Mr Karl Lavender

: Paramedic

: PA31564

: Final Hearing

Date and Time of hearing:10:00 19/09/2017 End: 17:00 19/09/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Whilst registered as a Paramedic, on 15 August 2016 at Cannock Magistrates Court you were convicted of:

1. On 24 October 2015 driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 100 microgrammes of alcohol in 100 mililitres of breath, exceeded the prescribed limit.

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

Finding

Preliminary matters

1. There was an initial application to amend the allegation. The amendment was technical only, rectifying the date of conviction. There was no objection from the Registrant to the amendment. The Panel allowed the amendment, concluding there was no prejudice to the Registrant in doing so. The allegation, set out above, is therefore the amended allegation.     

2. The Panel has been provided with a substantive bundle of documents which runs to 35 pages from the HCPC. The Panel has also been provided with a bundle of representations by the Registrant running to 24 pages.    

3. The Panel heard an application to hear the case, either in whole or in part, in private, having regard to the issue of the Registrant’s private life and health related matters. The Panel had regard to the Practice Note on Conducting Hearings in Private and accepted the Legal Assessors advice. The Panel heard evidence and submissions in relation to the Registrant’s health in private and conducted the rest of the hearing in pubic, in accordance with the Open Justice Principal.  

Background

4. The Registrant is a Paramedic, previously employed by West Midlands Ambulance Service as an advanced Paramedic.

5. On 24 October 2015, the Registrant was arrested for driving a motor vehicle whilst under the influence of alcohol. The police received reports that he had collided with a lamp post. He was arrested whilst sitting in his vehicle on his driveway with the engine running. Extensive damage was observed to his vehicle by the police. The Registrant was subsequently found to have 100 micrograms of alcohol in 100 millilitres of breath, being approximately 3 times over the legal limit for driving. 

6. The Panel has been provided with a copy of the police report. The initial report stated that a witness had heard a faint bang, followed by a screeching noise. The witness looked out of the window and had observed a vehicle spinning its tyres and smoke coming from the rear. The vehicle was observed being driven away, with sparks coming from the left hand side wheel.

7. PC 4808 Butterworth responded to the initial report and at 00:40 hours on the 24 October. He observed damage to a safety barrier and thick black tyre marks. He then observed the suspected vehicle on a private driveway; the Registrant was in the driver’s seat and was speaking on his mobile telephone. PC Butterworth noted: “an over-powering smell of alcoholic drink coming from him and that his speech was slurred and his eyes were glazed.”    

8. PC O’Connor 4571 was parked outside a public house, “The White Hart” earlier that evening, at 00.13 hours. He stated that he observed the Registrant wearing a bright orange cowboy style hat and oversize sunglasses, together with a fluffy scarf. He appeared to be very drunk and was staggering, swaying from side to side.

9. When the Registrant was detained, he was noted to say to PC Butterworth: “Well that’s it Karl. I’ve lost me job now.” and stated that it was “…my own fault”. The Registrant initially asserted that he had consumed 4 pints and would not pass the breath test.

10. When he was subsequently interviewed on 24 October 2015, the Registrant alleged he had consumed half a pint of cider at 19.30. At 23.00 hours, he had consumed three quarters of a pint of Carling lager. His home address was some 400 yards from the lamp post. He had gone into his home and consumed 35cl of “cheap 40% vol whisky”. He entered the vehicle and started the engine, but was unable to move the vehicle due to its damage. At that point the police arrived.

11. When questioned on why, in his initial account he had answered “no” to the question as to whether he had consumed any alcohol subsequent to the incident with the lamp post, the Registrant stated that he thought this was a reference to his arrest and not the accident.

12. In his second interview held on 30 December 2015, the Registrant confirmed he had been wearing “silly party items” of clothing earlier than evening. He further alleged that his earlier reference to 4 pints was “the equivalent of 4 pints,” as he knew he had drunk the whisky.        

13. On 15 August 2016, at South West Staffordshire Magistrates Court the Registrant pleaded not guilty to the offence of driving under the influence of alcohol. He was subsequently found guilty following a trial.

14. On the 25 August 2016, the Registrant was sentenced to a Community Order to carry out an unpaid work requirement of 180 hours within 12 months; to pay a Victim’s sur-charge of £60; to pay costs of £770 and disqualified from holding or obtaining a driving licence for a period of 23 months.           

