Mr Edmund R Daly

: Paramedic

: PA08502

: Final Hearing

Date and Time of hearing:10:00 07/04/2015 End: 17:00 10/04/2015

: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

: Conduct and Competence Committee
: Suspended

Allegation

(as amended at the Final Hearing on 07 April 2015)

During the course of your employment as a Paramedic for the London Ambulance Service, on 29 May 2013, you:

1.     Refused to attend emergency call CAD 707.

2.     Made an emergency vehicle unavailable to the public before your shift had ended.

3.     Did not attend emergency call CAD 707 whilst being aware no other crew was available to attend the call.

4.     Your actions in particulars 1 -3 were not in the best interest of the patient.

5.     The matters described in paragraphs 1 - 4 constitute misconduct and/or lack of competence.

6.     By reason of that misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Facts Proved:  1, 2, 3, 4

Grounds:  Misconduct

Fitness to Practise Impaired: Yes

Sanction: Suspension (12 months) + Interim Suspension Order

 

Preliminary Matters

Service

1.     The Panel was informed that the Notice of Hearing and the HCPC bundle of documents had been sent to the Registrant’s address as it appears on the register on 05 January 2015.

2.     The Panel was satisfied that good service has been effected in accordance with Rule 3 of the HCPC’s Conduct and Competence Committee Rules 2003 (the Rules) and it was satisfied that all reasonable steps had been taken by the HCPC to inform the Registrant of today’s proceedings.

Proceeding in absence

3.     Mr Walters submitted that, in accordance with Rule 11 of the Rules, it was appropriate to proceed in the absence of the Registrant. He stated that the Registrant has not requested an adjournment and that the Registrant was unlikely to attend at a later date if the case were to be adjourned. He reminded the Panel that two witnesses were present today to give evidence. He also referred the Panel to the Registrant’s letter dated 15 February 2015, where he stated that he would not be attending the hearing and anticipated that the hearing would be continued in his absence.

4.     The Panel accepted the advice of the Legal Assessor that the decision to proceed in the absence of the Registrant is a decision to be taken with the utmost care and caution. The Panel also had regard to the Practice Note “Proceeding in the Absence of the Registrant”.

5.     The Panel noted that the Registrant had not sought an adjournment in his letter dated 15 February 2015. There was nothing to indicate that he would attend if an adjournment was to be granted. In any event, he clearly stated that he does not wish for the hearing to be delayed further and that he would like resolution of the matter. The Panel therefore determined that there would be no useful purpose in adjourning the hearing. The Panel further noted that there were two witnesses present and, in order to progress the matter expeditiously, it would be undesirable to adjourn today. The Panel concluded that, in all the circumstances, it was in the public interest and in the Registrant’s own interest for this matter to proceed today. The Panel has determined, therefore, to proceed in the absence of the Registrant.

Proceeding in private

6.     At the outset of the hearing, Mr Walters made an application that those parts of the hearing which referred to the Registrant’s health should be heard in private.

7.     The Panel was mindful that the presumption remains that this is a public hearing. However, it reminded itself of Rule 10(1) of the Rules and of the Registrant’s right to a private life. Having accepted the Legal Assessor’s advice, the Panel came to the decision that, in this instance, the Registrant’s interests outweighed the public interest. As such, the Panel granted the application that any evidence relating to the Registrant’s health would be heard in private.

Application to amend the allegation

8.     The HCPC applied to amend Particular 2. The Registrant was notified of the proposed amendment in a letter from the HCPC dated 10 December 2014.

9.     Mr Walters submitted that the amendments would not prejudice the Registrant. The Registrant has not responded to the proposed amendment. As regards to the amendments he proposes, Mr Walters suggested that the amendment serves to simplify that particular of the allegation.

10.   The Panel noted that the Registrant has not responded to the proposed amendment. The Panel went on to consider whether there would be any prejudice to the Registrant if the amendment was permitted. The Panel considered that the proposed amendment was not significant and that it did not change the nature and substance of the particular. In those circumstances, there would be no injustice to the Registrant, and the Panel determined to amend the allegation as set out in the letter dated 10 December 2014.

