Gary Ellis

Preliminary Matters
Service
1.          The Panel was satisfied that the Registrant had been properly served with notice of the hearing dated 1 June 2022 in accordance with the Rules.

Proceeding in the Registrant’s absence
2.          Ms Sheridan made an application for the hearing to proceed in the Registrant’s absence. The Panel was provided with an email dated 20 June 2022 from the Registrant to the HCPC in which he stated that he would not attend the hearing and would not be represented.
3.          The Panel took into account the submissions by Ms Sheridan. The Panel had regard to the HCPTS Practice Note on Proceeding in the Absence of the Registrant and accepted the advice of the Legal Assessor. The Panel was satisfied that the Registrant had waived his right to attend the hearing. The Registrant had not applied for an adjournment. In the Panel’s judgement, no useful purpose would be served by adjourning the hearing to another date and it would be in the interests of justice to proceed without delay. Accordingly, the Panel granted the application to proceed in the Registrant’s absence.

Application to amend
4.          Ms Sheridan made an application to amend the allegation in respect of a number of typographical errors. The Panel was satisfied that the amendments were of a minor nature and did not in any way alter the substance of the allegations against the Registrant. In the Panel’s judgement, no injustice would be caused to the Registrant by allowing the amendments and the application was therefore granted. The amendments are highlighted in the particulars of allegation set out above.

Background
5.          The Registrant is registered with the HCPC as a Paramedic. He was employed by the East Midlands Ambulance Service NHS Trust from September 2002 and had been seconded to the role of Clinical Operations Manager from December 2018 until June 2020.
6.          On 6 April 2020, the Registrant was arrested by Nottinghamshire Police in relation to allegations of harassment and disclosure of private sexual photographs and films on social media with intent to cause distress to another. At the same time, the police seized the Registrant’s laptop, which was IT equipment belonging to the Trust.
7.          On 8 April 2020, the Registrant reported sick for work due to gastrointestinal problems.
8.          On 13 April 2020, the Registrant notified his line manager, MS, of the fact of his arrest and the seizure by the police of his work laptop. On 14 April 2020 MS reported this to AM, who was employed by the Trust as Service Delivery Manager.
9.          The Registrant’s disclosure gave rise to concerns on the part of the Trust that he had delayed disclosing his arrest and the fact that his work laptop had been seized by the police. There was also a concern that the Registrant had claimed sickness absence from work on 8 April 2020 shortly after he had been arrested.
10.      AM commissioned an Early Resolution Procedure. AM asked WB, who was employed by the Trust as an Ambulance Operations Manager,  to conduct a meeting as part of this process on 9 July 2020 in line with the Trust’s Disciplinary Policy and Procedure.
11.      Prior to the meeting on 9 July 2020, MS conducted a fact-finding exercise for which purpose he took a statement from the Registrant on 9 June 2020.
12.      On 16 September 2020, the Registrant submitted a self-referral form to the HCPC, having been charged by Nottinghamshire Police with offences of harassment and disclosure of private sexual photographs and films with intent to cause distress.
13.      On 21 October 2020, the Registrant was convicted of the following charges at Nottingham Magistrates Court:
a)    Harassment of another
b)    Disclosure of private sexual photographs and films with intent to cause distress.
14.      On 9 December 2020 at Nottingham Crown Court the Registrant was sentenced in relation to his convictions on 21 October 2020 to 3 months imprisonment for the offence of harassment and 12 months imprisonment concurrent for the disclosure of sexual photographs and films with intent to cause distress to another. The sentence of imprisonment was suspended for 24 months. In addition he was subject to a restraining order for 5 years, prohibiting him from contacting the injured party directly or indirectly via social media and publishing/posting any information or photographs online of the injured party.
15.      Following the outcome of the Registrant’s sentencing at the Crown Court, AM commissioned a full disciplinary investigation due to the serious nature of the charges. AM appointed WB as Investigating Officer. As part of her investigation on 19 January 2021 AM interviewed the Registrant in the presence of his Union representative and an HR Advisor.
16.      On 5 February 2021 the Registrant was again arrested by the police and remanded in custody for further offences of posting on the internet sexual photographs and films involving the same victim and breach of the restraining order imposed on 9 December 2020.
17.      On 8 March 2021, the Registrant was convicted of the following charges at Nottingham Crown Court:
a)    Harassment of another
b)    Breach of a restraining order on conviction
18.      On 8 March 2021, the Registrant was also found to be in breach of the suspended sentence previously imposed on him at Nottingham Crown Court on 9 December 2020.
19.      In relation to these matters, the Registrant was sentenced to a total of 30 months imprisonment together with a restraining order of indefinite duration.
20.      With regard to the Trust’s disciplinary proceedings against the Registrant,  a disciplinary hearing took place on 13 April 2021 in the absence of the Registrant.