15. The Panel has not heard any oral evidence witness evidence on behalf of the HCPC. 

16. The Panel has seen a witness statement from the Registrant dated the 26 July 2017. The Registrant also gave oral evidence at the hearing. A summary of his evidence is as follows:

a) The Registrant’s personal circumstances at the time of the incident were very difficult.
b) The Registrant pleaded not guilty - this was on the basis of legal advice he received, and on the basis that he had consumed alcohol between the time of the crash and being arrested. The Registrant said that, in hindsight, it would have been better not to listen to this advice and to have pleaded guilty.  
c) The Registrant accepted that driving significantly over the legal limit put other road users at risk of harm. The Registrant admitted that he consumed some alcohol when driving, and conceded that he would have been over the legal drink driving limit, but argued there was further consumption of the whisky at his home address. The Registrant accepted there was an inconsistency with the police interview, when he maintained that he was “sober” at the time of the accident, but was unable to account for this discrepancy. 
d) The Registrant, in evidence stated that he drank half a pint of cider (7-7.5% alcohol by volume) in the Police Memorial Hall and a pint of lager in The White Hart, which would have placed him over the limit. The Registrant accepted this was inconsistent with his assertion of drinking 4 pints on the night of the incident. He said that this was a reference to the further alcohol consumed after the incident, but did concede that his account that night was inaccurate.      
e) The Registrant stated that his frame of mind, when initially arrested, was affected by his health. He was personally acquainted with PC Paton, and did not want to disclose to him his health issues, but did subsequently tell the Custody Sergeant, once PC Paton had left.
f) The Registrant was dressed normally, when he entered the public house. His friend put a scarf and hat on him, prior to him leaving the public house. He denied that he was staggering or swaying when he left public house and stated that the CCTV footage was shown at the criminal trial.
g) The Registrant conceded he did not mention health issues in his Investigating Committee representations and that he should have done so.            
h) The Registrant informed his employers following his arrest, and was allowed to return to work after a 2 week break.
i) The Registrant resigned from West Midlands Ambulance Service following his conviction. He then took up employment as a Bank Paramedic from January 2017, with Rapid Response Medical Group Limited, initially working full time hours.
j) The Registrant has enrolled on a private Drink Drive Rehabilitation course due to take place on October 2017. The Registrant is eligible to apply for the restoration of his driving license in February 2018. He indicated that he was hoping to return to work with the Ambulance Service once he regained his driving licence, even though this would result in a reduction in remuneration.
k) He is now employed as a Clinical Manager, for West Midlands Integrated Urgent Care. The conviction was disclosed, when he was interviewed for this role. He commenced employment as a Clinical Advisor in March 2016, operating the 111 out of hours’ service. He has very recently completed and passed his Pathways training, which took 6 months to complete. He is now employed in a supervisor role, leading and managing a team of clinicians. He now manages up to 40-50 members of staff covering a large geographical area including the Midlands. 

17. The Panel heard and accepted the Legal Assessor’s advice and exercised the principle of proportionality at all times. In approaching the task of deciding the facts, the Panel kept at the forefront of its deliberations the importance of requiring the HCPC to prove matters against the Registrant. The standard of proof to which the HCPC is required to prove matters is the civil standard – on the balance of probabilities.

18. The Panel was very conscious that when a witness has not given oral evidence, this is hearsay evidence. When considering hearsay evidence, which is admissible, the Panel has paid due regard to the weight which it can attach to it, bearing in mind that it has not been possible for that evidence to be challenged or probed. The Panel has, in respect of each allegation, sought to corroborate the allegation where possible through documentation and the oral evidence it has heard.

Decision on Facts

Particular 1 Proved 
19. The Panel has seen the Certificate of Conviction, dated the 25 August 2016, with a verdict of guilty on the 15 August 2016. The Registrant also admitted the conviction.   

Decision on Impairment 

20. The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s conviction, having regard to the HCPC practice note ‘Finding that Fitness to Practise is Impaired’.

21. The Panel was mindful of the forward looking test for impairment. 

22. The Panel heard submissions on the issue of impairment from the HCPC and the Registrant. Ms Sheridan submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired on both the public and private components of impairment. She pointed to the seriousness of the offence and the fact that the Registrant was only convicted following a trial. She accepted there was some evidence of insight, but that this was insufficient. She also noted that the Community Order imposed did not expire until 25 August 2017 and that the Registrant remained banned from driving.

