Mrs Emily C Reacher

Preliminary Matters

No conflict of interest
1. The Chair disclosed in the interests of openness that his wife had been the Chair of the Panel during the substantive review proceedings which concluded on 26th August 2020. The Chair confirmed that he had not discussed the detail of the case with his wife and did not perceive a conflict of interest.

2. The Legal Assessor gave advice as to the test for bias set out in the case of Magill v Porter (2001) UKHL 67. Ms Bernard-Stevenson was able to take further instructions from the HCPC and obtain clarification.

3. It was established that there was no conflict of interest or real possibility of bias, either actual bias or from the perspective of a fair-minded and informed observer. The HCPC Conflict of Interest Policy would not prohibit the same Chair from sitting on a subsequent Panel. Accordingly, the hearing was able to proceed.

Application to proceed in private

4. Ms Jamila Bernard-Stevenson applied for the entirety of the hearing to be heard in private, on the basis that the Panel was sitting as a Panel of the Health Committee and that all matters essentially concerned the Registrant’s health.

5. The Panel heard and accepted the advice of the Legal Assessor. It had regard to the HCPC Practice Note on ‘Conducting Hearings in Private.’ The Panel was of the view that the case exclusively related to matters concerning the Registrant’s health, and as such it was not appropriate for such matters to be aired in public. This was in order to protect the Registrant’s privacy. The Panel was satisfied that it was justified in hearing the entirety of the case in private, in accordance with Rule 10(1)(a) of the Health Committee (Procedure) Rules 2003.

Service

6. The Panel was provided with a signed service certificate as evidence that the Notice of Hearing had been emailed to the Registrant on 27 October 2022.

7. The Panel was provided with a signed Proof of Registration document dated 27 October 2022 confirming that the email address the Notice of Hearing had been sent to was the address that the Registrant had provided on the HCPC records.

8. The HCPTS had sent follow up emails to the Registrant on 16 November 2022 and 23 November 2022. The email sent on 16 November 2022 contained the link to the remote hearing.

9. Accordingly, the Panel found that the Registrant had been served with the notice of hearing in accordance with Rule 13 of the HCPC Consolidated Fitness to Practise Rules.

Proceeding in Absence

10. Ms Bernard-Stevenson applied for the hearing to proceed in the absence of the Registrant. She indicated that the Registrant had not been in communication with the HCPC for some time. The Registrant had not engaged at many points throughout the proceedings. It was unlikely that the Registrant would attend if the hearing was adjourned. Ms Bernard-Stevenson acknowledged the extent of the disadvantage to the Registrant as she faced the possibility of being removed from the Register and would not be present to give an update. Ms Bernard-Stevenson referred the Panel to the HCPC Practice note ‘Proceeding in the Absence of the Registrant.’

11. The Panel heard and accepted advice from the Legal Assessor. The Legal Assessor referred the Panel to Rule 9(1) of the Health and Care Professions Council (registrations and Fees) Rules (2003) and to the cases of Jatta v NMC (2009) EWCA Civ 824, GMC v Visvardis (2004) EWCA Civ 162, R v Jones (Anthony Williams) HL 20 February 2002 and GMC v Adeogba (2016) EWCA Civ 162. The case of Adeogba specifically states that there is a burden on all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations against them. That is part of the responsibility to which they sign up when being admitted to the profession. At paragraph 20 in this case, the Judge stated, ‘the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance.’

12. The Panel retired to consider the decision whether to proceed in absence. It was satisfied that the Registrant had been served with the notice of hearing and had been sent follow up emails from the HCPC. It was conscious of the obligation on the Registrant to communicate with her regulator and update them with her contact details. The Panel was mindful of the Practice Note and that this was a mandatory review. It was satisfied as far as it could be that the Registrant was aware of the proceedings.

13. The Panel found on the balance of probabilities that the Registrant had voluntarily absented herself. She had not been in contact with the HCPC for over two years. There had been a substantive hearing and two previous review hearings, and the Registrant had not attended any of them. The Panel balanced the disadvantage to the Registrant in proceeding in her absence, but found nothing to suggest that, if the hearing were to be adjourned, this would result in the Registrant’s attendance in the future. The Panel found that the Registrant herself had not sought an adjournment and that in balancing the issues the public interest meant that it needed to proceed expeditiously with this mandatory review. The extent of the disadvantage to the Registrant was outweighed by the public interest in proceeding.

14. Accordingly, the Panel determined to hear the case in the Registrant’s absence.

Background

15. The Panel took account of the background of this matter.

16. The Registrant is a qualified paramedic. In October 2017, she was employed as an Operational Paramedic for the South Western Ambulance Service NHS Foundation Trust. For the first 6 months of her employment, she was on probation. From January 2018, the Registrant went on long-term sick leave.

17. During an Occupational Health Assessment on 12 February 2018, the Registrant explained that she had been exposed to significant personal stress in relation to her family circumstances, which had been affecting her for a few years.

