Eric A Horner

Preliminary Matters

Service

1. The Panel was shown a copy of the email sent to the Registrant on 27 October 2021. The email was sent to the Registrant’s email address recorded by the HCPC and it informed him of the date and time of the hearing as well as the fact that the hearing would be conducted remotely. The Panel was satisfied that this email constituted good service of the required notice of this hearing.

Proceeding in the absence of the Registrant

2. After the Panel announced its decision that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. In the context of that application, the Panel was informed that the HCPC’s Solicitors had attempted to contact the Registrant on five occasions by emails between 6 May 2021 and 27 May 2021 and by letter on 7 June 2021. The Registrant did not respond to any of those communications.  Further, the Hearings Officer confirmed that her check of the electronic system did not disclose any communications made by Registrant to the HCPC or HCPTS in connection with the hearing.

3. The Panel accepted the advice it received in relation to the decision it was required to make, and it also had regard to the factors identified in the HCPTS Practice Note on the topic. Having carefully considered all the relevant factors, the Panel decided that the hearing should proceed in the absence of the Registrant. The reasons for the decision were as follows:

• The absence of any communication by the Registrant to the HCPC’s Solicitors, the HCPC or HCPTS in relation to this hearing suggested that he had decided not to engage in these fitness to practise proceedings, and had accordingly voluntarily waived his right to participate in the hearing.

• There was no application for an adjournment, and no grounds on which the Panel could conclude that there would be engagement in the process by the Registrant were the hearing to be adjourned to a future date.

• Three witnesses had made arrangements to give evidence by video link at the present hearing.

• There is a clear public interest in the allegation (which concerns events that occurred approximately four years ago) being resolved without further delay.

• Any disadvantage resulting from the absence of the Registrant was outweighed by the public interest considerations requiring the hearing to proceed.

Amendment of the allegation

4. Before the Presenting Officer opened the case, an application was made to amend the allegation. The proposed amendment did not alter what the HCPC alleged the Registrant had done while working at the two medical practices referred to in the allegation; rather, what it sought to do was to clarify that his status while working at both practices was as a Paramedic, and not in any other role. The Panel concluded that the amendment was appropriate because it made clear the fundamental plank of the HCPC’s case, namely that the Registrant status was that of Paramedic.  The amendment was consistent with the “case to answer” decision of the Investigating Committee, and despite the fact that the terms of the proposed amendment had not been communicated to the Registrant, the Panel was satisfied that there was no prospect of it prejudicing him. Accordingly, the Panel acceded to the application to amend the allegation. The allegation as it is set out at the head of this document is the allegation as amended.

Background

5. The Registrant was first registered as a Paramedic with the HCPC in February 2003. Apart from two short periods of de-registration, one in 2005 and another in 2009, both of which appear to have occurred as a result of the late submission of renewal applications, he has remained registered as a Paramedic.

6. The Registrant worked at the Blackfriars Medical Practice (“Blackfriars”) from August 2017 until April 2018 in the capacity of Emergency Care Practitioner (“ECP”). The Registrant’s initial employment at Blackfriars was as a result of a placement by an employment agency. The Registrant worked at the Mocha Parade Medical Practice (“Mocha Parade”) from November 2017 until April 2018. It appears that Mocha Parade believed the Registrant to have been employed as an Advanced Nurse Practitioner.

7. In March 2018 Blackfriars was requested by the NHS Salford Clinical Commissioning Group (“CCG”) to submit a list of its current prescribers working in the practice, the request being made to ensure that prescribers had correct registration and also for the purposes of budget allocation. When, on about 13 April 2018, Blackfriars submitted its list of prescribers, the Registrant’s name was included. This resulted in Ms JO, a Medicines Optimisation Pharmacist employed by the CCG, making enquiries as to the Registrant’s ability to prescribe. When she spoke to a Pharmacist at Blackfriars, she was informed that, although it was understood that the Registrant was registered as a Paramedic, it was also believed that he was a registered Nurse, and the latter registration enabled him to prescribe. In a short period of time, Ms JO contacted other GP practices in the Salford area to enquire whether the Registrant was also working for them (and by making that enquiry discovered that he was working at Mocha Parade), and she also enquired of the Nursing and Midwifery Council (“NMC”) whether the Registrant’s name was included on their register (and discovered that it was not). On 17 April 2018 she made a referral to the HCPC.

