Mr Iain Gallacher
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Allegation
As a registered Paramedic (PA051533) your fitness to practise is impaired by reason of misconduct. In that:
1. Between 1 May 2015 and 9 October 2015 you did not maintain professional boundaries and/or communicate appropriately with Colleague A, in that you:
a. Said to Colleague A and another employee in response to a comment on the weather that it was hot that ‘yeah you are, you both are’ or words to that effect;
b. Told Colleague A she should break up with her boyfriend and marry you instead;
c. Said to Colleague A ‘don’t worry, I still fancy you’ or words to that effect;
d. Said to Colleague A ‘come here’ or words to that effect and/or put your arms around Colleague A;
e. Put your hand on Colleague A’s shoulder;
f. Kissed Colleague A on the cheek.
2. On a date unknown in 2015 you did not maintain professional boundaries and/or communicate appropriately with a Patient D, in that you said: “you look beautiful, I would still take you to bed” or words to that effect.
3. On a date unknown in 2015 you did not maintain professional boundaries and/or communicate appropriately with Colleague B, in that on one or more occasions you:
a. leaned over Colleague B unnecessarily;
b. brushed Colleague B’s hand;
c. brushed past Colleague B;
d. made contact with Colleague B’s bottom.
4. Between 30 September 2020 and 25 December 2020, you did not maintain professional boundaries and/or communicate appropriately with Colleague C, in that you:
a. Bumped into Colleague C;
b. Pinched Colleague C’s buttock.
5. On 17 March 2021 you did not maintain professional boundaries and/or communicate appropriately with Colleague C, in that you:
a. Touched Colleague C on the upper torso and/or ribs area;
b. Subsequently walked past Colleague C on one or more occasions for no apparent reason.
6. Your conduct at any or all of allegations 1 – 5 above was sexually motivated.
7. The matters set out in paragraphs 1 – 6 above constitute misconduct.
8. By reason of your misconduct your fitness to practice is impaired.
Finding
Preliminary Matters
1. The Panel has been convened to undertake the substantive hearing of the allegations made against the Registrant, Mr Iain Gallacher, a Paramedic.
Service of the notice of hearing
2. The Panel was shown an unredacted copy of the email dated 8 August 2022, sent to the Registrant and his representative informing him of the date, time, and manner in which it was proposed this hearing should be conducted. The Panel was satisfied that this communication constituted good service of the Notice of Hearing.
Proceeding in the absence of the Registrant
3. After the Panel announced its decision that there had been good service of the Notice of Hearing, the HCPC Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. With regard to this application, the Panel accepted the advice it received from the Legal Assessor and took into account the factors identified in the relevant HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. Having carefully considered the matter, the Panel decided that the hearing should proceed notwithstanding the absence of the Registrant. The reasons for this decision were as follows:
• The date of the hearing had been communicated to the Registrant and his then-representative on 8 August 2022.
• On 6 October 2022, the Registrant wrote a document entitled, “For the attention of the panel hearing this case”, in which he stated that he would not be able to attend the hearing. He explained that both work commitments and family responsibilities had resulted in him coming to that decision.
• The Registrant did not apply for the present hearing to be adjourned, nor did he contend that the difficulties he faced attending the present hearing would not apply were the hearing to be held at another date in the future.
• The Panel therefore concluded that the Registrant had voluntarily absented himself from the present hearing, and also that there were no grounds on which it could conclude that he would be likely to engage in a hearing to a greater extent were the hearing to take place on a future occasion.
• When assessing the degree of disadvantage to the Registrant arising from his absence, the Panel noted that he identified the written submissions he wished the Panel to consider by reference to numbered pages in the hearing bundle. It followed from this not only that the Registrant understood that he could make representations in writing, but had done so. It also meant that he had full knowledge of the case the HCPC intended to advance.
• There were four witnesses available to give evidence and some of the issues were alleged to have occurred seven years ago.
For all these reasons the Panel decided that the public interest in an expeditious resolution of the allegations outweighed any disadvantage arising from the Registrant’s absence. It followed that the hearing should proceed.
Amendment of the allegation
4. As referred to this Committee by the Investigating Committee, particular 5(b) alleged, “Subsequently walked past Colleague C on three or more occasions for no apparent reason.” In July 2022 the Registrant and his then-representative were put on notice that the HCPC desired to amend the wording of that sub-particular so that it would allege that the behaviour complained of was walking past on one or more occasions. The Registrant’s then-representative replied stating that there was no objection to the proposed amendment.
5. At the commencement of the hearing, the HCPC Presenting Officer made the application to amend particular 5(b). The Panel was satisfied that there would be no risk of prejudice to the Registrant were the amendment to be allowed and that it was an appropriate change. The Panel accordingly acceded to the application.
The stages in which the allegation would be decided
6. Before the case was opened, the Panel was informed that it was the HCPC’s desire that the Panel should approach its decision on the Allegation by initially deciding the factual elements of the case and announcing its decision on those elements, before proceeding to address any issues that might subsequently arise. The Panel was content to approach the case in that manner.
Background
7. The matters complained of by the HCPC in this case are alleged to have occurred during the period when the Registrant was employed by South Central Ambulance Service NHS Foundation Trust (hereafter “the Trust”). He was employed by the Trust as an Emergency Care Assistant (“ECA”) in May 2015. He subsequently applied to become a Student Paramedic and was offered that position in the summer of 2018. He qualified as a Paramedic in December 2020 and was registered as such with the HCPC on 3 January 2021. From the time he qualified as a Paramedic until he was dismissed from his employment, the Registrant was employed by the Trust as a Newly Qualified Paramedic. It is clear from this short chronology that some of the matters alleged by the HCPC against the Registrant occurred before he became a Paramedic and was registered with the HCPC. The Panel accepted the advice it received that the relevance of this fact should more properly be addressed in the event that it is necessary to consider elements of the Allegation beyond the factual issues.
