Mr Shane Kennedy
During the course of your employment as a Paramedic with East Midlands Ambulance Service:
1. On 11/12 January 2015 in relation to Patient A:
a) you transported her in the Fast Response Vehicle (FRV) instead of the Double Crew Ambulance (DCA) despite her presentation and/or the risk of repeated seizure:
i) without any clinical justification
ii) despite a colleague and/or colleagues at the scene offering to take her in the DCA
iii) against trust policy for transporting of patients in FRVs
b) did not transport her to the hospital on blue lights despite the deterioration of her condition
c) stopped the FRV at approximately:
i) 00:15 for approximately 4 minutes; and or
ii) 00:21 for approximately 26 minutes; and or
iii) 00:51 for approximately 4 minutes.
d) did not ask for assistance from a DCA during the stop at Particular 1 (c)(ii)
e) did not re-check Patient A’s blood glucose levels after administration of oral carbohydrates.
2. On 31 December 2014 in relation to Patient B you:
a) did not carry out a thorough and/or complete assessment
b) as a result of your actions in 2a) you inappropriately discharged Patient B on scene
3. The matters described in paragraphs 1 and 2 constitute misconduct and/or lack of competence.
4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Notice and Jurisdiction
1. The Panel was satisfied that proper notification of this hearing had been given in accordance with the Rules. The documents showed that the Notice of this hearing, dated 8 July 2016, had been sent by first class post to the Registrant’s registered address on that date. This was over three months ago and thus satisfied the requirement of at least 28 days prior notice being given. The Notice contained the required details including the date, time and venue of this hearing. Accordingly, the Panel had jurisdiction to consider the case.
Proceeding in Absence
2. The HCPC made an application to proceed in the Registrant’s absence. The Panel took advice from the Legal Assessor who referred to the recent case of GMC v Adeogba  EWCA Civ 62 which makes clear that the first question the Panel should ask is whether all reasonable steps had been taken to notify the Registrant of the hearing. Thereafter, if the Panel is satisfied that proper notice has been given, the discretion whether or not to proceed must be exercised having regard to all the circumstances. He referred the Panel to the HCPC Practice Note on Proceeding in Absence.
3. The Panel was aware that Rule 11 of the Conduct and Competence Committee (Procedure) Rules 2003 confers discretion to proceed in a Registrant’s absence and that the principles derived from case law such as R v Jones and Tate v Royal College of Veterinary Surgeons confirm that the discretion is not absolute, it is severely constrained and must be exercised with the utmost care and caution. The Panel had regard to the HCPC Practice Note on Proceeding in Absence.
4. The Panel applied the above principles and concluded that it should proceed in the Registrant’s absence.
5. In the Panel’s view, all reasonable steps had been taken to notify the Registrant of this hearing. Sending the Hearing Notice to the registered address, without any information to suggest that the address was incorrect, was sufficient to satisfy the requirement in the Rules. In fact, further steps had been taken as a copy of the Hearing Notice was also sent to the Registrant’s email address on the same date.
6. The Panel noted that the Registrant had not engaged with the HCPC during these proceedings. He did not respond when invited to make representations to the Investigating Committee, nor did he return the Notice to Admit Facts. The Standard Directions invited him to submit any evidence at least 14 days before this hearing. He has not submitted any written representations. He has not attended this hearing. He has not made any application for this hearing to be adjourned.
7. In these circumstances the Panel concluded that the Registrant’s absence was deliberate and voluntary, and that he had waived the right to be present.
8. The Panel considered that it was unlikely that the Registrant would attend in the future if the case were to be adjourned. He has not attended today and the Panel has no reason to believe that the situation would be any different at a future hearing date.
9. The Panel recognised that the Registrant would be at a disadvantage if the case proceeded in his absence because he would not be able to challenge witnesses, present his own evidence or make oral representations. However, his position in relation to the allegations was set out in his statements and interviews during the internal investigation carried out by his employer, and he was given the opportunity to make written representations to the Panel if he so wished. Any factual disputes could be addressed with the witnesses by the Panel and the Legal Assessor.
10. The case involves alleged conduct dating back to late 2014 and early 2015. Further undue delay could have a bearing on the recollection of witnesses which was avoidable by proceeding. Four witnesses were scheduled to give live evidence, and they would be inconvenienced if the case was adjourned. Four days of hearing time had been allotted to the case, which would be lost through an adjournment. In the Panel’s view, these are all relevant factors to take into consideration when balancing the interests of the Registrant with the public interest.
11. The Panel concluded that the disadvantage to the Registrant was outweighed by significant reasons to proceed in his absence. The Panel determined it was fair and proportionate to proceed.
Application for Ms B’s evidence to be heard by Live Link
12. The HCPC applied for permission to use a live link for Ms B’s evidence so that she could give evidence from a venue close to her home. Mr Foxsmith explained that Ms B had broken her leg four months ago; her leg was still in a cast; she found it difficult to weight-bear; she could not travel unaccompanied; and her nearest train station was 10 to 15 miles from her home. Mr Foxsmith submitted that the application should be granted with reference to the guidance in the HCPC Practice Note on Special Measures. He relied on the reference to assistance being made available to a person with a disability.
