Mrs Elena Birrell

Preliminary Matters
Service
1. The Panel is satisfied that there has been good service of the Notice of Hearing. The Registrant was sent notice of the hearing on 21 August 2023, by email, to her registered email address.

Proceeding in the Absence of the Registrant
2. The Registrant did not attend the consensual disposal hearing.

3. There has been no subsequent contact from the Registrant, following the service of the notice of hearing.

4. Ms Bernard-Stevenson, on behalf of the HCPC, applied to proceed with the hearing today, in the absence of the Registrant.

5. The Panel considered whether it ought to exercise its discretion to continue with this hearing, in the absence of the Registrant and concluded that it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence”, and having taken the Legal Assessor’s advice, and having considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba, R v Hayward [2001] EWCA Crim 168 and GMC v Visvardis [2016] EWCA Civ 162, for the following reasons:
(a) The Panel is satisfied that the Registrant had notice of the hearing, having been sent a letter dated 21 August 2023.
(b) The allegations relate to events dating back to 2020-2021.
(c) The Registrant has not sought an adjournment. The Panel concluded that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion.
(d) The Panel concluded that the Registrant had deliberately chosen not to attend this hearing, amounting to a deliberate and voluntary waiver of her right to appear.
(e) It was in the public interest that this hearing should proceed, given that it is a consensual disposal hearing.
(f) The Panel determined that it was reasonable and in the public interest to proceed, in all the circumstances. There is little or no prejudice to the Registrant in proceeding in her absence, given the nature of the hearing, involving a disposal by consent.

Application for hearing to be heard partially in Private
6. Ms Bernard-Stevenson, on behalf of the HCPC applied for the hearing to be heard partially in private, having regard to the nature of the health allegations, so as to protect the private life of the Registrant.

7. Having taken the Legal Assessor’s advice and having considered the HCPTS Practice Note “Conducting Hearings in Private”, the Panel agreed that the hearing should be held partly in private, in order to protect the private life of the Registrant in accordance with Article 6(1) of the European Convention of Human Rights. The hearing required the Panel to consider confidential medical information pertaining to the health of the Registrant.

Bundle
8. The Panel has been provided with a substantive preliminary hearing bundle of 784 pages, a service bundle of 6 pages and a skeleton argument on behalf of the HCPC which was 13 pages. In addition, the Panel was provided with a draft consent order.

Background
9. The Registrant is a paramedic and was employed by Yorkshire Ambulance Service NHS Trust (the Trust) between 20 January 2020 and 6 January 2022.

10. On 31 March 2022, the HCPC received a referral from the Trust in respect of the Registrant. In the referral form, the Trust outlined a number of concerns pertaining to the Registrant's conduct, competence and health.

11. These concerns included (but are not limited to):
i) misappropriating medication and
ii) displaying inadequate clinical knowledge (including incorrectly manoeuvring sick patients).

12. The Trust commenced an investigation regarding the missing ampoule(s) of morphine as well as the Registrant's excessive administration of morphine to patients. The Trust also alerted the police to the missing ampoules of morphine. South Yorkshire Police initiated their own investigation which ran concurrently with the Trust's investigation.

13. The Registrant sent an email to her line manager on 27 December 2021 stating that it was her intention to resign from her position as a paramedic within the Trust with immediate effect. The Trust acknowledged and accepted the Registrant's resignation on 6 January 2022. The Registrant 's last operational shift with the Trust was on 28 August 2021.

Procedural History
14. An initial investigation was completed by HCPC in 2022.

15. Blake Morgan were instructed to conduct the pre-ICP frontloaded investigation into this matter in late 2022.

16. Blake Morgan completed its investigation on 19 January 2023.

17. On 22 March 2023, the ICP met in order to consider the case and determined that there was a case to answer and that the allegations set out above should be referred to a conduct and competence committee.

Disposal by Consent
18. This hearing has been convened to consider whether this case should be resolved by consent, with the result that the Registrant would be struck off the Paramedic register.

19. The Panel has been provided with a skeleton argument from Ms Bernard-Stevenson, on behalf of the HCPC, dated September 2023, in support of the application.

