Simon Trafford

Preliminary Matters:

Special Measures

1. The HCPC reminded the Panel that a Direction on Special Measures had been made. This involves that the Colleagues X and Y witnesses should not be able to see the Registrant, or that he can see them. Accordingly, this would require the Registrant to leave the MS Teams video call and join by telephone instead when Colleagues X and Y give their evidence. Neither party wished for the Direction to be reopened.

Privacy

2. Ms O’Connor on behalf of the HCPC applied for those parts of the Hearing that involved the health of Colleague X, Y or the Registrant to be held in private. There was already a Direction made for the evidence of Colleague X and Y to be entirely in private.
3. There was no objection from Ms Wright to this application, or to reopen the Directions already made.
4. The Panel having listened to the submissions and taken the Legal Assessor’s advice decided that issues related to health do not need to be heard in public. It is fair and just that the privacy of individuals is protected where their health is concerned. This does not require the entirety of the hearing to be held in private.

Further Amendment of the Allegation

5. The Panel was invited to consider a Skeleton Argument in respect of further amendment.
6. The HCPC makes an application to discontinue particulars of the Allegation.

Particular 2(b) of the Allegation
“offered to buy colleague X a takeaway drink”.

7. It is submitted that there is no evidence that offering to buy a colleague a takeaway drink was not permitted and/or a breach of professional boundaries.
8. The Panel having considered the submissions and received legal advice determined that it is both appropriate and in the public interest to disregard allegation 2(b), as this sub-particular has no realistic prospect of leading to a finding of misconduct and impairment.
9. The HCPC also applies to amend particular 4 so that this would now read “Your conduct in relation to allegations 1, 2, and 3(c) was sexual and/or sexually motivated”. This is to strike out reference to particulars 3(a) and 3(b).
10. There is no evidence on the allegation that Particulars 3(a) and 3(b) were sexual and/or sexually motivated. Particulars 3(a) and 3(b) relate only to the sending of a video of the entrance of a Card Factory shop, and comments to the effect of “how rude” and/or “I can’t believe you didn’t say hello”.
11. The Panel, having considered the submissions and received legal advice, determined that there is nothing within those allegations that is sexual and there is insufficient evidence to substantiate the allegation that that conduct was sexually motivated. As such, it is both appropriate and in the public interest to no longer proceed with the allegation that those elements were sexual and/or sexually motivated. The Panel considered that this does not amount to under prosecution given the existence of other conduct that is alleged to be sexual and/or sexually motivated. Further, even with these particulars struck out, the Allegation continues to make sense and reflect the gravity of the alleged wrongdoing.
12. A matter that did not feature as part of the written Skeleton Argument was the amendment of Schedule A, (o). The insertion there is to replace the word “waist” with the phrase “from waist down”; this reflects the evidence before the Panel.
13. There was no objection from Ms Wright and in line with legal advice received from the Legal Assessor the Panel decided to allow this amendment also on the basis that it better reflected evidence that the Registrant had been served with and was not objected to. The Panel considered this amendment to be fair and just in all the circumstances.
14. The other amendments to the Allegation were ones that the Registrant had been put on prior notice of as of 16 November 2022. These changes are outlined above, but in essence can be summarised below as follows:
i) In Particular 1 of the Allegation: the date range is to be extended to 14 December 2019, because Colleague Y indicates this is the correct range and there is evidence concerning late November and early December.
ii) In Particular 1a, “text messages” are to be replaced by “Face book” given that this reflects how communications occurred.
iii) In Schedule A, page references are deleted, and the phrase, “words to that effect” are added to each reference, to avoid duplication and any paraphrasing due to how instant messages are composed.
iv) In Particular 1c: there is replacement of “offered to pay for Colleague Y’s shopping/petrol,” rather than “offered her money,” because this is supported by the evidence before the Panel.
v) In Particular 1d: there is a change to the reference for whose heartbeat was racing.
vi) In Particular 1e: there is a change to add invited Colleague Y to your house/visited her at her home, as there is evidence to support it. This is particularised because it is an important feature so that it can be addressed to reflect the evidence and its impact given the public interest and so the Registrant can respond.
vii) In Particular 2a: there is an application to seek to include “in person” as these were not text messages.
viii) In Particular 2c: there is an error in date, which is corrected by entering the 20 January 2020 as the yawning incident occurred on 20 January 2020 as confirmed by Colleague X.
ix) Changes to add “Included and not limited to” and deleting page numbers operate across all Schedules, as the page numbers are redundant with the messages copied out.
x) The persistent invitation to join the Registrant for coffee is added as a new particular to replace the particular in respect of offering to buy a takeaway drink, given that this addresses the real gravamen of wrong doing.
xi) In the stem of Particular 2, a date amendment is sought with the insertion of 20 January 2020.
xii) In the stem of Particular 3, a further date amendment is requested to indicate, “in or around September 2019 as this is what the evidence reflects.
xiii) In Particular 3, the deletion of “text” is sought given that the messages were Facebook ones.

15. It was submitted on behalf of the HCPC that the amendments were minor in nature for the most part and the date changes are made to reflect the evidence before the Panel. The Defence agreed with this submission.
16. The Panel took into account the legal advice provided by the Legal Assessor. It considered each of the changes in turn and separately. It determined that there was no prejudicial effect on the Registrant for allowing all the changes save one. Good reasons had been provided for the changes, the evidence relied upon had not changed, it was substantially the same case that the Registrant had previously known that he had to meet that was currently before it, even with amendments.
17. It agreed that it is in everyone’s interest that particulars not to be proceeded with, are omitted. Further that changes that more accurately reflect the complaints and the evidence are in the public and the Registrant’s interest in having the Allegations made clear to detail the gravity and allow the Registrant the opportunity of responding to relevant concerns.
18. The one change that was not permitted was the change to the stem of Particular 2. While the Panel agreed to delete the date of 4 January, where this would be inconsistent with the sub-particular which gave the date of 20 January, to avoid any confusion, it decided that internal consistency was aided by having the date of “January” as a month in the stem rather than tying this to a particular day. This avoided any conflict and better allowed the Registrant to consider his conduct during the month of January, rather than it needing to have its decision-making unnecessarily curtailed if there was confusion about which day in January 2020 was relevant.

Admissions

19. Some admissions were provided to the Allegation. These took the following form:
20. In relation to Particular 1a of the Allegation which cross refers to Schedule A, the following was said on behalf of the Registrant. It was accepted that all of the alleged comments in Schedule A was made.
a. However, it was considered that of the comments listed within Schedule A, only paragraphs e), o) and p) might be said to cross professional boundaries.
b. Schedule A, paragraphs a), b), c), g), h) i) were made in the context of providing encouragement and it is not accepted cross professional boundaries.
c. Schedule A, d), k), l), m) and f) were made in the context of jokes and is not accepted cross professional boundaries.

21. In relation to Particular 1b of the Allegation which cross refers to Schedule B, the following was said on behalf of the Registrant. It was accepted that all of the alleged videos in Schedule B were sent.
a. It was not accepted that it was inappropriate for the Registrant to send these, given that their context within a friendly two-way relationship occurred;
b. Schedule B, g) was a meme intended as a joke.

22. In relation to Particular 1c, this is admitted.
23. In relation to Particular 1d, this is denied.
24. In relation to Particular 1e, this is admitted as a matter of fact, but the stem is not accepted in terms of its inappropriateness, given that the relationship was a friendly one.
25. In relation to Particular 2a of the Allegation, which cross refers to Schedule C, it was accepted that the Registrant sent these messages but not that these were inappropriate. The messages were a combination of being supportive, exchanging banter, and in the case of Schedule C, d), clearly a joke, which the recipient acknowledged as such.
26. In relation to Particular 2b, this is admitted.
27. In relation to Particular 2c, this is denied.
28. In relation to Particular 3, it is admitted in its entirety, save for 3c)i) which is denied. The remaining remarks were made and intended to be jokes but the Registrant recognises in hindsight that these were inappropriate.

