Mr Eric Spencer

Profession: Paramedic

Registration Number: PA33351

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/01/2019 End: 17:00 16/01/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered as a Paramedic and employed by North West Ambulance Service NHS Trust, you:

  1. On one or more occasion, between 7 January 2013 and 16 March 2017, attended work under the influence of cannabis within approximately 12-48 hours of having used cannabis.
  2. On 17 March 2017, were subject to a diptest and chain of custody urine test, which both recorded a positive test for cannabis.
  3. On 13 April 2017, were subject to a chain of custody urine test, which recorded a positive test for cannabis.
  4. On 28 June 2017, were subject to a diptest, which recorded a positive test for cannabis.
  5. The matters set out at particulars 1 – 3 4 constitute misconduct.
  6. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary matters:

1. Ms Shameli made an application to amend the particulars of allegation. Ms Hayward did not oppose the application. The HCPC had given notice to the Registrant of the proposed amendments by letter dated  4 June 2018. The Panel accepted the advice of the Legal Assessor. In the Panel’s judgement the proposed amendments served to clarify the particulars of the allegation without materially altering their substance. No injustice would be caused to the Registrant by making the amendments. The application was therefore granted. The particulars as amended are set out above in the amended allegation.

2. The Panel acceded to the application of the HCPC, supported by the Registrant, that any matters relating to the Registrant’s private life should be heard in private.

Background:

3. The Registrant is a Paramedic registered with the HCPC. He was employed as a Paramedic within North West Ambulance Service NHS Trust between January 2013 and July 2017.

4. On the Registrant’s return to work, he was downgraded at his own request to the role of Emergency Medical Technician Grade 1 (EMT1).

5. His line manager, MS, had overheard colleagues discussing that the Registrant was using cannabis recreationally. At a meeting on 16 March 2017 between the Registrant and MS, the Registrant was questioned about his use of cannabis.

6. Following that meeting, the Registrant signed an agreement with his employer by which he consented to drug testing. The Registrant underwent tests to determine the presence of cannabis in his urine. The results of these tests were assessed by DM, a Consultant in Occupational Medicine, employed for Stockport NHS Foundation Trust. On four separate occasions – 17 March 2017, 13 April 2017, 31 May 2017 and 28 June 2017 - the tests recorded the presence or absence of cannabis in the Registrant’s urine. 

7. The employer made a referral to the HCPC concerning the Registrant’s positive testing for the use of cannabis and by 17 May 2017 had put in hand arrangements for an internal disciplinary hearing. By email dated 21 April 2017 the Registrant made a self-referral to the HCPC  concerning the fact that he had tested positive for his use of cannabis.

8. The Registrant was suspended from work from 17 March 2017 pending further investigation. On 30 June 2017, he was informed that his suspension from work was to be lifted and that he would be placed on office-based duties.

9. On 3 July 2017, the Registrant returned to work and met with MS. During that meeting the issue of an internal disciplinary hearing was raised. The Registrant then resigned with immediate effect as he understood this would avert a disciplinary hearing. Notwithstanding the Registrant’s resignation, the employer continued with its disciplinary proceedings.

Decision on facts

10. At the outset of the hearing, the Registrant admitted the facts alleged in particulars 1 - 4.

11. The HCPC presented a bundle of documents containing the statements of MS and  DM and the documents which they respectively exhibited to substantiate the results of the investigation into the Registrant’s use and positive testing for cannabis. MS and DM gave oral evidence to substantiate and elaborate on their statements.

12. The Registrant provided the Panel with documents comprising testimonials and his own reflective statement and gave oral evidence.

Assessment of the witnesses

13. The Panel did not find the evidence of MS to be altogether reliable or credible. His witness statement was in places at variance with his contemporaneous notes in some significant respects and there were a number of mistakes and inconsistencies. His memory of events was not altogether clear. He was at times defensive when his recollection of events was questioned closely. He appeared to have difficulty in grasping the implications of the scientific evidence of cannabis testing.

14. The Panel found the evidence of DM to be professional, credible, balanced and fair.

15. The Panel found the Registrant to be open and credible in his evidence. Where his evidence differed from that of MS, the Panel preferred the Registrant’s evidence.

