Mrs Kielye L Mitchell

Preliminary Matters

Service & Proceeding in the absence of the Registrant

1. The Registrant did not attend the hearing. The Panel was satisfied that notice of the hearing was sent to the Registrant’s registered email address on 28 April 2021. A confirmation of delivery was available to the Panel. The email sent to the Registrant contained the date and time of today’s hearing. The Registrant emailed the HCPTS on 27 May 2021 to confirm that she would not be attending the hearing. She also emailed the HCPC on 27 May 2021 to confirm that she would not be attending the hearing. The Panel was satisfied that notice of today’s hearing has been properly served on the Registrant.

2. On behalf of the HCPC, Ms Sampson asked the Panel to proceed in the absence of the Registrant. On 27 May 2021, the Registrant emailed the HCPC and confirmed that she could not attend the hearing and wished it to proceed in her absence. The Registrant has provided a letter and associated documentation setting out the matters she wishes the Panel to consider. The Registrant’s previous review hearing was conducted on the papers. Ms Sampson submitted that the Registrant was clearly aware of the hearing and had voluntarily decided not to attend. No useful purpose would be served by any continuation or adjournment. Moreover, this is a mandatory review, and it is in both the Registrant’s interest, and the wider public interest, for the review hearing to take place before the order expires.

3. The Legal Assessor drew the Panel’s attention to the guidance provided in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel was advised that it is competent to proceed in the absence of a registrant. However, the decision on whether that is appropriate in any individual case is a matter of discretionary judgment for the Panel.

4. The Panel considered the advice of the Legal Assessor and the guidance provided in the relevant Practice Note. The Panel is aware that its discretion to proceed in absence is one that should be exercised with the utmost care and caution. The Panel was satisfied that all reasonable steps have been taken to serve notice of the hearing on the Registrant. The Registrant is clearly aware of the hearing. She has engaged with the HCPC and provided written material that she wishes the Panel to consider. In the emails dated 27 May 2021, sent to the HCPC and the HCPTS, the Registrant has confirmed that she is not seeking an adjournment or continuation and wishes the hearing to proceed in her absence. The Panel concluded that the Registrant has voluntarily decided not to attend. There is a public interest in the substantive order being reviewed before it expires. The Panel concluded that it is appropriate to proceed in the absence of the Registrant. The Panel accepted that the Registrant may be disadvantaged to some degree by her absence but concluded, on balance, that the wider public interest meant that the hearing should continue in the absence of the Registrant.

Background

5. The Registrant is a Paramedic registered with the HCPC. She is employed by the East of England Ambulance Service NHS Trust.

6. At the time of the events set out in the Allegation, the Registrant had worked as a Paramedic for around 16 years. The Registrant was stationed at Colchester Ambulance Station. 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 (SH) and transferred Patient A to hospital. Patient A died in the early hours of 9 March 2016.

7. 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 hearing and gave evidence. 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 the original panel held 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 Patient A to the hospital on the day, the original 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 the Registrant’s lack of initiative in documenting Patient A’s deterioration and her lack of insight into her own conduct and the effect on Patient A and her family. The original 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 original 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.

The First Substantive Review Hearing – 1 June 2020

12. A substantive review was conducted on 1 June 2020. The panel concluded that the Registrant’s fitness to practise was impaired on both the personal component and the public component.

13. The panel noted that the Registrant does not accept all 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 Allegation 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.

14. 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.

15. 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.

16. 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 and/ or insight. The panel extended the Suspension Order for a further 12 months.

The Hearing on 1 June 2021

17. Ms Sampson stated the HCPC’s position was that the Registrant’s fitness to practise remains impaired. She acknowledged that the Registrant had provided the documentation requested by the previous reviewing panel, including a reflective piece on patient advocacy. She also acknowledged the content of the testimonials provided by the Registrant in relation to her work as a senior emergency medical technician. However, Ms Sampson stated that the HCPC is concerned that the Registrant does not appear to appreciate the significant impact her actions have had on the patient, the patient’s family and public confidence in the profession. She submitted that the Registrant remains pre-occupied with a sense of injustice in relation to the regulatory proceedings. The HCPC considers that the risks identified by the previous panels remain. Ms Sampson invited the Panel to impose a further period of suspension.

