James W Daborn

: Paramedic

: PA34876

: Final Hearing

Date and Time of hearing:10:00 08/05/2017 End: 17:00 15/05/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (as amended on 8 May 2017):

During the course of your employment as a Paramedic with South East Coast Ambulance Service (“SECamb”):

1. On 31 March 2013 and following incident 21783940, you created Automated Vehicle Location (“AVL”) gaps by resetting the Mobile Data Terminal.

2. On 11 June 2014:

a. You created AVL gaps by resetting the Mobile Data Terminal which gave the impression that your ambulance was unavailable;

b. In relation to incident 2283647, you:

i. Did not book clear for approximately 50 minutes;

ii. As a result of not booking clear, you were unavailable to respond to incident 2283647 and caused a delay in the response time.

c. In relation to incident 22836099, you:

i. Delayed booking clear for approximately 15 minutes;

ii. As a result of delaying booking clear, you caused a delay in the response time for incident 22836099.

3. On 5 July 2014, you:

a. Demonstrated to colleagues how to reset the Mobile Data Terminal and stated “if we do this they can’t track us!” or words to that effect;

b. Created AVL gaps by resetting the Mobile Data Terminal which gave the impression that your ambulance was unavailable following incident 2289649.

4. On 7 July 2014 and following incident 22902112, you:

a. Created AVL gaps by resetting the Mobile Data Terminal which gave the impression that your ambulance was unavailable;

b. Made an inappropriate comment by saying that you would head back to base using “the cloak of invisibility” to ensure that you finished on time, or words to that effect.

c. Did not respond to group-wide emergency calls at:

i. 21:51 hours;

ii. 21:53 hours; and

iii. 21:56 hours.

5. On 6 July 2014 and following incident 22898164, you told Colleague A to tell the Emergency Operations Centre (“EOC”) that there was a delay in booking clear because you [and/or the crew] were restocking drugs, or words to that effect, which was untrue.

6. On 8 July 2014 and in relation to incident 22903218, you told EOC you and/or the crew were still cleaning faeces and urine from the patient stretcher, or words to that effect, which was untrue.

7. On 8 June 2014 and in relation to Incident 22828533:

a. You delayed booking clear for 8 minutes;

b. As a result of which you caused a delay in the response time by approximately 12 minutes.

8. On 8 July 2014 and whilst on routine backup, you requested to be put on a running call to attend a potential patient knowing that consent to transport was not given.

9. The matters described in paragraphs 1, 2, 3, 4(a), 5, 6, 7 and/or 8 were dishonest.

10. The matters set out in paragraphs 1 – 9 constitute misconduct.

11. By reason of that misconduct your fitness to practice is impaired.

Finding

Preliminary matters:

Service

1. The Panel had sight of a letter sent to the Registrant at his registered address on 4 November 2016, giving notice of today’s hearing, and determined that service had been properly complied with in accordance with the requirements of the Health Professions Council (Conduct and Competence Committee) Rules 2003 (“the Rules”).
Proceeding in absence

2. The Panel accepted the advice of the Legal Assessor, who took the Panel to the Practice Note on Proceeding in the Absence of the Registrant, to Rule 11 and to the guidance given in the cases of R –v- Jones [2003] 1 AC 1, Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC -v- Adeogba [2016] EWCA Civ 162.

3. The Panel was also provided with a letter which had been sent in by the Registrant’s solicitor on behalf of the Registrant dated 21 April 2017, stating:
“We can confirm that both ourselves and Mr Daborn are content for the hearing to proceed in our absence”.
The letter also provided submissions in response to the Allegation.

4. The Panel concluded that the Registrant had been served with the notice of hearing. He had not applied to adjourn the proceedings and the Panel concluded that it was unlikely that he would attend if the matter were to be adjourned. It was clear from the letter of 21 April 2017 that he had decided not to attend the hearing. The Panel had the benefit of the Registrant’s written response to the allegation via his solicitor. The Panel bore in mind that it was in the public interest to hear cases expeditiously, and that the HCPC intended to call five live witnesses. Accordingly, the Panel decided to proceed in the absence of the Registrant.
Application to amend the allegation

5. Ms Watts applied to amend the allegation. The Panel had provided Ms Watts with time at the commencement of the proceedings to notify the Registrant’s solicitor of the proposed amendments. This had been done, and a response had been received by way of an email dated 8 May 2017, at 14.11 hours, in which the Registrant’s solicitor raised no objection to the proposed amendments.

