Mr Matthew Geary

: Paramedic

: PA31560

: Final Hearing

Date and Time of hearing:10:00 10/03/2017 End: 17:00 13/03/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

On 15 December 2014 at Wolverhampton Crown Court you were convicted of:

 

1. Failing to discharge a relevant duty.

 

2. By reason of your conviction as set out at paragraph 1 your fitness to practise as a Paramedic is impaired.

Finding

Background:
1. On 23 June 2012, an allegation was reported to the West Midlands Ambulance Service (WMAS) that staff had failed to provide assistance to a patient who had collapsed outside the Accident and Emergency Department of a hospital in Walsall. The patient had been taken there by ambulance shortly prior to his collapse. It was alleged that five members of staff (one of whom was the Registrant) failed to provide a level of care expected of ambulance clinicians. The Patient had suffered a cardiac arrest and has subsequently died. Initial review of the CCTV imagery of the event provided sufficient evidence for WMAS to bring this matter to the attention of the HCPC. In due course this matter was pursued by the Police.
2. The HCPC received notification of this matter from WMAS on 3 July 2012.
3. The Registrant resigned from his position with WMAS on the 23 July 2012.
4. The matter was investigated by WMAS and the Police and subsequently it went for trial at the Wolverhampton Crown Court on 14 December 2014, when the Registrant was convicted of ‘failing to discharge a relevant duty’. Sentencing took place on the 11 February 2015, when the Registrant received an eight month custodial sentence suspended for two years along with an order to fulfil 240 hours of community service. The sentence reflected the guilty plea entered by the Registrant, mitigating circumstances, and the degree of remorse expressed by the Registrant.
5. At the Final Hearing in December 2015 and January 2016 the HCPC maintained that the certificate of Conviction together with the Judge’s Sentencing Remarks, the CCTV recordings and the Registrant’s acknowledgement in these proceedings, of his guilty plea was conclusive evidence of the Conviction and put into the context the Registrant’s acts and omissions as identified in those proceedings.
6. Article 22(a)(iii) of the Health and Social Work Professions Order 2001 (as amended) identifies Conviction as a statutory ground.  The Panel had evidence of the Conviction by means of a copy of the Certificate of Conviction issued by the Wolverhampton Crown Court.  The Panel was not entitled to go behind this, and this was conclusive evidence of the fact of the conviction and was accepted as satisfaction of the statutory ground.
7. At the hearing in December 2015 and January 2016 the Panel made a finding of impairment for the following reasons:
8. “The Panel has seen, without observation or comment, the CCTV recordings that had been recorded by the various cameras in the Hospital Car Park and the Hospital Accident and Emergency Department. The CCTV coverage put the
9. Registrant’s actions into context and provided helpful background information to the Conviction. This coverage identified the continuum of action and lack of action which had concluded with the Patient’s death. During the Registrant’s testimony the Panel had the benefit of reviewing this CCTV coverage again whilst the Registrant gave comment on his thought processes, at each stage during this event.  
10. The Registrant told the Panel that at the time he had considered that he had taken appropriate and proportionate action but on reflection he had realised that he should have acted differently. First, he should have used more positive body language: hands in pocket gave such a poor impression of his interaction with the Patient. Secondly, he should not have relied on his observations of pallor, breathing and eye contact and he should have got down to the Patient and undertaken further hands on tests. Thirdly, he should not have left the Patient alone on the ground in the roadway and he should have summoned assistance from his colleagues who were nearby. 
11. The Registrant stated that he had gone through a whole range of emotions since this event and it had taken him time to get to a position where he was able to reflect dispassionately on what had happened. In his testimony the Registrant stressed how many other professionals had been involved in the event of that day and how their evidence, and reasons for their acts and omissions, had changed over time. The Panel had before it no independent information on the reasons why others had not been prosecuted.
12. In addition, the Registrant had, through counselling, and the passage of time, been able to come to terms with what had happened. He stated that he was now using his anger in a positive way in that he was intending to be a better practitioner than he has been before by undertaking further courses. He accepts his role and personal professional responsibility in the event.
13. The Registrant cited, in support of his assertion that he would not make the same mistake again, an example of a recent incident at a summer open air event, when a spectator had collapsed and his colleagues had not taken immediate and demonstrable action. He had subsequently taken the opportunity to feed back to colleagues and his manager the public perception of their lack of appropriate and immediate action. 