8. The HCPC first became aware of matters of concern as a result of a self-referral by the Registrant dated 7 April 2021. He informed the HCPC that he had been suspended from his employment following a complaint made against him. Subsequently, a further referral was made by the Trust on 15 July 2021 following the decision made at an internal disciplinary process to dismiss the Registrant.
9. The suspension from his employment notified to the HCPC by the Registrant occurred on 2 April 2021. It resulted from a complaint prompted by the behaviour alleged in particular 5 of the Allegation being considered by the Panel. That complaint also gave rise to the matters alleged by particular 4, as they concerned the same alleged complainant. When these two incidents were investigated in the context of the Trust’s internal disciplinary process, the matters alleged by particulars 1, 2, and 3 came to light, and they were subsequently communicated to the HCPC.
10. The Panel considers that the detail contained in the particulars of the Allegation mean that it is not necessary to give anything other than a brief explanation of the roles of the anonymised individuals referred to in the allegation. Colleague A (particular 1) is a female Paramedic. Colleague B is also a female Paramedic. The Registrant and both Colleague A and Colleague B were, at the relevant time, employed by the same Trust. In addition to the matters that are said to have been directed towards Colleague B personally (particular 3), she is also the witness relevant to Patient D (particular 2). Colleague C is a female registered nurse who, at the relevant time, was working in the hospital where the alleged incidents concerning her occurred.
Decision on Facts
11. The Panel accepted the advice it received from the Legal Assessor as to the approach it should take to the decisions it was required to make. In particular, the Panel remembered throughout that it is for the HCPC to prove matters on the balance of probabilities; at no stage was the Registrant required to disprove a matter alleged against him.
12. In reaching its decisions on the facts, the Panel had regard to all the evidence presented to it. That included not only the oral and written evidence presented by the HCPC, but also the evidence of the Registrant to which he drew the Panel’s attention in his statement dated 6 October 2022. To the extent that the Registrant advanced a positive case in his written submissions, the points he made were put to the witnesses called to give evidence before the Panel. Furthermore, the photographs he provided of the corridor in the Accident and Emergency Department of the hospital were put to Colleague C when she was asked about the matters she gave evidence about.
13. There are three specific matters in relation to its assessment of the evidence the Panel should make clear:
• First, it heeded the advice it received as to the caution that should be exercised when considering hearsay evidence.
• Secondly, the Panel wholly ignored evidence that could be construed as critical of the Registrant when it had no relevance to the factual particulars being considered.
• Thirdly, although the fact that an internal Trust disciplinary process had taken place, and that it had resulted in the Registrant’s dismissal, were matters revealed by the hearing bundle, those matters played no part in the Panel’s decisions; it was for the Panel to make its own independent judgements on the basis of all the evidence, evidence that included the hearsay statements produced by Colleague X.
14. The HCPC relied on the evidence of four witnesses. Colleagues A, B and C, whose roles have already been described, were called to give evidence before the Panel. The other witness was Colleague X, a Paramedic and Team Leader in the Trust’s Operations Department. Colleague X undertook the investigation in the Trust’s internal disciplinary process. It had been arranged for Colleague X to attend to give evidence before the Panel, but on the first day of the hearing the HCPC Presenting Officer stated that he would have no questions to put to Colleague X. Accordingly, the HCPC Presenting Officer asked the Panel to indicate whether there would be issues the Panel would wish to explore with Colleague X; if there were not, Colleague X could be de-warned and his witness statement (and accompanying exhibits) could be introduced as hearsay evidence. After considering the matter, the Panel informed the HCPC Presenting Officer that it did not wish to ask Colleague X any questions. Accordingly, he was not called as a live witness before the Panel.
15. The stem of each of the first five particulars alleges that the Registrant “did not maintain professional boundaries and/or communicate appropriately”. In order to answer the question of whether the stem of each of those particulars was proved by the HCPC, the Panel took the view that it was first necessary to decide whether the behaviour alleged had been proved before returning to the stem. The wording of the contention of sexual motivation in particular 6 meant that it was necessary to address the issue of sexual motivation in relation to each of the preceding five particulars.
Particular 1
1. Between 1 May 2015 and 9 October 2015 you did not maintain professional boundaries and/or communicate appropriately with Colleague A, in that you:
a. Said to Colleague A and another employee in response to a comment on the weather that it was hot that ‘yeah you are, you both are’ or words to that effect;
b. Told Colleague A she should break up with her boyfriend and marry you instead;
c. Said to Colleague A ‘don’t worry, I still fancy you’ or words to that effect;
d. Said to Colleague A ‘come here’ or words to that effect and/or put your arms around Colleague A;
e. Put your hand on Colleague A’s shoulder;
f. Kissed Colleague A on the cheek.
16. The incidents alleged in this particular occurred when both the Registrant and Colleague A were based at Bracknell Ambulance Station. The Registrant had recently commenced his employment with the Trust as an ECA and Colleague A had qualified as a Paramedic approximately two years earlier.
17. The comment about being “hot” occurred after a colleague commented on the temperature. The comment about breaking up with her boyfriend occurred during the first shift Colleague A and the Registrant worked together and followed him complimenting her on her appearance and saying that he was attracted to her. The remaining comments and actions occurred after Colleague A and the Registrant had, on a number of occasions during a single shift, attended the Accident and Emergency Department of the Royal Berkshire Hospital, during which the Registrant had paid considerable attention to a nurse on duty on more than one occasion. After they left the hospital, Colleague A jokingly said words to the effect of, “You’re like a teenage boy! You seem to be going after every woman you see”. Following that comment by Colleague A, the Registrant said, “I’m not talking to you now”. Colleague A thought that he was joking, but he did in fact remain quiet for the remainder of the shift. Colleague A asked the Registrant more than once whether he was OK. When she asked towards the end of their shift and they were heading back to the Ambulance Station, he said words to the effect of, “Don’t worry, I still fancy you”. After they arrived back at the station, Colleague A got out of the passenger door of the ambulance and was facing the ambulance when the Registrant appeared from her right, said “Come here”, put his arm around her, put his hand on her left shoulder, and kissed her on her right cheek.