6. The Panel concluded that the amendments better reflected the way in which the HCPC sought to put its case and did not cause unfairness to the Registrant. The Panel took account of the fact that the Registrant, through his solicitor, had raised no objection to the proposed amendments.  The Panel decided to allow the amendments on the basis that it was in the public interest to do so.

Witnesses

7. The Panel heard from five witnesses called on behalf of the HCPC:

• AP – Clinical Operations Manager
• SM – Dispatch Team Leader
• Colleague A - Paramedic
• Colleague B - Paramedic
• Colleague C - Paramedic

8. The Panel was also provided with a written statement from:

• HS - Professional Standards Manager.

Background

9. At the time of the allegation the Registrant was employed as a Paramedic with South East Coast Ambulance Service NHS Foundation Trust (“the Trust”). He worked in the Operations department, based at Guildford Ambulance Station and attended 999 calls, hospital transfers and urgent General Practitioners calls. He occasionally acted as Clinical Team Leader, when he had management responsibility for paramedics, ambulance technicians and emergency care support workers. He also acted as a mentor to students.

10. On 11 July 2014 Colleague A raised concerns that whilst working with the Registrant on 6, 7 and 8 July 2014 the Registrant had tampered with the Mobile Data Terminal (MDT) in his ambulance by resetting it. This led to the commencement of an investigation led by AP.

11. In the course of this investigation Colleague C raised similar concerns in relation to 5 July 2014. This was investigated separately by SM.

12. SM reviewed the Automated Vehicle Location (AVL) logs relating to the Trust for the period June and July 2014. She identified a number of other incidents where the Registrant had allegedly tampered with the MDT.

13. As explained by SM in her first witness statement
“All SECamb ambulances are fitted with a Mobile Data Terminal (MDT) which is generally located in the centre of the dashboard of the vehicle. It is a communications device which transmits data about incidents and messages between the dispatch team, and the ambulance crew. All jobs are sent via the MDT and any written messages which are communicated between teams also appear on the MDT device. The MDT is a seven inch screen and is operated by Windows. The MDT has a Global Positioning System (GPS) which shows the exact location of the ambulance specifying road name and the speed the vehicle is traveling….
The MDT system is designed to be on at all times and the screen will only shut down if the vehicle's battery has little or no power. If the ambulance is switched off, the GPS system will continue to work and report back data about the location of the vehicle.
When a crew is signed on to an ambulance, the MDT collates data in intervals of between five seconds and five minutes. The MDT unit will update at different times depending on the status of the ambulance. If a crew is travelling to an emergency, under emergency conditions, five second updates are provided. Five minute intervals are used when a vehicle is signed on, stationary and the ignition is turned off.”
The Panel also heard that on a normal journey the AVL sends an update every 15 seconds and records vehicle location and speed, in an emergency an update is sent every 5 seconds, and when the vehicle is stationary the update is sent every minute.

14. The Panel heard that the MDT can be reset by pressing a button at the back of the device. This occasionally needed to be done when the machine froze and on such occasions the crew were required to notify EOC. On any other occasion resetting the MDT was not permitted as this had the effect of hiding the vehicle’s whereabouts from the dispatcher.

15. In the course of an internal investigation meeting held on 21 August 2014 the Registrant admitted tampering with the MDT.

16. In a letter dated 21 April 2017 to the HCPC, the Registrant’s solicitors stated:

“We confirm that Mr Daborn admits allegations 1-10 in full”.

17. In an email dated 8 May 2017 the Registrant’s solicitors stated:
“I have taken instructions from Mr Daborn and he can confirm that he admits all of the amended allegations”.

Decision on Facts

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

19. The Panel concluded that AP was an honest witness, patient focussed, and credible, although the Panel noted that he did occasionally make assumptions. In the Panel’s view SM was straightforward, thorough in her investigation, credible, consistent, and was of assistance to the Panel. Colleague A was visibly upset by the events that she recounted. She admitted to having a strained relationship with the Registrant. She was honest in giving her evidence to the Panel even when this was to her disadvantage, and was credible. Colleague B was unable to recollect much more than had been set out in his statement, which was understandable due to the passage of time. He stated when he could not remember and did not speculate. Colleague C was clear, confident and matter of fact in her answers. She had got on well with the Registrant. When she did not know something, she said so. The Panel found her to be honest and credible.
Particulars 1:

On 31 March 2013 and following incident 21783940, you created Automated Vehicle Location (“AVL”) gaps by resetting the Mobile Data Terminal.