The evidence
21.      The Panel was provided by the HCPC with a hearing bundle which included the witness statements of WB and AM, together with the documents which they exhibited, including:
·       the certificates of the Registrant’s convictions
·       the record of the Registrant’s interview by MS on 9 June 2020
·       the record of WB’s meeting with the Registrant on 9 July 2020
·       WB’s Investigation Report
22.      In addition, the Panel heard oral evidence from the WB and AM.
23.      The Registrant did not provide the Panel with any statement or representations.

Decision on the facts
24.      The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so the particulars of the allegation must be proved on the balance of probabilities. The Panel took into account the submissions by Ms Sheridan on behalf of the HCPC and accepted the advice of the Legal Assessor.
25.      In relation to particulars 1, 2 and 3, the Panel had regard to Rule 10(1)(d) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 which provides that “where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction ….. shall be admissible as proof of that conviction and of the findings upon which it was based”.

Particular 1:
“On 21 October 2020, at the Nottingham Magistrates’ Court you were convicted of:

a. Harassment of another

b. Disclosure of private sexual photographs and films with intent to cause distress”.  Proved
26.      This particular was proved by the certificate of conviction dated 5 January 2021, which was not disputed by the Registrant.

Particular 2:
“On 8 March 2021, at the Nottingham Crown Court you were convicted of:

a. Disclosure of private sexual photographs and films with intent to cause distress

b. Breach of a restraining order on conviction”. Proved

 
27.      This particular was proved by the certificate of conviction dated 7 June 2021, which was not disputed by the Registrant.

Particular 3:
“On 8 March 2021, you were found to be in breach of a suspended sentence order previously made at the Nottingham Crown Court on 21 October 2020, for:

a. Harassment of another

b. Disclosure of private sexual photographs and films with intent to cause distress”. Proved
28.      This particular was proved by the certificate of conviction dated 7 June 2021, which was not disputed by the Registrant.

Particular 4:
“You did not immediately notify The East Midlands Ambulance Service NHS Trust (Trust) that your Trust IT equipment had been seized by the police”. Proved

29.      When interviewed by MS on 9 June 2020,  the Registrant admitted that his work laptop was taken from him by the police at the time of his arrest on 6 April 2020. He repeated this admission at the meeting conducted by WB on 9 July 2020 and acknowledged that he had not notified the Trust that his laptop had been seized by the police until he spoke to MS on 13 April 2020. It follows that particular 4 is proved.

Particular 5:
“You reported gastrointestinal problems as the reason for your sickness absence on 8 April 2020, following your arrest on 6 April”. Proved
30.      At the interview of the Registrant by MS on 9 June 2020 the Registrant acknowledged that he had reported sickness with “D & V” (diarrhoea and vomiting) on 8 April 2020. This was confirmed by the Trust’s sickness record. It follows that particular 5 is proved.

Particular 6:
“Your conduct in relation to particulars 4 and 5 is dishonest”. Proved in relation to particular 4 but not in relation to particular 5

 
31.       With regard to particular 4, the Registrant stated when interviewed by MS on 9 June 2020 with regard to his arrest on 6 April 2020: “The police had taken all the computers. I thought I would have had them returned within a week. I thought this would have allowed me to return to work without having to tell anyone and disclose it.” It follows from the Registrant’s admission that he wilfully withheld from the Trust information concerning the seizure of his laptop in order to cover up the fact of his arrest and his absence from work. In the Panel’s judgement, the Registrant’s conduct and state of mind was dishonest by the standards of ordinary decent people. Accordingly, the dishonesty alleged in particular 6 is proved in relation to particular 4.

