Mr Alan Barham
Allegation as amended:
Whilst registered as a paramedic and employed as a Disabilities Assessor with Capita:
1. On the Channel 4 programme ‘Dispatches: The Great Benefits Row’ broadcast on 11 April 2016 you stated to a trainee assessor:
(a) in relation to an unknown service user’s Personal Independent Payment (PIP) Assessment, “I’d literally finished his assessment before I’d even walked in the door. I’d done it on Saturday,” or words to that effect.
(b) in response to a question regarding PIP assessments that you carry out, “Most of it’s informal obs you catch them out on” or words to that effect.
(c) in response to a question regarding PIP assessments that you carry out “They’re informal, that’s why you don’t have to say anything. They’ll tell you everything that they want to tell you, is wrong, you can completely dismiss it more often than not. You’ll get your whole assessment done with watching what they do” or words to that effect.
(d) in relation to an unknown service user’s PIP assessment “disability known as being fat. She asks for help to wipe her arse because she’s too fucking fat to do it herself” or words to that effect.
2. You did not maintain the confidentiality of service users in that as shown on the Channel 4 programme ‘Dispatches: The Great Benefits Row’ broadcast on 11 April 2016 you:
(a) took a photo/s of a PIP assessment of an unknown service user/s on your personal phone;
(b) admitted to the trainee assessor that you had taken photos of PIP assessments in the past and retained them on your personal phone.
3. The matters set out in Paragraphs 1-2 constitute misconduct and/or a lack of competence.
4. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
Application to Amend
1. At the beginning of the hearing, Ms Chaker, Counsel appearing on behalf of the HCPC, applied to amend a number of the particulars. The Registrant did not oppose the application.
2. Having heard and accepted the advice of the Legal Assessor, the Panel decided to allow the proposed amendments in full. It was of the view that the amendments were minor in nature, essentially clarifying the position of the HCPC, and did not materially change the nature of the allegations against the Registrant. The Panel was satisfied that there would be no prejudice to the Registrant in allowing the proposed amendments.
Parts of the Hearing to be in Private
3. The Panel, with the agreement of the parties, determined to hear any parts of the evidence which related to the Registrant’s health or personal circumstances in private, so as to protect his private life.
4. The Registrant is a Paramedic registered with the HCPC. He started working in the ambulance service in 2003 as an Emergency Medical Technician (EMT). He qualified as a Paramedic in 2008. In 2014 he went to work for Capita and was employed by Capita as a Disability Assessor.
5. On 11 April 2016, the television programme ‘Dispatches: The Great Benefits Row’, was broadcast on Channel 4. It was a programme about the Personal Independence Payment (PIP), and the assessments carried out to determine the entitlement of claimants to this benefit. An undercover journalist went undercover, posing as a trainee Disability Assessor at Capita, one of the private companies with a contract with the Department of Work and Pensions (DWP) to carry out PIP assessments. As part of his training, the journalist met with the Registrant, and asked him questions about what the assessment process involved. The conversation was broadcast as part of the ‘Dispatches’ programme.
6. In the course of the conversation the Registrant was recorded as making the comments about the nature of the assessments and an unknown service user, as set out in particular 1(a) to (d). He was also recorded admitting to taking and retaining photographs on his personal phone of PIP assessment records, as set out in sub-particular 2(a) and (b).
7. Following broadcast of the documentary the HCPC received a number of referrals from members of the public about what had been shown in the programme.
Decision on Facts
8. At the outset of the Hearing, the Registrant admitted each of the factual particulars.
9. The evidence of the HCPC consisted of a DVD of the ‘Dispatches: The Great Benefits Row’ programme, and a written statement producing it, from EA, a legal assistant at Kingsley Napley.
10. The Registrant gave evidence, and provided two bundles of documents, the first of which was his response to each of the particulars, with supporting evidence in the form of policies and protocols from Capita, and the second of which contained testimonials from DC, a personal friend and former colleague from the Ambulance Service, CS, Watch Manager from the Fire and Rescue Service, and former colleague, DG, Paramedic and colleague, and from two service users seen by the Registrant in his current role conducting health assessments for an insurance company.
