Mr Jonathan Leslie Ker
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Allegation (as amended):
During the course of your employment as a Paramedic with North East Ambulance Service:
1. On 29 December 2015, attended an emergency call to Patient A and you:
a. administered glucose:
i. without first checking Patient A’s blood sugar level;
ii. without first checking Patient A’s pulse / heart rate;
iii. when this was inappropriate, as Patient A was suffering from Bradycardia;
b. did not record that you had administered glucose in the Electronic Patient Report Form.
2. On 28 May 2016, attended a victim of sexual assault, Patient B, and you did not make a full and/or accurate record of:
a. your attendance on Patient B;
b. any assessment you completed, and/or;
c. any treatment provided to the patient.
3. On 02 and 03 October 2016, attended Patient C and you inappropriately and/or incorrectly recorded interventions in:
a. that an intraosseous needle was placed in the patient’s left leg before intravenous infusion had been attempted;
b. that an intraosseous needle was placed in the patient’s right and left legs;
c. that four needle infusions were attempted in approximately four minutes;
d. that Glucose 10% was administered one minute after Glucagon had been administered.
4. On 17 October 2016, attended Patient D and you:
a. did not make an accurate record of who had provided treatment and/or medication to the patient;
b. incorrectly recorded that Patient D has been administered 10mg of Diazepam;
c. incorrectly recorded that all interventions and drug administration occurred at 21:45;
d. only recorded one set of observations Patient D on the journey to hospital.
5. On 24 November 2016, attended two incidents concerning Patient E and you:
a. did not undertake a full clinical examination of Patient E, in that you did not:
i. take off the patient’s shoes and socks;
ii. examine the patient’s ankle; and/or
iii. reduce the patient’s ankle to a more anatomically correct angle;
b. did not make a full and/or accurate record of the treatment provided to the patient following each incident.
6. The matters set out in paragraphs 1-5 constitute a lack of competence and/or misconduct.
7. By reason of your lack of competence and/or misconduct, your fitness to practise is impaired.
1. The Panel found that there had been good service of the notice of hearing dated 2 July 2018 sent to the Registrant’s address by post as it appears on the HCPC register.
Proceeding in absence of the Registrant
2. The Registrant was not present at the start of the hearing. The Panel considered whether to proceed with the hearing in the absence of the Registrant under rule 11 of the Procedure Rules 2003. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled Proceeding in the Absence of the Registrant, and followed that advice. The Panel was reminded of the principles stated in the cases of R v Jones and R v Hayward to exercise utmost care and caution in considering the HCPC’s application inviting the Panel to proceed with this hearing in the absence of the Registrant. Also that in the case of GMC v Adeogba it was stated that a health professional has a responsibility to engage with his regulatory body.
3. The Panel decided that it was in the interests of justice to proceed with the hearing in the absence of the Registrant taking into account that the Registrant has voluntarily absented himself. The email dated 31 August 2018 and the Response Pro-forma completed by the Registrant state he is not planning to attend the hearing. He has not requested an adjournment and it is not likely that he would attend in the future, if this hearing was adjourned. The Registrant has supplied detailed written representations to the HCPC, in response to the allegation and the Panel will take these into account. Consideration was also given to the attendance of the single witness. There is a public interest in dealing with this case expeditiously and it is in the public interest to proceed with the hearing today, because the relevant events occurred in 2015 and 2016.
Amendment of the particulars
4. The Panel heard an application by Ms Mond-Wedd, on behalf of the HCPC, to amend the allegation. The Panel received and accepted the advice of the Legal Assessor. The Registrant did not object to the proposed amendments, having been notified of them by letter dated 19 February 2018. The Panel was satisfied that the proposed amendments were necessary, provided clarity, better reflected the HCPC evidence and were not considered to be prejudicial to the Registrant.
5. In addition, during Panel deliberations when considering the facts, the Panel determined that an additional amendment, of the stem of particular 3, was necessary and desirable to clarify that the words “inappropriate and/or incorrect” should apply to the Registrant’s record-keeping and not to his interventions, which was reinforced by the evidence of SJ. The Panel was satisfied that this minor amendment was necessary and was not prejudicial to the Registrant. The Panel therefore made the amendment of its own motion, but consistent with the advice it had already received from the Legal Assessor.
