Mr Edward D Henderson
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Allegation (as amended at the adjourned Final Hearing on the 26 January 2016):
During the course of your employment as a Paramedic at the North East Ambulance Service NHS Foundation Trust you:
1. Did not keep accurate records of the Controlled Drugs in your possession, in that;
a. On 01/10/11, you did not record the batch number for 100ml Oramorph;
b. On 01/12/12, you did not record the batch number for 100ml Oramorph;
c. On 15/06/13, you did not record the batch number for 5ml Oramorph given to a patient;
d. On 03/10/13, you ordered Oramorph, it was dispatched on 07/10/13, but you did not record it in stock;
e. On 04/11/13, you did not record the batch number for 5ml Oramorph given to a patient;
f. On 03/03/14, you were issued with a new bottle of Oramorph but you did not record the bottle in stock;
g. Did not record receipt of Oramorph that was dispatched to you on 13 October 2011;
h. Administered 10ml/20mg of Oramorph to Patient C on 23 November 2011, and did not record this in your Controlled Drugs Register;
i. Administered 5ml/10mg of Oramorph to Patient D on 25 February 2012 and did not record this in your Controlled Drugs Register.
j. On 22 September 2013, administered Morphine Sulphate to Patient A but did not record the quantity given in your Controlled Drugs Register;
k. Did not record receipt of 20 units of Morphine Sulphate between 11 April 2013 and 15 May 2013 in your Controlled Drugs Register.
2. Inappropriately destroyed 2 vials of Morphine Sulphate to cover the fact that you had not kept an accurate record of your Controlled Drug administration.
3. Did not ensure that the destruction of Morphine Sulphate vials, as set out in paragraph 2, was witnessed and/or reported via the approved North East Ambulance Service reporting system.
4. Administered out-of-date Morphine Sulphate on 2 separate occasions, one being on 01 March 2014.
5. Your actions described in paragraphs 2 and/or 3 were dishonest.
6. The matters set out in paragraphs 1 – 5 constitute misconduct and/or lack of competence.
7. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Notice of Hearing
1. In reaching its decision on whether there had been good service, the Panel took into account the facts and reasons set out in the Notice of Adjournment dated 26 January 2016: an adjournment which had arisen out of consideration of whether notice had been sent to the Registrant’s correct address, a new address having been notified by the Registrant orally to a member of HCPC staff. The Panel heard that the Registrant’s registered address had been changed, by him, on the HCPC’s electronic registration system on 26 February 2016. The Panel also helpfully had copies of the recorded delivery correspondence sent to the Registrant’s new address by Kingsley Napley solicitors on 21 March 2016 which had ensured that he had the relevant papers for today’s hearing.
2. The Panel had evidence that notice of today’s hearing had been sent in the correct form; by the appropriate postal means; to the address that is now shown for the Registrant on the HCPC’s Register; and had been sent in sufficient time in advance of today’s hearing. In addition the Panel had evidence of due posting by way of a signed certificate of posting and evidence that the notice had also been sent by email to the Registrant at the email address notified by the Registrant to the HCPC.
3. The Panel therefore came to the conclusion that notice had been served within the rules and that the HCPC had used all reasonable means to bring this hearing to the Registrant’s attention.
Proceeding in the Registrant’s absence
4. The HCPC made an application for this matter to proceed in the Registrant’s absence. The HCPC stated that it had given sufficient notice; it had a witness who was in attendance and ready and willing to give evidence; and that there was public interest in this matter proceeding without delay. Further there had been one previous adjournment of this matter.
5. The Panel allowed the HCPC’s application. In reaching its decision the Panel paid particular attention to:
• The fact that the Registrant had taken the step of altering his registered address on the HCPC register and the evidence that all recent correspondence had been sent to the Registrant’s new address and also by email;
• There had however been no further recent engagement with the HCPC process and the Registrant has not made a request for an adjournment;
• The hearing of this matter has been delayed by one previous adjournment;
• There is a witness here again, ready and willing to give evidence;
• There is no evidence from the Registrant as to why he is not here today and there is nothing to indicate that he would attend if this matter were adjourned.
• There is public interest in this matter proceeding without further delay.
6. Given these matters the Panel has come to the conclusion that the Registrant has made an informed decision not to attend today’s hearing and this Panel considers he has voluntarily absented himself. There is therefore no purpose to be served in adjourning today’s hearing.
