Mr Michael Whittingham

Profession: Paramedic

Registration Number: PA33717

Interim Order: Imposed on 02 Mar 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 24/06/2019 End: 17:00 24/06/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

While registered as a Paramedic:

 

1. On 17 November 2017 at Stafford Crown Court, you were convicted of

Violent disorder.

 

2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary Matters  

1. The Registrant did not attend the final hearing. The Panel first considered whether it ought to exercise its discretion to continue with this hearing in the absence of the Registrant. The Panel concluded that it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Assessor’s advice, and considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba, R v Hayward [2001] EWCA Crim 168 and GMC v Visvardis [2016] EWCA Civ 162, for the following reasons:


(a) The Panel is satisfied that the Registrant had notice of the hearing;
(b) The Registrant has not sought an adjournment;
(c) The Registrant was present and represented at a previous hearing on 02 March 2018 which took place by telephone. The last contact with the Registrant was 10 December 2018, when he enquired how to submit documentation for the hearing. Since then, there has been no further contact or engagement. The Registrant has not chosen to submit any documentation or submissions; 
(d) The Panel concluded that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion;
(e) The Panel concluded that the Registrant has deliberately chosen not to attend this hearing, and that this amounted to a deliberate voluntary waiver of his right to appear.      
(f) The Panel determined that it was reasonable and in the public interest to proceed today in the circumstances, given that the relevant events date back to 16 July 2016.

Background

2. The Registrant is a Paramedic. He was employed by the West Midlands Ambulance Service NHS Foundation Trust (hereafter “the Trust”) at the time of the incident which took place on 16 July 2016. He had worked for them since the year 2000.

3. The Registrant was involved in a violent disturbance along with 10 other males in a Public House in Burton upon Trent. The Registrant was arrested and maintained that he had been acting in self-defence and that violent behaviour was out of character for him.

4. The Registrant pleaded not guilty to the offence. However, after a second trial, he was found guilty of an offence of violent disorder at Stafford Crown Court on 17 November 2017.    

5. The offence of violent disorder is found in section 2 of the Pubic Order Act and is committed when 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. 

6. The Panel notes the comments of the sentencing judge, who stated that the most serious aspect of the offence “…is not in any injury sustained by these who chose to fight, but the fear, the distress and the damage caused to members of the public and their businesses, and the damage to the reputation of a town centre as being a place where people can go in peace and in safety.”

7. On 08 December 2017, the Registrant was sentenced to 10 months imprisonment, wholly suspended for 24 months and was subject to a Curfew Order for 5 months. In addition he was ordered to carry our 250 hours of unpaid work within 12 months; he was also ordered to pay compensation of £120, £1200 CPS costs and a victim surcharge of £140. Finally, he was ordered not to attend any Stoke City Football Club home or away games for a period of 5 months.

8. There is no evidence before the Panel as to whether the Registrant has completed the unpaid work requirement.

9. The Panel further noted that the period of the suspended sentence is still current - not expiring until December 2019.  

10. The Panel has been provided with an Exhibits bundle by the HCPC running to 173 pages. The Panel has not heard any oral witness evidence on behalf of the HCPC. 

11. The Panel has had the opportunity to watch the CCTV of the incident.

12. The Registrant attended at a Public House in Burton on Trent called the Locomotive, along with 3 friends. It was a Saturday, and Stoke City football club were playing a pre-season friendly against Burton, with a 3pm kickoff. The group had originally been heading for Tamworth, but stopped off in Burton on the way. They had travelled by train and the Registrant had drunk two pints of beer before entering the Public House, at around 4.30pm. They had no intention of attending the football match.

13. Once they had entered the Public House, the Registrant went to the bar, whilst his friend went to the toilets. The Registrant then became aware of an altercation which appeared to have started near the toilets, and a male on the floor. The Registrant’s friend was then attacked by a group coming out of the toilets. His friend ended up on the floor and was struck with a pool cue. 

14. The Registrant then picked up a bar stool, which he threw. The bar stool did not hit anyone. However, it was thrown by the Registrant in the direction of some of the other males. The Registrant then went to assist his friend, as the group stood back a little. Subsequently, a second fight broke out, although the Registrant did not know the males involved in either group.      

15. The documentation, including the transcript of the sentencing hearing, make it clear that the Registrant in fact threw two stools. The first was thrown at a group who are seen on the CCTV footage fleeing via the rear exit. The Registrant picked up a second stool and threatened two males with it, by raising it with the legs above his head. The Registrant also threw a second stool at a male, who had been attacked by some of the other Defendants in the criminal proceedings.     

16. The Registrant, under formal interview with the Trust, explained his actions as follows. He admitted that he had thrown the first bar stool. This was to disperse the males round his friend. This allowed his friend to get to his feet. He could see two males looking in his direction who were with the group that were attacking his friend. Therefore he picked up a second bar stool for protection and approached the males and asked them if they had attacked his friend with a pool cue. They denied any involvement and the Registrant put the stool down and walked back to the bar. At no point did he hit or make contact with anyone. He accepts that he subsequently threw a stool at a group of males. He alleged that he did this to create a diversion so that he and his friends could leave the premises. He threw the stool at the door which was behind the group that was fighting. The stool did not hit anyone.    

