Mr Andrew Barker

Preliminary Matters

Attendance of the Registrant at the hearing

1.The Registrant participated in part of the hearing by telephone.  He informed the Panel that he had requested annual leave to attend the hearing from his current employer, but his request was refused. He was therefore only able to participate in the hearing during his break period. The Panel was able to hear the submissions of both parties whilst the Registrant was present. The Registrant then confirmed that he was content for the Panel to proceed with the remainder of the hearing in his absence. 

Amendment of the allegation

2. Mr Foxsmith applied to amend the allegation in the following terms:

Whilst registered with the Health and Care Professions Council as a Paramedic:

1. On 04 October 2018, at Derby Magistrates’ Court you were convicted of:

(a) Two counts of Handling Stolen Goods;

2 On 23 October 2018, at Derby Magistrates’ Court you were convicted of:

(a) Handling stolen goods

4.3.By reason of your convictions, as set out at particular 1 and 2, your fitness to practise as a Paramedic is impaired.

3. Mr Foxsmith submitted that the amendments sought were in the nature of clarification and to ensure that the charge was accurate. The amendments did not change the substance of the allegation and no prejudice would be caused to the Registrant. 

4. The Registrant confirmed he did not object to the amendments sought.

5. The Panel accepted that the changes were minor in nature and provided clarification. There was no objection from the Registrant.  The Panel was satisfied that it was fair and in the interests of justice for the amendments to be made.  

Documentation

6. The Panel received the HCPC hearing bundle and an audio recording of a police interview with the Registrant on 23 April 2018 (a transcript of which was in the bundle). The Panel also received a bundle of thirteen character references from the Registrant.

Background

7. The Registrant, Andrew Barker, is a Paramedic registered with the HCPC who was employed by East Midlands Ambulance Service.

8. On 23 February 2018, the Registrant self-referred to the HCPC following his being placed on formal suspension by his employer. He subsequently resigned from his employment on 22 March 2018.

9. On 4 October 2018 at Derby Magistrates’ Court, the Registrant was convicted of two counts of handling stolen goods.

10. The Certificate of Conviction from the court stated in respect of each count that the Registrant:
 “dishonestly undertook or assisted in the retention, removal, disposal or realisation of stolen goods, namely 1 defibrillator to the value of £18,500, belonging to East Midlands Ambulance Service knowing or believing to be stolen contrary to Section 22(1) of the Theft Act 1968”.
The Registrant pleaded not guilty to both counts.  He was found guilty and sentenced to 26 weeks imprisonment on each count to run concurrently. 

11. The goods in question were two Physio Control Lifepak 15 defibrillators, which were the property of his employer, East Midlands Ambulance Service. The circumstances of the offence were set out in the Police summary and can briefly be summarised as follows.
a. The defibrillators bore serial numbers, which when checked against the records, confirmed that they were the property of the East Midlands Ambulance Service;

b. They were offered for sale on Facebook for £2,500 each (real value £18,500) on 20 February 2018 by an account in the name of Andrew Dewi;

c. The contact number provided for the sale went to the Registrant’s voicemail when dialled;

d. When arrangements for the sale were made, the Registrant attended with the defibrillators in the boot of his car;

e. After the Police were called, the Registrant was arrested on the scene and stated that he had purchased the defibrillators from “a gentleman in Birmingham with cash for a friend.”

f. The Registrant was convicted after trial. He was sentenced on 23 October 2018 to 26 weeks’ imprisonment on each count, to run concurrently.

The HCPC’s Submissions
 
12. Mr Foxsmith relied upon the documentary evidence in the hearing bundle, in particular the Memorandum of Conviction from Derby Magistrates’ Court confirming details of the Registrant’s convictions. He submitted that the fact of the convictions was proved under Rule 10(1)(d) of the (Conduct & Competence) (Procedure) Rules 2003 (“the Rules”).

13. In respect of impairment, Mr Foxsmith submitted that the Registrant’s actions were in breach of Standard 9 of the HCPC’s Standards of Standards of Conduct, Performance and Ethics and the requirement for registrants to be honest and trustworthy. He submitted that the Registrant’s conduct fell far below the standard expected. The Registrant had breached public trust and abused his professional position.  In the light of concerns about his lack of insight and the difficulty of remedying dishonest behaviour, Mr Foxsmith submitted that the Panel should find current impairment of fitness to practise.

14.  In relation to sanction if impairment were found proved, Mr Foxsmith submitted the matter was likely to warrant a sanction at the higher end of the scale, of either suspension or striking off.