Findings of fact

16. At the outset of the hearing the Registrant admitted the facts alleged in particulars 1, 2, 3 and 4.

17. The Panel found particular 1 proved on the basis of the evidence of both the Registrant and MS. The Registrant said that in this period he had been using cannabis approximately twice a week, and sometimes the night before attending for duty. However, he was adamant that he never attended for duty when he felt he was intoxicated from the cannabis.

18. The Panel found particulars 2, 3 and 4 proved by the evidence of DM and the laboratory test results. It noted from DM’s evidence that the dipstick urine test was less reliable than the chain of custody test. Where they differed in their results, DM’s evidence was to accept the chain of custody result.

Decision on Grounds


19. The Panel went on to consider whether the facts found proved, or any of them, amounted to misconduct, as alleged in particular 5. The Panel took into account the submissions of Ms Shameli and Ms Hayward. The Panel accepted the advice of the Legal Assessor.

20. The Panel was mindful that the question of misconduct is a matter for the Panel’s professional judgement, there being no standard or burden of proof.

21. The Panel took into account that misconduct was defined in Roylance v General Medical Council (no 2) [2001] 1 AC 311 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”.

22. It is clear from case law that misconduct must be sufficiently serious that it can be properly described as misconduct going to fitness to practise.

23. With regard to particular 4, the Panel accepted the evidence of DM that the result of the diptest which indicated the presence of cannabis in the the Registrant’s urine on 28 June 2017 was undermined by the more reliable chain of custody test taken on the same day, which produced negative results. In the circumstances, the Panel was not satisfied that the positive diptest on 28 June 2017 could be relied on as evidence of the Registrant’s continued use of cannabis beyond 10 April 2017 or of misconduct in that regard.

24. By contrast, the Panel was satisfied that particulars 1, 2 and 3 provided cogent and compelling evidence of the Registrant’s use of cannabis whilst registered as a Paramedic, albeit that for Particulars 2 and 3 he was suspended at that time and not attending for work. The Panel took into account the fact that cannabis is classified as a Class B drug under the Misuse of Drugs Act 1971 and that its possession is, and at the material time was, illegal and constituted a criminal offence punishable by a fine and/or imprisonment.

25. The Panel found the Registrant’s use of cannabis whilst registered as a Paramedic to be in breach of paragraph 9.1 of HCPC’s Standards of conduct, performance and ethics (2016) which provides that “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

26. The Panel considered that the use of cannabis by the Registrant as a registered Paramedic, albeit that he was employed as an EMT1, fell far below the standards to be expected of a member of his profession and constituted misconduct.

Decision on Impairment:

27. The Panel carefully considered the submissions of Ms Shameli on behalf of the HCPC and those of Ms Hayward on behalf of the Registrant.

28. The Panel accepted the advice of the Legal Assessor and considered the HCPTS Practice Note on Finding that Fitness to Practise is Impaired.

29. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel took into account both the “personal” and “public” components of impairment. The “personal” component relates to the Registrant’s own practice as a Paramedic, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

30. The Panel applied the following test formulated by Dame Janet Smith in her Fifth Shipman Report and applied by the High Court in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), 76), to the extent relevant to the facts of the case:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that she/he:

a) has in the past acted and/or is liable to act in the future so as to put a patient or patients at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d) has in the past acted dishonestly and/or is liable to act dishonestly in the future?”

31. With regard to sub-paragraphs (a) and (d) above, there was no evidence offered in this case that the Registrant had acted in the past or would be liable in the future to put patients at unwarranted risk of harm or that he had acted dishonestly.

32. The Registrant gave evidence that he had not been using cannabis recreationally, but as a form of self-prescribed medication. Nevertheless, such use of cannabis is not legal. In relation to sub-paragraphs (b) and (c) above, the Panel judged that by engaging in illegal activities, the Registrant had brought the profession into disrepute and would do so in future if he continued to use cannabis. The Panel also considered that in acting in breach of the criminal law by his use of a proscribed drug, the Registrant had breached a fundamental tenet of the profession.

33. With regard to the “personal” component of impairment, the Panel considered that the Registrant had acquired some insight into the potentially damaging effects on his health and understood that the acute effects of cannabis could impair his ability to function safely and effectively at work. He was also aware of the potential risk to patients and colleagues. The Panel accepted that the Registrant’s use of cannabis was a misguided attempt at self-medication. The Panel also accepted that the Registrant, was conscious of the need to protect patients and colleagues from the potentially negative impact of his use of cannabis by not ingesting cannabis for several hours before reporting for work.