  
17. The disciplinary hearing held by the Trust noted that the Registrant had been described by management in his most recent Personal Development Review as being “professional, pro-active and punctual.”  

18. The Panel has been provided with a Pre-Sentence Report which was prepared for the criminal proceedings by Mr AW and is dated 24 November 2017.This points out how alarming the incident, involving 11 males would have been for members of the public and staff who can be seen running away from the trouble.  

19. Dealing with the Registrant’s involvement the pre-sentence report states: “Whilst accepting that he has been found guilty, Mr Whittingham still struggles to reconcile his role in the proceedings with that put forward by the prosecution.” It continues: “Mr Whittingham’s view is that by throwing the stool he was hoping to create a “diversion” in order to help his friend who was being assaulted and to help stop others being injured. Having seen the CCTV evidence, I can understand that the jury struggled with such an explanation of events and alcohol may well have impaired his judgment. However, he maintains that he was “trying to do the right thing in the wrong way” because he was scared and the violence was both unexpected and alarming in nature. However, given Mr Whittingham’s age, background and life experience, he is able to reflect that what is captured on the CCTV evidence does not portray him in a positive light and he expresses a strong sense of shame and personal embarrassment.”   

20. The report concludes, that although using a Ministry of Justice approved statistical tool, which indicated there is a 12% chance of reoffending,  “Given the potential life changing nature of his conviction, I would be confident in saying that the Courts are unlikely to see a repetition of this or any other type of anti-social or criminal behaviour from Mr Whittingham.”    

21. The incident attracted significant negative press coverage, which included noting that the Registrant was a Paramedic. Copies of some of the press articles have been exhibited within the HCPC bundle. 

22. The Panel heard and accepted the Legal Assessor’s advice and exercised the principle of proportionality at all times.

Decision on Facts and Ground

Particular 1 Proved

23. The Panel has seen the Certificate of Conviction dated 17 November 2017, which it has taken as conclusive proof of facts and grounds.

Decision on Impairment 

24. The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s conviction, having regard to the HCPC Practice Note ‘Finding that Fitness to Practise is Impaired’ and the Practice Note on “Conviction and Caution Allegations’. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence. 

25. The Panel is mindful of the forward looking test for impairment and the need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the professional concerned into disrepute or may undermine public confidence in the profession.  

26. The Panel heard submissions on the issue of impairment from the HCPC. It was submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired on both the public and private components of impairment, based on the following factors:  

(a) The serious nature of the criminal offence which the Registrant was convicted;
(b) The Registrant appears to have maintained the view that his actions were in self-defence, and appears to lack insight into the seriousness of the offence and his actions;  
(c) The Registrant has not attended the final hearing. The Panel has therefore seen only very limited evidence of insight, remediation and the risk of repetition.
(d) There is no evidence before the Panel in relation to the paid work requirement imposed upon him and or his current working arrangements.  
(e) However, the HCPC did note that the Registrant is previously of good character. At the sentencing hearing it was noted that he had a “high degree of shame and personal embarrassment…” He also made an apology and expressed regret during his disciplinary hearing.  

27. The Panel has seen the following character references/testimonial evidence submitted on behalf of the Registrant for the criminal proceedings:

(a)  Mr RM and Mr GN who make reference to an incident at a gymnasium, which the Registrant attended whilst off duty. He was able to provide paramedic support to a gentleman who was having a cardiac arrest. Both documents praise the actions of the Registrant.
(b) Mr JV, Area Manager, Stoke Hub, from the Trust. It is clear that the Registrant was regarded as being very good at his job, and offering “exemplary” patient care.
(c) Mr GS, who is a colleague of the Registrant.      

28. The Panel, after reviewing all the evidence in this case, and the advice from the Legal Assessor, has concluded that the Registrant’s fitness to practise was impaired both at the time of the offence and remains currently impaired, after considering both the personal and public components.