13. The Panel enquired about any notice given to the Registrant regarding the intention to make this application. Mr Foxsmith confirmed that no notice had been given, which was an oversight on this occasion, and that this arose due to the need for the application only coming to light about a week before the hearing. The Panel did not consider this amounted to a satisfactory explanation. The HCPC had communicated with the Registrant using his email address and it was thus open to the HCPC to give notification of this application by email. The Panel was reassured to learn that notices of applications such as this are usually given.
14. The Panel sought advice from the Legal Assessor about the absence of notice to the Registrant. The Panel was advised that although notice should have been given of any application, the absence of notice did not automatically preclude the application being pursued and that the extent of any disadvantage to the Registrant was a relevant factor.
15. The Panel decided that there was no real disadvantage to the Registrant in the circumstances of this case. The Registrant had not engaged and there was no reason to believe that he would have engaged on this particular point. In any event, the application was based on Ms B’s difficulties in travelling and the question of allowing her to give evidence through a live link did not alter the case against the Registrant.
16. In respect of the application, the Panel was advised by the Legal Assessor that the HCPC Practice Note on Special Measures did not strictly apply to the circumstances of this case. He advised that Ms B might not be regarded as being disabled for the purposes of equality legislation. He further advised that the Panel, under general case management powers, was entitled to consider the means by which a witness can give evidence. Mr Foxsmith agreed with the advice given by the Legal Assessor.
17. The Panel accepted the advice of the Legal Assessor. The Panel decided that Ms B is not a vulnerable witness within the meaning of the Practice Note. Ms B is unable to travel due to her leg still being in a cast and her inability to weight-bear. Ms B did not require assistance to give evidence. Accordingly, the HCPC Practice Note on Special Measures did not strictly apply.
18. The Panel considered the application under its general case management powers to regulate the hearing in a manner deemed appropriate and fair.
19. The Panel discounted the option of adjourning the case to a time when Ms B could attend the hearing in person. There was no certainty as to when Ms B would be in a position to attend. It would have been desirable for Ms B to be present in the hearing room. However, there were very significant disadvantages to adjourning, including the delay and inconvenience to other witnesses.
20. The Panel was satisfied that appropriate arrangements had been made with regard to the live link. The HCPC had booked a room at a Conference Centre near to Ms B, a Hearings Officer was present in the room, Ms B had access to the documents, the link had been tested and Ms B was in a controlled environment.
21. By granting the application, the Panel would have the benefit of seeing and hearing the witness. This was the closest possible alternative to Ms B being present in the hearing room.
22. If the application were to be refused, the Panel would have been left with Ms B’s hearsay evidence in statement form only. Ms B was an important eye-witness, her evidence was highly relevant and some of her evidence was disputed by the Registrant during the internal investigation.
23. In these circumstances, the Panel was satisfied that it should exercise its general case management powers to direct that Ms B could give evidence by way of the live link.
24. The Registrant’s employment with East Midlands Ambulance Service (EMAS) began in April 2004. He qualified as a Paramedic in April 2008. He primarily worked as a solo responder on Fast Response Vehicles (FRV). The FRV is a liveried car, as opposed to an ambulance. Ambulances are usually crewed by two persons, who may both be paramedics, or by a paramedic and a technician or emergency care assistant. They are referred to as DCAs (double-crewed ambulance).
25. Particular 1 relates to the Registrant’s alleged conduct on 11 January 2015. The emergency services were called to the home of Patient A, a 21-year old female. The Dispatch Complaint is recorded at 22:44 as “had a fit, left arm dead, can’t move her legs”. The Registrant attended and was backed up by a DCA, crewed by RS (Paramedic) and MG (Emergency Care Assistant). Patient A was no longer fitting and was conscious when the Registrant arrived but she was still experiencing numbness in her left arm. The decision was made that Patient A should be transported to hospital. Patient A was reluctant to go to Royal Derby Hospital, but she was willing to go to Queen’s Hospital, Burton upon Trent. RS and MG offered to take Patient A in the DCA. The Registrant decided that he would transport Patient A to hospital in the FRV. En route to hospital, the GPS tracking system showed that the FRV stopped on three occasions, with one of those stops being for 26 minutes. The Registrant did not ask for back up from a DCA. Following the arrival of the Registrant and Patient A at Queen’s Hospital, ambulance staff had concerns about the transportation of the patient. Two of those members of staff submitted Incident Report Forms (IR1) to EMAS. MF, Locality Manager at the time, was appointed to investigate the matter.
26. During the investigation a further complaint was received relating to the Registrant’s alleged conduct which is set out in Particular 2. On 31 December 2014, the Registrant attended the home of a 74-year old female who had fallen and had been on the floor for one to one and a half days. It is alleged that the Registrant did not carry out a full assessment. He assisted in moving Patient B to her bed and advised that she should see her GP in the New Year. It is alleged that the Registrant discharged Patient B and left the address. A few hours later, Patient B’s family contacted the emergency services again and another solo responder attended. This time, an ambulance was requested and Patient B was transported to hospital. Ms B, the patient’s daughter, was present throughout.