14. The Registrant had, until relatively recently, been employed in positions which required the Registrant to rely on his qualification, learning, skills and professional judgment. The Panel had before it evidence of the extensive, relevant and impressive Continuing Professional Development undertaken by the Registrant. It also had a large body of personal and professional testimonials and a reflective statement regarding the incident. 
15. Submissions:
16. In relation to the public perception of this event, the Council placed reliance on the Judge’s Sentencing Remarks, in particular the following:
17. ‘Your behaviour was, in my judgment, callous and uncaring, and totally at odds with the job you were doing.’
18. ‘Without any justification you had obviously come to a view about him, you were not going to waste your time on him once you had got him to A&E.’
19. ‘You saw this, you did nothing at all to help either as a paramedic, or I have to say, as a human being.’
20. It was argued that these observations were a reflection of the public’s likely view of the Registrant’s action. The CCTV evidence clearly showed that at a time when the Patient required the Registrant’s skills, the Registrant had not taken appropriate or immediate action. The length of delay between the Patient’s collapse, and the Registrant’s step to obtain support, was an indicator of the Registrant’s true attitude to the Patient’s condition. His body language demonstrated his view that this patient was ‘swinging the lead’. The Council argued that the matters giving rise to the Conviction are so grave that they would undermine the public’s confidence in the Registrant and his profession, and that, in the Council’s view, a finding of impairment is warranted in the public interest.  It was argued that not to make such a finding would also undermine the public’s confidence in the regulatory process. 
21. In relation to the personal component, the Council drew the Panel’s attention to the limited basis on which the Registrant had accepted responsibility for his acts and omissions. The Council emphasised that whilst the Registrant had expressed regret and remorse for what happened, he was focusing on the impact that this incident had on him more than the impact on the patient. The Registrant had, it was argued, even at this distance from events, attempted to draw attention to the role and joint culpability, of others who could have helped this patient. 
22. The Registrant’s representative stated that whilst it was acknowledged that there had been impairment at the time of these events, which were over three and a half years ago, the person who is now before the Panel is a changed man. The Registrant has fully accepted that he had not undertaken the appropriate level of assessment and with hindsight he should not have left the Patient alone. The Registrant had, it was argued, reflected on these matters, and had adjusted his practice to ensure that he would be able to guard against a repetition of such a error of judgment. The Registrant’s representative asserted that there had been evidence presented within the Coroner’s findings that no one person had been responsible for, or contributed to, the Patient’s death: the finding had been of a long-standing heart condition.
23. The Panel accepted the Legal Assessor’s advice, the representations of the parties and took into account the guidance issued by the Council in its Practice Notes on the topics of ‘Finding that Fitness to Practise is Impaired’ and ‘Convictions and Caution Allegations’.
24. The Panel noted and accepted the Judge’s Sentencing Remarks that the Registrant’s actions had not directly contributed to the Patient’s death. It also noted and accepted that the findings and the sentence imposed by the Crown Court were not indicators of the seriousness of the Registrant’s acts and omissions within this hearing.
25. The Panel has accepted the sincerity of the Registrant’s remorse and regret for what happened. The Registrant was also able to demonstrate that he has gained partial insight into the reasons why his actions had fallen short of the standards expected. The Registrant had, however, even at this distance from the events, difficulty in expressing clearly his reasons and motivation for not doing on this occasion the full examination he would normally have done.  Without this ability to fully articulate the root causes underlying his failings it was impossible for the Registrant to gain full insight into his actions and to guard against a repetition. The Panel therefore considers that on the personal component of its decision, the Registrant’s fitness to practise is still impaired due to the limited nature of his insight at this time and in turn the possibility of a repetition of his previous behaviour.
26. In relation to the public interest element of its decision the Panel considers that the matters are sufficiently serious to make a finding of impairment notwithstanding whether there had been personal remediation. In addition it would be inappropriate given that the Registrant is part way through a suspended sentence.
27. The Panel therefore finds that on the personal and the public aspects of its decision there is current impairment.”
28. At the hearing the Panel found that on the personal and the public aspects of its decision the Registrant’s fitness to practise was impaired.


