Tony P Clayton

Preliminary Matters

Application for admission of hearsay evidence

1. The HCPC made an application for the evidence of the Investigating Officer (IO), who produced the Salisbury Hospital NHS Foundation Trust’s (the Trust) internal investigation, to be admitted as hearsay. The IO had provided evidence in respect of the Trust’s internal investigation process and the subsequent Investigation Report he produced. The full details of the IO’s evidence appears in his signed witness statement which includes an attestation as to the truth of that statement. The IO has been co-operative throughout and had been willingly engaged in the HCPC’s investigation by attending an interview and providing a signed witness statement. The HCPC intended to rely on the IO’s witness statement, and the exhibits produced by him.

2. On 25 September 2023, it came to light that the HCPTS had not engaged with the IO in regard to his attendance at this Final Hearing. As a result of this administrative oversight, the IO has not been sent a notice of hearing and so was unaware of the date of this hearing.

3. On 26 September 2023, attempts were made by the HCPTS to contact the IO and secure his attendance as a live witness. First, by sending an email to the IO’s NHS email address notifying him of the hearing dates, and the date he would be required to attend. That email was returned as undeliverable. Secondly, by email to the IO’s personal email address. Thirdly, by sending an email to the Operational Manager at the Trust (IO’s employer at the time of producing the sworn statement), to request alternative contact details for the IO. The Operational Manager replied the same day informing the HCPTS that the IO had emigrated to Australia and supplied the IO’s new work email address.

4. On 27 September 2023, the HCPTS sent an email to the IO’s new work email address, notifying him of the hearing dates and the date he was required to attend. On 27 September 2023, an out of office response was received from the IO’s new work email address which indicated that the IO was on carer’s leave and no return date was specified.

5. On 28 September 2023, the HCPTS sent an email to the Human Resources Department of the IO’s current employer, requesting that a message was passed on to the IO, asking him to make contact with the HCPTS.

6. On 29 September 2023, the IO responded to the HCPTS stating that he could not attend the hearing. The reasons given for that non-attendance were that he emigrated and was no longer registered with the HCPC nor working within the NHS. He added that he no longer had access to any interview material, notes, or files.

7. The Panel’s attention was taken by the HCPC to the terms of the Foreign and Commonwealth Development Office (‘FCDO’), published guidance of 1 August 2023, which sets out the rules applicable to the taking of evidence from witnesses abroad in proceedings in England. In relation to witnesses giving evidence from abroad before Tribunals (such as the HCPTS), the rules vary depending on the country in which the witness is located. The rules for certain countries have been published however, that country is not included within the list.

8. The Panel was informed that in the circumstances, the process as outlined in the decision of the Upper Tribunal (Immigration and Asylum Chamber) in Agbabiaka [2021] UKUT 00286 (IAC) at para. 31, is therefore to be applied. The process to be adopted was set out in the HCPC Skeleton Argument that was before the Panel. That process was likely to take 8 weeks. The HCPC was therefore making an application for the IO’s evidence to be adduced and admitted as hearsay, under the Conduct and Competence Committee Procedure Rules 2003, Rule 10(1)(b) and (c). Those provisions provide a Panel with a discretion to admit evidence, notwithstanding that it may not be admitted under the Civil Evidence Act 1995, provided that it would be in order to do so, to protect members of the public. The HCPC had set out in its Skeleton Argument the law which it considered would support its application. That included reference to the four cases of:

Bonhoeffer v GMC [2011] EWHC 1585 (Admin)
Horncastle v United Kingdom [2015] 60 E.H.R.R 31
Ogbonna v Nursing and Midwifery Council [2010] EWHC 272 (Admin)
Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin).

9. In relation to the criteria set out in the case of Thorneycroft, the HCPC submitted that:
a) The hearsay evidence of the IO is not ‘the sole or decisive evidence’ in support of the Allegation, as the IO’s evidence speaks to his internal investigation. Witness evidence is provided by those witnesses who will be attending the Final Hearing and who can corroborate or contradict the evidence of the IO should it be admitted as hearsay. The HCPC submitted that the Panel could be satisfied that there is evidence from other sources which can be considered and balanced against the hearsay evidence when making a determination on the facts of the case.
b) The evidence of the IO could be considered demonstrably reliable as the IO appears to have no motive to fabricate or misrepresent what occurred. The IO has signed a statement of truth. Further, there is no obvious history of animosity between the IO and the Registrant.
c) Whilst the initial HCPTS error in not contacting the witness sooner lies in terms of onus, upon the HCPC, reasonable steps were taken to contact the IO to secure him as a live witness, with a response not being received until 29 September 2023. The location of the IO and the resulting time difference has made it more difficult to engage with him to discuss his attendance.
d) As the IO has emigrated and is no longer registered with the HCPC, the HCPTS and the HCPC did not hold the most up to date contact details for him. As such, this has frustrated attempts to contact the IO to notify him of the hearing.
e) Further, as the IO has emigrated, approval needs to be sought from the FCDO for the witness to give evidence from abroad before the witness’ attendance can be confirmed. That process can take up to 8 weeks, and so in the circumstances it is not feasible to obtain FCDO approval for the IO to give evidence before the start of the hearing today.
f) Whilst the failure to contact the IO earlier is unfortunate, the Panel may consider the above reasons as a satisfactory explanation and justification for the non-attendance of the IO.
g) Additionally, adequate counterbalancing measures to protect the Registrant’s right to a fair trial exist as the Registrant may make such representations on the evidence as he sees fit. Further, Student 1 is attending the Final Hearing and can be cross- examined by Counsel who has been appointed for the Registrant. Counsel will therefore have the opportunity to question Student 1 on the account she gave to the IO during his investigation.

10. It was submitted that it was a question of what, if any, weight should be afforded to any such evidence. In undertaking that task the Panel was invited to look at all of factors, including the seriousness of the allegations and the barriers which have prevented the IO from being called as a witness in the available timeframe. These are, in the HCPC’s view, allegations of a serious nature; and the HCPC has taken reasonable steps to locate and secure the live evidence of the IO; further, there is a public interest that this evidence being admitted.

