Mr Richard J Mckeand

Profession: Paramedic

Registration Number: PA07316

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/03/2018 End: 16:00 27/03/2018

Location: Park Plaza Cardiff, Greyfriars Road, Cardiff, CF10 3AL

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Between 2006 and 2011, whilst registered as a Paramedic and working with Great Western Ambulance Service, you:

1. Submitted payment requests to the Department of Health for personal reimbursement, which were duplicate and/or incorrect as detailed in Schedule 1;

2. Accepted and/or retained monies paid by the Department of Health in reimbursement of duplicate invoices.

3. Retained and sold Land Rover Vehicle chassis number 479519, following it being decommissioned, without obtaining the agreement of the Department of Health.

4. Retained the proceeds of sale, and/or offset the proceeds of sale, of a tri-axle trailer against expenses incurred by you without the agreement of the Department of Health. [No evidence offered]

5. Engaged in acts which resulted in a financial benefit to members of your family, without the agreement of the Department of Health, including:

a) Using family members to provide logistical support;

b) Using family members to provide taxi services.

6. Engaged in acts which resulted in a financial benefit to you, without the agreement of the Department of Health, including:

a) Arranging financial transactions between the Department of Health and Millbrook Safety Services;

b) Not following the invitation to tender route with regard to transactions with values of £10,000 or above and instead offering those contracts to Millbrook Safety Services. [No evidence offered]

7. Your actions in paragraphs 1-6 were dishonest.

8. The matters described in paragraphs 1-7 constitute misconduct.

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

Schedule 1

a) NFU Mutual Assurance Society - £4,524.99
b) NFU Mutual Assurance Society - £500.20
c) Prometheus Medical Ltd - £2,092.59
d) Quazar International Limited - £687.13
e) Boundtree Medical Limited - £14,398.25
f) PC World - £31,884.35
g) PC World – 269.98
h) Future Safety Ltd - £1,036.81
i) Future Safety Ltd - £156.62
j) Lyon Equipment Ltd - £362.43
k) Arco Ltd - £1,654.67
l) Smiths of the Forest of Dean Limited - £1,173.83

Finding

Preliminary matters:

Private Hearing

1. At the outset of the hearing the Panel determined, having heard submissions from both parties, that if it became apparent, during the course of the hearing, that Witness RM needed to refer to highly confidential matters relating to national security, such matters would be heard in private.

Offer of No Evidence

2. Ms Manning-Rees, confirmed prior to opening the HCPC’s case that no evidence would be offered in relation to Paragraphs 4 and 6(b). However, the Panel accepted the advice of the Legal Assessor that as the Investigating Committee concluded that there was a case to answer in respect of all of the particulars of the Allegation, it was for the Panel to determine whether there was no longer a realistic prospect of making a finding that these particulars are not well-founded.

Admissions

3. No formal admissions were made by the Registrant. However, Ms Harris confirmed on his behalf, that in respect of the duplicate/and or incorrect payments referred to in Schedule 1, the amounts involved were not in dispute.

Background

4. The Registrant was engaged as the Project Lead for vehicle and equipment procurement for the Hazard Area Response Team (HART) programme within the Department of Health (DH). His role involved identifying and procuring relevant training or vehicle equipment for use in the programme. As part of this role, at his own suggestion, he purchased items on his personal credit cards and then submitted invoices to his line manager Witness RM to approve, prior to the claims being sent to the business team. Purchase Order (PO) numbers were unusually generated once the claim had been submitted to the business team rather than in advance. In October 2010, DH procurement, Investment and Commercial Division raised concerns with DH’s internal audit team in relation to high value POs being repaid into the Registrant’s personal bank account.

5. The HCPC allegations related to some of the specific issues raised at the Crown Court trial. In summary these were concerns that the Registrant:
(i) Submitted duplicate invoices to DH and accepted/retained the overpayment;
(ii) Retained and sold a decommissioned Land Rover vehicle without obtaining agreement from the DH.
(iii) Relied on family members for unauthorised support and in dealings with vehicle purchases.
(i) Used his own not for profit organisation (Millbrook Safety Services) to conduct unauthorised transactions on behalf of HART;

Assessment of Witnesses

Witness RM, Former Strategic Ambulance Adviser and Programme Manager for HART

6. Witness RM first met the Registrant around 2004-2005 through their respective roles relating to the National Emergency Preparedness board. He informed the Panel during his oral evidence that in 2004 he was seconded into the HART programme. In or around 2006 when the programme started ‘to gather momentum’ the Registrant was approached by him because of his procurement knowledge in relation to emergency equipment and major incident planning. There was no formal recruitment process. Witness RM spoke highly of the Registrant and the contribution he made to the success of the HART project.