23. Mr Gorst submitted that the Registrant had shown considerable and evolving insight, into his offending behaviour. He argued that whilst there was the potential to damage public confidence in the profession, when placed in the context of his career as a whole, and the “perfect storm” of mitigating personal factors, his current fitness to practice was not impaired.       

24. The Panel, after reviewing all the evidence in this case, and the advice from the Legal Assessor, concluded that the Registrant’s fitness to practise is currently impaired, after considering both the personal and public components.

25. In reaching its decision:

a) The Panel regarded the offence as serious; not only the consumption of excessive alcohol, but the potential life threatening danger to other road users from crashing into the lamp post. This was further aggravated by the decision to leave the scene of the accident and drive home.
b) The Panel considered that the risk of repetition was low and that this was an isolated, but a serious one off incident. It accepted that the incident occurred at a time in the Registrant’s life when he was experiencing a number of stressful and significant life events.
c) The Panel noted the Registrant’s previous long and unblemished career.  
d) The Panel determined that the Registrant had shown a level of insight into his offending behaviour. The Registrant said he was going to have to live with his conviction for the rest of his life. He was highly embarrassed, and wished he had sought help sooner. He described the victim and public empathy work done with a social worker as shocking, when he realised the potential risk of harm that could have been caused. The offence is remediable and the Registrant has taken some steps to remedy matters, notably with regard to his health. 
e) However, this has to be qualified by the fact that the Registrant chose to plead not guilty, and contested his guilt to a trial. Whilst it is not this Panel’s role to go behind the conviction, the Panel does consider there is an integrity issue. The Registrant has given inconsistent accounts as to the amount of alcohol he had consumed prior to the accident. Whilst the Registrant now admits he was over the legal limit for driving, he did not state this when interviewed for the second time by the police on 30 December 2015, where he stated he was sober. It remains unclear, given his alcohol consumption after the crash, the extent of his intoxication, at the time of the incident.   
f) The Panel further notes that some of the Registrant’s insight has come about as result of having to undertake the Community Order imposed and victim and public empathy work.      
g) The Registrant has expressed remorse. The Panel has seen a number of references on behalf of the Registrant, from MR, Ambulance and Training Manager dated 17 July 2017; VB dated 22 July 2017; AE, Probation Practitioner dated 24 July 2017; SL (undated - she is the Registrant’s sister and a police officer) and RL (the Registrant’s mother). 
h) The Panel’s overall conclusion, in relation to the personal component of impairment, was that although there is an evolving level of insight, the Registrant’s current fitness to practise remains impaired, given the severity of the original offence and the not guilty plea.    
i) In relation to the public component, the Registrant acknowledged that the public’s perceptions of actions would “not have been good and this would have harmed the reputations of my employer and the profession as a whole”. He gave evidence that the profession had been damaged by his actions. 
j) The Panel concluded that the Registrant had breached a fundamental tenet of the profession of being a Paramedic and had brought the Paramedic professional into dispute. The Panel also had regard to the need to uphold the proper standards of behaviour, and concluded that the public component of impairment is clearly established, notwithstanding his previous career, and the mitigation advanced regarding his personal circumstances, as set out above. The Panel concluded that confidence in the profession would be undermined if there was no finding of impairment, given the seriousness of the offence. 


[The Panel adjourned proceedings]


Reconvened hearing on 19 September 2017

Decision on Sanction

26. Having found that the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel went on to consider the question of sanction. The Panel referred to the HCPTS Indicative Sanctions Policy.  The Panel received and accepted the advice of the Legal Assessor.

Submissions

27. Miss Hill on behalf of the HCPC reminded the Panel of its powers in relation to sanction and referred it to the HCPTS Indicative Sanctions Policy.

28. Mr Smith, the Registrant’s representative, submitted three further documents:

• a letter dated 23 August 2017 from the National Offender Management Service confirming that the Community Order terminated on 24 August 2017;
• a letter dated 25 August 2017 from Reducing Re-offending Partnership confirming that the Rehabilitation Activity Requirement was completed on 24 August 2017;
• a reference dated 18 September 2017 from RB, Operations Manager at West Midlands Ambulance Service NHS Foundation Trust.