27. The Registrant did not provide any written representations to the Panel. The Panel had regard to the Registrant’s statements and the record of his interviews with MF made during the internal investigation.
28. In relation to Particular 1, it was the Registrant’s case that he transported Patient A in the FRV. He accepted that he had stopped on three occasions because he was concerned about the patient’s condition. He said that he did not call for assistance during the journey because he could manage the situation and the hospital was only minutes away.
29. In relation to Particular 2, it was the Registrant’s case that Patient B had not presented in the way described by Ms B. He admitted that he had not noticed the pressure sore.
30. Mr Foxsmith opened and summarised the HCPC case.
31. The Panel heard evidence from the following witnesses for the HCPC: Ms B (Patient B’s daughter); MG (Emergency Care Assistant) and RS (Paramedic) who formed the ambulance crew on 11 January 2015; and MF (Investigating Officer).
32. The Panel addressed the issues raised by the Registrant during the internal investigation with the witnesses, so that their evidence on those points was available for consideration.
33. The Legal Assessor was given the opportunity to ask any residual questions but confirmed in relation to each witness that there were no outstanding questions that he wished to pursue.
34. The Panel then heard closing submissions on behalf of the HCPC and received advice from the Legal Assessor.
Decision on facts
35. The Panel took account of all the oral and written evidence, the documents in the case including the Registrant’s written statements and interviews, and the submissions of the HCPC.
36. The Panel was aware that the burden of proving the facts was on the HCPC, that the Registrant did not have to prove anything and that the case is only to be found proved if the Panel was satisfied on a balance of probabilities.
37. The Registrant’s absence did not alter the burden or standard of proof. The Panel drew no adverse inferences from the Registrant’s non-attendance or his lack of engagement.
38. Before examining the individual particulars set out in the Allegation, the Panel considered the nature and quality of the evidence it had heard and read.
39. Ms B’s oral evidence was consistent with her interview with the EMAS investigator and her written statement. Her evidence was clear, straightforward and was not exaggerated. Ms B was not over-critical of the Registrant’s failure to detect Patient B’s pressure sore, on the basis that she had not detected it herself and she had not drawn it to the Registrant’s attention. She made appropriate concessions which enhanced her credibility, such as accepting that the Registrant had been at the property for some length of time and that he was working beyond the scheduled end of his shift. She readily acknowledged that paramedics have a difficult job. However, she did maintain that the Registrant had failed to carry out a proper examination, that her mother’s breathing was ‘raspy’, that her skin was yellow and that she was in pain. There was no evidence to suggest that Ms B had exaggerated her mother’s condition. Ms B stated that, at times, she had been “stroppy” with the Registrant because he did not appear to be listening to her concerns, but the Panel did not consider that she demonstrated any overt hostility towards him that might have affected her credibility. In all, Ms B’s evidence was credible and reliable.
40. MG was the least experienced of the three staff who attended Patient A and was the most junior in terms of position. Having said this, she was a credible and reliable witness. There was nothing to suggest that there was any hostility between her and the Registrant. MG accepted that she found it difficult to raise concerns about the Registrant’s clinical decisions, but this did not affect her credibility as a witness. She gave her evidence in a straightforward manner. Her recollection was not perfect and she acknowledged when she could not remember details.
41. RS was more experienced and senior to MG. RS’s evidence was credible and reliable. RS perceived difficulties working with the Registrant which went some way to explain why she did not challenge him about the decision to transport Patient A in the FRV. She recognised that she should have completed an IR1. There was no evidence of collusion between MG and RS. For example RS referred to MG assisting with canulation when MG had not mentioned this. Despite the comment about the working relationship with the Registrant, there was nothing to suggest that MG had an axe to grind; if she had, then reporting him with an IR1 would have been the means to highlight his deficiencies. The Panel had no reason to doubt MG’s credibility or reliability.
42. Furthermore, the evidence from MG and RS was clear, straightforward consistent and they corroborated each other on key factual issues. Their evidence was balanced and was not overstated. They were clear that Patient A did not wish to go to Royal Derby Hospital, but was willing to go to Queen’s Hospital, and that the Registrant took the lead in suggesting that he should take Patient A to hospital in the FRV. Both witnesses felt that they could not challenge the Registrant about this as he was the senior clinician on the scene; they did not wish to appear to undermine his role and later regretted not being more assertive at the time.
43. MF is a very experienced paramedic. He was passionate about the profession and felt strongly about the things that the Registrant, in his view, had done wrongly. The Panel felt that, at times, he may have gone beyond his investigative brief and the confines of the case. For example, he expected the Registrant to recall treating Patient B because she was the mother of a paramedic colleague, but he was then unable to confirm whether the Registrant was aware of that fact at the time. He also appeared to make the assumption that Patient A’s Glasgow Coma Scale (GCS) score of 3/15 when she arrived at Queen’s Hospital would have followed a linear deterioration, whereas the evidence suggested a fluctuating level of consciousness.
