Mr Adrian P N Penfold-Ivany

Profession: Paramedic

Registration Number: PA13065

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 07/11/2016 End: 17:00 09/11/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

1. On 24 January 2015, during the course of your employment as a Paramedic at North West Ambulance Service, you used excessive and/or disproportionate physical force to restrain Person A.

 

2. The matter described in paragraph 1 constitutes misconduct.

 

3. By reason of your misconduct, your fitness to practise is impaired.

Finding

 Preliminary matters

 

1. The Panel found that there had been good service of these proceedings, in accordance with rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.

 

2. The Panel considered an application by the HCPC to consider CCTV evidence in private, to protect the private life of the hospital patients visible in the film clips. The Registrant did not oppose this application and the Panel accepted the advice of the Legal Assessor that it has the discretion to grant the application, in the circumstances. The Panel consulted the HCPC’s Practice Note on “Conducting Hearings in Private”. The Panel decided that it was necessary to view the CCTV footage provided in private, so as to protect the private life of the patients concerned. The remainder of the hearing was held in public.

 

3. The Registrant stated that he admits factual particulars 1 and 2 on the basis that the force he used was excessive and disproportionate and this amounts to misconduct; he denies particular 3 that his fitness to practise is currently impaired.

 

4. The Panel considered sequentially:

(1) Whether the factual particular is proved; 

(2) If proved whether the facts amounts to misconduct, and if so;

(3) Is the Registrant’s fitness to practise currently impaired?

 

5. The Panel accepted the advice of the Legal Assessor that the burden of proof is upon the HCPC on the civil standard of the ‘balance of probabilities’, in relation to findings of fact. Whether a proved fact amounts to the statutory ground of misconduct and whether there is current impairment are not matters which need to be ‘proved’. They are matters of judgement for the Panel.

 

 

Background

 

6. The Registrant is a Paramedic registered with the HCPC. He commenced employment with Mersey Regional Ambulance Service (MRAS) on 15 October 2001, he left MRAS in October 2004 and re-joined in April 2005. MRAS then merged with other North West services to form North West Ambulance Service (NWAS). At the time of the allegation the Registrant was employed as a Paramedic, based with South Liverpool Ambulance Service.

 

7. On 24 January 2015, the Registrant’s line manager Mr S. received a telephone call from an Operations Manager, based in the Area Headquarters, who informed him that the Registrant has been in the Accident and Emergency Department of the Royal Liverpool Hospital, when he was attacked and had pushed a patient to the floor. On 26 January 2015, Mr S. then received a telephone call from Mr A, Operations Manager for the Central Liverpool Group, who asked him about the incident. Mr A went to the hospital to view CCTV footage with Mr S. They viewed the footage from two camera angles, and which has now been viewed by the Panel.

 

8. The first camera angle, located by the ambulance drug cupboard in the Emergency Department corridor, depicts initial contact between the Registrant and Person A which escalated with Person A standing up and being verbally aggressive and abusive. The Registrant then pushed Person A towards the exit doors and Person A fell and slid along the floor. The second camera shows the view from the other side of the doors and shows the Registrant pulling Person A from the floor and trying to eject him through another set of double doors. Person A resists being taken through the second doorway and is then pulled back onto the floor of the corridor by the Registrant, where he is restrained until security staff arrive. The HCPC contend that the force used by the Registrant was excessive and/or disproportionate in the circumstances.

 

9. The Registrant was removed from all patient facing duties with immediate effect and decided to take leave whilst an internal investigation was carried out. The matter was referred to the HCPC and the Registrant has provided representations which the Panel have read. During the NWAS disciplinary process he stated he was attempting to restrain Person A in self-defence of himself and an elderly lady (Person B) who had accompanied her friend to the hospital with the Registrant and his colleague. He has subsequently provided further reflections to the HCPC in which he accepts that, in hindsight, he should not have tried to remove Person A from the hospital and should have called the security staff.

