Mr Russell W Whittaker

: Paramedic

: PA00373

: Final Hearing

Date and Time of hearing:10:00 11/10/2017 End: 17:00 13/10/2017

: ETC Venues, Avonmouth House, 6 Avonmouth Street, London, SE1 6NX

: Conduct and Competence Committee
: Caution

Allegation

Whilst registered as a Paramedic and during the course of your employment with Yorkshire Ambulance Service NHS Trust, you:

1. On or around 9 January 2016 posted comments on Facebook
[redacted]

2. Posted the following comments on Facebook:

a) "So bloody true" or words to that effect, in relation to an image [redacted]
b) "I really do!" or words to that effect, in relation to an image
which stated ' I HATE MY JOB', on or around 30 October 2015,
c) "YAS alters mine!" or words to that effect, in relation to a post which stated ' Nitrous Oxide Alters People' s Brainwaves' on or around 10 July 2015,
d) "Recruiting now!" or words to that effect, in relation to an image which stated ' Ganjabulance Service Forget Your Trouble Dudes!' on or around 18 March 2015

3. Shared an image on Facebook on or around 21
December 2015 [redacted]

4. Your actions in particular 1 were religiously intolerant

5. Your actions in paragraphs 1 - 4 constitute misconduct.

6. By reason of your misconduct your fitness to practise is
impaired.

Finding

Preliminary matters:

Amendments to the allegations

1. The HCPC made an application to amend the allegation. The Registrant was informed before the hearing of the proposed amendment to the allegations. Ms Shafton indicated that there was no objection to the proposed amendments.

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

3. The Panel acceded to the application on the basis that the amendments were minor in nature and for clarification purposes only.
Hearing in Private

4. Ms Shafton made an application for part of the hearing to be held in private. She made a second application for allegations 1 a) & 1 b), to appear in the decision as they currently appear on the HCPC website. 

5. Ms Shafton submitted that it would be necessary to hold part of the hearing in private to protect the Registrant’s private life.

6. Secondly, she invited the Panel to ensure that the public version of the decision matched the wording of the allegations, as currently shown on the HCPC website for the Registrant’s protection.  She referred the Panel to the fact that a Senior Hearings Officer had made a decision that the words used by the Registrant were ‘so inflammatory’ that they were ‘likely to cause offence’.

7.  The Panel accepted the advice of the Legal Assessor that, despite the presumption in favour of public hearings, the Panel could exercise its discretion to hear parts of the case in private. In reaching a decision, on the question of the Registrant’s private life, the Panel has taken into account Article 8 of the European Convention on Human Rights (ECHR), which provides for the right to private and family life, enshrining an individual’s right to privacy in relation to family life and health related matters. The Panel accepted the advice of the Legal Assessor that the second part of the application was wholly different. It was essentially an application to amend the allegations.

8.  Having balanced the principle of open justice against the right to private and family life, the Panel found that it was in the interests of justice for those parts of the hearing relating to the Registrant’s private life to be heard in private because of the risks of compromising the Registrant’s privacy in relation to personal health issues.

9.  The Panel sought clarification in relation to the position of the HCPC in relation to allegations 1 a) & 1 b). A decision to post one version of the allegations on the website to avoid causing offence appeared inconsistent with the HCPC’s current position, which was to set out the entire text in the public version of the decision.  Ms Harris took instructions. Having clarified the matter, Ms Harris made a further application to amend the allegations to reflect that which was on the website. She proposed that the words used would appear in Schedule 1 which is annexed to the private decision. The application was not opposed.