7. Witness RM’s evidence was not wholly reliable. There were inconsistencies between his oral evidence and the witness statements he provided to the police and the HCPC. For example, Witness RM stated in his police witness statement, dated 17 January 2012, that the Registrant had never declared any business interests to him and he was not aware that the Registrant was associated with Millbrook Safety Services (Millbrook). However, despite confirming that he ‘was prepared to accept the content’ of his police witness statements, he stated during his oral evidence with regards to Millbrook, ‘he might have told me. Possibly he did…probably he did. I cannot remember now.’ Furthermore, in the same witness statement, he stated that he had never authorised the Registrant or any other member of HART to use a taxi for such long journeys, as indicated by the receipts, and would not have done so due to the high cost. However during his oral evidence he stated that it was necessary to use taxis as equipment had to be moved quickly and it was ‘needs must at the time.’

8. The Panel noted that although the HART project was within the DH, Witness RM appeared to have formed the erroneous view that it could operate largely outwith the financial processes and procedures of the DH. The Panel was told that there was pressure to deliver the project in a timely fashion. However, Witness RM appeared to have a cavalier and overly relaxed approach to the financial management of the project and did not think that there was anything untoward. He referred to being told that the sums involved were “trifling amounts” in the whole scheme. He appeared only to blame his line manager and government ministers involved in the HART project without accepting any personal responsibility for the mismanagement of the finances given his role as the Registrant’s line manager, even with the benefit of hindsight. He said that he believed Witness ZA was overzealous. The Panel made appropriate allowances for the significant time period that has elapsed since the relevant events took place but formed the impression that Witness RM had not closely monitored or scrutinised the Registrant’s procurement claims prior to authorising their submission.

9. In light of Witness RM’s inconsistent statements and the concerns with regards to the effectiveness of his oversight of the Registrant’s claims, the Panel proceeded with caution in assessing his evidence.
Witness ZA, Former Senior Auditor at DH

10. Witness ZA was a senior auditor at DH and is an accredited Counter Fraud Specialist. His role involved the investigation of cases of suspected fraud against the DH. He was not involved in the initial internal audit review in late 2010/early 2011. However, due to the findings of that audit he was instructed to conduct an investigation.

11. The Panel found Witness ZA to be a credible and reliable witness. The Panel noted that he appeared to have made an incorrect assumption in his witness statement that Deptford was not in London.  In addition, Witness ZA appeared to have forgotten that although DB, a HART employee, denied signing the Land Rover lease agreement, Witness ZA had instructed a handwriting expert who concluded that the document had been signed by DB. He was also unaware of the absence of a fully functioning purchasing system specifically for the HART project. However, these aspects of his evidence did not undermine the overall credibility and reliability of his evidence. Although the Panel did not necessarily agree with the conclusions that Witness ZA reached, for example, with regards to the ownership of the Land Rover, the Panel was satisfied that he did nothing other than report on his findings based on the witness statements and documents that had been obtained as part of his investigation.

The Registrant’s Evidence

12. The Registrant chose to give evidence. Despite the passage of time he had a reasonably good recollection of the events that took place and overall the Panel found his evidence to be largely credible.

13. The Panel recognised that giving evidence is a stressful event and made appropriate allowances. However, the Panel took the view that although he accepted a degree of responsibility for the ‘errors’ he had made he appeared to do so reluctantly. It was clear from the Registrant’s written statement in response to the Investigating Committee’s case investigation report and his oral evidence that he was firmly of the view that the senior management of the HART project were to blame for the position he found himself in despite his having taken on the role as consultant/contractor and being in a senior role in the NHS until February 2010.

Panel’s Approach

14. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

15. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, the Registrant’s oral evidence, the written and documentary evidence, as well as the oral submissions made on behalf of both parties.

16. The Panel accepted the advice from the Legal Assessor. The Panel noted that following the Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 the test for dishonesty is an objective test only. The Panel first had to determine the Registrant’s actual knowledge or belief and then determine whether his act or omission was, on the balance of probabilities, dishonest by the ordinary standards of reasonable and honest people.

Decision on Facts

Allegation Stem

‘Between 2006 and 2011, whilst registered as a Paramedic and working with Great Western Ambulance Service, you...’

