Mr Brian James Miller

: Paramedic

: PA15793

Interim Order: Imposed on 27 Feb 2017

: Final Hearing

Date and Time of hearing:10:00 27/02/2017 End: 17:00 28/02/2017

: Scottish Health Service, Crewe Road South, Edinburgh, EH4 2LF

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as a Paramedic with Knockhill Racing Circuit between January 2012 and September 2015, you:

1. Took and/or used bottles of Entonox for personal purposes.

2. The matters set out at paragraph 1 constitute dishonesty.

3. The matters set out in paragraphs 1 and 2 constitute misconduct.

4. By reason of your misconduct your fitness to practise is impaired

Finding

1. The case for the Health and Care Professions Council was presented by Ms Shannett Thompson of Kingsley Napley, Solicitors. The Registrant was not present or represented.

2. The Panel considered Ms Thompson’s application to proceed in the Registrant’s absence. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules and it therefore had a discretion to proceed in the Registrant’s absence in terms of rule 11. The Panel considered the submissions of Ms Thompson, the advice of the Legal Assessor and had regard to the HCPC Practice Note on Proceeding in Absence.

3. The Panel is aware that the discretion to proceed in absence is one which must be exercised with the utmost care and caution.  The Panel has had sight of a letter from the Registrant to the HCPC dated 17th November 2015 in which he advised that he would not be in attendance at the hearing and will not be represented, there has been no further correspondence from him. In reaching its decision, the Panel has borne in mind the need to strike a careful balance between the Registrant’s interests and the wider public interest.  The allegation dates back to a period between 2012 and 2015 and there is a public interest in the case being heard in a timely manner. Further there is one witness for the HCPC present today. Given the terms of the Registrant’s letter of 17 November 2015, the Panel is of the view that he has voluntarily absented himself and that an adjournment would be unlikely to secure his attendance at a future date. The Panel has therefore agreed to proceed in the Registrant’s absence as it is satisfied that it is in the public interest to do so.

4. Ms Thompson drew the Panel’s attention to the Registrant’s request for the whole hearing to be held in private in order to avoid stress to Person A, who was at the time of the request said by the Registrant to be seriously ill. Ms Thompson advised that the HCPC contested that application and that the individual could be referred to as “Person A”. If there were any references to the Registrant’s health, those matters could be taken in private.

5. The Panel considered the Registrant’s application and the submissions of Ms Thompson.  The Panel took into account the HCPC’s Practice Note on Conducting Hearings in Private and accepted the advice of the Legal Assessor. The Panel is aware that the open justice principle requires that proceedings should be heard in public and that evidence should be communicated publicly. Fair, accurate and contemporaneous media reporting of proceedings should not be prevented unless strictly necessary. Conducting hearings in private is regarded as the exception. The Panel is satisfied that it would be possible to conceal the identity of the person referred to by the Registrant by using the term “Person A”. Any references to health issues could be heard in private. The Panel therefore refused to grant the application.

Background

6. The Registrant had been working as a Paramedic at Knockhill Racing Circuit (“Knockhill”) for a number of years, initially supplied by a private ambulance service and since January 2012, he was directly employed by Knockhill. The Registrant was the Lead Paramedic and was responsible for maintaining stocks in the medical centre at Knockhill. He was also responsible for dealing with racing participants and members of the public injured during events. The Registrant reported to Witness 1, Managing Director and IF, Circuit Manager.  His duties included managing the staff rota, stock checks and maintenance and ordering stock, including prescription only medicines and medical gases.

7. In June 2015, Witness 1 registered with the BOC Gases website to allow online account management and ordering. She requested that the Registrant advise her of the returns and/or orders for the gases, so that she could process the orders online. She said that she then received advice from the Registrant about the stock level and would order the gas bottles based on that information. The Registrant would still continue to collect the gas bottles and return the empty bottles.