20. According to the evidence of AP, the Registrant had said in interview that he had been told how to turn off the MDT unit during a shift he had with Colleague E. SM informed the Panel that in the course of her investigation she reviewed the available data relating to 31 March 2013. This was a day when the Registrant had been on duty with Colleague E. SM exhibited the AVL data log and the incident details form for the Registrant’s ambulance following incident 21783940, which the Registrant had attended. She told the Panel that the vehicle had travelled at 30 mph, which should have resulted in updates being sent from the vehicle between every 15 seconds and a minute (depending whether the vehicle was moving), whereas the data revealed that no updates were sent for a period of ten minutes, between 18.52 and 19.02 and a period of 3 minutes between 19.04 and 19.07. SM gave evidence that this must have been due to the system being reset during this time.

21. The Panel accepted the evidence of SM, together with the documentary exhibits produced by her, and concluded that gaps were created in the AVL log by resetting the MDT following incident 21783940.

22. On the basis of this evidence together with the Registrant’s formal admission made by him through his solicitor, the Panel found Particular 1 proved.

Particular 2:

On 11 June 2014:

(a) You created AVL gaps by resetting the Mobile Data Terminal which gave the impression that your ambulance was unavailable;

(b) In relation to incident 2283647, you:

(i) Did not book clear for approximately 50 minutes;

(ii) As a result of not booking clear, you were unavailable to respond to   incident 2283647 and caused a delay in the response time.

23. SM gave evidence that on 11 June 2014 the Registrant was called to an incident but was informed that he was not needed when he arrived. The AVL log showed that at 14.05 his vehicle moved away from the scene. SM gave evidence that as the Registrant was no longer needed he should have “booked clear”, meaning that he should have notified the EOC that he was “clear” to attend a new job. Instead the AVL log revealed that this was not done until some 50 minutes later, at 14:55. SM told the Panel that the AVL log showed that the vehicle was stationary in a car park during part of this time. A gap was created in the AVL log at 14:37 when the ambulance appears to have driven to the car park.

24. SM informed the Panel that at 14:34 a call was made in relation to incident number 2283647. SM said that, unknown to the EOC, the Registrant was in fact available to attend this incident, and that had this been known his vehicle would have arrived 6 to 7 minutes faster than the first response vehicle that was sent in his place.

25. The Panel was informed that incident 2283647 related to an unresponsive patient who was unconscious but breathing. Subsequently the patient was pronounced dead. There was, however, no evidence to suggest that this death could have been prevented had the response been quicker.

26. The Panel accepted the evidence of SM, together with the documentary exhibits produced by her, and concluded that the system must have been reset between 1405 and 1455, which had given the impression that the ambulance was unavailable. The Panel accepted that for a period of 50 minutes the vehicle had not been booked clear, and that as a result the Registrant’s vehicle was unavailable to respond to incident 2283647, which caused a delay in the response time to that incident.

27. SM also noted in her evidence a gap in the AVL log of 2.6 minutes at 11:45 on the same day.

28. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel found Particular 2 (a) and (b)(i) and (ii) proved.

(c) In relation to incident 22836099, you:

(i). Delayed booking clear for approximately 15 minutes;

(ii). As a result of delaying booking clear, you caused a delay in the response time for incident 22836099.

29. SM informed the panel that on 11 June 2014 the Registrant’s vehicle set off from the hospital at 10.30 and did not book clear until 10:45, 15 minutes later.

30. SM informed the Panel that a call was made at 10:28 am in relation to incident 22836099, and that had the Registrant’s vehicle booked clear at 10.30 and attended, it would have arrived on the scene faster than the other vehicle that was sent. Incident 22836099 related to a patient who was reported to be fitting.

31. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel concluded that the Registrant had delayed booking clear between 10.30 and 10.45 and that this caused a delay in the response time for incident 22836099.

32. Accordingly the Panel found Particular 2 (c) proved.

Particular 3:

On 5 July 2014, you:

(a)  Demonstrated to colleagues how to reset the Mobile Data Terminal and stated “if we do this they can’t track us!” or words to that effect;

(b)  Created AVL gaps by resetting the Mobile Data Terminal which gave the impression that your ambulance was unavailable following incident 2289649.

33. Colleague C gave evidence that on 5 July 2014 she was crewed with the Registrant together with Colleague B. She asserted that in the course of the day the Registrant held down a button on the back of the MDT, saying “if we do this they can’t track us”. She said that this caused the screen to go blank.