6. The Registrant commenced employment as a Band 5 Paramedic with the North East Ambulance Service (NEAS) in November 2015. During the course of his one year probation, serious concerns were raised regarding his record keeping in relation to incidents concerning patients A and B, there were also concerns regarding the treatment proved to Patient A.
7. As a result, the Registrant’s probation was extended and he was placed on an action plan to improve his record keeping. Further serious record keeping issues were raised in relation to Patients C, D and E which led to a formal probation review being conducted. During the course of the review, the Registrant resigned from his position to take up an offer of employment abroad. Subsequently the matter was referred to the HCPC.
Decision on Facts
8. The Panel carefully considered the evidence in the case, the submissions of Ms Mond-Wedd, and the written submissions from the Registrant. The Panel accepted the advice of the Legal Assessor that the burden of proving the factual particulars is upon the HCPC and the standard of proof is the balance of probabilities.
9. On behalf of the HCPC, the Panel heard oral evidence from SJ. The Panel received a bundle of documentation from the HCPC including the witness statement of SJ and 151 pages of HCPC exhibits. The Panel also received and considered 17 pages of representations from the Registrant, his Response Pro-forma and an email dated 31 August 2018, that included an appraisal and reference.
Credibility of the Witness and Assessment of the Evidence
10. The Panel first made an assessment of the credibility of the witness and the reliability of all of the evidence presented to it. The Panel found SJ to be credible and believable. He was fair and clear in his responses to questions and gave the Registrant credit where he could.
The Registrant’s written evidence
11. The Registrant made some admissions to the factual particulars, which were not binding on the Panel but were taken into account, and were persuasive. The Panel took account of the fact that the Registrant was unrepresented and did not draw any adverse inferences from the Registrant’s decision not to attend the hearing.
Particular 1- Proved
12. SJ stated that he had held a discussion with the Registrant about his treatment of Patient A and his record keeping. In an email dated 10 January 2016 the Registrant set out his recollection of his treatment of Patient A. This email states that he administered glucose to Patient A, in the form of oral dextrose (‘Glucogel’) before checking Patient A’s blood sugar level, after hearing from Patient A’s partner that she thought he was going into a ‘hypo’. The Registrant has admitted particular 1a(i) in that he administered glucose without checking Patient A’s blood sugar level. The Panel accepted the evidence of SJ that glucose was administered without first checking Patient’s A’s blood sugar level or his heart/pulse rate and that this was inappropriate as a subsequent ECG showed the Patient was bradycardic. Therefore, it was inappropriate to administer the glucose. The Panel finds that particulars 1a(i)-(iii), are proved.
13. In addition, the Electronic Patient Report Form (EPRF) completed by the Registrant in respect of Patient A, does not record that he had administered glucose. According to the Form the medication administered was Aspirin and Atropine. Therefore, particular 1b is proved.
Particular 2- Proved
14. SJ gave evidence in respect of the Registrant’s record keeping in relation to Patient B. He stated that a paper Patient Report Form was completed by the Registrant following his attendance on Patient B, who complained of a sexual assault by an unknown male. The Form shows that the Registrant attended at 05:54 on 28 May 2016 and that Patient B was handed over to the police at 06:25. The Registrant recorded on the paper Patient Report Form that the Patient had ‘no injuries’. In a later interview the Registrant states he was only with Patient B for 5 minutes. However the Form states he was with her for 31 minutes. SJ stated that more information should have been recorded on the Form in respect of his attendance and assessments he undertook as Patient A was a potential victim of sexual assault and it would be highly likely that evidence from the Registrant would be required as part of the police investigation. The Registrant, in his written submission, states that he did not provide any treatment to the Patient but SJ states the checks he made in order to determine what treatment, if any, was necessary should have been recorded on the Form. The Panel concluded there were insufficient details on the Form and anomalies between the information on the Form and the Registrant’s later explanation. The Panel considers the Form was not a full and accurate record and therefore particulars 2a-c are proved.