32.      With regard to particular 5, there was no evidence before the Panel that the Registrant was not suffering from gastrointestinal problems when he reported sickness absence on 8 April 2020. This was not a matter which was investigated at the time or subsequently. Accordingly, the Panel was unable to find dishonesty proved in relation to particular 4.

Decision on grounds
33.      The Panel went on to consider whether the facts found proved in relation to particulars 4, 5 and 6, or any of them, amounted to misconduct.

34.      The Panel was mindful that the question whether the proven facts constituted misconduct are matters for the Panel’s professional judgement, there being no standard or burden of proof.

35.      The Panel took into account the submissions on behalf of the HCPC and accepted the advice of the Legal Assessor.

36.      With regard to particulars 1, 2 and 3, the Panel found the Registrant to have been in breach of the following standards of HCPC Standards of Conduct, Performance and Ethics (2016):
 

·       Standard 2.7: “You must use all forms of communication appropriately and responsibly, including social media and networking websites”

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

37. With regard to particular 4, the Panel accepted the evidence of AM that the Registrant would have completed the statutory and mandatory training as required of all Trust employees. AM stated that she would have expected the Registrant in his role as Clinical Operations Manager to have full awareness of the Trust’s Disciplinary Policy which at section 5.1.4 provides that “An employee who is arrested or charged and/or cautioned with a criminal offence must inform their line manager as soon as possible”. In the Panel’s judgement, the Registrant’s withholding of the information of his arrest and seizure by the police of his work laptop for a period of 7 days was a wilful and flagrant breach of Trust policy and constituted misconduct.

38. With regard to particular 5, there was no evidence to contradict the Registrant’s claim that he was suffering from gastrointestinal problems as the reason for his reporting sickness absence on 8 April 2020. Accordingly, the Panel was unable to find misconduct in relation to particular 5.

39. With regard to particular 6, it follows from the Panel’s finding that the Registrant was dishonest in respect of particular 4 and that his dishonesty also constituted misconduct.

40. In summary, the Panel found particulars 4 and 6 to constitute misconduct and that such misconduct was serious.

Decision on impairment

41. The Panel took into account the submissions on behalf of the HCPC.  The Panel had regard to the HCPTS Practice Note on “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

42. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct and/or convictions, the Panel took into account both the “personal” and “public” components of impairment. The “personal” component relates to the Registrant’s own practice as a Paramedic, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

43. With regard to the “personal” component, the Panel noted that the Registrant had engaged in a repeated course of criminal conduct which resulted in his receiving a sentence of imprisonment for a period of 30 months on 8 March 2021. He has provided no evidence to the Panel of insight or remorse as to the negative impact of his behaviour on his victim or the reputation of the profession. He has provided no evidence that he has attempted in any way to remediate his behaviour. In the Panel’s judgement, his repeated pattern of misconduct can properly be described as attitudinal and there is a risk that it will be repeated in the future. It follows that the Registrant’s fitness to practise remains impaired with regard to the “personal” component.

44. The Panel considered that the Registrant’s conduct in harassing another person and posting private sexual photographs and films with intent to cause distress could properly be described as “deplorable” by the standards of ordinary, decent members of the public. His course of conduct in that regard constituted criminal offences for which he was convicted and sentenced by the courts. His misconduct was compounded by repeating those offences in breach of a restraining order and in breach of a suspended sentence of imprisonment. The gravity of these offences was reflected by the sentence of imprisonment for a period of 30 months imposed on 8 March 2021.

45. The Panel also found the “public” component of impairment to be satisfied in this case. A member of the public, knowing the nature of the Registrant’s criminal offences for which he was convicted, his repeated offending in breach of a restraining order and suspended sentence of imprisonment and the fact that he was sentenced on 8 March 2021 to an immediate custodial sentence of 30 months, would undoubtedly expect some restriction to be placed on his registration. Public confidence in the profession and in the Regulator would be undermined if there were no finding of impairment.