18. On 9 October 2015, Colleague A wrote an email to a manager employed by the Trust in which she raised concerns about the Registrant. Her email contained each element alleged by sub-particulars (a) to (f). The evidence Colleague A gave before the Panel was consistent with her email sent on 9 October 2015 and with the witness statement she made for these proceedings. She acknowledged that ‘banter’ took place, but she expressed the view that the Registrant’s behaviour towards her went beyond what was normal and was sexualised towards her personally.
19. Included in the Registrant’s written submissions is this statement made in relation to this particular: “In all honesty, I don’t remember it as it was 7 years ago and any comments or responses I make would be speculation, not fact. It was many years ago and it would be lying or trying to fit facts into what has been said.” He continued, “I was never shown the email sent to management and the allegations made were never discussed at length and I was not given time to prepare a response.” The Panel feels bound to express the view that if by these remarks the Registrant was intending to say that he was unaware of, or had forgotten, elements of this particular, that would be surprising in the light of an email entitled “INFORMAL MEETING” sent to him on 14 October 2015. Included in that email is the following paragraph, “I informed you that several younger females had expressed concerns about your behaviour and one in particular has mentioned that this behaviour also concerns a female member of staff at the Royal Berkshire Hospital in Reading. The incident in question occurred in the Accident and Emergency department and was witnessed by the person that you was crewed on the day. They have said that you lack awareness of personal space and some of your comments are perceived to be inappropriate. Your colleague at the time challenged you about this outside the department and she claims that you spent the rest of the shift not talking to her. At the end of the shift whilst removing her PPE from the vehicle you approached her put your arms around and kissed her on the cheek she said that was completely uninvited. You acknowledged this incident and remember it to be correct.” (emphasis added)
20. The Panel accepted the evidence of Colleague A as a truthful account of her experiences with the Registrant and was satisfied on the balance of probabilities that each of the matters particularised in sub-particulars (a) to (f) occurred.
21. So far as the stem of particular 1 is concerned, the Panel is satisfied that all of sub-particulars (a) to (f) constituted failures to maintain professional boundaries. Sub-particulars (a) and (d) additionally demonstrated inappropriate communication.
22. Particular 1 is proven.
Particular 2
2. On a date unknown in 2015 you did not maintain professional boundaries and/or communicate appropriately with a Patient D, in that you said: “you look beautiful, I would still take you to bed” or words to that effect.
23. Colleague B qualified as a Paramedic in the year before this incident. The Registrant was working with her as an ECA, and a third employee of the Trust was present. They attended a middle-aged woman (Patient D) who presented with a lower leg injury that was suspected to be a fractured ankle. It was decided to take Patient D to hospital. Before the remark complained of was uttered, Colleague B recalled there being some banter between the Registrant and Patient D, banter that was somewhat more flirtatious on the part of the Registrant. As Colleague B attended Patient D in the ambulance, the latter got upset about the prospect of having a cast on her leg during her daughter’s forthcoming wedding, and the Registrant spoke the words included in the sub-particular in that context. When they were spoken, Colleague B and the third member of staff present looked at one another in disbelief that such a thing could be said. It was also Colleague B’s evidence that Patient D clearly registered what had been said. It is fair to record that she did not register a complaint, but she did look startled, and from the point when the Registrant spoke those words, Patient D was less talkative. After the crew left the hospital, Colleague B spoke to the Registrant about the remark he made, saying words to the effect, “You need to watch what you say around patients because that could have gone really negatively”. Colleague B was unable to recall whether the Registrant responded to her words, but she thought he might have merely walked away.
24. This particular is one of those in respect of which the Registrant has stated he has no recollection. He did not advance a positive case in relation to it.
25. The Panel found the evidence of Colleague B to be careful, measured, and consistent with her witness statement. The Panel was satisfied on the balance of probabilities that the Registrant spoke the words alleged to Patient D.
26. The words spoken represented both a failure to maintain professional boundaries and a failure to communicate appropriately.
27. Particular 2 is proven.
Particular 3
3. On a date unknown in 2015 you did not maintain professional boundaries and/or communicate appropriately with Colleague B, in that on one or more occasions you:
a. leaned over Colleague B unnecessarily;
b. brushed Colleague B’s hand;
c. brushed past Colleague B;
d. made contact with Colleague B’s bottom.
28. The evidence of Colleague B was that during the same shift in which the Registrant spoke the inappropriate words to Patient D, he repeatedly brushed past her in small spaces in the ambulance, on a number of occasions making contact with her bottom. It was Colleague B’s impression that it was his upper leg or crotch that made contact with her bottom. He also repeatedly brushed her hand, and on a number of occasions when she went to pick up something that she could easily have reached herself, the Registrant said, “I’ll get that for you”, leaning across her to do so.
29. When Colleague B gave evidence, the Panel asked her about the type of vehicle in which the alleged events had occurred and the positions in it of both her and the Registrant. The Panel found the evidence of Colleague B to be clear and her account of the Registrant positioning himself in confined spaces that could not comfortably accommodate two people to be compelling. The conclusion of the Panel was that the HCPC had proved on the balance of probabilities that the Registrant had deliberately and unnecessarily acted as alleged in this particular.