8. It is convenient to add in this short background summary that both medical practices reviewed the records of patients seen by the Registrant. There was no evidence that his activities had resulted in actual harm to patients.

Decision on Facts

9. The HCPC relied upon the evidence of four witnesses, three of whom gave live evidence by video link. The witnesses who gave evidence in this manner were the following:

• Ms JO, the Medicines Optimisation Pharmacist at the CCG to whom reference has already been made.

• Dr BF, the General Practitioner Principal at Blackfriars.

• Mr PM, the Practice Manager at Mocha Parade.

10. In addition to the witnesses who gave evidence by video link, the HCPC also relied upon the written evidence of Ms NB, Registration Manager at the HCPC. Her evidence concerned the registration of the Registrant as a Paramedic with the HCPC. Furthermore, the Panel was provided with a bundle of documentary exhibits.

11. The Panel approached the task of making its findings on the facts by applying the principle that each and every element of the factual case advanced against the Registrant was required to be proved by the HCPC on the balance of probabilities. Additionally, as the evidence presented to the Panel was hearsay in nature, the Panel applied special care when considering that evidence.

Whether the Registrant was permitted to issue prescriptions to patients

12. A contention that lies at the core of the HCPC’s case, and an explicit element of particulars 1 and 2 of the allegation, is that the Registrant was not permitted to issue prescriptions to patients. It is also alleged that he was not registered with the HCPC as a non-medical prescriber. The Panel took the view that it was sensible to decide these issues initially, not least because unless it was proved that he was not there would be no point in deciding whether he had in fact issued prescriptions.

13. Until a change in legislation took effect from 1 April 2018, no Paramedic was entitled to issue a prescription. From that date it would become possible for a Paramedic to undertake an approved course of training, and, if successful, to be recorded on the HCPC register as a non-medical prescriber for independent or supplementary prescribing. The university providing the course of study would provide the HCPC with details of successful candidates and the HCPC register would be annotated accordingly. There was also scope for a prescribing entitlement obtained while registered with another regulator to provide to the HCPC proof of that entitlement and obtain the annotation to their Paramedic registration by that route.

14. The Panel accepted the evidence of Ms NB that the Registrant’s HCPC registration as a Paramedic did not include an annotation as a non-medical prescriber. It follows from this that his HCPC registration did not permit him to issue prescriptions. It should be noted that this change in legislation took effect less than a fortnight before the CCG began its investigation into the Registrant’s activities.

15. In the documents provided to the Panel there are statements that the Registrant asserted that he had previously been registered with the NMC, and as a consequence had an entitlement to issue prescriptions. The Panel was not provided with information on which it could make a finding as to whether the Registrant had in fact been registered with the NMC, or, if he had, whether any registration he had when registered with that body entitled him to prescribe. What the Panel is able to decide, and does in fact decide on the basis of the evidence of Ms JO who made appropriate enquiries, is that in the period relevant to the allegation being considered by the Panel (i.e. August 2017 to April 2018), the Registrant was not registered with the NMC. It follows that even if he had once been registered with the NMC any entitlement to prescribe flowing from it had ceased upon the registration coming to an end.

16. The result of these findings is that the Panel finds that if the Registrant did issue prescriptions he was not permitted to do so, and also that he was not registered with the HCPC as a non-medical prescriber. It follows that in order to decide if particulars 1 and 2 are proven, the Panel must decide if in fact he did issue prescriptions while working at the two practices.

Issuing prescriptions at Blackfriars

17. The Panel accepted the evidence that the Registrant was employed at Blackfriars, and that the capacity in which he was employed there was as a Paramedic (apparently with the description of Advanced Emergency Care Practitioner) was also accepted by the Panel.

