Mr Alisdair B Setchfield

Preliminary Matters

1. There were various preliminary and procedural matters that had to be dealt with by the Panel during the course of the hearing. On each occasion the Panel heard submissions from Ms Sharpe, received advice from the Legal Assessor and considered the appropriate Practice Notes.

Service

2. The Panel was satisfied that the Registrant had been properly served with notice of the hearing. The Notice of Hearing had been sent to his address on the register by letter dated 9 August 2019 as well as by e-mail. In addition, on 24 September 2019, the Registrant’s representatives, Unison, in the form of Sharon Prout, had e-mailed the HCPC confirming that he would not be attending the hearing in person and did not wish it to be postponed or adjourned as he did not intend being present at any further HCPC hearings.  The e-mail also stated that the Registrant would provide a statement and a reflective piece which would be sent before the hearing, but Ms Sharpe confirmed that the HCPC had been advised the week before the hearing, by e-mail from his representatives dated 18 October 2019, that the Registrant did not after all intend to provide any further documents.   

Proceeding in the Absence of the Registrant

3. Ms Sharpe therefore made an application for the Panel to proceed with the hearing in the Registrant’s absence. She submitted that the Registrant had voluntarily absented himself from the hearing and had made no application for an adjournment.  It was in the interests of justice that the case, involving allegations from 2017, be expeditiously dealt with.  Finally, she advised that the first HCPC witness (who had travelled from the West Midlands that morning) was present and ready to give evidence.

4. In reaching its decision the Panel took into account the HCPC’s Practice Note on Proceeding in the Absence of a Registrant and accepted the advice of the Legal Assessor. The Panel noted that the Registrant had partly engaged with the HCPC but had made no application for an adjournment.  The Panel considered that it was likely that he had received advice on his position from his representatives.  It therefore concluded that the Registrant had voluntarily absented himself from the hearing. The Panel also noted that these were serious allegations which were approaching two years old (it being in the public interest to deal expeditiously with regulatory matters) and a witness had travelled some distance to attend. Taking all these factors into account the Panel decided to proceed in the Registrant’s absence.

Application for evidence to be given by video/telephone link

5. Ms Sharpe made a further application that the evidence of Person A be given by video or telephone link.  Person A was the widow of Patient A/Service User A (SUA) and had submitted evidence from her GP dated 18 October 2019 which confirmed that she had a medical condition and therefore wanted to give her evidence by video link rather than in person.

6. In reaching its decision the Panel considered the HCPTS Practice Note on Case Management, Directions and Preliminary Hearings.  It noted that Person A had a medical condition which, if exacerbated by having to travel to London to attend the hearing, potentially might affect the quality of her evidence.  Further, it noted that the Registrant, through his representatives, had earlier agreed to another witness, EMT 1, giving his evidence by video link.  In addition, as the Registrant was not present, the witness was not due to be cross-examined.  Taking all these factors into account and balancing expedition and the overall public interest with the need for the witness to give her best evidence, the Panel concluded that granting the application was the most appropriate way forward.

7. In addition, at the end of the first day’s hearing, ST had not completed his evidence and had to return to the West Midlands.  He indicated that he could not attend on the second day but that he could complete his evidence by telephone in the morning of that day.  Accordingly, the Panel granted Ms Sharpe’s application to allow him to give evidence by telephone.  The Panel took account of the fact that he could not physically return on the second day owing to prior commitments and that it had already seen him give evidence for a number of hours and therefore had a clear idea of his presentation.  Furthermore, the Registrant was not present and therefore cross-examination would not be undertaken.  It therefore decided to grant the application. 

Application to admit evidence

8. Ms Sharpe applied for leave to introduce into evidence the Registrant’s response to the formal notice of the Allegation made by the HCPC which had been sent to the HCPC by e-mail dated 3 December 2018.  She advised that the Allegation and the Particulars in the notice sent to the Registrant were identical to those before the Panel.  She confirmed that the Registrant did not appear to have taken legal advice before replying to the notice.

9. The Panel took account of the Legal Assessor’s advice which was that it had the power to admit any evidence; but that it should only be admitted if (i) it was relevant to the proceedings and (ii) it was fair to admit it.  The Panel found that the Registrant’s response to the allegations was clearly relevant since it embodied his case.  As to whether it was fair to admit it, the Panel concluded that, notwithstanding that the Registrant may not have received any legal advice on his response, he must have intended to rely upon them by sending them to the HCPC.  Further, he would have been aware of the contents and had had a number of opportunities to submit further documentation and/or evidence but had not taken them.  The Panel therefore concluded that it would be fair to admit this evidence.

Proceeding in Private

10. From time to time during the hearing, the Panel, Ms Sharpe or the Legal Assessor identified issues that potentially merited the Panel proceeding in private due to the fact that reference would be made to the health of either the Registrant or the witnesses.  An application to proceed in private would then be made.  

11. On such occasions, the Tribunal followed the advice of the Legal Assessor and reminded itself that proceedings should normally be held in public and noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), which states:
“At any hearing—
(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the Registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”
12. The Tribunal was mindful that, under Rule 10(1)(a), it must be satisfied that it is in the interests of justice or for the protection of the private life of a Registrant or a witness before a decision can be made to exclude the public from any proceedings. Moreover, its decision must be consistent with Article 6(1) of the European Convention on Human Rights (ECHR), which provides limited exceptions to the need for hearings to be held in public, namely that it is “in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence or of any patient or client”.

13. The Panel decided to grant each of the applications so as to protect the private lives of the Registrant and/or the witnesses.  After the relevant evidence had been dealt with, the hearing resumed in public.

Background

14. Mr Alisdair Setchfield (“the Registrant”) was employed as a Paramedic for West Midlands Ambulance Service NHS Foundation Trust (“the Trust”).

15. The Registrant, together with EMT1, an ambulance technician, attended SUA, a 27 year old male patient, at his home address on 28 December 2017. It was reported in a 999 call that SUA “keeps stops breathing, arms and lips keep going numb sicking black vomit”. Patient A suffered a cardiac arrest at this point the ambulance crew called for a second ambulance to assist. 

16. SUA was conveyed to the Princess Royal Hospital in Telford (“the Hospital”) by ambulance by the Registrant and EMT1. Tragically, SUA passed away later that day.

17. Following SUA’s death, a number of concerns were raised as to the standard of care and treatment that the Registrant had provided prior to SUA’s admission to hospital, which included the lack of an assessment of his condition and also a lack of airway management. There were also concerns raised as to the standard of record keeping and the Registrant’s failure to report the incident to the Trust. It is alleged that the failure to report the incident was dishonest.

18. Following SUA’s death, the Registrant was required to complete an Advanced Life Support assessment. The Registrant did not pass this assessment, with a number of areas of ongoing clinical concern identified.

19. An internal investigation into the circumstances surrounding SUA’s death was carried out on behalf of the Trust by ST the investigating officer.

Decision on Facts

20. In considering this case the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the evidence presented to it, namely the written and oral evidence of the witnesses detailed below, together with the documentary evidence provided by the HCPC and the Registrant. It has also considered the detailed submissions of Ms Sharpe and has accepted the advice of the Legal Assessor.

21. The Panel heard oral evidence from ST, who was, at the time of the incident, the Clinical Manager at the Trust (who attended in person and, by telephone on the second day of the hearing); from EMT1, who was, at all relevant times, an Emergency Medical Technician (by video link); from Dr JH, who attended in person, a Senior Clinical Fellow in Anaesthetics (who was at the time of the incident a second year core trainee (CT2) in Anaesthetics at Princess Royal Hospital, Telford); and from Person A, SUA’s widow, by video link.  The Panel also received into evidence a statement and exhibit bundle from the HCPC, which included Trust investigation interviews and witness statements. 

22. As the Registrant did not attend, the Panel did not hear from him.  However, it took account of the documentation produced by him which was before it, namely his written statement to the Trust dated 4 January 2018; his interview with ST on 28 January 2018; and his written response to the Allegation dated 3 December 2018.  The Panel also took account of the advice of the Legal Assessor that it should not hold the Registrant’s absence adversely against him. 

Witness assessment

23. The Panel made the following assessments of the live witnesses:

24. ST: the Panel found ST to be a credible witness who was fair and balanced (he was willing to give credit to the Registrant when due); he accepted when his evidence turned out not to be correct; he was careful and measured in his responses; and presented as an experienced investigator who was reliable, consistent and professional.

25. EMT 1: the Panel found EMT 1 to be inconsistent and vague on occasions but clear at other times (such as when giving evidence about the cuff).  It considered that he sometimes was guarded in his delivery and that his recollection was affected by the passage of time.  

