Mr Trevor J Finnerty

Profession: Paramedic

Registration Number: PA06775

Interim Order: Imposed on 27 Apr 2017

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 22/08/2018 End: 16:00 24/08/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered with the Health & Care Professions Council and

employed as a Paramedic with the West Midlands Ambulance Service

NHS Trust, you:

1. On 29 January 2017, whilst in attendance to an emergency call at the

home of Patient A engaged in sexual activity with her.

2. The actions described at paragraph 1 were sexually motivated.

3. The particulars set out at paragraphs 1 and 2 constitute misconduct.

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

Finding

Preliminary matters:


Service / Proceeding in Absence


1. The Registrant did not appear nor was he represented. The Panel was satisfied that good service had been effected.


2. On behalf of the HCPC, Ms Mond-Wedd applied for the hearing to be conducted in the absence of the Registrant on the basis that he had been notified of the date, time and location of the hearing at his registered address. The Registrant had failed to engage with the scheduling officers of the HCPC in advance of the hearing, although he had submitted a response to the allegation dated 14 August 2018, which showed that he was aware that a hearing to decide his fitness to practise was taking place.


3. Ms Mond-Wedd submitted that the Registrant had waived his right to appear and that it was in the public interest for the hearing to proceed expeditiously.


4. Having considered the revised HCPTS Practice Note on proceeding in absence and accepted the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing and had waived his right to appear. The Registrant had not applied for an adjournment.  There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The Panel noted the overriding public interest in dealing with matters in a timely manner. In balancing the Registrant’s interest and the public interest, the Panel decided that the matter should be heard in the absence of the Registrant. The Panel was mindful of its duty to ensure a fair hearing and to protect the Registrant’s interests by testing the evidence and taking account of his written submissions.


Application to hold part of the hearing in private


5. Ms Mond-Wedd submitted on behalf of the HCPC that the identity of Patient A should not be reported in order to protect the private life of a vulnerable woman with serious mental health issues. It was further submitted that the press or public should be excluded from the hearing when an unedited audio recording of a 999 call is played to the Panel because Patient A’s name can be heard on the recording.


6. The Panel considered the HCPTS Practice Note on conducting hearings in private and accepted the advice of the Legal Assessor that Rule 10 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 enabled whole or part of the hearing to be held in private for the protection of the private life of a client or patient.  The Panel accepted that Patient A was a vulnerable person whose name should not be reported and decided that the hearing should go into private session when the 999 call was played in order to protect her identity.


The Background Evidence


7. The Registrant was employed as a Paramedic by the West Midlands Ambulance Service NHS Trust (the Trust) between May 1982 and his resignation on 1 February 2017. As far as the Panel is aware, the Registrant has no previous conduct issues. He was working alone on a rapid response vehicle (RRV) at the time of the incident in this case.


8. At 19.48 on 29 January 2017, the Trust received a 999 call from a female patient (Patient A) with a history of mental health issues, including suicidal thoughts and overdoses. The audio recording and transcript of her 999 call shows that Patient A was initially hyperventilating and had difficulty in constructing a sentence. She was in a very distressed state and said that she had suffered ‘a complete massive panic attack’.  She thought that someone had spiked her medication and said that she was very scared and that her mental health was ‘taking a turn for the worst’.


9. JW, Head of Patient Safety for the Trust and Clinical Supervisor, was appointed to investigate the matter for the Trust. JW gave oral evidence of the sequence of events, including calls between EOC (Emergency Operations Centre) and Patient A and the Registrant, and produced his investigation report. 


10.  JW also produced a copy of the Trust’s Lone Worker Policy, which sets out the incidents to which a lone worker can be sent and when risks should be highlighted. A lone worker may be sent to attend on a patient who has mental health issues or is under the influence of drugs or alcohol. Greater caution is exercised where the patient is known to have a history of violence. JW gave evidence that there was nothing in the content of Patient A’s 999 call to suggest that there was a risk of violence from her.


11. Following triage, a diagnosis of a panic attack was made however Patient A did not answer four attempts to call her back by telephone. The case was therefore allocated to the Registrant as a Paramedic working alone in a rapid response vehicle for face-to-face contact.


12. The transcript of the call to the Registrant shows that EOC informed him that Patient A had had a panic attack, that the call taker had marked her condition as ‘mental health problems’, that Patient A thought that her medication had been spiked and that she had been having suicidal thoughts. He was therefore aware that he should approach her with caution. He replied ‘yeah no problem I’ll go and assess the lady and keep you updated’. JW told the Panel that the Registrant was entitled to refuse to attend the patient if he judged himself to be at risk as a lone worker in these circumstances but that he did not do so.