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

11. The Panel acceded to the application because of the importance of a consistent approach. In addition the Panel accepted that the words    un-redacted were ‘so inflammatory that they were likely to cause offence’.
Background:

12. At the relevant time, this Registrant, Mr Whittaker, worked as a paramedic at Yorkshire Ambulance Service.  He had worked within the ambulance service for 34 years. One of the Registrant’s ‘friends’ on Facebook, (Witness A), posted a link to a BBC news article ‘entitled Philadephia police officer ambushed’ “in the name of Islam”. On or around 9 January 2016, the Registrant posted a comment on Facebook about muslims and Islam which the HCPC claim was derogatory and religiously intolerant.  Witness B read the post, was offended and then telephoned Witness A to speak to him. Witness A responded on Facebook by disagreeing with the Registrant’s post. The Registrant responded [Redacted]. Witness B commented ‘nice to see the generalisation of muslims yet again’. The Registrant then apologised and said he was drunk. Witness B reported the matter to the Yorkshire Ambulance Service. The Registrant’s Facebook page was examined and the matter was investigated. The Registrant cooperated with the trust’s internal investigation and admitted writing the post he said he had been drinking and did not know that his Facebook page was public. During the course of the internal investigation he apologised to Witness B.

13. As part of that investigation, further posts on the Registrant’s Facebook pages were considered. Allegation 2 a) contained a photo with the phrase [Redacted]. The Registrant had written ‘so bloody true’. 

14. Two weeks later on 15 December 2015 the Registrant shared an image on Facebook [Redacted]. The other posts related to the Registrant’s job. Particular 2 b) related to a picture with the caption ‘I hate my job’.  On 30 October 2015 the Registrant commented ‘I really do’. On the 10 July 2015 the Registrant commented on a post which read ‘Nitrous Oxide Alters People’s Brainwaves’. The Registrant responded ‘YAS (Yorkshire Ambulance Service) alters mine’. On 18 March 2015 the Registrant posted a picture entitled ‘Ganjabulance Service Forget your Trouble Dudes’, with a cannabis leaf on it. He commented using the words ‘recruiting now’ (allegation 2 d) It is the HCPC’s case that these comments amounted to misconduct and that the Registrant’s actions in respect of particular 1 were religiously intolerant.

The Hearing

15. The Panel found all of the witnesses called by the HCPC to be consistent and credible. They heard evidence from RD who was tasked to investigate the matter on behalf of Yorkshire Ambulance Service and from Witnesses A & B.  The Panel accepted that Witness B, as a muslim, was offended by the language that the Registrant used. He stated that he found the posts on Facebook distressing, that he took them personally and that they made him angry.  He confirmed that he telephoned Witness A to find out whether the author of the post was a paramedic. When this was confirmed, he felt concern both for the reputation of the profession and for ‘service users’. He felt worried that as a paramedic the Registrant might arrive in his home, or the home of the family member, in an emergency and allow his personal views to affect the treatment afforded to members of the ethnic minority community. He stated that initially he thought about going to the police but later was persuaded to take the matter to his Trade Union Representative.

16. The Panel heard evidence from the Registrant, from Mrs Louise Whittaker and from David Hall-Thomas. The Panel found that the Registrant to be remorseful and insightful. The Panel found Mrs Whittaker and Mr Hall-Thomas to be credible witnesses, who were able to speak to the Registrant’s skill, experience and professional approach as a paramedic, and who gave evidence about his character and beliefs. The Panel attached weight to the report prepared by the Chartered Psychologist, Yvonne Watt and to the report prepared by Matthew Jordan. The Panel had regard to the written testimonials provided as part of the Registrant’s case.

17. At the end of the hearing the Panel heard submissions from Ms Harris and Ms Shafton and took advice from the Legal Assessor. In reaching a decision the Panel has taken into account all of the evidence, both oral and documentary.

Decision on Facts

18. The Registrant admitted all of the facts. The words which are the subject of the allegations are contained in the text as it appeared on the Registrant’s Facebook page and the Panel therefore finds the allegations proved.
Decision on Grounds

19. The Panel finds that allegations 1 a) & 1 b) express religious intolerance. The posts were inflammatory and include offensive language. The Panel accepts that Witness A felt the need to distance himself from the posts and to make it plain that he did not share the Registrant’s views. Witness B found the posts offensive, they caused him distress. The Panel accepted his evidence that he took them personally and that he was concerned that the comments were posted by a fellow paramedic and damaged the public’s perception of the profession.