20. The HCPC advised that this case was suitable for a consensual disposal (namely, a strike off order).

21. On 3 July 2023, Blake Morgan wrote to the Registrant and informed her that although voluntary removal was not an appropriate disposal for this case, given the seriousness of the alleged misconduct/lack of competence allegations, the case could be resolved by an alternative consensual disposal, namely consent to strike off. In this email, the Registrant was asked to sign a pro-forma indicating her consent for the case to be disposed of in this way.

22. On 10 July 2023, the Registrant returned the signed pro-forma as requested. This pro-forma is in the HCPC bundle. The Registrant admits: the factual substance of the allegation; that her fitness to practice is impaired and that the order she would like the HCPC to consider, is a striking off order.

23. Blake Morgan sent the Registrant an email on 7 September 2023, informing her that the strike off hearing was scheduled for 23 October 2023 and asking her whether (in light of the uncontested nature of the hearing) she would agree to waive the 42-day notice period for receipt of documents.

24. The Registrant responded on 8 September 2023 confirming that she was willing to waive the 42-day notice period.

25. Ms Bernard-Stevenson’s skeleton argument set out the following guidance on the principles to apply when considering consensual disposal:
42. The Health Professions Order 2001 does not explicitly provide for consent arrangements. However, as set out in R v Home Office Policy and Advisory Board for Forensic Pathology 1, a tribunal "does have intrinsic powers, simply by virtue of being a tribunal. It has the obligation to observe the rules of natural justice and to conduct its proceedings fairly and to decide procedural matters which are not expressly dealt with in the rules... It may well be that a tribunal acting fairly can fill in the procedural gaps". Although not provided for in rules or legislation, the HCPC has put together a practice note which advises panels about the procedure for allowing a case, where suitable, to be disposed of by consent.
43. Consensual disposal is a case management tool which can be used in order to dispose of a case efficiently without a full substantive hearing. The criteria applied in order to determine whether a case is suitable for consensual disposal is as follows:
i. A case to answer decision has been made by the Investigating Committee
ii. The registrant is willing to admit both the substance of the allegation and that his or her fitness to practise is impaired
iii. Any remedial action proposed by the registrant and to be embodied in the Consent Order is consistent with the expected outcome if the case was to proceed to a contested hearing.
44. In addition to the above, the HCPTS practice note entitled Disposal by Consent indicates that a panel should not agree to a case being resolved by consent unless it is satisfied that:
- iv. The appropriate level of public protection is being secured; and
v. Doing so would not be detrimental to the wider public interest
45. The HCPC submits that the panel ought to approve the drafted consent order and strike the Registrant's name from the register.

