Mr Derek W Adam

Preliminary matters:

1. The case for the Health and Care Professions Council (HCPC) was presented by Mr Stephen Ferson of Kingsley Napley Solicitors. The Registrant was not present or represented.

2. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules. The Panel thereafter considered Mr Ferson’s application to proceed in the Registrant’s absence, together with the advice of the Legal Assessor. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel has borne in mind the need to strike a careful balance between the Registrant’s interests and the wider public interest.  The Panel has taken account of the considerations set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. Mr Ferson has advised the Panel that there has been no contact from the Registrant throughout the fitness to practise process. The Registrant has not asked for an adjournment of today’s hearing and the Panel has no reason to believe that he would attend at a future date if the matter were adjourned. Given the lack of engagement throughout this process, the Panel is of the view that his behaviour is deliberate and voluntary and thus a waiver of his right to appear. The Panel is aware that there are three witnesses giving evidence at this hearing and that the Allegation dates back to 2004 - 2017.The Panel also has a copy of the transcript of the Registrant’s interview from the internal investigation conducted by the Scottish Ambulance Service dated 12 January 2018 and a copy of the statement provided by the Registrant for the employer’s Investigation on 5 November 2017.  The Panel has therefore concluded that in all of these circumstances it is in the public interest to proceed in the Registrant’s absence. The Panel will not draw any adverse inference from the Registrant’s failure to attend the hearing.

3. The Panel next considered Mr Ferson‘s application to offer no evidence in respect of Particular 3(b) of the Allegation. Mr Ferson advised the Panel that the evidence from Colleague 1 was that Service User 1 changed his mind about going to hospital and that Service User 1 had no independent recollection of the incident, given the passage of time and he was relying on the statement he made at the time of incident. The Panel considered Mr Ferson’s submissions and the advice of the Legal Assessor. The Panel agreed to grant the application as it was satisfied that the HCPC had provided a clear and objectively justified explanation for offering no evidence in respect of Particular 3(b) and that it did not represent an under prosecution of the case and reflects the evidence before the Panel.

Background:

4. The Registrant was employed as a Paramedic with Scottish Ambulance Service (SAS) since 1993.  On 27 October 2017, the HCPC received a referral from a member of the public, Service User 1. Service User 1 accused the Registrant of using “lots of foul swear word [sic] and without even examining me or asking where I was hurting, immediately grabbed me by the back and then hauled me off the floor!”. The SAS conducted an internal investigation into the Allegation. The investigation confirmed that the alleged incident took place on 18 October 2017 and Service User 1 was attended by the Registrant and Colleague 1, an Ambulance Technician (a non-registered role).

5. Additionally, the SAS advised that the Registrant was demoted to an Ambulance Technician on three occasions because he had failed to renew his HCPC registration and also failed to inform the SAS of this. 

Decision on Facts:

6. The Panel heard live evidence from three witnesses on behalf of the HCPC: Service User 1; Colleague 1, an Ambulance Technician and Graeme Ferguson, HR Manager. The latter two are currently employed by the SAS. The Panel also considered the written statement of Adam Mawson, HCPC Registration Manager which exhibited documentary evidence in relation to the Registrant’s registration status. In the absence of the Registrant, the Panel also considered the statement the Registrant provided on 5 November 2017 and the transcript of the Registrant’s interview from the internal investigation conducted by the SAS dated 12 January 2018.

7. The Panel found Service User 1 did his best to assist the Panel and although he did not have a good independent recollection of the incident, he was clear that his letter of complaint submitted on 30 October 2017 contained an accurate account of the incident. The Panel found him to be a credible witness who openly admitted if he could not recall any details. His evidence has remained consistent throughout the SAS investigation and the HCPC proceedings.