11. The Panel received legal advice in line with the statement of the law as set out in the Skeleton Argument before the Panel. It was emphasised that the Panel had a wide discretion to admit hearsay evidence and then to assess what weight it considered appropriate in the circumstances. The Panel’s role being semi-inquisitorial and not adversarial in nature permitted such an exploration of the evidence.

12. The Panel noted that the Registrant had not raised any objection, accepting that this report had already been considered and nothing turned on its conclusions. The Registrant had stated that despite the need for an internal investigation he had been retained and continued working for the Trust.

13. The Panel noted that it was unfortunate the IO would not be available for cross examination. However, given the fact that the witnesses who had provided material to the IO and on which the IO had based his findings and report would be available for questioning. The Panel considered that it was appropriate to admit the evidence of the IO as hearsay.

HCPC applications on days two and four to proceed in the absence of the Registrant

14. The Registrant had attended the hearing on day one and informed the Panel that his personal situation was such that he had to seek work on some days during the scheduled hearing period. On day two of the hearing, the Panel had placed before it, an email from the Registrant in which he stated that he had decided not to attend the hearing on days two and four. He indicated that he would be attending on days three and five. He gave no indication in relation to his attendance the following week when the hearing was scheduled for a further four days.

15. The Legal Assessor informed the Panel that at the close of the hearing the previous day, in the presence of the Presenting and Hearings Officers, she had been informed by the Registrant that he would not be attending the hearing on days two and four. Those days were when the HCPC scheduled witnesses would be giving evidence to the Panel on matters to which the Registrant had entered admissions. After making that statement the Registrant was requested to confirm his intention not to attend on days two and four in writing. He submitted that to the Panel.

16. The HCPC made an application to proceed in the Registrant’s absence at the start of day 2. The grounds for that application were:
• The Registrant had made an informed decision not to attend.
• An adjournment to allow his attendance for the whole of the hearing was unlikely to succeed, given the Registrant’s stated pressing financial need to work.
• There were witnesses scheduled to attend, and that schedule timetable should be adhered to, particularly in relation to the vulnerable witness who has been warned to attend on day three.
• There is public interest in this matter not being delayed any further.

17. The Panel received legal advice and took into account the terms of the HCPTS Practice Note within which the elements of the leading case of R v Jones and Hayward were encapsulated. Within the criteria set out by the judge in that case was the right to an adjournment to obtain legal representation. The Panel noted that whilst a lack of legal representation was a matter that would support an adjournment, the Panel considered that this issue had already been addressed during the adjournment application decision of 21 September 2023. Further this issue of representation had now also, in part, been addressed by the HCPTS appointing a representative for the Registrant in relation to the matters relating to Student 1.

18. The Panel noted that the Registrant had expressed a considered approach in reaching his decision to not attend. There had been a rationale to the choice of the days which the Registrant had chosen based on his decision to prioritise his work, to that of attending this hearing. It could therefore be assumed by the Panel that he had voluntarily absented himself selectively. There would be no benefit from adjourning as this would adversely affect the hearing timetabling and would impact on those witnesses who were already warned and ready to give evidence. Further, an adjournment would in fact be counter to the Regsitrant’s intentions of only being here on days when matters in contention were the subject of scrutiny. The Panel therefore decided that it would proceed in the absence of the Registrant.

19. At close of proceedings on day three, the Registrant in open session restated his intention not to attend on day four and confirmed that he would be present on day five, when he would be ready to present his case.

20. The HCPC noted this, and in response stated that it would be the HCPC’s intention on day four after the HCPC’s last witness had given her evidence, to close its case in the absence of the Registrant.

21. At the start of day four of the hearing, the HCPC submitted a further application to proceed in the Registrant’s absence, noting within that application that the Panel had heard from the Registrant the day before of his intention not to attend.

22. The Panel again sought legal advice and considered the matter afresh. The Panel had on this occasion the reconfirmation from the Registrant of his intended absence, a statement that had been addressed directly to the Panel and put on record. There is an HCPC witness in attendance and it would not be in the public interest to delay receiving her evidence in all the circumstances. The Panel reached the conclusion that it would proceed and that there were no fresh reasons to consider adjourning.

Registrant’s documentation

23. The Panel noted that the Registrant’s bundle of papers which he had submitted to the Investigating Panel Committee had been placed on the documentation portal. The HCPC confirmed to the Panel that this had been done in error and in the absence of express permission of the Registrant and this being the case that bundle had been removed. The Panel was invited to exclude from its consideration anything within that bundle which was not now presented as part of either the HCPC bundle or any documentation which the Registrant may choose to place before the Panel.

24. The Panel was given guidance by the Legal Assessor that the Panel should place outside of its thinking those matters which may go to matters that are not before the Panel today by way of allegation or supporting documentation. The Panel should not refer to, or take into consideration, anything it has seen in error.

25. The Panel was informed by the Registrant on day three of the hearing that he had two documents which he wished to be placed before the Panel. These were a five-page personal statement, which was not a sworn statement, but had been prepared for the hearing, and which focused upon the aspects of the Allegation which the Registrant had denied. The second was a reference from a former colleague who he worked with at the Trust. On day four the Registrant provided the Panel with a copy of an email from the union representative who represented him during the internal disciplinary process.

Background

26. The Registrant is an Operating Department Practitioner (‘ODP’) who was employed by the Trust from 25 February 2019.

27. On 4 March 2020, Clare Fountain, Head of Learning and Leadership Development, and Emma Freeman, Practice Educator, raised concerns to Bernadette Dunn, Head of Nursing, and Donna Arnold, Band 7 Sister. The concerns related to the Registrant’s role as a Practice Educator and his actions signing off student nurses and ODPs in the Main Theatre department.

28. On 4 March 2020, as a result of the above concerns raised, restrictions were placed on the Registrant’s role at the Trust. As part of the restrictions the Registrant was informed that he may not continue in his practice education role from 4 March 2020. This included not having contact with any students or apprentices.

29. On 11 March 2020, Bournemouth University contacted Fiona Hyett, Deputy Director of Nursing, to raise concerns that the Registrant had demonstrated inappropriate behaviour towards Student 1 whilst she was on placement with the Trust from 11 November 2019 until 22 December 2019. A decision was subsequently made to suspend the Registrant pending an investigation.

30. On 30 March 2019, Simon Clarke, Head of Radiology, was appointed as the Investigating Officer. Simon Clarke concluded his investigation and submitted his report on 22 April 2020.