34. SM investigated this incident and reviewed the AVL logs for 5 July 2014. She obtained the assistance of CT, Director of TERRAFIX, who was the person responsible for writing the software for MDT units. CT’s investigation revealed that an AVL gap of 2.5 minutes had been created following incident 2289649, which was an incident that Colleague C and the Registrant had attended together.

35. SM then consulted the “ACETECH” system, which was an additional system deployed in a few of the ambulances to log the exact location of the ambulance, and which could not be overridden. This confirmed that the MDT had been reset between 19.02 and 19.04.

36. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel concluded that the Registrant had demonstrated to Colleague C how to reset the MDT, whilst saying “if we do this they can’t’ track us” or words to that effect. The Panel also concluded that he had created AVL gaps by resetting the MDT, which had given the impression that his ambulance was unavailable following incident 2289649.

37. Accordingly, the Panel found Particular 3 proved.

Particular 4:

On 7 July 2014 and following incident 22902112, you:

(a)  Created AVL gaps by resetting the Mobile Data Terminal which gave the   impression that your ambulance was unavailable;

(b)  Made an inappropriate comment by saying that you would head back to base using “the cloak of invisibility” to ensure that you finished on time, or words to that effect.

(c)  Did not respond to group-wide emergency calls at:

(i) 21:51 hours;

(ii) 21:53 hours; and

(iii) 21:56 hours.

38. Colleague A gave evidence that on 7 July 2014 she was crewed with the Registrant together with a fellow student paramedic, Colleague B. Colleague A said that following Incident 22902112, after they handed the patient over at about 9.40 pm (the incident form records hand-over time as 21.44), the Registrant did not respond to Category A calls. He pressed the button on the MDT all the way back to the station, saying that they would “use their cloak of invisibility” to get back to base on time.  She recalled this in particular because of the Harry Potter reference. She said that she told the Registrant that they needed to go to one of the local calls but the Registrant just continued to press the button, saying “no, no, no, no”.

39. Colleague B gave evidence and corroborated the assertion that the Registrant had pushed a button on the MDT whilst en route back to the station. He had seen this through the hatch whilst travelling in the back of the ambulance.

40. AP informed the Panel that Category A calls are calls made where the patient may be suffering with life threatening problems or a life-threatening incident, in relation to which the appropriate response time is 8 minutes.

41. AP reviewed the AVL logs for the Registrant’s vehicle on this date. He identified three gaps between the time when the Registrant’s ambulance arrived at the hospital at 21.31, and 22.02 when they booked clear. The Panel noted the following gaps from the AVL logs, namely: 21.50.24 - 21.53.37, 21.53.37 - 21.56.08, and 21.56.53 - 21.58.14. AP said that this suggested that the MDT unit had been reset. SM reviewed the AVL logs in relation to this date and reached the same conclusion.

42. The Panel heard that group wide emergency calls were made on this date, at 21:51, 21.53 and 21:56, and that the Registrant and his crew were on duty until 22:00 and could have attended one of these calls had the EOC been able to identify the vehicle as being free. The Panel was shown transcripts of these emergency calls.

43. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel found that the Registrant had created AVL gaps by resetting the MDT, which had given the impression that the ambulance was unavailable. The Panel also found proved that he had made an inappropriate comment by saying that he would return to the hospital using “the cloak of invisibility”. The Panel also found that he had not responded to group wide emergency calls at 21.51, 21.53 and 21.56.

44. Accordingly, the Panel found Particular 4 proved in its entirety.

Particular 5:

On 6 July 2014 and following incident 22898164, you told Colleague A to tell Emergency Operations Centre (“EOC”) that there was a delay in booking clear because you and/or the crew were restocking drugs, or words to that effect, which was untrue.

45. Colleague A gave evidence that on 6 July 2014 she was crewed with the Registrant together with Colleague B. She said that following incident 22898164 the crew had to clean up the ambulance before making themselves available. She said that after this was done the Registrant spent 20-30 minutes on his mobile phone, and that during this time the Emergency Control Centre (EOC) made contact to ask whether they would be available soon. She said that the Registrant told her to say that they were still waiting to sign out drugs from the hospital. Colleague A’s evidence was that she was not comfortable with saying this.

46. Colleague B said that he had been in the back of the ambulance and had not been in a position to witness what had occurred.