18. On 28 November 2018, an ambulance crew from South East Coast Ambulance Service attended on the Registrant as her mother had called them concerned that she was unconscious. Following this, one of the paramedics who had attended the Registrant referred her to the HCPC with concerns about her fitness to practise.

19. At the final hearing in August 2020 (“the hearing”), the Registrant’s former line manager (“PF”) explained how the Trust had attempted to support the Registrant with a view to assisting her to make a staged return to work. However, he confirmed that the Registrant had disengaged from the process and ultimately, on 10 December 2018, her employment had been terminated on the grounds of capability due to poor health. PF also stated that, ‘although the Registrant did not undertake many operational shifts, (…). He stated that she 'never caused any issues professionally’.

20. On 11 November 2019, Dr TG, Consultant Psychiatrist, was instructed by the HCPC to prepare an expert report regarding the Registrant’s health.

21. The substantive hearing panel concluded that the oral and documentary evidence strongly indicated that the Registrant's sickness absence and health concerns were due to a combination of factors. It also concluded that, at the time of the hearing, in the absence of any evidence to the contrary, it was more likely than not that the Registrant was still suffering from the conditions set out in Schedule A. Consequently, that panel concluded that the facts had been proved and that these facts amounted the statutory ground of adverse mental and/or physical health.

22. The substantive hearing panel also concluded that the Registrant’s fitness to practise was impaired on the basis of both the personal and public components. At paragraph 37 of its decision that panel noted that Dr TG stated in his report that: "[The Registrant] is not fit to work as a paramedic because she has a disorder which is not in remission, and in addition it would appear, as noted above, that her disorder has prevented her from engaging properly with her employer over her sickness absence and now with her professional regulator."

23. Furthermore, the first reviewing panel noted that, due to the Registrant's limited engagement and non-attendance, there was no evidence before it that she fully appreciated the significance of her health condition and the impact on her ability to practise safely and effectively as a paramedic. There was also no explanation as to how the Registrant would manage her health in the future. Accordingly, the first reviewing Panel concluded that there was no evidence that the Registrant had any insight into the potential risks and consequences of her ongoing health conditions.

24. A second reviewing panel sat on 19 August 2022. That panel first considered whether the Registrant’s fitness to practise remained impaired. It concluded that it was. In respect of the personal component, it noted that the Registrant had not engaged with the previous panels, nor had she engaged with the HCPC subsequently or with that panel. There was no information before that panel to suggest that she had remedied her failings and consequently there remained a significant risk of repetition. That panel therefore concluded that, as there was no apparent change in the Registrant’s situation since August 2020, she remained impaired in relation to the personal component. In respect of the public component, that panel considered that a finding of impairment was necessary in the public interest due to the Registrant’s lack of engagement and her lack of remediation despite having been given a year to address her health issues.

25. In determining the appropriate sanction, the previous panels noted that the Registrant’s health condition was capable of being remedied given sufficient time and appropriate treatment. However, they also noted that, whilst the Registrant appeared to have engaged with support services from time to time, there was no evidence before them that the Registrant’s condition was in remission.

26. In addition, given the Registrant's inability or unwillingness to engage with the hearing process and provide any evidence that she was committed to returning to practice, the previous panels had no confidence that she would comply with a Conditions of Practice Order.

27. At the second review hearing held on 19 August 2022, that panel agreed with the first review panel that the factors applicable for a Suspension Order were not all present in this case. For instance, there was no evidence before it of any insight; it could not be said that the issues were unlikely to be repeated; and there was no evidence before the panel that the Registrant was likely to be able to resolve/remedy her health issues. That panel imposed a further Suspension Order and concluded that the suspension should be for an additional 3 months. This would enable the Registrant to engage with the process and provide the evidence recommended by the previous panels, namely:

(i) Evidence of the Registrant's current state of health from a suitably qualified medical practitioner (for example, the Registrant’s GP);

(ii) Evidence of any previous treatment or ongoing treatment during the 12 months immediately prior to the review hearing from a suitably qualified medical practitioner;

(iii) Testimonials from current or previous employer(s) (for paid or unpaid work); and
(iv) In particular, the attendance of the Registrant in person, by telephone or via video conference.

(v) In particular, the attendance of the Registrant in person, by telephone or via video conference.

Decision

28. Ms Bernard-Stevenson set out the background as outlined above. She drew the Panel’s attention to the procedural history. Ms Bernard-Stevenson submitted that since the last hearing the Registrant had failed to engage and evidence that would have been found helpful by the previous panel had not been provided. She referred the Panel to the Practice Note for Article 30 Sanction Orders. Ms Bernard-Stevenson reminded the Panel that there was a persuasive burden on the Registrant to acknowledge the deficiencies identified and take steps to address them. The Registrant had been continuously suspended for two years. Ms Bernard-Stevenson submitted that there was no evidence that the Registrant had taken steps to address the issues raised and consequently her fitness to practise remained impaired. She drew the Panel’s attention to the HCPC Sanctions Policy and confirmed that the HCPC’s submissions were that the Registrant should be removed from the Register.