26. Dr JH: the Panel found Dr JH to be a credible witness whose recollection occasionally was affected by the passage of time but whose recall was clear and consistent more often than not.  He was fair and balanced and willing to consider alternative analyses of the issues before him.

27. Person A: the Panel considered that Person A was consistent and credible and that she had a very clear recollection of what occurred on the day in question.  She was also fair and balanced.

28. The Panel made the following decisions in relation to each Particular:

Whilst registered as a Paramedic and employed at West Midlands Ambulance Service NHS Foundation Trust:

Found Proved

29. The Registrant’s certificate of registration as a Paramedic was produced and the Panel noted that his employment with the Trust has never been in dispute.

1. On 28 December 2017, you attended Service User A and you:
(a) Did not identify that Service User A was exhibiting Cheyne Stokes respirations and / or provide appropriate treatment to Service User A in respect of the Cheyne Stokes respirations.

Found Proved

30. There is no dispute that the Registrant attended SUA as alleged in the stem of the Particular. 

31. The Panel first considered whether there was evidence that SUA was exhibiting Cheyne Stokes respirations.  It noted that the primary evidence was from EMT1’s observations of SUA, recorded in his statement to the Trust dated 28 December 2017 (the date of the incident), his interview with ST dated 23 January 2018 and his witness statement made for these proceedings on 5 April 2019.  Although he stated that he had never seen a live patient exhibiting Cheyne Stokes respirations before, he maintained that SUA’s breathing pattern (which he described as shallow intermittent breaths) was consistent with what he had been shown in training.  In interview he stated “I can confirm and accept that from entering the room the patient was Cheyne [Stoking]”.  Although EMT1 said in his live evidence to the Panel that he was not certain that SUA was “Cheyne Stoking”, the Panel placed more weight on the fact that in his earlier (and more contemporaneous) accounts he appeared to be unequivocal on this point.

32. The Panel also noted that EMT1’s observations were supported by Person A’s account.  The Panel heard from ST that Person A was not medically trained and had not heard the term Cheyne Stokes respirations before, but when asked during his interview with her on 19 January 2018 to mimic the breathing pattern she had observed from SUA, she demonstrated what ST was sure were Cheyne Stokes respirations.  ST also stated that he demonstrated hyperventilation to Person A who, again, was certain that was not how SUA was breathing.

33. In his live evidence, ST remained certain that SUA had been exhibiting Cheyne Stokes respirations.  The Panel also notes ST’s suggestion that such a breathing pattern fitted with the medical context of the incident (there is no dispute that SUA suffered a cardiac arrest either at that time, or very shortly afterwards) whereas hyperventilation did not.  ST told the Panel that it was very unlikely that an unconscious, unresponsive patient would have been hyperventilating, as a loss of consciousness would ordinarily cause a return to ‘normal’ breathing. 

34. The Panel noted that the Registrant had expressed, on a number of occasions throughout these proceedings (in: the EPR; his statement to the Trust; his interview with ST and his written responses to the Allegation) that he was of the view that SUA was hyperventilating and was not suffering from Cheyne Stokes respirations.  On this basis, it appears apparent to the Panel that the Registrant did not identify that SUA was exhibiting Cheyne Stokes respirations, and it notes that the Registrant accepted at interview that he “could have confused the Cheyne Stoking with intermittent periods of hyperventilation”.

35. Furthermore, the Registrant has been inconsistent on this point since he subsequently recorded (whilst at the Hospital) in the Electronic Patient Report (“EPR”) that SUA was “hyperventilating initially then Cheynestoking…”

36. The Panel notes that the Registrant was the only person present at the scene who was of the view that SUA was hyperventilating at any point. Although the Panel noted his greater experience (as a registered Paramedic), based on the variations in his own account on the subject, the evidence of the other witnesses and the weight of the supportive medical evidence, it is led, on balance, to the conclusion (i) that SUA was exhibiting Cheyne Stokes respirations and (ii) that the Registrant did not immediately identify them.

37. In relation to the second alternative limb of the Particular (whether he provided appropriate treatment for the Cheyne Stokes respirations) the Panel heard evidence from ST that the appropriate course of treatment in the case of a patient exhibiting Cheyne Stokes respirations would be:

“Cheyne Stokes respiration is a sign of cardiac arrest and if a patient presents with Cheyne Stokes, the Paramedic would be expected to assess patient, the patient’s airway, ventilate the patient and perform CPR as quickly as possible.”

38. In his response dated 3 December 2018 (“the response”) the Registrant said that when he arrived he spoke to SUA and shook him but he did not answer although he grunted.  It is clear to the Panel from all the accounts and records of the incident before it that none of the required steps as set out above were taken by the Registrant in relation to Patient A.  The Panel also notes that the Registrant has not asserted that any of these steps were taken, giving the explanation that he did not believe that Patient A was exhibiting Cheyne Stokes respirations.

39. The Panel therefore finds particular 1(a) proved in its entirety.  The Panel finds that, not only did the Registrant fail to identify that SUA was exhibiting Cheyne Stokes respirations, he also failed to provide appropriate treatment to SUA in respect of them.

1(b) Did not undertake and / or record an adequate patient assessment.

Found Proved

40. The Panel noted Ms Sharpe’s submission that there was no record of the Registrant having undertaken an adequate patient assessment of SUA.  It further noted that ST was clear that a “primary survey” should have been completed when the Registrant entered the property and saw SUA to assess consciousness and when it was established that SUA was unresponsive, he should have:

“…put Service User A on the floor, looked for signs of catastrophic haemorrhage and assessed and managed Service User A’s airway, breathing and circulation in line with the JRCALC guidelines… The breathing assessment should include checking if Service User A’s respiratory effort was present or not… The Paramedic must make sure the breathing was present and when it became apparent that there was something wrong with Service User A’s breathing, Alisdair Setchfield would be expected to check Service User A’s airway to see if it was clear, deal with this and then ventilate Service User A.”

41. The Panel further notes that, in interview, the Registrant confirmed that none of these steps were taken.  In his response, he maintained that he did complete a primary survey as he entered the property; EMT 1 arrived and started undertaking a set of observations; the Registrant felt something was not right and noticed that SUA’s pupils were dilated; then panicked and went out to get the stretcher.  He accepted that he recorded what had happened retrospectively but that EMT 1 did not record his observations.

42. The Panel takes account of the evidence of Person A who stated that at no time did the Registrant exhibit any sign of urgency and was very calm, which in turn made her feel calm.  In particular, she stated that the Registrant did not run and confirmed that it took him about 5 minutes to bring in the stretcher (the Registrant having to come back for the ambulance keys). The Panel prefers Person A’s evidence as it considered that she would have a very clear recollection of this event and that her saying that the Registrant’s demeanour made her feel calm has the ring of truth about it.

43. In his live evidence, ST confirmed that even once treatment had begun in the back of the ambulance, no adequate patient assessment was carried out and/or recorded. 

44. The Panel notes that the Registrant asserts that he completed a primary survey as he entered the property. He and EMT were in the initial ambulance which attended to Patient A. The Panel takes account of the EPR which records, in the Primary Survey section that, inter alia, SUA’s breathing was “Abnormal with a respiratory rate of 30 [breaths a] minute”; his airway was “Normal” and his Disability was “Abnormal – AVPU Unresponsive” but places little reliance on this since (i) the EPR was manually recorded retrospectively and (ii) was inaccurate, since ST confirmed that, in their interviews, both the Registrant and EMT 1 admitted that no pulse measurement was ever taken, despite recording it. Similarly, the ECG was not properly attached and they were unable to get blood out of the patient despite recording a BM.  The only assessment that the Registrant appears to have carried out was by shaking SUA.  The Panel was therefore satisfied on balance that the Registrant’s assessment of SUA was inadequate.  

45. In the absence of any reliable evidence to support the Registrant’s account, the Panel finds this Particular 1(b) proved in that it finds that the Registrant did not undertake, nor did he record, an adequate patient assessment.

1(c) Did not provide oxygen, assisted ventilations and/or airway management to Service User A in a timely manner.

Found Proved

46. The Panel noted that ST’s evidence was clear that a patient presenting with Cheyne Stokes respirations, as SUA was, should have been provided with oxygen, assisted ventilations and airway management as quickly as possible to assist the patient’s respiratory effort.

47. It further noted that, according to the Registrant’s own account in interview, no treatment was provided to SUA to assist his breathing until they were in the back of the ambulance, although the Registrant accepted that when he realised SUA was critically unwell he went to get a stretcher (“at the point I realised the patient was peri-arrest – it is fair to say I panicked and ran to get the stretcher”).  The Registrant and EMT1 confirmed in their interviews that SUA was transferred to the ambulance before any treatment was started to assist with SUA’s breathing.

