Mr Andrew Daffey

Preliminary Matters:

Service

1. There was before the Panel a certificate that demonstrated that the Notice of Hearing had been sent on 02 February 2021 to the email address shown for the Registrant on the HCPC Register. The Panel was satisfied that Notice had been properly served in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (“the Rules”).

Proceeding in absence

2. Ms Reid, on behalf of the HCPC, applied to proceed in the absence of the Registrant. She drew the Panel’s attention to the communication from the Registrant via his representative, Mr James Stewart of Messrs Brabners Solicitors, on 30 April 2021, which stated “Mr Daffey will not be attending the final hearing set down for 4 May 2021, nor will he be represented at that hearing. Mr Daffey understands that the hearing will proceed in his absence and he is content that it does so.”

3. The Panel accepted the advice of the Legal Assessor.

4. The Panel therefore concluded that the Registrant had decided to voluntarily absent himself from the hearing and had confirmed that he was content for it to take place in his absence. He had not requested an adjournment and there was nothing to suggest that he would attend if the hearing were to adjourn. In those circumstances the Panel concluded that no injustice to the Registrant would arise and it determined to proceed in his absence.

Amendment of the Allegation:

5. Ms Reid applied for the Panel to make amendments to the Allegation. The Registrant had been notified by letter dated 15 September 2020 that the HCPC would be applying for amendments to the Allegation. She said that the proposed amendments were by way of correcting the name of the Court of Conviction in Particular 1, a change to the date range in Particular 3 and the deletion of Particular 4. Her submission was that no injustice would result to the Registrant nor would the deletion of Particular 4 amount to under prosecution as the matter deleted was covered by the conviction allegation.

6. The Panel was satisfied that the proposed amendments did not affect the substance of the Allegation nor did it give rise to any injustice. It therefore allowed the application and amended the Allegation accordingly.

Background:

7. The Registrant is a HCPC registered Paramedic. He joined the South East Coast Ambulance Service NHS Foundation Trust (the Trust) as a qualified paramedic in August 2014.

8. On 14 September 2018 a paramedic, PW, attended a call out to a patient, Patient F. Patient F had been attended earlier that day, at approximately 00:44, by the Registrant as a solo responder together with a Fire Service Responder. PW raised concerns that the Registrant had not conveyed the patient to hospital despite an ECG which appeared to show concerns. Further to that the Registrant had recorded that he had administered 10mg of Morphine to Patient F intra-muscularly but had not then conveyed the patient to hospital. Patient F informed PW that he had not been given an injection by the Registrant. PW submitted a DATIX incident report in respect of this incident.

9. LS, Operations Manager, undertook an investigation on behalf of the Trust. This included a review of the Patient Clinical Records (PCR) submitted by the Registrant to the local hospital and to the Trust together with his controlled drugs records. LS also reviewed CCTV footage of a driving incident involving the Registrant.

10. During the investigation it was identified that, between July 2018 and September 2018, the Registrant used a greater quantity of morphine than any other Trust clinician. Further, when morphine had been administered no witness had been present. The Registrant had used the emergency barcode to withdraw and return morphine to the Trust. The investigation identified numerous inconsistencies and concerns in relation to the Registrant’s PCRs. For example, information recorded by the Registrant on PCRs submitted to the receiving hospital in respect of the amount of morphine administered to a patient differed from that recorded on the PCR submitted to the Trust. During an investigatory interview the Registrant admitted to stealing morphine from the Trust for his personal use and using this whilst on duty.

11. The concerns in respect of the Registrant were referred by the Trust to the police. The Registrant was subsequently convicted of fraud and theft from his employer and careless driving. He was sentenced to 8 months imprisonment suspended for 2 years, a fine and 6 penalty points.

Witnesses and evidence

12. There was before the Panel a bundle of documents prepared on behalf of the HCPC, containing a Certificate of Conviction in regard to Particulars 1 and 2, witness statements and exhibits including the report of the Trust’s investigation. There was also before the Panel a bundle of documents prepared on behalf of the Registrant containing his responses to the Allegation.

13. One witness was called on behalf of the HCPC - LS, Operations Manager / Investigating Officer at the Trust. There was also before the Panel, a written statement from TB – Operations Manager at the Trust. However, he was not called to give evidence.

Submissions

14. Ms Reid’s submission was that Particulars 1 and 2, the convictions, could be proved by the Certificate of Convictions.

15. In regard to Particular 3, use of morphine, Ms Reid relied on the evidence of LS which indicated deficiencies in the quantity of morphine administered to patients compared to that recorded by the Registrant on the Patient Care Record (PCR) and as described by Patient F, who said that no injection of any sort had been administered. Further she referred to written admissions by the Registrant that he had self-administered morphine on the date of the careless driving offence, which occurred whilst he was on duty, driving a solo response vehicle.