47. AP investigated this date. He produced a copy of the incident details sheet for incident 22898164 which showed that the Registrant’s ambulance arrived at the hospital at 10.23. He produced a transcript of the radio contact between the Registrant and EOC which recorded the Registrant’s words at 10.45 as “we gonna have a delay on booking clear we’re restocking drugs”. The incident details form therefore recorded the Registrant’s ambulance as restocking at 10.45. AP produced a copy of a voice recording from EOC at 11.08 in which EOC asked “Are you still on your drug restocking?” According to the evidence of Colleague A, the Registrant instructed her to say in response that they were still waiting to sign out drugs. Colleague A then said to EOC “Yes, urm, we are just nearly there, just sorting out the back with the blood because there was whole over everything”. Colleague A confirmed in live evidence that they were not still cleaning the ambulance. “We were just sat there.” The AVL log showed that the Regist
ant’s ambulance moved off at 10:58, but that EOC were not notified that the vehicle was clear until 11:18:54. There had therefore been a delay between 10.58 and 11.18 that could not have been caused by restocking, because the vehicle had moved away from the hospital where the drugs were kept at 10.58.

48. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel found that following incident 22898164 the Registrant told Colleague A to tell EOC that there was a delay in booking clear because they were restocking drugs, which was untrue. The Panel therefore found Particular 5 proved.

Particular 6:

On 8 July 2014 and in relation to incident 22903218, you told EOC that you and/or the crew were still cleaning faeces and urine from the patient stretcher, or words to that effect, which was untrue.

49. Colleague A gave evidence that she was crewed with Colleague B and the Registrant on 8 July 2014 on a shift beginning at 10.00 and ending at 22.00. She claimed that after attending to a patient, the Registrant drove to the car park of the hospital and had a cigarette. She said that EOC then radioed to ask when they would be booking clear, to which the Registrant replied that the crew were still cleaning out the vehicle.

50. AP produced the incident sheet for incident 22903218 which showed that the crew accepted the call at 10.53 and handed over the patient at 12.23 but did not clear from the job until 12.50. The Registrant communicated the reason for the delay to EOC by radio at 12.35 as follows: “sorry been a bit of a delay we’re still trying to clear the er <herm> and wee of this trolley, over”. The Panel were shown a transcript of that radio call.

51. Colleague A said that this communication was untrue, in that the patient had not been incontinent at any point and they were not cleaning the stretcher.

52. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel found Particular 6 proved.

Particular 7:

On 8 June 2014 and in relation to Incident 22828533:

(a) You delayed booking clear for 8 minutes;

(b) As a result of which you caused a delay in the response time by approximately 12 minutes.

53. On 8 June 2014 an incident call referenced 22828533 was made at 11.02 which related to a 72 year old lady who had fallen. SM produced the AVL log relating to the Registrant’s ambulance for this date which showed that the Registrant’s vehicle moved away from the hospital at 11.13 following a previous incident. SM informed the Panel that this could only mean that his ambulance was now available. The AVL log indicated that the Registrant’s ambulance was stationary in the vicinity of a car park between 11.13 and 11.21, causing a delay in booking clear of 8 minutes. Another ambulance attended incident 22828533 at 11.30. SM gave evidence that the Registrant’s ambulance could have arrived at the scene approximately 12 minutes earlier than this other ambulance, as they were parked only 2.5 miles away.

54. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel concluded that the Registrant had delayed booking clear for 8 minutes and that as result he caused a delay in the response time in relation to incident 22828533 by approximately 12 minutes. Accordingly, the Panel found Particular 7 proved.

Particular 8:

On 8 July 2014 and whilst on routine backup, you requested to be put on a running call to attend a potential patient knowing that consent to transport was not given.

55. Colleague A gave evidence that she was crewed with the Registrant on 8 July 2014 from 10.00 to 22.00. She said that at around 20.15 she heard the Registrant speaking to someone on the phone, saying that they had exhausted all other options and that person needed to “dial three nines”. She said that the ambulance then stopped at traffic lights beside a restaurant and that the Registrant said to his friend on his phone “if you phone now because I am sat at the traffic lights so we would get stood down”. Colleague A said the Registrant then explained to her that a friend of his was in the restaurant and was complaining of chest pain and difficulty breathing. He then radioed EOC and told them to expect a Category A call from a patient who was a friend of his, and that he was in a position to respond. Colleague A said that as a result of this the Registrant’s ambulance was stood down from being sent as a back up to an incident in Woking in order to wait for this call to come in.