8. The Panel found Colleague 1 to be a very credible, consistent and reliable witness. The Panel found that he had an excellent independent recall of the sequence of events as well as the events themselves. His evidence has been consistent throughout the SAS investigation and the HCPC proceedings.  The Panel notes that he was sufficiently concerned that he raised an independent concern with his line manager at the first opportunity and prior to the complaint being raised by Service User 1 to the SAS. The Panel also heard that he had not worked regularly with the Registrant and there was no evidence of any malice towards the Registrant.

9. The Panel found Graeme Ferguson’s evidence to be limited to a review of documentary evidence held within the SAS. He also provided the Panel with a helpful insight into the process at the SAS when a registration has lapsed. The Panel found him to be a credible and reliable witness.

10. The Panel also considered the written statement of Adam Mawson, HCPC Registration Manager. Mr Mawson did not attend and give evidence. His statement was submitted as hearsay. It exhibits details of the Registrant’s registration status.  The Panel only gave weight to his evidence to the extent that it exhibits those records.

Particulars 1(a) – (c)

11. The Panel considered the evidence of both Graeme Ferguson and Adam Mawson in support of these Particulars.  Graeme Ferguson gave evidence that the Registrant was not on the register with the HCPC as a Paramedic between 3 February 2004 and 16 March 2006; between 1 September 2011 and 6 December 2011 and for a further period in 2013. Graeme Ferguson also gave evidence that the Registrant was demoted to Ambulance Technician status on 31 August 2005 and that he was employed as a Paramedic whilst unregistered between 3 February 2004 and 30 August 2005. In addition he gave evidence that the Registrant was again demoted to Ambulance Technician status on 1 November 2011 and that he was employed as a Paramedic whilst unregistered between 1 September 2011 and 1 November 2011 and that he was demoted again on 12 August 2013 and that he was employed as a Paramedic whilst not registered between 20 December 2012 and 12 August 2013. The Panel also had sight of screenshots of the Registrant’s registration details from the HCPC Register exhibited by Adam Mawson which demonstrated that the Registrant was removed from the register by the HCPC between 3 February 2004 and 16 March 2006; between 1 September 2011 and 6 December 2011 and between 20 December 2012 and 12 August 2013 which supported the oral evidence of Graeme Ferguson. The Panel is therefore satisfied from the evidence of Graeme Ferguson and Adam Mawson which is supported by the documentary evidence that the Registrant was employed as a Paramedic between 3 February 2004 and 31 August 2005, between 1 September 2011 and 1 November 2011 and between 20 December 2012 and 12 August 2013 without having the required HCPC registration.  The Panel therefore finds the facts of Particulars 1(a) to (c) proved on the balance of probabilities.

Particular 2

12. The Panel heard evidence from Graeme Ferguson that the Registrant did not inform the Trust on the three occasions when his registration had lapsed. His evidence is supported by letters from the SAS to the Registrant dated 10 October 2005 and 12 July 2013. The Panel has found Graeme Ferguson to be a credible and reliable witness whose oral evidence is supported by the documentary evidence. The Panel therefore finds that the Registrant did not inform his employers that he had allowed his HCPC registration to lapse on three occasions and finds the facts of Particular 2 have been proved on the balance of probabilities. 

Particular 3

13. The Panel heard evidence from Service User 1 and Colleague 1 in support of Particular 3(a). Both witnesses gave clear and consistent evidence that the Registrant moved Service User 1 prior to conducting any examination or assessment of Service User 1, including considering Service User 1’s injuries and pain following an alleged assault. The Panel also heard evidence from Colleague 1 that the Registrant’s actions could have had serious consequences for Service User 1. Colleague 1 explained that if Service User 1 had a head or spinal injury, the Registrant’s actions could have caused serious harm.  The Panel accepts the consistent and corroborated evidence of Colleague 1 and Service User 1 and finds that the Registrant moved Service User 1 prior to appropriately examining him or assessing his pain and finds the facts of Particular 3(a) proved on the balance of probabilities.