17. There was no dispute that between 2006 and 2011 the Registrant was registered as a Paramedic and worked for the Great Western Ambulance Service (GWAS). The Panel accepted the evidence of Witness RM and the Registrant’s own evidence that he was initially engaged as a self-employed consultant/contractor and that he was subsequently seconded to the DH.  Witness RM informed the Panel that, to the best of his knowledge, the Registrant became a secondee a few months after his initial engagement. However, the Panel accepted the evidence of the Registrant and the documentary evidence that he was not seconded into the DH until February 2010. The Registrant confirmed that he continued to work for GWAS on a full-time employment contract whilst providing services to the DH on a self-employed basis receiving a daily fee of £750 until his secondment in 2010.

Particular 1 – Found Proved

‘Submitted payment requests to the Department of Health for personal reimbursement, which were duplicate and/or incorrect as detailed in Schedule 1’

18. There was no dispute that the Registrant submitted several duplicate and/or inaccurate invoices. The HCPC’s case was that there were 12 in total as set out in the Schedule.

19. The Panel accepted the evidence of Witness ZA and the supporting documentary evidence that the Registrant submitted duplicate and/or inaccurate invoices as follows:

a. The Registrant submitted an invoice in respect of NFU Mutual Assurance Society (NFU) for £4,524.99 on or around 18 March 2009. The claim was labelled ‘Vehicle insurance costs’ under Purchase Order number (PO) 421536. The NFU invoice in respect of PO 421536 was paid by Bankers’ Automated Clearing Services (BACS) to the Registrant on 26 March 2009. A further claim in respect of NFU was made under PO 431714 for £4,524.99 labelled ‘Training Vehicle Costs’ in relation to a renewal notice dated 1 April 2009. The second claim was paid to the Registrant by BACS on 2 July 2009.  A NFU representative confirmed that in respect of this transaction it was only paid once.

b. The Registrant submitted a separate invoice in respect of NFU for £282.68 and £217.52 making a total of ££500.20. Two insurance schedules had been issued because there had been a ‘mid-term adjustment’ of the policy. The claim was submitted by the Registrant on 15 December 2008. On the same date the Registrant submitted an additional single invoice in respect of NFU for £500.20.  The invoice had been issued because of additional payments required on the policy due to the adjustments. However, the invoices related to the same insurance policy and a NFU representative confirmed that in respect of this transaction it was only paid once.

c. The Registrant submitted an invoice in respect of Prometheus Medical Ltd (Prometheus) for £2,092.59. The claim was labelled ‘Prometheus – IRU tmg equipment.’ The invoice was paid by BACS on 17 September 2009 to the Registrant under PO 439175. A further claim was made in respect of Prometheus on PO 450695 for £2,092.59 and was labelled ‘Prometheus Medical – IRU equipment consumables.’ The second claim was paid to the Registrant by BACS on 28 January 2010. A Prometheus representative confirmed that in respect of this transaction it was only paid once.

d. The Registrant submitted an invoice in respect of Quazar International Limited (Quazar) for £687.13. The claim was labelled ‘Quazar.’ The invoice was paid by BACS on 11 December 2009 to the Registrant under PO 446738. A further claim was made on PO 459890 for £687.13 for ‘Uniform items - Quazar’ in respect of a renewal notice. The second claim was paid to the Registrant by BACS on 15 April 2010. A Quazar representative confirmed that a duplicate invoice had been issued to the Registrant on 28 January 2010 but that in respect of this transaction it had only been paid once.

e. The Registrant submitted an invoice on 8 May 2008 in respect of Boundtree Medical Limited (Boundtree) relating to several items which amounted to a total of £14,398.26 (rounded up). The claim was labelled ‘HART Implementation – HART IRU training course.’ The claim was made under PO 372321. An additional claim was made by the Registrant for a delivery charge of £75.00 plus VAT. The Registrant had included an email alongside PO 372321 in which he explained that he was claiming £14,486.38 instead of £14,398.26 as, ‘The difference between the order value shown in the document and my PO request amount of £14486.38 is the delivery charge of £75.00 plus VAT.’ However, a representative from Boundtree confirmed that no delivery charge had been added to the order.  A further two invoices were submitted under PO 376804 for £9,788 and £2,780.83 on 19 June 2008 and a third invoice was submitted under PO 409713 on 6 November 2008 for £1,829.30. A representative from Boundtree confirmed that in respect of these transactions it had received three individual payments for the invoices relating to PO 376804 and PO 409713 and it was only paid once.  As separate purchase orders had been allocated the Panel accepted that the claims had been submitted and concluded on the balance of probabilities that the Registrant had been paid twice.

