amendments to Particular 2. Both the HCPC and the Registrant were represented at the Preliminary Hearing. The panel decided to grant the HCPC’s application to amend. In the HCPC’s Notice of the amended Allegation dated 17 June 2021, the stem of Particular 2 is set out as originally drafted but none of the four sub-particulars were included. It appears that no one noticed this omission until shortly before this hearing.

3. The Panel has decided to grant the HCPC’s application, having received and accepted legal advice. It is satisfied that there is no prejudice or unfairness to the Registrant by the re-insertion of the original sub-particulars of Particular 2. On one view, there is no need to amend Particular 2 as it was not amended at the Preliminary Hearing on 28 May 2021 and it was just a typographical error in the Notice letter of 17 June 2021. However, out of an abundance of caution, the Panel considers that it is appropriate to deal with the matter by way of formally amending Particular 2 by re-inserting sub-particulars a) to d) as originally drafted.

Background
4. The Registrant is a registered Paramedic and was employed by the East of England Ambulance Service NHS Trust (the Trust) from 4 October 2004, initially as a technician, before qualifying and being employed in a Paramedic role. In 2019, the Registrant was working as a Senior Paramedic based at the Colchester Ambulance Station. He also acted as a mentor for student Paramedics.

5. Concerns regarding the Registrant’s conduct were raised in October 2019 by a student Paramedic colleague (Colleague A). This led to an internal investigation by the Trust. The Registrant referred himself to the HCPC, also in October 2019.

6. On 7 December 2020, a panel of the Investigating Committee found there was a case to answer against the Registrant and referred an Allegation to this Committee.


Decision on Facts

Evidence

7. The Panel heard evidence from Colleague A. The Panel also received in evidence a signed statement as part of the HCPC’s case from GM, a paralegal employed by Messrs Kingsley Napley LLP, who produced various documentary exhibits relating to the Trust’s internal investigation and to the Trust’s sign on duty logs. The Panel heard evidence from the Registrant. It also received seven written testimonials as to the Registrant’s good character.


Special measures

8. In accordance with a decision at a Preliminary Hearing by a different panel, Colleague A’s evidence was subject to special measures. She gave her evidence in private and was ‘screened’ from the Registrant, who heard her evidence via a telephone link. Ms Bracken on his behalf and all other participants in the hearing were able to see Colleague A give her evidence on screen. The Panel has received and accepted legal advice that the use of special measures is intended only to assist a witness to give their best evidence and is not in any way to be viewed to the detriment of a registrant.


Conducting part of the hearing in private

9. During the course of the Registrant’s evidence, Ms Bracken applied for part of his evidence to be given in private as it concerned matters relating to his private life, namely his health. Ms Reid did not oppose the application. The Panel received and accepted legal advice that while substantive hearings should usually be conducted in public, there were some circumstances where it was appropriate for a part of the hearing to be conducted in private session. Those circumstances included where the evidence related to the private life of a registrant.

10. The Panel has decided to grant Ms Bracken’s application, being satisfied that it was appropriate in order to protect the Registrant’s private life for matters relating to his health to be heard in private. All other matters would be heard in public.


The Panel’s approach

11. The Panel has borne in mind that the burden of proving the Allegation is on the HCPC and that there is no burden on the Registrant to disprove it. The Panel has applied the civil standard of proof when coming to separate decisions in respect of each of the Particulars and sub-particulars of the Allegation. The Panel was referred to and has taken note of the case of Khan v GMC [2021] EWHC 374 (Admin) as to how the issue of determining a witness’s credibility should be approached, and as to evidence of a registrant’s good character.

12. The evidence relating to the factual allegations in this case comes from Colleague A and the Registrant. Apart from business records relating to the dates on which Colleague A and the Registrant were on shift in March and April 2019, there is, as a matter of fact, no independent witness evidence or contemporaneous documentation which corroborates or supports the account given by either Colleague A or the Registrant. Neither Colleague A nor the Registrant made any written note which was contemporaneous with the matters alleged in this case. Colleague A was first interviewed about these in December 2019 and the Registrant in February 2020.

13. The Panel has taken into account the evidence of the Registrant’s good character when considering his credibility and his propensity to do the matters alleged against him. The Panel notes that good character evidence in itself does not provide a defence to any registrant facing regulatory allegations. The Panel has also considered the written evidence of the character witnesses and notes that none of these character witnesses has made it clear that they are fully aware of the allegations in this case. The Panel has therefore decided that it can afford only some weight to this evidence in assessing the Registrant’s credibility and propensity to do that which is alleged against him.

14. The Panel has also taken note of the delay between the time when the matters alleged against the Registrant are said to have taken place and the time when Colleague A first made a complaint, which was in October 2019. This amounts to a delay of approximately six months. Colleague A was interviewed as part of the Trust’s internal investigation in December 2019. The Panel has had in mind that delay may affect a witness’s memory of events and may result in evidence being unreliable due to events being misremembered or misinterpreted, or even result in exaggeration or the embellishment of evidence.

15. The Panel notes that there is some common ground in the evidence of Colleague A and the Registrant, who each gave evidence that although they were employed at the same Ambulance Station, they did not in fact work together as part of a two-man crew very often. They did not meet outside of work. Colleague A said that her relationship with the Registrant was professional, usually just to say hello to and nothing more. Colleague A said she found the Registrant to be quite domineering and intimidating. She said he was blunt and straight to the point. In cross-examination, Colleague A agreed the Registrant was very straightforward, didn’t mince his words, and was the same with everyone. She described their working relationship as “cordial”. The Registrant stated that he got on well with Colleague A, who was very competent and confident, and that he thought he had been “crewed” with her on less than six occasions. Colleague A agreed that they had not worked many shifts as part of the same crew.


