Mr Michael C Penney

Preliminary Matters

Proof of Service

1. The Panel was provided with information that the Notice of Hearing dated 8 April 2020 was emailed on the same date to the Registrant’s email address on the HCPC Register. The Panel took into account the HCPC’s published updated guidance that, in light of the government guidelines to contain the COVID-19 pandemic, and the closure of the HCPC and HCPTS offices, service of notice of hearings would take place by email rather than post. Accordingly, the Panel was satisfied that there had been good service. The Panel noted that the Notice of Hearing stated that today’s hearing is listed to be “on the papers”.

Hearing on the papers

2. The Panel considered whether to proceed in the Registrant’s absence and was aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant”.

3. The Panel read the skeleton argument dated 11 May 2020 submitted on behalf of the HCPC, which requested that the Panel proceed today on the papers. Having originally been scheduled on the papers, by way of an email dated 27 April 2020 the HCPTS offered the Registrant the opportunity to attend this hearing as a “virtual hearing” by way of video conference. This offer was also sent to his solicitor by email. An email from the HCPC dated 5 May 2020 to his solicitor confirmed that no response had been received to this offer and that the hearing would therefore take place on the papers.

4. The HCPTS did not receive a response as to this matter, and therefore decided to proceed on the papers as had originally been suggested in the Notice of Hearing.

5. The Panel noted the exceptional and unprecedented circumstances resulting from the pandemic and the current restrictions imposed by the Government, which are continuing.

6. By way of an email from the HCPC to the Registrant’s solicitor dated 6 May, the HCPC stated its position in respect of today’s hearing, namely that the Registrant remains impaired, and that the Suspension Order should be extended for a further 12 months. In a reply dated 21 May 2020, the Registrant’s solicitor stated that the Registrant is willing to agree to such an extension to the Suspension Order.

7. The Panel took into account fairness to the Registrant as well as the considerations of expeditious disposal of today’s mandatory review.

8. The Panel took into account: that the Registrant is legally represented; the agreement between the parties about the extension of the current Suspension Order for period of 12 months; that he has not replied to an offer of today’s hearing taking place by video conference; the expiry of the Order on 27 June 2020; and the Registrant’s medical evidence about his health issues. In addition, the Panel took into account that this is a mandatory review of a substantive sanction that, if not reviewed, will lapse on the expiry date, and therefore there is a public interest in this matter proceeding.

9. In the circumstances, the Panel was satisfied that the hearing should proceed today on the papers on the basis that it is fair and in the interests of justice to proceed.

Hearing in Private

10. The HCPC applied for the entirety of the hearing to be heard in private due to the references which would be made to the Registrant’s health. The Panel decided, having accepted the advice of the Legal Assessor and considered the HCPTS Practice Note on “Conducting Hearings in Private”, that if matters of the Registrant’s health arose it would consider that part of the hearing in private to protect the private life of the Registrant.

Background

11. The Registrant was employed by the Northern Ireland Ambulance Service (NIAS) as a Paramedic. On 5 December 2015, he commenced a day shift as a Paramedic in a Rapid Response Vehicle (RRV) in Belfast.

12. Whilst on duty, the Registrant entered a Boots store in Belfast (Boots) and left the premises without paying for goods with the total approximate value of £160. A person matching his description, a tall male with a shaven head and wearing an NIAS uniform, had been filmed on CCTV leaving a Boots store with the items in a bag without having paid for them. Ambulance Control was duly notified and the Registrant received a request to contact Ambulance Control. He spoke to the Duty Control Manager, who asked if the Registrant had been in Boots. The Manager informed the Registrant that a male matching his description had been seen removing items from Boots without paying for them. The Registrant denied having been in Boots that day.

13. The Registrant stated that he has no recollection of being in Boots, but later found the relevant items on the back seat of his RRV. He stated that he had no understanding of how the items got there and, in fear and confusion, he put the items in the sluice room at the Ambulance Station for safekeeping, prior to attending an interview with the Police Service Northern Ireland (PSNI) about the matter. He later identified the whereabouts of the items to the PSNI officer and volunteered to get them and hand them over. The Registrant maintained that he still did not understand what had happened and that he had no recollection of being in Boots or taking the items.