44. On the other hand, MF had carried out a thorough investigation and produced relevant documentary evidence including the Electronic Patient Report Forms (EPRF) completed by the Registrant in respect of Patients A and B, the EPRF completed by the second paramedic (PR) who treated Patient B, the IR1s and the vehicle tracking information. MF interviewed relevant witnesses. The investigation process appeared robust as witnesses were given the opportunity to correct their statements. In all, it was a professionally conducted investigation.
45. The Panel took into account the inherent limitations associated with hearsay evidence from seven witnesses who had provided statements to MF but who had not given evidence before the Panel. The Panel attached such weight to this hearsay evidence as appeared appropriate, and bore in mind that it was unable to assess the credibility or reliability of these seven witnesses.
46. The Panel also bore in mind that the Registrant has not given evidence in these proceedings. Consequently, the Panel has been unable to form its own view about his credibility and reliability. The Panel has given appropriate weight to the written statements of the Registrant and his responses to questions during the internal investigation, but noted that there were occasions when he gave conflicting accounts.
47. In relation to the stem of Particular 1, the Panel found that there is clear evidence that the events occurred on 11 January into the early hours of 12 January 2014. The EPRFs and tracking information show that the Registrant attended Patient A’s home at 22:51 on 11 January 2014, that he transported her to Queen’s Hospital and that they arrived at the hospital at 00:58 on 12 January 2014.
48. The Panel found the stem of Particular 1(a) proved. There is clear evidence from MG and RS that Patient A was transported by the Registrant in his FRV instead of their DCA. There is evidence from the Registrant’s contact with Control that he had done this. The Registrant admitted during the internal investigation that he had transported Patient A in the FRV. There were also statements from those at the receiving hospital confirming the method of transport was the FRV and not a DCA.
49. In respect of Patient A’s presentation, the Panel primarily took this information from the EPRF completed by the Registrant himself. Patient A was believed to suffer from epilepsy and she was taking anti-convulsant medication, although the Panel was not shown evidence of a diagnosis. In any event, the Registrant treated Patient A on the basis of that condition. The Registrant documented that Patient A had had two fits in succession that evening and had also had a fit less than a week earlier. She continued to suffer left arm weakness. She had a GCS of 14/15 when the first set of observations was taken, but this had increased to 15/15 by the time of the second set of observations at the scene.
50. In respect of the risk of repeated seizure, the Panel noted that different terminology was used on occasions and that the words ‘seizure’, ‘fit’ and ‘convulsion’ appear to have been used interchangeably. The Panel was not provided with any evidence to explain whether there are differences between these terms, and proceeded on the basis that, in the circumstances of this case, they were synonymous. The Panel took into account that Patient A had already had two seizures that evening, and she had also had a seizure less than a week earlier. RS stated that she would not have transported Patient A by FRV because of the risk of further seizures. In addition, the Registrant canulated the patient. The timing of the canulation was significant as it was 15 minutes before the start of the journey to Queen’s Hospital and after the decision had been made to transport the patient in the FRV. There appears to be no other valid clinical reason for canulation other than to administer medication. It is therefore consistent with the Registrant recognising the possible need to administer medication en route to hospital. In the Panel’s view, there was a clear and recognised risk of further seizures.
Particular 1(a)(i) proved
51. There was no clinical justification for the use of the FRV. A DCA was already present and would have been able to transport the patient just as quickly as the FRV (and in a more appropriate environment). The journey would involve passing Royal Derby Hospital en route to Queen’s Hospital.
Particular 1(a)(ii) proved
52. There is no dispute that both MG and RS, on a number of occasions, offered to take Patient A to hospital. Both MG and RS, and MF, said that the DCA would ordinarily be used to transport a patient in these circumstances. MG said that in general terms the whole point of an ambulance is to transport; the purpose of an FRV is to assess. It made no sense to her that the FRV was going to be used for transporting Patient A, thereby freeing up the ambulance which was there to transport the patient.
Particular 1(a)(iii) proved
53. The EMAS Policy on transporting patients by solo responder is set out in a Standard Operating Procedure (SOP) document dated 21 December 2012. A copy of the SOP was produced in evidence. In section 5.0 of the SOP, there is a list of 13 examples of situations in which a patient should not be transported in an FRV. Four of those situations were relevant to Patient A, namely: collapse with history of unconsciousness; unstable epileptic; any patient with reduced GCS <15; and patients that pose an IPC [Infection Prevention and Control] risk to the vehicle (incontinence).
54. Section 4.4 of the SOP states that: “When the responder is assured that the patient is at low clinical risk of deterioration, or that the risk of delaying transport is greater than the risk of remaining on scene any longer, transport by solo response vehicle can be undertaken.”