f. The Registrant submitted an invoice in respect of PC World for £31,884.35 under PO 368011 on 27 March 2008. Two further PC World invoices were submitted making a total of £31,884.35. The first of these additional invoices amounted to £29,078.86 and was submitted on 27 March 2008 and the second additional invoice amounted to £2,805.49 and was submitted on 23 June 2008.  The Registrant submitted the account payment receipt and the individual invoices as supporting evidence on separate occasions and was paid twice. A representative from PC World confirmed that in respect of this transaction it had only been paid once. As separate purchase orders had been allocated the Panel accepted that the claims had been submitted and concluded on the balance of probabilities that the Registrant had been paid twice.

g. The Registrant submitted an invoice in respect of PC World for £269.98 under PO 368011 on 25 March 2008. As a purchase order had been allocated the Panel accepted that the claim had been submitted and concluded on the balance of probabilities that the Registrant had been paid twice. A representative from PC World confirmed that in respect of this transaction it had only been paid once.

h. The Registrant submitted a claim in respect of Future Safety Ltd (Future Safety) for £1,193.43 on 15 September 2009. The claim was labelled ‘Future Safety – USAR tmg equipment.’ The invoice was paid by BACS on 17 September 2009 to the Registrant under PO 439175. A further claim in respect of Future Safety was made under PO 448023 on 18 December 2009 for £1,036.81 and £156.62 making a total of £1,193.43 and labelled ‘Future Safety’. The second claim was paid to the Registrant by BACS on 6 January 2010. A representative from Future Safety confirmed that in respect of this transaction it was only paid once.

i. Future Safety Ltd - £156.62 (See above).
j. The Registrant submitted a claim in respect of Lyon Equipment Ltd (Lyon) for £362.43 on 21 February 2008 under PO 363675. A further purchase order (PO 368011) was issued, which included a claim where the supporting document was the credit card payment of £362.43 in respect of Lyon.  As purchase orders had been allocated the Panel accepted that the claims had been submitted and concluded on the balance of probabilities that the Registrant had been paid twice. A representative from Lyon confirmed that in respect of this transaction it was only paid once.

k. The Registrant submitted a claim in respect of Arco for £1,654.67 on 27 March 2008 under PO 368011. A further claim in respect of Arco was submitted by the Registrant on 27 January 2009 for £1,654.67 under PO 416162. A representative from Arco confirmed that in respect of this transaction it was only paid once. As purchase orders had been allocated the Panel accepted that the claims had been submitted and concluded on the balance of probabilities that the Registrant had been paid twice.

l. The Registrant submitted an invoice in respect of Smiths of the Forest of Dean (Smiths) for £1,173.83 under PO 409713. A further claim for £1,173.83 was made using a duplicate invoice which was submitted on 27 January 2009 under PO 416162. The Registrant admitted that he had submitted a duplicate invoice in respect of the Smiths invoices. Witness ZA obtained a statement from a company director of Smiths in which she confirmed that in respect of this transaction the company had only been paid once. She also highlighted several discrepancies on the duplicate invoice. She stated that that the invoice had not been created or issued by Smiths.

20. The Registrant initially indicated during his oral evidence that the invoices in respect of a number of the claims may not have been duplicates, as he often made multiple purchases of the same items. However, during the course of his evidence, when taken to the various documents in the hearing bundle he accepted that all the claims were likely to be duplicates. The Registrant also accepted, during his oral evidence, that he had claimed a delivery charge in respect of the Boundtree invoice. He explained that at the time he must have thought that he had added it to the claim because he thought that it would be added to the order. The Registrant informed the Panel that, in respect of the Smiths invoice, the day that he attended the business premises the company was experiencing a power cut and therefore a member of staff produced the invoice on an old fashioned manual typewriter.

21. Accordingly, particular 1 was found proved.

Particular 2 – Found Proved

‘Accepted and/or retained monies paid by the Department of Health in reimbursement of duplicate invoices’

22. The Panel took into account its findings in respect of particular 1. In respect of the transactions there was either documentary evidence that the Registrant had been paid by BACS or his own confirmation that he had been paid twice. The Panel was satisfied that as a result of the duplicate invoices the Registrant was overpaid. There was no evidence before the Panel that any of the overpaid expenses had been refunded to the DH and during his oral evidence the Registrant confirmed that he had not repaid the monies.