18. The hearsay evidence of Ms SS, the Pharmacist employed at this practice, was supported by the direct evidence of Dr BF, and on the basis of that evidence the Panel found it proven that during the period of his employment there between August 2017 and April 2018 he issued prescriptions to patients. For the avoidance of doubt, the contention advanced in particular 1(b) that the Registrant signed a prescription with the GP’s details is proven on the basis that the lack of permission was because of the overriding lack of qualification to issue prescriptions already explained, not because of any specific prohibition imposed on the Registrant within Blackfriars.

19. It follows that each element of particular 1 is proven.

Issuing prescriptions at Mocha Parade

20. The Panel accepted the evidence that the Registrant was employed at Mocha Parade between November 2017 and April 2018. It appears that this practice gave the Registrant the title “Advanced Nurse Practitioner”, but for the reasons concerning the absence of NMC registration at this time already explained, the only capacity in which the Registrant could have been acting was as a Paramedic.

21. The Panel accepted the evidence of Mr PM that while working at Mocha Parade the Registrant issued prescriptions to patients.

22. It follows that each element of particular 2 is proven.

Dishonesty

23. Particular 3 contends that in acting as alleged in particulars 1 and 2, the Registrant was dishonest. The Panel accepted the advice it received that it is required to decide whether the Registrant’s conduct would be considered to be dishonest by the standards of ordinary decent people. However, in order to answer that question, it is necessary to decide what the Registrant knew or believed in relation to his actions. Every element of the decision relating to dishonesty is to be decided by reference to the balance of probabilities, but dishonesty being a particularly serious matter, the Panel accepted that there should be a substantial basis for finding that the burden has been discharged by the HCPC.

24. The Panel concluded on the basis of all the evidence it received that the Registrant knew that he was not permitted to issue prescriptions. By the time of the relevant actions, he had been a Paramedic for over 14 years, and with that experience it is inconceivable that he would not have understood that Paramedics were not entitled to issue prescriptions. Furthermore, on the assumption that the Registrant had previously had an entitlement to issue prescriptions as a result of registration with the NMC, the Panel is unable to accept that someone who had been subject to more than one regulatory regime could genuinely believe that an entitlement while registered would survive cessation of registration. That the Registrant did not believe that he had an entitlement to issue prescriptions is further demonstrated by his responses at both practices to requests about documentary proof of his entitlement. At Blackfriars he told Dr BF at an early stage of his employment that he had submitted relevant documents to H.R., but he did not do so. At Mocha Parade, Mr PM asked the Registrant to provide the documentation on a number of occasions, but he did not do so.

25. The Panel is satisfied that ordinary decent people would consider it to be dishonest to issue prescriptions in the knowledge doing so was not permitted. Particular 3 is proven.

Decision on misconduct

26. The Panel commenced its decision on the statutory ground of misconduct by considering whether the proven facts constituted breaches of the HCPC’s Standards of conduct, performance and ethics. The Panel concluded that the following standards were breached:

• Under Standard 3, “Work within the limits of your knowledge and skills - Keep within your scope of practice”:

    o 3.1, “You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.

    o 3.2, “You must refer a service users to another practitioner if the care, treatment or other services they need are beyond your scope of practice.”

• Under Standard 6, “Manage risk – Identify and minimise risk”:

     o 6.2, “You must not do anything <…> which could put the health or safety of a service user <…> at unacceptable risk.”

• Under standard 9, “Be honest and trustworthy – Personal and professional behaviour”:

    o 9.1, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

    o 9.2, “You must be honest about your experience, qualifications and skills.”

27. The Panel reminded itself that a finding of breaches of standards of behaviour required as a consequence of HCPC registration do not automatically translate into a finding of misconduct; what is required is an assessment of the seriousness of the findings.

28. When it assessed the seriousness of the findings, the Panel considered that it was relevant that the Registrant was not a newly qualified practitioner and that the deception as to his entitlement to prescribe at both practices was repeated over a period of time. Another consideration that is relevant to the issue of misconduct is the risk of harm to patients. Although neither medical practice where the prescribing occurred identified harm to patients, nevertheless undertaking an activity that is for obvious reasons restricted to those who have demonstrated their knowledge and skills to do so safely without registration inevitably created a risk of harm. The Panel concluded that the matters found to be proven constituted serious fallings short of the standards required and were of a category that fellow professionals would consider to be deplorable. The Panel was satisfied that they amounted to misconduct.