55. For the reasons already given, this was not a situation of low clinical risk of deterioration. Equally, it was not a situation in which there was a risk caused by any delay in obtaining transport, as there was a DCA available at the scene.
56. The Panel finds that the Registrant’s decision to transport Patient A in the FRV was against the EMAS policy as set out in the SOP.
Particular 1(b) proved
57. The factual background is that the Registrant did not start the journey on blue lights, but there was no requirement for him to do so. He did finish the journey on blue lights. The Panel finds that there were parts of the journey where the Registrant proceeded without using blue lights despite the fact that the patient’s condition had deteriorated. It is clear from the Registrant’s responses that he became aware, during the journey, of changes to Patient A’s condition. First, she started to complain of a strange taste in her mouth which could have been indicative of the possible onset of a fit. Second, her level of consciousness dropped “almost to the point of unconsciousness” during the 26-minute stop. Subsequently, there was some improvement in her condition but shortly afterwards she began to fit. It was only in the final three minutes of the journey that the Registrant used the blue lights. At earlier points in the journey, after the patient’s deterioration, he had continued the journey without blue lights.
Particulars 1(c)(i)-(iii) proved
58. MF had access to tracking data for the FRV and produced a timeline of the journey. From the timeline, it is possible to identify the three stops mentioned in the particular. The Registrant accepted that he had stopped the vehicle on occasions and did not contest the analysis carried out by MF when this information was addressed in the internal investigation. The Panel accepted MF’s analysis and found this particular proved.
Particular 1(d) proved
59. The timeline produced by MF showed that the Registrant had stopped the FRV between 00:21 and 00:47. It was clarified that the location was a car park on an industrial estate by a carpet shop. During that 26-minute stop, at 0038, the Registrant contacted Control. In the Registrant’s statement of 22 January 2015, he explained that he did not ask for a DCA as he felt he could cope with the situation and that by the time a DCA would reach him he may well have been at hospital. However, he was concerned and this is why he updated Control. The Panel interpreted his use of the word “update” to mean that he was providing information to Control rather than requesting support from colleagues. It noted that the Registrant said he had provided no treatment to Patient A during the 26-minute stop and, when asked why he had sat for that length of time without doing anything, he could not provide any explanation.
Particular 1(e) proved
60. The EPRF shows that there was one recording of Patient A’s blood glucose level in the first set of observations at 23:00. A second set of observations was taken at 23:14 but there is no record of the blood glucose level. In his interview with MF on 19 February 2015, the Registrant was asked why he did not check the blood glucose level again. He replied: “I thought she would come out of it, I should have done one”. The evidence shows that the blood glucose level was checked once; the Registrant admitted that he should have re-checked.
61. There is no dispute that these events took place on 31 December 2014.
Particular 2(a) proved
62. The Panel considered the information that the Registrant recorded about Patient B in the EPRF. He recorded that she was a 74-year old woman with diabetes, she had been on the floor for a day and a half, a full GCS assessment was carried out, she had no known injury and she had been unable to get up. He also carried out vital signs observations. At 18:11, he noted that there were no abnormal breathing signs and that her breathing sounds were normal/clear. He noted that her skin colour was normal. There is no evidence that the Registrant carried out any check of Patient B for injuries or damage to the skin. There was no apparent enquiry as to possible reasons for the fall. In addition, there is no evidence of him assessing or advising in relation to possible dehydration. With regard to breathing, in contrast, Ms B said that her mother was having trouble with breathing which she described as ‘raspy’ and she did not recall the Registrant examining her mother or using a stethoscope. She recollected her mother’s skin being coloured yellow, which she said she pointed out to the Registrant. This is again in contrast to the recordings made by the Registrant in the EPRF. Further, the Registrant recorded that the patient was not suffering from pain. This conflicted with Ms B’s evidence that her mother was ‘yelping’ with pain. It is also inconsistent with the Registrant’s decision, at 18:53, to administer Entonox. There would have been no clinical reason to do this unless the patient was in pain. A thorough and complete assessment would have included the taking of a clinical history, an examination of the skin, a head-to-toe examination and a physical examination commensurate with the presentation of the patient. The Panel accepted the evidence of Ms B and concluded, on the basis of her evidence and the EPRF, that the assessment carried out by the Registrant was neither thorough nor complete.
Particular 2(b) proved
63. The Panel first considered whether Patient B had in fact been discharged by the Registrant. The EPRF, completed by the Registrant, referred to the patient being made comfortable in her bed, advice being given to rest and recuperate over the New Year period and then for the GP to be called if required. Further advice was given to recall the paramedics if her condition worsened. He recorded the response outcome as “Treated and Discharged”. In addition, the EPRF was signed, possibly by Ms B, as “treat and no transport”. The fact that the family had to call out another paramedic later that evening provided additional evidence that the patient had been discharged by the Registrant at the end of his visit. The Panel was satisfied that Patient B was discharged by the Registrant.
