Mr Michael Whittingham

Profession: Paramedic

Registration Number: PA33717

Interim Order: Imposed on 02 Mar 2018

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 18/06/2020 End: 17:00 18/06/2020

Location: This hearing is being held virtually.

Panel: Conduct and Competence Committee
Outcome: No further action

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

The following allegation was considered by a panel of the Conduct and Competence Committee at the substantive hearing on 24 June 2019.

While registered as a Paramedic:

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

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

The substantive hearing panel found the facts proved and that the Registrant’s conviction amounted to current impairment. That panel imposed a Suspension Order for a period of 12 months.

Finding

Preliminary Matters

1. The Registrant has not participated in this hearing, which has been held by video conference.

Service of the Notice of Hearing

2. The Notice of Hearing was sent only by email to the Registrant on 12 May 2020. The practice of issuing Notices of Hearings only by email has been introduced by the Health and Care Professions Tribunal Service (HCPTS) because HCPTS staff are currently working remotely in compliance with Government requirements and guidelines issued in respect of the Covid 19 pandemic. The Registrant was notified in that email that the hearing would take place at 10am on 18 June 2020 as a virtual hearing by video conference. He was advised of the powers open to the Panel when dealing with the review.

3. The email system used by the HCPTS can confirm whether or not a particular email has been delivered to the recipient. The email issued in this case was sent by the HCPTS at 17.25 on 12 May 2020. The Panel has taken into account information timed at 17.28 on 12 May 2020 that confirms that the email sent a few minutes previously by the HCPTS had been delivered to the Registrant’s email address.

4. At 18.01 on 12 May 2020, a further email was sent to the Registrant which again told him that a Review Hearing would be held at 10am on 18 June 2020 on a virtual hearing by video conference basis. That second email appears to contain the same information as the previous email together with some further information confirming that the hearing would be on a video conference basis because of Government recommendations on containing the current Covid-19 pandemic. There was confirmation that that second email had been delivered.

5. On 14 May 2020 a letter was sent to the Registrant only by email. He was again told that the Review Hearing would be a virtual hearing via video conference. He was asked to confirm whether he intended to participate in the hearing by video conference. He made no response to any of the emails referred to above.

6. The Panel has taken into account the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 and the HCPTS Practice Note “Service of Documents”.

7. Rule 3 of the Procedure Rules deals with service of documents and provides that a Notice of Hearing may be sent to a registrant by post. Rule 6 deals with the sending of a Notice of Hearing and requires such a notice to be sent to a registrant.

8. The Practice Note records that the normal method of service is by post but that other methods of service may be used. Those are by personal delivery to an appropriate address, by personal service, by fax or other electronic means with the prior consent of the recipient, or by such other method as a panel may direct. The Practice Note goes on to say, “Unless a Panel directs otherwise, documents may only be served by electronic means if the party in question has previously agreed in writing to accept service by such means and has provided a fax number, email address or other electronic identification to which documents should be sent”.

9. The Panel took into account the exceptional circumstances which prevail in the context of the current Covid 19 pandemic and the fact that HCPTS staff members are working remotely and do not have access to printing and postage facilities. The Registrant has not given prior consent to electronic service. However, the Panel has power to make a Direction regarding service and does so in this case. The Panel makes a Direction using the power contained in Article 30(3) that it is acceptable in this case that the Notice of Hearing was served by email.

10. On that basis, the Panel is satisfied that the Notice of Hearing was served on the Registrant.

Proceeding in the absence of the Registrant

11. Rule 11 of the Procedure Rules provides that where a registrant is not present, a panel may proceed if satisfied that all reasonable steps have been taken to serve the Notice of Hearing.

12. Ms Simpson asked the Panel to proceed in the absence of the Registrant. The Registrant had acknowledged receipt of the Notice of Hearing by submitting written representations to the HCPTS yesterday. He had said he would not be attending the hearing. It was in the interests of both the public and the Registrant that the Panel proceed.

13. The Panel has taken into account the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel has also taken into account that three versions of the hearing notice have been sent to the Registrant. He has been invited to make contact with the HCPTS if he has any questions regarding the procedure. He has been encouraged to attend the hearing. In the decision made on 24 June 2019, the Registrant was put on notice that a Review Hearing would be held before the expiry of the Suspension Order and he was advised of matters that any Reviewing Panel may take into account. The Registrant has submitted written representations to the HCPTS yesterday in which he said he would not be attending this hearing because of work commitments.

14. The Panel takes into account the working arrangements that have to be followed at the present time by the HCPTS, the number of hearing notices that have been emailed to the Registrant, and the confirmation that these have been delivered to his email address, and it has decided that all reasonable steps have been taken to serve the Notice of Hearing.

15. The Panel is satisfied that if this hearing were to be adjourned there is very little likelihood that the Registrant would attend on a future occasion. The Registrant has taken the decision not to attend this hearing and has provided representations. There is a public interest in this review being conducted in an expeditious manner prior to the end of the current Suspension Order.