14. On 24 March 2016, the Registrant accepted a Police Caution for theft on 5 December 2015. He accepted that it must have been him on the CCTV footage and that it must have been him who had removed the items without paying. His explanation of the events was that he had no recollection of taking the items and that this was due to his health condition. He advised that he had been suffering from a health condition for some time.

15. These matters led to a substantive hearing on 28 – 30 May 2019. The Registrant attended the first day of that hearing and gave oral evidence to the substantive hearing panel. That panel concluded that the Registrant had limited insight, had not remediated the dishonesty found proved, and that he was therefore currently impaired. The substantive hearing panel imposed a Suspension Order for a period of six months. That Order was reviewed by another panel on 26 November 2019. The Registrant did not attend the review hearing but did provide written submissions. The reviewing panel concluded that the Registrant continued to show insufficient insight and remediation, that his fitness to practise remained impaired, and it imposed a further period of suspension for six months.

Submissions

16. The position of the HCPC for the purpose of today’s review, as set out in its skeleton argument dated 11 May 2020, is that the Registrant remains impaired and that the Suspension Order should be extended by a further 12 months.

17. The Panel read the Registrant’s medical evidence, as well as some correspondence from his solicitor, including a written agreement to the extension of the Suspension Order by 12 months.

Decision

18. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and it considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”. The Panel accepted the advice of the Legal Assessor.

19. The Panel considered the submissions of both the HCPC and the position of the Registrant.

20. The Registrant has not provided the information recommended by the last reviewing panel in terms of useful evidence upon which he could rely today. The Panel noted the evidence of his health concerns. It was of the view that very little has occurred since the last review hearing to demonstrate a change either in the level of his insight or in terms of evidence of his remediation of the concerns found.

21. In light of this, the Panel was of the view that he has not yet achieved sufficient remediation or insight. As such, the Panel was of the view that there remains a real risk of repetition of the behaviour which was the subject of the police Caution. The Registrant therefore remains impaired in respect of the personal component.

22. In view of the lack of evidence of sufficient remediation and insight, and the remaining risk, the Panel decided that the need to uphold proper standards and maintain confidence in the profession would be undermined if a finding of impairment were not made on public interest grounds. The Panel therefore decided that the Registrant remains impaired on the basis of the public component.

23. The Panel then went on to consider the proportionate and appropriate sanction.

24. The Panel took into account the Sanctions Policy (SP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public and uphold the public interest. Further, sanction must be proportionate, so that any order that it makes be the least restrictive order necessary to protect the public interest.

25. The Panel first considered taking no action or mediation. The Panel concluded that these would not be appropriate in view of the lack of sufficient remediation and insight, and the risk that remains to the public interest. Such outcomes would be insufficient to maintain public confidence and uphold the reputation of the profession. The Panel concluded that a Caution Order would also be inappropriate and insufficient to meet the public interest concerns, in that it would not place any restriction on the Registrant’s practice.

26. The Panel next considered a Conditions of Practice Order and decided that it could not be said to be an appropriate sanction. There are no concerns about the Registrant’s clinical abilities, and in the Panel’s view, no conditions could be formulated to address the dishonesty.

27. The Panel therefore decided that it would be proportionate to impose a Suspension Order to reflect the ongoing lack of sufficient insight and remediation. The Panel decided that it would be proportionate and appropriate to impose this for 12 months, to take into account the Registrant’s ongoing health concerns but also the seriousness of the dishonesty and the impact this has had on public confidence and proper standards in the profession, which require to be upheld and maintained.

28. This Order will take effect on the expiry of the current Order.

29. The Panel did consider Striking Off but was of the view that this would be punitive and disproportionate in light of the steps taken by the Registrant previously to engage with the regulatory process, as well his ongoing health issues.

The Registrar is directed to extend the Suspension Order against the registration of Mr Michael C Penney for a further period of 12 months on the expiry of the existing order.

The Order imposed today will apply from 27 June 2020.

This Order will be reviewed again before its expiry on 27 June 2021.

History of Hearings for Mr Michael C Penney