“PART 1: LEGAL ADVICE ON FACTS FOR COMMITTEE:
A. OVERALL:
i. You must consider the evidence and announce your findings of fact in relation to the Allegation. You will need to consider the evidence in relation to each of the particulars of the Allegations separately.
ii. The burden of proving each charge in dispute is on the HCPC. The Registrant has to prove nothing, nor to disprove anything. Where there is doubt, it should be resolved in the Registrant’s favour.
iii. The standard of proof required is the civil standard of proof, that is, proof on a balance of probabilities. A fact will be established if it is more likely than not to have happened. It is for you to decide upon that.
iv. You have received evidence from a number of sources in this case. All need to be evaluated. You must decide the case only on the evidence heard or is properly before you.
v. Given the matters before you, will need to decide what has been done and said, and separately make judgements about the nature of this. This is because what is said and done is separate from a judgement and the nature and motive these things.
B. Sexual motivation and sexual
i. It is alleged that how the Registrant behaved was sexually motivated and/or sexual. In order to ascertain whether this is correct or not, it is necessary for you to put these actions into context in turn. This is because the Registrant makes admissions about the things he said and did but denies any sexual motivation or sexual conduct.
ii. Accordingly, regarding what is alleged to have been said and the nature of that, the Panel’s concern will be with the Registrant’s rationale and contrasting that with what HCPC witnesses have said. It is important for context to be considered and to consider from the evidence before it whether this is made out. It is possible to prove sexual motivation by inference, but similarly the Tribunal will consider whether there were other explanations for why the Registrant behaved as he did, particularly in circumstances where there is a discrepancy between the actions and the behaviour.
iii. Where the Registrant has admitted saying/messaging certain things but only doing so as a joke, or to provide support/a confidence boost rather than with sexual motivation or intended to be sexual, the Committee will need to distinguish between what was said/done and why. The following matters may be considered:
a) The nature of what was said and done;
b) How the recipients felt, (albeit there is a change acknowledged over a period of time for all of them);
c) That a complaint was raised, (albeit there was a considerable delay between all occurrences and complaints).
Set against this is:
a) Alternative explanations provided for what was said/done by the Registrant;
b) A lack of clarity about whether all of the recipients perceived different behaviours to be sexually motivated or sexual by the Registrant, (and that initially all ascribed the Registrant’s actions to be non-sexual;
c) The absence of any overtly sexual remarks or acts;
d) No escalation of behaviour.

iv. All relevant matters should be considered. It is not a case of numeric assessment of factors on each side. Rather a broad view must be taken putting all the circumstances into the balance and coming to a conclusion on the balance of probabilities, following the format suggested by Arunkalaivanan v GMC [2014] EWCH 873 in looking at criteria that supports or does not support a finding of sexual motivation.
v. You will need to consider if this is a case where the inference of sexual motivation is irresistible given the facts of the case, the conduct of the Registrant in relation to the joke -as he frames it-and his explanation for it, as set out in the GMC v Jagjivan [2017]. Accordingly, the Committee will need to decide whether what the Registrant said has an innocent explanation, or was done with sexual considerations in mind.
vi. In the case of Basson v GMC [2018], it is worth noting that in the course of its judgment the Court gave a helpful definition of sexual motive. It said that “’sexual motive’ means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship”; the HCPC case makes clear that it is sexual gratification that is relevant in this instance in relation to Particular 1(a) and (b), but the purist of a sexual relationship in relation to 1(c), (d) and (e).
vii. You need to consider whether alternative explanations provided by the Registrant for what he did is more credible than the test as set out in Basson, in terms of him deriving sexual gratification for how he behaved.
viii. The recent appeal case of PSA v HCPC and Leonard Ren-Yi Yong [2021] looked at the issues of 'sexual motivation' in a case where physical contact was not present for all the allegations, and the conduct was in relation to colleagues rather than patients. This case concerns a colleague, and while some of the allegation relate to physical contact, not all of the actions do. Accordingly, this case is helpful in establishing that sexual motivation need not involve physical touching.
ix. Establishing 'sexual motivation' is of course a particularly important aspect of any case in which it arises, because it is a significantly aggravating feature of any case, and in some, it will be the seminal issue.
x. In the event that this assists the Sexual Offences Act 2003 has a definition of ‘sexual’. The definition of sexual is contained within section 78. Penetration, touching or any other activity is sexual if a reasonable person would consider that:
a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
xi. The following may assist in considering what is sexual and is drawn from the CPS guide for prosecutors:
“In deciding whether an activity is sexual one can look first at the nature of the activity. If the activity is by its nature sexual (e.g. sexual-intercourse, masturbation) then it is sexual.
Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.
Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.”
xii. In the case of Basson v GMC [2018] 2198 (Admin), an appeal was based on the Tribunal conflating inappropriate and sexually motivated, albeit what the sexual motive was had not been specified. The appeal was dismissed on the basis that the court recognised that it was possible for a professional to have had a fleeting aberration and then dismissed the incident but that this did not mean it had not taken place.
xiv. The Tribunal should not conflate unacceptability and sexual motivation or sexual conduct. They are separate issues. While unwanted sexually motivated conduct in the workplace is not acceptable and to this extent there is crossover, it is possible for behaviour that is not sexually motivated to nonetheless be unacceptable. The same is true for conduct that is sexual.
xv. You will need to consider whether either the Registrant or the complainants have been less than frank. You will consider that people can lie for various reasons. It is not a case of numeric assessment of factors on each side but rather an assessment of all the circumstances into the balance and coming to a conclusion on the balance of probabilities, following the format suggested by Arunkalaivanan v GMC [2014].

xvi. You will need to consider if this is a case where the inference of sexual motivation is irresistible given the facts of the case, the conduct of the Registrant, and his explanation for it, in relation to the jokes and attempting to support and complement Colleagues X, Y and Z or indeed sexual; Jagjivan [2017]. Accordingly, the Committee will need to decide whether what the Registrant has said has concerning an innocent explanation is preferred, or whether it considers that this was done with sexual considerations in mind.
xvii. You need to consider whether alternative explanations provided by the Registrant for what he did is more credible than the test as set out in Basson, in terms of him deriving sexual gratification for how he behaved.
xviii. The recent appeal case of PSA v HCPC and Leonard Ren-Yi Yong [2021] looked at the issues of 'sexual motivation' in a case where physical contact was not present for all the allegations, and the conduct was in relation to colleagues rather than patients. This case concerns a colleague, without physical contact. Accordingly, this case is helpful in establishing that sexual motivation need not involve physical touching.
xix. Establishing 'sexual motivation' is of course a particularly important aspect of any case in which it arises, because it is a significantly aggravating feature of any case, and in some, it will be the seminal issue.
xx. In the judgement handed down on 22 September 2020 in the case of the General Medical Council v Dr RH [2020] EWHC 2518 (Admin), Mrs Justice Foster stated that the absence of any other explanation was something that they should have taken into account when considering whether the conduct was sexual.
xxi. In the case of RH, the Judge referred to the constituent elements of sexual assault under the Sexual Offences Act 2003 and noted that this was of greater assistance in breaking down the constituent elements of what could be considered “sexual” and preferred this to the allegation that have been charged of “sexually motivated“ touching. She drew particularly on section 78 of the Act:
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
xxii. In considering the nature, circumstances and/or purpose of the messaging/pictures and the words said, the Panel will consider whether these were sexual. The use of certain words, focus on physical sexual characteristics and follow-up actions is obviously sexual. Context is important because an image or word in one context may be sexual but in another will not be. The immediate response of the recipient will be a factor for the Panel to consider.
xxiii. There is a difference between sexual and sexual motivation. The former requires there to be a clear sexual context and sexual motivation requires either sexual gratification or the pursuit of a sexual relationship. Sexual does not require these features. Sexual can involve simply a message or picture that is sexual due to its nature, purpose or circumstance. The Panel will need to consider each of these.
xxiv. The Panel will need to consider invitations to coffee, the sending of pictures and remarks made to Colleagues X, Y, and Z both in person and via instant messaging. It should evaluate both what the Registrant and the HCPC witnesses have said. It may bear in mind that different witnesses say different things and what they have said at different times.
xxv. The Panel may find that some words/actions were sexual or sexually motivated and others not, that all fell into the category of sexual and/or sexually motivated, or that none did.
C. Belief and emotion
i. The Panel have heard what the HCPC witnesses have said and how their impressions changed in some cases after hearing about media coverage about the Registrant and talking to each other. Staff held positive and less than positive impressions about the Registrant. The opinion of the HCPC witnesses does not change the fact that it is for the Panel alone to determine any facts and grounds in relation to the Allegation before it.
ii. Some of the evidence the HCPC witnesses gave concerned demeanour and conduct during interview. This is admissible just as character evidence would be. What is inadmissible, is any conclusion any person reaches as to whether the Registrant committed the factual particulars and whether this amounts to misconduct.
D. Emotion
iii. Becoming upset or staying calm when being interviewed giving evidence may not be reliable indicators of whether the allegation is true or not. While distress can be a reaction to reliving an upsetting incident, it could also be because of the pressure of an investigation / giving evidence. Remaining calm and showing no emotion may mean that a person is putting a brave face on events or can mean that it is someone who has nothing to be upset about
iv. In particular, there has been some evidence that some HCPC witnesses have been influenced by external events, rumours and discussions with each other. The extent to which this influenced their beliefs and whether they would have arrived at the same conclusions without this is for the Panel to evaluate
E. Bad character
i. You have heard that the Registrant is of bad character. Bad character cannot by itself mean that the facts are proved, but when deciding whether the facts have been proved by the HCPC on the balance of probabilities, the Panel will take it into account in the following way:
• A previous HCPC finding has been introduced as evidence of propensity (i.e. because messages sent to people known as a result of his role as a paramedic, were have found to be sexually motivated, to show that it is more likely that the Registrant has acted in the way currently alleged due to the similarity involved). This is notwithstanding that the previous case involved a patient who the Registrant had met more than a year before in a professional capacity.