31. On 6 April 2020, the HCPC received a self-referral from the Registrant regarding the investigation being conducted by the Trust. On 26 May 2020, the Trust contacted the HCPC to confirm they were conducting investigations into the Registrant’s conduct. The HCPC received a referral from the Trust on 10 June 2020.

32. At its meeting on 4 May 2021, the Investigating Committee of the HCPC determined that there was a case to answer in relation to an allegation of impairment of the Registrant’s fitness to practise. At a preliminary hearing on 27 July 2022, the allegation faced by the Registrant was amended.

Findings of fact

33. The Panel noted that at the start of the hearing the Registrant had made factual admissions to particulars 1(a), 1(b), 1(c) and 1(d), 2, 3, 4(a) and (b), 7 and 8. In relation to 5 and 6(b), the Registrant admitted these on the factual basis of writing the emails but made denials as to their sexual nature as set out in particular 10. The Registrant denied particulars 6(a), 6(c), 6(d), 6(e), 6(f)(i), (ii) and (iii), 6(g), 9 and 10 in relation to 5 and 6(b).

34. The Panel received live evidence from four HCPC witnesses and the Registrant. Whilst the Registrant was providing his live evidence, the Panel took the step of requesting access to the professional and personal references which the Registrant had placed before the Trust’s Disciplinary Panel in June 2020, and which he stated he had also sent to the HCPC. The Panel noted that the record of the Disciplinary Hearing shows there having been 22 such references before the disciplinary panel. In some instances there is mention of the nature of those references. The Panel considered that those documents were important having heard the Registrant state that some of those references included information relevant at this fact stage, such as the positioning of staff members in a theatre setting. It also appeared that some of those character references had been supplied by students, which would give some further context to the way that the Registrant had been perceived by those he mentored and guided when on placement.

35. The Registrant stated that he had sent copies of those statements to the HCPC by registered post. The HCPC stated that it did not have any record of having those references.

36. After a delay in proceedings the Panel was informed that whilst the Trust could confirm that there had been references placed before the Disciplinary Panel those had not been retained by the Trust. The Panel was disappointed to hear this as it seemed to it that it was sensible to have retained those following the refence to the HCPC and whilst it remained a live matter.

37. Whilst the Panel was awaiting this documentation the Registrant had been released from his oath and took the opportunity of obtaining references from former and current colleagues. The Registrant was able to produce for the Panel 8 fresh references that attested to the Registrant’s skills and professionally appropriate behaviour. One of those references was from a colleague who had worked with the Registrant during the period of the matters which form the Allegation.

HCPC submissions

38. The HCPC submitted that notwithstanding the admissions, there was sufficient evidence to the requisite standard of balance of probabilities for the Panel to make a finding on all particulars. The HCPC’s reasoning for that position had helpfully been set out in writing. Within those written submissions it was advanced that the Registrant’s actions in relation to Colleague 1 and Student 1 could not only be described as unprofessional, but were also flirtatious, in pursuit of a romantic relationship and at times explicitly sexual in nature.

The Registrant’s submission

39. The Registrant told the Panel that the matters referred to within the Allegation form the first and only time that his conduct has been brought into question. He stated that in 31 years he had never been the subject of a complaint and he could not understand why these allegations had been made by this student.

40. The Registrant stated that he accepted he had made the entries in the OPAL system but that he had asked a variety of people whether what he was doing was correct. He had asked a senior theatre colleague, Bournemouth University and the Trust Education Department for clarification on the correct processes.

41. The Registrant asserted that the matters alleged by Student 1 did not happen, and that he had no reason to make comments of a sexual nature. He was concerned about the changes which had crept into the evidence of Student 1 between the time of her first statement to the University, her statement prepared for the HCPC, and her oral evidence. In particular, her evidence in relation to the key issue as to whether the Registrant and Student 1 had been ‘completely alone’ on the occasions outlined in the allegation. He told the Panel that he did not make the comments. He further said it was highly unlikely that anyone could have made those comments, or acted in the ways stated, in the locations where that they are alleged to have occurred without someone else hearing or observing. He submitted that within the staff restroom there would always be someone around. In theatre there is generally always someone within hearing distance, particularly in the scrub room or during a procedure, such as a hand procedure that took place on 4 December 2019.

Decision on Facts

42. The Panel having received the Parties’ submissions took the advice of the Legal Assessor as to the matters to be considered and the approach to be taken to the documentation and evidence the Panel has seen and heard. At this factual stage in the proceedings the burden is upon the HCPC to prove each and every part of an allegation, and the Registrant does not have to refute or disprove anything.

43. The Allegation falls into four sets of particulars relating to different forms of conduct/behaviour. Firstly, those relating to the Registrant’s qualifications and actions within his educator role (particulars 1-4). Secondly, in his interaction with Colleague 1 and Student 1 (particulars 4 and 5 and 10 in relation to those two particulars). Thirdly, his alleged actions during a period when he had been suspended and under instruction not to communicate with students (particulars 7 and 8). Finally, the allegation of health being an alternative ground, which this Panel is not addressing unless and until it is required to do so in accordance with the guidance issued by the HCPTS on Dual Allegations June 2021 edition.

Particular 1

1. Between 25 February 2019 and 04 March 2020, you worked beyond your scope of practice in that you:

44. The Panel had before it documentary evidence that the Registrant had moved from his agency-based placement into the role of Practice Educator within the Trust on the 25 February 2019. That recruitment process had not involved the Education Department.

45. The Panel also heard evidence that on 4 March 2020 the Registrant had been restricted from his Practice Educator role following concerns relating to the Registrant’s actions in signing off student nurses’ theatre placement assessments and/or signing off student nurses onto the NMC register.

46. The Panel had evidence from the Registrant and the internal investigation that the Registrant had the relevant skills, knowledge, experience and possessed a qualification that entitled him to undertake this role of Practice Educator which involved mentoring and overseeing theatre placements.
47. The Panel has not seen, and from the evidence before it the Education Department has also not seen, a copy of the NVQ D32/D33 Assessor’s Award which the Registrant obtained in 1997. This qualification like a degree, does not have an expiration date and as the IO stated in his Investigation Report, similar posts at that time were recruiting based upon possession of this qualification.