13. The Registrant attended the scene at 20.39. The record shows that he assessed and examined the patient by conducting a primary survey and that he discharged her on the scene. She signed the EPR (electronic patient record) at 21.19. 


14. JW told the Panel that a Paramedic should report any incident of violent behaviour by a patient, but that he did not make any such report and did not indicate a need for any assistance.  A lone worker should make contact to Emergency Operations Centre (EOC) within ten minutes of arrival but the Registrant did not do this.


15. The Registrant called EOC to give a ‘clear’ message at 21.22 in which he said that the patient ‘suffers with bipolar disorder plus anxiety also she had been drinking tonight.  She said she had been feeling a bit down, no suicidal thoughts, she was also complaining of pain from her previous fall.  All obs are completed and within normal parameters, says she is feeling a lot better now….’ He gave no indication that anything untoward or unusual had occurred. The Registrant later admitted to the police that he had engaged in sexual activities with Patient A.


16. Shortly after leaving the house, the Registrant sent Patient A a text message in the following terms: ‘this is u friendly ambulance service, how was u service’. Patient A appears to have been troubled by receiving that text message. She then called the police and reported that she had had sex with a man named Trevor who was outside her property in a car, although little more was said by her at the time. 


17. The police contacted the Trust at 22.00 to ask who had attended on Patient A. At 00.46 on 30 January 2017, the Registrant called EOC to ask why the police were concerned.  The Registrant said that Patient A was ‘alright...just a bit weird… she was alright, she was quite happy, she was pleasant’.  He said nothing about any sexual incident.


18. At 03.58 on 30 January 2017, the Duty Officer at the Emergency Operations Centre (EOC) at Tollgate received a call from the Warwickshire Police informing her that they intended to arrest the Registrant following an allegation of rape of a patient that he had attended earlier in his shift. He was arrested on suspicion of rape at 04.40.  He responded by saying that the police should talk to another colleague about Patient A. He was taken to Nuneaton Police Station and detained for interview under caution.


19. The police interviewed Patient A at 1545-1708 on the following day, Monday 30 January 2017.  She alleged that whilst conducting an ECG at her home, the Registrant said that she had ‘nice breasts’.  She accepted that she liked the attention because she was quite lonely.  She then indicated that she had pain in her coccyx and lowered her pyjama bottoms. She was not wearing any pants. The Registrant smacked her bottom and said she had a ‘nice bum’. They then went upstairs and had sexual intercourse. The Registrant mentioned returning the next day and obtained her phone number.


20. The Registrant was then interviewed under caution between 19.18 and 21.16 on 30 January 2017. He admitted to sexual contact with the patient during that interview. He said that she had come downstairs in a backless nightie and suggested that he go upstairs.  He performed oral sex on her at her request and she then performed oral sex on him. They then had sexual intercourse. He said that he had initially refused but she then blackmailed him by threatening to tell his boss that he had done it anyway, so he agreed to her demands out of fear.  He admitted sending the text message to her afterwards: ‘this is u friendly ambulance service, how was u service’.


21. The Registrant was suspended from his duties on 31 January 2017 and he resigned the following day.  He was not subsequently charged with any criminal offence arising from the incident.


22. JW gave evidence of the Trust’s policy on professional standards which states ‘Employees must at all times maintain appropriate professional boundaries in all the relationships they have with patients, clients and service users or their family and carers.  Employees must not have or allow to develop a professional relationship with a patient in their care.’


23. The Registrant submitted written representations in a document dated 14 August 2018.  He gave some detail of his long working career of 30 years as a Paramedic and described other incidents when he had been placed at risk or subjected to abuse from patients and that he was suffering stress as a consequence.  He maintained that his Station Manager should have been aware of his predicament and that he should not have been sent to attend on a patient such as Patient A with her history of previous calls and poor mental health.  Whilst acknowledging that what happened should not have happened and that he must ‘take the brunt of the blame’, he also alleged that Patient A had, in effect, ‘duped’ him into following her upstairs, then ‘threatened’ him into having sex with her. He concluded his written submission by suggesting that he was a victim of rape.  He also referred to having counselling and keeping himself busy with church activities.  He has retired from full-time employment and does occasional driving work.


Decision on Facts


24. The Panel accepted the advice of the Legal Assessor that they should apply the civil standard of proof and that the burden of proving the case was on the HCPC. The Panel noted that the Registrant had made admissions in his police interview, but kept in mind that his admissions were not conclusive. It was for the Panel to make their findings of fact on the evidence as a whole.


25. The Registrant did not attend to give evidence but the Panel read and took account of the written representations that he made.  The Panel also had regard to the submissions made by Ms Mond-Wedd on behalf of the HCPC.