48. ST’s evidence to the Panel was that a lack of oxygen to the brain can cause catastrophic brain damage after a period of around 3 minutes.  Furthermore, in his oral evidence ST confirmed that everything that could have been done in the ambulance could have been done in situ and that the only advantage of being in an ambulance was that it enabled a patient to be taken to hospital.

49. Ms Sharpe therefore submitted that the delay to this treatment (which included the Registrant making two trips to get a stretcher because he had to return for the ambulance keys which were in the possession of EMT 1) meant that oxygen, assisted ventilations and/or airway management were not provided in a timely manner by the Registrant.

50. ST also told the Panel that he had concluded that 18 minutes had elapsed before appropriate treatment had started, on the basis of various records including the CAD entries, witness accounts and his own reconstruction of the incident. Although Ms Sharpe conceded that this might not be an exact calculation, given what must, by any calculation, have been a significant delay between the arrival of the Registrant and commencement of this treatment, she submitted that the Panel could nevertheless be satisfied that oxygen, assisted intervention and/or airway management were not commenced in a timely manner.

51. The Panel accepted Ms Sharpe’s submissions and placed particular reliance upon ST’s evidence that such treatment could, and should, have taken place in situ immediately.  It was therefore satisfied, on balance that the Registrant did not provide oxygen, assisted ventilations and/or airway management to Service User A in a timely manner and that Particular 1(c) was proved.

52. The Panel pauses there to comment that it has considered whether there is a possibility of duplication in the allegations against the Registrant, in that Particular 1(a) alleges a failure to provide “appropriate” treatment for Cheyne Stokes respirations and 1(c) not providing specific treatments, but concluded that there is no duplication since Particular 1(c) concentrates on providing such treatment in a “timely” manner.  

 

1(d) Left Service User A in the sole care of the technician without providing instructions.

Found Proved

53. The Panel noted that EMT1 was clear in his evidence that the Registrant left the property to collect the stretcher without providing instructions, or indeed telling EMT1 that he was leaving.  This was confirmed by Person A’s account, who confirmed that “the Paramedic left the property without any conversation.”

54. The Panel also notes that in his written response, the Registrant does not suggest that he did give EMT1 any instructions.  Indeed, he stated that he was acting on instinct to get SUA onto the ambulance as it was so close to the property and “My crew mate was a fully qualified technician and as such…would not need to be told what to do if he thought the patient was ill in any way”.

55. The Panel also notes that EMT1 confirmed in his oral evidence that the lack of instructions left EMT1 in “a bit of a stupor”.  In addition, it takes account of ST’s evidence that, as the lead clinician and the paramedic, who would have been better qualified than EMT1 to administer whatever emergency treatment was required (he having observed that SUA was in “peri-arrest”) the Registrant should have remained with SUA and sent EMT1 for the stretcher.

56. The Panel therefore finds Particular 1(d) proved.

1(e) Did not ensure that the ETCO2 filter was connected to the Zoll X Series monitor in order to assess Patient A's respiration.

Found Proved

57. ST gave detailed evidence as to the function and purpose of the ETCO2 filter and how it is connected to the Zoll X Series monitor.  In his witness statement he said:

“The most important function of an ETCO2 filter is that it provides capnography which produces a graph on the screen containing a wave form which can indicate whether there is a blockage in Service User A’s airway, if there is any air actually coming out, whether there is a build-up of pressure, how frequently Service User A is ventilating and how frequently Service User A is breathing. The ETCO2 filter also measures the expired volume of CO2 that the patient breathes out. When an ETCO2 filter is connected to the Zoll X Series monitor, the readings identified by the ETCO2 filter appear on the screen of the monitor. In order for the wave form reading to be displayed, the ETCO2 filter line must be connected to the monitor and the button on the side of the Zoll X Series Monitor must be pressed. This reading will then appear on the monitor.

As Service User A had difficulties with his respiration and then went into cardiac arrest, an ETCO2 filter should have been used to measure and assess Service User A’s ventilation.”

58. ST confirmed that there was no evidence within the EPR that the ETCO2 had been connected to the Zoll X Series monitor.  Although ST was of the view that the ETCO2 was connected to SUA’s airway circuit to provide a CO2 reading, he confirmed that that this did not mean that the ECTO2 filter was connected to the monitor to enable the display of a wave form reading.

59. The Panel also notes that when interviewed, the Registrant could not say who had connected the ETCO2 filter to the Zoll X Series monitor and EMT1 only stated that “I can recall CO2 was mentioned in regard to a low reading”. Further, it takes account of the evidence of Ashley Vincent (“AV” - the Trainee Paramedic accompanying AJ) who did not recall seeing the ETCO2 reading on the monitor despite being able to see the monitor screen. The Panel also considered the evidence of Andrew Jones (“AJ” - the Paramedic in the second ambulance called to the scene, which arrived after SUA had been transferred to the ambulance) who said in interview when asked what the Zoll X monitor was displaying on the scene that “Asystole confirmed by Alisdair – unwitnessed by me”. 

60. ST confirmed that the numerical CO2 reading, together with the wave form reading, is used to give a specific picture as to whether a patient is receiving appropriate ventilation. It also established whether an ET tube is in the right place.

61. The Panel notes the Registrant’s assertion in his response that the ETCO2 was being used as he had seen a numerical reading of 1. However, the Panel also takes account of the fact that the Registrant makes no reference as to whether the wave form reading was displayed.

62. The Panel therefore finds, in the absence of any evidence that the ETCO2 was properly connected to the Zoll X Series monitor, Particular 1(e) proved in that the Registrant did not ensure that the ETCO2 filter was connected to the Zoll X Series monitor in order to assess Patient A's respiration.

1(f) Did not insert the Endotracheal ('ET') tube correctly and/or ensure that the ET tube was inserted correctly.

Found Not Proved (in relation to inserting the ET tube correctly)

Found Proved (in relation to ensuring that the ET tube was inserted correctly)

63. The Panel heard unchallenged evidence from Dr JH that at around 10 minutes’ after SUA’s arrival into A&E he discovered that the ET tube was in SUA’s oesophagus and not in his trachea. On realising this, Dr JH took steps to address the issue by removing the ET tube and replacing it.

64. ST gave evidence that, following intubation, the Registrant was required to check the siting of the ET tube by way of the mandatory post intubation checks.  ST gave further evidence that:

“Once the ET tube was inserted, Alisdair Setchfield should have visually looked to check that the tube had passed through the patient’s vocal chords, this is an important check as it is the only definitive way to confirm the tube has been placed correctly. Alisdair Setchfield should then have looked at Service User A’s chest to see if it is rising and falling evenly, if Service User A’s stomach was distending, then this would indicate that the ET tube was inserted in the wrong place. He should also have used a Thomas Tube Holder to hold the ET tube in place. As the ETCO2 filter should also have been properly connected, this would provide a wave form capnography reading which would also assist to confirm if the ET tube was correctly inserted by displaying how much air is being exhaled form the lungs. He should also look for misting in the tube which comes from moisture coming from the lungs; this is not definitive, but it is a good sign that the ET tube is in the right place. Auscultation of both sides of the chest and of the abdomen should take place, this is where we listen through a stethoscope to the chest, to hear the passage of air to the lungs.”

65. The Panel noted that the Registrant asserts that he did carry out post intubation checks; but that he failed to give any explanation as to why there was no record of these checks having taken place.

66. The Panel notes that the Registrant asserts that he, AJ and AV auscultated the chest.  However, it also notes that EMT1 in evidence only recalled AV having listened to SUA’s chest.  EMT1 in his oral evidence said that he was doing chest compressions and had to move to allow AV to listen to the chest.  Further, in interview, EMT1 denied having seen the Registrant listen to SUA’s chest.   AV said “I believe I was the only person who auscultated the chest” and AJ accepted that while he listened to the patient’s chest en route to the hospital, it was not at time of intubation, it took place in a moving vehicle and he was not prompted to do this by the Registrant or anyone else.  Ms Sharpe therefore submitted that the accounts of all witnesses at the scene undermined the Registrant’s account that post intubation checks were completed appropriately.

67. She went on to argue that the Registrant was in charge of the airway management of the SUA - this had been confirmed by all four members of staff in their interviews. Part of this responsibility was a continuing duty to ensure that the ET tube remained in the correct position. The lack of checks meant that this was not done. She therefore maintained that, if the Panel was of the view that the Registrant did insert the ET Tube correctly in the first instance, that would not preclude it from finding that the Registrant failed to ensure that the ET Tube was inserted correctly. She therefore submitted that, in the absence of any evidence that the Registrant did complete post intubation checks when required, the Panel could be satisfied that it was more likely than not that the Registrant did not insert the ET tube correctly and/or did not ensure that the ET Tube had been inserted correctly.