48. The NVQ DA32/D33 qualification was superseded in 2011 by a new assessor and verifier qualification under the Office of Qualifications and Examinations Regulation. It is accepted that there is no mandatory requirement to re-qualify and obtain the new qualification known as a Training Assessment, Quality Assurance (TAQA).

Particular 1(a) – proven.

1(a) signed off student nurses for their placements in theatres;

49. The Panel heard evidence from AW, who is the Head of Practice Education within the faculty of Health and Social Sciences at Bournemouth University. In her evidence she outlined the Online Practice Assessment of Learning (OPAL) system and who can have access to the system and various access levels accorded, which are role dependent.

50. In her exhibited documentation ‘Commentary and documents depicting student assessment activity completed by Tony Clayton outside of expected assessment activity of an HCPC Registrant’ at various points she states that:

‘While both sets of NMC standards permit HCPC registrants to undertake formative assessments of nursing students, they are not able to conduct summative assessments without additional input from a nursing registrant on the appropriate part of the NMC register.’

‘Published in May 2018, the transition to the NMC Standards for Student Supervision and Assessment was made by Bournemouth University and practice partners in September 2019. This meant that the terms used in the OPAL documentation altered to reflect the new roles of Practice Assessor/Practice Supervisor, with the older term/role of mentor (NMC, 2008) being replaced in all areas of OPAL’.

‘As part of the transition all registrants who had previously accessed the OPAL system were required to re-register their credentials… However, it appears that Tony Clayton continued to have access to parts of the system that should have not been accessible to a Practice Supervisor. This may have been due to some initial transition issues in early months that were rectified.’

51. AW recorded in her sworn statement that ‘concerns were raised with the University regarding Tony Clayton’s assessment and signing off of student nurses in February 2020.’ At some point in March 2020 the Registrant’s access to OPAL was removed by the University at the request of the Trust.

52. Following the revision of OPAL to comply with the new NMC educator roles and titles made effective in September 2019, the Registrant was required to re-register his credentials and competences as an educator. The Panel had before it a screen shot of the re-registration form completed by the Registrant.

53. This re-registration form is divided into sections relating to regulators whose students were trained by Bournemouth University. The bottom left-hand column provided for the educators NMC/HCPC/GMC professional registration number, place of work and details of the department they worked in. Several professions were using this holistic form to record their competencies and role with a variety of regulators. The form provided a tick box answer format to questions relating to the following categories:

• Midwifery
• Nursing
• Advanced Practice
• Social Work
• Allied Health Professionals
• Operating Department Practice
• Paramedic
• Independent and Supplementary Prescribing

54. The Nursing section provided three categories for an educator to tick and certify their relevant competencies.

• I am a Practice Assessor (PA) and I am a registered nurse registered within the same part of the register as the student nurse.
• I am a Practice Supervisor (PS) and I am a registered Professional and I have current knowledge and experience and I am appropriately prepared for the role.
• I am a registered professional (non-nurse) and practice supervisor with current knowledge and expertise and I am appropriately prepared for the role.

55. The Registrant had ticked the second and third boxes in paragraph 55 above. AW confirmed in her oral testimony that the Registrant was correct in ticking those boxes based on his level of qualification and experience. The Registrant was not qualified to tick the first box of ‘Practice Assessor’ as he would have had to be a registered nurse. The Registrant did not tick the first box. Only registered nurses were able to undertake and complete a summative (final) assessment and sign students off onto the NMC register.

56. AW told the Panel that for reasons to do with the IT system the Registrant had been allowed access to the pages of the OPAL system where evidence from the final assessments were recorded and at which point a student is signed off onto the NMC register. This was an error in the system and the IT glitch had subsequently been identified and rectified by the software company. The existence of the glitch came to light following the concerns raised by the Trust relating to the Registrant’s abilities to assess and sign off students.

57. The Registrant’s assessment of students was recorded following or during an interview with the student and then sometime later the student entered their feedback on their experience whilst within the theatre placement. On this page the heading for the role of the assessor was ‘Practice Assessor/Practice Supervisor’. This accorded with the first two categories of the three on the NMC list on the re-registration form. The Registrant had a qualification that entitled him to be a ‘Practice Supervisor’, but not a ‘Practice Assessor’.

58. In relation to the issue of having the requisite current knowledge and skills to be a ‘Practice Supervisor’ following the NMC changes in 2019, the Panel received evidence from NS. NS was at the time of the matters alleged Head of Practice Education, and since April 2021 has been the Head of Education and Apprenticeships for the Trust. She told the Panel that the Registrant, whilst employed as a Practice Educator within Theatres, was not part of the Practice Education Team based within the Education Department. Her evidence supported that of AW in relation to the distinction between a Practice Assessor and a Practice Supervisor and that the Registrant would not be able to sign off a student nurse onto the NMC register.

59. The evidence before the Panel, in the form of a printout from the OPAL system produced by MR from Bournemouth University, showed that the Registrant had completed final (summative) assessments for seven student nurse placements within theatres in his capacity as a Practice Supervisor.

60. NS informed the Panel that under the new NMC guidelines the Registrant was not able to be a Practice Supervisor for student nurses until he had taken the Practice Supervisor Preparation Training, which is something he did not attempt to do until after his disciplinary hearing on 9 June 2020.

61. NS told the Panel that on 29 July 2020 the Registrant had attended the Practice Supervisor Preparatory Study Day. Attendees on this training day were provided with a logbook in which the evidence of the experience of support for three students in practice is entered. The Certificate of Completion is within the logbook and the Registrant did not submit the logbook with his evidence and so the Certificate of Completion was therefore never issued. NS stated that as a result at no time was the Registrant qualified act in the role of a ‘Practice Supervisor’.

62. The Panel noted that the Registrant has admitted this limb of particular 1. On the evidence of AW and NS the Panel finds that the Registrant was at no point able to sign off student nurse placements within theatres and in so doing so on seven occasions was acting outside of his scope of practice.

Particular 1(b) – proven.

b) signed off student nurses onto the NMC register despite you not being a registered nurse;

63. The evidence relating to the qualification required to sign off student nurses onto the NMC register is set out above. This can only be done by a Registered nurse, within the same part of the NMC register, completing the final (summative) assessment.