34. However, the Panel was concerned that the Registrant’s use of cannabis was illegal and continued, albeit on an occasional basis, in times of heightened stress as a coping strategy until approximately December 2018. In the circumstances, the Panel could not be confident that the Registrant’s use of cannabis was highly unlikely to recur in the future. The Panel was therefore not satisfied that the Registrant had yet acquired sufficient coping mechanisms or means of support to address these problems and forgo the temptation to resume his use of cannabis in such situations.

35. With regard to the “public” component of impairment, not only is it unacceptable for a health care professional to be engaged in illegal activity the Panel also considered that members of the public would be concerned if they were aware that a Paramedic had taken cannabis before reporting for work, given the nature of the work which involves driving ambulances and attending on an emergency basis to members of the public who on occasions might be in a critical condition. In all the circumstances, the Panel considered that public confidence in the profession and in the Regulator would be undermined if there were no finding of impairment.

36. Accordingly, the Panel found that the Registrant’s fitness to practise is currently impaired by reason of his misconduct.

Decision on Sanction

37. The Panel took into account the submissions of Ms Shameli on behalf of the HCPC and the submissions of Ms Hayward on behalf of the Registrant.  It has also taken into account the two testimonials included in the Registrant’s bundle.

38. The Panel adopted the HCPC Indicative Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest of upholding proper standards and maintaining public confidence in the profession and the Regulator. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

39. The aggravating factor in this case is that the Registrant on his own admission has continued on occasions to use cannabis as recently as December 2018 against the advice of DM.
 
40. The mitigating factors are:

• the Registrant has fully engaged with the HCPC in these proceedings;

• he made admissions to all the factual allegations at the outset of the hearing and was open and honest when giving evidence to the Panel;

• he has shown some insight and remorse as evidenced by his reflective statement;

• he has already taken some steps to address to address the underlying causes of his use of cannabis.

41. The Panel determined that:

a. This case is too serious for it to take no further action and mediation would not be appropriate.

b. As a Caution Order is only suitable for minor instances of misconduct, it is not appropriate given that that the misconduct in this case concerned the use of an illegal drug.

42. The Panel considered whether to impose a Conditions of Practice Order. Whilst it is clear that the Registrant’s failures are remediable, the Panel decided that it could not at this stage formulate suitable conditions which from the start would be effective to protect the public. This is because the Panel judged that it is necessary before the Registrant restarts working as a Paramedic for him to put in place better arrangements to address his stress in order to prevent him resorting to the use of cannabis.

43. In all the circumstances, the Panel decided that the appropriate and proportionate sanction was a Suspension Order for a period of 6 months. This is the minimum amount of time that is needed for the Registrant to take sufficient steps to address the underlying causes of stress and anxiety that led to his misuse of cannabis, by seeking professional medical advice and developing effective coping strategies.

44. The Panel considered that a Striking Off Order would be disproportionate in all the circumstances.

45. At the review of this Order, a future panel would be assisted by the following:

• a report from a registered medical practitioner and any other health care professional as to the recommendations made to the Registrant to address the underlying causes of his cannabis abuse and the steps taken by the Registrant to implement such recommendations as well as an assessment of his current state of health;

• evidence by means of monthly urine testing that the Registrant has abstained from ingestion of cannabis;

• up to date references and testimonials from any employer and in relation to any work-related activities since the date of this Order;

• evidence that the Registrant has kept his CPD up to date.

Order

Order: That the Registrar is directed to suspend the name of Mr Eric Spencer from  the register for a period of six months from the date this order comes into effect.

Notes

This order will be reviewed before its expiry on 13 August 2019.

Hearing History

History of Hearings for Mr Eric Spencer

Date Panel Hearing type Outcomes / Status
14/01/2019 Conduct and Competence Committee Final Hearing Suspended
13/11/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
29/08/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
30/05/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
06/03/2018 Conduct and Competence Committee Interim Order Review Interim Suspension
12/09/2017 Investigating committee Interim Order Application Interim Suspension