68. The Panel first considered whether the Registrant inserted the ET tube correctly.  It noted that this took place in the ambulance and more than one attempt had to be made (which ST confirmed was not an issue).  It also noted the evidence of both Dr JH and Dr S (the Consultant Anaesthetist at the Hospital who conducted an investigation into the incident on behalf of the Hospital) that it was possible that a properly inserted ET tube could become dislodged from the trachea during the transfer from the ambulance stretcher to the hospital trolley.  In addition, Dr JH indicated that he found that just the tip of the ET tube was in the oesophagus.  The Panel further noted that upon arrival some CO2 readings were apparent and that SUA’s chest appeared to be rising and falling, all of which were consistent with at least some ventilation.  Moreover, Dr S confirmed in her statement that displacement could have taken place if the ET tube was not adequately secured by both a Thomas Tube holder and an inflatable cuff (which Dr JH found was deflated).  Accordingly, the Panel considers that the evidence that the Registrant had not inserted the ET tube correctly in the ambulance was finely balanced since there is also evidence that subsequent displacement could have taken place.  It therefore is led to the conclusion that the HCPC has failed to prove that the Registrant “Did not insert the Endotracheal ('ET') tube correctly”.

69. However, the Panel is persuaded by the evidence detailed above that the Registrant did not “ensure that the ET tube was inserted correctly” since he failed to carry out all of the post-intubation checks and therefore finds that the HCPC has proved this part of the Particular.

1(g) Did not identify that the ET tube had been inserted into Service User A's oesophagus.

Found Not Proved

70. The Panel considered that this Particular contemplated the initial insertion of the ET tube into SUA (by use of the phrase “had been inserted”).  It also reminded itself that it had already found that the HCPC has failed to prove, on balance, in Particular 1(f) above, that the Registrant “Did not insert the Endotracheal ('ET') tube correctly”.  It therefore logically follows that it cannot find this Particular proved since an initial insertion of the ET tube into the oesophagus could only be an incorrect insertion of the tube which the Panel has found, on balance, did not occur.  Essentially, as the question of when the ET tube entered SUA’s oesophagus is finely balanced (whether the ET tube was incorrectly sited in the first instance, or whether it had become displaced when SUA was being treated or moved) the Panel is led to the conclusion that the HCPC has failed to prove its case.
 
1(h) Did not inflate the cuff on the ET tube and/or ensure that the cuff on the ET tube was inflated.

Found Proved

71. The Panel heard evidence from Dr JH that he discovered, after SUA’s arrival into the resuscitation room, that the cuff on the ET Tube was deflated.  The Panel also heard evidence from both ST and Dr JH that there is no way to tell whether a cuff has been inflated and then deflated due to a fault or the movement/transfer of the patient. The Panel was also told that there was no way to ascertain whether a deflated cuff had ever been inflated.

72. In his live evidence to the Panel, and in his witness statement for these proceedings, EMT1 said that he had inflated the cuff.  However, in his interview with ST and in his statement for the investigation, EMT1 did not mention that he inflated the cuff.  In his response the Registrant confirmed that EMT 1 inflated the cuff, which the Panel interprets as an admission to this part of the Particular.

73. The Panel therefore finds that the HCPC has proved, on balance, that the Registrant did not inflate the cuff.

74. In relation to the second part of the Particular, the Panel notes ST’s evidence that the Registrant was responsible for inflating the cuff at intubation and EMT1 was not trained to do this.  It therefore follows that, as EMT 1 was not trained to inflate the cuff, the Registrant should have checked what EMT 1 had done so as to ensure that it had been inflated.  There appear to be no contemporaneous records in relation to the intubation of SUA to assist the Panel in determining who carried out which parts of the intubation.  Accordingly, as Dr JH confirmed that the cuff was not inflated when he checked SUA, the Panel is satisfied, on balance, that the Registrant did not ensure that the cuff was inflated.

1(i) Did not complete an adequate and/or accurate Electronic Patient Report ('EPR').

Found Proved

75. The Registrant was required to complete an EPR following the treatment of SUA. The Registrant completed the EPR and it was signed by all four members of staff who had attended SUA (the Registrant, EMT1, AV and AJ).

76. ST confirmed that the EPR is a key record for every patient who receives treatments and must include all of the information obtained about the patient. It is used by other medical professionals when the patient arrives in hospital. The Trust’s Clinical Record Policy and Procedure requires EPRs to include all contact with the patient and all clinical observations that have been taken.

77. ST reviewed the EPR of the incident and found it to be deficient in a number of aspects.  It did not contain evidence of SUA’s medical history.  There were: no patient observations from the Zoll X Series monitor; no ETCO2 readings of SUA’s respiration; no time of intubation; no details of intubation tube or post-intubation checks; no airway management; no ECG trace or printout; and no mention of the resultant oesophageal intubation.

78. The EPR was shown to each of the other crew members present, who each confirmed in interview that they had signed the document without properly reviewing it and that it was not an accurate reflection of the incident with SUA they had attended.  For instance, EMT1 was asked “Is the EPR an accurate depiction of the case you were on? and replied “Not in the slightest – no.” AV was asked “Is the EPR an accurate depiction of the case you were on?” and answered “Not at all”. He was then asked “In what way is it not an accurate depiction of the case you were on now that you have viewed it?” and replied “The only correct thing it does state CPR and PRH Resus – these three words are the only correct things on it…”

79. The Panel notes that in his written representations, the Registrant appears to accept that he required training on EPRs. However, the Panel has also seen evidence that the Registrant had attended the most recent mandatory training day, which had included a module on EPRs.  The Registrant also asserts in his written representations that he requested training on EPRs “2 or 3 times…[which] was refused” but the Panel notes there is no evidence before it to support this assertion. The Panel also took account of a previous EPR written by the Registrant which demonstrated that he could complete it. 

80. The Panel observes that the Registrant does not deal with the allegation directly (as to whether or not the EPR was adequate/accurate) and notes Ms Sharpe’s submissions that the Registrant’s admissions as to further training being required does not contradict or rebut the suggestion that the EPR was inadequate/inaccurate.

81. It is clear to the Panel that, based on the evidence outlined above, the EPR was neither adequate or accurate.  It omitted key information; it contained false information about the taking of a pulse rate, ECG and BM; it suggested that EMT1 was the lead clinician; and it recorded that he gave medication which he was not allowed to do and did not in fact administer.  Moreover, the Panel notes the evidence from Simon Benn of Safe Triage Limited, who analysed the EPR machine, that a number of items in the EPR had been deleted at the time when the Registrant was in the resus room filing out the EPR. This demonstrated to the Panel that the Registrant knew enough about the EPR to know how to delete information from it.    

82. The Panel are therefore finds Particular 1(i) proved.

2. Following the incident on 28 December 2017, you did not report the incident to the Trust.

Found Proved

83. The Panel notes that it appears to be undisputed that the Registrant did not, at any stage, report the incident on 28 December 2017 to the Trust.

84. ST’s evidence was clear that the Registrant was required to report the incident to the Trust because it was a patient safety incident – in that it had an “unintended or unexpected incident which could have or did lead to harm for one of more patients receiving NHS care”.  ST referred to a wealth of undisputed evidence that the oesophageal intubation could have, and did, lead to harm to SUA.

85. The HCPC maintains that the Registrant was made aware of the oesophageal intubation in the resuscitation room by Dr JH. The evidence for this assertion comes from the interview of AJ, who said:

“Q. When and where was the EPR completed?
A. In the resus room at Hospital 1.
Q. Was this after you were made aware of the intubation?
A. Yes – Alisdair was present also.”

86. AV recalled the conversation in interview:

“Q. Do you recall the anaesthetist informing you that the intubation was oesophageal?
A. Yes.”

87. Dr JH confirmed that he had told the ambulance crew who had brought SUA in of the oesophageal intubation. He could not name those who were there but confirmed that there were two or three paramedics.

88. EMT1 gave evidence that he was not in resus when this conversation occurred.  However, he stated that: one of the doctors at the hospital seemed to question whether the ET Tube had been inserted correctly; he believed that the Registrant would have been informed – “he might have been told slightly earlier”; EMT1 had been back at the ambulance but the other paramedics said that the doctor had been questioning whether the tube was in the right place but that it could not be confirmed; the question was whether the tube was in the oesophagus or not or whether it was moved out of position; EMT1 considered that it was a Serious Incident because of SUA’s condition; and he could not remember if the Registrant had said anything about the intubation to him in the ambulance after they left the Hospital.