Particular 1 – Proved

16. The Panel heard evidence, which it has accepted from both Colleague A and the Registrant, that there was an occasion which appears to have been on or around 9 March 2019, at a time when Colleague A was coming off a night shift and the Registrant was starting a day shift, when they had a short conversation in the car park at Colchester Ambulance Station. There was no one else in the vicinity at that time. Colleague A was sitting in the passenger seat of the ambulance, which was parked next to the diesel pump, and the passenger door was open. However, there is no agreement between Colleague A and the Registrant as to what was said and what happened during that short conversation. For the HCPC to discharge its burden of proving Particular 1, the Panel has to be satisfied on the balance of probabilities that Colleague A’s evidence as to what happened when the Registrant came over to the ambulance is credible and reliable.

17. In summary, Colleague A told the Panel that she had been on a night shift with a Paramedic (CD) who was also a good friend of hers. When they got back to the Ambulance Station in Colchester, CD had taken the bins out of the ambulance to dispose of them on the other side of the concourse to where she was. Colleague A said that she had been responsible for re-fuelling the vehicle. She said that she was sitting sideways-on in the passenger seat of the ambulance with her legs outside the ambulance, waiting for the ambulance to refuel, when the Registrant came over and asked if the ambulance was ready for him to take over. Colleague A said that as the Registrant was asking her this, he put one of his hands between her thighs at the top of her legs and started moving his hand up and down. Colleague A described the Registrant as touching her groin and the movement of his hand causing friction in her groin area. She had not reacted or moved when the Registrant had touched her. This had lasted between five to ten seconds whilst the Registrant was asking her about taking over the ambulance. He had then walked off. Colleague A could not recall any conversation with the Registrant about any other matter. Colleague A said that she had felt really uncomfortable and had not known what to do. In cross-examination, the Registrant’s version of events was put to her in some detail, which she rejected.

18. Colleague A told the Panel that she had not told anyone, including her friend CD, about the incident until October 2019. She had felt shocked and violated and did not know what to say or do. She expressed concern about saying anything which might impact on her development as a student Paramedic, particularly in view of the Registrant’s seniority. She was worried about not being believed or taken seriously.

19. The Registrant told the Panel that when he had approached the ambulance, Colleague A was sitting in the passenger seat with the door open, but she was sitting with her legs inside the vehicle and may have been eating something. The Registrant’s evidence was that the conversation with Colleague A was not only about whether he could take the ambulance but also that Colleague A had appeared to be despondent and had told him that she had had a bad shift and he had tried to “gee” her up by giving her verbal encouragement. The Registrant explained that he had also touched one of Colleague A’s thighs just above her knee with both of his hands, firstly moving them sideways by approximately an inch and then in a “para diddle” (i.e., a drumming motion) as part of that encouragement. He said that after he had done this, he thought his “para diddle” touch might have been too hard and so he apologised to Colleague A, who responded that she had not felt it through her trousers, or words to that effect. The Registrant denied touching Colleague A’s legs at the top of her thighs or groin area. The Registrant said that he could not remember if he took that ambulance for his shift. The Registrant said that having since thought about his actions that day, he now accepts that touching Colleague A in the way he has described was inappropriate and he would not act in that way in future.

20. The Panel has already referred to the fact that no independent person was present to witness what happened and there is no contemporaneous documentary evidence. The Panel has concluded that on balance, it accepts Colleague A’s account of events. This is not a case where there is room for misinterpretation about what happened. The two accounts of the touching are significantly different.

21. The Panel has accepted Colleague A’s evidence for a number of reasons. It has concluded that it is more likely than not that if Colleague A had had a bad shift, she would have discussed this with her friend and colleague CD rather than with the Registrant, a Senior Paramedic who she found to be quite domineering and intimidating and was a comparative stranger to her, particularly as the conversation was only a few minutes in duration. The Panel therefore rejects the Registrant’s account that she had told him this and that he had sought to encourage her by touching her thigh with both hands in the way he described. The Panel also rejects the Registrant’s evidence that Colleague A was sitting on the passenger seat with both legs inside the vehicle. The Panel considers that it is more likely than not that Colleague A was re-fuelling the vehicle when the Registrant approached her and was sitting on the passenger seat with her legs out of the vehicle ready to release the pump when the diesel tank was full. In finding that Colleague A was sitting with her legs out of the vehicle, the Panel rejects the Registrant’s evidence as to how he touched Colleague A. In addition, the Panel has considered whether there were any motives for Colleague A to lie and has found that there is no evidence of any, nor were any suggested to her.

22. The Panel is satisfied that it is more likely than not that the Registrant put his hand between Colleague A’s legs at the top of her thighs and therefore finds Particular 1 proved.

Particular 2

23. The Panel has seen documentary evidence from the Trust’s sign-on system called Terrafix, which shows that Colleague A and the Registrant were working together on a two-man crew shift on 15 April 2019. Colleague A told the Panel that they had responded to a 999 call to attend a patient in a village called Fringinghoe. The Panel accepts Colleague A’s evidence that this was about nine to ten hours into their 12-hour shift. In supplementary questions in evidence in chief, Colleague A was asked to describe in more detail the location of where she said the Registrant had assaulted her. Colleague A’s evidence was that the patient lived in a ground-floor flat which was accessed through a lobby area. Colleague A was asked to describe the door, and without hesitation and in some detail, she recalled that the door had glass which was mottled and was reinforced with wires, and it was also curtained. This was slightly more detailed evidence than she had previously given when interviewed as part of the internal investigation. The Panel considers that Colleague A has a clear recollection of the time, space, and location of the incident on 15 April 2019.