Ii. The Panel should not rely too heavily on bad character evidence. Bad character evidence should not be used to bolster a weak case.

iii. Just because the Registrant is said to have sent sexually motivated messages in the past, does not prove that he did so on this occasion.

iv. The Panel should not find facts proved either solely or mainly because of the bad character evidence they have heard.

F. Witness evidence
i. You should judge the evidence of each witness carefully, using common sense. You will consider the evidence in relation to each charge separately. You will resolve any head-on clash or conflict of evidence where this is relevant, bearing in mind the burden and standard of proof defined above.
ii. You will bear in mind that people do not always tell the truth, or tell the truth about everything, and that there may be myriad reasons for this. The passage of time, or emotion, and other motives, may colour their evidence. Lies may be used to bolster a case or be a result of embarrassment. You will need to consider that evidence and the credibility of the witnesses.
iii. You will decide the case only on the evidence properly before you. You are entitled to draw inferences, that is to come to common sense conclusions based on the evidence you accept. An inference is a reasonable deduction drawn from the evidence, as opposed to mere conjecture or speculation.
iv. If an adverse inference is to be drawn, you will consider the extent to which an opportunity has been provided for a response to the same.
G. The reliability of oral evidence
i. You can make factual findings against a Registrant based on an interpretation of events that has previously been disclosed and in respect of which they have been provided with adequate opportunity to investigate, call evidence and make submissions.
ii. You can base factual findings on inferences drawn from documentary evidence and known or probable facts and use oral evidence to subject the documentary records to critical scrutiny and to consider the witness’s personality and motivation. You should assess the evidence in the round.
iiii. You should not assess a witness’s credibility exclusively on their demeanour when giving evidence. A witness’s veracity should be tested by reference to the objective fact(s) proved independently of their testimony, where this is possible, in particular by reference to the documents in the case, and what is said closer to events in time.
iv. You should make a rounded assessment of a witness's reliability, rather than approaching their reliability in respect of each charge in isolation from the others. You will bear in mind the case of Dutta and Kimathi v FCO [2018], conscious that demeanour alone is not determinative of the truth. You will avoid an assessment of witness-credibility based on demeanour, as this is “discredited method of judicial decision-making”:
v. VIVID and CONFIDENT recollection should not be regarded as a shortcut to decision making. Where there is a conflict between what is remembered and what is documented, you will consider the objectivity provided by documentary evidence, to the extent that this exists. Where explanations are provided for any discrepancy between the two you will assess this.
vi. You will need to consider any discrepancies and address these head on in instances where they are relevant to the particulars of the Allegation.
vii. You may also consider reasons that witnesses have to remember or not, events, and what was routine, or unusual for parties respectively, or raised particularly strong reactions.
viii. You will have to assess how reliable the reasons for remembering or not an action or conversation is.

H Inconsistent statements - inference given the opportunity to refute that
i. Where what has been said in witness statements/earlier and what has been said in oral evidence may lack consistency in your view. You should bear in mind that human memory is not a simple mental record of an event that is fixed at the time of experiences and subsequently fades. Rather it should acknowledge that memory can be fluid in that it concerns a past experience and therefore may be vulnerable to being altered by a range of influences.
ii. However, inconsistent statements can mean that a witness is not being frank and that is why there are multiple versions of events.
iii. The expectation is that the closer in time to an event, the more reliable memory should be. The Panel should consider carefully documentary evidence that records what witnesses said at the point closest in time to events upon which allegations are based.
I Earlier investigation
i. The outcome of any Trust investigation is not to be relied upon by the Panel as a short-cut to decide the facts of the case currently before it. Any reference to a finding of the Trust investigation should be disregarded.
ii. The fact that there had been a previous Trust investigation and disciplinary hearing has been referenced and included in the papers are investigation details. While the Panel knows about the disciplinary investigations, they should not know of previous findings on the very issues that they themselves need to decide. Normally the findings of fact made at some earlier investigation by another panel are not admissible in proceedings before this committee.
iii. While documentations from a previous disciplinary hearing, can be used in a fitness to practice case, they should be redacted so that no previous findings of fact are contained within the documents. This is in order to prevent the potential for panels to be tainted by a previous panel’s findings on the same issues that they are to determine.
iv. The case in which the High Court made it clear that the potential for Panels to be tainted by a previous panel’s findings should be avoided is Enemuwe v NMC [2015] EWHC 2081 (Admin). In that case, an appeal was allowed on the basis that there must have been a risk that in some way the Panel allowed themselves to be influenced, even if only peripherally, by their knowledge of what had been upheld by a previous decision.
v. Applying that here means that no evidence of the outcome of the investigation should be included by the Panel in their consideration of the facts in dispute before them now.
vi. The Panel should not make the mistake of thinking that Colleagues X, Y, and Z, telling Trust staff about their complaints is more evidence against the Registrant. The information supplied from the Trust investigator is repetition of that which Colleagues X, Y, Z, shared with them. It is part of the same complaint. The Panel should be alive to consistency or inconsistencies as set out above.
J. How to go about your task.
i. It is normal for people to respond to what others say emotionally. However, the Panel should ignore any emotions you feel through sympathy for or prejudice against anyone who features in the case. Such feelings must not play a part in your decision.
ii. Concentrate on the real issues in the case, and do not spend time on issues that are not relevant to the Allegation as particularised, or that are not in dispute.
In conclusion
You have heard evidence and submissions but need to make your own decisions, giving reasons for it.

PART 2: GROUNDS

i. The Allegation is drafted to include misconduct.
ii. The statutory grounds are a matter for the Panel, relying upon their own independent judgement.
iii. There is no statutory definition of misconduct. However, a review of some of the authorities does provides some guidance. Accordingly, I will make reference to a number of cases, simply by way of example, as authority for accepted legal principles, rather than seeking to find parity with the facts of this case.