26. The Panel accepted the advice of the Legal Assessor that they should exercise considerable caution when considering the hearsay evidence of what Patient A had told the police, because she had not been called as a witness at this hearing and her evidence had not been tested before them under cross-examination.  The Panel concluded that they should give greater weight to what was said or admitted by the Registrant when he was interviewed under caution on 30 January 2017, in the presence of a solicitor, within 24 hours of the relevant incident.


27. The Panel noted that the Registrant had made clear and unambiguous admissions of engaging in oral sex and sexual intercourse with Patient A in his police interview under caution. The Panel was therefore satisfied on this evidence that he had engaged in sexual activity with Patient A and that Particular 1 of the Allegation was proved on the balance of probabilities.


28. In reaching its decision on Particular 2, namely whether the Registrant’s conduct was sexually motivated, the Panel noted that the Registrant had also admitted in his police interview that he had followed Patient A to her bedroom and that he was sexually aroused during oral sex with her, which he said he found ‘quite erotic’. The Panel also had regard to the flirtatious and sexually suggestive content of the text message that the Registrant sent to Patient A very soon after the incident.


29. The Panel was not persuaded by the Registrant’s subsequent assertions in interview or in his written submission dated 14 August 2018 that he was duped or threatened into having sex by Patient A.  The Panel found that claim to be unconvincing and implausible in view of the content of his text message to her and his other admission that he found the sexual activity with her to be erotic.  The Panel also had regard to the content of the Registrant’s subsequent communications with EOC in the aftermath of the incident in which he had reported no untoward incident or threat by Patient A. The Panel was therefore satisfied on the balance of probabilities that the Registrant’s actions were sexually motivated and that Particular 2 was therefore proved.


Decision on Grounds


30. Ms Mond-Wedd for the HCPC submitted that this was a clear case of misconduct because the Registrant was an experienced Paramedic of 30 years’ experience who understood his obligation to maintain professional boundaries. It should have been obvious to him that Patient A was a vulnerable patient even if he was not told the full extent of her medical history.  He was clearly warned in advance of accepting the job that she had mental health issues.  He should have behaved in a professional manner and refused to engage in sexual activity with her.


31. The Panel also took account of the Registrant’s written arguments in the document he had submitted to the Panel.


32. The Panel accepted the advice of the Legal Assessor. The Panel therefore had in mind the definition of misconduct in Roylance v GMC [2011] 1 AC 311 to the effect that misconduct is “some act or omission which falls short of what is 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 medical practitioner in the particular circumstances.”


33. The Panel also had regard to the guidance on the meaning of misconduct that was set out in Remedy UK Ltd v General Medical Council [2010] EWHC 1245 (Admin), misconduct is “sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise” or “conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the professional and thereby prejudices the reputation of the profession.”


34. The Panel found that the facts as proved amounted to misconduct that was serious. This was a clear and compelling case of a deplorable breach of professional boundaries that fell well below the standard that was to be expected of a Paramedic in the performance of his professional duties.  The audio recording and transcript of Patient A’s 999 call showed that she was a vulnerable patient with clear mental health issues.  That would have been obvious to an experienced Paramedic who should have exercised professional self-restraint in these circumstances.


Impairment


35. The Panel reminded itself of the public component in Cohen v GMC [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”


36. The Panel was also profoundly concerned about the Registrant’s lack of insight. Whilst he accepted that he made a mistake, there was little evidence of regret or remorse in his written submissions dated 14 August 2018 in which he blamed his Station Manager and those working for the Ambulance Service EOC for sending him on the call as a lone worker. In his submission the Registrant does not reflect on what, if anything, he would do differently should he be faced with similar circumstances again.


37.  The Panel does not accept that anyone else was to blame for this incident.  The Panel accepted the evidence of JW that the Registrant was given all the information about Patient A that was relevant and available at the time of the 999 call and finds that an experienced Paramedic should be capable of dealing with difficult patients.


38. The Panel noted that the Registrant minimised the extent of his own responsibility whilst blaming others for his own misconduct. He said he was ‘duped’ into following Patient A upstairs and that she forced herself upon him. Whilst there was some evidence of remediation by the Registrant by attending counselling, but it was clear from his written submissions that he regards himself as the primary victim of this incident.


39. For all those reasons, the Panel finds that there remains a risk of repetition of this conduct, with a consequent risk of harm to patients or other service users, and finds that his fitness to practise is impaired on personal grounds.


40. Whilst acknowledging his actions were wrong, the Registrant continues to blame others, avoid personal responsibility and offers no thought as to the damage his actions might cause to the reputation of, and public trust and confidence in, his profession.