Decision on Sanction on 13 March 2017:
29. The Panel’s original determination of sanction in this case was promulgated in January 2016. Following an appeal brought by the Professional Standards Authority (PSA) the High Court ordered that the matter be remitted to the same panel of the Conduct and Competence Committee for redetermination as to sanction as soon as reasonably practicable. The full Judgment in respect of this appeal may be found at PSA v HCPC and Matthew Geary (2016) EWHC 2210 (Admin). The Panel has read and fully considered the terms of that Judgment and Order as directed by Silber J.
30. At the outset of the hearing there was an application for the Panel to recuse itself and for a new Panel to determine the entire matter including facts, grounds and impairment. This was based on the fact that the previous Legal Assessor who advised the Panel did not have a practicing certificate. This was an issue that was raised at a previous hearing in January 2017, and occupied a significant proportion of the period scheduled for that hearing. As a result that hearing was adjourned to today with a new Legal Assessor allocated to the hearing.
31. Following advice given by the Legal Assessor the Panel retired to consider that matter and refused the application. The reasons in essence are simple. Whether the hearing was properly constituted previously is a matter that could and arguably should have been raised at the initial hearing or by way of appeal to the High Court. It was not, and in fact the Panel notes that the position of the Registrant at the High Court was that the previous decision was entirely valid and should remain undisturbed - see paragraph 38 of Silber J’s Judgment. This Panel has been enjoined by the High Court to re-determine the issue of sanction and that is what it intends to do. The Registrant will of course have a right of appeal from the Panel’s decision today should he so wish to exercise it.
32. The Legal Assessor directed the Panel that while the Registrant had been found to be impaired and it was not open to the Panel to go behind any aspect of its previous decision prior to sanction, it was perfectly appropriate that so far as sanction was concerned, it considered the Registrant’s current circumstances. That advice was accepted and was not disputed by either party. 
33. The Parties were invited to make submissions. Ms Ryan for the HCPC made short submissions that largely reflected what she said at a previous hearing. She reminded the Panel of the chronology of this matter. She reminded the Panel of the HCPC’s Indicative Sanctions Policy (ISP). The serious offence was committed during the course of the Registrant’s employment. There was insufficient insight demonstrated. The Paramedic work that has been undertaken by the Registrant is extremely limited and not similar to previous work with the Trust which had employed him. The Registrant has unwisely chosen a supervisor who has himself been subject to sanctions by the HCPC. She did not contend for a particular sanction but did draw attention to how a reasonably informed member of the public would view the actions of the Registrant which would be extremely dimly. He showed no empathy or care for the service user.
34. An issue arose as to whether the Registrant should give evidence before Mr. Hoyle made submissions or after it. Having taken legal advice the Panel directed that the Registrant give evidence first.
35. The Registrant gave evidence and was cross examined by Ms. Ryan and questions were asked by the Panel. The Panel considered all of the evidence provided by the Registrant but in summary the Registrant stated:
• That he had been free to practice without restriction following the Order of the High Court but had kept as far as possible to the conditions of practice imposed by the Panel.
• He has kept up his Continuing Professional Development (CPD) and undertaken on line courses.
• He has been working for a company down in Bristol covering sports events as a Paramedic as part of a 2 man crew and occasionally on his own. This is on weekends. During the week he works in a factory for minimum wage.
• He wants to carry on being a paramedic. He was previously a Band 6. The incident has had a serious effect on his life.
• He has been seeing John Flynn who is officially his supervisor and a paramedic as a mentor on a regular basis.  
• He has tried to address the conditions set out by the Panel as part of its previous sanction decision even though the High Court eventually set aside that decision. He accepts that he has not complied with all of the conditions but they are on his to do list. Circumstances have militated against him undertaking some of the requirements.
• He does not have written references with him today.
• In terms of reflection, looking back now, he accepts his behaviour was not up to standard, he should have dealt with the concerns differently and should have raised them when the patient was in the waiting room. He sees as the root cause the problems that were in his home life. His mind set was wrong and his decision making was wrong. He had suffered a bereavement of his father and detailed other personal circumstances in private session.
• He feels the process has made him stronger. He is more of aware of his behaviour, more rounded.
• He is prepared to accept any conditions.