30. Each of the sub-particulars (a) to (d) represented a failure to maintain professional boundaries.
31. Particular 3 is proven.
Particulars 4 & 5
4. Between 30 September 2020 and 25 December 2020, you did not maintain professional boundaries and/or communicate appropriately with Colleague C, in that you:
a. Bumped into Colleague C;
b. Pinched Colleague C’s buttock.
5. On 17 March 2021 you did not maintain professional boundaries and/or communicate appropriately with Colleague C, in that you:
a. Touched Colleague C on the upper torso and/or ribs area;
b. Subsequently walked past Colleague C on one or more occasions for no apparent reason.
32. The Panel considered that it was appropriate to explain its decisions in relation to these two particulars together, as they both concern allegations of inappropriate behaviour on the part of the Registrant directed towards Colleague C.
33. It has already been explained that Colleague C is a registered nurse. She qualified as a nurse approximately a year before the incidents alleged by these particulars and was working in the Accident and Emergency Department of the Royal Berkshire Hospital. For the avoidance of doubt, Colleague C was not the nurse who is referred to in paragraph 17 above.
34. On 17 March 2021, Colleague C was working in the ‘majors’ area of the Accident and Emergency Department. At approximately 1:00pm she was working on a computer that was standing on a wheeled trolley in the corridor of that area. She was working on the computer with her back to the corridor, and although there were other members of staff on duty at that time, there was nobody immediately around her. As she worked on the computer, she felt someone touch her with both hands on her upper torso on either side of her ribs. It was a fairly light touch, but one she was able to feel. The unexpected contact made her jump and look around, but by the time she did so, the person she believed to have touched her was halfway down the corridor, approximately 10 metres away. She was able to observe that the person was wearing an ambulance uniform with Paramedic epaulettes. The person turned to look at her and made eye contact. She was able to give a description of the person, and, knowing that the individual had Paramedic status, was able to determine from patient documentation the name of the person she believed to have touched her. Despite the fact that the individual was wearing a mask, she instantly recognised him as the same person who had touched her bottom a few months earlier. When Colleague C was explaining what had happened to her to another member of staff, she claimed that the Registrant repeatedly and unnecessarily walked past her three or four times in the space of between about five and ten minutes.
35. Colleague C reported the matter, and it was this report that resulted in the Registrant being suspended from his employment.
36. As has already been stated, when the incident occurred on 17 March 2021, Colleague C instantly recognised the person she believed to have touched her on either side of her upper torso as the same person who had touched her bottom in late 2020. Colleague C could not be specific about the date of this incident. She knew that it was not earlier than late September 2020, but before Christmas 2020. In evidence she was asked to comment upon the Registrant’s case advanced in relation to this incident and was shown the photographs submitted by the Registrant. She described two paramedics wheeling a stretcher out of a cubicle into the corridor. The Registrant was at the rear of the stretcher, a Trust colleague of the Registrant being at the front facing forwards and therefore unable to see what occurred behind. She considered what occurred to have been deliberate and described the bumping into her and the pinch of her buttock to be “all in one motion”.
37. Before describing the case presented by the Registrant to the Panel in relation to these incidents, his responses to Colleague X in the Trust internal investigation should be described. Colleague X interviewed the Registrant on three occasions. The first interview took place on 15 April 2021 and was of a general nature because as at that date Colleague C had not signed her statement, and Colleague X understandably did not consider it appropriate to question the Registrant in detail until he was in possession of her signed statement. Nevertheless, on 15 April 2021 the Registrant stated that he had not been inappropriate with anyone during his shift on 17 March 2021, and he had no negative history with any employee at the Royal Berkshire Hospital. The following day, 16 April 2021 (less than a month after the second incident), Colleague X had Colleague C’s signed statement and again interviewed the Registrant. Colleague X asked the Registrant if he had any changes to what he had said the previous day. The Registrant stated that he did not. He stated that he did not remember the incident and that he did not know Colleague C, although might recognise her if he saw her. He said, “It didn’t happen, I don’t remember it happening”. A third interview took place on 29 April 2021, but before it took place, on 25 April 2021, the Registrant submitted a statement in which he denied touching Colleague C on her backside but admitted prodding her in the ribs. When he was interviewed, Colleague X asked why the Registrant had stated in his earlier interviews that he had no memory of the incident, to which the Registrant stated that he had started to remember things. In relation to prodding Colleague C in the ribs he stated that when he did it, he said “boo”, and that he intended it to be a “hello”, a “completely innocent action”. He stated that he had a “general relationship” with Colleague C and that they had spoken and shared jokes.
38. In the case he has presented to the Panel, the Registrant wrote the following: “I accept that I did act inappropriately in that I poked her in the ribs, but this was horseplay that I thought was with someone who I knew and who I got on with on professional level. I realise now that this was inappropriate and ill judged. I am sorry that I did this and would really welcome the opportunity to apologise to the nurse. I have never had the opportunity to apologise”. With regard to the allegation contained in particular 4 that he pinched Colleague C’s buttock, the Registrant wrote, “As for pinching a bottom. No that’s not my style, I don’t do that. With regards to the allegation in general, The nurse who made the allegations could not give
• A date
• A time
• Any witnesses
• Any CCTV evidence
This was supposed to have happened in a busy A&E?
In addition, she did not make the allegation for a further 3 months based on the dates she thinks it happened. If it had happened as was alleged surely she would have reported it immediately. I fully believe this has been invented to justify and give weight to [particular 5].”