The Evidence in Support of the Allegation
26. The Panel noted the evidence in the HCPC bundle in support of the Allegation against the Registrant, and as set out in the skeleton argument served on behalf of the HCPC:
1. Between 20 January 2020 and 28 August 2021, your ambulance driving skills were below the expected standard of a paramedic.
12. During the investigation, a witness statement was obtained from Mr H (paramedic)…. Ms H gave evidence that the Registrant was not a competent driver and that owing to her lack of confidence using satellite navigation technology (satnav) that she was unable to drive and read the satnav at the same time which led to a delay in reaching patients.
13. Ms H also gave evidence that a patient had complained about the standard of the Registrant's driving and alleged that on one occasion, the Registrant had hit a parked car whilst she was en route to hospital.
2. Between 20 January 2020 and 28 August 2021, you did not acquire witness signatures when booking morphine in and out, contrary to the Trust's policy.
14. On 16 November 2022, DG (registered paramedic and Area Clinical Governance Lead for South Yorkshire) was interviewed during the investigation…. DG confirmed that 'Ms Birrell also stated to the police that her crewmate would always witness her signing the controlled drugs book as required. On review of all morphine registers available, there were not witness signatures to Ms Birrell booking out and booking in morphine.'
3. You booked out 4 ampules of morphine and only booked back in 3 ampules when you did not administer any morphine to patients during your shifts on:
a) 10 January 2021; and/or
b) 29 August 2021
15. At paragraph 17 of DG's witness statement…, he states that 'there are two dates 10 January 2021 and 29 August 2021 whereby Ms Birrell booked out four ampules of morphine and booked three back in at the end of her shift. There is no record of any administration or breakage.'
4. On 28 February 2021, you did not provide adequate care and treatment to Patient D, in that you:
a) Did not use any pelvic binders or splints to assist with the manoeuvre of Patient D who sustained significant trauma to their leg following a road collision; and/or
b) Did not promptly cannulate Patient D to administer TXA and other fluids; and/or
c) Made several failed attempts to cannulate Patient D; and/or
d) Did not provide a handover to the consultant upon arrival at the hospital, and asked the emergency care assistant to provide the handover.
16. On 29 September 2022, CA (Enhanced Care Assistant at North Cumbria Integrated Care) was interviewed by the HCPC…. At the time that the concerns arose, CA was an Emergency Care Assistant employed by the Yorkshire Ambulance Service. In her witness statement at paragraph 13 (Page 248), she states that when she attended a patient with the Registrant on 28 February 2021 she suggested that the Registrant use pelvic binders or splints to immobilise the patient, but that the Registrant felt these were not necessary.
17. At paragraph 23 of this witness statement…, CA states 'after several attempts, the Registrant was unable to administer the TXA and fluids. At approximately 14.10, I called the major trauma desk again and asked if it was appropriate to cease cannulation and convey the patient to hospital. I was advised that the incident is time critical and the TXA and fluids should have been administered whilst the patient was being transported to hospital.'
18. At paragraph 16 of the witness statement (page 249), CA states that 'it took the Registrant an excessive number of attempts to successfully cannulate which resulted in the patient becoming eminently agitated.'
19. At paragraph 25 of this witness statement (page 251), she states that 'we arrived at the Northern General Hospital at approximately at 14:35. …the Registrant was asked to provide a handover to the consultant but asked me to provide it.'
20. At paragraph 27 (page 252), the witness states that 'I do not believe that any harm was caused to the patient but the Registrant's omissions could have resulted in serious harm.'
5. Between 19 and 25 April 2021, during support shifts, you:
a) Did not demonstrate adequate knowledge in clinical scenarios and use of equipment, in that you:
i. Did not administer the appropriate amount of oxygen to a patient; and/or
ii. Were unable to apply a Kendrick traction device independently; and/or
iii. Demonstrated a poor knowledge of capnography and post-return of spontaneous circulation management; and/or
b) Fell asleep on numerous occasions during a shift; and/or
c) Refused additional training and/or support from the clinical supervisor.
21. MR (specialist paramedic in critical care) was a clinical supervisor at the time that the concerns arose. He provided a witness statement dated 30 November 2022. At paragraph 14 of his witness statement (page 128) he states that 'whilst treating the patient, the Registrant recognised that they had reduced oxygen saturation, but she did not administer the appropriate amount of oxygen.'
22. MR goes on to state at paragraph 19 of the witness statement (page 129) that 'additionally we discussed the Kendrick traction device during out [sic] four days together, the Registrant was unable to apply the device independently…I showed her how to apply it on several occasions, on our following shifts. . .the Registrant still could not apply the device independently.'
23. At paragraph 24 (page 131), he states that the Registrant 'demonstrated a poor knowledge of capnography equipment' and states that 'her knowledge of how to deal with a post-ROSC patient was very poor.'
24. MR explains at paragraph 25 (page 131) that the Registrant also 'fell asleep in the back of the rapid response vehicle on the way to live incidents' and at paragraph 26 he states that 'the Registrant was dismissive to any support offered to her.'
6. On 18 June 2021, you failed to meet the objectives of the clinical action plan dated 10 June 2021.
25. During the investigation, AC (registered paramedic and Clinical educator) (page 59-69) at the Yorkshire Ambulance Service was interviewed and a witness statement was produced. In his witness statement, he states that Ms Birrell was subject to a clinical action plan created by JM. As part of the clinical action plan, Ms Birrell was required to return to YAS Academy to be assessed against three core competencies, namely; primary survey, trauma care and cardiac arrest care.
26. AC facilitated the trauma care assessment and his colleague MH facilitated the primary survey and cardiac arrest care assessments. AC confirmed that both he and MH were present during all assessments and following the assessment they both discussed Ms Birrell's performance.
27. As set out in Exhibit AC/04, Ms Birrell failed to meet the objectives set out in the clinical action plan.
7. You have a physical and/or mental health condition as set out in Schedule A. Schedule referred to the Conduct and Competence Committee
8. The matters set out in particulars 1 – 6 above constitute misconduct and/or lack of competence.
30. The Registrant has signed a consensual disposal pro-forma dated 10 July 2023 indicating that she admits that her conduct amounted to misconduct and/or lack of competence.
31. Furthermore, the witness evidence and accompanying exhibits that have been obtained during the course of the HCPC investigation indicate that on a number of occasions, the Registrant has fallen below the standard expected of her. Moreover, the panel at the IC meeting considered her conduct to be deplorable and also capable of bringing the profession into disrepute.
32. A fair sample of the Registrant's work has been obtained during the investigation and this shows that a number of deficiencies have been identified over a sustained period of time. These performance concerns are exacerbated by the fact that the Registrant was reluctant to avail herself of the support and assistance which was offered to her from one or more of her colleagues in an effort to help her to address the concerns that had been identified.
9. By reason of your misconduct and/or lack of competence and/or health condition, your fitness to practise is impaired.
33. During the local investigation, the Registrant denied the allegations and failed to attend a fact-finding meeting.
34. During the HCPC investigation, the Registrant demonstrated a lack of insight into her conduct and denied that the alleged conduct had taken place.
35. In light of the serious nature of the concerns, members of the public would be troubled to learn that the HCPC had failed to make a finding of impairment on the public component. Further, the Registrant's conduct is likely to have undermined the public's confidence in the profession.
36. Moreover, the Registrant has signed a consensual disposal pro-forma dated 10 July 2023 indicating that she admits that her fitness to practise is impaired.

