Mr Alan D Mitchell

: Paramedic

: PA18986

Interim Order: Imposed on 24 Jun 2016

: Final Hearing

Date and Time of hearing:10:00 05/03/2018 End: 17:00 20/03/2018

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

: Conduct and Competence Committee
: Struck off

Allegation

Whilst registered as a Paramedic and during the course of your employment as a Paramedic at South Western Ambulance Service NHS Foundation Trust;

1. You attended to Patient A on 14 April 2015 and:

a) You did not complete a Vulnerable Adult Referral Form for Patient A as required.

b) You informed Patient A that you had been involved in the care of her son, when that was not the case.

c) exchanged personal numbers with Patient A

2. 1 Between 15 April 2015 and 2 June 2015, you breached professional boundaries by continuing contact with Patient A without clinical justification in that you:

a. sent a large volume number of personal and/or inappropriate text messages to Patient A; and/or

b. met with Patient A on or around:

i. 20 April 2015;

ii. 8 May 2015;

iii. 22 June 2015. on three separate occasions; and/or

c. inappropriately made attempts to introduce Patient A to Person B over personal matters.

d. spoke with Patient A on the telephone on a number of occasions

3. You informed the Clinical Hub that Patient A had flagged you down on the street gave inaccurate information to the Trust with regards to attending Patient A on 17 April 2015., when that was not the case.

4. 3. Between 19 April 2015 and 2 May 2015, Patient A indicated to you that she was suicidal and/or self-harming on or around;

i. 19 April 2015;

ii. 24 April 2015;

iii. 2 May 2015;

and you did not ensure she was referred to an appropriate health care professional.

5. You informed Patient A that you flagged her details with controllers, when that was not in fact the case.

6. On or around 25 April 2015 you contacted/attempted to contact Patient
B, a potential victim of domestic violence, by texting a picture of a book relating to domestic violence.

7. Your actions as stated in particular 1b, 3 and 5 were dishonest.

8. The matters set out in paragraphs 1 to 4 7 constitute misconduct.

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

Finding

Preliminary matters:

1. The HCPC was represented by Mark Millin of Kingsley Napley Solicitors. The Registrant was present and was represented by Mr Sam Oestreicher of Unison.

2. At the outset of the hearing, Mr Millin applied to amend the particulars of the allegation in the form sent to the Registrant by letter dated 6 October 2017. Mr Millin told the Panel that the amendments were necessary to accurately reflect the HCPC’s case. Mr Oestreicher did not object to the proposed amendments.

3. The Panel was satisfied that the proposed amendments could be made without any injustice and allowed the application.

Background:

4. The Registrant was employed as a Paramedic at the South Western Ambulance Service NHS Foundation Trust [“SWAST”], from 3 December 2001. On 14 April 2015, the Registrant attended at Patient A’s address in response to a 111 call made by her. The Registrant also obtained Patient A’s telephone number from her and sent her a text message so that Patient A would also have his phone number. The following day, the Registrant sent a text to Patient A in relation to a friend of his; Person B. Thereafter, the Registrant sent approximately 146 text messages to Patient A between 14 April 2015 and 22 June 2015. The Registrant also met Patient A in person on 20 April 2015, 8 May 2015 and 22 June 2015.

Decision on Facts

5. The Panel was provided with an HCPC final hearing bundle and exhibits bundle. The Panel was also provided with the Registrant’s written response to the amended HCPC particulars of the allegation, the Registrant’s CV and testimonial character references on behalf of the Registrant.

6. The Panel heard oral evidence from three witnesses who are employed by SWAST and from Patient A, called on behalf of the HCPC. Witness RC is the Quality lead West Division for SWAST. Witness ST is the Local Operations Officer for SWAST. Witness NG is an Advanced Technician with SWAST.

7. In relation to the witnesses called on behalf of the HCPC, the Panel found them to be generally credible, reliable and professional. Witness 1 (RC), was a credible and straightforward professional. He displayed a very good grasp of the details of the case and was helpful. He confined himself to the facts of the case presenting no ulterior motives. He attempted to assist the Panel. Witness 2 (ST), gave a good clear account of his role as the initial investigating officer. Witness 3 (NG) may have lacked some objectivity due to his close working relationship with the Registrant, however, he did try to assist the Panel about general issues, for example the use of “running reds”.