11. The Panel heard and accepted the advice of the Legal Assessor. Although the Registrant admitted each of the particulars of fact relating to factual matters, the Panel recognised that it had to be satisfied that those particulars of fact were capable of proof. The Panel recognised that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred.
12. The Panel considered the evidence of the Registrant. It considered his evidence on the whole to be honest and credible. The Panel concluded that he sought to assist the Panel, answering its questions and those of the presenting officer in an open manner, including when describing the behaviour he admitted. It considered that, on occasion, the Registrant sought to portray a more favourable impression than was justified. For example, the Registrant’s initial description of his interview with the Editor of Disability News Publication (DNS) was not, in the Panel’s view, entirely in accordance with the on-line article which was published. The Panel, however, was of the view that his evidence overall was credible and could generally be relied upon.
13. The Panel finds particulars 1(a), 1(b), 1(c) and 1(d) proved on the basis of the “Dispatches” footage and the Registrant’s admissions.
14. In light of the Registrant’s admissions, the Panel was satisfied that the Registrant was the Disability Assessor featured in the ‘Dispatches’ programme in conversation with the journalist posing as a trainee assessor. Having viewed the footage of the programme, the Panel was satisfied that the Registrant said the following, or words to that effect:
Particular 1(a) – ‘I’d literally finished his assessment before I’d even walked through the door, I’d done it on Saturday’;
Particular 1(b) – ‘Most of it’s informal obs you catch them out on’;
Particular 1(c) – They’re informal, that’s why you don’t have to say anything. They’ll tell you everything that they want to tell you, is wrong, you can completely dismiss it more often than not. You’ll get your whole assessment done with watching what they do’; and
Particular 1(d) – ‘Disability known as being fat. She asks for help to wipe her arse because she’s too fucking fat to do it herself’.
Particulars 2(a) and 2(b) – Not proved
15. The Panel finds 2(a) not proved.
16. The Panel was satisfied that the footage in the ‘Dispatches’ programme showed the Registrant taking a photograph of a screen using his mobile telephone and in the context of discussing PIP assessments with the trainee assessor. The footage showed him taking one photograph. The Registrant, in the footage, stated that he took photographs of assessments, and accepted in his evidence that he took photographs. The Panel was satisfied that it was more likely than not that the Registrant had taken a photograph of at least part of a PIP assessment.
17. The Panel next referred back to the stem of the particular, which alleges that the Registrant did not maintain the confidentiality of service users. The Panel was mindful that the ‘Dispatches’ footage did not show the contents of the screen which was photographed by the Registrant, nor a copy of the photograph itself. There was no evidence before the Panel of the contents of the photograph he took.
18. The Registrant gave evidence that he would not photograph the whole of a PIP assessment, which would be about 35 pages in length. He said that he would photograph that part of it which recorded the date, time, status and location of the appointment details, so as to provide evidence that he had undertaken the assessment, so that he would be paid for it. He said that in the past he had been underpaid by payroll, telling him there was no evidence of him completing the assessments. He produced in evidence an example of a copy of what he would photograph, and explained that the photographs which he took would not contain any personal details of a service user. He explained that he did not need to photograph any personal information of the service users themselves, as only his own computer screen would be able to generate that document. He said that he could see how damning it looked in the programme, and accepted that it was wrong.
19. The Panel considered that a breach of confidentiality would comprise some link between the identity of a service user and their PIP assessment record. Confidentiality would not, therefore, be maintained, if it were possible to identify the service user from the photographed part of the PIP assessment. In the absence of evidence as to the extent of information in the PIP assessment photographed, the Panel was not satisfied that the photograph which the Registrant had been filmed taking contained details capable of leading to the identity of the service user. Therefore, the Panel was not satisfied that the Registrant had not maintained the confidentiality of service users when he was shown taking a photograph of a PIP assessment of an unknown service user in the ‘Dispatches’ programme.