39. The Panel found the evidence of Colleague C to be clear, consistent, and measured. She acknowledged that there was limited space in the corridor where she was working on those two separate days. In relation to the earlier incident, she accepted that it was not unknown for people to bump into one another, although she stated that it would be usual for someone to announce the fact that they needed space to do what they intended. In relation to the Registrant’s presence in the corridor after he touched her on 17 March 2021, she acknowledged that Paramedics could have legitimate cause to walk along the corridor, and also that she had a recollection of the Registrant carrying linen on one of the occasions she saw him. Nevertheless, she maintained a coherent and credible account that the complaints she made were valid. The Panel asked her about the fact that she did not report the earlier incident, and her reply was that she told her partner what had happened but did not escalate a complaint as at the time she was exhausted. Given the fact that the incident occurred during the pandemic when she was working shifts from 7:00am to 7:30pm where, she said, “you were lucky to get a break” due to the “constant, full-on pressure”, the Panel did not consider in those circumstances that the absence of a complaint undermined the clear account given by Colleague C.
40. The Panel considered the Registrant’s case that he had a friendly relationship with Colleague C and, that being the case, his prodding her in the ribs was to be taken as a friendly “hello”. However, the Panel rejected the Registrant’s case in this respect for two distinct reasons. First, the Panel preferred the evidence of Colleague C, who was clear that she did not have such a relationship with the Registrant. Secondly, for the Trust internal disciplinary process a table was prepared demonstrating when the Registrant was working as a Paramedic and Colleague C was on duty in the Accident and Emergency Department. After 1 October 2020 and before 17 March 2021 there were only four occasions (namely, 2 October 2020, 11 December 2020, 18 February 2021 and 8 March 2021) when their shifts coincided. The Panel found it inherently unlikely that this very limited overlapping work could have resulted in the sort of relationship contended by the Registrant.
41. The conclusion of the Panel was that each element of both particular 4 and particular 5 were established on the balance of probabilities.
42. So far as the stems of particulars 4 and 5 are concerned, the Panel found that both sub-particulars of both particulars represented failures to maintain appropriate boundaries.
43. Particulars 4 and 5 are both proven.
Particular 6
6. Your conduct at any or all of allegations 1 – 5 above was sexually motivated.
44. The Panel accepted the advice it received that in order to decide if any or all of the allegations contained in particulars 1 to 5 were sexually motivated, they should ask the question whether, taking those particulars separately, the HCPC had satisfied them that the Registrant acted as he did in pursuit of sexual gratification or in pursuit of a future sexual relationship.
45. Applying this approach:
• The Registrant was sexually motivated when he spoke the words and had physical contact with Colleague A (particular 1). The words spoken and actions in the context in which they occurred allowed no other sensible explanation.
• The words spoken to Patient D were clearly sexual in nature. However, when the Panel considered whether the only sensible explanation for the speaking of those words was that the Registrant was seeking personal sexual gratification or acting in pursuit of a sexual relationship with Patient D, the conclusion of the Panel was that it was not. The evidence before the Panel was that the Registrant is a man who had no concept of appropriate professional behaviour, and the Panel considered that the words spoken to Patient D were as consistent with the Registrant seeking to reassure the patient about the concerns she had about her appearance at the forthcoming wedding as they were with sexual motivation on his part. That being the case, the Panel did not consider that particular 6 was proven with regard to particular 2.
• The behaviour towards Colleague B established by the finding in respect of particular 3 could have no other realistic explanation than sexual motivation.
• Having found that the Registrant did not have the acquaintanceship with Colleague C that he claimed, the Panel also concluded that there could be no explanation other than sexual motivation for the physical contact he had with her, as found proved by particulars 4 and 5.
46. It follows from these findings that particular 6 is proven, although particular 2 was not included in that finding.
Decision on Misconduct
47. After the Panel handed down its written determination on the facts, it allowed the HCPC Presenting Officer time to read the document before receiving his submissions on misconduct and current impairment of fitness to practise. Before adjourning to afford the HCPC Presenting Officer this opportunity, the HCPC Presenting Officer invited the Panel to receive a further witness statement. He informed the Panel that it had been agreed with the Registrant’s representative while he was still acting for him that the statement could be introduced at this stage of the proceedings. It was a statement made by Colleague C dealing with the effect of the Registrant’s actions. The Panel agreed to receive the witness statement, which was substantially redacted.
48. When the Panel reconvened to receive the HCPC Presenting Officer’s submissions, he stated that the HCPC’s case in relation to misconduct was as follows:
• The Panel should approach the issue without applying a burden or standard of proof; the matter was to be decided in accordance with the Panel’s professional judgement based on the findings of fact which had, of course, been decided by the application of a burden and standard of proof.
• He submitted that the legislation governing this process allowed the Panel to consider matters that occurred before the Registrant’s registration with the HCPC. As will be explained, this submission was endorsed by the legal advice received and accepted by the Panel.
• He relied upon a number of the standards contained in the HCPC’s “Standards of conduct, performance and ethics”. The standards relied upon had been identified in paragraph 24 of the written HCPC Case Summary prepared in advance of the hearing. The HCPC Presenting Officer relied upon those standards and, as they were identified by reference to the version of the “Standards of conduct, performance and ethics” published in January 2016, submitted that the substance of those standards would be reflected in the preceding version of that document.
• He submitted on behalf of the HCPC that the Registrant’s behaviour warranted a finding of misconduct.
49. The Panel accepted the advice it received from the Legal Assessor in relation to the decision it was required to make in relation to misconduct. In particular:
• The terms of Article 20(3) of the Health Professions Order 2001 were clear, and allowed the Panel to consider behaviour that occurred before the Registrant was registered with the HCPC.
• There was no settled definition of misconduct, and it was for the Panel to say in the particular circumstances of the case whether the behaviour found proven crossed the threshold properly to be categorised as misconduct. The Panel could approach the question by deciding whether an act or omission on the part of the Registrant represented a serious falling short of the standards to be expected of an HCPC registrant. It might also approach the issue by deciding whether fellow professionals would regard the Registrant’s behaviour to have been deplorable.