29. Mr Smith informed the Panel that the Registrant intended to undertake the Drink Drive Rehabilitation Course over three days in October 2017 and if he did so, the effect would be reduce the length of his disqualification so that he would be able to drive from February 2018. 

30. Mr Smith submitted that given that the Registrant had shown remorse and insight and is currently in clinical practice, the appropriate sanction would be a Caution, or failing that a Conditions of Practice Order requiring the Registrant to complete the Drink Drive Rehabilitation Course. 


Panel decision

31. The Panel considered the issue of sanction in the light of its findings on fact and current impairment. It took account of all the evidence submitted on behalf of the Registrant in mitigation, both at the first day of hearing and at the resumed hearing today. 

32. The Panel identified the following mitigating factors:

• The Registrant has a previously unblemished professional history;

• There have been no concerns about his clinical competence or performance;

• The Registrant has admitted his conviction in the HCPTS proceedings and has engaged with the HCPC process;

• The incident was an isolated, though serious, incident;

• At the time of the incident, the Registrant was experiencing a very difficult period in his personal life as a result of a number of different factors and he believed these had substantially influenced his behaviour on the night in question;

• The Registrant has demonstrated regret and remorse for his behaviour; he told the Panel he would now recognise when he needs to ask for help;

• He completed his Rehabilitation Activity Requirement and his Community Service Order on 24 August 2017;

• The Panel took into account the positive character references, including a reference from his current employer, submitted on the Registrant’s behalf.

33. The Panel identified the following aggravating factors:

• This was a serious offence where the Registrant was in excess of three times over the permitted alcohol limit. He also left the scene of the accident to drive home;

• By driving whilst over the permitted alcohol limit, the Registrant put at risk the public and other road users;

• The Registrant pleaded not guilty in the criminal proceedings so that a trial had to take place;

• The Panel was concerned that the Registrant had given inconsistent accounts in relation to the events of the night in question, in particular in relation to the amount of alcohol he had consumed and when he had consumed it. 

• Whilst the Registrant has shown developing insight into the consequences of his actions, this only occurred after his criminal conviction and at late stage in this process.

34. In deciding what sanction, if any, to impose, the Panel was aware that the purpose of any sanction is not to be punitive, though it may have a punitive effect. The Panel bore in mind that its primary function at this stage is to protect the public and that it must act proportionately, taking into account the wider public interest and balancing this with the interests of the Registrant. It was mindful that it must act proportionately and therefore considered the available powers in ascending order of seriousness.

35. The Panel concluded that in the light of the seriousness of the matter a sanction is required. The Panel considered that mediation, or a decision to take no action, would undermine public confidence in the paramedic profession and in the regulatory process and would not act as a deterrent.

36. The Panel then considered a Caution Order. The Panel considered that such an order would not be sufficient. The matter was not minor. In addition, the Registrant only began to demonstrate insight and reflection at a late stage in the process following his conviction. This meant that the Caution Order would not provide a sufficient deterrent effect.  

37. The Panel considered that a Conditions of Practice order putting in place a condition to ensure that the Registrant undertakes the Drink Drive Rehabilitation course and that he fully informs any employer of his disqualification from driving, would be the appropriate and proportionate sanction in this case.  The Panel considered that such an order would provide the necessary reassurance to the public and the profession that the Registrant has fully addressed the remaining concerns whilst allowing him to continue to work in his present (or other) paramedic roles.  The Panel is satisfied that the Registrant can be expected to comply with such conditions.

38. The Panel considered whether a Suspension Order was required, but in the light of the insight the Registrant has now shown in these proceedings and, the low risk of repetition of the offence, the Panel was of the view that a Suspension Order would not be proportionate and would be merely punitive.

Order

The Registrar is directed to annotate the HCPC Register to show that, for a period of twelve months, from the date that this Order takes effect (“the Operative Date”), you, Karl Lavender, must comply with the following conditions of practice:

1. You must undertake the Drink Drive Rehabilitation course within 12 months from the Operative Date;

2. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer;

3. 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).

4. You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

The Order imposed today will apply from 17 October 2017 (the Operative Date).

This order will be reviewed again before its expiry on 17 October 2018.

Hearing history

History of Hearings for Mr Karl Lavender

Date Panel Hearing type Outcomes / Status
19/09/2017 Conduct and Competence Committee Final Hearing Conditions of Practice
31/07/2017 Conduct and Competence Committee Final Hearing Adjourned part heard