7. The Registrant is a qualified Paramedic who first started working for the North East Ambulance Service (NEAS) in August 2005. At the time of the matters covered in the Allegation the Registrant was working as a Band 5 Paramedic.
8. Paramedics employed by NEAS were required to conduct monthly audits of their controlled drug stocks. Team Leaders also undertook audits of the controlled drugs of all paramedics every 3 months. The general policies concerning the storage and use of these drugs were contained with NEAS’s Medicines Management Policy. All paramedics had their own controlled drugs locker at their ambulance base, and were required to keep 2 controlled drugs registers for the Oramorph and Morphine (one being oral and the other intravenous versions of morphine sulphate a controlled drug) within their locker.
9. In February 2014, NEAS’s Director of Clinical Care and Patient Safety requested a review of all policies and procedures in matters of medicine management. In April 2014, as part of this process, an audit of ‘controlled drugs’ (as defined within the Misuse of Drugs Act 1971 and associated regulations) was conducted.
10. The audit, organised and conducted by Mr Andrew Rubbi, Clinical Investigations Officer with NEAS, discovered that 42 paramedics within the organisation had administered out-of-date Morphine, Oramorph or Diazemuls.
11. The Registrant was initially noted to have given one dose of out-of-date morphine to a patient and was accordingly invited to an informal meeting to highlight the issue. It was recognised that a systems failing was partly to blame for the errors that paramedics with NEAS had been making, therefore this meeting was arranged in a spirit of support and learning.
12. On 23 September 2014, the Registrant attended his informal meeting. During the course of the meeting serious concerns emerged as to the Registrant’s attitude to, and correct understanding of, the issues of storage and recording of controlled drugs. It was therefore decided that further investigation should be carried out into the management and recording of controlled drugs by the Registrant. As a consequence of this further investigation, the nature and extent of the Registrant’s conduct was established and form the basis for the Allegation set out above.
13. The matter was brought to the attention of the HCPC by the Registrant.
Decision on Facts
14. Before the Panel sets out its finding on fact the Panel confirms that it has regard to the burden of proof being on the HCPC to prove the particulars of the Allegations to the requisite standard, namely the civil standard of the balance of probabilities. There is no burden on the Registrant to disprove anything. The Panel has accepted the advice of the Legal Assessor and it has applied that advice to its assessment of the issues.
15. The Panel has before it the documentation which was gathered by Mr Rubbi during his investigation. Within this documentation were copies of the controlled drugs registers maintained by the Registrant for Oramorph and Morphine. This bundle included an email from the Medicines Management Manager, Ms Julie Clark, to Mr Rubbi in which she set out the detail of the type and quantity of controlled drugs that had been issued to the Registrant and when these had been supplied. The Panel also had the benefit of Mr Rubbi’s sworn statement and his oral testimony.
16. Mr Rubbi gave his evidence in a clear, considered and open way. Mr Rubbi was able to evidence his investigation findings by reference back to the documentation before the Panel. The Panel consider him to be a credible witness.
17. Particular 1 relates to the Registrant not keeping accurate records of controlled drugs in his possession on 11 occasions in the period 1 October 2011 and 22 September 2013, 9 relating to Oramorph and 2 to Morphine.
18. Particular 1 relates to the maintenance of ‘accurate records’ and in assessing what would be considered to be accurate records, the Panel referred to the examples of the Registrant’s record-keeping during the period, October 2008 to October 2011. These entries were examples of the standard which was expected and which the Registrant had achieved. These entries showed all relevant detail for receipt of controlled drugs, their subsequent use, and his periodic audits.
Particular 1 (a) - (g) Proven
19. The Panel relied on the evidence contained in the Oramorph controlled drug register maintained by the Registrant. In the relevant columns of this Register the Registrant had either failed to enter information or had instead inserted a dash.
Particular 1(h), 1(i) and 1(j)
20. These particulars all refer the Registrant having ‘administered’ the drugs: the mischief however lies within the lack of recording of this administration. However, given this wording the Panel has considered the evidence as to whether the Registrant was the person who had been responsible for the recording of the administration of the controlled drug.
Particular 1(h) – not proven
21. According to the patient record form for Patient C, it is unclear as to who had been involved in the administration as the Paramedic with the Registrant is only recorded by reference to their Paramedic number. There is no record of this administration of drugs in the Registrant’s controlled drugs register however there would not have been if the other Paramedic had entered it in their controlled drug Register. There is unfortunately no evidence on this issue. The Panel considers that there remains sufficient doubt as to who was responsible for the recording of this administration and this particular is not well-founded.