41. The Panel also found that the misconduct was such as to impair the Registrant’s fitness to practise as a Paramedic on public grounds.  It was beyond dispute that the Registrant’s conduct in engaging in sexual activity with a patient breached proper standards of conduct and that it brought his profession into disrepute.  Any other finding would damage confidence in the profession and in the regulator.


42. A finding that the Registrant’s fitness to practise was impaired was necessary to maintain public confidence in the profession and to uphold professional standards.


Sanction


43. The Panel heard submissions from Ms Mond-Wedd and considered the written submissions of the Registrant.  The Panel accepted the advice of the Legal Assessor to the effect that the purpose of a sanction was not to punish the Registrant but to protect the public.  The Panel also reminded itself of the guidance in the HCPTS Indicative Sanctions Policy and reminded itself that a sanction must be proportionate and the least that is necessary to protect the public.


44. Before determining the appropriate sanction, the Panel first identified the aggravating factors. This incident of misconduct was a grave breach of professional boundaries and a serious breach of the trust that the public place in his profession. Furthermore, any incident of sexual activity with a patient constitutes a profound breach of the tenets of the profession. The Registrant had demonstrated no real insight into the gravity of his misconduct and no understanding of the profound unacceptability of his behaviour.  


45. The Panel considered the written submissions of the Registrant to the effect that he was under significant pressure at the relevant time and his complaint that his manager failed to support him.  The Panel did not however accept this submission for reasons already stated and regarded the Registrant’s blaming of others as a further aggravating factor. The Panel was troubled by the Registrant’s limited expressions of regret for what he had done and his failure to take full responsibility for his own reckless actions and choices.


46. The Panel then gave due weight to the personal mitigating factors in this case. The Panel accepted that the Registrant had worked for over 30 years as a Paramedic and that there were no previous misconduct issues as far as the Panel was aware. The Registrant was therefore entitled to be treated as a man of previous good character. The Panel also noted that the Registrant made admissions of sexual activity with Patient A in his police interview that took place soon after incident.  He had engaged in counselling. The Panel was also mindful that the public should not be deprived of the benefit of a trained and experienced Paramedic unless it was necessary for reasons of public protection. 

 
47. The Panel started its deliberations on sanction by considering the least restrictive sanction. This case concerned a very serious breach of professional boundaries and a breach of trust for which either taking no further action or imposing a Caution Order were wholly inappropriate, because the Registrant was not fit to return to unrestricted practice. Public confidence in the regulator would be severely damaged if such a lenient course were to be followed.


48. The Panel then considered whether conditions of practice could provide sufficient public protection. The Registrant had resigned from his employment and he no longer worked as a Paramedic. There was little information about his current employment other than the fact that he worked occasionally as a driver. This case concerned an exceptionally serious incident of misconduct that breached professional boundaries. The Panel had found that the attitude and insight of the Registrant was highly deficient. A Conditions of Practice Order was not therefore appropriate, practical, workable or verifiable. The Panel also considered that such an order was not adequate to protect the public from any recurrence of the misconduct. 


49. The Panel then turned to the question of whether a Suspension Order could provide sufficient public protection. For all the reasons stated above, the Panel has found that the Registrant has no real understanding of his misconduct and little, if any, insight. In his submission he did not explain why he committed an act that was so contrary to professional standards other than to say he was ‘duped’. His written submissions failed to convince the Panel that there is little or no risk of repetition if similar circumstances were to arise again. An order for suspension would not therefore provide sufficient public protection against a recurrence of this incident.


50. The Panel is mindful of the guidance in the HCPTS Indicative Sanctions Policy that striking off is the sanction of last resort where there is no other way to protect the public. The Registrant made a decision to engage in sexual activity with a vulnerable patient that amounted to a serious and deliberate breach of trust, with reckless disregard for the consequences. This was a significant transgression of professional boundaries with a vulnerable service user.  There remains a risk of recurrence if he were permitted to return to practice.


51. The Panel has therefore concluded that a direction to strike the Registrant from the Register of Paramedics is the necessary and proportionate sanction to protect vulnerable service users. There is a risk of recurrence. No other sanction would provide sufficient protection to patients.


52. The Registrant’s misconduct was a serious and reckless breach of professional standards and the public trust in his profession. Public confidence in the profession would be severely undermined if any lesser sanction were to be imposed on this Registrant. The Panel considers that a reasonable and informed member of the public would expect such a sanction to be imposed in the circumstances of this case.

Order

Order: That the Registrar be directed to strike the Registrant from the Register on the date this Order comes into effect.

Notes

A hearing was held in London 22-23 August 2018 at which the Registrant's name was struck off the Register.

Hearing History

History of Hearings for Mr Trevor J Finnerty

Date Panel Hearing type Outcomes / Status
22/08/2018 Conduct and Competence Committee Final Hearing Struck off