23. Accordingly, particular 2 was found proved.

Particular 3 – Found Not Proved

‘Retained and sold Land Rover Vehicle chassis number 479519, following it being decommissioned, without obtaining the agreement of the Department of Health’

24. The Panel noted that the Registrant had ‘bought’ the Land Rover under a hire purchase agreement and then leased it to the DH. He explained that he ‘bought’ the Land Rover because the DH did not have the facility to buy and own a vehicle. The Registrant stated that he weighed up the various options and concluded that a hire purchase agreement was the most cost effective. He informed the Panel that the arrangement was agreed via Witness RM and involved making an initial payment of £27,000. He stated that he then entered into a lease agreement with the DH through his not for profit organisation – Millbrook Safety Services. The lease was signed by DB on behalf of the DH. The Registrant stated that the vehicle was leased for the exact cost of the initial payment. When the vehicle was decommissioned the Registrant did not want to be exposed to any additional costs and, as the registered owner, opted to sell the vehicle to a third party who made the final vehicle payment to the finance company.

25. The Panel noted that the purchase of the Land Rover was an unusual and peculiar arrangement. However, as the vehicle was purchased by the Registrant, the Panel could see no reason why he was not free to sell the vehicle when it was decommissioned. Furthermore, the lease agreement was signed by a BD, a DH employee. In addition, there was no evidence before the Panel that the Registrant was required to obtain the permission of the DH before retaining and selling the vehicle.

26. Accordingly, particular 3 was found not proved.

Particular 4 – Found Not Proved

‘Retained the proceeds of sale, and/or offset the proceeds of sale, of a tri-axle trailer against expenses incurred by you without the agreement of the Department of Health’

27. The HCPC offered no evidence in relation to particular 4. No evidence was adduced, and the Panel was unable to identify any evidence within the hearing bundle.

28. Accordingly, particular 4 was found not proved.
Particulars 5(a) and 5(b) – Found Not Proved
‘Engaged in acts which resulted in a financial benefit to members of your family, without the agreement of the Department of Health, including:

a. Using family members to provide logistical support;

b. Using family members to provide taxi services.’
29. Witness ZA informed the Panel in his witness statement that the Registrant should not have relied on his father to provide logistical support and his father in law to provide taxi services. He stated that if the Registrant wished to rely on family support he should have followed the procurement policy and sought authorisation from the DH in advance. Witness ZA assumed that the Registrant should have had access to the DH’s policies.
30. The Panel accepted the written evidence from the HR Operations Team Leader for the DH that staff, whether permanent, temporary, seconded or engaged as consultants or contractors, must follow specific guidance and policies when handling relevant DH business. The Panel was provided with the DH code of business conduct and noted the prohibition on entering into contractual arrangements or negotiations on behalf of the DH where the employee or contractor has a personal interest.

31. The Panel accepted that the procurement policy applied to the Registrant. However, there was no evidence before the Panel that this policy was provided to him, communicated to him or brought to his attention prior to his secondment in February 2010. As the logistical support and taxi services all relate to the period when the Registrant was a self-employed consultant, the Panel concluded that the Registrant could not be bound by the terms of a policy that he was unaware of. The Registrant stated that he was unaware of the policy and there was no other evidence to show that he was so aware.

32. Accordingly, particulars 5(a) and 5(b) were found not proved.

Particular 6(a) – Found Not Proved

‘Engaged in acts which resulted in a financial benefit to you, without the agreement of the Department of Health, including:a. Arranging financial transactions between the Department of Health and Millbrook Safety Services;’

33. The Panel took into account its findings in relation to particular 6(a). Witness ZA stated in his witness statement that in accordance with the procurement policy, the Registrant should not have used Millbrook to purchase items on behalf of the DH because of the conflict of interest.

34. The Panel accepted that the procurement policy applied to the Registrant. However, there was no evidence before the Panel that this policy was provided to him, communicated to him or brought to his attention prior to his secondment in February 2010. At the time that the Land Rover was leased through Millbrook the Registrant was a self-employed consultant. The Panel concluded that the Registrant could not be bound by the terms of a policy that he was unaware of and there was no evidence that he was aware of the policy. The Registrant stated that he was unaware of the policy.

35. Accordingly, particulars 6(a) were found not proved.

Particular 6(b) – Found Not Proved

‘Engaged in acts which resulted in a financial benefit to you, without the agreement of the Department of Health, including:b. Not following the invitation to tender route with regard to transactions with values of £10,000 or above and instead offering those contracts to Millbrook Safety Services.’

36. The HCPC offered no evidence in relation to particular 6(b). No evidence was adduced, and the Panel was unable to identify any evidence within the hearing bundle.