16. In regard to Particular 4, Ms Reid’s submission was that unauthorised use of the Trust’s morphine amounted to dishonesty. Again, she referred to the Registrant’s admissions.

17. The Registrant in his written submissions included a personal statement in which he admitted the convictions and that he had self-administered morphine taken from the Trust and that by doing so he had acted dishonestly.

Decision on Facts:

18. In reaching its decision on the facts the Panel considered all the evidence before it, both oral and documentary, together with the submissions of Ms Reid and the representations made by the Registrant. It accepted the advice of the Legal Assessor.

19. The Panel first considered the evidence of LS. It concluded that he was a consistent and reliable witness who had carried out a thorough investigation. LS was was able to support his evidence with appropriate documentation and CCTV footage.

Particulars 1 and 2 – Found Proved

20. The evidence in regard to these Particulars was the Certificate of Convictions dated 25 October 2019. The Panel was satisfied that this was a true certificate. The Panel had regard also to the Registrant’s written admissions that he had indeed been convicted of these offences. Therefore, the Panel found these Particulars proved.

Particular 3 – Found Proved

21. The evidence in regard to this Particular was that of LS who described the admissions made by the Registrant in the course of investigatory interviews in September 2019. LS referred also to the Trust’s review of the Omnicell records and the PCR’s completed by the Registrant. Omnicell is a system used by Paramedics at the Trust to withdraw and return their controlled drugs. These included morphine, a controlled drug. This review indicated that the Registrant’s use of morphine was unusually high and exceeded that of any other Trust clinician.

22. The Panel also had regard to the Registrant’s admissions in his written representations.

23. The Panel therefore found this Particular proved.

Particular 4 – Found Proved

24. The Panel was satisfied from the Registrant’s admissions, that he knew that by unauthorised use of the Trust’s morphine he was acting dishonestly and was in breach of the trust placed in him. The Panel also had regard to the findings of the Trust’s review that the Registrant’s entries in the Omnicell system and the PCR records suggested that he was using an electronic code (the emergency log on barcode) to bypass the requirement of a witness to confirm the booking out and returning of controlled drugs. The Panel determined that the Registrant’s actions would be considered dishonest by the standards of ordinary decent people.

25. The Panel therefore found this Particular proved.

Decision on Grounds:

26. The Panel next considered whether the facts found proved amounted to the statutory grounds of conviction and/or misconduct. In doing so it had regard to the submissions of Ms Reid and the Registrant’s representations. It accepted the advice of the Legal Assessor.

27. In regard to Particulars 1 and 2, the Panel found the statutory ground of conviction to be established by reason of the Certificate of Convictions.

28. In regard to Particulars 3 and 4, the Registrant’s actions amounted to breaches of trust on several occasions over a significant period and involved dishonesty. By his actions, the Registrant potentially put patients and road users at risk. Conduct of this nature fell far short of the standards expected of a registered Paramedic. The Panel was therefore satisfied that the Registrant’s actions amounted to the statutory ground of misconduct.

29. In so concluding, the Panel found that the Registrant had breached the following standards of the HCPC Standards of Conduct, Performance and Ethics (January 2016):

• 6 - Manage risk

Identify and minimise risk

6.1 - You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

• 9 - Be honest and trustworthy

Personal and professional behaviour

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

• 10. Keep records of your work

Keep accurate records

10.1 - You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

Decision on Impairment:

30. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by reason of his convictions and/or misconduct. Although the Registrant has admitted that his practise is impaired the Panel is aware that it is a decision of the Panel and the Panel alone.

31. In reaching its decision the Panel took into account its findings of fact together with the submissions of Ms Reid and the written observations made by the Registrant. It also had regard to the HCPTS Practise Note on Impairment and accepted the advice of the Legal Assessor.

32. The Registrant’s actions gave rise to serious criminal convictions which resulted in a sentence of imprisonment albeit suspended.

33. The Registrant has displayed a degree of insight and remorse for what he has done. Indeed, it appears that his contact with the probation service has indicated this to be the case. Convictions and misconduct of the nature found proved are however, difficult to remedy. Furthermore, the Registrant was apparently a regular consumer of morphine and there is no medical indication of his current level of use or prognosis.

34. The Registrant’s misconduct, as the Panel has found, gave rise to potential risk of harm to patients. Despite the degree of insight and remorse displayed, the Panel cannot be satisfied that the misconduct found proved would not be repeated. In these circumstances, in regard to the personal component the Panel has determined that the Registrant’s fitness to practise is currently impaired.

35. Furthermore, the Panel has determined that a finding of current impairment is also required in the wider public interest. In the light of the very serious nature of the matters giving rise to the convictions and to the misconduct found proved, occurring as they did in the course of his professional duty, public confidence in the profession and in the HCPC as regulator, would be undermined if a finding of impairment were not made.

36. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

Decision on Sanction:

37. In reaching its decision the Panel considered all the information before it, together with the submissions from Ms Reid. It had regard to the HCPC Sanctions Policy 2019 (the Policy). It accepted the advice of the Legal Assessor.

38. Ms Reid made no submissions in regard to particular sanctions. She referred the Panel to the Policy and emphasised that the purpose of a sanction is not to punish a Registrant but rather to protect the public.

39. The Panel found these to be the aggravating factors:

• The serious nature of the offences, as marked by the convictions and the custodial sentence of 8 months, albeit suspended for 2 years;

• This was a serious breach of trust involving dishonesty, theft from and fraud upon the Registrant’s employers;

• This dishonesty was repeated and occurred over a significant period;

• There were deliberate attempts by the Registrant to hide his dishonest actions from colleagues and from his employers;

• The Registrant used the stolen morphine by self-administering at home and whilst on duty;

• By using morphine and falsifying patient records there was a potential risk of harm to patients;

• By using morphine there was a further risk to patients and to the public whilst driving Trust vehicles;

• By causing damage to a Trust vehicle, by careless driving, the Trust and patients were denied access to the vehicle.

40. The Panel found these to be the mitigating factors:

• The Registrant made early admissions during the Trust investigation;

• The Registrant entered early pleas of guilty to the criminal offences;

• The Registrant has shown a degree of insight and remorse and has cooperated well with the Probation Service;

• The Registrant is of good character in that there have been no previous findings against him by his regulator.

41. The Panel first considered whether to take no action but the serious nature of the criminal convictions and the misconduct demands a sanction.

42. The Panel then considered Mediation or a Caution Order. However, neither would be sufficient to protect the public or to address the public interest concerns.

43. The Panel next considered a Conditions of Practice Order but there are no conditions which would be workable, appropriate or sufficient to protect the public or to address public interest concerns in the light of the serious nature of the matter found proved.

44. The Panel then considered a Suspension Order. Although the Registrant has demonstrated a degree of insight, the Panel, as it has found, cannot be satisfied that misconduct of the nature found proved and the underlying matters which gave rise to the convictions are unlikely to be repeated. Furthermore, these matters are difficult to remedy. Moreover, such a sanction would be insufficient to address the serious nature of the matters found proved.

45. The Panel therefore considered a Striking Off Order. It is aware that as indicated in the Policy, this is a sanction of last resort for serious, persistent and deliberate acts including those involving breach of trust, serious dishonesty or criminal convictions.

46. The Panel has concluded that a Striking Off Order is the only sanction which would be sufficient to protect the public and to address public interest concerns. Also, any lesser sanction would undermine confidence in the profession and in the regulatory process.

47. In these circumstances, the Panel concluded that the only sufficient and appropriate sanction is that of a Striking Off Order.

That the Registrar is directed to strike the name of Mr Andrew Daffey from the Register on the date this order comes into effect.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order Application:

Proceeding with the Application in the Registrant’s absence

1. Ms Reid applied for an Interim Suspension Order on the grounds of protection of the public and the public interest, for the maximum period of 18 months. This is to cover the 28 day appeal period and the time that may required to conclude any appeal. She submitted that the Panel should proceed with this application despite the absence of the Registrant.

2. The Panel decided that it was appropriate to consider the application in the Registrant’s absence because he had been informed in the Notice of Hearing that such an application might be made. Furthermore, there are no additional factors which would justify deviating from the Panel’s decision at the outset of this hearing, to proceed in the Registrant’s absence. In these circumstances, the Panel was satisfied that the Registrant had chosen not to participate, and that no useful purpose would be served by adjourning the application. Moreover, a substantive order has been imposed and there is public interest in ensuring that an interim order application is considered with due expedition. It therefore decided to proceed with the application in the absence of the Registrant.

Decision:

3. In reaching its decision the Panel considered all the information before it together with its findings on impairment and the submissions by Ms Reid. It also took into account the HCPTS Practice Note ‘Interim Orders’ and the relevant paragraphs of the Sanctions Policy. It accepted the advice of the Legal Assessor.

4. The Panel is satisfied that as it has found the Registrant’s fitness practise to be impaired and that there is a risk of repetition an interim order is necessary for the protection of the public and is otherwise in the public interest. Right thinking members of the public would be concerned if the Registrant were allowed to practise unrestricted until such an order comes into effect.

5. The Panel did consider an Interim Conditions of Practice Order but was satisfied that during the appeal period there were no workable or appropriate conditions that would be sufficient to protect the public or to address the public interest. Although the Registrant will be unable to practise during the currency of this order his interests are outweighed by those of the public. The Panel therefore makes an Interim Suspension Order for 18 months to cover any appeal period.

Interim Suspension 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 Mr Andrew Daffey