56. Colleague A said that whilst they were waiting the Registrant told her that the person he had been talking to on the phone was in fact not the patient but was a friend who had witnessed a member of the public in the restaurant become unwell. The Registrant told Colleague A that he had been told that the patient did not want the involvement of the ambulance team.

57. Colleague A said that the Registrant then contacted his friend on the phone and suggested that the patient travel to hospital in her own car and that they could follow in the ambulance. Colleague A said that she told the Registrant that they should not do this because they did not have consent from the patient to do so.

58. Colleague A said that the Registrant then contacted EOC and asked to be put on a “running call”, meaning that he had come upon an incident which had not previously been reported. Colleague A said that they were on the running call for 10 – 15 minutes and that in this time there was no patient contact.

59. AP produced the transcript of the call made by the Registrant. He also produced an e-mail sent by the friend to whom the Registrant had been speaking and who confirmed that she had witnessed a member of the public become ill in the restaurant. AP gave evidence that it is not appropriate to attend a running call when the patient does not want to be attended to by paramedics.

60. It was alleged by the HCPC that, knowing that patient did not want an ambulance, the Registrant nevertheless asked to be put on a running call, which he should not have done as he did not have consent from the patient to transport them.

61. On the basis of this evidence, together with the Registrant’s admission made in the course of the investigation, and the formal admission made by him through his solicitor, the Panel concluded that the Registrant had asked to be put on a running call, knowing that the patient did not want an ambulance, and that he did not have the consent of the patient to transport her. On this basis, the Panel found the facts of Particular 8 proved.

Particular 9:

The matters described in Particulars 1, 2, 3, 4(a), 5, 6, 7 and/or 8 were dishonest.

62. The Panel found, in relation to Particular 1, 2, 3, 4(a) and 7 that the Registrant had deliberately reset the MDT in his vehicle in order to mislead the EOC so that they believed that his ambulance was unavailable when in fact it had been available. The Panel concluded that this was dishonest by the standards of ordinary and reasonable members of the profession and that the Registrant must have realised that what he was doing was, by those standards, dishonest. The Panel took into account the Registrant’s admissions, and found that the matters found proved in these Particulars amounted to dishonesty on his part.

63. In relation to Particular 5 the Panel was satisfied that the Registrant instructed Colleague A, who was at the time a student Paramedic, to make a false statement and tell the EOC that there was a delay in booking clear due to the process of restocking drugs, when to his knowledge the restocking had been completed. In relation to Particular 6 the Panel was satisfied that he had told the EOC that the crew were clearing faeces and urine or words to that effect from the ambulance, when to his knowledge the patient had not been incontinent. The Panel took into account the Registrant’s admissions, and found that the matters found proved in these Particulars also amounted to dishonesty on his part.

64. In relation to Particular 8 the Panel found that the Registrant’s actions did not amount to dishonesty. This allegation had been put forward on the basis of Colleague A’s belief that the Registrant’s request to be put on a running call was based on a false premise that no patient existed. However, transcripts of the call made by the Registrant, together with the email that had been submitted by the Registrant’s friend, suggested that the request to be put on a running call had been made on the basis of a genuine cause for concern and the Panel found no evidence that the patient did not exist. In those circumstances the Panel could not be satisfied that the Registrant had acted dishonestly in relation to Particular 8.

65. Accordingly, the Panel found Particular 9 proved in relation to 1,2,3, 4(a), 5, 6 and 7 but not proved in relation to Particular 8.

Decision on Grounds

66. The Panel accepted the advice of the Legal Assessor who addressed the Panel on the meaning of misconduct. She referred to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery council (2) Paula Grant [2011] EWHC 927.

67. The Panel concluded that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics:

1. You must act in the best interests of service users.

3. You must keep high standards of personal conduct.

7. You must communicate properly and effectively with service users
and other practitioners.

13. You must behave with honesty and integrity and make sure that
your behaviour does not damage the public’s confidence in you or
your profession.

68. It was the judgment of the Panel that in each of the matters found proved, save for the matter found factually proved in Particular 8, the Registrant’s actions had fallen far below the standards expected of a paramedic in the circumstances, and were sufficiently serious to amount to misconduct.