64. The Panel then considered whether discharging the patient was inappropriate. The Panel attached weight to the statement from PR, dated 27 March 2015, and the contents of his EPRF of 31 December 2014. In his statement, PR described how he started his observations of Patient B, that he took a history from one of her relatives, and at this point he came to the decision that the patient should have gone into hospital earlier and that she should not have been put back into bed. This was before PR had had his attention drawn to the pressure sore, which he described as “open and inflamed and needed obvious treatment”.
65. The Panel concluded that the discharge of Patient B by the Registrant had been inappropriate.
Decision on grounds
66. The Panel first considered whether the proven facts amounted to misconduct. The Panel took into account the guidance in Roylance v General Medical Council  AC 311.
67. The Panel considered the HCPC Standards of Conduct, Performance and Ethics (the Standards). The Panel concluded that the Registrant’s actions breached Standard 1 which obliged him to act in the best interests of service users and Standard 13 which obliged him to ensure that his behaviour did not undermine the public’s confidence in him and his profession.
68. The Panel was invited to consider Standard 3, which relates to the obligation to maintain high standards of personal conduct. The Panel was of the view that this case concerned the Registrant’s conduct during the course of his work as a paramedic. Standard 3 is more relevant in respect of conduct outside the work environment and is not directly engaged here.
69. The Panel reminded itself that breaches of the Standards do not automatically lead to a finding of misconduct. The breaches must be sufficiently serious to justify this label. In relation to particulars 1(a), 1(c)(ii), 1(d), 2(a) and 2(b) the Panel concluded that the Registrant’s conduct fell far below that which can reasonably be expected of a registered paramedic. The Registrant’s actions led to a significant risk of serious harm to both patients. He acted with a reckless disregard for risk. Patient A suffered a fit en route to hospital in the FRV, and there were a number of dangerous and potentially life-threatening risks associated with this: neurological damage; airway obstruction; causing physical injury to herself and the Registrant; and distracting the Registrant thereby impairing his ability to drive safely. His errors were compounded by his failure to take appropriate steps to provide treatment and call for assistance when Patient A’s condition did in fact deteriorate during the journey. Patient B was at risk of respiratory compromise and dehydration. She could have suffered injury from her fall. She had sustained a serious wound which required urgent hospital treatment. All these risks were entirely avoidable had the Registrant carried out proper assessments or examinations, and followed EMAS policies.
70. The Panel therefore finds that the Registrant’s actions were sufficiently serious to amount to misconduct in relation to particulars 1(a), 1(c)(ii), 1(d), 2(a) and 2(b).
71. In relation to Particulars 1(b), 1(c)(i), 1(c)(iii) and 1(e) the Panel does not find that the Registrant’s actions amounted to misconduct.
72. In relation to Particular 1(b) the Panel has found, as a fact, that the Registrant did not transport Patient A to hospital on blue lights despite the deterioration of her condition. However, there was no requirement from the beginning of the journey to proceed in accordance with emergency driving procedures. The Registrant did utilise blue lights towards the end of the journey. Merely activating blue lights does not in itself guarantee the journey time would be quicker. It may be that the use of the words ‘blue lights’ in the particular is intended to be a short-hand reference to emergency driving procedures, but the case has not been put on this basis and it would be inappropriate for the Panel to make that assumption. It may well be that the Registrant should have followed emergency driving procedures at some stage during the journey, after the patient’s condition started to deteriorate, but this is not specifically alleged as being the mischief or issue in this case. Given the time of day and the road conditions, it is unlikely in any event that following emergency driving procedures would have resulted in a significantly quicker journey. Therefore the Panel did not consider the decision not to utilise blue lights at certain points during the journey is sufficiently serious to amount to misconduct.
73. In relation to particulars 1(c)(i) and (iii), it was appropriate for the Registrant to stop the vehicle when he became aware that the patient’s condition may be deteriorating. These two relatively short stops, of around four minutes each, can be contrasted with the 26-minute stop during which the Registrant said he did not provide any treatment to the patient or indeed take any action at all. The stops in 1(c)(i) and (iii) do not amount to wrong-doing on the part of the Registrant and so do not constitute misconduct.
74. In relation to Particular 1(e), the Panel recognised that it would have been appropriate for the Registrant to recheck Patient A’s blood glucose levels, having noted a reading of 3.8 at 23:00. However, Patient A was not a diabetic and there was no clinical reason to believe that her condition was the result of low blood glucose levels. Therefore, any failure on the Registrant’s part to recheck the blood glucose levels, whilst not condoned by the Panel, was not sufficiently serious in the circumstances to amount to misconduct.
75. The Panel also considered whether any of the proven facts demonstrated that the Registrant lacked competence to practise safely and effectively as a paramedic. In the Panel’s judgement, the errors in relation to both patients did not arise from a lack of knowledge or understanding about his role, or of the required standards of performance. The Registrant was an experienced paramedic, having been in practice for around six years before these incidents occurred. He would have undoubtedly carried out countless assessments and examinations, and been involved in numerous decisions to transport patients to hospital. He had also been a solo responder for some time. The Panel was satisfied that he knew how to carry out these tasks correctly. In addition, the case involves only two patients over a period of less than two weeks. This is not a fair or representative sample of the Registrant’s work upon which to base an assessment of his level of competence. Therefore the Panel concluded that the statutory ground of lack of competence was not established.