HCPC Submissions
27. The Panel was provided with written submissions by Ms Bernard-Stevenson, on behalf of the HCPC, as set out in her skeleton argument:
i. A case to answer decision has been made
47. As indicated in the summary of the background of this case above, a case to answer decision was reached by the ICP at its meeting on 22 March 2023.
ii. The registrant is willing to admit both the substance of allegation and that her fitness to practise is impaired
48. The Registrant has submitted a signed consensual disposal request pro-forma dated 10 July 2023 indicating that she admits both the substance of the allegation and that her fitness to practise is impaired.
iii. Any remedial action proposed by the registrant and to be embodied in the Consent Order is consistent with the expected outcome if the case was to proceed to a contested hearing
49. The HCPC proposes that the case is resolved by striking the Registrant's name from the register. The HCPC submits that this sanction is consistent with a sanction that may be imposed following a substantive hearing. This is because the Registrant's conduct included the misappropriation of controlled drugs and also refusing additional training (in circumstances where performance concerns had been identified).
50. In the HCPTS practice note entitled 'Sanctions policy' at paragraph 130, it is stated that a striking off order may be appropriate in situations where there has been an abuse of position and a failure to work in in partnership.
51. It is submitted that misappropriating controlled drugs by booking out 4 ampoules of morphine and returning 3 ampoules (without administering the missing ampoule to any patient) amounts to an abuse of position.
52. It is further submitted that refusing to undertake additional training in order to address poor performance amounts to a failure to work in partnership.
53. The HCPC also avers that the nature and gravity of the Registrant's conduct is such that a lesser sanction would not be proportionate.
iv. The appropriate level of public protection is being secured;
54. The sanction of strike off is the most severe sanction that can be imposed. A Registrant whose name has been struck from the Register cannot (unless new evidence comes to light) apply for restoration to the register for 5 years. Therefore, owing to the impact of the sanction on the Registrant's ability to practise, it is likely that public protection will be secured. Doing so would not be detrimental to the wider public interest
55. As set out in the HCPTS sanctions policy, the purpose of any sanction is not to punish a Registrant for their misdoings, but should protect the public; deter Registrant's from acting in a similar manner; and maintain public confidence in the profession and the regulatory process.
56. The HCPC submits a striking off order would achieve all these aims, while also allowing the Registrant to move on with his life, and put his past misconduct behind him.
57. While panels should always consider taking the minimum action necessary to ensure public protection, and therefore always consider the least restrictive sanction first, the facts of this allegation clearly fall within the remit of a striking off order.
58. Therefore, for the above-mentioned reasons, the panel ought to approve the consensual disposal pro-forma in the terms contained therein.

28. Ms Bernard-Stevenson, on behalf of the HCPC made additional oral submissions, emphasising her written submissions, as set out in the skeleton argument and reminding the Panel that it should not agree to the case being resolved by consent, unless it was satisfied that (a) the appropriate degree of public protection was secured, and (b) that doing so would not be detrimental to the wider public interest.