MISCONDUCT
A word of general effect: involving some act or omission
iv. The case of Roylance, was one where a doctor was the chief executive of a hospital in which excessive mortality rates of children who underwent cardiac surgery and had failed to take steps to deal with the problem. Lord Clyde in Roylance v GMC (no.2) [2000] 1 A.C. 311 Lord Clyde, in his judgment at page 331, stated:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which will qualify. The professional misconduct must be serious”. [My emphasis.]

Sufficiently serious
v. In the case of R (on the application of) Remedy UK v General Medical Council [2010] EWHC 1245 at paragraph 37, which concerned the role of individuals or systems, it way stated:

“First, it may involve sufficiently serious misconduct … such that it can properly be described as misconduct going to fitness to practise.”

vi. As to seriousness, Collins J, in Nandi v General Medical Council, concerned a doctor who had been found guilty of serious professional misconduct post thefts of equipment and records that he needed in order to practice, this finding was challenged, [2004] EWHC (Admin), rightly emphasised, at paragraph 31 of his judgment,

"the need to give it proper weight, observing that in other contexts it has been referred to as ‘conduct which would be regarded as deplorable by fellow practitioners’."

Vi There may be circumstances in which an allegation of misconduct may be made, but the context is such that not all situations are sufficiently strong in the end to warrant a finding being made.

Vii. The Tribunal should consider each part of the Allegation individually. It may decide that no one failing amounts to misconduct, or that one or more charges are so serious that these amount to misconduct for the purposes of this hearing. It should consider both the culpability of the Registrant and the threshold of wrongdoing; rather than place reliance only on one or the other.

Viii. In terms of considering the matters individually or collectively, I will say this. The Tribunal should look at each particular in turn. You may find that some failures amount to misconduct that is serious, or you may not. You can find that the threshold of misconduct, that is serious and related to professional standing, has been met either by an individual particular, or by multiple particulars, or not at all.

Ix. The Panel will recognise that sometimes individuals make mistakes or errors of judgement. It will need to decide whether the facts are so serious that they amount to the statutory ground of misconduct.

x. The Panel will need to provide reasoning to explain its decision.

PART 3: Impairment
i. Essentially, deciding whether the Registrant is impaired is a matter for the Panel’s judgment, given the findings of fact that have been proved.
ii. The legal regime is concerned with a Registrant’s current and future fitness to practise rather than with imposing penal sanctions for things done incorrectly in the past. The law requires the Panel to consider whether the fitness to practise of the Registrant “is” impaired as of today.
iii. Accordingly, the Panel has to assess the current position looking forward not back. However, as the then MR, Sir Anthony Clarke, observed in the important case of Meadow [2006] EWCA 1390 “… in order to form a view of the fitness of a person to practise today, it is evident that the Panel will have to take account of the way in which the person concerned has acted or failed to act in the past.”
iv. The purpose of a Panel is to regulate healthcare professions for the benefit of the public.
v. The context of the Registrant’s behaviour must be examined. In circumstances where there has been identified misconduct at a particular time, the issue may be, whether that misconduct has been remedied or not. The Panel may ask itself within the circumstances in which misconduct was identified whether there is context which indicates how this came about and whether that continues, such as to mean that his fitness to practise is impaired.
vi. In considering the position today, the Panel is required to take account of such matters as the insight of the practitioner into the source of his lack of their misconduct, any remedial steps which have been taken and the risk of recurrence. The Panel is required to have regard to any evidence about these matters which has arisen since the alleged misconduct was identified.
vii. Here, the Registrant has chosen to take part in the substantive fitness to practise hearing. He has put in testimonials, called a character reference, and has challenged the evidence when it has been called by the HCPC as is his right.
viii. Impairment considers both public protection and public interest. Public protection involves the public having access to safe paramedics who may treat them in emergency situations, when they may be at their most vulnerable. Any approach to the issue of whether a Registrant’s fitness to practice should be regarded as “impaired” must take account of the need to give substantial weight to public interest. In addition to the protection of the public, the public interest includes, amongst other things, the protection of patients, the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour.
ix. The Panel should be clear that it carries out a sequential series of tasks. If first considers whether the facts are made out, considering each allegation separately. Thereafter, when considering the facts found proved, bearing in mind the burden and standard of proof, it must consider whether by reason of those facts, the statutory ground has been met. It is only if the Panel considers that the statutory ground has been made out that it can move onto consider impairment which should be current.
x. Regarding the approach to be taken by the Tribunal, there are a number of authorities from the High Court in appeals against decisions of the General Medical Council's Fitness to Practise Panels, where a finding that a doctor's fitness to practise is impaired has been made. These cases provide useful authorities approach impairment in this case at the second stage.

xi. They are:
• Cohen v GMC [2008] EWHC 581 (Admin);
• Zygmunt v GMC [2008] EWHC 2643 (Admin);
• Cheatle v GMC [2009] EWHC 645 (Admin);
• CHRE v NMC and Grant [2011] EWHC 927 (Admin)
xii. As to the meaning of fitness to practise, in the case of Zvamunt v GMC [2008] EWHC 2643 (Admin) Mr Justice Mitting (at Para 29) adopted the summary of potential causes of impairment offered by Dame Janet Smith in the Fifth Shipman Inquiry Report (2004, Paragraph 25.50). Dame Janet Smith considered that impairment would arise where a doctor:

(a) presents a risk to patients;
(b) has brought the profession into disrepute;
(c) has breached one of the fundamental tenets of the profession;
(d) has acted in such a way that his/her integrity can no longer be relied upon.
xiii. In the case of Cohen v. GMC [2008] EWHC 581 (Admin) Mr Justice Silber identified criteria for assessing current impairment which can be summarised as follows:

• Is the conduct remediable?
• Has it been remedied?
• Is it highly unlikely to be repeated in the future?

xiv. In Cheatle v GMC, Mr Justice Cranston said this (at Para's 21 - 22):

21. There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past As Sir Anthony Clarke MR put it in Meadow v General Medical Council [2006] EWCA Civ 1390 [2007] 1 QB 462:
"In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practice today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past".
22. In my judgement this means that the context of the doctor's behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe not at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practice Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct".
xv. The High Court revisited the issue of impairment in the recent case of CHRE v NMC and Grant where Mrs Justice Cox noted (at Para 74):
"In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances."
xvi. As such, in reaching a decision as to whether the registrant's misconduct impairs his current fitness to practise, the Tribunal take into account the maintenance of public confidence in the profession as well as maintaining proper standards of conduct and performance. The legal test to consider is whether the healthcare professional IS currently impaired as of today’s date, and is concerned with his current and future practice, as was confirmed in the case of GOC v Clarke [2018] EWCA Civ 1463.
xvii. Thus, in summary at the end of this stage, when impairment of his fitness to practise on the issue of misconduct is being considered, the task of the Tribunal is firstly two-fold:
i) To assess whether the facts found proved amount to the statutory ground of misconduct;
ii) If this is the case to assess whether by reason of the doctor’s misconduct, his fitness to practise is impaired. (See Silber J in Cohen [2008] EWHC 581 (Admin) and Mitting J in Zygmunt [2008] EWHC 2643 (Admin).)
xviii. If the Panel finds that healthcare professional’s fitness to practise is not impaired, then it may take no action, providing an explanation that details what the relevant criteria that were taken into consideration in making a decision and what weight was given to them.
xvix. If the Panel finds that the healthcare professional’s fitness to practise is impaired, then the Panel will again need to detail what the relevant criteria were that were taken into consideration, before it can proceed to stage 3 of the hearing, where the issue of whether a sanction should be imposed, and if so, what that should be will be considered and determined.“

Decision on Facts

158. The Panel approached its decision on facts having taken into account all the evidence before it, the submissions received, and the legal advice accepted. There was no contradiction to the legal advice from either party.