Decision on impairment
76. In considering the issue of current impairment, the Panel has taken into account that the purpose of regulatory proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.
77. The Panel took into account the HCPC Practice Note on Finding that Fitness to Practise is “Impaired”. The Panel took account of the guidance in General Medical Council v Meadow  EDCA Civ 1319; Cohen v General Medical Council  EWHC 581 (Admin); and CHRE v NMC and Grant  EWHC 927 Admin.
78. The Practice Note refers to two components which should be taken into account when determining whether fitness to practise is impaired. The ‘personal’ component is concerned with the “current competence, behaviour etc of the individual registrant” and the ‘public’ component with “the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession”.
79. The Panel was provided with no information about the Registrant’s current employment or his activities since he resigned from EMAS in July 2015. The Panel has no basis upon which to form a view as to his current levels of insight into his misconduct or whether he has taken any remedial steps. The misconduct is remediable but there is no evidence before the Panel that it has been remedied.
80. The Panel considered that, in his written statement and interview responses, the Registrant was dismissive of the suggestion that his treatment of the patients had been inappropriate. He demonstrated no remorse or recognition of the risks to which he had exposed his patients. It was significant that, on his arrival at Queen’s Hospital with Patient A, he said to a member of staff: “I have just nearly got myself in a right lot of trouble here”. This strongly indicates that the Registrant’s focus was on himself and not on his patient.
81. The Registrant has been unable to explain why the errors occurred. Until the Registrant has identified why the errors occurred, it will be difficult for him to start the process of reflecting on how best to avoid such errors in the future. He has failed to take full responsibility for his misconduct.
82. The Panel identified only very limited insight on the part of the Registrant. In the internal investigation, he acknowledged that, with regard to the transportation of Patient A in the FRV and his failure to identify Patient B’s pressure sore, he should have acted differently and would do so in the future. However, MF said that the Registrant only made these concessions when prompted to do so, and the Panel agreed with this observation.
83. In view of the Registrant’s lack of insight and remedial action, in the Panel’s judgement the Registrant’s fitness to practise is currently impaired by reference to the personal component.
84. The Panel went on to consider the public component. The misconduct was serious and involved two vulnerable patients who were put at significant risk of serious harm.
85. The Panel also took into consideration that the misconduct was repeated within less than two weeks. In considering the likelihood of recurrence, the Panel was of the view that the absence of insight, remorse and evidence of effective remedy means that there is a high risk of the Registrant repeating the misconduct.
86. Therefore the Panel concludes that there is an on-going risk to the public from which the public needs to be protected.
87. The Registrant’s actions fell far below the standards expected of a paramedic in relation to both Patient A and Patient B. Other health care professionals expressed concern about his actions. The Panel finds that there is a need to demonstrate the importance of adhering to the fundamental tenets of practice by declaring and upholding proper standards of professional behaviour.
88. The Panel is also of the view that the nature of the risks to the patients and the extent to which the Registrant has fallen short of the required standards would have a detrimental effect on the public’s confidence in him and in the paramedic profession. A finding of current impairment is necessary in order to maintain public confidence in the profession and the regulatory process, by sending a clear message that this type of misconduct is wholly unacceptable.
89. Therefore, the Panel finds the Registrant’s fitness to practise also impaired by reference to the public component.
90. Accordingly, the HCPC’s case is well-founded.
Decision on Sanction
91. In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.
92. The Panel took account of the submissions made by Mr Foxsmith who highlighted the aggravating features of the case. He set out the approach that should be taken with reference to the ISP.
93. The Panel reminded itself again that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.
94. The Panel determined that the aggravating features include:
• the vulnerable nature of the patients;
• the Registrant’s actions led to significant risk of serious harm to the patients;
• the Registrant demonstrated a reckless disregard for patient safety;
• there was repetition of the serious misconduct on two occasions within a short space of time;
• the risks to each patient were entirely avoidable and opportunities to minimise the risks were not taken;
• the Registrant demonstrated no remorse for the risks to which he exposed his patients;
• there is a high risk of recurrence from the public needs protecting.
95. The Panel determined that the mitigating features include:
• the Registrant did make some admissions during the EMAS investigation;
• there is some evidence of limited insight;
• there is no evidence of a general lack of competence;
• the incidents occurred during a short period during a long career;
• this is the first time the Registrant has appeared before his Regulator.
96. The seriousness of this case meant that taking no action was not an option and a Caution Order, even for the maximum duration, would not provide adequate protection to the public or the required level of public reassurance.
97. The Panel then considered and excluded the imposition of a Conditions of Practice Order. The high risk of recurrence makes this Order unsuitable. The misconduct in this case is largely attitudinal and, even if were possible to formulate appropriate conditions, the Panel has no confidence that the Registrant would be willing or able to comply with such an Order given his lack of engagement with this regulatory process. Furthermore, there is no information before the Panel about the Registrant’s current circumstances and so no assessment as to the viability of conditions can be made.