20. The Panel finds particular 2(b) not proved.
21. The Panel was satisfied that the footage of the ‘Dispatches’ programme showed the Registrant telling the trainee assessor that he had taken photos of PIP assessments in the past and retained them on his personal mobile telephone. In evidence, the Registrant admitted that he had done this.
22. The Panel next referred back to the stem of the particular, which alleges that the Registrant did not maintain the confidentiality of service users. The Panel was mindful that the extent of the HCPC evidence was the ‘Dispatches’ footage of the Registrant’s admission to the trainee assessor that he had taken such photographs in the past. There was no evidence before the Panel of the contents of any previous photographs of PIP assessments which he had taken in the past, nor that he had made available any such photographs to the trainee assessor.
23. In the absence of evidence as to the extent of the information in the PIP assessments photographed by the Registrant in the past, the Panel was not satisfied that they would have contained details capable of leading to the identity of the respective service users. Therefore, the Panel was not satisfied that the Registrant had not maintained the confidentiality of service users when he admitted to the trainee assessor that he had taken such photographs in the past.
Decision on Grounds
24. The Panel next considered whether the matters found proved in particulars 1(a) to 1(d) amounted to misconduct and/or lack of competence, and if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.
25. The Panel considered the submissions made by Ms Chaker on behalf of the HCPC. She submitted that although lack of competence had been pleaded in the particulars, the position of the HCPC was that this was a misconduct case.
26. The Panel also considered the submissions from the Registrant.
27. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that any findings of lack of competence and/or misconduct and impairment were matters for the independent judgement of the Panel.
28. The Panel was of the view that the matters found proved in particular 1 related to a single occasion when the Registrant was recorded as making comments about the nature of PIP assessments and an unknown claimant to an undercover journalist. As such, the Panel did not consider that this represented a fair sample of the Registrant’s work, such that it could amount to a competency issue.
29. The Panel considered whether the sub-particulars of particular 1 admitted by the Registrant, either individually or cumulatively amounted to misconduct.
30. In relation to 1(a), 1(b) and 1(c), the Panel noted that the Registrant accepted saying each of these comments. He explained however that they were not accurate as to how he, in fact, carried out the PIP assessments. He accepted that the way this came across in the programme, was as if he completed paperwork before seeing service users and dismissed information they told him.
31. He explained that the policies of Capita allowed for a certain amount of pre-populating of the assessment form. It was permissible to pre-populate with information from the claimant questionnaire and medical evidence, provided it was checked and amended as necessary at the assessment. He also explained that the policies identified informal observations as one of the most important parts of the assessment. He described that he would pre-populate the form in accordance with what was permitted by the policy.
32. The Panel considered each of the Registrant’s comments at 1(a) (b) and (c) individually. The Panel heard evidence from the Registrant of the context of the conversation and that at that time he was behaving in an arrogant and big headed manner. It was of the view that in this context he had clearly been inarticulate and misleading in describing the assessment process in those terms. His comments in 1(b) about ‘catching out’ claimants, portrayed him as holding the view that many claimants were liars, which was totally at odds with an independent assessment process into whether a claim was valid or not.
33. The Panel was satisfied that each comment constituted an example of very poor practice, but taken individually, none in itself was so far below the standards expected so as to separately amount to misconduct. However, the Panel was of the view that the comments taken together portrayed a theme of the Registrant not approaching the assessment process with sufficient gravity and care. They were all said in the course of a conversation with a trainee assessor, aggravated by the fact that he was acting as a mentor for that trainee assessor. In the Panel’s judgement, the comments, when considered collectively, amount to the serious falling short of the professional standards expected of the Registrant in this role, and therefore amount to misconduct.
