Mr Michael C Penney

Preliminary Matters

Service

1. The Panel has seen an unredacted copy of a letter dated 26 April 2021 from the HCPTS which was sent by email to the Registrant at his registered email address. This letter set out the date and time of this hearing and that the hearing would be conducted remotely via video conference. The letter was copied to the Registrant’s legal representative as listed on the HCPC’s records and emailed to her on the same date. The Panel has seen documentary confirmation that both emails were delivered on 26 April 2021 and that the email to the Registrant had been read on that date. The Panel is satisfied that, in accordance with the Health and Care Professions Council (Coronavirus) (Amendment) Rules Order of Council 2021, which came into force on 4 March 2021, there has been proper service in this case.

Proceeding in the absence of the Registrant

2. Ms Bwoma applied for the hearing to proceed in the absence of the Registrant. Ms Bwoma referred the Panel to a number of documents:

• an email dated 12 May 2021, sent by the HCPC to the Registrant, in which the Registrant was asked to confirm whether he was going to attend, and whether he was to be represented at the hearing;
• the Registrant’s email to the HCPC dated 20 May 2021;
• a note of a telephone call which Ms Bwoma had with the Registrant, her email to the Registrant setting out what had been discussed in that call, and the Registrant’s email response, all of which were dated 25 May 2021.

3. Ms Bwoma submitted that these documents showed that the Registrant had received notice of today’s hearing, that he did not intend to attend or be represented, and that he had not sought an adjournment. In these circumstances, Ms Bwoma submitted that the Registrant had voluntarily waived his right to attend and be represented at the hearing. She also submitted that it was unlikely that the Registrant would attend at any later date if the hearing were to be adjourned. Ms Bwoma further submitted that this is a mandatory review hearing which should be conducted before the current Order expires on 27 June 2021.

4. In reaching its decision, the Panel has received and accepted legal advice. It has also taken note of the matters set out in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”.

5. The Panel is satisfied that all reasonable steps have been taken to notify the Registrant of this hearing. The Notice of Hearing sent to the Registrant by email makes clear that the hearing will be conducted remotely via videoconference, indicates that technical assistance is available to access the hearing, and informs him that the hearing may proceed in his absence. The Panel notes the Registrant’s email dated 20 May 2021, in which he states:

“I will not be attending and won’t be represented at the meeting scheduled for Wednesday 26 May 2021.

As I have no plans or intentions of working as a paramedic again or being a member of HCPC either now or in the future I would ask the panel to proceed with this hearing in my absence and ask them to make a final decision and bring this process to a close as quickly as possible”.

6. The Panel is satisfied that the Registrant wishes this hearing to proceed today in his absence and that he has voluntarily waived his right to attend this review hearing and be represented at it. He has not made an application for an adjournment and, given that the Registrant has given a clear indication in his email dated 25 May 2021 that he wishes to be removed from the HCPC Register, the Panel considers that it is unlikely he would attend on a later date.

7. The Panel considers that as this is a mandatory review hearing there is a public interest in it proceeding as scheduled. The Panel will not hold the Registrant’s absence against him. However, it considers that the disadvantages to the Registrant in proceeding to review the Order today before it expires are outweighed by the public interest in ensuring that the Order does not expire while there may remain public protection concerns and/or wider public interest considerations. The Panel is satisfied that it is in the interests of justice for this review hearing to proceed in the absence of the Registrant.

Conducting the proceedings in private

8. Ms Bwoma applied for those parts of the hearing where matters relating to the Registrant’s health and private life are raised to be conducted in private.

9. In reaching its decision, the Panel has had in mind the HCPTS Practice Note on “Conducting Hearings in Private”. It has also received and accepted legal advice. The Panel notes that previous review hearings have been conducted partly in private in order to protect the private life of the Registrant. The Panel is satisfied that to protect the Registrant’s private life, it is appropriate that matters relating to his health and private life are heard in private. The remainder of the hearing will be conducted in open session.

Background

10. The Registrant is a registered Paramedic and was employed at the relevant time by the Northern Ireland Ambulance Service (NIAS). On 5 December 2015, the Registrant was on duty on a day shift as a Paramedic in a Rapid Response Vehicle (RRV) in Belfast.

11. Whilst on duty, the Registrant entered a Boots store in Belfast (Boots) and left the premises without paying for goods with a total approximate value of £160. A person matching the Registrant’s description, a tall male with a shaven head and wearing a 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.

12. 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.

13. 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. The Registrant’s explanation of the events was that he had no recollection of taking the items and that this was due to his health condition. The Registrant advised that he had been suffering from a health condition for some time.