 

Background

11.   The Registrant was employed as a Paramedic by London Ambulance Service NHS Trust (the Trust). At the relevant time, he was in a Team Leader position. A Team Leader’s responsibility includes the overseeing and supervision of staff. He was responsible for responding to emergency calls and overseeing staff at the Waterloo Ambulance Station (the Station).

12.   On 29 May 2013, an emergency call was allocated to the Registrant’s ambulance. The call related to a 43-year-old female service user who was feeling faint, dizzy, and was vomiting. Upon receiving the call, the Registrant contacted the Emergency Operations Centre (EOC) and questioned the call allocation. The request to attend the service user had been made at 5.20am, when the Registrant was en route back to the Station to finish his shift at 6am.

13.   As a result of the Registrant’s discussions with PS, the South Area Controller for the Trust, his ambulance was stood down.

14.   On 03 June 2014, the Registrant was dismissed from the Trust on grounds that he had refused to attend an emergency call.

 

Decision on Facts

15.   The Panel drew no adverse inference from the Registrant’s non-attendance at this hearing. It has taken into account all of the documentation before it and, in particular, it had regard to the written communications from the Registrant.

16.   In coming to its decision on facts, the Panel had regard to all of the evidence, both oral and documentary. It was reminded that it is for the HCPC to prove its case and that there was no burden on the Registrant to prove anything. The standard of proof applied when considering whether the allegations are made out is that of the ‘balance of probabilities’.

17.   The Panel also had regard to the advice of the Legal Assessor.

18.   The Panel heard oral evidence from two witnesses:

·          MS, who was, at the relevant time, a Duty Station Officer for the Trust, and who conducted the investigation at the Trust.

·          PS, South Area Controller for the Trust.

19.   The Panel found both of these witnesses credible and that they gave consistent evidence.

20.   MS gave evidence that she had been the Registrant’s line manager at the relevant time and that, prior to this incident, she had had no reason to question his conduct or capability as a paramedic.

21.   PS gave evidence that was consistent with the transcript of the conversation that she had had with the Registrant over the radio.

22.   The Registrant, in an email to the instructed solicitors of the HCPC dated 08 October 2014, stated that he accepted the allegations against him. This is also confirmed in his letter to the HCPC dated 15 February 2015.

Particular 1 – Found Proved

1.    Refused to attend emergency call CAD 707.

23.   The evidence of PS was clear, in that she said that the Registrant refused to attend the call. The Panel also had the benefit of a transcript of the taped radio conversation between the EOC and the Registrant on 29 May 2013, where he stated, “I am not accepting it and I think it is dangerous.” Later on in that same transcript, the following conversation is noted:

EOC:               … we are going to cut you down. I will say you are not going to take the call and then that is [sic]

ED:                  Yeah, thank you.

24.   The Registrant does not now deny the particular.

25.   The Panel therefore finds this particular proved.

Particular 2 – Found Proved

2.    Made an emergency vehicle unavailable to the public before your shift had ended.

26.   The request to attend a service user was made at 5.20am, when the Registrant was en route back to the Station to finish his shift at 6am. As a result of his refusal to attend the call, it therefore follows that the emergency vehicle that he was travelling in, to return back to the Station to end his shift, was made unavailable to the public before his shift had, in fact, ended.

27.   Again, the Panel noted that the Registrant does not seek to challenge this particular.

28.   Therefore, the Panel finds this particular proved.

Particular 3 – Found Proved

3.    Did not attend emergency call CAD 707 whilst being aware no other crew was available to attend the call.

29.   The Panel had regard to the evidence of PS, who gave clear evidence which corroborates the transcript of the radio conversation that there were no other crews available to take the call.

30.   The Panel therefore finds this particular proved.

Particular 4 – Found Proved

4.    Your actions in particulars 1 -3 were not in the best interest of the patient.

31.   A call was made to the Emergency Services as a result of a female service user being dizzy, faint and vomiting. The call was categorised as an emergency and required paramedics to attend upon the service user. By refusing to take the call, the Registrant caused delay in care being given to that service user. It therefore follows that such a refusal and delay could not be in the best interests of a service user who was presenting in the manner described.

