Paul Hawker v The Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1228 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/413/2022 |
[2022] EWHC 1228 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Eyre
Case No: CO/413/2022
Carolina Bracken (instructed by Blackfords LLP) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 17 th May 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Eyre
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00 on 27 May 2022
Introduction
The Appellant was a registered paramedic working as such for the South Western Ambulance Service. By a decision of 6 th January 2022 (“the Decision”) the Health and Care Professions Tribunal Service (“the Panel”) sitting as the Conduct and Competence Committee of the Health and Care Professions Council found that by reason of his actions on 24 th October 2019 the Appellant's fitness to practise was impaired by reason of misconduct. It imposed the sanction of striking the Appellant's name from the Register.
In striking off the Appellant the Panel was exercising its powers pursuant to article 29(5) of the Health and Social Work Professions Order 2001. The Appellant advanced his appeal pursuant to article 29(9) of the Order on three grounds. First, it was said that the decision to impose the sanction of striking off was disproportionate. Second, it was said that the Panel had wrongly conflated lack of insight with a risk of repetition. Finally, it was said that the Panel had erred in treating as aggravating features matters which were already inherent in the finding of misconduct. In addition, before me it was said that the Panel had erred in its characterisation of the Appellant's failings on 24 th October 2019 and that this error had pervaded the Decision.
The Respondent did not attend the hearing and had taken no part in the appeal process. However, Miss Bracken confirmed that her instructing solicitors had informed the Respondent of the appeal and in particular of the date of the hearing. Accordingly, I proceeded on the footing that the Respondent had chosen not to attend the hearing.
The Appellant's Career History .
The Appellant is now aged 57. He joined what was then the Dorset Ambulance Service in 1999. He became a registered paramedic in 2002 and subsequently became a specialist paramedic (formerly an Emergency Care Practitioner). It was common ground and accepted by the Panel that the Appellant had an unblemished career history and that there had been no other incidents of concern or which had called his fitness to practise into question.
The Incident on 24 th October 2019 .
It was common ground that at the end of his shift on 24 th October 2019 the Appellant drove his ambulance onto the forecourt of the Sainsbury's Service Station in Weymouth in order to refuel the ambulance before returning to the Weymouth Ambulance Station. The Appellant was with a colleague and while the colleague was filling up the tank the Appellant walked towards the store in order to pay. As he was doing so the Appellant was told there were concerns about a person (identified by the Panel as Service User 1 or “SU1”) in a car on the forecourt. The Appellant went towards the car. The CCTV footage of the scene showed that SU1 was in the driver's seat with the door open and with a female Sainsbury's employee (identified by the Panel as Witness 1 or “W1”) standing alongside her. The Appellant and spent 48 seconds standing on the side of the door (i.e. nearer the car bonnet and with the door between him and SU1). He then left. SU1 was suffering a stroke. Police officers who were also on the forecourt to refuel their vehicle attended to SU1 after the Appellant had left. An ambulance was called but because of the time it was taking for that to arrive the police officers themselves drove SU1 to hospital where she subsequently died. It was accepted that the Appellant's action had not contributed in any way to the death of SU1.
Beyond that common ground there was a dispute as to what the Appellant had been told and as to what he had said.
The Appellant's account was that he had been approached by a male member of the public who said, “I know you're off duty but there's a lady over there in a vehicle who's not feeling very well”. He went across to the car where W1 was speaking to SU1. W1 told him that she thought that SU1 might have had a stroke. The Appellant then introduced himself to SU1 who looked well to him and whose presentation did not cause him any cause for concern. SU1 then replied “no” to his questions as to whether she needed any help, felt any pain, or wanted any further assistance or to go to hospital. He was then told by W1 that a phone call had been made for a relative to come and collect SU1 and that this was confirmed by SU1. He left having said to SU1 “OK that's fine if you don't need any help. But if for some reason in the future you need us call 999”.
W1's account of the incident was markedly different in important respects. She said that her attention had been drawn to SU1 by a customer and that when she went to the car SU1 looked clammy and grey with her face drooping and with her speech becoming increasingly slurred. She thought that SU1 was having a stroke and it she asked her colleagues to call 999 for an ambulance. It was then that the Appellant and his colleague drove on to the forecourt. W1 said that she, rather than a customer, called the Appellant over saying that she thought SU1 was having a stroke and that a 999 call had been made but asking if there was anything which the Appellant could do to help. The Appellant came to the car and stood beside the bonnet. The Appellant did not, W1 said, speak to SU1 at all. Instead he looked towards his wrist saying, “we've finished now, we're clocking off, you'll have to continue with the 999 call”. The Appellant then went into the store, paid for the fuel, returned straight to the ambulance, and drove off.
The Allegation against the Appellant .
The allegation against the Appellant was that his fitness to practise was impaired by reason of misconduct. That was put in these terms:
“On 24 October 2019, whilst working on behalf of the South Western Ambulance Service, you did not act in the best interest of Service User 1 and/or adequately assess Service User 1 in that you:
a) did not adequately examine and/or assess Service User 1;
b) did not recognise that Service User 1 was experiencing the symptoms of a stroke;
c) did not complete an electronic patient clinical record (EPCR) for Service User 1;
d) did not ask Service User 1 to sign a refusal of treatment form.”
Those actions were said to amount to misconduct and that misconduct was such as to impair the Appellant's fitness to practise. The Appellant admitted the contentions at (c) and (d) but denied misconduct or that there had been impairment of his fitness to practise.
The Material provided by the Appellant in respect of the relevant Sanction .
From 18 th to 21 st October 2021 the Panel heard evidence and submissions about the incident of 24 th October 2019. Both the Appellant and W1 gave evidence and were cross-examined. In addition, the Panel were provided with stills from the CCTV footage and heard the evidence of two Ambulance Service employees who had viewed the footage. Having found the facts proved in the terms I will explain below it then moved, in December 2021 and January 2022, to consider whether the Appellant's actions constituted misconduct impairing his fitness to practise and to consider the sanction to be imposed. The Appellant did not give oral evidence at that stage. He did, however, provide a bundle of documentation in respect of impairment and sanction. This included a number character references speaking to his personal qualities but also to his performance as a paramedic. There were sundry certificates confirming the training he had undergone. In addition the Appellant provided a letter setting out something of his personal circumstances and commenting on the October 2019 incident together with a reflection deriving from having attended in October 2021 a patient undergoing a suspected cardio-vascular event; a further reflection derived from the day he had spent voluntarily shadowing staff at the Stroke Unit of a local hospital in November 2021 in order to improve his awareness of the presentation and treatment of cardio-vascular events and an academic review of thalamic cardio-vascular events.
The Decision .
The decision set out the three stages in the process undertaken by the Panel: the determination as to the facts; the conclusion in respect of whether there had been misconduct such as to impair the Appellant's fitness to practise; and finally the decision as to the appropriate sanction.
The Panel accepted the evidence of W1 which the members found to be clear and reliable. They were critical of the Appellant's evidence. They found him to be “inconsistent” in his giving of evidence and said that “much of his evidence was inherently implausible” and that it “lacked credibility”. The Panel rejected the Appellant's account that his attention had first been drawn to SU1 by a male member of the public saying that it “concluded on the balance of probabilities that [the Appellant] had invented this encounter to explain how it was that W1 recalled him saying that he was unable to assist as he was off duty”.
At [61] the Panel noted that the Appellant's own evidence had been that W1 had told him...
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