37. Accordingly, particular 6(b) was found not proved.

Particular 7 (Dishonesty) – Found Not Proved

38. Having found particulars 1 and 2 proved the Panel went on to consider the issue of dishonesty.

39. The Panel concluded that the Registrant fell into serious error. Some of this may have been due to the culture and attitude towards procurement within the newly established HART project and the context in which he was engaged. The focus and pressure from above was directed towards increasing the UK’s preparedness in light of a terrorist threat within the shortest time period. The Panel took the view that the Registrant was seduced by the apparent importance of the work that he was undertaking, blurring his understanding of his personal and professional accountability. However, the Panel did not accept that speed of delivery and expediency should have overridden the need to ensure that there were proper procedures in relation to appropriate recruitment, scrutiny and audit of the whole team. The Panel was shocked by the apparently casual approach of senior management in the team to the spending of public money.

40. The Registrant stated that he submitted the duplicates in the mistaken belief that they had not previously been submitted for payment. He informed the Panel that he had been instructed to batch his claims to cut down on administration. He stated that he had a very simple filing system for paid and unpaid invoices but often relied on his memory.

41. The Panel noted that during the early stages of the HART project the Registrant was working part time as a consultant and at the same time continuing to work and being paid in his full-time role at GWAS. The Panel accepted his evidence that over time the needs of the HART project gradually increased and at times he was under considerable pressure. He informed the Panel that there came a ‘tipping point’, when he either had to focus on the project or focus on his GWAS role. It was at that time that a decision was taken that he would become a secondee to the DH. This occurred in February 2010. However, it was in the preceding two years that the 12 duplicate and incorrect invoices were submitted. It is within this context that the Panel concluded that the claims were more likely to be accounting errors than conscious and deliberate acts of dishonesty. The Panel noted that the Registrant was paid twice on those occasions, but no suppliers were paid twice. However, the Panel concluded that, in and of itself, that was insufficient to demonstrate dishonesty.

42. The Panel gave separate consideration to the Smiths invoice and the allegation that the Registrant created the invoice. The Panel noted that a company director from Smiths had provided a statement, dated 9 June 2011, in which she stated that the duplicate invoice had not been produced or issued by Smiths and that in the event of a power cut a written invoice would have been created. The company director was not called to give evidence at this hearing. As her hearsay witness statement was the only evidence on this important issue the Panel could afford it little weight. The Registrant provided an explanation (see paragraph 22) and as there was no opportunity for this to be put to the company director, the Panel concluded that there was insufficient evidence that it was the Registrant who had produced the duplicate invoice.

43. Accordingly, particular 7 was found not proved.

Decision on Grounds

Panel’s Approach

44. In view of the factual findings the Panel went on to consider grounds in relation to Particulars 1 and 2 only and no further consideration was given to the particulars that were found not proved. The Panel was aware that determining the issue of misconduct is a matter of judgement; there is no burden or standard of proof.

45. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

“Misconduct is a word of general effect, involving some 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. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

46. The Panel was aware that departures from the HCPC Standards of Conduct Performance and Ethics and the Standards of Proficiency (‘the HCPC standards’) alone do not necessarily constitute misconduct.

47. The Panel took into account the oral submissions from Ms Manning-Rees and Ms Harris and accepted the advice of the Legal Assessor.

Decision on Misconduct

48. The factual findings confirm that during a period of approximately 2 years between 2008 and 2010, the Registrant submitted 12 duplicate and/or incorrect invoices. In respect of these claims by the Registrant, the Panel found on the balance of probabilities that he was paid twice by the DH. Although the DH was entitled to reimbursement of the overpayments, the additional sums to date have not been repaid nor has there been any offer of repayment.

49. The Panel noted that the Registrant is a senior Paramedic with considerable skills and experience in Emergency Preparedness. He was recommended and appointed to provide specialist advice on the procurement of emergency equipment for which he was highly paid. The Registrant informed the Panel that despite being described by key DH employees including his line manager Witness RM, as a procurement expert he was a subject matter specialist. The Panel concluded that whether the Registrant was predominantly engaged to provide subject matter advice with procurement as an adjunct to that role or vice versa, it was clear that he was closely involved in the procurement of goods and services on behalf of the DH and indeed his job title reflected that role.

50. The Registrant, as part of his role and at his own suggestion, made numerous purchases using his personal credit cards for which he was reimbursed from public funds. In view of the frequency of the purchases, the value of the items procured and the authority he had to spend public funds, it was the Registrant’s responsibility to ensure that he had a wholly robust accounting system. The Panel was satisfied that the method the Registrant chose to adopt did not need to be particularly sophisticated and did not require specialist training, but it did need to be reliable and accurate to minimise any risk of mistakes. The Registrant’s reliance on his ‘memory’ may have been sufficient when dealing with personal expense claims where the risk may be that he forgot to claim for a travel expense that he had incurred, but it was wholly inadequate when there was a risk of significant loss to the public purse. The Panel found that the sum the Registrant was overpaid amounts to approximately £59,000. He admitted that he had never audited any of his procurement transactions until he was the subject of audit by the DH.