18. The Registrant provided a letter (attached to an email dated 14 May 2021) and associated documentation. In the letter, the Registrant provided an update since the previous review hearing. She outlined work she has undertaken as an emergency medical technician. She provided some further reflections. In the letter, she states that she has had time to digest everything that happened and to understand why it happened. She has undertaken courses to understand what, if anything, she could have done to improve the outcome for a patient with sepsis. The documentation provided by the Registrant included details of courses undertaken by the Registrant and a reflective piece on patient advocacy (the “Patient Advocacy Statement”). The Registrant also provided an email that responded to material lodged by the HCPC which had been provided to the HCPC by Person B (widower of Patient A).

Decision

19. The Legal Assessor reminded the Panel that it was required to conduct a comprehensive assessment of the Registrant’s fitness to return to unrestricted practise. 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, if any, to impose.

20. The Legal Assessor reminded the Panel that it must determine whether the Registrant’s fitness to practise is impaired today, taking into account the Registrant’s conduct at the time of the events and any relevant factors since then, such as whether she has insight, whether the matters are remediable or have been remedied, and any likelihood of repetition. The Panel’s task is not to punish the Registrant for past acts. However, the Panel is required to take account of past acts and omissions in order to make an informed assessment as to whether the Registrant’s fitness to practise is currently impaired.

21. The Panel was advised to take into account:

• the ‘personal’ component: the current competence, behaviour, etc of the Registrant, including any evidence of insight and efforts towards remediation; and

• the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

22. The Legal Assessor reminded the Panel of the guidance provided in Yusuff v General Medical Council [2018] EWHC 13 (Admin). Findings of fact from the original substantive hearing are not to be reopened. When considering whether fitness to practise remains impaired, it is relevant for the Panel to know whether or not a registrant now admits the findings or whether they accept the findings in the sense that they do not seek to go behind them, while still maintaining a denial of the conduct underpinning the findings. However, admitting the misconduct is not a condition precedent to establishing that a registrant understands the gravity of the underlying events and is unlikely to repeat it.

23. If the Panel determined that the Registrant’s fitness to practise remained impaired, the options under Article 30 of the Health Professions Order 2001 would be open to the panel. The Legal Assessor reminded the Panel that it should consider the HCPTS Practice Note on Impairment and must always keep in mind the principles of fairness and proportionality. If relevant, it should also have regard to the HCPC’s Sanctions Policy. The Panel was reminded that any order it makes must be the least restrictive order that would suffice to protect the public or is otherwise in the public interest.

24. The Panel accepted the advice of the Legal Assessor. 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’s role is not to conduct a rehearing of the Allegation or to go behind the previous findings. In carrying out its assessment, the Panel must exercise its own independent judgement.

Impairment

25. 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.

26. The Panel proceeded on the basis that the Registrant does not need to accept the factual findings of the original panel. However, she is required to demonstrate insight into the concerns raised, appropriate remediation and to satisfy the Panel that there is a low risk of repetition.

27. The Panel is satisfied that the conduct is remediable. The Panel accepts that the Registrant has had an otherwise unblemished career as a paramedic. The events set out in the Allegation appear to be a one-off event, albeit an extremely serious one. The Registrant has clearly reflected on the incident. She has apologised to Patient A’s family. She has also provided reflective statements, including her most recent letter and the Patient Advocacy Statement. In the Patient Advocacy Statement, the Registrant states that:
“I have admitted my faults / failings throughout this process and have insured over the past 5 years that I have learnt from these. I am now a stronger person, aware of my limits and boundaries within the ambulance service and have personally insured that this incident will never happen to any of my patients in the future.

28. These documents do show a degree of insight on the part of the Registrant.

29. However, having considered all of the available material, the Panel was not satisfied that the Registrant has developed sufficient insight into the events underlying the Allegation. Moreover, the Panel was not satisfied that the Registrant has adequately addressed the concerns raised by the previous panels.

30. The Registrant still has a strong sense of injustice in relation to the underlying events and the regulatory proceedings. In her most recent letter, the Registrant states that:
“I feel I was left to take the failings of the NHS as a whole on my shoulders, I should have been supported in getting my patient seen. Unfortunately, it is in the news all the time regarding long delays at hospitals and very sick patients waiting in the backs of ambulances with Paramedics. I would like to think that this will change in the future and Paramedics will be more supported.”

31. In the Patient Advocacy Statement, the Registrant states that she is not, and has not, sought to blame the hospital. However, the Registrant goes on to state that:
“Myself and my colleague were the only ones within the hearing who experienced what happened that day from start to finish. In the HCPC hearing it is very easy to look at things black and white, unfortunately in emergency care, nothing is ever black and white, nothing is ever textbook. I did what I thought was my best that day in the circumstances presented to me and have continually reflected over how we could have improved the situation right from the patient’s home address through to the final handover at hospital. By going through this process, I have become a much stronger person, more confident and knowledgeable in my profession.”