Particular 1(i) – proven
22. According to the patient record form for Patient D the controlled drugs had been administered by Mr Stephen White, who at that time was a technician. A technician did not have access to a supply of controlled drugs other than those held by his accompanying Paramedic. This being the case, the responsibility for recording the use of these drugs into the controlled drugs register fell to the Registrant. There is no such entry and so this particular is well-founded.
Particular 1(j) – proven
23. The evidence whilst showing that the drugs were administered by another qualified paramedic, Ms Jill Innes, who had her own stock of controlled drugs the evidence of Mr Rubbi was that the practice at this time was for only one paramedic to take their supply. On this occasion the supply was that of the registrant as the allied evidence supported the fact that this had not come from Ms Innes supply: her records had been demonstrated to Mr Rubbi’s satisfaction to be accurate and fully maintained. Based on this evidence and the lack of an entry in the Registrant’s controlled drugs register the Panel find this particular well-founded.
Particular 1(k) – proven
24. This particular is proven based on the lack of any recording of receipt of drugs but the clear evidence from the Medicines Management Manager that some had been given to the registrant and the entry by the Registrant that his stock had increased between two dates by the same amount of medication.
Particular 2 and 3 – proved
25. This particular relates to the inappropriate destruction of two vials of Morphine and the inappropriate way in which this destruction had been carried out.
26. In the signed record of the Registrant’s initial investigation interview with Mr Rubbi, the Registrant is recorded as stating ‘I broke a few to get the book right’. In his morphine controlled drugs register, the Registrant entered the remark ‘3 x vials dropped and broken’ which accords with this explanation of how he attempted to conceal the discrepancy between his stock level and his register.
27. Particular 3 followed on from particular, 2. The policy provides for the correct way of destruction and disposal of controlled drugs, a process which should be witnessed and recorded accurately. The controlled drug register given to the Registrant states clearly on the front page the appropriate way that this destruction should be done and recorded. The Registrant has freely admitted that his actions did not comply with this policy and procedure.
Particular 4 – proven
28. Mr Rubbi took the Panel through a logical analysis of how the Registrant used batch number 526219, which became out-of-date on 1 January 2014. The evidence from this is that the Registrant had administered one out-of-date dosage on the 1 March 2014 when he gave a patient 3mg and disposed of the remainder of the measured dose by entering ‘DOOPED’ 7 mgs. [‘Dooped’ is the term adopted by NEAS to denote the safe disposal of the drug by passing into a solution that neutralises its potency]. However, in relation to the second occasion, the evidence was not so clear and Mr Rubbi deals with this uncertainty of date of administration in his sworn statement.
29. There is however, clear evidence that there is no uncertainty that out of date medications had been used on more than one occasion. The Panel is of the view that this further administration of out-of-date medication more properly relates to another batch of controlled drugs, identified by PK40079. This batch had an expiry date of April 2013, and there is evidence that the Registrant administered from this batch on 4 June 2013 and 15 June 2013, administration which amounted to a total of 25mgs.
Particular 5 – proven
30. The Panel was given detailed guidance on this issue of dishonesty by the Legal Assessor. The HCPC emphasised that the ‘secretive’ actions taken by the Registrant to conceal his failure to maintain accurate records were not only inappropriate but not in accordance with approved procedure. In the HCPC’s view these actions could only be seen to be dishonest.
31. The signed notes of the internal investigatory interview record that the Registrant had accepted that he was trying ‘to conceal’ the inaccuracies between his records and his stock levels. In the Panel’s view the Registrant ought to have realised that was dishonest and would be considered so by others. There is no rational explanation for the Registrant’s actions other than to conceal his errors and this was dishonest of him.
Decision on Grounds
32. The Panel took into account the HCPC’s representations. The HCPC referred the Panel to the terms of the relevant Standards of Proficiency for Paramedics and Standards of Conduct, Performance and Ethics. The Panel has discounted from its consideration at this stage and subsequently particular 1(h), which it considered was not well founded.
33. It was argued by the HCPC that the Registrant had breached 1a.1, 1b.3, 2b.5 and 2c.2 of the Standards of Proficiency. The Council advanced the argument that the Registrant had also breached provisions 10 and 13 of the Standards of Conduct, Performance and Ethics which state:
You must keep accurate records.