8. On 5 August 2015, an order was placed for seven Entonox bottles and seven empty Entonox bottles were returned. This date was straight after a motorcycle race meeting. On 25 August 2015, Witness 1 noted that five Entonox bottles were empty. She reviewed the records and it showed that only three patients were treated in the medical centre during the course of normal operations from 5 August 2015 until the British Touring Car event on 21 August 2015. Witness 1 then conducted an internal investigation due to the concerns raised.
     
Decision on Facts

9. The Panel heard oral evidence from one witness on behalf of the HCPC:  Witness 1, Managing Director of Knockhill Racing Circuit Ltd. In addition the Registrant has confirmed in his letters dated 22 October 2015 and 17 November 2015 that he did not contest that he took Entonox. Although he claimed in his second investigatory meeting that he took it for Person A, in his letter of 17 November 2015 he has admitted that he took the Entonox himself and that he became addicted.

10. The Panel found Witness 1 to be a credible witness who did her best to assist the Panel.

Particular 1

11. The Panel heard evidence from Witness 1 in support of this allegation and had sight of the record of the supply of Entonox for Knockhill Racing Circuit, the records of interviews with the Registrant and his employers and the summary of Witness1’s internal investigation. The Panel has heard that the Registrant was solely responsible for the setting stock levels of Entonox and that he would deal with deliveries on a day when no other members of staff were present. The Panel is satisfied that the Registrant both took bottles of Entonox and self-administered it, based on the evidence of Witness 1 and by his own admissions.

Particular 2

12. The Panel next considered the issue of dishonesty and has applied the two stage test. The Panel has first considered whether what was done was dishonest by the standards of reasonable and honest paramedics and if the Registrant in fact realised by those standards that what he was doing was dishonest. The Panel has found that a paramedic taking property belonging to his employers without their knowledge or authorisation would be considered dishonest by the standards of reasonable and honest paramedics who, by virtue of their profession, are bound to act with integrity and honesty.

13. The Panel next considered whether the Registrant in fact realised that what he was doing was dishonest by those standards.  The Panel has heard evidence that the Registrant initially denied that he had taken the Entonox from his employers and at the second interview admitted that he had taken the Entonox but denied that he personally had used the Entonox.  It is clear to the Panel that the Registrant was aware that what he was doing was dishonest and this is why he has initially denied taking the Entonox. It was only when he was faced with the findings of the investigation that he admitted taking the Entonox. The Panel is therefore satisfied that the Registrant in fact realised that what he was doing was dishonest by those standards, hence his attempts to conceal what he was doing. This demonstrates to the Panel that the Registrant in fact realised that this would be dishonest and the Panel is therefore satisfied that the subjective test for dishonesty has been met. The Panel has therefore found that the Registrant’s actions in particular 1 were dishonest.

Decision on Grounds

14. The Panel next considered whether the Registrant’s actions in particulars 1 and 2 amount to misconduct. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has also considered the advice of the Legal Assessor. The Panel has found that the Registrant has dishonestly taken and used Entonox belonging to his employers.  The Panel is of the view that the Registrant’s conduct in particulars 1 and 2 fell far short of what would be proper in the circumstances and breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics in force at the relevant time :-

15. Standard 3 – You must keep high standards of personal conduct.

16. Standard 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

17. The Panel considers that honesty is one of the fundamental tenets of the profession, particularly for Registrants who are in a position of trust and dealing with vulnerable patients. The Registrant abused his trusted position at the Racing Circuit by stealing from his employer medication intended for his patients.  The Registrant’s dishonesty was serious and fell well below the standards expected of a registered health professional. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in particulars 1 and 2 amounts to misconduct. 

Decision on Impairment

18. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component together with the advice of the Legal Assessor.