32. The Registrant continues to focus on the impact that the underlying events have had on her. The Registrant does not address the impact that the facts found proved would have had on Patient A or on Patient A’s family. She does not address the impact the events found proved would have had on public confidence in the profession.

33. In these circumstances, the Panel shared the concerns expressed by the previous panels. The Registrant has not demonstrated sufficient insight into the gravity of the Allegation that has been found proved. Moreover, she has not demonstrated sufficient remediation such that the Panel could confidently conclude that there is a low risk of repetition. The Panel concluded that the Registrant’s fitness to practise remains impaired upon consideration of the personal component.

34. The Tribunal considered the public interest requirements that arise in this case and the need to declare and uphold proper professional standards and to maintain public confidence in the profession. Paramedics occupy a position of privilege. The Panel considers that there would be concern on the part of members of the public at the prospect of the Registrant returning to work wholly unrestricted.  This is because she still presents a risk of repeating behaviour that would result in an inadequate level of care being offered to patients.

Sanction

35. The Panel considered the HCPC’s 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. 


36. In this case it is not appropriate to make no order because of the serious nature of the failings identified by the original panel and the risk of repetition identified above.

37. A Caution Order is not appropriate because the Registrant has not provided significant evidence of remedial action being taken such that the risks identified by the previous panels have been reduced.

38. The Panel considered a Conditions of Practice Order. A Conditions of Practice Order is appropriate where a Panel is confident that a Registrant will adhere to the conditions, is genuinely committed to resolving the relevant issues and can be trusted to make a determined effort to do so. The Registrant had not yet demonstrated sufficient evidence of remediation or insight into the gravity of her actions as found proved by the original panel. The Panel could not formulate any Conditions of Practice that would provide sufficient public protection, maintain confidence in the profession and which would be workable and enforceable. Accordingly, the Panel concluded that such an order is not appropriate or proportionate.

39. A Suspension Order may be appropriate where the allegation is serious, and cannot be addressed by any of the lower sanctions, but there is a potential for the Registrant to remedy their failings. The Panel considers that the Allegation is of a serious nature. The Panel considers that the Registrant has developed some insight. However, there is no evidence that the Registrant has developed sufficient insight into the serious nature of the failings identified by the original Panel. The Registrant has now been suspended for two years. She has not utilised the time to adequately address the concerns raised by the original panel. In these circumstances, the Panel considered whether a further period of suspension is appropriate and proportionate or whether a Striking-Off Order is now appropriate.

40. The Panel notes that the Registrant continues to engage with the regulatory proceedings. While sufficient insight and remediation has not been demonstrated, she has provided the documentation requested by the previous panel. A degree of insight has been demonstrated albeit sufficient insight has not yet been demonstrated. Having considered these factors, and the positive testimonials provided by the Registrant in relation to her work both as a paramedic and a senior emergency medical technician, the Panel concluded that it would be premature and disproportionate to impose a Striking Off Order at this stage given that the Panel still considers that it is possible for the Registrant to gain further insight and demonstrate adequate remediation. Accordingly, the Panel concluded that a further period of suspension is necessary and proportionate in the particular circumstances of the present case.

41. The Panel considers that a further period of 12 months is appropriate to allow the Registrant to demonstrate further insight and remediation. However, the Registrant has the option of applying for an early review if she is able to demonstrate further insight and remediation at an earlier date.

42. A Striking-Off Order is a remedy of last resort. If the Registrant is not able to demonstrate further insight and remediation there is a significant risk that a future panel may impose a Striking-Off Order when the Registrant’s case is next reviewed.

43. A future panel may be assisted if the Registrant addresses in writing:

• the impact she considers her actions, as found proved by the original panel, had on Patient A and Patient A’s family.

• the impact she considers the facts found proved by the original panel have had on the paramedic profession and public confidence in the paramedic profession in particular.

44. In addition, the Registrant may also wish to consider undertaking a    further course on Sepsis and provide a certificate of attendance, coupled with an outline of what she would do differently if she was faced with a similar situation in the future.

45. The Registrant should consider attending the next review hearing in order that she can, for example, amplify the documentation available to any future panel.

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 2021.

History of Hearings for Mrs Kielye L Mitchell