8. Patient A who was a vulnerable witness, gave evidence with the assistance of special measures consisting of a screen and a supporter. The Panel found that Patient A was detailed and highly credible. Her recollections of her interactions with the Registrant were firm and consistent. Her recollections were also supported by entries made by her in a daily journal and by a contemporaneous twitter feed dated 14 June 2015.

9. The Panel considered that Patient A gave evidence which was heartfelt, genuine and consistent. Patient A was passionate and emotional on occasions which was also indicative that she was telling the truth. The Panel also considered her evidence to be very fair, with no ulterior motives. Patient A also displayed some sympathy and concerns for the Registrant.

10.  In relation to the Registrant’s oral evidence, the Panel took into account the obvious stress of appearing before a Conduct and Competence Panel. The Panel considered that, as his evidence progressed, the Registrant became unfocussed, evasive and less credible. The Registrant had difficulty in addressing the core issues. His position in relation to the outstanding particulars of the allegation also shifted during the course of his evidence. At best he was confused and at worst he answered questions tactically, seeking to avoid giving direct answers. The Panel found that the Registrant was not a credible witness.

11. The Registrant admitted Particulars 1a) and 1c), Particulars 2a), 2b) (i) (ii) and (iii), 2c), Particular 4 (i) (ii) and (iii) and Particular 5. In relation to Particular 7 (dishonesty), the Registrant made an admission in relation to Particular 1(b) and 3 only.

12. Notwithstanding the admissions made by the Registrant, the Panel looked carefully at all of the evidence in deciding whether any of the factual allegations were proved and made the following findings of fact:

13. The Panel heard submissions from both representatives and heard and accepted the advice of the Legal Assessor.

Particular 1(a) – Proved

14. The Registrant admitted that he did not complete a Vulnerable Adult Referral Form for Patient A and should have done, given that Patient A had expressed a health condition.

Particular 1(b) - Proved

15. The Panel heard clear and convincing evidence from Patient A that the Registrant had informed her that he had been involved in the care of her son. Patient A’s evidence was supported by her contemporaneous twitter feed and her journal entry regarding the conversation. Moreover, the Registrant in his evidence, accepted that he had had a conversation with Patient A about his work with the Search and Rescue Service, although did not accept that it happened at her house on 14 April 2015.

16. The Panel considered it unlikely that Patient A had confused two different conversations about the Air Ambulance Service as stated by the Registrant in his evidence. He couldn’t answer the questions as to how she would have the detailed level of knowledge that she did. There was no motive for her on 14 April to invent that account. She was genuine and heartfelt. She said he was a conduit for her to her son in the light of her absence from her son on the day of his health condition occurring. The Panel preferred the detailed, cogent coherent account from Patient A to that of the Registrant.

Particular 1(c) – Proved

17. Patient A’s evidence that the Registrant asked for her personal number on 14 April 2015 and also texted her so that she had his number is not disputed. The Registrant also admitted this Particular.

Particulars 2(a), (b) (i) (ii) and (iii), (c) – Proved

18. Patient A’s evidence in relation to Particulars 2(a), (b) and (c) was not disputed by the Registrant who also admitted them.

Particular 2 (d) – Not proved

19. In relation to Particular 2(d), Patient A gave convincing evidence about at least one telephone call which she received from the Registrant on 18 April 2015 at around 11pm and lasted for about two hours. The Registrant had texted Patient A on 18 April 2015 asking, “can I ring you in a bit”.  Patient A then received a telephone call from the Registrant and was able to recount exactly what was spoken about between her and the Registrant during that telephone call. She also remembered that she took her medication during the course of that telephone call because she promised the Registrant she would do so in return for him providing her with certain information.

20. Patient A’s evidence was that there may have been telephone calls other than the one she remembered in detail. In his evidence, the Registrant accepted that Patient A’s evidence that there may have been more than one call could be correct. Whilst the Panel was satisfied that the Registrant did speak to Patient A on the telephone on 18 April 2015, it was not presented with any evidence that he had spoken to Patient A by telephone on any other dates. Accordingly, Particular 2 (d) as worded, is not proved.

 Particular 3 – Proved

21. Mr Millin amended the wording of Particular 3 to replace the words, “Patient A” with “a person”. The Registrant admitted Particular 3 after it had been so amended. The Panel also had regard to the  log of calls on 17 April 2015 in which the Registrant informed the Clinical hub that he attended at Patient A’s address after being flagged down by someone in the street.