64. There is evidence from the printout from the OPAL system that two of the seven nurses for whom the Registrant had undertaken final assessments had gone onto the NMC register.

65. The Registrant was not, and never would have been qualified, to undertake this signing off and entry to the NMC register. The Panel has noted above how this error in the system had allowed the Registrant to do so.

66. The Registrant has admitted this particular and based on the evidence before the Panel it finds this limb of the particular proven.

Particular 1(c) – not proven.

c) signed off student Operating Department Practitioners when you did not hold the correct up to date qualification to act as a mentor;

67. The Registrant has admitted this particular. The Registrant told the Panel that his practice is maintained by experience and general updating for CPD purposes. This was not challenged by the HCPC.

68. BD told the Panel that the Registrant’s qualification was out of date based on the fact that it had been obtained in 1997. The evidence of the IO however was that this qualification was still accepted for the Registrant’s Practice Educator role.

69. The Panel has noted that there is no mandatory requirement to obtain the TAQA, which has superseded the Registrant’s qualification, therefore the D32/D33 remains a current qualification.

70. The Panel notes the lack of evidence to support the requirement for any updating of this qualification. There is no evidence of any courses that are specifically aimed at updating the knowledge gained whist acquiring this qualification. This being the case, his qualification remains current and up to date.

71. The NMC move away from using the term ‘mentor’ required the Registrant to undertake training to update his practice specifically and solely in regard to his ability to undertake the NMC’s new role as a Practice Supervisor for student nurses.

72. There is no evidence that the Registrant’s qualification is no longer the basis for him undertaking a wider role of mentor beyond his work with student nurses.

73. The Panel therefore, notwithstanding the Registrant’s admission, for the reasons set out above, find this limb of the particular not proven.

Particular 1(d) – proven in relation to ‘signed off’ but not proven in the alternative of ‘review’ of the assessment.

d) signed off an end of placement for Student 3 to progress from 1st year to 2nd year and/or did not review the student nurse’s assessment on the OPAL system.

74. The Registrant has admitted this limb of the particular in full.

75. The evidence for the first part of this limb, relating to Student 3’s end of placement final assessment, comes from AW, NS and the OPAL printout provided by MR. This evidence supports the Panel’s finding of proven for the first part of this limb.

76. The information provided from the OPAL system is limited to the printouts of the final assessment entries undertaken by the Registrant. There was no evidence as to how a review of that entry would be undertaken or noted on the system. There was therefore no evidence that the Registrant had, or had not, reviewed the student nurse assessment on the OPAL system. This being the case, the Panel find this part of the limb not proven.

Particular 2 – not proven.

2. You did not accurately complete the form on the OPAL system which resulted in you holding yourself out as an Advanced Clinical Practitioner Supervisor/Assessor, when you did not hold that qualification, and this was misleading.

77. From the OPAL re-registration page, the Panel had evidence that the Registrant had ticked three further sections beyond that relating to Nursing, one of which was:
• ‘I am an ACP Supervisor/Assessor’.

78. The Registrant has completed Part 1 of the first surgical assistant course. The Registrant told the Panel that he had never said he was an ACP and the Registrant’s evidence on this is consistent with the explanation he gave to the Disciplinary Panel.

79. The evidence of NS is that the Registrant did not hold ‘the specific qualification’ required to undertake the role of an ACP Assessor. There is however, no evidence as to what this ‘specific qualification’ is.

80. The HCPC has not provided the Panel with any evidence that someone ticking that box had to be a qualified ACP. Nor has the HCPC provided any evidence that only ACPs were permitted to be involved in the training of other ACPs and be ACP Assessors. If there were such evidence, then it would follow that the Registrant had misled others into understanding that he was an ACP. This is not the case.

81. The Panel accepts that the Registrant had ticked the box to indicate that his role as Practice Educator, his qualification, knowledge and skills permitted him, along with practitioners from other disciplines to mentor, train and assess individuals in attaining the title of ACP.

82. The Registrant had therefore, in the Panel’s view, accurately entered his credentials on the OPAL re-registration form and so this particular is not proven.

Particular 3 – Proven.

3.You did not keep your knowledge and/or skills up to date, despite being asked to do so by your employer, in that you did not complete the Practice Supervisor Preparation Training.

83. The Registrant had made an admission to this particular and within his evidence acknowledged that after taking up the role of Practice Educator there had been a number of occasions when he could have attended the Practice Supervisor and Preparation Training.

84. The Registrant however maintained that he had kept his skills up to date through experience and practice and that his general clinical knowledge had been maintained through regular online update courses and reading as required for his CPD.

85. It was noted within the Investigation Report that there had been opportunities for the Registrant to attend the Practice Supervisor and Preparation Training between February 2019 and March 2020. The Panel also noted that completion of this course had been part of the Disciplinary outcomes.

86. NS’s evidence was that staff were regularly alerted to the various one-hour update courses that were available and the Registrant would have been made aware of those.

87. NS told the Panel that she and others had alerted the Registrant to the need to attend and complete the Practice Supervisor and Preparation Training course. She referred to a number of conversations with the Registrant concerning the need to attend this particular course and other relevant update courses. Her evidence was that she had explained the differences in the various courses and the NMC changes.

88. The evidence of NS was that the Registrant had not attended the Practice Supervisor and Preparation Training course until July 2020, and he had then failed to complete the logbook and obtain the Certificate of Completion.

89. The Panel accepts that in relation to the attendance and completion of the Practice Supervisor and Preparation Training course, the Registrant had failed to keep his knowledge and/or skills up to date as requested by his employer.

Particular 4 – limb (a) proven and limb (b) not proven.

4. You submitted a Performance Assessment document for the purposes of Colleague 2’s care certificate, but;

a) Did not include adequate detail of Colleague 2’s competency; and/or
b) Did not understand or have awareness of how to adequately complete the Performance Assessment document.

90. The Registrant has admitted this allegation. The Panel noted on 2 March 2020, the Registrant is reported as having emailed the Practice Education Team apologising for not following the Care Certificate Process.

91. NS explained to the Panel that a Care Certificate consists of two documents. First, a Practical Assessment and secondly, a Knowledge Assessment. There are a set of 15 standards and under each of those 15 standards, there are a set of statements. Each statement had to be evidenced, assessed and signed off. The completed document then also has to be signed off.