36. The Registrant’s representative then made oral submissions. The suspended sentence expired on 11 February 2017, and so the principle that a Registrant should not normally be permitted to resume practice during the currency of his sentence is no longer applicable. The Registrant’s representative addressed at length the decision of Silber J. and stated that the Panel could depart from the ISP and there was nothing in the decision that stated otherwise. Mr. Geary has adhered to the conditions previously given even though it was not necessary for him to do so. His evidence shows that he has greater insight. The CPD he has undertaken was impressive. This matter is almost 5 years old from the date of the offence. The Registrant contended that the correct sanction would be no further action. Mr. Hoyle reminded the Panel of his previous submissions. He further added that it was not necessary for the Registrant to show competence that he was acting as a Paramedic in the NHS.  
37. The Legal Assessor provided the Panel with the following legal advice in respect of the sanction stage of the hearing.
38. The decision on sanction is a matter for the Panel exercising the principle of proportionality and reflecting the principles within the ISP. While it is not bound by the ISP any serious departure should be taken with care and should be fully reasoned. The policy guidance accurately reflects the general principles repeated in many cases for many years as to the primary need to uphold the reputation of the profession as well as the protection of the public from dishonest, misbehaving and/or incompetent practitioners.
39. Any sanction must be proportionate. It is not intended to be punitive, although it may have a punitive effect, and it should be no more than is necessary to meet the legitimate purposes of: providing adequate protection to the public and otherwise meeting the wider public interest in:
• protecting the reputation of the profession
• maintaining confidence in the regulatory system; and
• declaring and upholding proper professional standards.
The wider public interest includes the deterrent effect to other registrants. Consideration of the wider public interest is particularly important in conviction cases such as the present.   
40. In Bolton v. The Law Society [1994] 1 WLR 512 Lord Bingham stated:-
“Because orders made by the tribunal are not punitive, it follows that considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentence imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of being struck off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again…All these matters are relevant and should be considered. But none of them touches on the essential issue which is the need to maintain among other members of the public a well-founded confidence that any solicitor they instruct will be a person of unquestionable integrity, probity and trustworthiness…The reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but that is part of the price.”
41. In Low v. General Osteopathic Council [2007] EWHC 2839 (Admin) where Sullivan J. (as he then was) having cited the passage of Lord Bingham above said:
“Because of these considerations the seriousness of the criminal offence as measured by the sentence imposed by the Crown Court, is not necessarily a reliable guide to its gravity in terms maintaining public confidence in a particular profession.”
42. The Panel must balance the public interest against the rights of the Registrant to practise his chosen profession.
43. The sanctions available are those set out in the ISP. These range from no further action through to Striking Off, and, this being a conviction case, the full range of sanctions is available. The Panel must consider the available sanctions in ascending order of severity.  
44. Without prejudice to the entirety of the range of sanctions available to the Panel the Panel’s attention was drawn in particular to the ISP guidance in respect of conditions of practice. So far as Conditions of Practice are concerned they must be limited to a maximum of three years and should be remedial or rehabilitative in nature. The Panel must be satisfied that the issues are capable of correction, there is no persistent or general failure which would prevent the registrant from doing so and appropriate realistic and verifiable conditions can be formulated. The Panel should be aware of the implicit criticism set out by Silber J at paragraph 31 that previous conditions “made no proper provision for the assessment of improvement in the Registrant’s insight”. 
45. The Registrant’s suspended sentence expired in February 2017. Accordingly the principle that a practitioner who has been convicted of a criminal offence should generally not be permitted to resume practice until he has satisfactorily completed the whole of his sentence - see CRHP v GDC and Fleischman (2005) EWHC 87 Admin - no longer now applies.
46. In reaching its decision the Panel has taken into account the ISP, the legal advice received, the parties’ representations and all the relevant documentation before it. This included some additional documentation provided by the Registrant to support the continuing Professional Development (CPD) undertaken and other remedial steps. The Panel were impressed with the oral evidence given today which shows significant further remediation since the hearing in January 2016.
47. To assist in its task in identifying the appropriate and proportionate sanction the Panel identified the following mitigating and aggravating factors:
Aggravating  
• The Registrant has not gained complete insight into the root cause analysis of his failings, although he is substantially closer to doing so. He is now aware of the contribution his domestic circumstances made to what occurred in 2012 although the Panel is not yet satisfied that he has fully developed appropriate coping mechanisms in the event of similar problems reoccurring.