46. Accordingly, the Panel finds that the Registrant’s fitness to practise is impaired having regard to both “personal” and “public” components.

Decision on sanction

47. The Panel took into account the submissions by Ms Sheridan on behalf of the HCPC. The Panel received no information or representations with regard to sanction from the Registrant.

48. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

49. By way of mitigation:

·       the Panel took into account that the Registrant had been in continuous employment as a Paramedic with the Trust since 2002 and had a previously unblemished record

·       the Registrant had made some early admissions in the course of the Trust investigation

50. By way of aggravating factors:

·       the Registrant had demonstrated a pattern of behaviour amounting to harassment and sexual misconduct by posting sexual photographs and films against the injured party. His behaviour was targeted against that individual and was intended to cause her distress. It also constituted a breach of the privacy to which that person was entitled in respect of their previous relationship. The Registrant’s harassment and sexual misconduct against the victim continued despite a restraining order imposed by the court and in breach of a suspended prison sentence. In the Panel’s judgement there is a significant risk of repetition

·       By committing further offences pending the Trust investigaton into his initial disclosure, and when he was being supported in his practice by the Trust, the Registrant committed a breach of trust in relation to his employer

·       The Registrant has provided no evidence of remorse, insight, reflection  or remediation. He has expressed no awareness of, or regret for, any harm caused to the injured party or the reputational damage caused to his colleagues, his employer or the profession at large

·       The Registrant’s dishonesty in withholding information as to his arrest continued from 6 April 2020 to 13 April 2020 and only came to light when he realised that he could no longer conceal the fact that his work laptop had been seized by the police. His dishonest concealment of his arrest was intended to avoid damaging his  employment status with the Trust and was therefore for personal gain

·       In the Panel’s judgement, although the Registrant’s misconduct did not directly put service users at risk of harm, his criminal convictions and misconduct were so serious that members of the public would hesitate to call upon a Paramedic for assistance if they were aware that a Paramedic with such a criminal record were permitted to be registered as a member of the profession. Public protection was thereby undermined by the Registrant

51.  The case is too serious for the Panel to take no further action.

52. Mediation is not relevant.

53. A Caution Order would not reflect the seriousness of the Registrant’s convictions, his dishonesty and misconduct.

54. A Conditions of Practice Order would not be appropriate because the Panel could not formulate any conditions which would address the serious concerns regarding the Registrant’s criminal convictions and misconduct. Given the Registrant’s breach of a restraining order and suspended sentence of imprisonment, the Panel would have no confidence in his compliance with any conditions of practice.

55. The Panel considered whether to impose a Suspension Order but, in light of its conclusion as to the attitudinal nature of the Registrant’s misconduct, his lack of remorse, insight or remediation, and the consequent risk of repetition, the Panel decided that a Suspension Order would not be appropriate.

56. The Sanctions Policy states that a striking off order is a sanction of last resort for serious, persistent and deliberate acts including:

·       Dishonesty

·       Abuse of professional position

·       Sexual misconduct

and “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 process. In particular where the registrant:

·       Lacks insight

·       Continues to repeat the misconduct

·       Is unwilling to resolve matters”.

57. In the Panel’s judgement all the indicative criteria for a Striking Off Order are present in this case. The public is entitled to expect members of the profession to behave with decency, honesty and integrity, all of which qualities were conspicuously lacking in the Registrant’s conduct towards the victim of his criminal behaviour. In the Panel’s judgement, the Registrant’s misconduct was so serious as to be incompatible with his remaining on the Register.

58.Whilst the Panel took full account of the financial and other hardship to the Registrant, the need to protect the public and the wider public interest must take priority over the Registrant’s interests. The Panel concluded that the appropriate sanction is a Striking Off Order.

ORDER: That the Registrar is directed to strike the name of Mr Gary R Ellis from the Register on the date this order comes into effect

Interim Order

1.          Ms Sheridan on behalf of the HCPC made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.

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

3.          Given the Panel’s findings that the Registrant’s actions are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

4.          The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

5.          This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal. This Interim Suspension is for a period of 18 months.

History of Hearings for Gary Ellis