32.   As before, the Registrant does not seek to deny this particular of the allegation.

33.   The Panel therefore finds this particular proved.

 

Decision on Grounds

34.   On the basis of the facts found proved, the Panel went on to consider whether those facts amounted to misconduct and / or a lack of competence.

35.   The Panel took into account the submissions of Mr Walters on behalf of the HCPC, and it had regard to the advice of the Legal Assessor.

36.   The Panel first considered whether the facts found proved amounted to misconduct as distinct from lack of competence. In particular, the Panel had regard to the distinction between misconduct and lack of competence as identified in the case of Calhaem v GMC [2007] EWHC 2606 Admin.

37.   The Panel considered that this was not a case of lack of competence, as there was no evidence to suggest that the Registrant lacked any understanding of his responsibilities as a paramedic. Further, the evidence of MS was that there was no issue as to the Registrant’s clinical ability as a paramedic.

38.   The Panel next considered whether the facts found proved amounted to misconduct. In doing so, it has applied its own professional judgement.

39.   The Panel considered that the Registrant has breached the following standards of the HCPC’s “Standards of Conduct, Performance and Ethics”:

·          1              You must act in the best interests of service users.

·          13            You must … make sure that your behaviour does not damage the public’s confidence in you or your profession.

40.   It also considers that the Registrant has breached the following standards of the HCPC’s “Standards of Proficiency for Paramedics”, which was in force at the relevant time:

·          1a.1         be able to practise within the legal and ethical boundaries of their profession

·          1a.5         be able to exercise a professional duty of care

41.   The Panel accepts that this is a single isolated incident and that there is no other evidence that the Registrant has behaved in such a way in the past.

42.   The Panel considers that the Registrant’s conduct in refusing to attend a call falls below the standard that the public would reasonably expect of a registered paramedic and is serious. Such behaviour can only be described as misconduct. 

43.   It is clear from the transcript of the radio conversation that the Registrant wished to end his shift. He commented on more than one occasion throughout that conversation that it had been a busy shift and that he was tired. Although during the Trust’s investigation the Registrant sought to explain his actions by reference to his health, there is no evidence either in the transcript or according to PS, who spoke to him after his shift had concluded, or elsewhere, such that his health would have prevented him, at the time, from accepting the call. His misconduct put the service user at potential risk of harm and he had been told that there was no other crew available to attend upon that service user. As a result of the Registrant’s refusal to attend the call, there was a delay of approximately 90 minutes before another crew was able to attend the service user.

44.   Such misconduct seriously undermines public confidence in the profession. It demonstrates a lack of care towards the service user.

45.   The Panel concluded that the Registrant’s behaviour amounts to misconduct.

 

Decision on Impairment

46.   The Panel next considered whether the Registrant’s misconduct currently impairs his fitness to practise.

47.   In approaching this task, the Panel again applied its own professional judgement. The Panel had regard to the Practice Note issued by the HCPC entitled “Finding that Fitness to Practise is Impaired” and it took into account the case of CHRE v NMC v Grant [2011], which reminds panels of the need to consider the public interest when considering whether the Registrant’s fitness to practise is currently impaired.

48.   The Panel considered that the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Registrant’s misconduct in refusing to attend the call fundamentally undermines the reputation of the profession and posed a risk to a service user.

49.   The Panel considered that the misconduct identified is capable of remediation. However, the Panel was not satisfied on the evidence before it that the Registrant has demonstrated sufficient insight into his misconduct. Other than a simple acceptance of the allegations, the Registrant makes no reference to the impact his actions had on the service user or, indeed, what would happen if he were to be put into a similar situation again. It noted that the Registrant has stated that he is not currently employed as a paramedic.

50.   The Panel therefore concluded that there remains a risk of repetition. Further, the Panel considered that the Registrant’s misconduct undermines public confidence in the profession and that a finding of current impairment is therefore also required to declare and uphold proper standards of conduct and behaviour.