14. 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. The panel considered that the reviewing panel would be assisted by the following:

• References/testimonials from colleagues/other health care professionals that addressed the Registrant’s honesty and integrity;
• Professional development relevant to insight, honesty, and integrity;
• Evidence of insight into the impact of the incident on the public and the profession, and reflection on his actions and behaviour;
• Information in respect of his current employment situation.

First substantive review hearing – 26 November 2019

15. The Suspension Order was reviewed on 28 November 2019. The Registrant did not attend the hearing but did provide written submissions, including a reflective piece and a testimonial. The panel concluded that the Registrant continued to show insufficient insight and remediation and that his fitness to practise remained impaired, and it imposed a further period of suspension for six months. The panel also suggested that the next review panel might be assisted by:

• The attendance of the Registrant at the review hearing;
• Evidence that the Registrant has completed a face-to-face course which encompassed honesty, ethics and professionalism;
• Evidence that the Registrant had worked with a personal mentor/coach with whom he had established and maintained a developmental log/record;
• Evidence that the Registrant had specifically addressed the relevant Standards, in particular Standard 9 of the HCPC’s Standards of Conduct, Performance and Ethics.

Second substantive review hearing – 28 May 2020

16. The Suspension Order was reviewed on 28 May 2020 on the papers without the attendance of either the HCPC or the Registrant. The HCPC provided a skeleton argument in which it was submitted that the Registrant’s fitness to practise remained impaired and sought an extension of the Suspension Order for a further 12 months.

17. The panel had the benefit of a letter from the Registrant’s GP dated 6 May 2020, as well as some correspondence with the Registrant’s solicitor, including a written agreement to the extension of the Suspension Order by 12 months.

18. In its determination, the panel referred to two other matters before the HCPC in respect of the Registrant, one of which was said to be irrelevant to its review of the Order. In relation to the other matter, whilst this was potentially relevant, there was very little information before the panel. The panel accepted the advice of the Legal Assessor and decided to disregard both these other matters as irrelevant to their review that day.

19. The panel noted that the Registrant had not provided the information recommended by the last reviewing panel in terms of useful evidence upon which he could rely. The panel noted evidence of the Registrant’s health concerns but concluded that very little had changed since the last review hearing to demonstrate a change either in the level of the Registrant’s insight or in terms of evidence of his remediation of the concerns found.

20. The panel decided that as the Registrant had not yet achieved sufficient insight or remediation, there remained a real risk of repetition of his behaviour which was the subject of the Police Caution. The panel found that the Registrant remained impaired on the personal component.

21. The panel also found that the Registrant remained impaired on the public component, deciding 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 in view of the lack of evidence of sufficient remediation and insight and the risk of repetition of the Registrant’s behaviour.

22. The panel considered the available sanctions, starting with the least restrictive, and concluded that the appropriate and proportionate sanction was to extend the Suspension Order for a further period of 12 months. The panel set a 12-month period to take account of: (i) the Registrant’s ongoing health concerns; (ii) the seriousness of the dishonesty involved, and; (iii) the impact this has on public confidence and proper standards in the profession, which require to be upheld and maintained.

Decision

23. This Panel has reviewed all the documents provided by HCPC, which mainly comprises of the determinations of the substantive hearing panel and the two previous reviewing panels. The new information before the Panel is that the Registrant resigned from NIAS on 19 March 2021 and that he has indicated he wishes to be “removed” from the Register.

24. The Panel is also aware that the two other matters referred to in the previous reviewing panel’s determination remain outstanding; one is at substantive hearing stage while the other is still being investigated. As the Panel has no further information about these matters, it has disregarded them in relation to its decision on impairment. The Panel has, however, had the two outstanding matters in mind when considering sanction.

25. The Panel has also taken account of the HCPTS Practice Notes “Review of Article 30 Sanction Orders” and “Fitness to Practise Impairment” and has considered the submissions of Ms Bwoma and the written submissions set out in the Registrant’s emails of 20 and 25 May 2021. The Panel has received and accepted legal advice.

26. Ms Bwoma submitted that the Registrant’s fitness to practise remains impaired under both the personal and the public components, as he had not provided any evidence of insight or remediation despite being reminded of what the Panel might be assisted by in her email to the Registrant on 12 May 2021. She submitted that nothing had changed since the previous review heard in May 2020 and the Registrant has not yet addressed the concerns highlighted by previous panels.

27. Ms Bwoma submitted that the proportionate and appropriate sanction is to extend the Suspension Order for a further period. Ms Bwoma accepted that the Registrant’s failure to provide evidence of insight and remediation might indicate that the only appropriate order is a Striking Off Order and explained that, were the Panel to take that course, the two outstanding matters would fall away and those cases would be closed. She submitted that the Panel should extend the current Order so that the HCPC could consider whether it would be appropriate to dispose of this case and the two outstanding matters by way of a Voluntary Removal Agreement.