29. The Panel heard advice from the Legal Assessor. The Legal Assessor referred the Panel to the cases of CHRE v NMC (and Grant) (2011) EWHC 97 (Admin), Cohen v GMC (2008) EWHC 158 (Admin) and Abrahaem v GMC (2008) EWC 183 (Admin). The Panel heard that ‘the review has to consider whether all the concerns raised in the original finding of impairment …. have been sufficiently addressed to the panel’s satisfaction.’

30. The Panel had regard to the review of Article 30 Sanction Orders guidance. It acknowledged that there was a persuasive burden on the Registrant and that this was not a rehearing of the original allegation.

Current Impairment

31. The Panel found that the Registrant had not engaged with the regulatory process since prior to 26 August 2020. It did not know the reason for this, and the Registrant had provided no explanation. The Panel was mindful that it needed to balance the interests of the Registrant with the public interest.

32. The Panel found that the only engagement from the Registrant pre-dated the substantive hearing, when there was some limited communication with the HCPC and that there had been nothing since. The Panel did not know if the Registrant had received any treatment for her medical issues as she had not engaged with the HCPC in order to provide evidence of this.

33. The Panel found that the Registrant’s fitness to practise remained impaired on both the public and personal components. It found itself in a similar position to the reviewing panel sitting on 19 August 2022. The Registrant had not provided any information or any of the material that the previous panels considered would be helpful.

34. With regards to the public component, the Panel found that the public would be concerned if a person with serious health issues which may adversely impact on her ability to practise safely was able to remain in practice while these health issues remained unaddressed.

35. With regards to the personal component, the Panel found that it was the unpredictable nature of the effect of the Registrant’s health condition that was of concern. The Panel found that there was nothing before it to suggest that there was not a high risk of repetition. There was a protective element in terms of a finding of impaired fitness to practise from the personal perspective, in that it was in the Registrant’s interest to ensure her health condition had recovered sufficiently to enable her to practise while unencumbered by that condition.

Sanction

36. Having found that the Registrant’s fitness to practise remained impaired, the panel went on to consider Sanction. The Panel had regard to the HCPC Sanctions Policy dated March 2019. The Panel considered the Sanctions available to it in ascending order.

37. The Panel first considered taking no action. It took the view that given the gravity and seriousness of the Registrant’s health condition this would not be appropriate and would be insufficient to protect the public and maintain public confidence in the profession.

38. The Panel then went on to consider a caution order and noted paragraph 101 of the Sanctions Policy. The Panel concluded that the Registrant’s health conditions could not be described as limited or minor in nature as it affected her ability to perform her role as a paramedic for a significant period of time. A caution order would impose no restriction on the Registrant’s practice and the Panel concluded that a Caution Order would fail to protect the public and maintain public trust and confidence in the profession.

39. The Panel then considered whether a Conditions of Practice Order could be imposed. In the absence of engagement from the Registrant, the Panel was unable to formulate workable conditions because the Panel had no indication from the Registrant that she would comply with any conditions it imposed.

40. The Panel went on to consider a Suspension Order. The Panel was mindful of the Sanctions Policy and had specific regard to Paragraph 121 of this policy.

41. Paragraph 121 states: A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

42. The Panel found that there was no evidence before it that the Registrant had insight due to her lack of engagement with this Panel and her repeated non-engagement with previous Panels.

43. The Panel noted the findings of the previous reviewing Panel’s that the factors applicable for a Suspension Order were not all present before those previous Panels. The Panel found that there was before it today no evidence of any insight, it could not be said that the issues are unlikely to be repeated and there was no evidence before it that the Registrant was likely to be able to resolve or remedy her health issues.

44. The Panel weighed up the issues carefully and found that a significant period of time had passed to allow for the Registrant’s recovery and /or her engagement. It noted that the issues with the Registrant’s health that had impacted on her fitness to practise had been continuing since at least 2018, to its knowledge. To the best of the Panel’s knowledge, the Registrant had not taken steps to address her health issues and had now been continuously suspended for more than two years. Accordingly, the Panel found that in all of the circumstances of this case, a further Suspension Order would serve no useful purpose and that it was not an appropriate sanction. It would neither serve to protect patients nor maintain public confidence in the profession.

45. The Panel then moved on to consider a Striking Off Order. The Panel had regard to paragraph 130. of the Sanctions Guidance and acknowledged that Striking Off is a sanction of last resort.

46. The Panel found that the Registrant continued to lack insight on the evidence before it and had shown no willingness to resolve matters. As a result of this, the Registrant’s suspension had continued for over two years during which time she had not engaged with the HCPC. The Registrant had produced no evidence of any attempts or efforts to address the underlying health issues which impact on her fitness to practise.

47. The Panel acknowledge that a Striking Off Order has a significant impact on a registrant. In the particular circumstances of this case, the Panel found that a Striking Off Order was the only proportionate and appropriate response left available to it.

ORDER: The Registrar is directed to strike the name of Mrs Emily C Reacher from the register.

No notes available

History of Hearings for Mrs Emily C Reacher