Particular 3- Proved
15. SJ stated that intraosseous access is a significant procedure and carried out if intravenous access cannot be achieved. The relevant Electronic Patient Care Record (EPCR) for Patient C states that intraosseous access was carried out before intravenous access was attempted. SJ considered this to be highly unlikely and suggested that the Registrant must have made a mistake and failed to correct the automated times assigned to the different entries on the EPCR. Also the Form states that an intraosseous needle was placed in both of the Patient’s legs, 4 procedures were carried out in a 4 minute period and the drugs administered were Glucagon and then 1 minute later Glucose 10%. SJ’s evidence is that this is not realistically achievable in the time-frame. The Panel finds these entries on the Form were incorrectly completed and therefore finds particulars 3a-d, are proved.
Particular 4- Proved
16. SJ gave evidence that he had reviewed the EPCR of Patient D which indicated to him that the Registrant had gained intraosseous access, administered 10mg of Diazepam and 600mg Benzylpenicillin and these had all occurred at 21:45. He added that the report showed only one set of recorded observations during the transfer. Following further investigation, SJ found that the Diazepam had been administered by the nurse and was in fact only 5mg, the Benzylpenicillin was administered by the Doctor and that the intraosseous access was gained by the Registrant at the request of the Doctor. It was also unlikely that all interventions could have occurred at the same time. These facts were confirmed by the Registrant in subsequent discussions. The Panel accepted the evidence of SJ and finds particulars 4a-d proved.
Particular 5- Proved
17. SJ gave evidence that he had reviewed two EPCRs concerning Patient E. He found no evidence that the Registrant had carried out a full clinical examination of Patient E as would have been required in such circumstances. SJ added that the EPCR was inadequate in that it did not provide a full and accurate record of Patient E’s treatment. The Panel accepted the evidence of SJ and finds particulars 5a(i-iii) proved in relation to the first incident. The panel considered the evidence of SJ and the two EPCRs and concluded that 5b is proved for both incidents.
Decision on Grounds
18. The Panel next considered whether the Registrant’s behaviour in respect of the proved facts amounts to misconduct and/or lack of competence.
19. Misconduct is a matter for the Panel’s judgment and has been defined as 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 medical practitioner in the particular circumstances and the conduct complained of must be serious.
20. The HCPC submits that the behaviour outlined in the factual particulars could amount to misconduct in that it constitutes a serious falling short of what would be proper.
21. The Panel considered each of the particulars with regard to whether the proved facts amounted to misconduct. The Panel concentrated on those particulars relating specifically to clinical practice, in particulars 1 and 5 and the more serious recording issues relating to particular 2. The Panel concluded that the Registrant did not demonstrate any wilful disregard of applicable policies or procedures and that the decisions made by the Registrant were motivated by the best interests of the patients concerned. The Panel also concluded that individually none of the particulars reached the seriousness threshold for a finding of misconduct. The Panel then considered whether viewed collectively these incidents amounted to misconduct and concluded that due to the disparate nature and the time between the incidents that there was not an identifiable pattern of behaviour that amounted to misconduct.
22. In assessing lack of competence, the standard to be applied is that applicable to the post to which the Registrant had been appointed and the work he was carrying out. In this case the Registrant was a Band 5 Paramedic, and he was required to meet the standards set out in his job description dated 28 May 2014. The Panel noted the Registrant had received limited initial training on the EPRF but had then attended a one day training course in June 2016 on the newly-introduced EPCR system. A lack of competence has been described as a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the Registrant’s work. The Panel is satisfied that the factual particulars represent a fair sample of the Registrant’s work and there is a pattern of a lack of proper record keeping, arising from particulars 1b, 2a-c, 3a-d, 4a-c and 5b. The Registrant’s poor record keeping which resulted in inaccurate and incomplete data being provided in respect of the patients and their treatments is a clear breach of Standard 10: (be able to maintain records appropriately), of the Standards of Proficiency for Paramedics. The Panel concluded that the Registrant’s failure to provide accurate and comprehensive patient records in respect of five patients between December 2015 and November 2016 demonstrated a lack of competence.