69. In its findings of fact the Panel had concluded that the Registrant had deliberately reset the MDT in order to mislead the EOC into thinking that his ambulance was unavailable when in fact it had been available. On three occasions this had resulted in an unnecessary delay in attending to patients. On another occasion, having misled the EOC about his availability, the Registrant had heard three group wide emergency calls and yet made a conscious decision not to attend any of them. This was contrary to the wish expressed by a student colleague who had been with him at the time. He had also actively lied to the EOC and instructed a colleague to lie on his behalf: he had said his crew were in the process of cleaning up the ambulance when this was untrue and he instructed a student colleague to tell EOC that they were restocking drugs, again when this was untrue. In so doing he had coerced a student paramedic who had been placed with him on shift, by instructing them to provide untruthful information. He had also demonstrated to a colleague how to reset the MDT unit in order to conceal the whereabouts of an ambulance.

70. In relation to Particular 8 it was the judgment of the Panel that in the circumstances this did not amount to misconduct. The Panel found that the Registrant had not attempted to mislead the EOC on this occasion and that following the patient to hospital in his ambulance could have been a reasonable response to the information he was receiving.

71. In considering the incidents of misconduct, the Panel noted there had been dishonest behaviour over a period of 16 months from March 2013 to July 2014, and which started within the first year of the Registrant’s employment as a Paramedic.

72. In conclusion the Panel had no hesitation in finding that the ground of misconduct had been established.


Decision on Impairment

73. The Panel accepted the advice of the Legal Assessor who addressed the Panel on the meaning of impairment and referred to the cases of Cohen v GMC [2008] EWHC 581 and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery council (2) Paula Grant [2011] EWHC 927.

74. The Panel recognised the need to address the critically important public policy issues identified in the case of Cohen to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

75. In considering the personal component of impairment, the Panel concluded that the Registrant’s dishonest actions were not easily remediable, and the Registrant had not provided sufficient evidence of remediation of his dishonest behaviour.

76. The Panel accepted that the submissions sent in on the Registrant’s behalf suggested some remorse and regret on his part. The Panel had in mind, in particular, the following passage set out in the letter of 21 April 2017:
“I let many people down, something that I will always regret, this includes crew mates, student, patients and myself”.
The Panel also took into account the Registrant’s early admissions to the HCPC Allegation and his initial engagement with the HCPC.

77. However, notwithstanding his admission of dishonesty, the Registrant has not demonstrated any genuine understanding of the implications and impact of his dishonest actions on others. In particular he has not acknowledged the serious potential consequences of his behaviour on patient care and on the reputation of the profession of Paramedics. He has not appeared before his regulator to provide any evidence of insight into his actions. In making his ambulance unavailable to attend emergency calls and in deliberately ignoring group wide emergency calls he not only put patients at unwarranted risk of harm, but also other crews who would be travelling unnecessarily under emergency conditions. In acting in this manner he put his own interests before those of patients, breaching a fundamental tenet of his profession.

78. In the circumstances the Panel concluded that there was a significant risk that the Registrant would repeat his dishonest behaviour.

79. In considering the public component of impairment, the Panel concluded that the public would be extremely concerned if a finding of impairment of fitness to practise were not made in the circumstances of a case where a paramedic had avoided attending emergency calls by disguising his whereabouts, had actively ignored group wide emergency calls and had lied to his employer. Given the breaches of fundamental tenets of his profession including acting dishonestly, such a finding was justified on the ground that it was necessary to reaffirm clear standards of professional conduct, in order to maintain public confidence in the profession of Paramedics and the HCPC as its regulator.

80. The Panel therefore found that the Registrant’s fitness to practise is currently impaired by reason of his misconduct.

81. Accordingly the Panel found the Allegation well founded.

Decision on Sanction

82. The Panel heard submissions from Ms Watts on sanction and accepted the advice of the Legal Assessor. It referred to the Indicative Sanctions Policy.

83. The Panel bore in mind that its purpose was not to be punitive, but was to protect the public interest, which includes:

• protection of the public

• the reputation of the profession concerned

• public confidence in the regulatory process

• the deterrent effect to other Registrants

It understood that it must act proportionately, balancing the interests of the Registrant with those of the public. It considered the range of available sanctions in ascending order of seriousness, starting with the option of taking no action.