14. The Panel heard evidence from Service User 1 and Colleague 1 in support of Particulars 3(c), (d), (e) and (f). They both gave evidence that the Registrant used the following words to Service User 1 - “what the fuck’s wrong”, “you didn’t fucking tell me that”, “I’m not fucking pushing you” and “for fuck sake we are now going to have to fucking take you to the fucking hospital.” Colleague 1 also gave evidence that he was “totally stunned” by the Registrant’s conduct and that when they both got back into the ambulance to leave, the Registrant apologised and said that he had “gone a bit overboard”. In his account of the incident given to the SAS on 5 November 2017, the Registrant does not make any reference to swearing. However, in his interview from the internal investigation conducted by the SAS on 12 January 2018, the Registrant accepts that he swore at Service User 1 in order to get a response and that he would swear at patients if they swore at him first. The Panel found no evidence that Service User 1 had sworn at or acted in any untoward manner towards the Registrant prior to the Registrant swearing at him. In any event, the Panel finds that swearing at a service user is not acceptable in any circumstances. The Panel accepts the consistent and corroborated evidence of Colleague 1 and Service User 1 and finds that the Registrant used the language described in Particulars 3(c),(d) and (e) and finds the facts of Particulars 3(c), (d) and (e) proved on the balance of probabilities.

15. In considering the facts of Particular 3(f), the Panel has taken account of the letters from two police officers who attended the incident in which they state that they did not hear any swearing. The Panel has heard evidence from Colleague 1 that the comments made in Particulars 3(c) to (e) were made prior to the police arriving and that only one police officer was present when the comment alleged in Particular 3(f) was made. The written evidence of the officers has not been tested. The Panel has accepted the consistent evidence of the two witnesses who have given live evidence which has been tested by questioning.  The Panel therefore finds the facts of Particular 3(f) proved on the balanced of probabilities.

Particular 4

16. The Panel next considered whether the Registrant’s actions in Particulars 1 and 2 were dishonest. In considering this issue, the Panel has applied the test set out in the case of Ivey v Gentings Casinos Ltd [2017] UKSC 67.

17. The Panel has first considered the Registrant’s actual knowledge or genuinely held belief in relation to his employment as a Paramedic without having the required HCPC registration and his failure to disclose to the SAS that he had allowed his HCPC registration to lapse. The Registrant was an experienced Paramedic and as such would have been aware of the need to renew his registration before its expiry. In addition, this was not an isolated occurrence. This was a repeated course of conduct over an extended time period.  The Registrant was provided with a number of reminders both from his employer and from the HCPC in connection with his registration renewal. The Panel has concluded that this was a deliberate attempt on the part of the Registrant to evade the requirements of the HCPC registration process. In relation to his failure to disclose to his employer, the Panel is of the view that as an experienced Paramedic, the Registrant would have been aware of the implications of allowing his registration to lapse and that these were deliberate attempts on his part to conceal this from his employer. Given the repeated actions, it is clear that the Registrant was aware that he would be demoted if he disclosed this to his employer and that his failure to do so allowed him to continue to receive the higher salary of a paramedic when he was not entitled to do so.

18. The Panel next considered whether reasonable and honest people would consider the Registrant’s behaviour to be dishonest in light of his actual knowledge or genuinely held belief. The Panel has already found that the Registrant was aware of what was required of him in respect of renewing his registration and notifying his employer that his registration had lapsed and that he repeatedly failed to do so. The Panel is of the view that reasonable and honest people would consider his behaviour to be dishonest as he was benefitting financially by failing to make payment of his renewal fee and by continuing to be paid as a paramedic when he was not entitled to employment and remuneration at the level of paramedic. The Panel is therefore satisfied that the test for dishonesty has been met in respect of the Registrant’s actions in Particulars 1 and 2.

Decision on Grounds:

19. The Panel next considered whether the Registrant’s actions in Particulars 1, 2 and 4 amount to misconduct and whether the Registrant’s actions in Particular 3 amount to a lack of competence and/or misconduct.  The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Mr Ferson on behalf of the HCPC and has had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

20. In respect of Particulars 1, 2 and 4 the Panel has found that the Registrant’s failures amount to dishonesty and were deliberate actions on his part for financial gain.