51.   In all the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired.

 

Decision on Sanction

52.   In considering what, if any, sanction to impose, the Panel have had regard to the HCPC’s “Indicative Sanctions Policy” and to the advice of the Legal Assessor. It also took into account Mr Walter’s submissions on behalf of the HCPC. The Panel notes that these proceedings are not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not currently fit to practise.

53.   The Panel took into account both mitigating and aggravating factors. This is a serious case involving departures from fundamental tenets of the profession. The Registrant’s actions posed a risk to a service user and he refused to attend a call despite repeated explanations that there was no other crew available to attend to the service user. As a paramedic and as a Team Leader, he failed to make service users his main concern. The Registrant has not demonstrated any remorse for his actions. However, the Panel has also taken into account that this was an isolated incident in the Registrant’s 30-year unblemished history of service as a paramedic. The Panel took into account the Registrant’s admissions and the positive character references that he has provided. The Panel also notes that this incident occurred after an 11-hour overnight shift without a rest break.

54.   Although the Registrant has some health issues, the Panel has already concluded that these issues did not play a part, nor can it be offered either as an excuse or to mitigate his behaviour on the shift in question.

55.   The Panel considered that, given the seriousness of the misconduct and the risk of harm to service users if the misconduct were to be repeated, it would be inappropriate to take no further action. Mediation in the circumstances of this case is not appropriate.

56.   The Panel went on to consider a Caution Order. A Caution Order would not restrict the Registrant’s ability to practise and, therefore, such an order would not protect service users and would undermine public confidence in the profession and in the HCPC as a regulator. Further, given the Registrant’s lack of insight, a Caution Order would not be sufficient.

57.   The Panel then considered whether the imposition of a Conditions of Practice Order would be sufficient. The Panel considered that the Registrant’s misconduct demonstrates attitudinal issues and, as such, Conditions of Practice would be difficult to formulate given his lack of remorse and, thereafter, his lack of insight into his behaviour. In any event, the Registrant has stated that he no longer wishes to work as a paramedic and he is not currently doing so. The Panel therefore concluded that it could not formulate a Conditions of Practice Order which would be either practicable or workable.

58.   The Panel then went on to consider the imposition of a Suspension Order. Such an order would provide public protection, in that the Registrant would be unable to practise as a paramedic for a period of time. During any period of suspension, a registrant would be expected to be able to develop insight and remedy the failings identified. The Panel considered that a Suspension Order for a period of 12 months is appropriate and proportionate. A paramedic is expected to attend emergency calls, yet the Registrant steadfastly refused to attend the call knowing that he was the only crew available. Such behaviour undermines the profession and, whilst the shift was lengthy and without a rest break, this cannot excuse a refusal to attend an emergency call. The Registrant’s behaviour demonstrates a significant departure from acceptable standards; however, it is not fundamentally incompatible with remaining on the Register.

59.   The Panel did consider a Striking Off Order; however, it concluded that such an order would be disproportionate given that this was an isolated incident in an otherwise unblemished 30-year career.

60.   In coming to its decision, the Panel took into account the public interest, which includes protection of service users, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

61.   A panel will review this Suspension Order prior to its expiry. This future reviewing panel may be assisted by evidence of the Registrant developing insight into the consequences of his actions on service users and on the profession itself.

62.   The Panel therefore considers that the only appropriate and proportionate Order would be a Suspension Order for a period of 12 months.

 

 

Order

That the Registrar is directed to suspend the registration of Mr Edmund R Daly for a period of 12 months from the date this order comes into effect.

 

Notes

This Order will be reviewed before its expiry on 06 May 2016.

Hearing history

History of Hearings for Mr Edmund R Daly

Date Panel Hearing type Outcomes / Status
04/04/2017 Conduct and Competence Committee Review Hearing Struck off
07/04/2016 Conduct and Competence Committee Review Hearing Suspended
07/04/2015 Conduct and Competence Committee Final Hearing Suspended