• The Panel could determine whether there had been a serious falling short from the expected standards by reference to the published codes and standards bearing upon a registrant’s professional work.
• The Panel could aggregate the factual findings in order to decide if the totality of them represented misconduct, particularly if the Panel considered that they had been alleged and found to represent a pattern of behaviour on the part of the Registrant, and none were too insignificant properly to be considered in an overall finding.
50. The Panel began its deliberations on misconduct by deciding whether it would be appropriate to view the factual findings made in their totality. The conclusion of the Panel was that it would be appropriate for the following reasons:
• All but one of the particulars (particular 2) represented behaviour that was sexually motivated.
• Every individual element of the facts found proved represented a failure to maintain professional boundaries.
• None of the individual elements of those facts represented a matter that was insufficiently serious to be included in a global finding of misconduct.
51. The Panel viewed the Registrant’s behaviour:
• To have been very serious. It would have been serious even had there not been the evidence of the effect of his behaviour on Colleague A, Colleague B, and Colleague C as revealed by the evidence of each of them.
• To have been repeated.
• To have extended over a period of over five years.
52. The Panel then considered the standards documents that were relevant. It considered that three are worthy of mention, namely:
• The Trust’s “Dignity at Work Policy (Bullying and Harassment)”. In the judgement of the Panel this document was highly relevant for three distinct reasons:
o It governed the way the Registrant should have been conducting himself from the very beginning of his employment by the Trust in 2015 as an ECA.
o It was very clear. It stated that all employees of the Trust had the right to be protected from unwanted, unreasonable, and/or offensive conduct that affects them. In clear terms it explained what bullying and harassment meant. It stated that it meant, “… any unwanted behaviour, whether intentional or unintentional, that makes someone feel intimidated, degraded or humiliated or offended. It is not necessarily always obvious or apparent to others so it can happen in the workplace without an employer’s awareness. The key issues are that it is unsolicited, unwelcome and fails to respect the dignity and rights of others”.
o The final reason why this document was highly relevant is that when the Registrant attended the informal meeting on 14 October 2015 (the meeting which resulted in the email quoted in paragraph 19 above), the manager conducting the meeting issued the Registrant with this policy, highlighted various sections of it, and suggested that the Registrant should read it.
• The Newly Qualified Paramedic (NQP) Consolidation Period Framework. This document explicitly required that dignity and respect should be exhibited towards service users, that an ability to maintain appropriate boundaries should be demonstrated, that there should be consistent behavior with integrity and sensitivity, and that there should be demonstrated communication with colleagues that is both appropriate and effective.
• The HCPC’s “Standards of conduct, performance and ethics”. In the view of the Panel, the relevance of this document is encapsulated in the requirement that HCPC registrants must ensure that their personal and professional behaviour justifies the public’s trust and confidence not only in the individual registrant, but also in the profession of that registrant.
53. However, despite having considered the various policies and standard documents referred to in the immediately preceding paragraph, the conclusion of the Panel is that this is not a case that requires forensic dissection or minute analysis of these standards. This is because the Panel is entirely satisfied that the Registrant’s behaviour represented a gross departure from the manner in which any professional person should conduct themselves, irrespective of the level at which they are working, and whether or not that behaviour is expressly prohibited by a policy or standard issued by an employer or professional regulator.
54. Quite apart from the breaching of both published and ordinary standards of behaviour that the public can expect professionals to comply with, the Panel also considered how fellow Paramedics would view the Registrant’s behaviour. It came to the clear conclusion that they would consider it to have been deplorable.
55. The Panel is satisfied that it is appropriate to categorise the behaviour found proven as representing misconduct.
56. It follows that the Panel must proceed to consider the issue of current impairment of fitness to practise.
Decision on Impairment
57. The HCPC Presenting Officer invited the Panel to consider six factors when it considered this issue. They were:
• The issues were not isolated, but rather extended from 2015 until 2021.
• They concerned a number of different individuals, three separate colleagues and a patient.
• The members of staff concerned were relatively newly qualified when the matters occurred.
• The incidents occurred when the Registrant was on shift and when the colleagues were on their shifts; it followed that the events were directly linked to the Registrant’s practice.
• The Registrant’s behaviour resulted in a real and significant impact on the colleagues to whom it was directed.
58. The HCPC Presenting Officer also submitted that there was a risk of repetition, and in support of that submission relied upon four matters:
• The facts suggest that the Registrant has little or no understanding of the concept of appropriate professional boundaries. In order to reassure a panel that past behaviour of this sort would not be repeated, significant evidence would be required, yet in this particular case there was no such evidence.
• The behavioural concerns were repeated after the Registrant was warned about his behaviour.
• There was a lack of evidence of remediation and a lack of evidence about the Registrant’s current practice. There were no up-to-date references or testimonials.
• Without doubting the Registrant’s right not to attend the hearing and to deny allegations made against him, it was submitted that the inability of the Panel to form an assessment of him was a significant fact.
59. The HCPC Presenting Officer submitted that, although when viewed in isolation the individual actions that have been decided to have been sexually motivated might not be at the most grave end of the spectrum of sexual misconduct, nevertheless it was appropriate to consider the repetition and period over which they occurred, factors that might suggest a pattern of such behaviour was present in this case.
60. When the Panel began its deliberations, it first decided whether the breaches identified were capable of being remediated and whether in fact they had been remediated.
61. The conclusion of the Panel was that, despite the fact the behaviour suggested an attitudinal deficit and continued over a lengthy period of time, were a person to be seriously committed to addressing the shortcomings it would be possible for the matter to be remediated.