 

10. Regarding the CCTV footage the Registrant says: ‘I can imagine how a lay person would view it. I acknowledge that it does bring the profession into disrepute as it did my employer’s reputation.’ He stated in his evidence to the Panel that he accepts the incident was witnessed by several patients and hospital staff and that the reputation of the profession would have been harmed if the CCTV of the incident was viewed by a member of the public. However he says this was an isolated incident in which he acted out of character and the film without sound does not convey the verbal threats which caused him to make physical contact with Person A. The Registrant says his motive was to protect his patient and Person B, who were frail elderly ladies, from severe verbal and potentially physical intimidation directed towards them by Person A, who was intoxicated. The Registrant was unaware that Person A was a service user at that time, and acted to protect the two elderly ladies from the abuse and intimidation directed at them and himself by Person A.

 

11. Person A did not make a complaint against the Registrant and failed to respond to a request from the police to contact them. The police took no further action. Person A has not provided evidence for the NWAS disciplinary investigation or in these HCPC proceedings.

  

 

Decision on facts

 

12. The Panel heard oral evidence for the HCPC from Mr S and viewed the CCTV evidence. The Panel also heard oral evidence from the Registrant and considered the documents supplied by both parties, including testimonials and references provided by the Registrant.

 

13. The Registrant admits particular 1 on the basis that he used excessive and disproportionate force on Person A, in attempting to eject him from the hospital when it was not his role to do so. He also accepted that if he had not intervened with Person A and/or called security the confrontation which ensued may not have occurred. The Panel finds particular 1 is proved. It accepts the evidence of Mr S which was primarily related to producing the CCTV evidence. The Panel finds that the CCTV evidence does not include sound, but it does establish that at 3 points the Registrant used significant force on Person A: firstly pushing him to the floor of the corridor causing him to slide forwards along the floor and through a doorway; secondly when picking him up from the floor and attempting to ‘throw’ him through another set of doors; and thirdly again ‘throwing’ him to the floor where Person A again slid forwards before the Registrant then restrained Person A on the floor. The Panel accepts that Person A was intoxicated and that this was a fast moving and dynamic incident. However it appears that once Person B was moved to safety away from Person A, it was not necessary for the Registrant to use force on Person A irrespective of the verbal aggression continuing to be displayed by him.

 

14. Hearsay evidence from witnesses, who were in the vicinity of the incident but did not give evidence at the hearing, is contradictory. However it tends to confirm the Registrant’s evidence that Person A directed a stream of extremely aggressive and abusive language towards the Registrant. Also the level of force used by the Registrant caused concern to members of the hospital staff.

 

Decision on grounds

 

15. Misconduct is a word of general effect, involving some serious act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances.

 

16. The HCPC standards of conduct, performance and ethics, with which Registrants are required to comply, include the following standards:

3 - You must keep high standards of personal conduct.

13 - You must … make sure that your behaviour does not damage the public’s confidence in you or your profession.

 

17. The Panel finds that the Registrant’s behaviour towards Person A was in breach of the above Standards; but reminded itself that breaches of the HCPC Standards do not automatically constitute misconduct.

 

18. The Panel concludes that the proved factual particular amounts to misconduct, because the Registrant’s conduct fell far short of the standard to be expected of a Paramedic. The conduct complained of was serious: there was no need for the Registrant to become physically engaged with Person A and he used significant force on Person A as described above. His conduct is likely to have damaged the public’s confidence in the Registrant and the Paramedic profession.

 

19. Accordingly, the Panel concludes that the allegation of misconduct, arising from the proved factual particular is well founded and is sufficiently serious to amount to misconduct. The Registrant “crossed a line” and breached the HCPC Standards of conduct, performance and ethics, 3 and 13. He also breached the Standards of Proficiency for Paramedics which state Registrant paramedics must:

1.4 - be able to work safely in challenging and unpredictable environments, including being able to take appropriate action to assess and manage risk;

3.4 - be able to maintain a high standard of professional effectiveness;

 

Decision on impairment

 

20. The Panel has considered the HCPC Practice Note entitled Finding that Fitness to Practise is “Impaired”. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components:

1. The ‘personal’ component: including the current competence, behaviour and insight of the individual registrant; and

2. The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

 

21. The Registrant submits there is no current impairment under the personal component because this was an isolated incident which is unlikely to be repeated and for which he has shown insight.