29. In reaching its decision:

a) The Panel regarded the offence as being serious. The Registrant acted in a violent manner and posed a risk to the public at the time of the offence. This was behaviour which fell significantly short of that which the public is entitled to expect from a Paramedic.
b) The Registrant subsequently pleaded not guilty and was convicted following a trial and appears to have sought to minimise or justify his involvement, rather than fully admit his actions;
c) The Registrant has not engaged in these proceedings and has hence not been able to place any significant evidence before the Panel of insight or remediation. The Panel concluded that there remained a risk of repetition, although accepted this was low. The Panel noted that the Registrant had previously had conflict resolution training which appears not to have been effective in this instance.       
d) The Panel has seen a number of references on behalf of the Registrant, however, these are more relevant at the sanction stage.
e) The Panel’s overall conclusion, in relation to the personal component of impairment, was that the Registrant’s current fitness to practise is impaired, having regard to the seriousness of the offence and the lack of evidence of insight and/or remediation.
f) In relation to the public component, it is clear that the public’s perceptions of the Registrant’s actions would have been negative and they have harmed the reputation of both his employer and the profession as a whole, having regard to the negative publicity surrounding the case.  
g) The Panel concluded that the Registrant had breached a fundamental tenet of the profession of being a Paramedic and has brought the Paramedic profession into dispute. In concluding that the public component of impairment is clearly established, the Panel also had regard to the need to uphold the proper standards of behaviour, notwithstanding the limited mitigation which is advanced. The Panel concluded that confidence in the profession and the regulatory process would be undermined if there was no finding of impairment, given the seriousness of the offence. 
h) Finally regard to the decision in GDC v Fleishman [2005] EWCA (Admin) 87, the Panel also noted that the current Suspended Sentence will not expire until December 2019 and he will remain impaired at least during this period.

Decision on Sanction

30. The Panel has heard submissions on sanction on behalf of the HCPC. It has paid regard to the HCPC’s Indicative Sanctions Policy and has accepted the advice of the Legal Assessor. The Panel had particular regard to the principal of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant. 

31. The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public. The primary function of any sanction is to address public safety. However Panels should also have regard to wider public interest and this includes the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process.  

32. The Panel has had regard to the aggravating and mitigating circumstances in this case.

33. The aggravating features are:

(a)  The seriousness of the criminal offence of which the Registrant was convicted and the fact he remains subject to a Suspended Sentence until December 2019;
(b) The lack of acceptance of the Registrant’s involvement and his attempt to minimise or excuse his behaviour. The Registrant pleaded not-guilty and was subsequently convicted, following a trial.
(c) The repeated nature of the violent behaviour with two bar stools being thrown and on one occasion being raised in an aggressive manner. There were opportunities open to the Registrant to disengage and walk away, which he did not take.  
(d) The Registrant had previously received training in conflict resolution which appears not to have worked on this occasion; 
(e) The Panel has concluded that the Registrant has breached a fundamental tenet of the profession. 
(f) The lack of evidence of reflection, insight or remediation;
(g) The lack of engagement in these proceedings.
34.  The mitigating features are:   
(a)   This appears to be a one-off incident and the Registrant is otherwise of good character. He is a highly experienced Paramedic. He appears to have had a previous unblemished employment record;
(b)   There is no evidence that the violence was orchestrated or pre-planned;
(c)  There is some evidence (albeit limited) that the Registrant has expressed remorse and evidence of personal shame and embarrassment, at his offending behaviour.  
(d) The Panel has concluded that the behaviour giving rise to the conviction is potentially remediable, and that the risk of reoffending is low. 
(e) The Panel also had regard to the testimonial/character references which are set out above. 

35. In light of the above factors, the Panel determined that given the nature of the Registrant’s conviction, that to take no action, make a Caution Order or a Conditions of Practice Order, would not be in the public interest, and would not retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing any of these sanctions, given the seriousness of the conviction. 

36. In addition, the Panel was unable to identify any suitable or workable conditions which could be imposed, in light of the Registrant’s offending behaviour and his lack of engagement in these proceedings.   

37. The Panel next considered whether to make a Suspension Order, and concluded that this was an appropriate sanction to both protect the public and to address the wider public interest concerns which the Panel identified. The Panel considered that the incident was serious, but that the risk of repetition was relatively low. This is in accordance with paragraph 39 of the Indicative Sanctions Policy.

38. The Panel also had regard to the limited insight as set out above, but concluded that the identified failings are potentially capable of being remediated in the future. 

39. The Panel further determined that the Suspension Order should be imposed for a period of 12 months, in light of the Registrant’s limited insight and the extent to which he had fallen short of appropriate professional standards.    

40. Having arrived at an appropriate and necessary sanction, the Panel concluded that to impose the more restrictive sanction of a Striking Off Order would be unnecessarily punitive and disproportionate. The Panel noted that striking off should be reserved for cases where there is no other way to protect the public and at this time the Panel determined that an adequate level of public protection could be achieved by the lesser sanction of a Suspension Order. 

41. Whilst in no way seeking to bind any future review Panel, this Panel anticipates that the following matters are likely to be of assistance to any future reviewing Panel:

(a) The Registrant’s attendance at the hearing and engagement with the regulatory process; 
(b) A written document/reflective piece of writing regarding the Registrant’s insight into his previous offending behaviour and its impact on the profession and on the public and how a repeat of any such behaviour might be avoided in the future;
(c) Evidence of an up-to-date CPD record. 

Order

That the Registrar is directed to suspend the registration of Mr Michael Whittingham for a period of 12 months from the date this order comes into effect.

Notes

This order will be reviewed again before its expiry on 22 July 2020.

The Panel imposed an Interim Suspension Order to cover the 28 day appeal period. 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 22 decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mr Michael Whittingham

Date Panel Hearing type Outcomes / Status
24/06/2019 Conduct and Competence Committee Final Hearing Suspended