34. In relation to 1(d), the Panel was of the view that this comment described a vulnerable service user in disparaging and disgraceful terms. It displayed a disregard for the dignity of the service user, and was mocking of her disability. It was said to a trainee assessor, legitimising the attitude to him. In the Panel’s judgement, this comment, following the previous comments of the Registrant, was so serious in itself, that fellow members of the profession would consider it deplorable, and therefore amounts to misconduct.
35. The Panel considered the HCPC’s published standards required of Registrants: ‘Your duties as a registrant Standards of conduct, performance and ethics’. The Panel acknowledged that the programme was broadcast in April 2016, when the 2016 version would have been in force. However, the earlier date on which the Registrant had been recorded, was not known, and may have been in 2015, when the 2012 version was in force. In light of this, the Panel considered both versions.
36. In respect of the 2012 version, the Panel found that the Registrant would have breached the following standards:
• 1: You must act in the best interests of service users;
• 7: You must communicate properly and effectively with…other practitioners;
• 13: You must…make sure that your behaviour does not damage the public’s confidence in you or your profession.
37. In respect of the 2016 version, the Panel considered that the core standards identified in the 2012 version, and set out above, were essentially transferred as core standards in the 2016 version, but in the following terms:
• 1: Promote and protect the interests of service users… Treat service users…with respect;
• 2: Communicate appropriately and effectively;
• 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
38. The Panel concluded that the Registrant had breached core standards in respect of: the interests of service users; communicating appropriately and effectively; and maintaining public confidence in the individual Registrant and the profession as a whole.
Decision on Impairment
39. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’, as identified from the case law.
40. The Panel first considered the ‘personal component’, and in particular the factors of insight, remorse and remediation, all of which are relevant to its assessment of the likelihood of repetition.
41. The Panel acknowledged that the Registrant’s misconduct related to one, isolated conversation with a trainee assessor in the context of an otherwise unblemished career, first as a EMT from 2003 and then as a registered Paramedic since 2008. There were also no issues in respect of his clinical practice or competence, and no identified risks in relation to public protection as a result of his misconduct.
42. The Panel accepted the Registrant’s description in evidence of the kind of person he had become at that time, as portrayed in the ‘Dispatches’ programme, and of his subsequent personal journey to the person he was now. He explained how, over the months before he was filmed, he had become “arrogant” and “big headed”. He had been lauded at Board level for the high percentage of excellent reports he produced; he was held in high regard by colleagues; and he was well paid. He said that he allowed all this to “go to his head”. Latterly friends and family had told him how he was behaving. By the time that he was informed by his employer of the footage of him, he had begun to identify the arrogant, ignorant and selfish characteristics in his behaviour.
43. The Panel acknowledged that the Registrant had reflected over the 18 months since the programme was broadcast, both personally and with friends and family. Initially he had sought to explain his actions in terms of being a ‘scapegoat’ for Capita, and that he had simply been following their policies and procedures in respect of pre-populating the PIP assessment forms and Informal Observations. This stance had still been in evidence in the interview that he had given to the Editor of the Disability News Service, in February 2017, although in his evidence, he repeatedly accepted that he was the only person to blame. He recognised the adverse impact that his comments would have had on the trainee assessor, who may have been left with the impression that it was appropriate to conduct oneself like that. He also recognised the damage in respect of public confidence in the reputation of Capita’s PIP assessment process, and the reputation of the profession as a whole.
44. In evidence the Registrant described his comments about the claimant as disgraceful, aggressive and nasty, and after he had said them he knew he had crossed the line. He was embarrassed and ashamed to see himself in the footage. Initially in cross examination, he denied that he had been mocking the claimant, but in response to Panel’s questions, he readily accepted that he had been mocking her.
45. The Panel had regard to the testimonials of former work colleagues of the Registrant, which attested to a high level of commitment and dedication on the part of the Registrant. They also attested to his usual high standards of conduct and behaviour, including professionalism, compassion and empathy when working with the general public.
