QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
|- and -
|(1) HEALTH AND CARE PROFESSIONS COUNCIL
(2) CHRISTOPHER WOOD
Victoria Butler-Cole QC (instructed by BDB Pitmans) for the First Respondent
Wendy Hewitt (instructed by Brabners ) for the Second Respondent
Hearing dates: 22nd October 2019
Crown Copyright ©
MR JUSTICE PUSHPINDER SAINI :
This judgment is divided into 10 sections as follows:
I. Overview: paras. [1-11]
II. The Facts: paras. [12-34}
VIII. Ground 5: insight- paras. [84-86]
X. Conclusion: paras [91-92]
II. The Facts
III. The Allegations and the Determination
"During the course of your employment as a Paramedic, you:
1. On or around 07 May 2017, following an attendance on Person A in a professional capacity, obtained Person A's telephone number.
2. You breached professional boundaries in that you contacted Person A in text and/or social media messages:
a. between around 7 May 2017 and 30 May 2017;
b. on or around 16 June 2017.
3. The messages described at 2a included:
a. messages of an explicit and/or sexual nature
b. messages in which you offered and/or planned to meet with Person A;
c. messages in which you offered and/or planned to engage in sexual activity with Person A.
4. The matters described in paragraphs 1 and 2 were sexually motivated.
5. The matters set out in paragraphs 1-3 constitute misconduct.
6. By reasons of you misconduct your fitness to practise is impaired."
a. The admitted facts proven, in particular that Mr. Wood breached professional boundaries in that he contacted Patient A via text/social media messages, and that those messages included messages of a sexual nature and attempts to arrange to meet up to engage in sexual relations.
b. That the facts admitted and found proved amounted to a serious departure from the standards expected of a paramedic and constituted misconduct.
c. Mr. Wood abused a vulnerable patient for his own sexual gratification.
d. The fact that Mr. Wood abused a vulnerable service user for his own sexual gratification made a finding of impairment necessary, both in order to protect the public as well as to maintain public confidence in the profession.
e. Mr. Wood's insight was "impressive in some regards" but it was lacking in that he did not appear to have given thought to the impact of his misconduct upon Patient A and had "approached remediation in a linear way; demonstrating no empathy for his victim".
f. His fitness to practise was impaired by reason of his misconduct as a result of significant ongoing risk of repetition i.e. on public protection grounds and the public interest.
g. Conditions would not adequately mark the seriousness of the misconduct in this case but striking off would be disproportionate having regard to Mr. Wood's early and full admissions, his engagement with the process and his remorse and impressive insight in some respects.
h. A suspension order for a period of six months, with review, would protect the public and mark the seriousness of the matter.
IV. The Statutory Framework and Case Law
"the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
"Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the profession concerned; and
(c) to maintain proper professional standards and conduct for members of that profession".
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
and may make such order as to costs… as it thinks fit".
"73.... The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached had due regard for the safety of the public and the reputation of the profession...
76.... We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a reasonable tribunal having regard to the relevant facts and to the object of the disciplinary proceedings could reasonably have imposed.
77....In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal reached a decision that is manifestly inappropriate having regard to the practitioner's conduct and interests of the public".
a. So called 'under prosecution' - where, if the case had been properly charged and the charge found proved, the penalty would or may have been unduly lenient (see, for example, CRHCP v (1) NMC (2) Kingdom  EWHC 1806 (Admin)); and
b. Failure to provide adequate reasons for a decision (CRHP v (1) GDC (2) Marshall  EWHC 1870 (Admin) at  – ).
a. On the evidence, applying its own rules, should the regulator have included further allegations in the charge; and
b. If so, did the failure to include those allegations in the charge mean that the Court is unable to determine whether the sanction was unduly lenient or not?
(PSA v (1) GCC (2) Briggs  EWIC 2190 (Admin) at )
"…fail[s] to bring the full gravity of the situation to the attention of the panel at all. In that sense, it can be said that the full charges that should have been brought in this case were never brought and the case went off on a fundamentally misconceived footing…"
(per Singh J in PSA v Jozi  EWHC 764 (Admin) para.).
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors.
i. The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect.
ii. The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides.
iii. The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers".
" The decision of the Tribunal…. was an evaluative decision based on many factors, a type of decision sometimes referred to as "a multi-factorial decision". This type of decision, a mixture of fact and law, has been described as "a kind of jury question" about which reasonable people may reasonably disagree. … It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision.
 That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts. .. An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide."
V. Grounds 1 and 2: the substance of the misconduct and the failure to put allegations regarding the consultation itself.
VI. Ground 3: Mr. Wood's failure to give an honest account at the outset
a. 'On 25th May we agreed to end it' and 'on 2 June she sent me a message which I ignored and then a week last Friday I sent a generic reply back';
b. 'she was usually the first one to text'; 'I was never the first to text';
c. His motivation to text was 'mainly to give support', 'it was my motive in the first place for giving support to show 'you're not alone'', 'mainly for reassurance';
d. 'A few times when she was asking me to come over I kept trying to find excuses or not replying';
e. 'It was always a kind of banal – how are you etc';
f. 'I think she was [the one driving the communication] but I can't blame her, I look back at a few and there are a few where I don't reply and she asks if she has done something to upset me. Every day she would start the conversation and I would reply out of kindness and politeness'.
g. That the messages were 'mostly friendly chat, but occasionally suggestive and flirting messages';
h. 'The patient would usually instigate the conversation';
i. 'I realized the content of the messages was inappropriate and so withdrew that sort of talk to a platonic approach';
j. 'When the patient invited me to return to hers several times I made excuses as I felt uncomfortable';
k. 'Throughout this whole period I was unaware of much of her history, only knowing she had chronic pain and fatigue and this made it difficult for her to get around the house. I never considered her to be a vulnerable adult'.
VII. Ground 4: failure to obtain expert evidence
VIII. Ground 5: insight
VIII. Ground 6: failure to give reasons