21. The Panel finds that the Registrant’s conduct in Particulars 1, 2 and 4 breached the following standards:-

HCPC’s Standards of Conduct, Performance and Ethics (2003)

• Standard 14 - You must behave with integrity and honesty

• Standard 16 - You must make sure that your behaviour does not damage your profession’s reputation. 

HCPC’s Standards of Conduct, Performance and Ethics (2012)

• Standard 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

22. The Panel is of the view that honesty and integrity are fundamental tenets of the profession and the Registrant has breached these. The Panel therefore finds that his actions fell well short of what would be expected of a health professional and as such they amount to misconduct.  

23. The Panel next considered whether the Registrant’s actions in Particular 3 amount to misconduct and/or lack of competence.  The Registrant is an experienced Paramedic and as such, the Panel is of the view that he had the necessary skills, knowledge and experience to carry out his role. In addition, the matters found proved in Particular 3 relate to a single incident and do not therefore represent a fair sample of the Registrant’s work, The Panel therefore does not find that the Registrant’s actions amount to a lack of competence. The Panel next considered whether his actions in Particular 3 amount to misconduct. The Panel has heard evidence that the potential consequences of the Registrant’s actions were serious in that he put Service User 1 at real risk of harm by moving him prior to conducting any assessment or examination. In addition his actions delayed treatment for Service User 1. The Panel has heard evidence that Service User 1 was intimidated by the Registrant’s conduct towards him to such an extent that he chose not to go hospital for treatment while he was suffering serious injuries.  The Registrant’s conduct throughout the whole incident was aggressive and completely unacceptable.

24. The Panel finds that the Registrant’s actions as found proved in Particular 3 fell well below the conduct expected of a health professional and breached the following standards

HCPC’s Standards of Conduct, Performance and Ethics (2016)

• Standard 1 – You must promote and protect the interests of service users

• Standard 2 – You must communicate appropriately and effectively with service users
           
The Panel therefore finds that the Registrant’s conduct in Particular 3 amounts to misconduct.

Impairment:

25. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component. In addition, the Panel has considered the submissions of Mr Ferson on behalf of the HCPC and has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

26. In terms of the personal component, the Panel is of the view that the Registrant’s conduct is, in theory, remediable. However the Panel has seen no evidence of remediation. In addition, the Panel has again had regard to the statement the Registrant provided on 5 November 2017 and the transcript of his interview from the internal investigation conducted by the SAS dated 12 January 2018. The Panel can find no evidence of insight or remorse on the part of the Registrant. This has led the Panel to conclude that there is a real risk of repetition of the conduct found proved.

27. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.  The Panel has found that the Registrant has repeatedly failed to renew his registration and continued to practise as a Paramedic when he was aware that he was not entitled to do so. In addition he has concealed his failure from his employers and has acted dishonestly on three occasions. He has also failed to provide appropriate care to a service user, placing him at significant risk of serious harm and delaying his treatment. He has used completely unacceptable and intimidating behaviour and language towards the service user.  In these circumstances, the Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment were not made in these circumstances.

28. The Panel has also considered the approach of Dame Janet Smith in her 5th Report from Shipman referred to in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin). The Panel is of the view that the findings in fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:

(a) has in the past acted and is liable to act in the future so as to put service users at unwarranted risk of harm; and

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

(c) has in the past and is liable in the future to breach one of the fundamental tenets of the profession; and

(d) has in the past acted dishonestly and is liable to act dishonestly in the future.

29. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by his misconduct in terms of both the personal component and the wider public component and the Allegation is well founded.

Decision on Sanction:

30. The Panel has heard submissions from Mr Ferson on behalf of the HCPC in relation to the issue of sanction. The Panel has also considered the advice of the Legal Assessor and had regard to the HCPC’s Sanctions Policy.

31. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to those using or needing his professional services 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.