24. The Registrant does not dispute that he was on a two-man crew shift with Colleague A on 15 April 2019, but his evidence is that what she alleges happened on a patient call-out towards the end of the shift did not happen. For the HCPC to discharge its burden of proving Particular 2, the Panel has to be satisfied on the balance of probabilities that Colleague A’s evidence is credible and reliable and should be preferred to the evidence of the Registrant, which is that the matters set out in sub-particulars a) to d) did not happen. There is no independent evidence to support either Colleague A’s account of what happened or the Registrant’s account that nothing happened. However, the Panel considers that its finding of fact in relation to Particular 1 provides support for Colleague A’s evidence in relation to Particular 2.


Particulars 2a), 2b), 2c) and 2d) are each found proved

25. Although the Panel has considered the specific actions alleged in each of the sub-particulars a) to d) of Particular 2 separately and reached separate conclusions in relation to each of them, it has concluded that those specific alleged acts and the alleged words spoken are, in effect, part of one action which took place in a matter of split seconds.

26. Up to the time of arriving outside the door of the patient’s flat, Colleague A describes the earlier part of the shift as being quite normal. According to Colleague A, there was no specific atmosphere or inappropriate conversations. She said they were working as “just colleagues”, although she did say that she had felt uncomfortable because of the incident in March 2019.

27. Colleague A’s evidence was that she and the Registrant had been standing side by side outside the patient’s door. She was on the left of the Registrant and had either been carrying or had the Corpuls monitoring machine on the floor next to her. The Registrant had the kit bag over his left shoulder and had both hands free. Colleague A said that the Registrant rang the doorbell with his right hand and then, as he moved his right hand away from the doorbell, had put it down her top inside her Paramedic uniform, inside her bra, and had touched her breast and her nipple. Colleague A said that the Registrant had said “that has got me going” or word to that effect. She said she had been completely shocked and had instinctively stepped back and raised her right arm which had the effect of either disengaging the Registrant’s right arm from inside her uniform or he had already removed it. Colleague A said that the door to the flat had opened almost immediately after that and before she had had time to react or say anything to him.

28. According to Colleague A, she had recently lost a lot of weight due to breaking up with her boyfriend. The Panel accepts this evidence and also that Colleague A was wearing a large unisex Paramedic shirt which had an open collar, which went into a “V” neck with buttons which started just below her collar bone. The Panel accepts that due to her weight loss, Colleague A’s shirt would have been a looser fit on her. Although the Panel did not see Colleague A and the Registrant to compare their respective heights, it accepts that Colleague A is about 5’8” and that the Registrant is taller than she is. The Panel has considered whether what Colleague A said had happened would have been physically possible given their respective positions and the fit of Colleague A’s shirt and it has concluded that it is more likely than not that it would have been possible, particularly as Colleague A says that the Registrant had used his right hand.

29. The Panel has also considered the extent to which, if at all, the fact that Colleague A did not either say anything to the Registrant by way of objection at the time, or at a later stage, or indeed report the matter to anyone until October 2019, impacts on her credibility and reliability as a witness. The Panel accepts Colleague A’s evidence that someone came out of the door immediately after the Registrant had removed his hand from her shirt and they had gone in to attend to the patient. The Panel accepts Colleague A’s evidence that she tried to forget the matter and block it out of her mind. She said she was really upset by it and did not want to talk about it.

30. Colleague A told the Panel that she should have got the Registrant to sign off her hours of work for 15 April 2019 at the end of the shift but had not done so. The Panel finds Colleague A’s reluctance to seek out the Registrant at that time to be behaviour which supports her account of how the Registrant had touched her that day.

31. The Panel is satisfied on the basis of Colleague A’s evidence, which it accepts, that the Registrant put his right hand into her shirt and into her bra (Particular 2a)), that he placed his hand on her breast (Particular 2b)), and that in doing this he made contact with her nipple (Particular 2c)). It also accepts that the Registrant said words to the effect of “that has got me going” (Particular 2d)).

32. In accepting Colleague A’s evidence, the Panel notes that she did not seek to exaggerate or embellish what she said the Registrant did. She made it clear that he had not cupped her breast. Colleague A also made it clear when she did not know or remember something. The Panel considers that this adds to her credibility.

33. In accepting Colleague A’s evidence, the Panel has rejected the Registrant’s evidence that nothing happened on this shift. The Panel notes that when interviewed about this matter in February 2020 during the Trust’s internal investigation, he appears to have given a different account of this incident in which he described moving a colleague out of the way with his right arm across them in order to protect them when someone had come out of a door abruptly. The Panel is aware that the notes of this interview are not a verbatim record of what was said and have therefore not given this apparent inconsistency any weight.

34. Accordingly, the Panel finds Particular 2 a), b), c) and d) proved.

Particular 3a)i) – Proved

35. The Panel accepts Colleague A’s evidence that there was more than one occasion on which the Registrant had said to her “you smell nice”, or words to that effect. Colleague A told the Panel that the Registrant had made this remark both before and after 15 April 2019 but could not say more about the circumstances. Colleague A said that she had taken the Registrant’s words as a “nice passing comment” or compliment and she had thanked him. She told the Panel that she had not taken the remark to have been sexual at the time it was made. Colleague A also told the Panel that the Registrant was not the only person to have said words to this effect to her.