Disposal By Consent
29. The Panel considered the HCPTS Practice Note of Disposal of Cases by Consent and accepted the advice from the Legal Assessor. The guidance is set out below:
a. Disposing of cases by consent can be an effective case management tool.
b. The HCPC’s overarching statutory objective is the protection of the public. A panel must not agree to a case being resolved by consent unless it is satisfied that:
• The appropriate degree of public protection is being secured,
• Doing so would not be detrimental to the wider public interest.
c. If the HCPC and the Registrant wish to conclude a case without the need for a contested hearing, they may seek to do so by putting before a panel an order of the kind which they consider the panel would have made if the case had proceeded to a full substantive hearing.
d. The panel has the right to reject a proposal for disposal by consent. The panel should satisfy itself that:
• The HCPC has provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft consent order.
• Has made it clear to the registrant concerned that cooperation and participation in the consent process will not automatically lead to the consent order being approved.
e. The HCPC’s governing legislation prevents a registrant from resigning from the HCPC register whilst the subject of an allegation.
f. In cases where the HCPC is satisfied that it would be adequately protecting the public if the registrant were permitted to resign from the Register, it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.
g. In cases where an allegation is already before a panel or a conditions of practice or suspension order was in place, such an agreement cannot take effect unless those proceedings are withdrawn or a panel revokes them. In such cases the HCPC will give formal notice of withdrawal to the panel and, if necessary, ask it to revoke any existing order.
h. As with consensual disposal, a panel should only agree to revoke an existing order where it is satisfied that voluntary removal would secure an appropriate level of public protection and would not be detrimental to the wider public interest.
i. In Annex A to the Practice Note, it states that the HCPC will consider resolving a case by consent:
• After an Investigating Committee Panel has found there is a case to answer so that a proper assessment has been made of the nature, extent and visibility of the allegation,
• Where the registrant is willing to admit both the substance of the allegation and that his/her fitness to practice is impaired. A registrant’s insight into, and willingness to address, failings are key elements in the fitness to practice process and it would be inappropriate to dispose of a case by consent where the registrant denied those failings,
• Where any remedial action proposed by the registrant and to be embodied in the consent order is consistent with the expected outcome if the case were to proceed to a contested hearing.

Decision
30. The Panel had regard to the submissions set out above on behalf of the HCPC.

31. The Panel concluded that the HCPC application for consensual disposal should be granted for the following reasons.

32. Having regard to the contents of the HCPC bundle and the skeleton argument from Ms Bernard-Stevenson, the Panel concluded that the HCPC had demonstrated an appropriately detailed and objectively justified explanation of why the case is suitable for disposal by consent.

33. The Panel noted that the Investigating Committee had found that there was a case to answer. Having regard to the evidence set out above, and contained in the HCPC bundle, the Panel concluded that a proper assessment has been undertaken on the nature, extent and viability of the Allegation.
34. The Registrant has admitted both the factual substance of the Allegation, the statutory grounds, and that her fitness to practice is impaired.

35. The Panel concluded that the proposed action, namely a Striking Off Order is consistent with the expected outcome if the case were to proceed to a contested hearing. The Panel accepted the HCPC submission that a Striking Off Order is likely to have been imposed following a contested hearing. The misconduct allegations were of a very serious nature, involving the misappropriation of controlled drugs. In addition, there were significant competence concerns, involving basic paramedic skills which had not been addressed and where the Registrant had refused additional training.

36. The Panel had regards to the HCPTS Sanctions Policy, and the criteria for imposing the sanction of a Striking Off Order and in particular paragraph 130, where there is reference to abuse of professional position and failing to work in partnership.

37. Paragraph 131 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. Particular reference is made to where the registrant is unwilling to resolve matters.

38. The Panel concluded that misappropriating controlled drugs by booking out 4 ampoules of morphine and returning 3 ampoules (without administering the missing ampoule to any patient) amounted to an abuse of position and failing to undertake in additional training amounted to a failure to work in partnership and/or demonstrated an unwillingness to resolve matters.

39. The Panel was satisfied, in all the circumstances that an appropriate level of public protection was being secured by a Striking Off Order, which is the most severe of sanctions that could be imposed, and doing so would not be detrimental to the wider public interest.

The Registrar is directed to remove the name of Ms Elena Birrell from the Register with immediate effect.

No notes available

History of Hearings for Mrs Elena Birrell