Mrs Kielye L Mitchell

Preliminary Matters

Notice of Hearing and Proceeding in Absence

1. In the circumstances of the COVID-19 pandemic, the HCPTS has temporarily suspended public hearings at its Tribunal Centre to protect the health and safety of all participants. In order to perform its statutory duties, the HCPTS arranged to review this case “on the papers” whereby the Panel meets and makes a decision using only the written submissions provided by the HCPC and the Registrant.  The Registrant was sent notice of the hearing to this effect on 9 April 2020 to her registered email address.

2. The Panel was satisfied that service had been effected on seeing proof of delivery of the email at 09.40 on 9 April 2020 and on reading the Registrant’s response via email confirming receipt of the HCPC email. The Registrant and her representative were sent a letter by email on 27 April 2020 advising them that it was now possible to hold the hearing by video conference if she would like to attend and give oral submissions. The Registrant replied by email later the same day to confirm that she would like her review to remain as written submissions only due to her childcare responsibilities. She has sent written submissions for the Panel and has not made any application to adjourn the hearing.

3. The Registrant did not therefore attend this virtual hearing nor was she represented. The HCPC submitted that the Registrant is aware that this video hearing is taking place, that she has chosen not to attend and prefers to make her submissions in writing. She has accordingly waived her right to attend. The HCPC further submitted that this was a mandatory review which must take place before 12 July 2020 and it was in the public interest for the hearing to proceed expeditiously.

4. Having considered the revised HCPTS Practice Note on proceeding in absence and the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing. She had in effect waived her right to appear by confirming that she did not intend to attend the video hearing and relying on her written submission.

5. The Registrant had not applied for an adjournment.  There was no indication that she would attend another hearing at a later date if today’s hearing were to be adjourned. The Panel noted the public interest in dealing with mandatory reviews in a timely manner. In balancing the Registrant’s interest and the public interest, the Panel decided that the matter should be heard in the absence of the Registrant.

Background

6. The Registrant is a Paramedic registered with the HCPC. She is employed by the East of England Ambulance Service NHS Trust and had worked for the Ambulance Service for about 16 years. She was stationed at Colchester Ambulance Station.

7. On the morning of 8 March 2016, Person B (Patient A’s husband) contacted 111 to report that his wife, an otherwise healthy 60 year old, was unwell. An ambulance was dispatched to her home address. The Registrant attended with her colleague (witness SH) and transferred Patient A to hospital. Patient A died in the early hours of 9 March 2016. Following a complaint by Person B, the hospital and the Ambulance Service conducted internal investigations. Person B also referred the matter to the HCPC in December 2016. In summary, the case against the Registrant was that she had failed to adequately record or monitor Patient A’s deteriorating condition, which was a form of sepsis, and that she failed to take certain actions.

The Substantive Hearing 30 January – 6 February, 13-14 June 2019

8. The Registrant attended the first part of the hearing to give evidence by video link and telephone and she was legally represented. The panel hearing her case found her evidence to be inconsistent and unreliable in certain respects. All factual particulars (1-9) of the allegation were found to be proved.

9. The Registrant’s actions or omissions for all but the first two particulars were found to amount to misconduct in that they fell far below the standards expected of a registered paramedic. Whilst acknowledging that there were extenuating circumstances outside the Registrant’s control, in that there were unusual delays in admitting the patient to the hospital on the day, the then panel was troubled by the Registrant’s lack of understanding and awareness regarding her own failure to see that Patient A was demonstrating obvious and worsening signs of cyanosis, which was a red flag indicative of circulatory compromise. The Registrant’s failings contributed to denying Patient A timely care.

10. The original panel expressed concern about her lack of initiative in documenting her patient’s deterioration and her lack of insight into her own conduct and the effect on Patient A and her family. The panel also had concerns about her apparent lack of regard for the impact on others and her lack of remorse. She blamed other staff and minimised her own responsibility. She had not undertaken any reflection apart from one occasion in 2016. There was therefore a risk of repetition. The panel thus found impairment on both personal and public interest grounds.

11. The panel reconvened to consider sanction on 13-14 June 2019 and took account of the Registrant’s apology to the family of Patient A in a reflective piece, together with evidence of courses she had undertaken and positive testimonials from senior colleagues. A Suspension Order of 12 months duration was determined to be the appropriate and proportionate sanction. The panel indicated that a period of suspension would enable the Registrant to provide the following evidence that may assist a reviewing panel:

a. Reflections on patient advocacy
b. A report from a paramedic mentor, concerning the failings in this case;
c. A Personal Development Plan (PDP) on the failings identified.

Today’s Review Hearing

12. The Panel considered the following material that had been submitted by the Registrant:

• Letter from the Registrant dated 22 April 2020
• Letters from two colleagues
• Three training certificates

13. The Registrant stated in her letter of 22 April 2020 that she continues to work at the Trust as a Senior Emergency Medical Technician (EMT) and that there are no further concerns regarding her practice. She has undertaken four days of one-to-one training with a Paramedic colleague and has updated her knowledge of recent guidelines as well as her annual CPD. She listed the courses she has completed, including courses in clinical decision making and ambulance care and provided certificates for her four day return to work clinical update, 2 day Professional Clinical Update and 150 hours of 3rd manning shifts.

14. The Registrant stated in the letter that the only change in her role is that, as a senior EMT, she cannot cannulate or intubate a patient or administer certain medications. She notes that the substantive hearing panel had no concerns about these skills. She has received support from colleagues but she stated that she preferred to remain working as a senior EMT and no longer wished to return to practice as a Paramedic because ‘this case has physically and mentally destroyed not only my love for the profession but myself personally’. She also wished to reduce her hours and focus on her young family. She commented on the lack of support for Paramedics such as herself: “I have been left to take the failings of the NHS as a whole on my shoulders”.