16. The Panel takes into account that there is a statutory time limit during which this Review has to be held. That time limit expires on 22 July 2020. The Panel has concluded in all the circumstances that the fair step is to proceed in the absence of the Registrant.

Background

17. The Panel has adopted the summary of the background as was set out in the Decision of 24 June 2019 (using the paragraph numbers from that Decision):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20. The report concludes, that although using a Ministry of Justice approved statistical tool, which indicated there is a 12% chance of reoffending,

“Given the potential life changing nature of his conviction, I would be confident in saying that the Courts are unlikely to see a repetition of this or any other type of anti-social or criminal behaviour from Mr Whittingham.”

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

Decision

18. On behalf of the HCPC, Ms Simpson asked this Panel to take into account the background circumstances set out in the substantive hearing panel’s Decision, which gave details regarding the circumstances of the offence committed by the Registrant. That included sentencing comments made by the Judge, together with the substantive hearing panel’s views following their study of CCTV footage which recorded the incident in question.

19. Ms Simpson continued by saying that the HCPC accepted that the Registrant had made some progress by way of insight and remorse in the intervening period, but the HCPC position was that the Registrant’s fitness to practice remained impaired.

20. Ms Simpson asked the Panel to note the factors which the substantive hearing panel asked the Registrant to deal with at any subsequent review. The Registrant had submitted representations yesterday and it was accepted that those showed regret, remorse, and embarrassment in letting down both his employer and the reputation of his profession. However, if that material were read in full it largely focused on the impact the Registrant had experienced rather than the impact on his profession and members of the public.

21. Ms Simpson accepted that there remained a low risk of repetition of offending. However, given the failure on the part of the Registrant to substantially comply with the expectations of the substantive hearing panel in providing information for this hearing, the HCPC believed that the Registrant’s fitness to practice remained impaired.

22. The Panel has taken into account the HCPTS Practice Note “Review of Article 30 Sanction Orders”, which notes that the purpose of a review is to consider:

• whether the registrant’s fitness to practise remains impaired; and

• if so, whether the existing order or another order needs to be in place to protect the public.

23. The Practice Note goes on to say:

The key issue which needs to be addressed is what, if anything, has changed since the current order was imposed or last reviewed. The factors to be taken into account include:

• the steps which the registrant has taken to address any specific failings or other issues identified in the previous decision;
• the degree of insight shown and whether this has changed;
• the steps which the registrant has taken to maintain or improve his or her professional knowledge and skills;
• whether any other fitness to practise issue (sic) have arisen;
• whether the registrant has complied with the existing order and, if it is a condition (sic) of practice order, has practised safely and effectively within the terms of that order.

The reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed”. As the decision in Abrahaem v GMC [2008] EWHC 183 (Admin) indicates, in practical terms this places a “persuasive burden” on the registrant to demonstrate at a review hearing that he or she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”.

The decision reached must be proportionate, striking a fair balance between interfering with the registrant’s ability to practise and the overarching objective of public protection.

24. The Panel has taken into account the factors which the substantive hearing panel considered in finding that the Registrant’s fitness to practise was impaired. Those were:

• the serious nature of the offence

• at his criminal trial the Registrant appeared to seek “to minimise or justify his involvement, rather than fully admit his actions”;

• the Registrant’s lack of engagement in the fitness to practise proceedings and his lack of evidence of insight or remediation. The substantive hearing panel concluded that there remained a risk of repetition, although it was accepted that was low.

• the Registrant had harmed the reputation of both his employer and the Paramedic profession

• public confidence in the Paramedic profession and the regulatory profession would be undermined if there were no finding of impairment.

• that the Registrant, as at June 2019, remained subject to a suspended sentence of imprisonment.

25. The substantive hearing panel set out what they thought to be factors that might assist a Reviewing Panel at any future review:

• the Registrant’s attendance at any Review Hearing and engagement with the regulatory process;

• a written document/reflective piece of writing regarding the Registrant’s insight into his previous offending behaviour and its impact on the profession and on the public, and how a repeat of any such behaviour might be avoided in the future; and

• evidence of an up-to-date CPD record.

26. The Panel has taken into account the Registrant’s written representations provided to the HCPTS by email yesterday. In those submissions the Registrant maintained that he had never denied or tried to hide his actions and, further, that he had experienced feelings of regret, shame, embarrassment, and remorse about what had happened. He said that since his dismissal from his former employer and his suspension from the HCPC Register, he had taken a new role in health and safety and had completed a number of courses, including a National Examination Board in Occupational Safety and Health (NEBOSH) certification.

27. The Registrant asked the Panel to accept that in his new role he had continued to perform the duties that he had done for the last 20 years in keeping people safe. He referred to the training certificates which accompanied his representations.