51. The Panel was satisfied that although the submissions of the duplicate and incorrect invoices were on the balance of probabilities not dishonest, they were extremely negligent. The Panel was satisfied that the negligence was of such a high degree that it amounted to misconduct.

52. In reaching the conclusion that the Registrant’s acts and omissions amounted to misconduct the Panel took into account the 2003 edition of the HCPC Standards of conduct, performance and ethics and the Standards of Proficiency (Paramedics). The Panel noted that there were similar provisions in the 2008 version. The Panel was satisfied that the Registrant’s conduct fell far below what would be proper in the circumstances, given his position within the HART project, the task that he had agreed to undertake and the responsibility which he had accepted. The Panel concluded that the Registrant’s acts and omissions represented a significant departure from the following standards of conduct, performance and ethics:

• 10 – You must keep accurate… client… records
• 13 - You must carry out your duties in a professional and ethical way
• 14 - You must behave with integrity…
• 16 – You must make sure that your behaviour does not damage your profession’s reputation

53. The Panel concluded that the Registrant’s acts and omissions represented a significant departure from the following standards of proficiency which requires Registrants to:

• 1a.5 – know the limits of their practice and when to seek advice

 1a.6 – recognise the need for effective self-management of workload and be able to practice accordingly

• 2c.2 – be able to audit, reflect on and review practice [this includes – being able to maintain an effective audit trail and work towards continual improvement.]

Decision on Impairment 

Panel’s Approach

54. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

55. In determining current impairment, the Panel had regard to the following aspects of the public interest:

• The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

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

Panel’s Decision

56. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

57. The Panel recognised that demonstrating remediation in a case involving an attitudinal deficiency is difficult.  Although it was clear that the Registrant had reflected on the events that took place, it was apparent to the Panel that these reflections were dominated by the wrongs that he felt were done to him. It was only during close questioning from the Panel that the Registrant appeared to properly consider his own wrongdoing, but he did not demonstrate that he fully appreciated the gravity of his misconduct. He also did not appear to recognise until late in the hearing that irrespective of the role he was performing, as a registered professional, the highest standards of conduct and behaviour were required of him at all times. The Registrant appeared to take the view that because, as a contractor for the DH he was not utilising his clinical or management skills as a paramedic, he could set his own standards. He stated during his oral evidence that as a contractor, ‘…I could do what I wished, when I wished.’ However, he informed the Panel that, if he is permitted to remain on the register, he has no intention of seeking a role involving procurement. He stated that he would hope to find full employment within the NHS in a patient facing role. The Panel noted that the Registrant’s intentions were less to do with the proper recognition of his own errors whilst in a procurement role and more to do with his view that he had naively trusted others and had been let down.

58. The Panel took the view that it is incumbent on all registered practitioners to recognise that alongside the benefits of membership of a profession is the responsibility of maintaining and upholding high professional standards even when not performing clinical practice. The Panel concluded that the Registrant demonstrated developing but still limited insight with regard to this aspect of his contractor role and for that reason it was satisfied that his fitness to practise is impaired on the basis of the personal component.

59. Although the Panel concluded that the Registrant lacks full insight, it was satisfied that the risk of repetition was low. The Panel noted that the Registrant’s misconduct occurred within the context of a discrete set of circumstances which is highly unlikely to be repeated. The Panel recognised that even if the Registrant were to obtain a role in the future which required him to procure goods and services, it is unlikely that the integrity of the financial management would be solely dependent on his own audit procedures. Such an unusual situation was unlikely to arise in future, and if it did, notwithstanding the absence of full insight, the Registrant would be very unlikely to act in the same manner.

60. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

61. Although the absence of a fully functioning procurement process and a second-tier audit process within the DH for the HART project was not of the Registrant’s making, members of the public would be extremely concerned to learn that he took on a procurement role in those circumstances, without putting any of his own systems in place to monitor and protect his expenditure of public funds. The public would also be concerned that this state of affairs persisted beyond the initial start-up phase of the HART project. It continued for approximately five years.

62. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell below the standard expected of a registered practitioner. The Panel was satisfied that, haven taken on a highly responsible role, it was for the Registrant to ensure that he fulfilled that role to an appropriate standard. The Registrant had a duty to seek appropriate assistance from the relevant authorities if he was finding it difficult to cope or put his own measures in place in the absence of any guidance. The Panel took the view that the Registrant did not act in the best interest of the public and in so doing brought his profession into disrepute.

63. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.

64. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of the personal and public component of the public interest and therefore the HCPC’s case is well-founded.

Decision on sanction

Submissions

65 Ms Manning-Rees, on behalf of the HCPC, was neutral as to what sanction, if any, should be imposed. She referred the Panel to the Indicative Sanctions Policy and reminded the Panel that the purpose of sanctions was to protect the wider public interest.

66 Ms Harris, stated on behalf of the Registrant that he was devasted by the Panel’s findings. She reminded the Panel that the relevant events occurred a number of years ago and submitted that the Registrant has gained an understanding of his responsibilities. She further submitted that the Registrant is not a risk to the public and that given the unique circumstances there could be no deterrent effect on other registrants. Ms Harris reminded the Panel that the Registrant admitted that he had submitted a number of duplicate invoices and referred the Panel to the positive character references that had been adduced on his behalf.

67 Ms Harris invited the Panel to take no action against the Registrant on the basis that this case is an exceptional case. However, she submitted that if the Panel was not minded to accept her primary submission, a Caution Order was the appropriate and proportionate sanction to impose.

Panel’s Approach

68 The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

69 The Panel had regard to its findings in relation to impairment of the Registrant’s fitness to practise on grounds of misconduct. The Panel also had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by both parties.

Decision

70 In determining the appropriate sanction, if any, the Panel took into account the aggravating and mitigating factors. The Panel identified the following aggravating factors:

• The Registrant’s wholly inadequate accounting system and the absence of any audit process which persisted for approximately 4 years;

• There was significant loss to the public purse which has not been recovered;

• The absence of any offer to reimburse the DH;

• The Registrant was a senior NHS manager at the time of his engagement with the HART project and ought to have known what his responsibilities were within the DH;

• The Registrant’s inclination to blame others;

• The Registrant’s initial poor insight into the relationship between his business affairs and his responsibilities as a registered professional.

The Panel identified the following mitigating factors:

• The Registrant has engaged throughout these proceedings;

• The Registrant has no previous regulatory findings either before or since the relevant events;

• The Registrant provided excellent character references;

• There was no risk of patient harm;

• The context in which the Registrant was working was highly unusual.

71 The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct, to take no action on his registration would be wholly inappropriate. Although the circumstances were unique the Panel was not satisfied that it amounted to exceptional circumstances which justified no action. In the absence of exceptional circumstances, the Panel concluded that taking no action would be insufficient to maintain public confidence in the profession.

72 The Panel went on to consider a Caution Order.  The Panel noted paragraph 28 of the ISP which states:

“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also 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. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

73 The Panel took the view that the Registrant’s misconduct could not be described as minor but it was limited in nature in that it related to a discrete set of circumstances which was highly unlikely to be repeated. The Panel noted that some of the Registrant’s serious errors occurred 10 years ago and that he has had to live with the strain of outstanding criminal proceedings and regulatory proceedings since 2011. The Panel also noted that during the proceedings the Registrant has developed sufficient insight into his role as a professional to justify imposing a sanction towards the lower end of the spectrum. The Panel concluded that given the nature of the misconduct it would not be appropriate to impose restrictions on his practice as attitudinal deficiencies are not amenable to conditions of practice and there are no patient safety concerns. The Panel also took the view that as the risk of repetition was low, despite the absence of full insight, a Suspension Order would be punitive in nature and disproportionate.

74 The Panel determined that the public interest could be met with the imposition of a Caution Order. It concluded that, given the particular unusual circumstances of this case, no restriction of the Registrant’s practice is necessary and that a Caution Order would send a signal to the Registrant, the profession and the wider public that irrespective of the failings of others, registered professionals are required to uphold high standards of conduct and behaviour at all times. The Panel was also satisfied that 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 together with the significant mitigating circumstances. Furthermore the public interest is best met in these circumstances, by not depriving the public of an otherwise competent and dedicated practitioner.

75 The Panel determined that the Caution Order should be imposed for 2 years to mark the seriousness of the Registrant’s conduct and to maintain the public’s confidence in the regulatory process.    

Order

That the Registrar is directed to annotate the register entry of Mr Richard McKeand with a caution which is to remain on the register for a period of 2 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Richard J Mckeand

Date Panel Hearing type Outcomes / Status
19/03/2018 Conduct and Competence Committee Final Hearing Caution