23. Particulars 1a(i)-(iii), and 5a(i)-(iii) relate to clinical practice and were considered by the Panel in relation to misconduct. The Panel concluded that these were isolated examples of poor judgment and were not a result of a lack of competence. In respect of 4d this does not arise from poor record keeping because the only observation undertaken was recorded and therefore this does not indicate a lack of competence.
Decision on Impairment
24. The Panel next considered whether the Registrant’s fitness to practise is currently impaired. The HCPC Practice Note on Finding that Fitness to practise is “Impaired” states there are two components: The personal component which includes looking at the current competence, behaviour etc. of the individual registrant. The public component which includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession. The test of impairment is expressed in the present tense, that fitness to practise is impaired at the current date. The Panel has taken into account the lapse of time since these matters occurred but has also looked at the Registrant’s past actions in order to assess his likely future conduct. The Panel has considered the need to uphold the HCPC standards of conduct and proficiency and public confidence in the profession, when considering whether a finding of impairment should be made. Whether a Registrant’s fitness to practise is impaired is a matter for the Panel’s judgment. There is no burden of proof on the HCPC or the Registrant at this stage.
25. The Registrant has not attended this hearing but he has engaged with the HCPC regulatory process. He has provided written representations which the Panel has considered to determine what degree of insight he has shown and whether there is a risk of repetition. In addition, during the course of the NEAS review process he acknowledged that some of the patient records he compiled were incorrect and misleading. He also agreed that good record keeping was vital and he stated that he had asked colleagues to check his record keeping before closing incidents. In the Panel’s view, the Registrant has demonstrated limited insight and is particularly concerned about the Registrant’s apparent lack of understanding with regard to the potential consequences of incomplete or inaccurate records.
26. The Panel finds his lack of competence is capable of remediation but has not yet been remediated. The Registrant has outlined training that he has undertaken since the incidents before the Panel happened. However, he has not put forward any specific evidence of remediation in respect of his record keeping. He has provided a reference and also a staff appraisal for the period from April to June 2017. The latter which demonstrates he was working to a high standard as a medic in his next workplace following his resignation from NEAS, but there is no reference to his record keeping although he was given a high mark for his report writing.
27. The Registrant has demonstrated limited insight into his record keeping failings and there has been a lack of targeted remediation, since these matters arose. Therefore he has not allayed the Panel’s concerns that there is a risk of repetition and the Panel finds he is currently impaired under the personal component.
28. In considering the public component the Panel considers a risk to patient safety is likely to be created by inaccurate and incomplete information as to patient interventions, and this may compromise future treatment. The Registrant’s behaviour fell short of what is to be expected of a Paramedic and it is necessary to maintain public confidence in the profession and the regulatory process by finding that there is a current impairment of his fitness to practise.
29. Accordingly due to the risk of repetition and the need to uphold proper professional standards and public confidence in the profession, the Panel finds that the Registrant’s fitness to practise is currently impaired, on both personal and public policy grounds.
Decision on Sanction
30. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the circumstances of this case and to its findings on the facts, the statutory ground of lack of competence and current impairment.
31. The Panel has considered the submissions made on behalf of the HCPC and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had regard to the HCPC Indicative Sanctions Policy, which states that any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.
32. The Panel first identified the aggravating and mitigating factors that it should take into account.
33. The aggravating factors are:
• There were multiple incidents over a 12 month period which continued despite advice and an action plan being provided by NEAS.
• There has been limited insight.
• There has been no remorse demonstrated by the Registrant.
34. The mitigating factors are:
• There have been no previous concerns during the course of his paramedic career of over 15 years regarding the Registrant’s fitness to practise.
• The Registrant has made some admissions to the HCPC and during the course of the NEAS investigation in respect of the facts found proved.
• He has engaged with the HCPC process prior to the hearing.
• There has been some insight demonstrated by the Registrant.