“As a registered Paramedic (PA43299) your fitness to practise is impaired by reason of misconduct. In that:
1.Between 6 July 2019 and 14 December 2019, you did not maintain appropriate professional boundaries with Colleague Y, a Student Paramedic, in that you:
a) made comments to Colleague Y via social media including (but not limited to) those as set out in Schedule A;

159. The Panel have seen copies of these messages, which while not always in strict chronological order, mirror what is listed in Schedule A. The Registrant admits that these messages were sent. While the Registrant indicates that no professional boundaries were crossed, the Panel finds that these messages were not a momentary aberration but extended over a period of time and are by the Registrant’s own admission ‘a bit flirty’; the dialogue went beyond that of work colleagues.
160. The Panel did bear in mind that the Registrant considered some of the comments, given their context, were simply what he would categorise as ‘banter’ and ‘jokes’. He considered his relationship with Colleague Y as being that of a friend. The Panel did hear from Colleague Y that there were at least two documented gentle and jokey reprimands from her, that she was alive to the need for there to be acceptable behaviour, and that the Registrant was sailing close to the line and indeed crossing it on occasion.
161. The Panel was alive to the fact that Colleague Y may have been influenced by the media coverage of a previous case involving the Registrant that did not have direct parallels with this one, but did cover unacceptable behaviour. Colleague Y admitted to having some misgivings at the time, but after speaking to her original mentor, Jamie Cross, she reviewed the interactions she had with the Registrant with greater scrutiny. She said that the “complaints” did “resonate” with her. While she may not have brought her own complaint had it not been for other complaints, she did even at an early stage, find that the Registrant did make her feel uncomfortable.
162. The Panel considered that the messages sent to Colleague Y by the Registrant were not all of a similar nature. Some were merely conversational, but others were clearly inappropriate. Some, such as, “silly girl - you are good, have confidence,” if taken in isolation would not necessarily cross boundaries. However, taken in terms of the context of the sheer number that she now identifies as being objectionable, along with comments such as ‘‘nearly had an MI when you wore those shorts” or speaking about her being ‘in bed’ did cross professional boundaries.
163. The Registrant was in a position of seniority, both in terms of being qualified as a paramedic, and having a significant number of years’ experience of working in the ambulance service, in comparison to a young student paramedic, who described herself as ‘naive’. He acted in a position of authority in terms of providing informal mentorship and knew that Colleague Y had sought him out to learn from him. He accepted that he had an awareness of the Trust having a Social Media Policy document but did not consider it within the context of his messaging with Colleague Y. The Panel accordingly found that he did not maintain appropriate professional boundaries.
1a) Proved

b) sent Colleague Y pictures and/or a video, specifically but not limited to the pictures and/a video as set out in Schedule B;
164. The Panel accepted that the Registrant and the Colleague Y exchanged pictures on social media with associated messages. Some of these were intended to be humorous and/or capture what each person was doing. However, some pictures were inappropriate in any circumstances, such as those of his bare torso, or including his crotch (clothed) and naked legs, even where the Registrant attempted to provide an innocent explanation for these, such as demonstrating that he was as warm as she was, or was also in bed. The Panel rejects the Registrant contention that as Colleague Y had sent similar photos to the Registrant that it could not be a breach of professional boundaries to send such photos. This was unprofessional conduct.
1b) Proved

c) offered to pay for Colleague Y’s shopping and/or petrol;
165. The Panel recognised that Colleague Y had financial worries which she shared with the Registrant but did not feel comfortable accepting money from him, and instead got financial support from her parents who were her financial safety-net. Her sense of discomfort was retrospectively linked to the media coverage of a previous case where the Registrant provided money to someone in need with a sexual element. The Panel did consider that the Registrant may simply have been trying to assist a colleague, but still found that the gesture involved the crossing of a professional boundary. This was because it could have fostered a sense that a colleague was beholden to him. While such an occurrence in isolation was unlikely to merit further action, the Registrant himself accepts that it was not best practise and that there were more appropriate steps he could have taken to highlight her financial need to his colleagues, so that the issue could be addressed more formally without Colleague Y being made to feel uncomfortable.
1c) Proved

d) On or around 12 September 2019, said “that will certainly make his heart race” or words to that effect, when Colleague Y was placing ECG dots on a patient.
166. The Registrant denied saying this. The Panel considered that the complainant could not be sure of exactly what was said in her oral evidence but that her written statement, completed nearer in time to the incident was clear. Further that while the witness AS did not mention this either in his written statement, or months later when this was signed that he provided a reason for remembering it subsequently and not at the time.
167. AS gave oral evidence that he was discombobulated by the funeral of a colleague on the day he was invited to an investigation meeting and, a) was upset, and b) did not know the purpose of the meeting in advance. While he made changes to his statement on 4 July 2020, some months later, it was only at the end of July that he recalled that there was something about a patient’s heart racing. His explanation, that ‘laughy, jokey banter’ occurred and that he only reflected on whether there was an issue when he was supported through this by another manager, saw his retrospective assessment. He said that he had told the investigation officer this in late July but been told that the report had been submitted, and that it was too late. While the Panel had no documentary corroboration of this, it was of the view that there was no motive for the witness to invent this evidence given that he did not know Colleague Y. The Panel did consider this matter to be finely balanced but nonetheless bearing in mind the burden and standard of proof had been met by the evidence of AS and the complainant.
1d) Proved.

e) invited Colleague Y to your house and/or suggested you visit her at her home.
168. The Panel noted that the Registrant accepts this as he considered Colleague Y a friend. Documentation clearly supports this allegation. The Panel had sight of messages in which the Registrant stated that Colleague Y could watch television at his house when she could not watch television at her new flat. It also had sight of messages that said: “Have to visit your flat some time” and “You are welcome here.” In terms of this crossing professional boundaries, the Registrant was not alive to the fact that Colleague Y had never accepted his offer or invited him over, and that such advances were not wanted. Given his seniority over her, and the pressure that refusing potentially posed, the Panel considered that this breached professional boundaries.
1e) Proved

2. Between 7 October 2019 and 4 January 2020, you did not maintain appropriate professional boundaries with Colleague X, in that you:
a) made comments to Colleague X via social media and/or text messages as set out in Schedule C;
169. The Panel considered the documentary evidence that set out the messages contained in Schedule C. In terms of whether these breached appropriate professional boundaries, the Panel had regard to the fact that the Registrant and Colleague Y occupied distinct positions: the Registrant was an experienced practitioner of some years, and Colleague X was a novice paramedic. While some of his messages may appear benign, these still crossed professional boundaries. This is because, while lesser in frequency and different in nature to those sent to Colleague Y, given their different relationship, it was clear that the Registrant was persistent in trying to provide help. He acknowledged in responses to Panel questions that while his motivation was one of trying to provide help, that in part his communications had a “social” aspect in trying to obtain him a coffee-companion, and that he had been “selfish” to persist.
2a) proved

2b) Persistently invited Colleague X to join you for a coffee, despite her declining your invitations;

170. While the Panel heard that the Registrant was known as Mr Costa Coffee Man and asked everyone for coffee, from HCPC witness TB, the Registrant’s persistence indicated that he was prioritising his needs over hers. While the Registrant may have been willing to share good mental health tips with Colleague X, which is acknowledged to be a difficult thing to do, there were other avenues that the Registrant could more properly have canvassed. He did not direct her to appropriate mental health support services. Accordingly, the Panel considered this factual particular proved.
2b) proved

c) On or around 4 January 2020, when Colleague X was yawning in the truck, you said “it was a sign that she was attracted to someone near her” or words to that effect.
171. The Panel here contrasted the evidence of Colleague X with witness TB and the Registrant. The Registrant had no recollection of saying this and neither does the HCPC witness TB. TB did remember talking to Colleague X post the shift in question and does not recall any instance of this. Her recollection that this did not occur remained consistent throughout the investigation and until now.
2c) not proved