98. The Panel then went on to consider the imposition of a Suspension Order and concluded that such an order for 12 months was a proportionate sanction.
99. The Panel noted paragraph 34 of the ISP which states that where the evidence suggests that the Registrant will be unable to resolve or remedy his failings then a Striking Off Order may be the more appropriate option. However, where there are no psychological or other difficulties preventing the Registrant from understanding and seeking to remedy the failings then suspension may be appropriate.
100. The Panel also bore in mind paragraph 41 of the ISP relating to Striking Off Orders which states that Striking Off should be used when there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters would suggest a lower sanction might not be appropriate.
101. The Panel concluded that there is no evidence of psychological difficulties and that the mitigating factors suggest that the Registrant may, over time, be capable of understanding and seeking to remedy his failings.
102. Considering these paragraphs from the ISP in the particular circumstances of the Registrant’s case, the proportionate balance lies in favour of allowing the Registrant an opportunity to demonstrate insight and remediation.
103. The Panel is reassured in its decision by the fact that the public will be protected by the Suspension Order which will prevent the Registrant from practising, until he is able to demonstrate to a Reviewing Panel that his fitness to practise is no longer impaired.
104. The Panel also gave careful consideration to whether the wider public interest would be adversely affected by a decision to impose a Suspension as opposed to a Striking Off Order, in terms of the deterrent effect and the need to ensure confidence in the profession and regulatory process. On balance, the Panel concluded that the wider public interest would be satisfied by the imposition of a Suspension Order but the Panel is of the view that it should invoke Article 29(7)(b) of the Health and Social Work Professions Order 2001. In the Panel’s view the Registrant would not be able to demonstrate sufficient insight or remediation in a period shorter than 10 months. Moreover, the wider public interest would require at least that long to mark the seriousness of the misconduct and the need to maintain confidence in the regulatory process.
105. The Panel thus imposes a Suspension Order for 12 months with a direction that the Registrant is not permitted to seek an early review before the expiry of 10 months.
106. In the Panel’s view this outcome reflects the seriousness of a case in which two vulnerable patients were put at risk, the potential for serious harm was significant, the misconduct was repeated, and the failure was compounded the Registrant missing opportunities to correct his earlier errors.
107. This outcome will address the need to uphold and declare proper standards of behaviour and it will act as a deterrent to others who may contemplate departing from fundamental tenets of the profession. The Suspension Order will serve to restore confidence in the profession by demonstrating that those who fail to act in the best interests of patients are prevented from practising until such time as they are capable of safe and effective practice. It will also maintain confidence in the regulatory process as members of the public will be reassured by the fact that cases such as this are taken seriously.
108. The Panel has imposed an Order that is capable of being reviewed because the Registrant may now reflect on the findings against him and develop a willingness to bring about changes to his professional practice. He now has time to reflect, which may enable him to develop insight and demonstrate remediation of his misconduct. A review will give him an opportunity to engage with this process and show a Reviewing Panel that his fitness to practise is no longer impaired.
109. The Panel considered whether it was necessary to impose a Striking Off Order, but took the view that such an Order would be disproportionate when a lesser sanction was sufficient to protect and reassure the public.
110. A Reviewing Panel may be assisted by the following:
• the Registrant’s personal attendance at the Review Hearing;
• evidence of the Registrant’s reflections on the findings made against him;
• evidence of insight and remedial steps;
• references or testimonials in respect of paid or voluntary work;
• evidence that the Registrant has kept his knowledge of paramedic practice up to date through relevant CPD;
• any other evidence that the Registrant considers being relevant.
111. Mr Foxsmith applied for an Interim Suspension Order. The Panel had anticipated the application and had received advice from the Legal Assessor which was confirmed on the public record.
112. The Panel granted the HCPC application for an Interim Order of Suspension. The Panel was satisfied that the Registrant had been informed that such an application may be made when he was notified of this hearing. The Panel was satisfied that an interim order is necessary in the circumstances of this case rather than it being an automatic consequence. The Panel made the order on two of the statutory grounds, namely the need to protect the public and it being otherwise in the public interest. The absence of an interim order would have left the public at risk pending the substantive order coming into force. In the Panel’s view this would have represented a serious risk to public protection and would have also seriously undermined confidence in the profession and this regulatory process. Furthermore, in the event of an appeal, the public would be left at risk for an even longer period. The Panel adopts the reasons in the main decision as further justification for the imposition of an Interim Suspension Order for a period of 18 months.
The order imposed today will apply from 10 November 2016 (the operative date) once the appeal period is over.
This order will be reviewed again before its expiry on 10 November 2017.
History of Hearings for Mr Shane Kennedy
|Date||Panel||Hearing type||Outcomes / Status|
|06/10/2017||Conduct and Competence Committee||Review Hearing||Suspended|
|10/10/2016||Conduct and Competence Committee||Final Hearing||Suspended|