89. The Panel notes that the Registrant appears to accept that he did not report the incident.  His account at interview, and in his written representations, is that he was not informed by any person that the intubation was oesophageal.

90. The Panel notes Ms Sharpe’s submissions that this assertion does not bear scrutiny.  She argued that the Registrant accepted that he was made aware that the cuff was deflated. The other witnesses confirmed that this information was delivered by Dr JH when he told the paramedics of the oesophageal intubation. Dr JH was not sure that the person responsible for the intubation was present when it was being discussed, but likewise he was not clear about some of the details of the paramedics or the circumstances of SUA being brought to resus, which might not be surprising given Dr JH’s role.

91. Ms Sharpe further stated that, as the evidence suggested that the Registrant heard at least part of the conversation with Dr JH relating to the cuff, it was not credible that he was not made aware, at any point, by anyone, that the intubation was oesophageal. This was treated as a Serious Incident by staff at the Hospital and caused Dr JH to submit a DATIX report to the Hospital.  Further, she argued that it seemed unlikely that EMT1, who told the Panel he was outside in the ambulance, was aware that there was an issue with ‘tube placement’, and the Registrant himself was not. 

92. The Panel finds itself persuaded by Ms Sharpe’s submissions.  It is satisfied that the Registrant was made aware of the oesophageal intubation whilst at the hospital: he accepts that he was in the resus room, at the very least whilst completing the EPR; he accepts that he heard Dr JH comment about the deflated cuff; and the Panel finds it extremely unlikely that, even if he did not hear Dr JH tell the other members of the ambulance crew that there had been an oesophageal intubation, they would not have passed this information on to the Registrant (especially when they went on to tell EMT1 when they returned to the ambulance).  Accordingly, it is satisfied that the Registrant was aware that it was a Serious Incident which, according to the evidence of ST, had to be reported within 48 hours. 

93. The Panel further finds that the Registrant did not report the incident to the Trust; there is no record of any report and he accepts that he did not make one.

94. The Panel therefore finds Particular 2 proved.

3. Following the incident on 28 December 2017, you undertook and failed an Advanced Life Support assessment.

Found Proved

95. The Panel notes that, following the incident on 28 December 2017, the Registrant was referred to the Trust’s Education and Training Department to complete an Advanced Life Support Assessment.  This was completed on 12 January 2018 by Education Training Officer, MA.  The outcome of that assessment was that the Registrant failed the practical assessment on the Intubation, Advanced Life Support and the Drugs modules.  The Registrant appears to accept in his response that he failed to pass the assessment.  Accordingly, the Panel finds that, as a matter of fact, this Particular is proved.

96. The Panel notes that the Registrant provides some matters in mitigation which may be relevant at a later stage, including that: he was only allowed to take the assessment once; he was not given any training in advance; and that he was nervous as a result of the incident with Patient A.  The Registrant also asserted that he may have been suffering from PTSD but the Panel notes that this appears to have been self-diagnosed and is not supported by any medical evidence of any kind, nor was it suggested by the Registrant in his interview or disciplinary hearing.

97. The Panel therefore finds Particular 3 proved.

 

4. Your actions at particular 2 were dishonest.

Found Proved

98. The Panel notes that the HCPC puts its case in relation to this Particular on the basis that, as the Registrant did not report the incident, he was acting dishonestly; and that it relies as evidence of such an intent upon facts such as: he made an inadequate and inaccurate electronic record of the treatment given; lied about whether he had completed an electronic record for a cardiac arrest before; steadfastly denied that he was aware that it was a Serious Incident which had to be reported within 48 hours; and sought to evade responsibility by putting the blame on others.

99. The Panel noted the Legal Assessor’s advice which referred to the Supreme Court decision of Ivey v Genting Casinos (UK) Limited t/a Crockfords [2017] UKSC 67.  The Legal Assessor referred to the summary produced by the Supreme Court, in particular to the sentence that reads:

“The fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people.”

100. The Panel was further advised to first decide what was in the Registrant’s mind at the time that he was alleged to have carried out the dishonest action (namely within 48 hours after the incident, as this was the deadline for reporting the incident).  If the Panel found that there was an innocent or negligent explanation then it would be entitled to find no dishonesty.  It noted that the Registrant has suggested that he did not know the full story and he has also suggested that he might have been suffering from a medical condition at the time, although that is not supported by any medical evidence.

101. In addition, the Panel accepted that it was entitled to evaluate whether his “attempt” at dishonesty was likely to be discovered in assessing whether he was acting dishonestly and to conclude that the more likely that his attempt would be discovered, the less likely it was that there was a dishonest motive.

102. Having decided what was in the Registrant’s mind, the Panel was then to ask itself the final question: “Was what he did honest or dishonest by the objective standards of ordinary decent people?”

103. The Panel noted Ms Sharpe’s submissions, which it produces verbatim, not only for the benefit of the Registrant when he reads this decision but also since they encapsulate precisely her arguments:

“…86. The Panel heard evidence from ST that the Registrant knew that he was required to report the incident by way of the Trust policies and procedures – which the Registrant confirmed in interview he was familiar with (D116 - 117) – and from the mandatory training delivered to all paramedics. The Registrant failed to do so.

87. His reasons for not doing so – that he did not know the whole story – do not withstand scrutiny, as outlined above.
 
88. The Panel may be of the view that the Registrant has consistently sought to avoid responsibility, or blame, for his part in this incident. The Panel heard from ST that the Registrant had asserted (and continues to assert) that he had not completed an EPR [in other cases] following a cardiac arrest before this incident. This was conclusively proved to be untrue.

89. Further, the Registrant has sought to place blame on others; in relation to allegation 1(d), for example, the Registrant has denied that he, as an advanced practitioner, was required to give EMT1 instructions and has suggested that any adverse consequences from this lack of instruction are somehow the responsibility of EMT1 who “would not need to be told what to do if the patient was ill in any way”.

90. The Panel have heard that though the ERP was completed by the Registrant he did so using EMT1’s PIN number. The Panel have heard that the Registrant recorded EMT1 as being the ‘lead clinician’ when this was clearly not the case. The Panel have heard that the ERP was edited, with fields of information deleted. The Panel have also heard that the Registrant did not include any information as to the intubation, oesophageal or otherwise, on the ERP.

91. In interview, the Registrant denied being made aware, at any point, that the incident was a Serious Incident – notwithstanding that he had been sent a letter on 3rd January 2018 by ST confirming the same (D82). 

92. The Panel may be of the view that the Registrant has consistently provided an untruthful, misleading account in relation to this incident and that it is more likely than not that the Registrant’s deliberate failure to report the incident to the Trust immediately represents a dishonest attempt to avoid scrutiny and ultimately blame for a serious incident relating to a patient who later died.”

104. The Panel notes the Registrant’s response, which simply is “I wasn’t dishonest as I don’t know the whole story”.  There is no elaboration or further comment.

105. The Panel reminds itself that it has found that the Registrant was aware that it was a Serious Incident and that nonetheless he did not report it.  On the face of it, that action alone could suggest a desire not to draw attention to his actions. 

106. In addition, it notes that there was no mention by him of the oesophageal intubation on either the EPR (which he was completing in the resus room) or in his statement to the Trust dated 4 January 2018.  The Panel notes that this statement was written in response to ST’s letter to him dated 3 January 2018, which specifically referred to the oesophageal intubation as follows: “This concern is in relation to an unrecognised oesophageal intubation and has been classified as a serious incident”.  However, the Registrant’s statement, although it mentions “intubation”, makes no comment on, or rebuttal of, the possibility of an oesophageal intubation, which the Panel finds very surprising given that he was the person responsible for inserting the ET tube.  The Panel would therefore have expected some specific comment on this, particularly as his competence was being called into question. At the very least this suggests to the Panel that the Registrant was not accepting any responsibility for his actions. 

107. Furthermore, the Panel notes that a significant amount of information was, either not inputted into the EPR, or was deleted by the Registrant; an issue as important as an oesophageal intubation would clearly have to be recorded and these actions merely serve to raise suspicions.

108. The Panel finds itself persuaded by Ms Sharpe’s submissions as outlined above.  It notes that it is entitled to assess what was in the Registrant’s mind from circumstantial evidence.  The combination of the factors outlined above (particularly that he made an inadequate and inaccurate (indeed, at times false) electronic record of the treatment given; lied about whether he had completed an electronic record for a cardiac arrest before; steadfastly denied that he was aware that it was a Serious Incident which had to be reported within 48 hours when it is reasonably likely that he would have been told, if not by Dr JH, then by his colleagues on the ambulance team; and sought to evade responsibility by putting the blame on others) persuades the Panel that he did not report the incident because he wanted to avoid taking any responsibility for it.