3. In or around September 2019, you did not maintain appropriate professional boundaries with Colleague Z, in that you:
a) sent Colleague Z a video of the entrance of a Card Factory shop when you saw that Colleague Z had entered and/or exited the shop;
172. The Panel noted that the Registrant did send the video in question. The Panel was shown a still of this. It noted that MS did remember watching it, and that the Registrant had made him aware of it. The Registrant co-operated with the investigation sharing his own telephone when Colleague Z’s did not work, and said that while he accepts it occurred that it did not cross professional boundaries. The Registrant has maintained that sending the video was a joke but indicated that no malice was intended. The Panel considered that the Registrant may well have considered the sending of the video as a joke, but the Registrant failed to recognise that it was inappropriate, in that it places a junior member of the team under undue pressure and made her feel ‘concerned’. Making junior members of staff ‘uneasy’ and ‘on edge’ needlessly is inappropriate and the Registrant was misguided in not simply calling out or telephoning if he had wanted to alert Colleague Z to his presence.
3a) proved.

b) made comments to Colleague Z via social media, in that you stated, “How rude” and/or “I can’t believe you didn’t say hello” or words to that effect; and/or
173. The Panel notes the Registrant’s contention that both the video and the words that followed it were a joke, which he accepts in hindsight was misguided. The Panel found from his evidence, and documentary evidence of screen shots, that this crossed professional boundaries for the same reasons given in the paragraph immediately above. It is not acceptable for a joke to cause a colleague distress.
3b) proved.

c) On or around 29 September 2019, whilst on shift and/or in the workplace, you made comments to Colleague Z, in that you said:
i) “You’re useless as well” or words to that effect;
174. The Panel was persuaded by the contemporaneous messaging from Colleague Z to a colleague, WS, expressing concern that the Registrant had said words to this effect. Colleague Z gave oral evidence that she had confided in a colleague via WhatsApp immediately after the Registrant said this to her. The Panel has sight of this messaging and can find no excuse for such unprofessional conduct.
3c)i) Proved.

Ii) “You’ve got a boyfriend” or words to that effect; and/or
175. The Registrant accepts this and Colleague Z had provided her contemporaneous messaging of this as evidence that it occurred. Colleague Z’s personal relationships were not for the Registrant to comment upon in the workplace.
3c)ii) Proved.

iv. “I can’t believe you’re two timing me with someone else” or words to that effect.
176. The Registrant accepts this. While there is no direct contemporaneous electronic messaging of this, it echoes the sentiment of the messages sent by Colleague Z to another colleague to evidence this. The three comments in this particular form part of the same message, with the Registrant indicating that because Colleague Z has a partner that she is no good to him. This is unacceptable conduct, no matter what the Registrant’s intent.
4.Your conduct in relation to allegations 1 to 3 was sexual and/or sexually motivated.
177. The Registrant denies sexual motivation. The Panel considered each particular of the Allegation in turn:
a) In relation to Particular 1 and Colleague Y, the Panel finds that this was sexual on balance, given references to being in bed with someone else. It bore in mind that context is key as set out in the legal advice it had received, but noted that the Registrant repeatedly brought the conversation to boyfriends, sharing a bed, etc. when it was unnecessary and inappropriate to do so. It did not consider that there was evidence that supported sexual gratification or the pursuit of a sexual relationship to satisfy the burden and standard of proof. However, sexualised content is clear.
b) In relation to Particular 2 and Colleague X, the Panel bore in mind that it was only matters 2a) and 2b) that had been proved. It balanced what the Registrant had said about listening to Colleague X’s anxiety and depression and in making suggestions that she goes to the cinema, or inviting her out for coffee, saw this as an attempt to draw her out to a public place to get out and mix with other people. The Panel accepted that the Registrant considered this as a reasonable approach to assist someone suffering from mental health difficulties. The comments made in this instance were not overtly sexual. While the comment “Good looking and healthy” was an unnecessary compliment, within the context it was articulated, the Panel were prepared to give the benefit of the doubt to the Registrant that this was not sexual. His acknowledgement that it may have fed a need in him for company, does not make it either sexual or sexually motivated.
c) In relation to Particular 3 and Colleague Z, the Panel had found proved the interaction in which the Registrant was told “your too old for me,” given the contemporaneously created note. The fact that the Registrant laughed awkwardly, having indicated that his colleague was useless to him because she had a partner, rather than demonstrate current sexual motivation showed that pursuing a sexual relationship may have been his previous intent in their communication. Accordingly, given that this communication came at the conclusion of his approaches to her and given the nature of the topic discussed – e.g., that she was being approached for a purpose that a current boyfriend negated, the Panel considered this to be sexual.
Particular 4 proved in relation to being sexual for Particular 1 and 3.

Decision on Grounds: Misconduct

5.The matters set out in allegations 1 to 4 above constitute misconduct.
178. The Panel considered particulars 1-4 of the Allegation in turn, again keeping in mind submissions, facts and the comprehensive legal advice, as set out above.
a) In relation to Particular 1 and Colleague Y, the Panel considered that while not every message crossed a line, that the Registrant’s conduct was wrong and inappropriate and represented a serious departure from the standards expected of him. This was because there had been extensive repeated messaging over weeks and both his persistent approach and some comments, e.g., about her shorts, were wholly inappropriate. Further, the Registrant, who indicated that he was heterosexual, admitted that he would not have made such comments to male colleague.
b) In relation to Particular 2a and b and Colleague X, while this has not been found to be sexual, it does identify a serious failing in that the Registrant was not being sensitive to the wishes and feelings of colleagues despite repeated attempts from them to make their position clear. While Colleague X indicated that she wanted to be left alone by sending the messages: “really don’t want to be around people,” and “not up to talking”. The Registrant persisted in trying to socialise and now accepts that while trying to help, he also was trying to satisfy his own need for company, and that he ‘probably’ caused her harm. He also accepts that he was not qualified to provide her with mental health assistance. This should have been in the forefront of his mind.
c) In relation to Particular 3 and Colleague Z, the Panel agreed with the contention that the Registrant could simply have called out to her or telephoned if he had wanted to talk to her. The sending of a video and following it up with potentially passive-aggressive comments is not behaviour that a Registrant should engage in. This was a serious departure from the standards expected of him, given the unwanted sexual aspect of the case.
Accordingly, the Panel finds that the ground of misconduct is made out.
Particular 5, proved

Decision on Impairment

179. The Panel again considered submissions, evidence and law. It was aware that its decision should reflect the Registrant’s current position. It took into account that there is robust evidence from those who currently employ the Registrant, who are aware of these professional conduct proceedings and are still supportive, and from those who the Registrant has previously mentored.
180. The Panel considered service users and agreed that there was no specific risk of harm to service users in this case. However, it noted that his previous case was thematically relevant given its sexual element, the passage of time between treating this service user and subsequently communicating with her, along with the fact she did not give evidence meant it gave less weight to it than might otherwise have been the case. The Panel held a concern about the Registrant because colleagues are members of the public and many of the interactions occurred outside work. It also recognised that the Registrant was a figure of authority to Colleagues X, Y and Z and he did not appropriately manage boundary issues particularly where members of staff had vulnerabilities.
181. In terms of the wider public interest, the Panel considered that there would be concern about the findings, unless the risks were resolved. In evaluating the time-frame it noted that even when going through fitness to practise proceedings with his Regulator, the Registrant does not appear to have been able to understand the importance of managing boundaries with professional colleagues. It took the view that there were common issues that were concurrent, e.g., the vulnerability of the women concerned, the social media contact and the sexual nature of the communications.
182. The Panel had regard to what the Registrant had done to remedy the situation. It acknowledged that he had undertaken the three-day boundaries course. While finding the issue to be one that is remediable, it had concerns that the Registrant has failed to take meaningful steps to remedy the issue. This is because there appears to be an attitudinal issue given his previous and current hearing on how he approaches women who have vulnerabilities.
183. The Panel notes that the three-day course may have helped to develop the Registrant’s insight but finds that this alone is insufficient. The pattern of his behaviour and his insensitivity to how his messaging could be received was covered in relation to the previous case only. It is silent in his reflective piece (because this pre-dates this hearing and these allegations). No updated written reflection applying the learning from his three-day course was provided to the Panel.
184. The Registrant has failed to persuade the Panel that he understands how his behaviours make others feel, and how these behaviours occurred. While he could indicate some aspects of learning from his course, this learning has not translated into insights about Colleagues X, Y and Z.
185. While the Panel accepts that different Registrants will express themselves differently, with some writing elegant prose and others preferring to indicate orally their insight, the Panel was left with the impression that the Registrant in this hearing, has for the first time considered the possibility of the harm he caused and the extent of the inappropriateness of his behaviour. The Panel noted that the Registrant no longer socialises with colleagues and that he had offered to apologise, but it is only clear that while understanding that different behaviour is required, he had not applied the learning from a course to this case. Accordingly, the Panel finds that the risk of repetition of similar behaviour, where women are not treated with respect remains high. Without being able to demonstrate that taking action to address behaviour and applying the learning from the course to the current case, the Panel finds that there is lack of developed insight. Staying away from social media does not address his in-person interactions that have carried the risk of harm to vulnerable young women who looked up to him as a senior colleague.