62. However, when the Panel considered whether the Registrant had in fact remediated the misconduct identified, it concluded that he had not. The reasons for this conclusion were as follows:
• As has already been indicated, the behaviour reflected in particular 1 was addressed by a manager in the informal meeting on 14 October 2015. Amongst other matters, the Registrant was given a copy of the Trust’s document entitled, “Dignity at Work Policy (Bullying and Harassment)”. In an email to the manager dated 16 October 2015, the Registrant committed to being “…more mindful in my dealings with all colleagues in the future”.
• The words Colleague A spoke to the Registrant at around this time to the effect of, “You’re like a teenage boy! You seem to be going after every woman you see”, should also have been seen as a low-key warning about inappropriate behaviour.
• Colleague B’s comments to the effect, “You need to watch what you say around patients because that could have gone really negatively”, might also have been heeded by a person who would wish to address their behaviour.
• Yet, despite each of these warnings in 2015, the Registrant repeated inappropriate behaviour in late 2020 and on 17 March 2021.
• With the exception of the dig in the ribs (particular 5(a)), the Registrant has denied the totality of the criticisms made against him. In circumstances where a person denies that events occurred, whether it is because they genuinely do not remember them or because they knowingly refuse to take responsibility for them, there can be little confidence that they will not recur.
• Even the acknowledgement of the inappropriate behaviour reflected in particular 5(a) must be viewed in the context of the Registrant’s case that he had an acquaintanceship with Colleague C that resulted in him thinking at the time that it was an acceptable form of saying, “hello”. As has been stated, Colleague C does not acknowledge that she had any such knowledge of the Registrant.
• There is no evidence before the Panel that active and positive steps have been taken by the Registrant towards ensuring that he would not repeat, in the future, behaviour of the sort proved against him. The Panel did not feel able to put any significant weight on the character testimonial introduced by the Registrant as it was written in 2018, before the two serious incidents concerning Colleague C.
63. These findings resulted in the Panel concluding that the Registrant has very little insight into his behaviour.
64. In relation to the informal meeting on 14 October 2015, the Registrant subsequently expressed an apology to the manager with whom he met that day, writing, “I am very very sorry if I have made anyone uncomfortable or invaded their personal space”. In the Registrant’s written submissions presented to this Panel, there was remorse expressed only in relation to particular 5(a) and, for the reasons explained above, even that remorse was predicated on a false basis. Further, there has been no remediation. In all the circumstances, the Panel has concluded that there is a significant risk of repetition.
65. Applied to the factors suggested by Dame Janet Smith in the Fifth Shipman Report, the Registrant has in the past brought his profession into disrepute and is liable to bring it into disrepute in the future; he has also in the past breached a fundamental tenet of his profession, and he is liable in the future to do so again.
66. In all the circumstances, the Panel is satisfied that the Registrant’s fitness to practise is impaired upon consideration of the personal component.
67. The Panel is also satisfied that when the public component is considered, the Registrant’s fitness to practise is impaired. Fair-minded members of the public, knowing all the circumstances, would expect the Registrant’s ability to practise to be restricted. The Panel would be failing in its duty to declare and uphold proper professional standards were a finding of impairment of fitness to practise not made. It follows from these findings that public confidence in the Paramedic profession would be diminished if no finding of impairment of fitness to practise was made.
68. The finding of current impairment of fitness to practise has the consequence that the misconduct allegation is well founded, with the result that the Panel must proceed to consider the issue of sanction.
Decision on Sanction
69. After the Panel handed down its written determination on misconduct and impairment of fitness to practise, it allowed the HCPC Presenting Officer time to read the document before receiving his submissions on sanction.
70. When the HCPC Presenting Officer made his submissions on sanction, he made it clear that the HCPC did not submit that the Panel should apply any particular sanction; he submitted that the appropriate sanction would be a matter for the Panel’s judgement.
71. The HCPC Presenting Officer submitted that when making its decision the Panel should move from the least restrictive sanction upwards, ensuring that any sanction would be no more severe than the circumstances require, and that it should be proportionate. He reminded the Panel of the importance of considering the HCPC’s Sanctions Policy when making its decision. He took the Panel to various sections of that document, but the Panel does not consider it necessary to summarise his submissions in that regard as they will be described when the Panel explains its decision on sanction.
72. The Panel accepted the advice it received from the Legal Assessor as to the imposition of a sanction. Accordingly, the Panel accepted that a sanction should not be imposed to punish a registrant against whom a finding has been made; the proper purpose of a sanction is to protect the public, to maintain a proper degree of confidence in the registered profession and the regulation of it, and to declare and maintain proper professional standards. A finding that an allegation is well founded does not of itself require the imposition of a sanction. Therefore, the first question to be addressed is whether the findings made in the particular case require the imposition of a sanction. If they do, the available sanctions must be considered in an ascending order of seriousness until one is reached that appropriately addresses the proper sanction aims just identified. As the finding in the present case is one of misconduct, the entire sanction range up to, and including, a striking off order is available.
73. The Panel first considered whether there were any matters that could be described as mitigating factors. In its decision hitherto the Panel has referred to two occasions when apologies have been expressed by the Registrant. However, the first of those expressions was couched in qualified terms of “if I caused offence”, thereby demonstrating a failure to acknowledge the true seriousness of what had occurred, and, for the reasons already explained, in relation to the apology concerning particular 5(a), it was based on a false assertion as to the relationship between the Registrant and Colleague C. In these circumstances, the Panel finds the mitigating value of these apologies to be truly minimal.
74. So far as aggravating factors are concerned, the Panel found the following to be relevant:
• A lack of insight.
• An absence of remorse.
• An absence of remediation.