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.
In the Panel’s view, provisions 1 and 3 are also appropriate. These provide that:
You must act in the best interests of service users.
You must keep high standards of personal conduct.
34. The Panel consider that these are relevant given the evidence that the administration of out-of-date controlled drugs may have resulted in service users not receiving the level of pain control required and also in the findings of dishonesty.
35. It has been argued that the factual findings support the statutory grounds of misconduct and/or a lack of competence. There is evidence that the Registrant was able to maintain accurate controlled drug records before October 2011. Mr Rubbi confirmed to the Panel that the Registrant had been otherwise considered to be a safe and an experienced practitioner. However, in his opinion this was the most serious case he came across in this investigation and he is quoted as saying ‘I was dumbfounded’ at the Registrant’s lack of appreciation of how serious the matters were.
36. Given this evidence, the Panel has concluded that the Registrant’s acts and omissions do not arise out of a lack of knowledge or understanding of what was required of him, but from wilful or reckless misconduct. The Panel consider that the acts and omissions, individually and collectively, constitute misconduct. The number and nature of those acts and omissions make this, in the Panel’s judgment, a matter of serious misconduct.
Decision on Impairment
37. In reaching its decision the Panel took into account the following:
• In relation to impairment, the Panel reminded itself that the test of impairment is expressed in the present tense, that fitness to practise ‘is impaired’ today.
• Whether the Registrant’s fitness to practise is impaired is a matter of judgment for the Panel.
• Rule 9 of the Health Professions HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) provides ‘where the Committee has found that the health professional has failed to comply with the Standards of Conduct, Performance and Ethics established by the HCPC under Article 21(1)(a) of the Order, the Committee may take that failure into account, but such failure will not be taken of itself to establish that the fitness to practise of the health professional is impaired.
• The advice of the Legal Assessor.
• The guidance issued by the HCPC entitled ‘Finding that fitness to practise is impaired.’
38. The Panel is aware that its decision on current impairment contains a personal and a public component. In relation to the personal, the Panel has nothing to show that the Registrant is currently working within his profession and without cause for concern. There is no evidence that the Registrant has taken any steps to address his record-keeping failings or to ensure that there would be no repetition of his misconduct. There has been no expression of remorse, apology or regret for his actions and little by way of demonstration of insight into his misconduct. This being the case there is a likelihood of repetition of his misconduct and his dishonest actions.
39. In relation to the public interest component, it is the Panel’s view that a member of the public, in full possession of all relevant information, would consider these matters very serious and that it was inappropriate for the Registrant to remain in unrestricted practice. The Registrant’s actions have brought him into disrepute and his profession, and a failure to mark that would undermine the public confidence in the profession and in turn the regulatory process.
40. The Panel has therefore concluded that there is current impairment of the Registrant’s fitness to practise.
Decision on Sanction
41. The Panel accepted the advice of the Legal Assessor; received the HCPC’s representations; and referred to the terms of the current Indicative Sanctions Policy.
42. The Panel took into account the representations which had previously been made by the Registrant in person at a previous HCPC hearing, and these have been reflected within the Panel’s decision below.
43. As advised, the Panel identified relevant aggravating and mitigating factors.
• The Registrant self-referred this matter to the HCPC.
• The Registrant has, to a limited extent, engaged in the HCPC process.
• The Registrant admitted his wrong-doing in relation to the destruction of the vials of morphine at the outset of the internal investigation process.
• The Registrant conceded that his record-keeping (at the time of these events) had become ‘abysmal’. This demonstrated limited insight on his part into his lapse in professional standards.
• Mr Rubbi was able to confirm to the Panel that there were no, and never had been since qualification in 2005, any issues relating to the Registrant’s clinical abilities.
• Mr Rubbi also confirmed that the Registrant had been allowed to continue working in post, but without the ability to administer controlled drugs, after the discovery of the events, and that there continued to be no problems arising from his professional and clinical practice.
• The Registrant had been one of many practitioners who had administered drugs which were out-of-date due to systemic problems with the auditing process adopted by the NEAS at that time.
• There were many examples that during the early years of his practice the Registrant had been able to maintain correct and accurate controlled drugs registers.
• The Registrant had expressed himself as wishing to resume his practice should he be allowed to, but such desire was focused on returning to a private ambulance service.