46. The Panel accepted the Registrant’s evidence regarding his shame and embarrassment at seeing himself in the footage, displaying the attitude of an individual with little regard for the integrity of the PIP assessment process or respect for the service users reliant on the outcome of the assessments. As a result of the broadcast he had been publicly humiliated, and dismissed from Capita. Friends, family and colleagues would have seen the programme, and the effect on his personal life had been considerable. It was now around 18 months since the broadcast, and the Registrant was facing the HCPC regulatory proceedings. These factors in themselves indicated that the Registrant had learnt a salutary lesson and was unlikely to behave in that way again.
47. The Panel did not consider that there was likelihood of recurrence. In addition to the salutary lesson learnt by the Registrant, it accepted that he had demonstrated genuine and heartfelt remorse for his actions. He had reflected on his behaviour at length, with the assistance of friends and family, and had sought to change the emphasis of his work-life balance and had completed an on-line Equality and Diversity Course in September 2016.
48. The Panel identified that there had been an ongoing process of developing insight, including up to giving evidence to the Panel. It appeared to the Panel, that the Registrant’s shame and embarrassment in respect of his behaviour, as recorded, had led him, initially in evidence, to present his interview with DNS in a more favourable light than was merited. He had also come to accept somewhat late in the process that his comments about the claimant had been more than throw away comments, but had been mocking of her. Aside from these matters, which indicated to the Panel that his insight was still developing and not yet complete, the Panel concluded, from all the material before it, that in respect of the personal component the Registrant’s fitness to practise is not currently impaired.
49. The Panel went on to consider the ‘public component’, and in particular the effect the Registrant’s behaviour filmed in the programme would have on public confidence in the profession.
50. The Panel considered that the Registrant’s behaviour, captured by the undercover journalist, had brought the profession into disrepute. It had also breached a fundamental tenet of the profession, namely acting in the best interests of service users. The role of Disability Assessor required a qualified healthcare professional, and as a Paramedic, the Registrant was eligible. The impact of his portrayal in the programme was that the public saw a Disability Assessor who lacked empathy and respect for the vulnerable claimants he was assessing and who did not act in their best interests.
51. In the Panel’s view, it is paramount that the public is able to trust the integrity of the PIP assessment process. Individual claimants as well as the general public need to have confidence that the Disability Assessors carry out the PIP assessments in a fair and sensitive manner; respecting the dignity of the claimants, and having regard to the sensitive nature of the personal and medical information provided. They also need to be reassured that a senior employee, acting in the role of mentor to a trainee assessor, instils the importance and integrity of the assessment process to the mentee. In the Panel’s view, the Registrant’s actions on that day, failed to convey this.
52. In all the circumstances, the Panel concluded that a finding of Impairment was required to declare and uphold proper standards of conduct and behaviour. It was of the view that public confidence in the profession and the Regulator would be undermined if it did not make a finding of Impairment, as the public would be left with the impression that no steps had been taken to draw to the Registrant’s attention, the profound unacceptability of his behaviour on that day.
53. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction
54. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration.
55. The Panel took account of the submissions of Ms Chaker on behalf of the HCPC and those of the Registrant. It also had regard to all of the material previously before it, including the references.
56. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Indicative Sanctions Policy (ISP) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.
57. Before considering the individual options open to the Panel, it considered the significant aggravating and mitigating features, which have previously been identified at the misconduct and impairment stage of this case.
58. The Panel considered the following to be the significant aggravating factors:
• the undermining of public confidence in the integrity of the PIP assessment process
• the lack of respect for the service users reliant on the outcome of the PIP assessments.
59. The Panel considered the following to be the significant mitigating factors:
• a single incident in an otherwise unblemished career
• the Registrant’s engagement with the regulatory process
• the Registrant’s extensive remorse and ongoing development of insight .
