Mr Arkadiusz Bodziany

Preliminary Matters

Service

1. The Notice of Hearing was sent to the Registrant, by email, to his registered email address on 3 May 2023 informing him that there would be a review of the suspension order today at a video hearing. A Certificate of Service has been provided.

2. The Panel was satisfied that service had been effected in accordance with the Procedure Rules and Practice Note on Service of Documents.

Proceeding in absence

3. Ms Khorassani on behalf of the HCPC applied for the hearing to proceed in the Registrant’s absence. She submitted that the Registrant had voluntarily absented himself and that no application had been made for an adjournment. She submitted that it would be fair and in the interests of justice to proceed in the Registrant’s absence. It was noted that the Registrant had failed to attend previous hearings.

4. The Panel had regard to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was mindful that today’s application was for a mandatory review of the Suspension Order. The Panel noted that the Registrant had not responded to the notice of hearing.

5. The Panel finds that the Registrant was served in accordance with the Procedure Rules. The Panel is satisfied that good service of notice of today’s hearing has been effected. The Panel recognised that there may be a disadvantage to the Registrant in not being able to make submissions or give oral evidence with regard to his current fitness to practise and his current intentions. However, he was given the opportunity to participate in these proceedings and had not taken up that opportunity. Therefore, as this was a mandatory review, the Panel concluded that the Registrant’s interests were outweighed by the strong public interest in ensuring that the hearing proceeds expeditiously.

6. The Panel considered that the Registrant had voluntarily absented himself, that an adjournment would be unlikely to secure the Registrant’s attendance at a future date and that no useful purpose would be served by an adjournment. In all the circumstances the Panel decided that it was fair and in the interests of justice to proceed with the hearing in the absence of the Registrant.

Background

7. The Registrant was a registered Paramedic at all relevant times.

8. The Registrant was employed by the East Midlands Ambulance Service Foundation Trust (‘EMAS’) between 27 March 2017 and January 2018. The Registrant had qualified as a paramedic in Poland some ten years earlier. In the intervening period he had been a resident in the UK and living in the Merseyside area. He had been working as a driver and had not used his paramedic qualification in the UK or elsewhere in the previous ten years.

9. The Registrant underwent the six-week International Paramedic Course to transfer/convert his Polish qualification in order to obtain registration from the HCPC.

10. Upon commencing as a paramedic in the EMAS the Registrant was treated as a fully qualified paramedic but was required to undergo a probationary period. During the course of his employment, it became clear that the Registrant did not have the knowledge or experience to carry out his duties. He also lacked confidence and was unable to take the lead, as a professional paramedic should be able to do, when attending incidents. The Registrant spent time with a number of mentors and as a supernumerary with a number of paramedics.

11. Serious concerns were raised as to his competence and his ability to treat patients. The Registrant undertook a performance assessment from which it became clear that his competence fell considerably below what is required of a paramedic.

12. The substantive hearing panel determined that the factual findings amounted to a lack of competence and that the Registrant’s fitness to practise was impaired. The Registrant did not engage in that hearing and the panel concluded that only a suspension order would protect the public from the unacceptable risk of harm that he posed and meet the public interest in maintaining confidence in the profession and the regulatory process.

13. At the previous review hearings the Registrant has not attended nor has he provided any evidence or representations to suggest that he is addressing the concerns raised or has insight into the concerns found proved. The Registrant has not provided any indication as to whether he wishes to remain in the profession.

Submissions

14. Ms Khorassani on behalf of the HCPC submitted that the Registrant’s fitness to practise remains impaired as the wide-ranging concerns relating to the Registrant’s lack of competence, which were identified at the substantive hearing, have not been addressed by the Registrant.

15. The Registrant has now been suspended for a continuous period of over two years and in accordance with Article 29 of the Health Professions Order 2001 a striking off order is sought. The Panel was referred to the persuasive burden on the Registrant to demonstrate the concerns have been addressed and the Registrant’s total lack of engagement in the regulatory process.

16. It was submitted that a further period of suspension would serve little purpose as the Registrant had been given the opportunity to engage and has been advised of what he should do to address the concerns. The panel at the last review were clear on their views of what should be considered today, despite this there has been no engagement by the Registrant.