109. The Panel notes that the only explanation provided by the Registrant was that he was unaware of the full facts of the case, but the Panel has found that not to be so.  As for the likelihood of discovery militating against dishonesty, the Panel notes that the Registrant had all four members of the two ambulance crews sign the EPR (which minimised his role and made no mention of intubation) as accurate and therefore could have used this evidence at a later stage to dispute any claim by them that he was the person responsible.  The Panel therefore places little weight on the suggestion that his actions were likely to be discovered.

110. The Panel next considered whether what the Registrant did was honest or dishonest by the objective standards of ordinary decent people.  It concluded that such people would, knowing that a patient had died and that there were issues with the intubation, expect a registered paramedic to have reported the matter as soon as possible and that, in light of the Registrant’s avoidance of the issue, his lack of candour and his attempts to implicate others, would regard his behaviour as dishonest.

111. The Panel therefore finds Particular 4 proved.
 
Decision on Grounds

112. Having found a number of Particulars proved in this matter, the Panel went on to consider whether the facts found proved, individually or collectively, amounted to Misconduct and/or Lack of Competence. 

113. It reminded itself that it had found the following Particulars proved:

1(a) Did not identify that Service User A was exhibiting Cheyne Stokes respirations and/or provide appropriate treatment to Service User A in respect of the Cheyne Stokes respirations.
1(b) Did not undertake and/or record an adequate patient assessment.
1(c) Did not provide oxygen, assisted ventilations and/or airway management to Service User A in a timely manner.
1(d) Left Service User A in the sole care of the technician without providing instructions.
1(e) Did not ensure that the ETCO2 filter was connected to the Zoll X Series monitor in order to assess Patient A's respiration.
1(f) Did not…ensure that the ET tube was inserted correctly.
1(h) Did not inflate the cuff on the ET tube and/or ensure that the cuff on the ET tube was inflated.
1(i) Did not complete an adequate and/or accurate Electronic Patient Report ('EPR').
2. Following the incident on 28 December 2017, you did not report the incident to the Trust.
3. Following the incident on 28 December 2017, you undertook and failed an Advanced Life Support assessment.
4. Your actions at particular 2 were dishonest.

114. The Panel further noted that the ground of Misconduct was argued in relation to all Particulars but Lack of Competence was argued only in relation to Particulars 1 and 3.  The Panel was aware that if it found one ground satisfied in relation to any Particular it could not also find the alternative ground satisfied.  

115. The Panel took account of the submissions of Ms Sharpe.  It did not have any submissions from the Registrant on the question of Misconduct but he did make some observations in relation to Lack of Competence, which the Panel will consider later. 

116. The Panel has made its own professional assessment about the matter. 

117. In relation to Misconduct, the Panel noted the advice of the Legal Assessor who referred, amongst other things, to the cases of Roylance v General Medical Council [2000] 1 A.C. 311, and Cheatle v General Medical Council [2009] EWHC 645 (Admin), and who also drew the Panel’s attention to the case of R v. Nursing and Midwifery Council (ex parte Johnson and Maggs) (No 2) [2013] EWHC 2140 (Admin) which is authority for the proposition that misconduct refers to actions by a registrant which fellow practitioners would find “deplorable”. The Panel accordingly concluded that misconduct must be serious and amount to a registrant’s conduct falling far below the standards expected of a registered paramedic.

118. The Panel further noted that Lack of Competence connotes 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 R’s work.  It noted that the case of Sadler v GMC [2003] 1 WLR 2259 Privy Council makes it clear that lack of competence may readily arise on a single event depending upon the nature of the medicine being practised and the allegation.  Moreover, the benchmark by which to gauge impairment is the standard required of a Registered Paramedic as clarified by the case of Andrew Francis Holton v General Medical Council [2006] EWHC 2960.

119. Ms Sharpe submitted as follows – once again, the Panel has reproduced the relevant part of her submissions verbatim, not only for the benefit of the Registrant when he reads this decision but also for ease of reference generally:

“103. It has been long established by case law that “seriousness” must feature before misconduct can be made out and that, ordinarily, negligent acts or omissions do not amount to misconduct, unless they are sufficiently serious; a single negligent act or omission is less likely to amount to misconduct than multiple acts or omissions but could if sufficiently grave.

104. It is submitted that seriousness is a feature of any and all of the factual allegations before the Panel in this case. SUA was critically ill when the Registrant and EMT1 arrived. He, and his family, were reliant on the Registrant to provide an appropriate standard of care and treatment and to do everything they could to save his life.

105. The effect of the Registrant’s alleged failings has been described by the witness ST as “catastrophic”; and the Panel are, of course, aware of the ultimately tragic outcome for SUA.
106. The Panel will be aware that an assessment of risk does not focus solely on what harm was caused to service users, or others, but is also a broader consideration of the potential harm, the unaddressed but avoidable dangers.

107. ST deals with the impact, or potential impact, of the Registrant’s alleged failings on SUA; the Panel are invited to refer directly to the identified issues caused, or potentially caused, by the Registrant’s actions when considering seriousness.

108. Further considerations are the impact on service users’ families, the Registrant’s colleagues and the Trust itself. The Panel have heard, for example, that the lack of proper recording left the Trust unable to provide the Coroner’s Court with evidence of the treatment that SUA had received.

109. It is right too, to consider the risk of harm to the public perception of the Trust, West Midlands Ambulance Service and the profession itself, when assessing seriousness. It is submitted, by way of example, that the public would likely be extremely concerned to know that a patient who was unconscious and exhibiting Cheyne Stokes respirations was not properly assessed or assisted with his breathing in a timely manner by an Advanced Paramedic.

110. It is further submitted that fundamental tenets of the profession were breached through the allegation of dishonesty and/or the lack of openness in recording and reporting the incident.

111. The Panel will be assisted in establishing the “standard of propriety” by reference to the rules and standards required to be followed by the Registrant. These were the Standards of Proficiency for Paramedics in force at the time and the HCPC standards of Conduct, Performance and Ethics in force at the time.

112. We invite the panel to consider these standards as a whole but in particular, those listed at B6 within the bundle, namely standards 1, 6, 7 and 9 of the HCPC Standards of Performance, Conduct and Ethics and standards 1, 4, 12 and 13 of the Standards of Proficiency for Paramedics.
 
113. In addition to the HCPC rules and standards, the Panel are invited to consider the various policies and procedures before them, as well as referring to the job description of an Advanced Paramedic.”

120. The Panel determined that the following were breaches of HCPC Standards of Performance, Conduct and Ethics:

2.6 – you must share relevant information where appropriate with colleagues involved in the care, treatment or other services provided to service users.

4 – delegate appropriately

6 – Manage risks

7 – Report concerns about safety

9 – Be honesty and trustworthy

10 – keep records of your work 

121. The Panel agrees with Ms Sharpe that the matters found proved in Particulars 1, 2 and 4 are individually serious enough to amount to Misconduct, for the reasons stated by Ms Sharpe.  In relation to the matters in Particular 1, the Panel considers that the description by ST of the effect upon SUA of the Registrant’s failings as “catastrophic” is an accurate summary of the events.  ST also described each individual Particular as representative of basic skills which every paramedic should know and apply.

122. In relation to Particular 2, the Panel considers that ST’s evidence effectively summarises the seriousness of the failure to report, in that he stated: “If employees do not report patient safety incidents, we cannot take action to ensure they do not happen again and we fail as an organisation.”

123. As for Particular 4, the Panel is aware that Dishonesty by any professional is always regarded as serious.

124. The Panel therefore finds that Particulars 1, 2 and 4 amount to Misconduct.  It follows that they cannot also be classified as Lack of Competence.
  
125. In relation to the remaining Particular (Particular 3) namely that the Registrant failed an Advanced Life Support assessment, the Panel does not consider failing one assessment to be serious enough to amount to Misconduct and nor does it consider that it amounts to a Lack of Competence since it cannot be said that, as the Registrant only undertook one assessment, a fair sample of his work has been considered.  The Panel therefore finds that Particular 3 does not reach the appropriate threshold to satisfy a breach of any ground of Impairment.  The Panel reached this conclusion without having to consider the Registrant’s comments but notes that essentially, he reiterated what the Panel considered.   

Decision on Impairment

126. In reaching its decision on impairment, the Panel has taken account of the submissions of Ms Sharpe and the advice of the Legal Assessor. It has also taken account of the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.