92. The Panel did not have direct evidence of this, nor the original emails referred to by the IO. However, there was sufficient evidence that the Registrant had not obtained the relevant evidence or documentation to make the overall sign off.

93. Those failings and the lack of supporting documentation had been drawn to the Registrant’s attention in an email from the Practice Education Team on 28 February 2020. That email is referred to and summarized by the IO in his Investigation Report Appendix as follows, “EF received incomplete care certificate for Col 2. Email sent to TC outlining concern that CC process has not been followed.”.

94. The Panel accepts this evidence of lack of completion and compliance with the requirements of the Care Certificate as required under limb (a) of the allegation and find this proven.

95. In relation to limb (b), there is no evidence from the HCPC to support the assertion that the Registrant did not have an understanding or awareness of how to complete that documentation.

96. From what is recorded, including his apology, the Registrant had sufficient understanding and awareness to be able to appreciate that what he had done had fallen short of what was required of him. Further, given his experience and accepted knowledge it did not automatically follow that his lack of performance in completing this documentation stemmed from a lack of understanding or awareness of how to adequately complete the documentation.

97. This being the case, the Panel find that the HCPC has not produced evidence to the requisite standard to support a finding on this limb of the particular and so finds this not proven.

Particular 5 – proven.

Particular 10 – not proven in relation to particular 5.

5. On 27 February 2019, you did not communicate professionally with Colleague 1, in that, you sent an email that stated, ‘Good Morning my little angel, I was actually just thinking of you’.

10.Your conduct in relation to particulars 5 and/or 6 was sexual.

98. The HCPC described the wording adopted in the email before the Panel as a term of affection and as such was flirtatious in nature, as well as unprofessional within a professional working relationship.

99. The Registrant had made a factual admission in sending the email. The Registrant told the Panel that in his view he and Colleague 1 were ‘friends’ although he did not have this colleague’s mobile telephone number, they may have engaged socially outside of work.

100. The Registrant maintains that the informal exchange of lighthearted comments and emails had been a two-way thing with, Colleague 1. The Registrant told the Panel that he had some passing contact with this colleague in the two-year period within which he had worked for the Trust before taking up his Practice Educator role in February 2019.

101. The Registrant’s description of the relationship between Colleague 1 and himself was not reflected in the email which Colleague 1 had sent to NS on 6 April 2020, in which she had expressed herself as feeling uncomfortable with the over familiarity displayed by the Registrant. She had expressed it as a ‘feeling’ rather than anything else but had been aware that she had made conscious changes to her mode of dress and ways of ensuring she was not alone with the Registrant. Those concerns were contained within an internal email written after the allegations from Student 1 had been received by the Education Department, a department within which NS and Colleague 1 both worked.

102. NS had told the Panel that there had been several emails where the Registrant had been unprofessional in his communications with Colleague 1, however there was only example before the Panel. Colleague 1 described in her email to NS that this particular email was sent at a time when she felt that the relationship had changed to become more familiar. This email on 27 February 2019 was sent two weeks after the Registrant had taken up his permanent positions as Practice Educator.

103. The terms of the exchange between the Registrant and Colleague 1 on 27 February 2019 were:

08.14 Colleague 1

‘Morning Tony,
This document is from Great Western Hospital.’
Kind regards’

09.16 Registrant

Good morning my little angel, I was actually just thinking of you!!!
How fortuitous that you then email me. I shall read it and get back to you asap. I also wondered, what is the surname of Yvonne, who does manual handling training?’

09.43 colleague 1

That’s a tiny bit creepy, lol

104. It was accepted by the HCPC that this evidence was hearsay, as Colleague 1 has not attended to give live evidence to the Panel. The Panel was invited by the HCPC to place weight on the evidence given that the concerns were reported contemporaneously by Colleague 1 to her line manager. Colleague 1 had then subsequently repeated them in writing to NS and had communicated those concerns to the HCPC by email. NS confirmed that the matter had been raised by Colleague 1 with her then immediate line manager, but this had not been taken further with HR as there had been nothing physical or tangible, but a ‘feeling’ of unease.

105. The Panel noted that until the time of this hearing the Registrant had not previously been given an indication of Colleague 1’s perception of their communications or relationship. The Registrant had shown surprise when he was taken by the HCPC at this hearing to the terms in which Colleague 1 had expressed her discomfort in April 2020.

106. The Registrant’s response to a short informative professional email was not in the same vein or tone as the email to which he was responding. The reference to my ‘little angel’ may have been in line with previous normal salutations made in exchanges between Colleague 1 and the Registrant. The Registrant had told the Panel that this was not unusual and cited that Colleague 1 had referred to him as her ‘bundle of joy’. According to the Registrant the reference to ‘just thinking of you’ was just a turn of phrase.

107. The Panel considered using the term a ‘bit creepy’ could be an innocuous reference to a coincidence of timing between them. However, without direct evidence from Colleague 1 it is uncertain what was intended by Colleague 1’s use of language. Colleague 1’s response finishing with ‘lol’ may be an indication that no offence had been taken.

108. The Panel considers that notwithstanding what the level of friendship assumed by the Registrant was, the communication as alleged, was not professional in either the choice of words or its tone.

109. The Panel considered that in isolation this email exchange was not sexual in nature there being other interpretations that could be placed on the terminology employed.

110. The Panel therefore find particular 5 proven, however particular 10 is not found proven.

Particular 6 - limb 6(b) found proven. The remainder of Particular 6 not proven.
Particular 10 - not proven in relation to particular 6(b).

111. The Panel had received Legal Advice on what was meant by the inclusion of ‘sexual’ within this particular. The HCPC case was that the comments made either implicitly or explicitly alluded to sexual acts. The Registrant’s alleged action in intentionally touching Student 1’s leg would be considered sexual.