20. The Panel accepted that the posts in relation to [Redacted] contained in allegations 2 a) and 3 were less direct and could be open to more than one interpretation. The Registrant stated that they were political posts which were critical of [Redacted] human rights record, but the Panel considers that this is far from clear from the written text. The Panel found that the photographs with their captions were capable of causing offence and taken collectively with allegations 1 a) & 1 b) amounted to misconduct. The question of the Registrant’s intention was of limited relevance since a member of the public would not be aware of the Registrant’s purpose or intention.  The Registrant’s posts as set out in allegations 1 a) and 1 b) and 2 a) and 3 were not on a private page and were available to the general public. The language used in allegation     1 a) & 1 b) was offensive and in its written form could only be construed as religiously inflammatory and intolerant. The photographs and captions  in 2 a) & 3  taken together  with the comments in  allegations 1 a) & 1 b) breached the Yorkshire Ambulance Services social media  policy and constitutes breaches of the HCPC  Standards of conduct, performance  and ethics  3 and 13:

           3   You must keep high standards of personal conduct.

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

21. The Panel finds that these posts were so serious that they amounted to   misconduct.

22. The Panel did not consider that 2 b); 2 c) and 2 d) were so serious that taken in isolation they amounted to misconduct, although the Panel considered that the posts were both inappropriate and displayed impaired judgment. In particular 2 d) made reference to cannabis and appeared to endorse its use. The Panel considers that many people would regard this post as intended to be humorous. It was an aggravating factor in relation to all of the posts that they were on the Registrant’s Facebook page which was on a public setting and that the Registrant had included the fact that he was employed by Yorkshire Ambulance Service.
Decision on Impairment 

23. Whether or not a Registrant’s fitness to practise is currently impaired is a question for the Panel alone. The Panel paid due regard to the submissions of Ms Harris and Ms Shafton and reminded itself of the HCPC’s Practice Note “Finding that Fitness to Practise is Impaired”.   The Panel accepted the advice of the Legal Assessor.

24. The Panel had regard to  the guidance given by Dame Janet Smith in the 5th Shipman Report and to  the proper approach  to  the  issue of impairment: In particular whether  the findings of fact in respect  of misconduct established  that the Registrant’s fitness to practise is impaired in the sense that he:


a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. in the past and/or is liable in the future to bring the profession into disrepute, and/or

c. has in the past breached and/or is he liable in the future to breach one of the fundamental tenets of profession; and/or

d. in the past acted dishonestly and/or is liable to act dishonestly in  the future.

25.  The Registrant has worked as a paramedic for 35 years.  The evidence was that he has always been professional in carrying out his duties as a paramedic. There was no issue as to his professional competence or his ability. He was described in the testimonials as someone with ‘a wealth of experience’, as ‘compassionate’ and ‘understanding.’ The Panel therefore does not find that the Registrant has posed or would in the future pose a risk to service users.

26. The Panel concluded that the Registrant has breached a fundamental tenet of his profession and of the HCPC Standards of conduct performance and ethics. The posts on Facebook were offensive, inflammatory and allegations 1 a) and 1 b) were overtly religiously intolerant. The behaviour constitutes breaches of the HCPC Standards of conduct performance and ethics 3 and 13:

27. In considering current impairment the Panel notes that there were a number of testimonials confirming that the Registrant has never displayed any evidence of religious or racial intolerance at work or when dealing with service users.  The Registrant has taken steps to remediate his actions. He has was open and honest when interviewed by his employer in relation to the posts on Facebook. He has been apologetic and contrite from the outset and apologised to Witness B for the offence that he caused. He has engaged with the regulatory process. The Panel accepts that he was ashamed of the words that he posted on his Facebook page.

28. The Panel further notes that the Registrant has been called to a number of incidents which were distressing and traumatic. He no longer works as a frontline paramedic and has taken a job which is less stressful and which allows him to work on a part-time basis. There has been no repetition since the events despite the fact that it is over two years since the incidents which led to these proceedings. The events took place over a discreet period in a career spanning 35 years.

29. The Registrant has completed a Ministry of Defence training module on equality and diversity.

30. In all the circumstances of this case, the Panel considers that the Registrant has demonstrated insight, remorse and remediation and the risk of repetition is negligible. The Panel therefore do not find that the Registrant is impaired in relation to the personal component. 