Particulars 4 (i) (ii) and (iii) – Proved

22. The Registrant admitted these particulars. The Panel also had regard to the text messages sent to the Registrant by Patient A on each of the dates particularised, which clearly show that Patient A had a health condition to which the Registrant failed to respond appropriately.

Particular 5 – Proved

23. The Panel found that the Registrant’s evidence that he had entered information about Patient A on his Mobile Device Terminal (MDT) in his cab was not true, given the absence of this information on the relevant sequence of events (SOE) record. The Panel was also satisfied that the Registrant knew that he had not flagged Patient A’s details with controllers when he told her in a text message on 15 April 2015 that he had done so. The Panel found that the Registrant’s motivation for this action could be determined from his text following this on the same day, being 15 April 2015, in which he asked Patient A to speak to his friend concerning her marriage problems.

Particular 6 – Proved

24. There is no dispute that Patient B was a victim of domestic violence. The Registrant accepts that he sent a picture of a book relating to domestic violence, which he had borrowed from Patient A, to a friend of Patient B. He also mistakenly sent the photo of the book to Patient A followed by a further text indicating that this was done in error and that it was intended for Patient B, a victim of domestic violence. The Panel considered that there was no reason for the Registrant to have sent the picture of the book to Patient B’s friend and for telling Patient A that he was attempting to send the details to Patient B other than that he was indirectly attempting to make Patient B aware of that book by contacting/attempting to contact her.

Particular 7 – Proved in relation to each of Particulars 1b, 3 and 5

25. In relation to Particular 1b), the Panel was satisfied that the Registrant’s motive for telling Patient A that he had been involved in the care of her son was to obtain Patient A’s trust and confidence so that Patient A would assist him in persuading Person B, with whom he had a relationship, to leave her husband. The Panel was in no doubt that this was dishonest.

26. In relation to Particular 3, the Registrant had given wrong and misleading information to his Clinical hub which the Panel was in no doubt amounted to dishonesty.

27. In relation to Particular 5, the Panel was satisfied that the Registrant informed Patient A that he had flagged her details with controllers in order to bolster the trust and confidence which she had in the Registrant as a paramedic. The Panel was in no doubt that amounted to being dishonest.

Decision on Grounds

28.   In considering whether the Statutory Ground of misconduct had been made out, the Panel took into account that Patient A was an extremely vulnerable patient who had repeatedly expressed a health condition about which the Registrant was aware. The Registrant’s conduct towards Patient A in sending her approximately 146 text messages and meeting her on several occasions, was seriously detrimental to Patient A’s mental health as Patient A advised the Panel. The Registrant was also aware of the vulnerability of Patient B and failed to act professionally or appropriately towards her.

29. The Panel was under no doubt that the Registrant’s conduct was completely unacceptable and would be regarded as deplorable by his colleagues. The conduct was not isolated and was repeated over a significant period of time involving extremely vulnerable individuals. In the Panel’s view, the Registrant’s conduct would seriously undermine public confidence in the Paramedic profession.

30. The Panel was further satisfied that the Registrant’s conduct fell seriously below the HCPC ‘Standards of conduct, performance and ethics’ 2012;

Standard 1 – You must act in the best interests of Service Users;

Standard 3 - You must keep high standards of personal conduct;

Standard 6: You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner;

Standard 7: You must behave with honesty and integrity and make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

31. For all of the above reasons, the Panel was satisfied that the Registrant’s conduct amounted to misconduct.

Decision on Impairment

32. The Panel next considered whether, as a result of the misconduct found, the Registrant’s fitness to practise is currently impaired. The Panel had regard to the further oral evidence given by the Registrant at this stage and had regard to an additional document entitled “Reflections on Findings Regarding my Decisions and Actions” and character references provided on the Registrant’s behalf.

33. The Panel heard submissions made by Mr Millin on behalf of the HCPC and by Mr Oestreicher on the Registrant’s behalf.  The Panel received and accepted the advice of the Legal Assessor.
 
34. The Panel carefully considered the HCPC practice note on ‘“Finding that Fitness to Practise is Impaired’ and the references therein to the factors to be taken into account, as set out in the case of Cohen v GMC. [2008] EWHC 581 (Admin). In particular, whether the misconduct was remediable, had been remedied and was highly unlikely to be repeated.