Decision on Sanction

186. Having determined that the Registrant’s fitness to practise is impaired by reason of his misconduct, the Panel had to decide on the appropriate sanction, if any, to impose.
187. The Panel has taken into account evidence received during the earlier stages of the hearing where relevant to reaching a decision on sanction.
188. No further evidence was provided at this stage.

Submissions

189. On behalf of the HCPC, Ms O’Connor submitted a written document which set out that the appropriate and proportionate sanction in this case was a matter for the Panel. She listed the primary functions of the Panel, including the risk that the Registrant poses, the deterrent effect of sanction, the need to uphold public confidence in the profession and in the regulatory process. She referred the Panel to paragraph 10 of the HCPC Sanctions Policy (‘the SP’), which sets out considerations for a Panel reflecting the primary purpose and advocated the application of the principle of proportionality.
190. Ms O’Connor indicated that the Panel should follow the SP in identifying aggravating and mitigating factors in this case. Mitigating factors which the Panel might consider apply in this case include that no harm was caused to service users, that the Registrant had his own health issues, and that there has been fulsome support from his current employers. Aggravating factors include a previous finding of impaired fitness to practise on a thematically relevant case, the conduct was repeated over a period of time, that he was a figure of authority to Colleagues X, Y and Z, and the women involved had vulnerabilities. She flagged that the Panel’s reference to the lack of developed insight and the finding that the conduct included in Particulars 1 and 3c was sexual.
191. Ms O’Connor submitted that the Panel should consider each of the sanctions in turn in terms of ascending seriousness. She commended the SP to the Panel in terms of guidance it should follow.
192. Ms Wright on behalf of the Registrant focused her submissions on proportionality. She acknowledged that there had been an admission of breaching professional boundaries by the Registrant in some cases.
193. Ms Wright indicated that the Registrant had developed insight, had not repeated his behaviours and that he was himself experiencing personal difficulties at the time of these incidents. She details numerous mitigating factors including: the absence of harm caused to any service users as a result of the Registrant’s actions, the references in which the Registrant is spoken of highly in terms of both his personal qualities and his ability to carry out his duties to a high standard. She said that the Registrant wishes to make clear that he will comply with any sanction that the Panel deems fit and would be eager and willing to engage in further personal development if this is something that the Panel considered appropriate, He would want to continue his long-standing career with the ambulance service.
194. The Panel accepted the advice of the Legal Assessor regarding the purpose and assessment of appropriateness of sanction:

Legal Advice on Sanction

a. HCPC’s Sanctions Policy (“SP”) is a document that provides guidance on procedure; this is not binding but I commend it to you as helpful.

b. The purpose of sanction is not to be punitive, although it may have a punitive effect.

c. The Panel will want to consider what sanction, if any is appropriate given all the circumstances of the case.

d. Purpose of sanction is to protect the public, which will include service users, the reputation of the profession, and the upholding of appropriate standards.

e. The Panel should consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required.

f. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

g. The Panel may decide that there is a public interest in permitting, a trained and experienced Paramedic to continue to practice if that is not incompatible with the wider public interest.

h. The Panel should bear in mind both the aggravating and mitigating factors that can be identified. Examples may be:

a. Was this a single incident or not?
b. Did offending cover multiple failings of a different nature?
c. Was the offending planned in full knowledge of wrongdoing or not?
d. Are there relevant personal circumstances to take into account?
e. Was there any causal link between the personal circumstances and behaviour?
f. What has the attitude of the Registrant been?
g. Was there a guilty plea, or admission of wrongdoing, in full or in part?

This is a non-exhaustive list.

i. The Panel should consider the sanctions available to it in ascending order of severity:

• Take no further action
• Impose a Caution Order of between 1 and 5 years in length
• Impose a Conditions of Practice Order of up to 3 years in length
• Suspend the Registrant’s registration for a period of up to 1 year
• Direct the Registrar to strike the Registrant’s name from the register

j. The Panel should consider whether it is appropriate to take no action. This will be relevant to few cases. These are when matters are minor and fully resolved.

k. In a situation where it is not appropriate to take no action, the Panel may consider whether issuing a caution of between 1-5 years, is the right course of action. This remains on the Registrant’s record and could be brought up if there are future instances of wrongdoing or concerns regarding impaired fitness to practice. Questions that the Panel which may want to consider are:

• whether the findings are such that this is a historical minor matter?
• which is unlikely to be repeated ?
• and where the Registrant has already tried to make good any wrongdoing?

l. A conditions of practice order may be appropriate where there have been failings that can be addressed by conditions. Whether there are verifiable, measurable and appropriate conditions that can address the issues of risk needs to be considered, along with whether the Panel is satisfied that the Registrant would be committed to meeting these conditions and a future panel could assess whether these have been met or not. The Panel may wish to consider whether remediation of any kind has been attempted or is appropriate.

m. A suspension order is the next most serious sanction. This is appropriate where conditions of practice are not suitable and the seriousness of the case justifies the Registrant not being able to work in their chosen profession.

n. The most serious sanction is a striking off-order. This is a sanction which is appropriate where wrongdoing is incompatible with continued registration.

o. The principle of proportionality is important. The gravity of the behaviour and the risk identified should be addressed by an appropriate sanction if one is to be administered. The Panel will need to indicate that it has considered factors both aggravating and mitigating.

p. Whatever decision the Panel makes, how it arrived at this conclusion must be explained.

Determination on Sanction

195. The decision as to the appropriate sanction to impose, if any, is a matter for this Panel exercising its own judgement. It had regard to the SP.

196. The Panel considered the sanctions available, starting with the least restrictive. It has borne in mind that the purpose of a sanction is not to be punitive, but to protect service users and the wider public interest, although it may have a resultant punitive effect. If it chooses to impose a sanction, the sanction should be appropriate and proportionate, although the reputation of the profession as a whole is more important than the interests of any individual practitioner.

197. The Panel considered and balanced the aggravating and mitigating factors in this case.

Aggravating factors

198. The Panel considered that this was a case involving sexual conduct, that crossed professional boundaries. The Registrant was in a position of responsibility and placed his own interests above those of the professional standards he was required to follow. The Panel took into account that some colleagues did consider the Registrant a friend and content to pursue correspondence via messaging, but the Panel did have regard to the culpability of the Registrant and the standards he should adhere to. The Registrant showed disregard for the standards that apply to him, with an attempt to divert blame for his actions on occasions, such as nobody indicating save in a playful or regretful manner that his approaches were not welcome.

199. The Panel took into account the following factors:

• There was incomplete insight evidenced.
• This was repeated conduct which took place over a period of time, showing a pattern of behaviour.
• The Registrant was in a position of responsibility and seniority in comparison Colleagues X, Y and Z, [meaning that there was a breach of trust].
• This messaging took place during a previous fitness to practise hearing where the issue of the Registrant’s inappropriate social media messaging was under scrutiny.
• No further learning or relevant reflection documented by his own initiative following his completion of a the three day course having been mandated as a conditions of practise requirement from the previous case.