32. The Panel considered the following mitigating factor: the Registrant has had no previous referrals to the HCPC.

33. The Panel also had regard to the following aggravating factors: the Registrant has been found to have acted dishonestly on three occasions over a prolonged period of time; the Registrant has not demonstrated any remediation or insight; the Registrant has not demonstrated any remorse or empathy towards the service user; the Panel has identified a real risk of repetition; the Registrant’s actions had the potential to cause serious harm to a service user; the Registrant acted in an aggressive and intimidating manner towards a service user; the Registrant’s actions delayed appropriate treatment for service user; the Registrant has not engaged in the regulatory process.

34. The Panel has considered the sanctions available to it in ascending order of severity. The Panel first considered whether to take no further action. It is of the view that this would not be sufficient to protect the public, or address the wider public interest considerations.

35. The Panel next considered a Caution Order. In terms of the Sanctions Policy, a caution may be appropriate where the lapse is isolated or of a minor nature, there is a low risk of recurrence and the Registrant has shown insight and taken remedial action. The Panel does not find that the lapse was minor, or isolated and in the absence of any insight, remorse or remediation, has identified a real risk of repetition. In these circumstances, the Panel is of the view that a caution would not be an appropriate sanction as it would not address the risk of repetition, nor would it address the wider public interest considerations

36. The Panel next considered a Conditions of Practice Order. While the Panel is of the view that the Registrant’s failings are in theory capable of remediation, in the absence of any evidence that the Registrant is genuinely committed to resolving the concerns raised, the Panel has concluded that a Conditions of Practice Order would not be appropriate. In addition, given the finding of dishonesty, the Panel is of the view that it could not formulate conditions to address this issue. Given the seriousness of the facts found proved, the Panel is also of the view that it would not address the wider public interest considerations. The Panel therefore considers that a Conditions of Practice Order would not be an appropriate or proportionate sanction.

37. The Panel next considered a Suspension Order. In terms of the Sanctions Policy a suspension order would be appropriate where the Allegation is of a serious nature but is unlikely to be repeated. However, the Panel has found that the Allegation is serious and that there is a real risk of repetition. In addition, there is no real evidence before the Panel which suggests that the Registrant would be willing or able to resolve his failings and no evidence that he understands the impact of his actions. The Panel is of the view that the seriousness of the conduct found proved, particularly in relation to dishonesty and his aggressive behaviour towards a service user, is such that a Suspension Order would not be sufficient to satisfy the public interest.

38. The Panel has therefore concluded that a Striking Off would be the appropriate sanction, given the nature and gravity of the conduct found proved, the repeated dishonesty over a prolonged period of time and the lack of insight, remorse or remediation on the part of the Registrant. Where a registered paramedic has been found to have repeatedly acted dishonestly over a prolonged period of time for financial gain, behaved in an aggressive and intimidating manner towards a service user, treated the service user in a manner which put him at significant risk of serious harm and fails to demonstrate any insight, remorse or remediation, the Panel is agreed that any lesser sanction would lack deterrent effect on other Registrants and would undermine confidence in the profession concerned and the regulatory process. In all the circumstances, the Panel has concluded that a Striking Off Order is the proportionate sanction.

Order: The Panel directs the Registrar to strike the name of Derek Adam from the Register from the date that this order takes effect.

Interim Order:

1. The Panel considered an application by Mr Ferson on behalf of the HCPC for an 18 month Interim Suspension Order in terms of Article 31 of the Health and Social Work Professions Order 2001. Mr Ferson made the application on the grounds that it was necessary for the protection of members of the public and was otherwise in the public interest.  The Panel agreed to consider this application in the absence of the Registrant as it was satisfied that the Registrant had been put on notice of this application in terms of Article 31(15) of the Health and Social Work Professions Order 2001 and that it was in the public interest to consider the application in his absence, given the findings made against him.

2. Having considered Mr Ferson’s submission together with the advice of the Legal Assessor, the Panel agreed to make 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 Derek W Adam