• The offence was a very serious one and occurred while he was in the course of acting as a paramedic. The Panel takes account of the sentencing remarks of the trial Judge that the Registrant’s actions were callous and uncaring. They were motivated by unjustified and stereotyped assumptions of the service user.  Members of the public would rightly take a dim view of his actions on that day which were likely to bring the Paramedic profession into disrepute.
• While, as the Trial Judge pointed out, the Registrant’s actions did not cause or materially contribute to the death of the service user nevertheless the context of this offence was the death of a service user in highly distressing circumstances.
Mitigating
• This is a single incident in an otherwise unblemished career.
• The effluxion of time since the commission of the offence is now considerable being almost 5 years. He has served his suspended sentence in full.
• The Registrant has clearly personally and professionally already suffered considerably from the events at the time and subsequently. He has been required to attend an inquest, a Crown Court sentencing hearing and these Fitness to Practice proceedings including the High Court appeal. His case has been the subject of significant media attention resulting in him and his family having to face adverse public scrutiny and comment.
• He worked without incident from the time of the incident (2012) until the time of the Crown Court proceedings in February 2015 and since the decision of the High Court has also been working as a Paramedic part time on weekends.
• The Registrant has already undertaken further personal development, albeit mainly directed to competency and knowledge, and has undertaken some personal reflection. It is a testament to him that while he was theoretically entitled to work unrestricted following the High Court order in July 2016 he has attempted to engage with the conditions previously directed by the Panel as best he could in the circumstances.
• There is a low risk of repetition. The Registrant has demonstrated considerable insight at the hearing today into the causes and effects of his actions. He has expressed genuine remorse and regret for what occurred.
• Of the several Paramedics who witnessed the incident he was the only one who went to attend (if ineffectually) to the patient.
48. Working though the sanctions in ascending order of severity the Panel has no hesitation in rejecting the first three available sanctions that is no action, mediation or a caution. These sanctions would do nothing to assist in furthering the Registrant’s personal development, allow him an opportunity to further develop insight into the incident and to develop further coping mechanisms to ensure safe professional practice irrespective of personal difficulties. Equally as important these sanctions would not be proportionate or adequate to uphold standards and confidence in the profession and to mark the Panel’s disapproval of the conduct which led to the offence.
49. The Panel next considered the imposition of a Conditions of Practice Order. The Panel was satisfied that based solely on the Registrant’s personal circumstances such a sanction was proportionate and such conditions could be constructed that would adequately address the Registrant’s failings, provide him with a further opportunity to develop insight and allow a safe return to practice. The Panel however has gone on to ask itself whether such an order addresses the wider public interest issues of upholding and declaring standards, maintaining public confidence in the profession and the regulator and maintaining the reputation of the profession?
50. Taken in isolation and with nothing further in mitigation the circumstances of the offence are such that a Conditions of Practice order may have seemed insufficient to address the wider public interest. However members of the public are assumed to be aware of all the pertinent circumstances, including the fact that the single offence is now 5 years old, the Registrant has an unblemished career as a Paramedic for over 12 years, the extensive efforts made by the Registrant to keep up his practise in difficult circumstances with the obvious strain on him and his family of the publicity, the insight he has shown and the fact that the sentence has expired. Clearly there are some examples of misconduct the nature of which is so serious that the wider public interest usually demands Suspension or even Striking Off the Register irrespective of the personal mitigation of the Registrant. However serious, the Panel are not of the view that this is one of those offences. The Panel reminded itself that Silber J did not replace the previous sanction with one of his own choosing and he deliberately left open the possibility of the Panel arriving at the same or lesser sanction after due consideration and having properly taken all relevant matters into account.
51. The Panel accordingly has concluded that the proportionate and appropriate sanction in this instance is the Conditions of Practice Order set out below. They will permit the Registrant, over the course of time, to incrementally move to a position of safe unrestricted practice. The Conditions of Practice will be reviewed prior to the expiry of the two year Order to determine if the Registrants fitness to practise is still impaired. They will suitably mark the disapproval of the conduct, declare and uphold standards and provide assurance that the Regulatory process is functioning appropriately while fulfilling the public interest of retaining a motivated, experienced paramedic within the profession. For the avoidance of doubt the Panel is not of the view that a Suspension Order or Strike Off is necessary or proportionate in the particular circumstances of this case. The Conditions of Practice Order is the minimum sanction required to meet the public interest requirements.