Submissions of the Registrant

15. In respect of his conviction, the Registrant said he and others he knew were of the view that the criminal sentence imposed had been overly harsh in the circumstances and he had been shocked by the decision. He told the Panel that at the time he had been trying to establish whether the defibrillators were stolen. He described that he had an “itch” of concern that they might be.  He felt he had suffered for trying to help a friend. He told the Panel that the defibrillators had been returned to EMAS and were now back in service.

16. The Registrant said he was aware of the high level of trust the public place in the Paramedic profession and acknowledged that his criminal convictions were likely to have an impact on that trust. 

17. In relation to mitigating circumstances, the Registrant told the Panel he had not worked as a Paramedic since these events. He was now working as an HGV driver. This provided his family with a reasonable income.

18. The Registrant said that had not kept up to date with CPD or training, but did read professional journals. He said he believed he was a competent and skilled Paramedic. He said he would love to return to practice, though he appreciated this may not be possible.  He described being a Paramedic as “the best job in the world”.

19. The Registrant submitted 13 character references which he asked the Panel to read.  

Decision on Facts

20. The Panel accepted the advice of the Legal Assessor. The Panel considered whether the facts were proved according to the civil standard of proof, that is the balance of probabilities, and proceeded on the basis that the burden of proving the facts rests upon the HCPC throughout. 

21. The Panel had sight of a copy of the Memorandum of Conviction and accepted this as proof of the conviction and of the findings of fact upon it was based, as provided for by Rule 10(1)(d) of the Rules.

22. The Panel was satisfied that the facts were proved.

Decision on Grounds

23. The Panel considered the evidence and submissions of both parties.  It accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Notes, Finding that Fitness to Practise is Impaired and Convictions and Cautions.

24. The Panel was advised that a conviction in the United Kingdom for a criminal offence is a ground upon which a finding of impairment may be based under Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001 and, by virtue of the proof of the conviction, this ground was made out.

Decision on Impairment

25.  The Panel next considered whether the Registrant’s fitness to practise is currently impaired by his conviction. The Panel was aware that the question of impairment is a matter for its own professional judgement.  In reaching its decision, the Panel had regard to the nature, circumstances and gravity of the Registrant’s offences and the critically important public policy issues, in particular the need to maintain public confidence in the profession, as well as declaring and upholding proper standards of conduct and behaviour which the public expect. The Panel bore in mind the following guidance from the Practice Note, Convictions and Cautions:

“In considering the nature, circumstances and gravity of the offence, Panels need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession”.

26. The Panel referred to the reason given for the criminal court’s sentence, as set out in the Certificate of Conviction, which stated:

 “Reason: offence so serious because Defendant is in a position of trust as a paramedic. Handling stolen goods, Found guilty after trial. High value items which are used to save life. Robbing public purse and putting people’s lives in jeopardy”.

27. The Panel concluded that the offences for which the Registrant was convicted were serious, being offences of dishonesty. This seriousness was increased by the context, that the items were medical equipment which was the property of the NHS, and the Registrant, suspecting that they may be stolen, attempted to sell them for personal financial gain.   The items were of considerable value, £18,500 each. Members of the public were deprived of these items of life-saving medical equipment and there was also a potential cost to the public purse.

28. HCPC Registrants are required by Standard 9 in the HCPC’s Standards of Conduct to be honest and trustworthy in their personal and professional behaviour and by Standard 9.1, “to make sure that their conduct justifies the public’s trust and confidence in you and your profession”. The Panel concluded that members of the public would regard the behaviour of any Paramedic who handled defibrillator equipment which he suspected to be stolen to be deplorable.

29. The Panel considered whether there was evidence of insight and remediation. Having heard the Registrant’s submission, the Panel was concerned that his insight was very limited.  He still appeared to dispute the conviction and did not understand why such a severe sentence had been imposed. In the Panel’s view, the Registrant did not demonstrate adequate understanding of the seriousness of the offences and their relevance to his role as a Paramedic. 

30. There was no evidence of remediation before the Panel and the Panel was mindful that dishonest criminal behaviour is difficult to remedy. 

31. Given the particular circumstances of the offences, the Panel concluded that public trust and confidence in the Paramedic profession would be undermined if a finding of current impairment in relation to the public component were not made in this case. 

32. The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired by his criminal conviction. 

Decision on Sanction

33. The Panel heard and took into account the submissions of both parties. It accepted the advice of the Legal Assessor. The Panel referred to the HCPC’s Sanctions Policy and followed it when considering the issue of sanction, as outlined therein. 