127. The Panel is aware that, in determining whether fitness to practise is currently impaired, it must take account of a range of issues which, in essence, comprise two components, namely the ‘personal’ component (the current competence and behaviour of the individual Registrant) and the ‘public’ component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession). It appreciates that not every finding of misconduct will automatically result in a Panel concluding that fitness to practice is impaired. Moreover, it cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, a Registrant has corrected matters or “learned his/her lesson”. Although the Panel’s task is not to punish past wrongdoings, it does need to take account of past acts or omissions in determining whether a Registrant’s present fitness to practice is impaired. In addition, when assessing the likelihood of a Registrant causing similar harm in the future, the Panel should take account of both the degree of harm, if any, caused by a Registrant and that Registrant’s culpability for that harm. Finally, the Panel is to consider whether a Registrant has demonstrated insight into his attitude and failings.

128. The Panel reminds itself that it found that the Registrant’s actions and/or failings were so serious as to amount to Misconduct in relation to (i) his treatment of SUA; (ii) his failure to report a serious incident; and (iii) his dishonesty in relation to that failure to report.

129. The Panel noted the submissions of Ms Sharpe as follows – once again it quotes her verbatim, not only for the benefit of the Registrant when he comes to read this decision, but also because she incorporates what the Registrant submitted in his response:

“116. If some, or all, of the facts are found alleged are found proved, the Panel may be of the view that the conduct demonstrates serious issues with the Registrant’s practice that have not been remediated.

117. As the court noted in the case of Cohen, not every finding or misconduct or LOC will automatically result in a Panel concluding that fitness to practice is impaired.

“There must always be situations in which a Panel can properly conclude that the act... was an isolated error on the part of the... practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired...It must be highly relevant in determining if... fitness to practise is impaired that... first the conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated”.

118. The first consideration for the panel is whether the charge is easily remediable. In the Council’s submission, the concerns, if found proved, relate to serious clinical concerns in a number of key areas of paramedic practise. Though some of the conduct may be remediable the consideration for the Panel is whether the conduct is easily remediable.

119. The second and third considerations for the Panel are whether the conduct has been remedied, and whether it is highly unlikely to be repeated. 

120. The Registrant has provided no evidence of remediation to the Panel. Similarly, the Registrant has provided no evidence that the conduct is highly unlikely to be repeated.

121. The Panel have no up to date information as to the Registrant’s current employment and there is no evidence before the Panel as to how the Registrant would avoid repeating these issues in the future. 

122. In light of this, it is respectfully submitted that the Panel cannot be satisfied that the considerations in Cohen have been fully addressed.

123. In assessing the likely risk of the Registrant causing harm, or the risk of harm, in the future we would ask you to look at the degree of harm and culpability for that harm in relation to these allegations. This might be different for each factual particular that you have found proved, and you will have to consider culpability in the round. The risk of harm to critically ill service users is, the Panel may think, of the most serious kind and has been sadly borne out by this case.

124. The Panel have heard evidence of the effect, or potential effect, of each factual particular in these matters on patients and their families, as well as WMAS and the Trust.  By definition, the Registrant worked with patients who were vulnerable by reason of their health, in an area where paramedics are required to provide care before the patient’s arrival at a hospital that can be some distance away.

125. Sir Anthony Clarke, in Meadow v. General Medical Council said:

“In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”

126. In looking forward, the panel will consider the degree of insight shown by the Registrant.

127. The Panel may be of the view that the Registrant has demonstrated no insight into any failings. There has been mention of a reflective piece prepared for the disciplinary hearing, which has not been provided to the panel, and though it was indicated by the Registrant’s representative on [24 September 2019] that a reflective piece would be sent, it was confirmed on [18 October 2019] that the Registrant would not be providing one.

128. By way of his written representations, the Registrant has sought to deny the allegations and criticises the case against him as “weak at best, circumstantial and the facts are lacking to backup any of these claims”. The Panel may be of the view that is further evidence of the Registrant’s lack of insight.

129.The Panel will also consider that the Registrant has not demonstrated any insight at all into the wider impact of his alleged failings; not just on service users and their families, but his colleagues, WMAS, the Trust and the reputation of the profession as a whole; all of which is relevant.

130. It is right for the Panel to consider too whether the Registrant has expressed any remorse for any of the allegations. The Panel may be of the view that the Registrant failed to do so.

131. Moving on to consider the public component identified in the Practice Note, I would invite the Panel to bear in mind the words said by Mrs Justice Cox in CHRE v (1) NMC and (2) Grant.  She stated that it is essential not to lose sight of the fundamental considerations emphasised by Mr Justice Silber in R(on the application of Cohen) v General Medical Council, that is, the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.  Mrs Justice Cox further added:

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

132. The Council submits that this is such a case, if any or all of the factual particulars are found proved, where the public confidence in the profession and in the Regulator would be undermined if a finding of impairment were not made, given the very significant risk to service users and the standard of care afforded to SUA.

133. On the basis of the personal component, that is, the total lack of insight, remediation, remorse and the risk of repetition, and the public component and the need to uphold proper professional standards and public confidence in the profession and the regulator, the panel may feel that Mr Setchfield’s fitness to practise is currently impaired.”

130. The Panel accepts Ms Sharpe’s submissions.  The Registrant has not engaged with this hearing and the Panel has therefore not had the benefit of hearing from him with regard to any remediation he has undertaken.  Further, it notes that he has not, as apparently promised by him, lodged any reflective piece.  The Panel therefore has only his initial response to the allegation which, in addition to stating his opinion about the Trust’s case, reiterated that he had never failed an assessment in his career before and indicated that he had in the same week attended three cardiac arrest cases without any issues arising. 

131. The Panel therefore finds, on the Personal component, that, although the Registrant’s failings are capable of remediation, he has not demonstrated that he has remediated any of his failings.  Further, he has failed to demonstrate that he has developed any insight into these failings or that such failings are unlikely to be repeated.  Accordingly, the Panel finds the Registrant impaired in relation to the Personal component.

132. In relation to the Public component, taking all these factors into account, the Panel is led to the conclusion that a right-minded member of the public, with full knowledge of all of the circumstances, would be extremely concerned if a finding of current impairment were not made.  Such a person would, in the Panel’s opinion, conclude that, as the Registrant has not fully, or at all, remediated his failings where there is evidence of harm being caused to a member of the public, a finding of impairment should be made in order to ensure that professional standards have been upheld and public confidence in the profession and in the regulator have been maintained.

133. The Panel therefore finds the Registrant to be impaired in relation to both the Personal and the Public components.

Decision on Sanction

134. In reaching its decision on sanction the Panel took account of Ms Sharpe’s submissions, the Sanctions Policy (“SP”) document (bearing in mind that it is a guide and no more) and the advice of the Legal Assessor, which it accepted. The Panel was mindful that the purpose of sanctions is not to be punitive, although they may have that effect. It appreciated that the primary purpose of any sanction is to address public safety from the perspective of the risk which the Registrant concerned may pose to those who use or need his services. It noted, however, that in reaching its decision, Panels must also give appropriate weight to the wider public interest, which includes: the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process. In addition, the Panel noted that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the Registrant.

135. The Panel noted Ms Sharpe’s submissions.  She drew the Panel’s attention to some parts of the SP and suggested various mitigating and aggravating factors for the Panel to consider.  Ms Sharpe concluded by submitting that this was a case where the choice of sanction might be between Suspension and Striking Off.

Mitigating and Aggravating factors

136. The Panel took account of the various mitigating factors namely:

• The Registrant was an experienced Paramedic who had an 18 year long career which had resulted in promotion;
• There was no information before the Panel to suggest that the Registrant was not of previous good character;

137. However, the Panel also noted the following aggravating features and in particular:

• The lack of any demonstration of insight by the Registrant into his failings;
• His failure to accept full responsibility for those actions, exhibited by his dishonesty and his propensity to implicate others (which demonstrated a failure to work in partnership with his colleagues);
• His continuing unprofessional behaviour exhibited in his 3 December 2018 response, which demonstrated a lack of respect for the investigation notwithstanding what the Panel has found to be an abundance of evidence against him;
• The lack of evidence of any remediation;
• The Registrant’s lack of any appreciation as to how his actions potentially affected others or his profession;
• The Registrant’s lack of honesty;
• The fact that his failure to report the incident was an example of a failure to raise concerns;
• His tendency to diminish what he had done and his failure to appreciate what effect his actions had on SUA and his family;
• The lack of any expressions of remorse or any apology;

 
Consideration of Sanction

138. Given the seriousness of the misconduct and the aggravating factors the Panel took the view that this was not a case that could be appropriately dealt with without a sanction.  The Panel therefore went on to consider the various sanctions, beginning with the least onerous.

139. The Panel first considered the sanction of mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way.

140. The Panel next considered a Caution Order, which is deemed to be appropriate when:

“the issue is isolated, limited, or relatively minor in nature; there is a low risk of repetition; the registrant has shown good insight; and the registrant has undertaken appropriate remediation…A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate.”