35. The Panel has considered the available sanctions in ascending order of gravity.
36. The Panel noted that a striking-off order is not an available sanction at this stage.
37. The Panel has sought to balance the public interest against the rights of the Registrant to practise his chosen profession.
38. The Panel has concluded that to take no action or mediation would not be appropriate due to the Registrant’s need to address his lack of competence found by the Panel and this would not provide the necessary public protection.
39. A Caution Order would also not be appropriate because the failings were not isolated and a pattern of poor record keeping was displayed. The Panel concluded that the Registrant has demonstrated insufficient insight and no targeted remediation has taken place to date. Therefore, the Panel concluded a Caution Order would also not be sufficient to protect the public.
40. The Panel concluded that conditions of practice would be appropriate and sufficient to address the concerns of the Panel and provide the necessary public protection. In reaching this conclusion, the Panel is confident it can formulate conditions which are appropriate realistic and verifiable. The Panel has identified that the Registrant’s record keeping failures are capable of being remedied and is satisfied that allowing the Registrant to remain in practice, albeit subject to conditions will protect the public. Although the Registrant has not been present at the hearing the Panel considers that he will comply with conditions of practice. The Panel’s reasons are that:
• He has engaged with the HCPC process
• SJ stated that the Registrant is proactive and he had engaged with the NEAS investigations.
• He has undertaken a number of self-funded training courses to enhance his knowledge and clinical skills.
41. In the judgment of the Panel, a Suspension Order would be disproportionate and unduly punitive, in view of the fact that the Registrant has continued to practise since April 2017 with no concerns and has provided a positive appraisal report from his new employer.
42. Accordingly the Panel determined that a Conditions of Practice Order was the necessary and proportionate order. This Order will be reviewed before it expires. The reviewing panel is likely to be assisted by:
• The Registrant’s attendance at the review
• Copies of an up to date reference and appraisal from his current employer, including information as to the Registrant’s clinical record keeping
• A list of recent training undertaken.
The Registrar is directed to annotate the Register to show that for 12 months from the date that this Order comes into effect (“the Operative Date”) you, Mr Jonathan Leslie Ker must comply with the following Conditions of Practice:
1. Within 6 months of the Operative Date you must satisfactorily complete a clinical record-keeping course and forward a copy of your certificate of completion and details of the course undertaken to the HCPC.
2. Within 6 months of the Operative Date you must submit a written reflective account of the lessons you have learned focusing in particular on the findings of the Panel. This should include:
• Your understanding of your failings
• Your insight and understanding of the potential consequences of inaccurate and incomplete record keeping
• Any actions you have taken to address the concerns of the Panel
• How your remediation has/will affect your future practice.
3. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
4. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any agency you are registered with or apply to be registered with (at the time of the application); and
C. any prospective employer (at the time of your application).
Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.
The Panel makes an Interim Conditions of Practice order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Proceeding in the absence of the Registrant
Following the announcement of the sanction the Presenting Officer indicated she would be making an application for an Interim Order and applied for it to be heard in the absence of the Registrant. The Panel noted the advice of the Legal Assessor. The Panel agreed to hear the application in the Registrant’s absence because he had been informed by the notice of hearing dated 2 July 2018 that such an application might be made, and he had not responded with regard to that warning. The Panel finds it is unlikely that an adjournment would secure the Registrant’s attendance.
Reasons for the making of an interim order
The Presenting Officer then made an application for an Interim Conditions of Practice Order on the basis of public protection, as identified in paragraph 40 of the Panel’s deliberation, and in the public interest. The Panel accepted the advice of the Legal Assessor. The Panel agreed to make an Interim Conditions of Practice Order as it is required for the protection of the public, and a fair minded member of the public would be concerned by the absence of such a restriction. The Panel has concluded that the appropriate length of the interim order is 18 months, as an interim order would continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal within the 28 day period. The interim order will be in same terms as the substantive order.
History of Hearings for Mr Jonathan Leslie Ker
|Date||Panel||Hearing type||Outcomes / Status|
|02/10/2018||Conduct and Competence Committee||Final Hearing||Conditions of Practice|