28. He further asked the Panel to take into account that the offence took place over four years ago “and there is not a day that goes by I wish this had never happened also the actions I took on that day could have been different to the ones that I regretfully used”.

29. He continued by saying that he had served his punishment for what happened, but he felt the punishment was simply continuing with this hearing. He asked the Panel to take into account a “fitness to practice report” from an HCPC hearing he had previously attended. That was a copy of a Decision made by an Investigating Committee of the HCPC on 2 March 2018. That hearing dealt with an application by the HCPC for an Interim Suspension Order in respect of the violent disorder offence which is the subject of this Review. The Decision of the panel then sitting was not to make an interim order.

30. That Interim Order application hearing had, of course, taken place prior to the substantive hearing in June 2019. The Panel believes it is reasonable to take into account the Registrant’s sworn evidence from that Interim Order application hearing because he has made clear that it amounts to the submissions he would wish to make to this Panel today. For the avoidance of doubt, this Panel has not relied on anything from that Decision which would go behind the findings of the substantive hearing panel. The Registrant’s evidence at the Interim Order application hearing included reference to media reports which not only covered his conviction and sentence but also, “the Registrant’s exceptional performance, off duty, in saving a cardiac arrest victim’s life on 2 January 2018”. The Registrant also gave evidence that he had received a letter of commendation in respect of that incident from the Chief Executive of his Ambulance Trust. The Decision also recorded the Registrant’s “expression of deep regret and shame at being involved in the incident and positive steps taken to avoid being in any further incidents”. The Registrant also said that he had swiftly completed the 250 hours of unpaid work to which he had been sentenced and that his actions in that respect “showed his commitment to reparation”.

31. The Panel has noted the factors set out by the substantive hearing panel as being of potential assistance at any future review. The Registrant has not complied with those factors in the form that was set out in the substantive hearing Decision. However, this Panel is satisfied that once the recent representations from the Registrant are read in full, they essentially cover the ground that was suggested. The Registrant has not provided an up-to-date CPD record but he has provided a copy of his recent training certificates. In any event, the Registrant’s professional competence has never been in question during these proceedings.

32. Given the information that has been provided by the Registrant, the Panel does not take the absence of the Registrant at this hearing as an indication of a lack of engagement or insight.

33. This Panel has taken into account the advice in the HCPTS Practice Note on “Review of Article 30 Sanction Orders”, which sets out the key issue as being an examination of what, if anything, has changed since the current Suspension Order was imposed.

34. It is clear to this Panel that the Registrant has continued to reflect and develop insight. He has said that “not a day goes by” without him feeling deeply ashamed as to his past conduct. At the time of the Investigating Committee hearing the Registrant said that he had avoided attending any football matches and did not socialise with large groups of people to avoid being caught up in further incidents. He accepted the negative impact his actions had had on members of the public.

35. The Panel has taken into account that another year has gone by and there is no indication that the Registrant has committed any further offending. It is clear to the Panel that the Registrant has reflected on his past behaviour. The Panel’s assessment is that the risk of further offending is even lower now than the previous assessment of “low risk”.

36. There is nothing to show that the Registrant has not complied with the terms of his Crown Court sentence. The assessment of the Panel in the context of the personal component is that there is an extremely low risk of any further offending. There is no concern as to the Registrant’s professional competence.

37. The Panel has considered the public component which, in this case, involves the maintenance of public confidence in the Paramedic profession and in this regulatory process. About four years have now passed since the offence in question. The Registrant has now completed the 24 months’ period of his suspended sentence of imprisonment. He has also served a one-year period of suspension from the HCPC Register following the decision of the substantive hearing panel. It is clear that, apart from the conviction which the Panel is now considering, the Registrant has a very good previous record as a Paramedic.  The view of the Panel is that the public interest has already been served by the actions of the Crown Court and by the substantive hearing panel’s decision in June 2019. The Panel is satisfied that there is no further value in maintaining a restriction on practice beyond the expiry date of the existing Suspension Order. It is clear to the Panel that members of the public would not see continued restrictions as being justified in the case of a paramedic about whom there are no concerns as to his professional competence despite his past conviction on a serious criminal offence.

38. The Practice Note on Reviews makes the comment, “The decision reached must be proportionate, striking a fair balance between interfering with the registrants ability to practice and the overarching objective of public protection”. The Panel has decided that the proportionate step is to maintain the current Suspension Order until its expiry on 22 July 2020 but not to extend it or replace it by any other order. The Order will therefore lapse on its expiry.

Order

The Suspension Order will lapse on its expiry on 22 July 2020.

Notes

No notes available

Hearing History

History of Hearings for Mr Michael Whittingham

Date Panel Hearing type Outcomes / Status
18/06/2020 Conduct and Competence Committee Review Hearing No further action
24/06/2019 Conduct and Competence Committee Final Hearing Suspended