• A very real impact on the three colleagues concerned in particulars 1, 3, 4, 5, and 6. It was Colleague A’s evidence that the Registrant’s behaviour made her feel scared, unsafe, and vulnerable. She would not accept the offer to work extra shifts if she would be required to work with the Registrant. Colleague B’s attitude towards the Registrant can be gauged by the fact that her “heart would sink” if she found that she had been rostered to work with him. She would seek to swap shifts if she had been crewed to work with the Registrant and felt significant anxiety at the prospect of doing so. Colleague C similarly felt anxiety at the prospect of going to work after 17 March 2021 lest she should encounter the Registrant, and the prospect of doing so was one of the factors that caused her to go to work in a different hospital. The Panel concluded that the effect on these three colleagues engaged paragraph 76 of the Sanctions Policy, which provides as follows under the heading “Sexual Misconduct”:
“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 threating or intimidating someone. The misconduct can be directed towards … colleagues …”.
75. Applying these findings to the sanction decision, the Panel concluded that this is a case in which a sanction is required. Furthermore, a caution order would be wholly insufficient to protect potential colleagues and patients from the substantial risk that the Registrant would repeat behaviour of the type found against him. Additionally, it falls far short of maintaining public confidence in the profession or the regulation of it.
76. The Panel also concluded that behaviour of the sort which the Registrant presents a risk of repeating is not behaviour that can sensibly be constrained by the imposition of conditions of practice. Furthermore, as recently as 6 October 2022, the Registrant wrote a document for the consideration of the Panel in which he stated that he has ceased to work as a Paramedic. For these reasons, the Panel concluded that a conditions of practice order would not be an appropriate sanction.
77. The Panel next considered whether a suspension order would be appropriate, and in that regard it considered paragraph 121 of the Sanctions Policy and the factors suggested there as being typical of the type that would be expected for such an order to be imposed. This is indeed a case that represents a serious breach of the HCPC’s “Standards of conduct, performance and ethics”. But that apart, none of the suggested factors apply. The Registrant does not have insight and there is a high likelihood that the issues will be repeated. Far from there being evidence that the Registrant is likely to be able to resolve or remedy his failings, there is positive evidence (given the warnings given in 2015) that he is either unable or unwilling to remedy them.
78. The Panel therefore considered whether a striking off order should be made, and in that regard considered paragraphs 130 and 131 of the Sanctions Policy. This is a serious case involving sexual misconduct, where the Registrant lacks insight, is one in which there was a pattern of repeated behaviour, and he is unwilling (or unable) to resolve matters.
79. After very careful consideration, the Panel has concluded that the only appropriate sanction in this case is one of Striking Off. No other sanction is likely to ensure that the Registrant will be prevented from repeating unacceptable behaviour. That being the case, the Panel is satisfied that it is a proportionate response to the findings made.
Order
The Registrar is directed to strike the name of Mr Iain Gallacher from the Register on the date this Order comes into effect.
Notes
Interim Order
Application
1. After the Panel announced the decision that the sanction to be imposed would be a striking off order, the HCPC Presenting Officer applied for an interim suspension order to cover the period before the striking off order comes into effect while the Registrant’s appeal rights are extant.
2. The Panel accepted the advice it received that before it could consider the merits of the application, it would be necessary to address two preliminary matters, namely: (i) to be satisfied that it would have jurisdiction to make the order sought; and (ii) that it would be appropriate to consider the matter in the absence of the Registrant.
3. As to the former, the Notice of Hearing email sent on 8 August 2022 stated, under the heading “Interim Orders”, the following, “Please note that if the Panel finds the case against you is well founded and imposes a sanction which removes, suspends or restricted your right to practise, it may also impose an interim order on you (under Article 31 of the Health Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect”. The Panel is satisfied that this afforded the Registrant an opportunity to make representations on the issue, and that accordingly the Panel has jurisdiction to consider the matter.
4. As to whether it would be appropriate to consider the application in the absence of the Registrant, the Panel concluded that it would be. The factors already described in relation to proceeding with the substantive hearing apply equally to this application. By the very nature of the order sought, there is a clear public interest in considering the issue without undue delay and there are no grounds on which the Panel could assume the Registrant would wish to make representations as to why an order should not be made if he was given an opportunity to do so.
5. So far as the merits of the application are concerned, the Panel accepted that the default position established by the legislation is that when a substantive sanction is imposed, there should be no restriction on a registrant’s ability to practise while their appeal rights remain outstanding. It follows that there must be a positive case why this default position should be departed from. Any relevant factors should be assessed by reference to the grounds that can justify the making of an interim order, which in the circumstances of the present case are two, namely: (i) that it is necessary for protection of members of the public; and (ii) that it is otherwise in the public interest.
6. When the Panel considered whether those two grounds were met in the present case, it concluded that they were. For the reasons already explained, the Registrant presents as a risk of repeating inappropriate behaviour of the sort found to be proved, and colleagues have a legitimate right to be protected from the risk of such behaviour. Furthermore, the Panel is satisfied that fair-minded members of the public would consider that the findings in this case are of such a degree of seriousness that they should be addressed by an interim order while appeal rights remain outstanding. It follows from these findings that an interim order is required.
7. The Panel considered whether the interim order could be imposed as one of interim conditions of practice, but concluded that it could not for the reasons already explained in relation to a substantive conditions of practice order. It follows that the Panel decided that an interim suspension order is required in the present case.
8. As to the length of the interim order, the Panel determined that it should be for the maximum period of 18 months. An order of that length will not prejudice the Registrant; the order will fall away automatically if he does not appeal within the initial 28 days period, but, if he does appeal, it could take 18 months for the appeal to be finally determined.
Decision
9. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
10. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Mr Iain Gallacher
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
16/11/2022 | Conduct and Competence Committee | Final Hearing | Struck off |