28. The Registrant made his wishes very clear in his email of 25 May 2021, when he stated, “To the panel, PLEASE REMOVE ME FROM THE REGISTER”.

Personal component

29. The Panel has conducted a comprehensive review of the material before it to assess the Registrant’s current fitness to practise. The Panel takes the view that the Police Caution accepted by the Registrant for an offence of dishonesty is capable of being remedied. The Panel accepts that it is more difficult for a registrant to remedy dishonest conduct, but that it is by no means impossible to do so.

30. The Panel notes that the Registrant has been under a Suspension Order for a period of almost two years, during which time he has not shown evidence that he has developed sufficient insight into the conduct which led to his accepting a Police Caution for an incident of theft or provided evidence that he has taken steps to remedy his conduct. The Panel is satisfied that there remains a risk of repetition of the conduct which led to the Police Caution. The Panel accepts that the Registrant’s lack of engagement in this regard may be coloured by his current position (as outlined in his emails of 20 and 25 May 2021), which is that he no longer intends to work as a Paramedic in the future and to that end has resigned from NIAS. The Panel has concluded that there has been no material change in circumstances since the last review hearing.

31. The Panel also notes that at the substantive hearing, the Registrant sought to explain his conduct in that he had no recollection of the theft at all due to a health condition. The Panel considers that this explanation is of concern as there is no evidence that, if such a health condition existed, the Registrant has sought to take steps to manage it. In these circumstances, the Panel considers that the Registrant may pose a risk to patients in his role as a Paramedic, even though the incident leading to the Police Caution did not involve patients.

32. In these circumstances, the Panel has concluded that the Registrant’s current fitness to practise remains impaired on personal component considerations.

Public component

33. The Panel next considered the public component. The Panel is satisfied that the need to uphold proper standards and maintain confidence in the Paramedic profession would be undermined if a finding of impairment were not made in this case. The Panel is satisfied that a fair minded and well-informed member of the public would be concerned if there was no finding of impairment in this case where the Registrant has not demonstrated proper insight, remorse, or taken any steps to remedy the conduct which led to his caution.

34. The Panel therefore concluded on both the personal and public components that the Registrant’s fitness to practise remains impaired.

Sanction

35.  The Panel first considered taking no action or mediation but has decided that these would not be appropriate in view of the lack of insight or remediation, and the risks that remain to the public interest. The Panel has also concluded that a Caution Order would be inappropriate and insufficient to meet the public interest concerns in that it would not place any restriction on the Registrant’s practice.

36. The Panel is satisfied that a Conditions of Practice Order would be inappropriate in this case where the Registrant has resigned from his role as a Paramedic for NIAS and has clearly indicated that he does not intend to continue in practice as a Paramedic in the future. The Panel has decided that it could not formulate appropriate and workable conditions of practice in this case, and there is no indication, one way or another, that the Registrant would comply with conditions on his practice.

37. The Panel next considered extending the current Suspension Order. It considered with care Ms Bwoma’s submission that the current Suspension Order should be extended to enable the HCPC to consider a Voluntary Removal Agreement in this case and the resolution of the two other matters which the Registrant faces. The Panel bore in mind that it could only make a decision based on the evidence which had been presented by the HCPC in relation to this current Order.

38. The Panel has concluded that it is now almost two years since the original Suspension Order was imposed and there has been no evidence that the Registrant is gaining insight, showing proper remorse, or that he has taken any steps at all to remedy his conduct. There is no evidence that extending the current Order would result in the Registrant engaging with the process and providing the sort of evidence which is required to show that he has developed appropriate insight and that his conduct is unlikely to be repeated because he has taken appropriate steps to remedy it.

39. The Panel has therefore concluded that the appropriate and proportionate sanction in this case is to make a Striking Off Order. The Panel has had in mind the HCPC Sanctions Policy, which states at paragraph 130 that such an order is a “sanction of last resort for serious, persistent, deliberate or reckless acts involving …dishonesty”. The Panel has also had in mind paragraph 131 of the Sanctions Policy, which states:

“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession and public confidence in the regulatory process. In particular where the registrant:

• Lacks insight

…

• Is unwilling to resolve matters.”

40. The Panel is satisfied that the Registrant lacks insight and appears to be unwilling to resolve matters by taking steps to remedy his conduct.

41. In reaching this conclusion, the Panel has had in mind that the two other matters, about which it has very limited information, will fall away. However, it considers that the time has now come in relation to the matter before it to make a Striking Off Order.

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

The Registrar is directed to strike the name of Mr Michael C Penney from the Register on the expiry of the existing Order.

No notes available

History of Hearings for Mr Michael C Penney