Mr Thomas Mcnally
While Registered as a Paramedic with the Health and Care Professions Council:
1. On 5 July 2016, at Stirling Sheriff Court, you were convicted of a contravention of the Civic Government (Scotland) Act 1982 Section 52A(1) - Possession of indecent photographs or pseudo photographs of a child
2. By reason of your conviction as described at paragraph 1, your fitness to practise is impaired.
1. Mr McNally, the Registrant, is a Paramedic registered with the HCPC. On 5 July 2016, Mr McNally was convicted at Stirling Sheriff Court of possession of indecent photographs or pseudo photographs of a child contrary to Section 52A(1) of the Civic Government (Scotland) Act 1982. He was sentenced by Sheriff William Gilchrist to a Community Payback Order and subject to Sex Offender Registration for a period of three years.
2. On 8 August 2015 the Scottish Police were alerted by the National Crime Agency that a twitter account in the name of ‘tammm1234’ with an email address of ‘email@example.com had been in possession of indecent images of children. The IP address for that activity was registered to a BT Broadband account registered to Mr McNally. Upon being interviewed Mr McNally admitted that the Twitter account and email address in question belonged to him and further accepted that he had sent the images in question from his Twitter account. He denied, however, that he had any sexual interest in children and was not attracted to his seven year old step-daughter.
3. The Panel heard the submission of the HCPC, Mr McNally’s response to the submission, was that he accepted what was submitted, and Mr McNally’s response to the allegation which was to admit particulars 1 and 2 though the Panel noted that with regard to particular 2, it was a matter for the Panel’s judgement.
Conviction and caution allegations
4. Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001 provides that one of the grounds upon which an allegation may be made is that a Registrant’s fitness to practise is impaired by reason of: “(iii) a conviction or caution in the United Kingdom for a criminal offence…”
5. Conviction and caution allegations are not about punishing a registrant twice. The Panel was advised by the Legal Assessor to consider the guidance in the HCPTS Practice Note entitled Conviction and Caution Allegations and followed that advice. The Practice Note states: A conviction or caution should only lead to further action being taken against a registrant if, as a consequence of that conviction or caution, the registrant’s fitness to practise is found to be impaired. The Panel’s task is to determine whether Mr McNally’s fitness to practice is impaired, based upon the nature, circumstances and gravity of the offence concerned. In considering these factors, Panels need to take account of public protection in its broadest sense, including whether the registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession.
6. The Panel finds that the fact of the conviction is proved based on the admission by Mr McNally and the memorandum of conviction included in the bundle.
Decision on Impairment
7. The Panel considered the HCPTS Practice Note on Finding that Fitness to Practice is Impaired and in particular the following two elements:
• The personal component which includes looking at the current competence, behaviour etc. of the individual registrant; and the public component which includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulatory process.
8. Mr McNally has been made subject to Sex Offender Registration for a period of three years until August 2019. The HCPTS Practice Note ‘Conviction and Caution Allegations’ stipulates that inclusion on the sex offender’s register is intended to secure public protection from those who have committed certain types offences and states: ‘Generally Panels should regard it as incompatible with HCPC’s obligation to protect the public to allow a registrant to remain in or return to unrestricted practice whilst subject to registration as a sex offender.’ The relevant images relate to child pornography and the Panel has had regard to the criteria set out in R v Oliver  1 Cr. App. R 28 in assessing their seriousness; at least two of the images warrant ‘Level 3: Non-penetrative sexual activity between adults and children’. An examination of Mr McNally’s computer revealed two “Category A” movies had been downloaded which fall into Level 4 as they involve penetrative sexual activity between an adult and a child. Any offence relating to child pornography involves some degree of exploitation or abuse of a child and therefore, a conviction for such an offence is a serious matter which undermines public trust in the Registrant and the profession concerned. Dame Janet Smith considered that impairment would arise where a practitioner has brought the profession into disrepute, has breached one of the fundamental tenets of the profession and has acted in such a way that his integrity can no longer be relied upon. The Panel finds all the above considerations are relevant in this case.
9. Mrs Justice Cox stated in CHRE v (1) NMC and (2) Grant:
“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 proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
10. The Panel concludes this is was a serious offence and during the course of his employment as a paramedic Mr McNally would be expected to deal with vulnerable children. On the basis of the personal and public components, there is a current impairment and public confidence in the profession and the regulator would be significantly undermined if a finding of impairment were not made. Accordingly the Panel finds that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction
11. In coming to its decision on sanction the Panel has given careful consideration to all the circumstances of this case and all the evidence which contributed to its findings on the facts, the statutory grounds and current impairment. It has considered the submissions made by Ms Sheridan on behalf of the HCPC and has heard and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had due regard to the HCPC Indicative Sanctions Policy. The Panel has noted that any sanction must be proportionate, that it is not intended to be punitive, although it may have a punitive effect, and that it should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public and otherwise meeting the wider public interest in protecting the reputation of the Paramedic profession, maintaining confidence in the regulatory system, and declaring and upholding proper professional standards. The Panel has sought to balance the public interest against the rights of the Registrant to practise his chosen profession.
12. Mr McNally has attended the hearing and participated in the HCPC process. He admitted the fact of the conviction and accepted that his fitness to practice is impaired. He stated that he does not wish to return to Paramedic practice and he offered to agree to a voluntary removal from the HCPC register.
13. With those factors in mind the Panel then considered the available sanctions in ascending order of severity and concluded that to take no action or to impose a caution would not meet the need to protect the public or the wider public interest as it would involve no effective restriction on the right of the Registrant to practise.
14. In the Panel’s view a Conditions of Practice Order would not properly protect the public or satisfy the public interest element. Accordingly the Panel next considered whether a Suspension Order would be appropriate. The HCPTS Indicative Sanctions Policy provides for the circumstances in which a Suspension Order may be appropriate. In the Panel’s view the Registrant’s conviction is too serious for him to remain on the HCPC Register and the sanction of a Suspension Order is not sufficiently serious to declare and uphold proper standards of professional behaviour and maintain public confidence in the profession and in the regulatory process.
15. The Panel has decided that a Striking Off Order is required to meet the legitimate requirements of a sanction in this case and is proportionate in all the circumstances. The Panel has concluded that a Striking Off Order is the only appropriate and proportionate sanction in this case.
History of Hearings for Mr Thomas Mcnally
|Date||Panel||Hearing type||Outcomes / Status|
|30/06/2017||Conduct and Competence Committee||Final Hearing||Struck off|