31. The Panel however, went on to consider the public interest in the wider sense regarding the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour. The remarks and post which formed the basis for allegations 1 a) & 1 b) were particularly inflammatory and offensive.  The use of inflammatory language directed towards a particular religious group is serious and a fair minded individual, having read the posts, as they appeared on Facebook, even having heard all of the evidence that was before the Panel, would be likely to conclude that the words were so offensive that a finding of impairment was necessary to maintain confidence in the profession and in the regulator. The Panel finds it necessary to send a clear message emphasising not only the importance of demonstrating religious tolerance but also the need for health care professionals to show respect towards everyone, whatever racial or religious creed. The Panel therefore finds that the public component of the test is met and that a finding of impairment is necessary in the public interest.

Decision on Sanction

32. The Panel heard submissions from Ms Harris and Ms Shafton with regard to sanction. The Panel accepted the advice of the Legal Assessor.  The Panel had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy (ISP). The Panel reminded itself that a sanction is not intended to be punitive although it may have a punitive effect.

33. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be. The primary function of any sanction is to address public safety from the perspective of the risk which the Registrant may pose to those who use or need his services and to the wider public interest; namely the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

34. There were aggravating features. The Registrant made racist remarks including the use of a word that many people would categorise as obscene. These remarks undermined the profession and were on Facebook, a public forum where the Registrant’s link to the ambulance service was explicit. The remarks upset and caused offence to Witness B. whilst impairment was found on the narrow ground of public interest the language used in the posts which were the subject of allegation 1.a & 1b were so offensive and inflammatory that they were removed from the HCPC website.

35. There were, however, exceptionally strong mitigating factors. The Registrant has been a member of the ambulance profession for over 35 years during which time he has received public commendations and recognition of distinguished service. 

36. The Registrant has demonstrated well developed insight.  For example, he has moved from frontline practice to lower acuity presentations to enable him to manage his workload and stress. 

37. When the comments on Facebook were pointed out to him he immediately apologised, took down the comments and subsequently closed his Facebook page.

38.  The Registrant has expressed particular remorse at all stages of investigation and during this hearing. He co-operated with his employer’s investigation and the HCPC throughout and gave oral evidence to the Panel despite the considerable stress it caused him.

39.  The Registrant has taken a variety of steps to demonstrate remediation.  He has engaged with professional services to explore contributory factors and has reflected on the events in question with professional friends and colleagues. He has completed an MOD equality and inclusion module. 

40.  The Panel accept the evidence that throughout his career the Registrant has provided a very high standard of care to service users and the Panel heard evidence from two witnesses that in his role as a paramedic he has always treated everyone equally.

41. The Registrant is of previous good character with a long unblemished record.

42. The Panel received a positive reference from the Registrant’s current employer who was aware of the allegations. He described the Registrant’s practice as “exemplary”.

43. The Panel first considered whether it would be possible to address the public interest by imposing no sanction. The Panel found that this would be inappropriate because of the inflammatory and offensive nature of the comments and the need for the regulator to send a clear message to the public and to health professionals that offensive language towards others will not be tolerated. Health care professionals must maintain proper standards of conduct and behaviour and must always display racial and religious tolerance in their private as well as their professional lives.

44. The Panel has found that because of the very strong mitigating factors in this case the imposition of a caution order is proportionate and strikes a proper balance between the need to mark the gravity of the Registrant’s actions and his long and unblemished career and his personal, exceptional mitigation. Conditions of Practice were not applicable. In light of the mitigating factors and the Registrant’s long and unblemished career, suspension from practice would be wholly disproportionate.

Order

Order: That the Registrar is directed to annotate the register entry of Mr Russell W Whittaker with a caution which is to remain on the register for a period of 12 months from the date this order comes into effect. 

Notes

The order imposed today will apply from 10 November 2017.

Hearing history

History of Hearings for Mr Russell W Whittaker

Date Panel Hearing type Outcomes / Status
11/10/2017 Conduct and Competence Committee Final Hearing Caution