36. At the outset of the hearing, the Registrant admitted that he had said words to the effect that Colleague A “smelt nice” and repeated that admission in his evidence before the Panel. He told the Panel that he could only recall one occasion when he believed he had hugged Colleague A and told her that she smelt nice and that this had been intended as a compliment. The Panel accepts the Registrant’s admission as to the one occasion that the Registrant can recall that he told Colleague A that she smelt nice.

37. The Panel is satisfied that it is more likely than not that on at least one occasion, the Registrant told Colleague A “you smell nice” or words to that effect and therefore finds that Particular 3a) i) is proved.

Particular 3a)ii) – Not Proved

38. The Panel heard evidence from Colleague A that around two weeks before the 15 April 2019 incident, she had broken up with her then-boyfriend and had lost a lot of weight. She said that the Registrant had commented on her weight loss and had told her that she looked good. Colleague A said she had taken the Registrant’s comments as a compliment. Colleague A’s evidence was that she could not recall when, but the Registrant had said to her “Your bum looks good in uniform” or words to that effect. In cross-examination, Colleague A could not recall when this had been, the circumstances or where it had been said to her, or the words used by the Registrant. The Registrant denied ever referring to Colleague A in the manner alleged.

39. The Panel does not consider that Colleague A has lied in her evidence on this matter but is concerned that her recollection was vague in terms of details as to when and where the Registrant made this remark to her. Colleague A told the Panel that other colleagues also made comments about her appearance and that when the Registrant commented on her appearance it was always in front of other colleagues and said in a jokey kind of way. The Panel considers that due to the delay and the fact that others made comments about her appearance, it could not be satisfied, on balance, that Colleague A has correctly remembered the terms in which the Registrant commented on her appearance.

40. Accordingly, the Panel has concluded on the evidence before it that the HCPC has failed to discharge the burden of proving this allegation and finds Particular 3a)ii) not proved.

Particular 3b) – Proved

41. The Panel accepts the evidence of both Colleague A and the Registrant that there were occasions when the Registrant hugged Colleague A. Colleague A said that this had not happened often and not on every shift. The Registrant said that he had hugged Colleague A as a form of greeting. It seems that it was not unusual at the Colchester Ambulance Station for colleagues to hug each other by way of greeting. On the occasions the Registrant hugged Colleague A this was done in front of other colleagues and Colleague A told the Panel that it had felt normal until the incident in April 2019, after which it had made her feel uncomfortable.

42. Particular 3b) also alleges that the Registrant not only hugged Colleague A but he also touched her buttocks. The Registrant denies that this ever happened. Colleague A’s evidence was that on some but not all of the occasions when the Registrant hugged her, he touched her buttocks. The Panel has decided that it accepts Colleague A’s evidence on this matter. It is of the view that whilst hugging a person as a form of greeting may be commonplace, it is not usual for the person giving the hug to then touch the other person’s buttocks. The Panel considers that it is more likely than not that the person whose buttocks were touched would remember this, especially if it happened on more than one occasion. The Panel therefore accepts Colleague A’s evidence in this regard and rejects the Registrant’s account.

43. Accordingly, the Panel is satisfied that it is more likely than not that the Registrant did, on more than one occasion, touch Colleague A’s buttocks.


Particular 4 – Proved (in relation to Particulars 1, 2a) to d), 3b) (touched Colleague A’s buttocks))
Particular 4 – Not Proved (in relation to Particular 3a)i) and Particular 3b) (hugged Colleague A))


44. The Panel has received and accepted legal advice in relation to sexual motivation. The Panel has had in mind the HCPTS Practice Note “Making decisions on a registrant’s state of mind”. In considering the Registrant’s purpose or motivation for touching Colleague A in the way he did, and in saying what he did to her, the Panel has applied the test set out in the case of Basson v. GMC [2018] EWHC 505 (Admin) and asked whether it is more likely than not that the Registrant’s actions/words were for his own sexual gratification, or in pursuit of a future sexual relationship.

45. The Panel takes the view that where it finds sexual motivation in respect of a particular, this may provide additional support for findings of sexual motivation in relation to one or more of the other particulars.

46. Having considered each sub-particular separately, the Panel has concluded that it is more likely than not that the Registrant’s actions in relation to Particulars 1, 2a) to d) and 3b) (touching Colleague A’s buttocks) were in pursuit of his own sexual gratification and that these actions were, therefore, sexually motivated. Although it does not affect the Panel’s decision that sexual motivation is proved in relation to the Particulars set out above, the Panel does not consider that it is more likely than not that the Registrant’s actions were in pursuit of a future sexual relationship with Colleague A (the second limb of Basson v GMC).

47. The Panel has also concluded that it is not more likely than not that the Registrant’s conduct in Particular 3 a)i) and 3b) (hugging Colleague A) was either in pursuit of his own sexual gratification or in pursuit of a future sexual relationship and therefore finds that his conduct was not sexually motivated.

48. Particular 1 - the Panel has no doubt that the Registrant’s motivation in touching Colleague A between her legs at the top of her thighs in the area of her groin, and moving his hand in such a way as to cause friction in her groin for up to 10 seconds without her consent, was for his own sexual gratification. The Panel has concluded that the Registrant’s touching of Colleague A on an intimate part of her body and in the circumstances found proved can only be described as sexual in its nature. There is no other plausible explanation. The Registrant’s conduct was therefore sexually motivated.