35. In first considering the personal element of impairment, the Panel had regard to the very serious nature of the Registrant’s misconduct which involved dishonesty in the course of his work as a Paramedic both in relation to vulnerable patients and in relation to the SWAST. The Registrant as accepted by him in his reflective statement, did lasting harm to Patient A. The misconduct was not isolated and occurred over a significant period of time.

36. The Panel found that the Registrant had in the past put patients at unwarranted risk of harm and was likely to do so in the future; had breached fundamental tenets of his profession and was likely to do so in the future; had brought his profession in disrepute and was likely to do so in the future and that his integrity could not be relied on, nor could it be in the future.

37. Whilst the Registrant has now demonstrated some remorse for his actions, the Panel was concerned about what appears to be a pattern of controlling behaviour towards very vulnerable individuals.  Further, the Registrant has not worked as a Paramedic since his suspension by SWAST in April 2016 and is unable to demonstrate any safe practice since then. The Panel considered that the misconduct, even if remediable, had not been remedied. There remains a likelihood of repetition.

38. The Panel was also mindful of the wider public interest considerations in this case, particularly the need to declare and uphold proper standards of conduct and behaviour and maintain confidence in the reputation in the Paramedic profession.

39. The Panel had regard to the judgement of Mrs Justice Cox in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and concluded that public confidence in the Paramedic profession and in the HCPC as the regulator would be undermined were a finding of impairment not made on public interest grounds.

40. For all of the above reasons, the Panel found that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

41. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.

42. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

43. The Panel had regard to paragraph 14 of the Indicative Sanctions Policy which states,

 "The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant: 

• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.”

44. The Panel considered as aggravating factors that the misconduct took place over an extended period of time and that actual long-term harm was caused to a very vulnerable patient. The Registrant’s dishonesty did not comprise of a single incident but involved telling lies on two occasions to Patient A and to on one occasion to his Clinical hub. The effect of the Registrant’s lies on Patient A was devastating to her.

45. The Panel accepted as mitigating factors that the Registrant has had a long career as a Paramedic and has participated in these proceedings, making some admissions.

46. The Panel considered the available sanctions in ascending order of seriousness and concluded that taking no action or imposing a Caution Order would be not be appropriate to mark the seriousness of the matters for which the Registrant’s fitness to practise is found to be impaired. The nature of the misconduct was not of a limited or minor nature. The Panel did not consider this to be a suitable case for mediation.

47. The Panel next considered Conditions of Practice. The Panel concluded that Conditions of Practice would be insufficient to protect the public, given the seriousness of the misconduct found. Nor could the Registrant’s failings be properly addressed by conditions of practice.

48. The Panel next considered a suspension order. It had regard to paragraph 39 of the Indicative Sanctions Policy which states that. “Suspension should be considered where the Panel considers that a caution order or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited”.

49. The Panel has already found that there is a risk of the Registrant acting in the same or similar way in the future. The Panel was also mindful of its previous finding that the Registrant has tendencies towards controlling behaviour in respect of vulnerable people, particularly vulnerable females.

50. The Panel carefully considered whether the Registrant would be able to demonstrate effective remediation at the end of the maximum 12-month period of suspension. Given the gravity of the matters found proved including multiple acts of dishonesty, the Panel was not satisfied that a suspension order would adequately protect the public.

51. The Panel was mindful that a Striking off order is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.

52. Whilst the misconduct in this case did not involve sexual abuse, it was serious, persistent, deliberate and involved an abuse of trust in relation to two very vulnerable patients. There was also multiple dishonesty.

53. Taking all matters into account, the Panel concluded that the nature and gravity of the misconduct overall, was such that a striking off order was the only sanction which would adequately protect the public and maintain the public’s confidence in the profession and the regulatory process.

Order

ORDER: That the Registrar is directed to strike the name of Alan D Mitchell from the Register on the date this order comes into effect

Notes

The Order imposed will apply from 06 April 2018.

An Interim Suspension Order was imposed to cover any appeal period.

 

Hearing history

History of Hearings for Mr Alan D Mitchell

Date Panel Hearing type Outcomes / Status
05/03/2018 Conduct and Competence Committee Final Hearing Struck off
10/06/2016 Investigating committee Interim Order Application Adjourned