Decision on current impairment of fitness to practise

29. The Panel considered the matter by reference to both the personal and public components.

30. There is no evidence that the Registrant has expressed any acceptance of his wrongdoing or expressed any remorse. There is no acknowledgment of the potential consequences of what he did, and no evidence of remediation. In the judgement of the Panel, it follows that there is a real risk of repetition. For that reason, the Registrant’s fitness to practise remains impaired by reference to the personal component.

31. When the Panel considered the public component, it concluded that fair-minded and fully informed members of the public would be shocked to discover that prescriptions were being issued by someone not entitled to issue them. For that reason, public confidence in the Paramedic profession and the regulation of it would be diminished were no finding of impairment of fitness to practise made. Furthermore, the declaration and upholding of proper professional standards and the deterrence of straying from acceptable professional behaviour requires such a finding.

32. The finding that the Registrant’s fitness to practise is impaired by reason of misconduct requires the Panel to proceed to consider the issue of sanction.

Decision on sanction

33. After the determination explaining why the allegation is well founded was handed down, the Panel allowed the Presenting Officer time to digest the contents of it before proceeding to hear his submissions on sanction.

34. When the Presenting Officer made his submissions on sanction, he reminded the Panel of the established principles that should govern the imposition of a sanction. He also reminded the Panel of the importance of the HCPC’s Sanctions Policy and in particular reminded the Panel of the section of that document dealing with cases of dishonesty. He did not, however, urge the Panel to apply any particular sanction, instead submitting that the decision as to the appropriate sanction is one for the Panel to make.

35. The Panel approached the issue by accepting that a sanction should not be imposed to punish a registrant against whom findings have been made. Rather, any sanction imposed should be the least restrictive order consistent with the need to protect the public, to maintain a proper degree of confidence in the registered profession and to declare and uphold proper professional standards. As a finding that an allegation is well founded does not of itself require the imposition of any sanction, logically the first decision to be made is whether the finding in the particular case requires a sanction. If it does, then the available sanctions must be considered in an ascending order of gravity. As the finding in the present case is one of misconduct, the entire sanction range up to and including striking-off is available.

36. The Panel began its deliberations on sanction by, on the one hand, identifying the factors that make this a serious case, and on the other hand, identifying any factors that could be said to be in favour of the Registrant.

37. The Panel considered that prescribing medication by someone who is not authorised to do so is a very serious act that carries with it a high risk of harm to patients. The importance of someone being authorised to prescribe is underlined by the fact that both Blackfriars and Mocha made efforts to confirm that the Registrant was in fact permitted to prescribe. The dishonest unauthorised prescribing by the Registrant continued over a period of many months and at two separate medical practices. It follows that the Registrant made repeated decisions to do that which he knew he should not have done. For the reasons already explained in relation to the Panel’s decision on impairment of fitness to practise, the absence of insight results in there being a significant risk of repetition.

38. The Panel does not consider that the absence of actual harm to patients who received the Registrant’s prescriptions can be considered a mitigating factor because his actions gave rise to a real risk that they would suffer harm. However, the Panel does put into the balance in favour of the Registrant the facts that his work generally was thought to be good and that it has not been suggested that there have been other findings against him in regulatory proceedings.

39. With these findings in mind the Panel first considered whether a sanction was required. The clear conclusion of the Panel was that because of the seriousness of the case and the risk of future harm that has already been described a sanction is required. Furthermore, when the Panel turned to consider the available sanctions, it decided that a caution order would not be appropriate because the case does not meet any of the factors identified in paragraph 101 of the Sanctions Policy as being likely to result in a caution order being imposed. The issues requiring a sanction are not isolated, limited or relatively minor in nature, a risk of repetition is present, the Registrant has not shown any insight and he has not undertaken any remediation.