15. The Registrant expressed her disappointment with the outcome of the substantive hearing and felt that she has been poorly treated by an unfairly conducted investigation and a panel that was biased towards Patient A’s family. She also alleged that a witness had admitted giving incorrect information at the hearing. She concluded her letter by stating that she had decided to terminate her registration.

16. In their written submissions, the HCPC contended that the Registrant has failed to meet the original Panel’s expectations of greater insight and remorse and that she continues to blame others rather than take personal responsibility for her actions or omissions. There is therefore a continuing risk of repetition and her fitness to practise remains impaired. Had this hearing been listed in the usual way, the HCPC would have been likely to submit that this review Panel should consider a striking-off order, but they accept that that would be disproportionate at a virtual hearing ‘on the papers’ with no opportunity for oral representations. The HCPC therefore submitted that the appropriate sanction at this stage is a further Suspension Order for another 12 months.

Panel’s Decision

Decision on Impairment

17. A substantive review is a two-stage process. The first task of the Panel is to decide whether the Registrant’s fitness to practise is currently impaired and if so, to then consider what sanction to impose, if any. In reaching its decision, the Panel has considered all the relevant material and had regard to the HCPTS Practice Notes on Impairment and Article 30 Reviews. The Panel accepted the advice of the Legal Assessor on the principles of proportionality and fairness in considering impairment.

18. The Panel had firmly in mind that the purpose of this review hearing was to conduct a thorough appraisal of the Registrant’s current fitness to practise, including changes of circumstances and an assessment of future risk, and that this was not a rehearing of the original case. The Panel also had in mind that there was a persuasive burden on the Registrant to satisfy the Panel that all the concerns raised in the original findings had been addressed (Abrahaem v GMC [2008] EWHC 183 (Admin).

19. The Panel considered the two components relating to impairment; the personal component and the public component. It first considered the personal component: whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

20. In relation to personal impairment, the Panel noted that the Registrant does not accept the findings of the panel at the substantive hearing, but reminded itself of the principle confirmed in Yussuf v GMC [2018] EWHC 13 (Admin) that a Registrant is entitled not to accept the findings of a panel or tribunal and that their lack of acceptance does not prevent a review panel from determining that their fitness to practise is no longer impaired. The Registrant was entitled to contest the allegations in this case and raise points of mitigation. The Panel did not therefore draw an adverse inference from her refusal to accept the other factual findings for the purpose of this review.

21. The Panel acknowledged that the Registrant had an otherwise unblemished career, that there were significant extenuating circumstances and that the original incident was more than four years ago. The Panel was however concerned that the Registrant remained preoccupied with her own strong sense of injustice at the outcome of the hearing and that she continued to focus on her own predicament rather than developing her insight and demonstrating how she had remedied her original misconduct. In particular, she had not provided a reflective piece on patient advocacy as expected by the original panel. The Registrant appeared instead to wish to turn her back on an otherwise unblemished career as a paramedic but she would not be able to terminate her registration, as she intended, whilst she remained subject to fitness to practise proceedings.

22. The Panel determined that the Registrant’s failings were capable of remedy, especially in view of her long experience and her positive testimonials, but it was not satisfied that she had provided sufficient evidence of insight into her own failings and remediation so as to allay the original concerns. In the absence of such evidence, there remained a risk of repetition. The Registrant’s fitness to practise therefore remained impaired on personal grounds.

23. In considering the wider public interest, the Panel reminded itself of the public component in Cohen v GMC [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”

24. The Panel determined that a finding of impairment was necessary in the wider public interest to protect the public and to maintain public confidence in the profession. A reasonable and informed member of the public would expect such a finding, in the absence of  greater evidence of remediation or insight.

Decision on Sanction

25. The Panel considered the HCPCs Sanctions Policy and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.

26. The Panel determined that the nature of the original misconduct in this case was too serious to make no order.

27. The Panel considered whether to impose a Caution Order, but decided that it was inappropriate. It noted that the previous panel had considered that a Caution Order would not provide sufficient public protection or uphold the public interest. There was no change of circumstances that would enable this Panel to take a different view.

28. The Panel considered that a Conditions of Practice Order was not appropriate because the Registrant had not yet demonstrated sufficient evidence of remediation or insight.

29. The Panel considered that there was an arguable case for a Striking Off Order at this stage in view of the absence of evidence of insight as indicated in paragraph 131 of the Sanctions Policy. However, the Panel had in mind the mitigating factors in this case and determined that the Registrant should be afforded a further opportunity to demonstrate remediation by providing the next review panel with a reflective piece on patient advocacy and acting in the interests of the patient, as recommended by the original panel. The Panel also accepted the HCPC’s submission that it was not appropriate to impose a striking-off order on a review on the papers in the current pandemic.

30. The Panel therefore concluded that an extension of the current Suspension Order for a further period of 12 months was the necessary and proportionate measure to ensure there was no repetition of the misconduct and to maintain public confidence in the profession. It is open to the Registrant to seek an earlier review if she wishes to do so.

31. The Registrant should be in no doubt that the next review panel may have grounds to consider striking her name from the register if she fails to provide the evidence of reflection and remediation that is outlined above. This Panel would encourage the Registrant to attend the next hearing in order to persuade the next review panel that this is not necessary.

Order: The Registrar is directed to suspend the registration of Mrs Kielye Mitchell for a further period of 12 months on the expiry of the existing Order.

The Order imposed today will apply from the 12 July 2020.

History of Hearings for Mrs Kielye L Mitchell