17. The HCPC submit that a striking off order would be proportionate and in the interests of justice in all the circumstances.

Legal Assessor’s advice

18. The Legal Assessor advised that this is a review under Article 30(1) of the Health Professions Order 2001, and the panel should take into account the HCPTS Practice Note on Review of Article 30 Sanction Orders. The reviewing panel may:

- confirm the order;
- extend, or further extend, the duration of the order;
- reduce the duration of the order
- replace the order with any other order which the Panel could have made (to run for the remaining term of the original order); or
- revoke the order.

19. The Panel should have regard to the HCPTS Practice Note on Fitness to Practise Impairment and consider both the personal component, which includes current competence and behaviour, and the public component, which includes the need to protect service users and uphold proper standards of behaviour and maintain public confidence in the profession.

20. The Panel was reminded that the review process is not a mechanism for appealing against or ‘going behind’ the original finding that the registrant’s fitness to practice is impaired. The purpose of the review is to consider:-
• Whether the registrant’s fitness to practise remains impaired; and
• If so, whether the existing order or another order needs to be in place to protect the public.

21. There is a persuasive burden on the Registrant to demonstrate at a review hearing that he has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”. The key issue which needs to be addressed is what, if anything, has changed since the current order was imposed. The factors to be taken into account include:
• the steps which the registrant has taken to address any specific failings or other issues identified in the previous decision;
• the degree of insight shown and whether this has changed;
• the steps which the registrant has taken to maintain or improve his professional knowledge and skills; and
• whether any other fitness to practice issues have arisen.

22. The reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment...[have] been sufficiently addressed”. Abrahaem v GMC [2008] EWHC 183 (Admin).

23. The panel must consider whether the Registrant’s fitness to practice is currently impaired. Should the panel find that the Registrant’s fitness to practice remains impaired it should go on to consider sanction and look at the Sanctions Policy to determine in ascending order the most appropriate sanction.

24. As the allegation found proven relates to a lack of competence and the Registrant has been continuously suspended for two years the provisions of Article 29(6) apply, namely, that the Panel now have the option to strike the Registrant off the register. This states: “A striking-off order may not be made in respect of an allegation of the kind mentioned in Article 22(1)(a) (ii), ‘lack of competence’ or (iv), ‘health’ unless the person concerned has been continuously suspended, or subject to a conditions of practice order, for a period of no less than two years immediately preceding the date of the decision of the Committee to make such an order.”

Decision

25. The Panel first considered whether the Registrant’s fitness to practice is currently impaired. The Panel took into account the previous decisions of the panel at the substantive hearing and the panels at the review hearings. The Panel took account of the submissions of Ms Khorassani on behalf of the HCPC. The Panel had regard to the HCPTS Practice Notes “Review of Article 30 Sanction Orders” and “Fitness to Practice Impairment” and accepted the advice of the Legal Assessor.

26. The Panel reminded themselves that there is a persuasive burden on the Registrant to demonstrate at a review hearing that he has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”. In the absence of any engagement by the Registrant in these proceedings, the Panel today had no alternative but to conclude that his fitness to practise remains impaired. The Panel comprehensively reviewed the matter and exercised its own judgment in reaching its’ decision.

27. The Panel consider that the Registrant’s fitness to practice remains impaired as there is no new evidence to show that the Registrant has made progress towards addressing the serious lack of competence. The Panel is of the view that the continued lack of engagement adds to its concerns regarding the Registrant’s lack of competence. The Registrant remains a risk to the public whilst these concerns go unaddressed.

28. The Panel considered whether the Registrant’s fitness to practice remained impaired with reference to the personal and the public component. The Panel heard no new information that would affect the original finding. In considering the public component the Panel found that members of the public would not have confidence in the profession, or in the regulator, if the Registrant is permitted to return to unrestricted practice at present and would be extremely concerned to learn that a paramedic who had demonstrated a significant lack of competence and has failed to engage in the regulatory process was fit to practice. A finding of no impairment would undermine, rather than uphold and maintain, public trust and confidence in the profession and the HCPC as a professional regulator.