• The Registrant had administered out-of-date controlled drugs which may have resulted in service users not receiving the effective pain relief they needed.
• The Registrant had initially shown little understanding of the seriousness of his record-keeping failures. At the time of these events the Registrant stated that he had not appreciated the need for mandatory recording of receipt and use of Oramorph: a position he repeated as being his understanding as recently as July 2015.
• The Panel’s determination includes a finding of dishonesty arising from his concealment of his failings in record-keeping by the destruction of two vials of morphine.
• There were repeated failures in record-keeping in an essential and mandatory area of recording, and this had been identified to have occurred over a considerable period of time, in excess of three years. It was in Mr Rubbi’s experience the worst case he had come across within this investigation.
• There was no evidence of any reflection, remorse, regret or apology for his behaviour. There had been limited insight into the seriousness of his misconduct.
44. The Panel considered that the matters, which included findings of dishonesty, are too serious for it to take no further action. Mediation is inappropriate. A Caution Order would not address the failings relating to the repeated lack of correct record-keeping nor would it adequately mark the seriousness of the matters raised. A Conditions of Practice Order is neither workable nor appropriate in the absence of any information either from the Registrant and/or a potential future employer. Further, it is arguable whether the acts of dishonestly concealing the true position of his records would be addressed through this measure.
45. The Panel then turned to consider whether a period of suspension would be of benefit to the public, the profession, and the Registrant. In the interests of the public, and the profession, by the potential for the return of a Paramedic, who until these events, had been regarded to be a safe clinical practitioner. In this regard, the Panel considered whether the Registrant’s actions were fundamentally at variance with him remaining on the Register.
46. In weighing and balancing the aggravating and mitigating factors, and the interests of service users, the public and the profession with those of the Registrant, the Panel took into account the following:
• This Registrant had successfully practised as a Paramedic since 2005 without any concerns about his clinical practice. Initially his employer sought to address the poor record-keeping issues by way of an informal meeting and it was not until it was established that there was a lack of understanding underlying this poor record-keeping that the employer took further action.
• There appears to have been no attempt by the employer to address previously what was clearly a practice of entering deficient information on these important controlled drug registers. The periodic auditing by team leaders appeared to have been ineffective. There is no evidence of any guidance or criticism relating to his deficient record-keeping being noted on the records, or being given directly to this Registrant.
• The Registrant knew what was expected of him, and he acknowledged that by the time of these events his record keeping had deteriorated to the point where the Registrant described it as ‘abysmal’.
• There appears to be no attempt on his part to blame others or cite that this was a station-wide issue.
• Further, there is no evidence that this Registrant has ever been given or alerted to the need to undertake professional reflection on the events.
47. Having noted these matters, the Panel has concluded that the imposition of a strike-off would, in this instance, be disproportionate, and further would not be in the wider public interest. The Panel is therefore imposing a period of suspension, a period during which it is hoped that the Registrant will avail himself of the opportunity to address and correct his previous failings.
48. Whilst this Panel cannot bind the hands of a future reviewing Panel matters which that Panel may be assisted by evidence from the Registrant on, are as follows:
• Evidence of either a course of study, or suitable record-keeping practice, such that it demonstrates that the Registrant has understood the fundamental need for full and accurate record-keeping in the future.
• Evidence of how the Registrant has reflected on his actions and now fully understands how potentially serious and damaging his acts and omissions were for service users, his colleagues and his employer.
• The Registrant indicated that he wished to resume his career however he has stated his desire to work within a private ambulance service which may not be the most supportive environment for this individual. The Registrant must therefore be able to demonstrate that he is able to work with minimum supervision in the future.
49. The Panel impose the maximum period of suspension, being twelve months, and considers that the Registrant is unlikely to be in a position to present sufficient evidence for a future reviewing Panel in less than six months. The Panel has therefore determined that there is to be no early review until the expiration of six months. The Panel imposes this period of suspension in the interests of service user protection, the wider public interest and also the interests of his profession who may one day again benefit from his professional services
The order imposed today will apply from 7 June 2016.
This order will be reviewed before its expiry on 7 June 2017.
History of Hearings for Mr Edward D Henderson
|Date||Panel||Hearing type||Outcomes / Status|
|05/05/2017||Conduct and Competence Committee||Review Hearing||Struck off|
|09/05/2016||Conduct and Competence Committee||Final Hearing||Suspended|