34. In considering sanction, the Panel was mindful that a sanction is not intended to be punitive, although it may have that effect. The Panel must consider the risk the Registrant may pose in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

35. The Panel read with care the character references submitted by the Registrant. These referred generally to his honesty and good character, but only two indicated that the authors were aware of the HCPC proceedings.  The Panel took them into account, but only felt able to give them limited weight in the context of the serious nature and circumstances of the offences. 

36. The Panel considered the following were mitigating factors in this case:

- The Registrant is of good character prior to his criminal convictions;
- He has no previous fitness to practise history with the HCPC.
 
37. The Panel has considered the following aggravating factors:

- Dishonesty;
- Personal financial gain;
- Impact on public funds;
- Abuse of position of trust;
- Limited insight into the gravity of the offences and the context in which they occurred ;
- Risk of harm to the public.

38. The Panel considered the serious aggravating factors weighed more heavily than the limited mitigation.

39.  In considering whether a sanction was required, the Panel was mindful that the Registrant has completed the sentence of the criminal court and that its function is not to punish the Registrant again for the same offences. Its role is to decide what if any sanction is necessary in the public interest. 

40. The Panel concluded that a sanction was necessary in the public interest, in order to maintain public confidence in the profession. The Panel considered the sanctions available to it in ascending order of severity. The Panel considered the factors in the Indicative Sanctions Policy in relation to a Caution Order. This was an isolated event and there has been no repetition.  However, the matter is not minor in nature. The Panel cannot be reassured the risk of future repetition is low. The Registrant has not shown adequate insight or remedy his conduct. 

41. The Panel considered that a Conditions of Practice Order would not be appropriate because it would not address the issues found proved, nor would such an order be sufficient to maintain public confidence. 

42. The Panel carefully considered whether a suspension order would be proportionate. It concluded that a period of suspension would not be sufficient to address the public confidence issues raised by the circumstances of the offences and the Registrant’s lack of insight. 

43. The Panel was aware that a striking off order is the sanction of last resort, but the Panel considered this sanction was necessary given the serious nature of these offences of dishonesty, the abuse of professional position together with the lack of insight on the part of the Registrant. The Panel considered that the nature and gravity of the matter is such than any lesser sanction would be insufficient to maintain public confidence and the profession and the regulatory process. 

44. The Panel concluded that a Striking Off order was the necessary and proportionate order which would adequately address the wider public interest considerations, in terms of maintaining public confidence in the profession and declaring and upholding proper standards of conduct in the social work profession.

ORDER: The Registrar is directed to strike the name of Mr Andrew Barker from the register on the date that this Order comes into effect. 

Application to proceed in the Registrant’s absence with an Interim Order application:

45. Mr Foxsmith made an application for the hearing to proceed in the Registrant’s absence in order to consider an application by the HCPC for an immediate interim order.

46. The Panel was satisfied that the Notice of Hearing sent to the Registrant on 28 June 2019 had been served in accordance with the Rules. 

47. The Panel noted that the Notice of Hearing informed the Registrant that an application for an immediate interim order may be made and advised him of the powers of the Panel under Article 31(2) of the Health and Social Work Professions Order 2001.  He was therefore on notice of this application. 

48. At the conclusion of his participation in the hearing, the Registrant told the Panel he was content for the Panel to continue with the remainder of this hearing in his absence.  The Panel was therefore satisfied it was appropriate to proceed to hear this application in the Registrant’s absence.

Application for an Interim Order:

49. Mr Foxsmith made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period, on the ground that it was necessary for the protection of the public and was otherwise in the public interest.

50. The Panel accepted the advice of the Legal Assessor. It bore in mind that it must consider whether an interim order was necessary in accordance with the test set out in Article 31(2) of the Health and Social Work Professions Order 2001, and that it must act proportionately, imposing the lowest order which would adequately protect the public.

51. The Panel had determined to impose a substantive Striking Off Order. It had made findings that the public interest would be at risk if the Registrant were able to continue to practise.  It had made findings which would impact on public confidence in the Paramedic profession. 

52. Accordingly, the Panel determined that an interim order was necessary in order to protect the public and in the wider public interest.  

53. The Panel was satisfied, for the same reasons as in respect of its substantive decision, that a Conditions of Practice Order would not be appropriate. The Panel therefore directed that the Registrant’s registration should be suspended on an interim basis. 

54.  The Panel concluded that the appropriate and proportionate duration of the interim suspension order was 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal with the 28-day period.

Interim Order:

The Panel makes an Interim Suspension 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.

History of Hearings for Mr Andrew Barker