49. Particular 2a) to d) - the Panel is satisfied that it is more likely than not that the reason the Registrant put his hand into Colleague A’s shirt and bra, placing his hand on her breast and making contact with her nipple without her consent, was in pursuit of his own sexual gratification. These actions were each by their nature sexual and, therefore, were sexually motivated. The Panel is reinforced in its conclusion by the words uttered by the Registrant at the time, which show that his motivation was sexual. The words “that has got me going”, or words to that effect, show that the Registrant was fully aware of the sexual nature of this form of touching.

50. Particular 3 a)i) - the Panel is not satisfied that it is more likely than not that when the Registrant said to Colleague A words to the effect that she smelt nice that he did so in pursuit of his own sexual gratification or in pursuit of a future sexual relationship. The Panel is satisfied that the words were intended to be complimentary only and nothing more. Accordingly, the Panel has concluded on the evidence before it that the HCPC has failed to discharge the burden of proving Particular 4 as it relates to Particular 3 a)i).

51. Particular 3b) (hugged) - the Panel is not satisfied it is more likely than not that, when the Registrant hugged Colleague A on those occasions when he did not also touch her buttocks, he was doing so in pursuit of his own sexual gratification or in pursuit of a future sexual relationship. The Panel does not find the circumstances in which the hugging took place, or the Registrant’s motivation in relation to it, to have been anything other than a form of greeting. Accordingly, the Panel has concluded on the evidence before it that the HCPC has failed to discharge the burden of proving Particular 4 as it relates to Particular 3b) in respect of hugging Colleague A.

52. Particular 3 b) (touched buttocks) - the Panel is satisfied that it is more likely than not that on those occasions when the Registrant hugged Colleague A while at the same time touching her buttocks without her consent, he did so in pursuit of his own sexual gratification. The Panel has concluded that to touch a junior female colleague on the buttocks in the circumstances found proved is sexual in nature and it is therefore satisfied that the Registrant’s conduct was sexually motivated.


Decision on Grounds


53. In reaching its decision on the statutory ground of misconduct, the Panel has taken note of the submissions of both parties. It has received and accepted legal advice.

54. Ms Reid submitted that the Registrant had abused the trust of a colleague by making inappropriate sexual comments and inappropriately touching them sexually without consent. This conduct fell far short of what would be proper in the circumstances and what the public would expect of a registered Paramedic. Ms Reid submitted that the Registrant had breached standards 2.5 and 9.1 of the HCPC Standards of Conduct, Performance and Ethics (2016). Ms Reid referred the Panel to the case of Arunachalam v GMC [2018] EWHC 758 (Admin) in which cases involving sexual misconduct were referred to as being “inherently serious”.

55. Ms Bracken accepted that the Registrant’s conduct would amount to misconduct if the Panel were to find the Allegation proved.

56. The Panel is satisfied that Registrant’s conduct which it has found proved fell far below the high standards to be expected of a Paramedic and that it amounts to serious misconduct. The Panel has concluded that these were not either single or isolated departures from the standards expected of a Paramedic. There appears to have been something of a progression from non-sexually motivated hugs to what the Panel has found to be hugs accompanied by touching Colleague A’s buttocks, which occurred on more than one occasion and which were for the Registrant’s sexual gratification. The sexually motivated conduct became more serious in the incidents in March and April 2019.

57. The Panel is satisfied that the cumulative effect of the Registrant’s misconduct has impacted adversely on Colleague A, who told the Panel that she had felt “violated”, “completely disrespected”, “shocked”, and “quite stunned”. Colleague A said that the Registrant’s conduct had affected her personal relationships in such a way that she could now no longer stand the thought of anyone touching her breasts in the way the Registrant had done.

58. Particular 1 and Particular 4 - the Panel’s findings of fact in relation to Particulars 1 and 4 show that the Registrant touched Colleague A in an intimate part of her body for his own sexual gratification. At the time, Colleague A was a student Paramedic and the Registrant was a Senior Paramedic. There was a clear imbalance of power in their working relationship which the Registrant, as the senior professional, abused in acting as he did. The Panel has no doubt that the Registrant’s conduct amounts to misconduct

59. In relation to Particular 2a) to d) and Particular 4 - the Panel’s findings of fact in relation to Particular 2a) to d) and 4 show that the Registrant touched Colleague A again in an intimate part of her body, this time inside her clothes, for his own sexual gratification. Colleague A was still a student Paramedic at this time and the Registrant was a Senior Paramedic. As the senior professional, the Registrant abused the imbalance of power in their working relationship by acting as he did. The Panel considers that in acting as it has found that he did, the Registrant’s conduct created a potential risk of harm to patients. The effect of his actions on Colleague A could have been such that she was unable to work effectively in her role as a student Paramedic for the remainder of her shift that day. The Panel has no doubt that the Registrant’s conduct amounts to misconduct.

60. In relation to Particular 3a)i) - the Panel does not consider that the Registrant’s conduct in telling Colleague A that “you smell nice”, or words to that effect, fell far below the standards expected of a Paramedic. In these circumstances, the Panel does not find misconduct in relation to Particular 3a)i).

61. In relation to Particular 3 b) (hugged) - the Panel does not consider that the Registrant’s conduct in hugging Colleague A by way of a greeting fell far below the standards expected of a Paramedic. In these circumstances, the Panel does not find misconduct in relation to Particular 3 b) (hugged).

62. In relation to Particular 3b) (touching buttocks) and Particular 4 - the Panel’s findings of fact in relation to Particular 3b) and 4 show on more than one occasion when the Registrant hugged Colleague A, he also touched her buttocks for his own sexual gratification. The Panel considers that as the senior professional, the Registrant abused the imbalance of power in their working relationship in acting as he did. The Panel has concluded that the Registrant’s conduct amounts to misconduct.