19.  In terms of the personal component, the Panel has seen limited evidence of insight or remorse.  In his letter of 17 November 2015, the Registrant makes reference to being ashamed of what he has done and apologising for his actions. The Panel is of the view that he does not have insight into the impact of his actions on the profession and on public confidence in the profession. The Panel has also considered the question of remediation. The Registrant has not produced any evidence of remediation, although he has made reference to receiving assistance for his health matter, he has not submitted any evidence to support this.  While accepting that it can be difficult to demonstrate remediation in relation to dishonesty, in the absence of sufficient insight in respect of his failings, the Registrant will not be in a position to begin to address those failings. In these circumstances, the Panel has taken the view that there is a real risk of repetition.

20. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.

21. The Panel has found that the Registrant has dishonestly taken Entonox from his employers and then used it personally.  The Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession of paramedics and in the regulatory process, if a finding of impairment were not made in these circumstances.
22. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by his misconduct and the allegation is well founded.

Decision on Sanction

23. The Panel has heard submissions from Ms Thompson on the issue of sanction. The Panel has also considered the advice of the legal assessor and had regard to the HCPC’s Indicative Sanctions Policy.

24. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

25. The Panel considered the following mitigating factor:- there was no actual patient harm caused by the Registrant’s actions.

26. The Panel also had regard to the following aggravating factors:- the Registrant’s conduct involved dishonesty and thereby breached one of the fundamental tenets of the profession; the Registrant has not demonstrated appropriate insight, remorse or remediation.

27. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate given the serious nature of the Registrant’s failings and the risk of repetition identified. The Panel has concluded that neither would be sufficient to address the wider public interest considerations.

28. The Panel next considered a Conditions of Practice Order and has had regard to the Registrant’s letter of 22 October 2015 in which he states that he has not worked as a paramedic since leaving Knockhill Racing Circuit and will not seek work as a Paramedic in the future. The Panel therefore has no indication that the Registrant would be willing to comply with conditions of practice.  In addition, given the finding of dishonesty, the Panel is of the view that it could not formulate conditions to address this issue. The Panel therefore considers that a Conditions of Practice Order would not be an appropriate or proportionate sanction.

29. The Panel next considered a Suspension Order. In terms of the Indicative Sanctions Policy a suspension order would be appropriate where the allegation is of a serious nature but is unlikely to be repeated. However, the Panel has found that the allegations are serious and that there is a real risk of repetition. In addition, there is no real evidence before the Panel which suggests that the Registrant would be willing or able to resolve his failings. The Panel is of the view that the seriousness of the conduct found proved, particularly in relation to dishonesty, is such that a Suspension Order would not be sufficient to satisfy the public interest.

30. The Panel has therefore concluded that a Striking Off Order would be the appropriate sanction, given the nature and gravity of the conduct found proved and given the lack of sufficient insight and remediation on the part of the Registrant. Where a registered paramedic dishonestly takes Entonox from his employers for his own personal use and fails to demonstrate insight, remorse or remediation in respect of those failings in the intervening period, the Panel is agreed that any lesser sanction would lack a deterrent effect on other Registrants and would undermine confidence in the profession concerned and the regulatory process. In all the circumstances, the Panel has concluded that a Striking Off Order is a proportionate sanction.

Order

The Panel directs the Registrar to strike the name of Brian James Miller from the Register from the date that this order takes effect.

Notes

The Panel makes an Interim Suspension Order to cover the appeal period.

Hearing history

History of Hearings for Mr Brian James Miller

Date Panel Hearing type Outcomes / Status
02/03/2017 Conduct and Competence Committee Interim Order Review Hearing has not yet been held
27/02/2017 Conduct and Competence Committee Final Hearing Struck off
14/12/2016 Conduct and Competence Committee Interim Order Review Interim Suspension
25/10/2016 Conduct and Competence Committee Interim Order Review Hearing has not yet been held
26/07/2016 Conduct and Competence Committee Interim Order Review Interim Suspension
19/04/2016 Conduct and Competence Committee Interim Order Review Interim Suspension
27/10/2015 Investigating committee Interim Order Application Interim Suspension