112. The Panel had written and oral evidence from Student 1 and the Registrant which were at variance with each other. Student 1 asserted that these events took place and the absolute, and consistent denial by the Registrant. There was no independent evidence nor any witnesses to the exchanges or events alleged. The Panel therefore had to consider and balance the weight it could put on those individual testimonies. In this regard the Panel noted the following:
• This was the first and only complaint received about the Registrant’s conduct during his long career.
• The Registrant had stated that during the course of the Trust’s investigation that he could not remember Student 1, as he was involved with many cohorts of students. The Panel noted that the IO had also recorded that the Registrant had said that he could not remember this particular student but had in response to questions been able to identify detail, seemingly after his memory has been jogged. In his responses to individual elements of the allegations made by Student 1 he was able to give reasoned arguments as to why Student 1’s evidence was not plausible.
• There had been no other complaints or concerns expressed by other students. There was some evidence that some student nurses had provided supporting testimonials for the Registrant.
• There was evidence before the Disciplinary Panel and this Panel that colleagues had no cause for concern about the Registrant’s professionalism or conduct.
• The matters alleged had not been reported by Student 1 but made by her friend with whom she had shared details of the alleged events and comments. In evidence Student 1 was unable to recall what she had told her unnamed friend.
• It was the friend who she said had raised the matter with a University Tutor who had in turn contacted the Trust and arranged for a different Practice Supervisor for Student 1. Student 1 had however undertaken a final assessment with the Registrant despite this alleged reassignment.
• Student 1 had stated that she had not made any contemporaneous notes of the events or recorded the wording of the comments made by the Registrant. Student 1 however kept a diary in which she recorded details of her placements, and it was by reference to those diary notes that she had been able to work out the dates of the alleged events. Notwithstanding having the opportunity to make notes of comments and the lack of contemporaneous notes Student 1 was able to be certain about the words uttered.
• There were several inconsistencies in Student 1’s evidence in relation to whether anyone was nearby or present at the time of the events between her initial report and her HCPC statement. Her evidence had further changed during this hearing.
• Student 1 had been vague on the detail of where these events took place and lacked detail in her descriptions, such as whether the words uttered were, for instance, said in a whisper or not.
• The Panel noted that when pressed on detail or specifics Student 1 had reverted to her original statement.
• Student 1 had shown distress when she got mixed up on detail and pressed for clarity.
• During the internal investigation Student 1 had informed the IO that “there were messages from Tony Clayton that were inappropriate but she was unable to provide them as she had deleted them”. Student 1 had not given any reasons for so doing. However, in this hearing Student 1 had stated that there never had been any such messages and she could not explain the IO’s statement. The Panel also noted that the only message Student 1 had provided to the IO was the email referred to in particular 6(b).
• The chronology of the matters alleged pre-date the start of the placement. The first allegation is within a meeting arranged by Student 1 with the Registrant when she wished to ensure that she was well prepared for her placement within theatre when it started. At this time the Registrant had no knowledge of this student and therefore what behaviour would be appropriate or acceptable.
• The matters alleged were brazen and do not disclose a pattern of increasing sexual comment or behaviour consistent with a developing degree of familiarity.
• In relation to the touching of her thigh, the evidence from Student 1 was vague and only when pressed had she provided detail.
• This touching of the thigh was a serious matter and the last of the alleged conduct matters after a transfer to another Supervisor had been arranged. Student 1 therefore had the opportunity of taking this matter to another source without fear or concern about getting a poor assessment result.
• The Panel noted the feedback made by Student 1 on the OPAL system. In her feedback form which she completed a month after the placement had finished, she wrote:

‘I have loved my placement in theatres, it was a really enjoyable experience that allowed me to experience different situations and methods of care that I would not come across on a ward-based placement as well as develop a variety of skills that will aid me in my future practice. My favourite part of the placement was being able to scrub in and assist the maternity theatres doing caesarean sections. I completed many different spoke placements whilst on this placement that consolidated my knowledge and learning of surgical nursing. I am very happy that they would like me back for consolidation and to work once qualified’.

113. This assessment had informed the Panel’s thinking in relation to the individual particulars and the weight to be placed on the contradictory evidence of the Registrant and Student 1.

Particular 6(a) – not proven.

a) On 5 November 2019 when Student 1 asked whether they were required to wear their
nurses’ uniform, you responded with “is it short and sexy?”, or words to that effect.

10.Your conduct in relation to particulars 5 and/or 6 was sexual.

114. The Registrant stated that there was no reason for Student 1 to ask this question, as she would, once at theatre, have been provided with scrubs. He maintained that he had informed Student 1 that she could come to work in her normal clothing.

115. This was, according to the evidence of Student 1 to this Panel, an event that took place in the Registrant’s office. There was no mention of this location before this hearing of where this had taken place. Student 1 was unable to identify the Registrant’s body language when making this enquiry about the nature of her unform.

116. The Panel considered that it was implausible that on a first meeting with a member of a new cohort of students the Registrant would have made such an unprofessional and openly sexual comment to this student. The onus is upon the HCPC to prove this particular and in the absence of any independent and supporting evidence the Panel prefers the evidence of the Registrant, that this did not happen, and so finds this limb not proven.

Particular 6(b) - proven

b) On 13 November 2019, you sent an email to Student 1 which stated: “I don’t make a habit of standing up young ladies I assure you”, or words to that effect.

117. Student 1 had told the IO that there had been other messages, but she had deleted them and had only been able to provide this one, which was exhibited to the IO’s report. In her evidence to this Panel, she had stated there never had been other emails.

118. The Registrant admitted sending the email and including those words when providing an explanation that he had a flat tire on the way into work and that was why he was late. He told the Panel that he had been informed that Student 1 had been left waiting outside theatre and was becoming distressed. The wording used by him was lighthearted and intended to put Student 1 at ease and not meant in any other way.

119. The Panel considers that in the circumstances described this was a plausible explanation for the use of this terminology by the Registrant and which appears to be in keeping with the Registrant’s style of communication. In this regard the Panel noted that the IO had considered the use of those words ill-judged and unfortunate, which is also this Panel’s view.

120. In adopting that wording it was a failure by the Registrant to communicate professionally with Student 1 and so is found proven.

Particular 6(c) – not proven.

c) On 25 November 2019, you pressed the pedal of the stool Student 1 was sitting on,
lowering the height of the seat and said, “that is the quickest you’ll ever go down”, or words to that effect.

121. Student 1 was unable to recall whether there had been others present when this action had been performed by the Registrant. Initially her evidence had been that there was no one there and in this hearing that there may have been others some 5 or 6 meters away. Student 1 was unable to recall whether the Registrant had made the comment in a whisper or normal level of speech. She stated he had not been talking loudly or shouting.