63. In reaching its decision on misconduct, the Panel has had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standard is engaged and has been breached:

9 Be honest and trustworthy
Personal and professional behaviour
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

64. The Panel takes the view that the Registrant failed to make sure that his conduct justified the public’s trust and confidence in him and the Paramedic profession when he touched a junior colleague, Colleague A, in sexually motivated ways for his own sexual gratification.

65. Accordingly, the Panel finds the statutory ground of misconduct proved in this case.

Decision on Impairment


66. In reaching its decision on impairment, the Panel has had regard to the further evidence of the Registrant, the submissions of both parties, and the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. It has received and accepted legal advice. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

Submissions
67. Ms Reid submitted that on the personal component, the Registrant has demonstrated incomplete insight into his misconduct, has not shown genuine remorse, and has undertaken little remediation and so there is a real risk of repetition. Ms Reid further submitted that the Registrant has not demonstrated that he fully understands the impact of his misconduct on Colleague A, or on patients and colleagues, particularly student Paramedics. On the public component, Ms Reid submitted that cases involving findings of sexual motivation are “inherently serious” (Arunachalam v. GMC ibid) and that public confidence in the Paramedic profession and its regulatory process would be undermined if there was no finding of impairment in this case.

68. Ms Bracken submitted that the Registrant’s fitness to practise is not impaired on either the personal or public component. On the personal component, Ms Bracken submitted that the Registrant’s misconduct is capable of being remedied and referred to the fact that apart from the findings in this case, the Registrant was of good character and there had been no repetition of his misconduct in the period since he returned to work under an Interim Conditions of Practice Order. Ms Bracken invited the Panel not to hold it against the Registrant that due to the interim conditions he has not been permitted to work with female colleagues since his return to work, and so is unable to provide more comprehensive proof to show that there is no longer any risk that he would repeat his misconduct. Ms Bracken referred to the e-learning which the Registrant has undertaken and, whilst conceding that he could have done more by way of remedial action, she submitted that the Registrant’s intention is to continue to take self-development learning courses. Ms Bracken submitted that the Registrant wants to be treated as a person who intends to learn from these proceedings and that his attitude to learning is evidence of his insight into his misconduct.

69. Ms Bracken submitted that the Registrant’s evidence that this sort of conduct would not happen again was not empty words, as the Registrant understood that he, and only he, had put himself in the situation he now finds himself in. Ms Bracken submitted that this showed that the misconduct is unlikely to be repeated. Ms Bracken suggested to the Panel that it should assess the Registrant’s evidence in light of the fact that, as he told the Panel, the Registrant does not always find the right vocabulary with which to explain himself.

70. With regard to the public component, Ms Bracken submitted that this was a case where public confidence in the profession would not be undermined if there was no finding of impairment.


Decision

71. In relation to the personal component, the Panel first considered whether the Registrant’s misconduct has put patients at unwarranted risk of harm and whether, looking forward, the Registrant is liable to put patients at unwarranted risk of harm. It has already concluded that the patient on 15 April 2019 was potentially at risk of harm due to the impact of the Registrant’s conduct on Colleague A on that day. The Panel notes that this is not a case where there is evidence of concerns as to the Registrant’s clinical competence.

72. The Panel then considered whether the Registrant’s misconduct has brought the Paramedic profession into disrepute. The Panel is satisfied that findings of sexually motivated conduct can only bring the Paramedic profession into disrepute.

73. The Panel is also satisfied that the Registrant’s misconduct has breached one of the fundamental tenets of the profession, which requires its practitioners to conduct themselves appropriately in the workplace and to respect the dignity of their colleagues, who are entitled to work in a safe environment. In this case, the Panel has found the Registrant’s conduct to have included sexually motivated behaviour towards a junior work colleague.

74. The Panel has considered whether its findings show that the Registrant has in the past failed to act with the integrity expected of a Paramedic. The Panel is satisfied that the findings in this case relating to sexually motivated conduct towards a junior work colleague clearly show that the Registrant failed to act with the integrity expect of a professional person.

75. The Panel has also considered whether, looking forward, the Registrant is liable in the future to put patients at unwarranted risk of harm, and/or to bring the Paramedic profession into disrepute, and/or to breach one of the fundamental tenets of that profession, and/or to act without integrity. In reaching its conclusion on these matters, the Panel has considered evidence of insight, remorse, reflection, and the likelihood of repetition of the misconduct involved in this case.

76. The Panel is satisfied that the misconduct found in this case is capable of being remedied. The Panel is concerned that while the Registrant has given evidence of the steps he has taken by way of e-learning and taking online courses, he has not provided the Panel with any documentary proof of the nature and extent of that learning.

77. The Panel has considered whether the Registrant has insight into his misconduct and has concluded that he has shown little insight. The Panel accepts that it is difficult for a registrant who has denied serious allegations to demonstrate full insight when those allegations are, as it would appear they are in this case, still disputed. A registrant can however show a level of insight by acknowledging an understanding of the impact of the misconduct on those involved in it, on work colleagues, on patients, and on the wider public. A registrant can demonstrate this with learning and fully reflecting on the misconduct. The Panel considers that the Registrant has not yet fully understood or reflected on the full impact of his misconduct on Colleague A.