29. Therefore, the Panel concluded that the Registrant remains impaired based on both the personal and the public component.

30. With regard to sanction, the Panel took into account the HCPTS Sanctions Policy. The Panel gave appropriate weight to the wider public interest, which includes the reputation of the profession and public confidence in the regulatory process. The Panel applied the principle of proportionality and considered the available sanctions in ascending order of seriousness. The Panel took into account that the decision reached must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection.

31. The HCPC’s overarching objective is protection of the public and the purpose of fitness to practise proceedings is not to punish registrants for their past acts and omissions, but to protect the public from those who are not fit to practise.

32. The Panel first considered taking no action. The Panel concluded that, given the nature and seriousness of the Registrant’s lack of competence, which has not been remedied, to take no action on his registration would be inappropriate. Furthermore, it would be insufficient to protect the public, maintain public confidence, and uphold the reputation of the profession.

33. The Panel went on to consider a Caution Order. The Panel noted that a Caution Order will not restrict the Registrant’s ability to practice. As the Registrant has demonstrated no insight into his lack of competence and provided no evidence of remediation, the risk of harm to the public and the risk of repetition remains. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public and meet the wider public interest.

34. The Panel considered that a Conditions of Practice Order would not be appropriate, given that the Registrant’s lack of willingness to engage in these proceedings does not relate to his competence as a Paramedic but appears to be attitudinal in nature. There was no evidence that the Registrant would be able or willing to comply with any conditions it might impose and it would be difficult to formulate and monitor any conditions without knowing what the Registrant’s work status is. The Panel also noted that the Registrant had previously been provided with mentoring support and had been facilitated to work as a supernumerary, but these support measures have not had the desired effect.

35. The Panel next considered extending the current Suspension Order. The panel at the previous review hearing had extended the Suspension Order to give the Registrant a further opportunity to engage in the proceedings and address the findings that his fitness to practise was impaired. They had also made clear to the Registrant what he needed to do to prepare for, and participate in, the subsequent review hearing. The Registrant had failed to take the opportunity provided to him.

36. The panel on 27 February 2023 stated

‘The Panel cannot bind a future reviewing panel, but it took the view that once the Registrant has been suspended for a continuous period of two years it is likely that a Striking Off Order will be imposed unless the Registrant engages with the regulatory process and takes sufficient steps to demonstrate that he is committed to addressing his lack of competence. Therefore, the Panel concluded that this may be the Registrant’s last chance to avoid being struck off the HCPC Register. In reaching this conclusion, the Panel noted that there can be no public interest in subjecting the Registrant and the HCPC to further review hearings after the two-year period has expired when there is no indication that the Registrant has any intention of returning to practice or engaging with the fitness to practise procedures’.
‘The Panel took the view that if the Registrant does not take the opportunity to engage with the regulatory process within the next few weeks, it is highly unlikely that he will ever do so. Therefore, the Panel concluded that the extended Suspension Order should be for a short period. The Panel determined that a period of three months will provide the Registrant with sufficient time to read this determination (and the previous determinations) very carefully and decide whether he is willing and able to work towards a return to unrestricted practice, and if so, the steps that he will need to take to remedy his lack of competence. In the event that the Registrant takes positive steps toward remediation, the next review panel may be willing to impose a sanction short of a Striking Off Order’.

37. The Panel today considered that no useful purpose would be served by further extending the Suspension Order as the Registrant has had ample opportunity to address the concerns should he wish to do so. It noted the comments made by the previous panel but has reached its’ decision independently having reviewed all of the circumstances of these proceedings today. It concluded from the Registrant’s total lack of engagement that he is not willing to address the findings that his fitness to practise is impaired.

38. In all the circumstances, the Panel concluded that a Striking Off Order is the appropriate and proportionate sanction to impose with immediate effect. Any lesser sanction would be insufficient to protect public confidence in the profession and in the regulatory process. The need to protect the public outweighs the Registrant’s interests.

The Registrar is directed to strike the name of Mr Arkadiusz Bodziany from the Register with immediate effect.

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 Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Mr Arkadiusz Bodziany