 

22. In respect of the public component, the Registrant submits it is not necessary to make a finding of current impairment in order to uphold the HCPC standards of conduct and maintain public confidence in the profession and the regulatory process.

 

23. The HCPC invited the Panel to find impairment on the basis of limited insight, a risk of repetition and the impact on public confidence.

 

24. Dame Janet Smith identified circumstances where impairment might arise as including:

(a) where a registrant presents a risk to service users;

(b) has brought the profession into disrepute;

(c) has breached one of the fundamental tenets of the profession.

 

25. In respect of the public interest the following guidance was provided in the case of Grant: In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider…whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.

 

26. The Panel finds that there is insight and remorse, reflected in the admissions made by the Registrant at the hearing, in relation to the factual particular and misconduct. This represents significant progress in the Registrant’s development of his insight from when this matter first arose. At that time he denied any wrongdoing and sought to justify his actions. The Registrant has now described to the Panel how it had been a “blessing” that he has had so long to think about these events, that the emotion of the time that may have clouded his judgement has receded, and he has been able to view the CCTV footage many times to the point that he now describes feeling “embarrassed” by how he behaved. He now recognises that he risked bringing disrepute on his profession. He has, the Panel finds, as a result, recognised that personal/professional pressures on him at the time, and the impact of a previous incident when he was attacked six months earlier, may have led to his overreaction.

 

27. The Panel accepts that this was a single incident in an otherwise unblemished career, as reflected by the testimonials and references provided by the Registrant from: Mr JT (Community First Responder employed by NWAS), Mr CC and Mr MB (Emergency Medical Technician employed by NWAS). The Panel also accepts he has progressed his insight. However the Panel is concerned that as yet he is overly confident in his assertion that he will never repeat his misconduct and concerned that he has not yet fully understood why  he overreacted as he did nor how he would manage himself in the future. This was a serious incident when the Registrant used significant, excessive and disproportionate force. The Panel is concerned that though the risk of repetition is not high, there does remain a risk of repetition. Accordingly the Panel finds the Registrant impaired on the basis of the personal component.

 

28. The Panel also finds the Registrant impaired on the basis of the public component. Having concluded that there is a risk of repetition the Panel is satisfied that harm may flow from any repetition and that therefore the need for public protection arises. The Panel is also satisfied that behaviour of this nature risks bringing the profession into disrepute and undermining public confidence.

 

29. The Panel is clear that paramedics can face significant challenges in their work including from aggressive members of the public. The Panel is also clear that paramedics as professionals should be in no doubt that they are expected to maintain their professionalism even in the face of such challenging circumstances.

 

30. Similarly, the Panel is satisfied that professional standards would be undermined were there to be no finding of impairment.

 

31. The Panel therefore finds the Registrant to be currently impaired on the basis of the public component.

 

32. Accordingly the Panel finds that there is current impairment.

 

Decision on sanction

 

33. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. The Panel has followed the advice of the Legal Assessor to consider the HCPC Indicative Sanctions Policy (ISP) which states: “It is important for Panels to remember that a sanction may only be imposed in relation to the facts which a Panel has found to be true or which are admitted by the registrant.”

 

34. The Panel has heard submissions from the Registrant and Ms Mond-Wedd in relation to mitigating and aggravating factors before considering (in ascending order) what, if any, sanction to impose.

35. The Panel has also taken into account the need to deter other registrants and to convey a message to the profession in relation to the high standards of professional conduct to be expected of Paramedics. It is also necessary to maintain confidence in the regulatory process. The Panel took into account that the Registrant is a competent practitioner and it is in the public interest not to deprive the public of his professional services.

 

36. The aggravating features are that:

a) The Registrant used excessive and disproportionate force on Person A, in attempting to eject him from the hospital, when it was not his role to do so and had the potential for causing injury.

b) At three different stages of this incident the Registrant used significant force on Person A.

c) It appears that once Person B was moved away from Person A, it was not necessary for the Registrant to use force on Person A.

d) It is clear that the level of force used by the Registrant caused concern to members of the hospital staff. This incident occurred within a public part of a hospital and any members of the public present may have been similarly caused concern.

e) The Panel concludes there is a risk of repetition because the Registrant has not yet fully understood why he overreacted, or how he would manage a similar incident in the future

f) The Registrant’s fitness to practise is impaired under both the personal and public policy components.