78. The Registrant has expressed remorse, but without having better insight than he currently has that remorse is only limited because it is based on a lack of proper understanding of the extent of the impact of his misconduct on not only Colleague A but also on his colleagues, patients, and the wider public interest. It appears that the Registrant’s remorse is partly for himself and the position he currently finds himself in as well as for Colleague A and the other interested parties. The Panel is concerned that there may be an attitudinal problem with the Registrant’s understanding of his misconduct. As attitudinal problems do not usually evaporate overnight, the Panel considers that there is a real risk of repetition until such time as that problem is resolved.

79. The Panel has concluded that because of the Registrant’s limited insight, lack of genuine remorse based on a full understanding of the gravity of his misconduct, and his failure to provide some evidence that he has taken appropriate steps to remedy his misconduct, there remains a real risk of repetition.

80. In these circumstances, the Panel has concluded that there is, at this time, a risk that in the future the Registrant is liable to put patients at unwarranted risk of harm, that he is liable to bring the Paramedic profession into disrepute, and to breach one of its fundamental tenets by not acting with integrity. In these circumstances, the Panel is satisfied that the Registrant’s fitness to practise is impaired on personal component grounds.

81. In relation to the public component the Panel has considered whether, given the misconduct found in this case, public confidence in the Paramedic profession and its regulatory body would be undermined if there was no finding of impairment in this case. The Panel has also considered whether it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case.

82. The Panel’s findings show that on at least three occasions, the Registrant touched Colleague A in pursuit of his own sexual gratification. Whilst the Panel is unable to date the precise start of this type of misconduct, it is concerned that there appears to be what may be a pattern of increasingly more serious misconduct involving sexual touching of a junior colleague. This has occurred in the workplace and the Panel is concerned that the Registrant took advantage of the power imbalance between himself and Colleague A and appears to have been testing the boundaries. The Panel considers that his behaviour escalated between March and April 2019. The Panel is also concerned that on 15 April 2019, there was a clear risk of potential harm to the patient as a consequence of his actions towards Colleague A. She was left shocked and distressed. The Registrant has minimised the impact of his actions on Colleague A and the patient. The Panel does not consider the Registrant’s response that the patient was not at risk because he was the Senior Paramedic and would have ensured that there was no danger to that patient to be a satisfactory answer. This is indicative of a lack of respect for Colleague A who, as a Student Paramedic, operated as a Paramedic under his supervision. It shows that the Registrant lacks insight into how his misconduct could impact on patients.

83. The Panel considers that a reasonable and informed member of the public would be shocked and dismayed if there was no finding of impairment in a case where a registrant in a senior role had behaved in a sexually motivated way towards a young student member of staff and where there was a real risk of repetition of that conduct. The Panel is satisfied that in order to maintain public confidence in the Paramedic profession and the regulatory process, it must make a finding of impairment on the public component. It is also satisfied that a finding of impairment on the public component is required to uphold proper standards of conduct and behaviour by sending out a message to practitioners that conduct such as this will not be condoned.

84. The Panel therefore finds, on the public component, that the Registrant’s fitness to practise is impaired.

85. Accordingly, the Panel finds, on both the personal and public component grounds, that the Registrant’s fitness to practise is impaired and the Allegation is well founded.


Decision on Sanction


86. In considering the appropriate and proportionate sanction in this case the Panel has had regard to the representations of both parties and to the Registrant’s recent reflective piece. The Panel was referred to, and has taken account of, the HCPC’s Sanctions Policy. The Panel has received and accepted legal advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect the public, to maintain confidence in the Paramedic profession and to uphold its standards of conduct and behaviour. The Panel has also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the nature and circumstances of the misconduct involved.

Submissions

87. Ms Reid submitted a skeleton argument in which she set out the relevant principles regarding the imposition of a sanction but, as is the HCPC’s usual approach at the sanction stage, did not advance any particular sanction.

88. Ms Bracken accepted that the Panel’s findings were such that these would attract a serious sanction. She submitted that a Suspension Order would be the appropriate and proportionate sanction in this case for two reasons: (i) that in its decision the Panel had concluded that the misconduct in this case was capable of being remedied and (ii) that while some insight had already been achieved, as this was an on-going process the time provided by a Suspension Order would allow the Registrant further time in which to reflect and return to work afresh. Ms Bracken submitted that the Registrant had done his best to reflect on his misconduct by voluntarily making efforts to educate himself to understand the impact of his actions on Colleague A and on other parties. She submitted that he had taken the proceedings seriously and had not been paying lip-service in his reflective piece. Ms Bracken submitted that the Registrant was a very intelligent man who had difficulties in articulating what he means and that in his reflective piece he had shown genuine learning about his misconduct which he had sought to express as best he could. Ms Bracken submitted that the Registrant’s recent reflections indicate that he is not going to act in a similar way in the future. She further submitted that a Striking Off Order would be disproportionate in the circumstances of this case.

Decision

89. The Panel has considered mitigating and aggravating factors. The Panel first looked at the mitigating factors. The Panel notes that there have been no previous professional findings against the Registrant in what has been a long career as a Paramedic.

90. The Panel considers the following to be aggravating factors:

- the significant emotional ongoing harm caused to Colleague A;
- a breach of trust in that there was a power imbalance between Colleague A who was a Student Paramedic at the relevant time and the Registrant who, while not her mentor, was a Senior Paramedic;
- a pattern of escalating unacceptable behaviour towards Colleague A which is demonstrated by the progression from inappropriate tactile touching to sexually motivated inappropriate touching of her in intimate areas of her body as the Registrant kept testing Colleague A’s boundaries;
- the Registrant has only the most limited level of insight into his misconduct and its impact on colleagues, service users, the Paramedic profession, and the wider public interest and has failed to express genuine remorse;
- the Registrant has not taken meaningful steps towards remedying his misconduct;
- there was the potential for harm to be caused to a service user as a result of the impact of his misconduct on Colleague A (in relation to the incident when the Registrant put his hand inside her work shirt and touched her breast and nipple) immediately before being admitted to premises to treat a service user.