141. Once again, the Panel considered that the Particulars found proved were so serious that such a sanction would be insufficient to address the Panel’s concerns in relation to the public interest grounds or to provide adequate protection to the public.  In any event, the factors listed above which otherwise would support a Caution Order being made did not apply to the Registrant – for instance, although the issue was isolated, it was not relatively minor in nature; there was not a low risk of repetition, the Registrant had not shown insight and there was no evidence of remediation.  The Panel therefore concluded that such a sanction would be neither appropriate nor proportionate.

142. The Panel then considered the next most onerous sanction, that of a Conditions of Practice Order.  The Panel noted paragraph 106 the SP which sets out when a Conditions of Practice Order is suitable, but concluded that paragraphs 107 and 108 are more applicable to this case.  Those paragraphs state:

“107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.
108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:

• dishonesty…;
• failure to raise concerns…;
• failure to work in partnership…

109. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases.”

143. In particular, the Panel noted that, there was no evidence before the Panel to suggest that the Registrant would comply with any conditions imposed upon his practice.  Further, it noted the last meaningful communication from the Registrant (his representatives’ e-mail of 24 September 2019) which stated “…it is his intention not to be present at any further HCPC hearings”.  This suggests to the Panel that at best the Registrant is ambivalent about seeking to remediate his failings and therefore it is led to the conclusion that, against the background of his non-engagement with these proceedings, it is unlikely that the Registrant would be willing or able to comply with any conditions.    Moreover, the Panel was not satisfied that a Conditions of Practice Order would adequately reflect the seriousness of the Registrant’s misconduct.

144. The Panel next considered imposing an order of Suspension.

145. The Panel noted the following paragraphs of the SP:

“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

146. However, the Panel doubted that paragraph 121 applied to the Registrant’s case since (the allegation being “a serious breach of the Standards…”) it could not be said that the Registrant had insight and the issues were “…unlikely to be repeated”. There was evidence that he was likely to be able to resolve or remedy his failings, given his lack of engagement and the Panel’s previous findings on Impairment.

147. The Panel appreciated that a Suspension Order would provide the necessary level of public protection for its duration. However, the Panel considered that, in the light of the background of the Registrant’s non-participation in the hearing and his most recent communication (which fails to indicate any expression of continuing interest in remaining in the profession or cooperation with his Regulator) it had no real confidence that allowing the Registrant time for reflection and remediation would achieve the desired result.  It noted that he had already had two years in which to consider his situation and demonstrate remediation, or a willingness to remediate, but had apparently not changed his position. Consequently, it appeared to the Panel that paragraph 121 was not applicable to his case.

148. As such, the Panel finds that a Suspension Order would be neither proportionate nor appropriate in the circumstances of the case.  In addition, the Panel considered that it would not be sufficient to maintain public confidence in the regulatory process or the profession. 

149. The Panel therefore considered the sanction of Striking Off.  It noted the following paragraphs of the SP:

“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):

• dishonesty…;

• failure to raise concerns…;

• failure to work in partnership…

131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight …

• is unwilling to resolve matters”.

150. The Tribunal finds that the Registrant’s behaviour is fundamentally incompatible with continued registration.  It takes account of the fact that it would be in the public interest to retain an otherwise apparently competent and experienced Paramedic, but considers that his actions fall into the provisions of paragraphs 130 and 131, in particular his persistent lack of insight and unwillingness to resolve matters.  Accordingly, having reminded itself of the need to act proportionally, nonetheless the Panel is led to the conclusion that a Striking Off Order is the appropriate sanction in this case.

151. In addition, the Panel also concludes that a properly informed and fair minded person would consider the Registrant’s misconduct to be most serious and any sanction less than a Striking Off Order would seriously undermine their confidence in the profession and in the regulatory process. The Panel also considers it essential to send a clear message to the profession that behaviour such as that shown by the Registrant is completely unacceptable. 

The Registrar is directed to strike the name of Mr Alisdair B Setchfield on the date this Order takes effect.

Application for an Interim Order

1. Having determined to conclude this case by imposing a Striking Off Order on the Registrant, the Panel heard an application by Ms Sharpe for an Interim Suspension Order for 18 months (to cover any appeal period). 

Application to proceed in absence

2. However, before asking the Panel to consider such an application Ms Sharpe reminded the Panel that she had to make a further application to proceed in the Registrant’s absence, in accordance with the Practice Note on Interim Orders, which stated:

“If the registrant is absent, the HCPC will first have to make, and the Panel will have to determine, whether to proceed in the registrant’s absence with the HCPC’s application for an interim order and the HCPC will need to show that the registrant has been given notice that an application may be made. Such notice may be contained within the Notice of Final Hearing. As before, the overriding statutory objective of protecting the public and the wider public interest will weigh heavily in favour of an application to proceed in absence, particularly when the Panel has made a finding that fitness to practise is impaired.”

3. Ms Sharpe pointed out that the Registrant had been advised in the Notice of Hearing letter dated 9 August 2019 that such an application might be made if the Panel imposed a sanction which removed his right to practise, which the Striking Off Order did.  She went on to say that the basis of the application to proceed in the Registrant’s absence was the same as for the identical application that she had made at the commencement of the hearing, with the additional factor that the Panel had now found most of the facts proved and had determined that the Registrant should be struck off.

4. The Panel heard and accepted the advice of the Legal Assessor, who repeated his advice given at the commencement of the hearing.  The Panel also had regard to the HCPC Practice Note entitled “Proceeding in the absence of the Registrant”.

5. The Panel decided to proceed in the Registrant’s absence.  It noted that he had been given appropriate notice of the possibility of an Interim Order being applied for, such being an important part of what the Panel was required to do.  Moreover, the Panel had now found most of the allegations against the Registrant proved and had determined that his fitness to practise was impaired and that he should be made the subject of a Striking Off Order.  Accordingly, for the same reasons as previously indicated, which included the Panel’s earlier finding that the Registrant had voluntarily absented himself from the hearing, the Panel decided to proceed in his absence when considering the application for an Interim Order.

Application for Interim Suspension Order    

6. Ms Sharpe submitted that such an order was necessary on both public protection and public interest grounds on the basis that the Panel had found that the Registrant was currently impaired due to his Misconduct and had considered that he should be made subject to a Striking Off Order since it had concluded that he posed an ongoing risk to the public and had acted in such a serious manner that the ultimate sanction had to be imposed upon him. 

7. The Panel accepted the advice of the Legal Assessor, who referred it to paragraphs 133 to 135 of the SP, which state:

“What is an interim order?

133. If a panel imposes a conditions of practice order, suspension order, or striking off order, Article 31 of the Order provides the panel with the discretionary power to also impose an interim conditions of practice order or an interim suspension order. This will apply from the imposition of the substantive order, until the end of the appeal period, or where an appeal is made, the end of the appeal process.

When is an interim order appropriate?

134. The power to impose an interim order is discretionary, and so panels should not consider it to be an automatic outcome. The panel should carefully consider whether or not an interim order is necessary and should provide the parties with an opportunity to address the panel on whether an interim order is required.

135. An interim order is likely to be required in cases where:

• there is a serious and ongoing risk to service users or the public from the registrant’s lack of professional knowledge or skills, conduct, or unmanaged health problems; or
• the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.”

8. The Panel took account of the Practice Note on Interim Orders and first considered whether an interim order was necessary.  It had found that he was currently impaired due to his Misconduct and the risk of repetition.  The Panel was satisfied that there was a serious and on-going risk to service users and the public, and that for the same reasons public confidence and in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in unrestricted practice.

9. Having determined that an interim order was necessary, the Panel then considered the appropriate form of that order, beginning with the least restrictive. It first considered whether an Interim Conditions of Practice Order would be sufficient to protect the public, meet the wider public interest and be in the Registrant’s own interests.  For the same reasons as given when deciding not to impose a substantive Conditions of Practice Order on the Registrant (which included the Panel’s concerns about the Registrant being willing or able to comply with such an order) the Panel decided that such an Interim Order would not be appropriate to manage the risks identified by the Panel and that it would be perverse to impose an order inconsistent with the substantive order of Striking Off.  

10. The Panel therefore concluded that an Interim Suspension Order was the appropriate and proportionate order.  It also determined that it should be for a period of 18 months since, if there was an appeal, the substantive order would not come into effect:

 

Interim Order: The Panel makes an Interim Suspension Order for a period of 18 months under Article 31(2) of the Health and Social Work Professions Order 2001. 

History of Hearings for Mr Alisdair B Setchfield

Date	Panel	Hearing type	Outcomes / Status
21/10/2019	Conduct and Competence Committee	Final Hearing	Struck off