40. The Panel then considered whether a conditions of practice order would be appropriate. In the judgement of the Panel conditions of practice are not appropriate to address the attitudinal shortcomings demonstrated by the finding of dishonesty. Furthermore, as a result of the lack of insight and the Registrant’s non-engagement in these proceedings, even if appropriate conditions could be formulated, there could be no confidence that they would be complied with. The conclusion of the Panel was that this case does not meet the circumstances suggested in paragraph 106 of the Sanctions Policy and a conditions of practice order is not appropriate.

41. The Panel next considered a suspension order. The findings do represent serious breach of the Standards of conduct, performance and ethics, but that apart the present case does not meet the factors suggested in paragraph 121 of the Sanctions Policy. The Registrant does not have insight, there is a risk that the issues will be repeated and there is no evidence to suggest that the Registrant is likely to be willing or able to resolve or remedy his failings. For these reasons the Panel considered the sanction of last resort, namely striking off.

42. In relation to a striking off order the Panel considered paragraphs 130 and 131 of the Sanctions Policy. This is a case where the acts were serious, persistent and deliberate and involved dishonesty. In the judgement of the Panel no lesser sanction would be sufficient to protect the public or maintain a proper degree of public confidence in the Paramedic profession and regulation of it. It is a case where the Registrant lacks insight and is unwilling to resolve matters.

43. Before confirming its provisional view that the appropriate sanction in the present case is striking off, the Panel considered whether it was a proportionate response. The issue is whether it is a proportionate response in the present case given the particular circumstances of it. It was not the view of the Panel that a striking off order would be the inevitable consequence in every case of a Paramedic issuing prescriptions when not authorised to do so, even if that was done dishonestly. But in the present case the Panel was satisfied that it was a proportionate outcome because the risk of future harm requires the Registrant to be prevented from practising. In another case that might be achieved by a suspension order, but in the present case the absence of insight, remediation or willingness to resolve matters results in a suspension order not being appropriate; on the information available to the Panel the position at the end of any period of suspension would be exactly as it is at the present time.

44. The Panel has accordingly decided that the appropriate sanction is one of striking off.

ORDER: The Registrar is directed to strike the name of Eric A. Horner from the Register on the day this Order comes into effect.

Application for an interim order

1. After the Panel announced its decision on sanction, the Presenting Officer applied for an interim order to cover the period before the Striking Off Order will come into effect (that is to say, initially 28 days or the final determination of the appeal if the Registrant appeals the Panel’s decision within the initial period of 28 days).

2. To decide if the Panel should consider the merits of this application, it was necessary to decide two preliminary matters, first, whether the Registrant had been put on notice that such an issue might be considered, and secondly, whether it was appropriate to deal with the matter in his absence.

3. The Panel was satisfied that the Registrant had been informed by the notice of hearing email dated 27 October 2021 that in the event of a substantive sanction of the sort that the Panel has decided is appropriate, an interim order might be applied for. As to considering the issue in the Registrant’s absence, by the nature of the application there is a degree of urgency in deciding the matter because if an interim order is required there should be no delay in imposing it. Furthermore, as the Registrant has not engaged in the substantive issues there are no grounds for believing that he would wish to be heard on the issue of the interim order. For these reasons the Panel decided to consider the merits of the application.

4. For the reasons already explained in the determination relating to the substantive issues, the Panel has concluded that the Registrant presents a risk of harm to patients who might consult him if his ability to practice is not restricted. It follows from this that an interim order is necessary for the protection of members of the public. That same risk also means that there would be an understandable loss of public confidence in the Paramedic profession were there to be no protection. That factor requires an interim order in the wider public interest.

5. Having decided that an interim order is required, the Panel next considered whether an interim conditions of practice order would offer sufficient protection during the period while the Registrant’s appeal rights remain extant. The Panel concluded that they would not for the same reasons that it rejected substantive conditions of practice as an appropriate sanction.

6. It followed from this decision that an interim suspension order is required, and the Panel makes that order.

7. As to the length of this interim order, the Panel determined that it should be for the maximum period of 18 months. If the Registrant does not appeal the Panel’s substantive decision the interim order will simply fall away after 28 days, and therefore the maximum length of the order will not prejudice him. If, however, he does appeal the final determination of the appeal could well take 18 months from the present time, and it is appropriate that there should be the full degree of public protection until that final determination.

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Eric A Horner