91. The Panel has considered the available sanctions in ascending order of seriousness. It has decided that to take no action or impose a Caution Order in this case would not be appropriate or proportionate given that the misconduct was not isolated or limited, and nor could it be described as relatively minor in nature. The Panel is not able to conclude that there is a low risk of repetition because the Registrant has yet to show more than minimal insight into the causes of his misconduct or the impact of it on Colleague A, service users, his profession and the wider public. While the Registrant has, since the hearing in December 2021, sought through his reflective piece to show that he has taken some steps towards remedying his misconduct by undertaking relevant voluntary learning, the Panel is not satisfied that he has done so. The Panel is satisfied that to ensure public confidence in the profession is not undermined, it must consider a more severe sanction.

92. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy which states:

“A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.

93. The Panel has also had in mind paragraph 109 which states in relation to serious cases and the imposition of a Conditions of Practice Order:
“However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated.”

94. While the Panel has found that the misconduct in this case is capable of being remedied, it does not consider that the Registrant’s conduct was “minor”. The Panel considers that the Registrant has shown no meaningful insight into his misconduct, despite his recent reflective piece. There remains therefore, a real risk of repetition of the misconduct. The Panel has also concluded that it is not possible to devise appropriate, proportionate, realistic and verifiable conditions which would address the serious concerns regarding the Registrant’s inappropriate and sexually motivated behaviour in this case. The Panel also takes the view that given the nature and gravity of the misconduct in this case that it would undermine public confidence in the Paramedic profession and in the regulatory process if it were to impose a Conditions of Practice Order.

95. The Panel next considered whether to impose a Suspension Order. It has had in mind the following guidance from the HCPC’s Sanctions Policy:

“121 A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated;
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

96. The Panel has considered very carefully whether the Registrant’s very limited insight into his misconduct and the level of the risk of repetition rules this sanction out. The Panel has already expressed its view that the concerns in this case are capable of being remedied. The Panel has considered whether there is evidence that this Registrant is capable of remedying his misconduct. It has considered with care the recent reflective piece submitted by the Registrant for this hearing. The Panel has made all proper allowance for the fact that the Registrant may have difficulties in articulating what he means to say. However, it is very concerned that despite making abundantly clear in paragraph 76 above that it was looking for “evidence” of remediation, the Registrant has not provided any documentary proof of e.g., appropriate courses taken; attendance at seminars or learning modules. The Registrant’s reflective piece shows that he has done some “self-learning”, but it does not appear that he has genuinely accepted or understood the impact of his conduct on Colleague A, or the wider public interest. The Panel is concerned that the Registrant felt it necessary to look up the meaning of the word “remorse” and then proceed to do a critical analysis of this in his reflective piece, while failing to apply it to himself. The Panel considers that this is indicative of a lack of meaningful insight. The Panel has found it difficult to understand from the reflective piece what it is, apart from hugging Colleague A, the Registrant accepts about his conduct. The Panel was troubled by the Registrant’s references to certain behaviours which he suggests may have been acceptable 40 years ago and were no longer so. The Panel considers that this indicates how little the Registrant has understood his misconduct and how he has sought to minimise, deflect, and distance himself from it. The Panel has reached the conclusion that whilst the misconduct may be capable of being remedied, the Registrant is not capable of remedying it. In these circumstances, the Panel has concluded that a Suspension Order is not the appropriate and proportionate sanction in this case.

97. The Panel has also concluded that a Suspension Order even for a period of 12 months would not be appropriate or proportionate to maintain public confidence in the Paramedic profession or its regulatory body. Such an order would not send out an appropriate message to the profession about this type of misconduct. The Panel considers that a reasonable and informed member of the public would expect a more severe sanction in circumstances where a senior practitioner in a position of trust effectively targeted a more junior female colleague, testing the boundaries of how far he could indulge in inappropriate conduct towards her for his own sexual gratification.

98. The Panel has therefore concluded that the only appropriate and proportionate sanction is an order striking the Registrant off the Register. The Panel has considered the Sanctions Policy where, in paragraphs 130, it is stated that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving” e.g., for sexual misconduct.

99. The Panel has also had in mind paragraph 131 which states:

“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory profession. In particular where the registrant:
• lacks insight
• continues to repeat the misconduct
• is unwilling to resolve matters.

100. The Panel considers that the Registrant has shown in his recent reflective piece that he has an attitudinal problem which whilst it may not mean that he is “unwilling” to resolve matters, suggests that he is incapable of doing so.

101. The Panel is satisfied, based on the Registrant’s lack of meaningful insight and the nature and gravity of the allegation, involving as it does serious sexually motivated misconduct towards a junior colleague, that to ensure the public’s confidence in the Paramedic profession and in its regulatory process, and in order to uphold proper standards of conduct in the profession, it is appropriate and proportionate to order that the Registrant’s name be struck off the register.

Order

That the Registrar is directed to strike the name of Mr Kenneth Tovee from the Register on the date that this order comes into effect.

Notes

Interim Suspension Order imposed

Hearing History

History of Hearings for Kenneth Tovee

Date Panel Hearing type Outcomes / Status
25/01/2022 Conduct and Competence Committee Final Hearing Struck off
07/12/2021 Conduct and Competence Committee Final Hearing Adjourned part heard