60. The Panel first considered whether any sanction was necessary. It looked at paragraph 8 of the ISP, which reminds Panels that even if it has determined that fitness to practise is impaired, it is not obliged to impose a sanction. It says: ‘This is likely to be an exceptional outcome, but for example, may be appropriate in cases where a finding of Impairment has been reached on the wider public interest grounds…but where the registrant has insight, has already taken remedial action and there is no risk of repetition.’ Whilst on its face much of this appeared to apply to this case, the Panel was not of the view that this was an exceptional case, justifying such a course.
61. In reaching this view, the Panel considered that the attitude displayed by the Registrant in the programme, namely of an individual with little regard for the integrity of the PIP assessment process or respect for the service users reliant on the outcome of the assessments, was such that to take no action would send out the wrong message to the public. It concluded that some form of sanction was necessary to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.
62. Given that the Panel had ruled out that this was an appropriate case for no further action, it concluded that mediation was also not an appropriate outcome in this case.
63. The Panel then considered whether to make a Caution Order. Having regard to the ISP, it was of the view that paragraph 22 was particularly relevant in this case. It starts: ‘A caution order is an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.’
64. The Panel was of the view that the misconduct could properly be described as a lapse which was both isolated and limited. It occurred in one conversation with a single trainee. It was limited in the sense that it was a lapse in his career as a whole, and involved discrete behaviours.
65. However, the Panel did not consider that the lapse was ‘relatively minor in nature’. It considered its finding at the Impairment stage and that the Registrant’s behaviour shown in the footage would have undermined public trust in the integrity of the PIP assessment process, leaving the public with the impression that: Disability Assessors did not carry out the PIP assessments in a fair and sensitive manner; did not respect the dignity of the claimants, and did not have regard to the sensitive nature of the personal and medical information provided.
66. The Panel also had regard to that part of paragraph 22 of the ISP, which reads: ‘A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate”. In relation to this, the Panel was mindful of its earlier findings to the effect that the Registrant has shown developing and ongoing insight and his conduct, when set against the references, and his previously unblemished career, was out of character.
67. The Panel also had regard to its earlier findings that the Registrant was not impaired in respect of the personal component, and there were no issues with his clinical practice. In light of this, the Panel agreed with the submissions of Ms Chaker, that there were no meaningful practice restrictions which could be imposed on the Registrant’s practice, and so a Conditions of Practice Order was not appropriate in his case.
68. The reality was, therefore that the next applicable sanction to consider in the hierarchy of sanctions, if a Caution Order was not appropriate, was that of a Suspension Order.
69. In light of the above, the Panel concluded that a Suspension Order would be disproportionate and unduly punitive in the particular circumstances of this case. The Panel recognised that members of the public who had watched the ‘Dispatches’ programme and seen the disgraceful behaviour of the Registrant may expect that the Registrant should be suspended from the Register. However, the Panel has had the benefit of assessing the Registrant in his evidence over the course of this Substantive Hearing, and it had the benefit of testimonials in respect of his usual standards of conduct and behaviour. The Panel has had the opportunity to assess and understand the Registrant’s current attitude and demeanour, and to make the findings, as earlier identified, in respect of his insight, remorse, reflection and the risk of repetition. The Panel also considered the fact that, for a finite period, a Suspension Order would deprive the public of the services of an otherwise well qualified and previously highly regarded Paramedic.
70. In all the circumstances, therefore, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order.
71. The duration of the Caution Order will be for the maximum period of five years. A shorter period would not, in the Panel’s view, be sufficient to mark the seriousness of the misconduct. The Panel did not view a Caution Order as a lenient sanction. It would appear on the Register for five years, and affects his employability and his reputation. It would serve to appropriately mark the case in respect of the public’s perception and from the perspective of the profession that his behaviour filmed in the ‘Dispatches’ programme had been wholly unacceptable and had led to disciplinary proceedings by his regulator, and ultimately a lengthy sanction.
History of Hearings for Mr Alan Barham
|Date||Panel||Hearing type||Outcomes / Status|
|18/09/2017||Conduct and Competence Committee||Final Hearing||Caution|