 

37. The mitigating factors in this case are:

 

a) Admissions were made by the Registrant at the hearing, in relation to the factual particular and misconduct, and he accepts that, in hindsight, he should not have tried to remove Person A from the hospital.

 

b) No actual significant injury was caused to Person A.

 

c) The Registrant was concerned to protect his patient and Person B from severe verbal and potential physical intimidation, directed towards them by Person A.

 

d) The Registrant was unaware that Person A was a service user and acted to protect two elderly ladies from the abuse and intimidation directed at them.

   

e) Person A directed a stream of extremely aggressive language towards the Registrant.

 

f) This was a single incident, during an otherwise unblemished career, as confirmed by testimonials and references provided by the Registrant to the Panel.

 

g) The incident occurred almost 2 years ago and it has already been marked by the dismissal of the Registrant from his employment.

 

h) The Registrant has engaged fully with the HCPC process and has gained considerable insight since this incident occurred.

 

i) He has given evidence of his passion and enthusiasm for being a paramedic and expressed his hope to return to practice.

38. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.

39. The Panel first considered whether to impose no sanction in this case and decided that would be inappropriate. There is a risk of repetition and the Panel has found there is current impairment on both personal and public policy grounds.

40. This is not an appropriate case for mediation.

41. The Panel next considered imposing a caution order.

42. The ISP states that a caution order should 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. The Panel has decided that a caution order is not an appropriate sanction in this case despite the context of an otherwise unblemished professional career, because of the risk that the misconduct will be repeated and this risk is not low. A caution order is not sufficient to mark the seriousness of the misconduct or otherwise maintain public confidence that such misconduct and professional standards will be taken seriously. This sanction would fail to convey to the profession that high standards are expected of Paramedics, in respect of their conduct towards the public.

43. The Panel next considered whether imposing conditions of practise was appropriate in this case. The Panel finds conditions of practice are not appropriate in this case. It would not be possible to draft conditions that would adequately manage the risk of repetition nor adequately protect the public nor otherwise meet the need to maintain public confidence.

 

44. The Panel concludes a short suspension order would be the proportionate sanction and would be sufficient to protect the public and the wider public interest. A suspension order is needed to restore confidence in the profession and emphasise to the Registrant that use of excessive physical force towards any member of the public is not acceptable, even when the member of the public is challenging. This order will maintain confidence in the regulatory process because members of the public will know this type of misconduct is taken seriously.

 

45. Before reaching a final conclusion the Panel also considered whether imposing a striking off order was necessary; but decided that this was unnecessary in view of the limited risk of repetition. The conduct is remediable, insight is developing and striking off would therefore be disproportionate.

 

46. The Panel concludes that a period of suspension for six months will be sufficient to meet the public interest and allow the Registrant further time to remediate his misconduct and demonstrate his fitness to practise.

 

47. The order will be reviewed before it expires. The reviewing panel is likely to be assisted by:

  •  A further reflective piece focusing on how this incident came about, how he would deal with a similar situation should it arise again – recognising that he may find himself under pressure at work again – managing his triggers that impact on how he responds to situations and developing personal coping strategies
  •  To attend a course in conflict resolution which may assist with him recognising his triggers and how to deal with them
  • He may wish to provide concrete examples of when he has managed situations of conflict
  •  Any character references that he wants to submit.

 

 

Order

That the Registrar is directed to suspend the registration of Mr Adrian P N Penfold-Ivany for a period of six months from the date this order comes into effect. 

 

Notes

The order imposed today will apply from 6 December 2016.   There is an Interim Suspension Order in place to cover the appeal period. 

Hearing History

History of Hearings for Mr Adrian P N Penfold-Ivany

Date Panel Hearing type Outcomes / Status
05/05/2017 Conduct and Competence Committee Review Hearing No further action
07/11/2016 Conduct and Competence Committee Final Hearing Suspended