200. The Registrant’s lack of insight is the most serious matter for the Panel. The Registrant did not translate the learning from his three-day course to this case from his reflective piece, suggesting that his insight was only at a transactional level, involving concepts. He did not evidence his acknowledgement of the impact on Colleague X, Y or Z. His comprehension of his partially selfish motivation only came to light during a late stage of the hearing, along with his colleagues’ vulnerability. He has not in this hearing acknowledged the impact on his wider colleagues, or the profession. His admissions during the course of the hearing demonstrated that he failed to take into account that Colleagues X, Y and Z were young and that there was a power differential between his position and theirs. He too readily relied on an assertion that his inappropriate behaviour could be regarded as “banter” between colleagues or “jokey” in nature. This is not an acceptable attitude for any registrant, never mind one, who has already been the subject of fitness to practice proceedings involving social media use and has undertaken a remedial training course.

Mitigating factors

201. The Panel acknowledged that the Registrant had made some admissions. The Panel was of the view that the Registrant had demonstrated some insight in making admissions, and in his self-reflection required for his previous case, which indicated that he was conscious of the damage to service users, colleagues, his Trust, the wider profession and the HCPC as Regulator. (however, this reflection has not extended to the current case, and he distinguished the two, given that this case involved colleagues rather than service users). He has said that he regretted his behaviour and to some extent his actions bear this out in that when it was clear that contact was not wanted, it was brought to an end by him in relation to one colleague. There has been no repetition of this conduct for almost four years. The Panel took into account that the Registrant has said he has worked hard to ensure that there is no repetition and that the three plus years since the event without any concerns being raised is further evidence of his developing insight and his ability to refrain from such behaviour.

202. The Panel took into account the following facts:

• It is to his credit that he engaged both in Trust and HCPC proceedings.
• He offered to apologise at a very early stage.
• He expressed remorse at an early stage.
• These incidents pre-date his last hearing.
• He has not breached his conditions.
• Developing insight: there has been no repetition since his three day-day course professional boundaries course over three years ago.
• Positive references from his current employer and from his previous mentees.
• He was genuinely trying to be helpful to others.
• While sexual themes appear within the messaging, there was no sexual motivation.
• While sexual cases are all serious, this case does not involve any physical actions or intentional harm.
• There was no intention by the Registrant to cause harm, and he participated in reciprocal behaviour in some instances.
• There was no finding of predatory behaviour where the Registrant deliberately targeted vulnerable individuals.
• He has undertaken steps taken to remediate and minimise repetition in relation to social media.

203. In balancing the aggravating and mitigating factors in this case, the Panel was mindful that the Registrant had made some admissions and had also offered to apologise for his offending behaviour. However, the Panel also had regard to the serious nature of the offending behaviour and the fact that the Registrant was willing to cross professional boundaries by acting in a way that does not inspire public trust or confidence and can cause harm.

No action

204. In reaching its decision as to the appropriate sanction, if any, to impose in the Registrant’s case, the Panel first considered whether to conclude the case by taking no action. Taking no action following a finding of impaired fitness to practise would only be appropriate in exceptional circumstances. The Panel determined that there are no exceptional circumstances in this case and that, given the seriousness of its findings, it would not be sufficient, proportionate, or in the public interest to conclude this case by taking no action.

Mediation

205. This option was not canvassed by parties specifically. However, it has been clear from the evidence in the case that this would not be a suitable disposal of the case. This is in part because Colleagues X, Y and Z do not wish to have further contact with the Registrant, but also because given the seriousness of its findings, it would not be sufficient, proportionate, or in the public interest to conclude this case in this way.

Caution Order

206. The Panel next considered whether it would be appropriate to impose a caution order. The Panel acknowledged that a caution order can have a deterrent effect and can be used as a signal to the profession and the public about what is regarded as behaviour unbefitting of a registered paramedic. The Panel was alive to the fact that imposing a caution order in a case involving sexually motivated conduct is an unusual step, notwithstanding the gravity of the offending behaviour being at the lower end of a possible scale of sexual offending.

Conditions of Practice Order

207. Moving up the scale the Panel considered a Conditions of Practise Order. It noted that such a sanction had previously been made in relation to the Registrant. The Conditions of Practise Order. While successful in addressing a risk to service users in that his wrongdoings had not been subsequently repeated, had mandated professional boundaries training. The Registrant had, however, been unable to apply the learning derived from this programme in respect of his behaviour towards his colleagues. Insufficient insight means that it is unlikely that the Registrant’s offending behaviour would be sufficiently addressed by this sanction, either in relation to possible harm to members of the public or in respect of the wider public interest.

Suspension Order

208. In considering whether suspension was appropriate, in line with the guidance offered by the SP, the Panel was required to determine whether the Registrant’s offending behaviour would be adequately addressed by this sanction. It considered both what the Registrant had done more than three years ago, the circumstances in which it occurred, how it came to end, and how he had behaved following these events up to the current time.

209. The Panel concluded that the Registrant’s behaviour was serious, as any sexual wrongdoing must be categorised. It took into account the context of the offending and the steps that the Registrant has taken to address his behaviour in terms of being far more careful about his social media use. However, it had regard to the fact that the Registrant has not evidenced any further remediation in looking at how his interactions came about, (even if he has indicated that he is willing to undertake remediation). His failure to appreciate how his interactions cross professional boundaries, and his impact on workplace colleagues who are his junior, even after completing a three-day professional boundary course is a matter of some disquiet.

210. The Panel did have concerns at the late emergence of any insight in this case, particularly given that there have been almost four years for the Registrant to reflect on matters. His failure to evidence the required level of insight meant that the Panel gave serious condition to whether the sanction of strike-off was the more appropriate one. This was because, the Registrant’s reckless behaviour had been persistent, caused harm and involved a sexual element in some instances further to the paragraph 130 of the SP which lists the criteria for strike-off.

Strike-Off Order

211. The Panel considered whether the sanction of Strike-Off Order was the more appropriate one in this case, given that in the last three years plus the Registrant has not been able to develop the requisite level of insight to demonstrate that there is no high risk of repetition. In applying the principle of proportionality, it recognised that the Registrant has shown some insight, even if with regard to the details of this case, it only came within the hearing, and that he has complied with previous conditions and engaged with these proceedings, also indicating a willingness to further remediate. Further, that the current matters did not occur after the conclusion of his previous case and the three-day professional boundaries course. The fact that there is evidence of safe practise that has not given rise to professional conduct concerns for the last four years approximately, was instrumental in the Panel being persuaded to give the Registrant this opportunity to remediate. Accordingly, the Panel considered it appropriate to give the Registrant the opportunity to remediate further.

212. The Panel considered that the sanction of Suspension Order would satisfy protecting his colleagues and the wider public. It recognised that the Registrant’s employers were pleased with his performance and considered him a valuable member of their team. It further recognised the public interest in not removing a registrant permanently from a role in which he can beneficially serve the public. Nonetheless, the Panel considered that no lesser sanction could satisfy the need to protect the public and the public interest.

Length of Suspension

213. The Panel considered that the duration of the Suspension Order should be for 12 months. This length of time takes into account that the Registrant has not demonstrated fully developed insight, mitigated the risk of repetition and that his behaviour fell far short of what is required from him. The maximum length of order reflects that the Panel had been considering Strike-Off Order as an alternative sanction.

214. The Panel were of the view that this sanction was proportionate, and would mark the gravity of his wrongdoing, while confirming that sexual behaviour in a professional context is never acceptable. The Registrant would have 12 months in order to remediate and reflect on this hearing and his future conduct with colleagues.

215. At a review hearing that will take place before the expiry of the 12-month Suspension Order, the Registrant may wish to consider what evidence he produces. Evidence that the Registrant has used this additional time to reflect on and address the shortcomings identified in this hearing is likely to be of the utmost importance.

Order: The Registrar is directed to annotate the Register entry for Mr Simon Trafford with a Suspension Order for 12 months.

Hearing dates:

Monday 31 July - Friday 04 August 2023

Monday 21 August - Thursday 24 August 2023

History of Hearings for Simon Trafford