Order

The Registrar is directed to annotate the Register to show that, for a period of 2 years from the date that this Order comes into effect (“the Operative Date”), you Mr Geary, must comply with the following conditions of practice: 
Before starting any work as a paramedic:
1) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 1 month of starting work as a Paramedic. You must attend upon that supervisor as required and follow their advice and recommendations.
2) Your appointed supervisor must be a Paramedic with at least 10 years HCPC registration and must not have been subject to disciplinary actions by their employer within the last 5 years or subject to FTP proceedings by the HCPC.
3) The Registrant must not work on a single-handed vehicle unless and until his supervisor considers that he is able to do so, or three months from the date that he starts to work as a paramedic whichever is the later.
4) You must promptly inform the HCPC if you cease to be employed as a paramedic by your employer or take up any further employment as a paramedic. 
5) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
6) You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).
7) You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:
• Analysis and understanding of the root cause of deficiencies in your practice, or improvements that could be made.
8) For (i) each month for the first three months and then (ii) quarterly thereafter you must in respect of three service users, you have dealt with during that period, write and discuss with your supervisor a reflective analysis of:
• Your perceptions of the service user and their situation
• How those perceptions had the potential to affect your practice
• And how you prevented those perceptions from inappropriately doing so
9) Within three months of starting to work as a paramedic you must forward a copy of your Personal Development Plan to the HCPC. 
10) You must meet with your supervisor on a monthly basis for the first three months and thereafter quarterly to consider your progress towards achieving the aims set out in your Personal Development Plan.
11) You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
12) You must maintain a reflective profile detailing every occasion when you meet with your supervisor and must provide a copy of that profile to the HCPC on a quarterly basis.
The order imposed today will apply from 10 April 2017 (the operative date). This order will be reviewed again before its expiry on 10 April 2019.

Notes

This 2 day hearing was held for the re-determination of the sanction stage following an appeal.

 

Following announcing its decision on sanction on 13 March 2017, of a Conditions of Practice Order for a period of 2 years, the Panel heard an application to impose an Interim Conditions of Practice Order to cover the appeal period.

The Panel decided to impose an Interim Conditions Of Practice Order for a period of 18 months.

Interim Order:
The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
The Interim Conditions of Practice mirror the conditions found in the Order above.

Hearing history

History of Hearings for Mr Matthew Geary

Date Panel Hearing type Outcomes / Status
10/03/2017 Conduct and Competence Committee Final Hearing Conditions of Practice
07/01/2016 Conduct and Competence Committee Final Hearing Conditions of Practice