84. The Panel took account of the submissions made on behalf of the Registrant by his Solicitors set out in the letter submitted on his behalf dated 21 April 2017. The letter stated that after his resignation from the Trust in February 2015, the Registrant had accepted work as a paramedic elsewhere for a period of three months until June 2015. The Panel was provided with two testimonials from this later place of work, one from the Operations Director dated 18 April 2015 and one from the Paramedic/Clinical Team Leader dated 17 April 2015. The Panel gave consideration to these together with a further testimonial provided by the Clinical Operations Manager of South East Coast Ambulance Service dated 24 March 2015. One of the testimonials confirmed that the author had known the Registrant since his previous employment as a Police Officer and had received only good reports about the Registrant’s professional conduct and behaviour. The authors of all three testimonials said that no complaints had been raised about the Registrant’s behaviour or performance. However, the Panel noted that these testimonials dated back to March and April of 2015, and it was not apparent that they were aware of the Registrant’s admissions to the Allegation.

85. The Panel found, by way of aggravating factors, that the Registrant:

• had actively ignored emergency calls, thereby causing a direct risk of harm to the public

• had deliberately given the impression that his ambulance was unavailable, thereby causing a delay in the response to emergency calls, which also put the public at risk of harm

• he breached the trust placed in him by his employer through his dishonest actions

• had put his own interests before those of his patients, which had breached a fundamental tenet of his profession

• had acted in the way complained of in March 2013 and in June 2014 through to July 2014. This could not be regarded as an isolated incident

• had behaved dishonestly within his first year of employment as a Paramedic

• had conducted some of his dishonest behaviour in the presence of student colleagues.

86. The Panel found by way of mitigation that the Registrant had

• been of previous good character

• self-referred and then admitted the allegation in its entirety

• expressed remorse and regret

• experienced difficulties in his domestic life at the time which he has subsequently addressed

• no criticism of his clinical competence

87. In considering the matter of sanction the Panel did not regard the issue of delay in the bringing of the HCPC proceedings to a final hearing to be of material relevance.

88. The Panel considered that whilst the Registrant had expressed remorse and regret and had explained that he had been under considerable personal stress at the time, in the Panel’s view this did not constitute evidence of genuine insight into the nature of his dishonest actions and the effect that they had had on others.

89. The Panel concluded that to take no further action or to impose a caution order would be wholly insufficient to protect the public or satisfy the public interest in light of the nature of the misconduct, including repeated dishonesty and breach of trust.

90. The Panel took into account the Registrant’s statement, quoted in the letter of 21 April 2017, that “should the Panel decide to offer a second chance then I would welcome the advice and information on how I could bring my skills back up-to-date should I ever decide and be given the opportunity to return to practise”. The Panel concluded from this that the Registrant had not ruled out the possibility of returning to practise should he be given the opportunity to do so. Nevertheless, the Panel concluded that conditions of practice would be insufficient in light of the seriousness of the allegation and would be unworkable given the nature of the allegation, namely dishonesty.

91. The Panel then gave consideration to a suspension order.  The Panel concluded that the serious nature of the Registrant’s behaviour is incompatible with remaining on the register and that a suspension order would be insufficient to protect the public due to the seriousness of the matters found proved. In light of the Registrant’s lack of insight, the Panel has found a significant risk of repetition of such behaviour. The Panel also concluded that a suspension order would fail to maintain public confidence in the profession and in the regulatory process, and would not have the deterrent effect, which was in the Panel’s view required in this case, both upon the Registrant and the profession at large.

92. The Panel concluded that a striking off order was the only appropriate sanction in the circumstances. Such an order was necessary because of the Registrant’s serious, repeated and deliberate misconduct, which had included dishonesty that was directly linked to patient care and went to the heart of the Registrant’s profession. The Registrant had misled his employer by deliberately giving the impression that his ambulance was unavailable, and also had then ignored emergency calls despite being aware of their existence. He had lied to his employer about the reasons for his delay in booking clear.  He had carried out some of his misconduct in the presence of student colleagues.

93. The Panel concluded that, due to both the significant risk that the Registrant poses to the public, and the need to maintain standards of conduct and behaviour and uphold public confidence in the profession and in the regulatory process, the only appropriate and proportionate sanction in the circumstances is a striking off order.

Order

Order: That the Registrar is directed to strike the name of James W Daborn from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 9 June 2017 (the operative date).

 

 

Hearing history

History of Hearings for James W Daborn

Date Panel Hearing type Outcomes / Status
08/05/2017 Conduct and Competence Committee Final Hearing Struck off
30/03/2017 Investigating committee Interim Order Review Interim Conditions of Practice
13/01/2017 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
30/08/2016 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
01/06/2016 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
07/03/2016 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
28/09/2015 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
06/07/2015 Conduct and Competence Committee Interim Order Review Interim Conditions of Practice
24/04/2015 Investigating committee Interim Order Application Interim Conditions of Practice