122. The Registrant maintained that it was unlikely that no one else would have been present given that this took place in a theatre setting, a place where a large team of clinicians are always coming in and out and preparing for surgery.

123. The Panel noted that if someone else had been present this action of suddenly lowering the stool would have been highly likely to attract the attention of others who were described by Student 1 as nearby. Therefore, the Panel found it implausible that the Registrant would have been able to say the words alleged without somebody overhearing.

124. The Panel found Student 1’s evidence to be vague on detail such as to be insufficient to support a finding to the requisite standard. The Panel finds this limb not proven.

Particular 6(d) – not proven.

d) On 4 December 2019, whilst scrubbing in for an operation, you said to Student 1, “I last 5 hours in bed, how long do you last?”, or words to that effect.

125. The evidence of Student 1 was that she had not made contemporaneous notes of what was said to her by the Registrant but was able to recall that it was something along the lines alleged in the limb of this particular. However, she was uncertain and vague as to whether this comment had been made within earshot of colleagues and whether said in a whisper or normal speaking voice.

126. Student 1 was unable to put the word spoken words within the context of a wider conversation or able to recall any parts of the conversation before or after this comment was made.

127. This conversation took place whilst scrubbing up for an operation and this area is, according to the Registrant, a place where there are always couples of clinicians present scrubbing up together. Given the environment described and the proximity of others present the Panel finds it implausible that this highly remarkable comment would not have been overheard and noted by others present.

128. The Panel also noted that Student 1 did not make any reference to this comment in her initial statement for the Trust.

129. On this matter the Panel finds Student 1’s evidence is simply not plausible. The Panel therefore finds this not proven.

Particular 6(e) – not proven.

e) On 4 December 2019, whilst watching an operation, you asked Student 1 if they “gave blow jobs”, or words to that effect.

130. This is the same day as the comment featured in 6(d) above. It is a date upon which Student 1 was unable to identify what the nature of the operation was. The Registrant had been able to go back to schedules to identify that on this date he and Student 1 had been supporting a hand operation.

131. Student 1 was unable to identify the context within which this comment had been made but when pressed had stated that it was within a wider discussion of meat and eating. Student 1 was again unable to identify whether this had been made in the presence of others and did not recall the tone or volume of delivery.

132. The Registrant had told the Panel that for a hand operation many clinicians would have been gathered round so closely together that any comment of such a personal nature would have been overheard.

133. The Panel considers that Student 1’s evidence was vague, even down to the date and type of operation she was observing. The Panel has concluded that Student 1’s evidence cannot be sufficiently relied upon to make a finding to the requisite standard and so finds this limb of the particular not proven.

Particular 6(f) – not proven on all three sub limbs.

f) On 17 December 2019, during an interview with Student 1, you:

i) asked them to type ‘Student 1 is fit’ or words to that effect,
ii) put your hand on Student 1’s upper thigh,
iii) asked Student 1 to ‘send you an email if they wanted to meet up for a coffee or a drink’, or words to that effect.

134. The Panel heard from Student 1 that she recalled other people being nearby in what she described to the Panel as a busy staff room, but they were on a sofa some little distance away and facing away from where she and the Registrant were sat at a table. This is at variance with her earlier evidence that she and the Registrant were completely alone together in a staff room.

135. There was conflicting evidence as to where they were sat in relation to each other at the table with the Registrant stating that they were at an angle and Student 1 saying that they were sat side by side.

Limb 6(f)(i) – not proven.

136. In relation to the position of the laptop, and who was typing, there was again conflicting evidence. The recorded evidence of the final assessment for Student 1 shows the Registrant as the only person inputting information onto the OPAL system on this date. There is nothing to suggest that Student 1 was required to input any information. As noted above, the feedback comments were made by Student on OPAL nearly a month later.

137. Student 1 was unable to put the comment made by the Registrant to type that she ‘was fit’ within a conversational setting or recall what led up to or followed this making of this comment.

138. The evidence of Student 1 is so vague as to fail to reach the standard that would support a finding on this sub limb, and so the Panel finds this not proven.

Limb 6(f)(ii) – not proven.

139. The Registrant maintained that in a staff room there was always someone coming in and out and invariably speaking to him. It was not an environment in which to make such comments or undertake such actions as a touching of a thigh, even if he had wished to do so.

140. The Panel accepted that in this environment it would indeed be a brazen action to repeatedly touch someone’s thigh as alleged by Student 1 was the case over a period of some fifteen or twenty minutes. Her evidence was that the touching was on the upper thigh and two-thirds up between knee and hip and whilst the Registrant had been doing this she had ‘frozen’.

141. Student 1 maintained that she was concerned that if she took offence to the Registrant’s behaviour, she would be at risk of it impacting on her grades.

142. The Panel noted however that these events are alleged to have occurred after Student 1 had been transferred to another Supervisor and her concerns about the Registrant’s previous comments and behaviour had allegedly already been noted by the University. Student 1 could have sought someone else to undertake her final assessment.

143. This Panel considered that the action of touching her upper thigh was an intimate and particularly risky action when there were others present and there was no assurance that Student 1 would not react adversely to such advances or make some vocal remonstration. There is no evidence from another source that the Registrant is a particularly tactile person or breaks personal physical boundaries with colleagues. The Panel also noted that his references from colleagues attest to him maintaining professional boundaries.

144. The Panel therefore considers that the evidence of Student 1, as to the circumstances, nature and duration of the behaviour has not reached the requisite level and so make finds this limb not proven.

Limb 6(f)(iii) – not proven.

145. The Registrant has stated that it was not unusual to offer help to students when they are completing assignments etc. but that he would never invite a student to come for a coffee or drink, he would maintain student supervisor boundaries.

146. Student 1 maintained that this request to send the Registrant an email was not connected with her placement but was a personal invitation.

147. The Panel has noted that there is no evidence that the Registrant had made such offer to any other student.

148. Consistent with the Panel’s other findings that Student 1’s unsupported evidence cannot be given a great weight, the Panel has concluded that the evidence she has provided on this particular has failed to reach the requisite standard, and so the Panel finds this not proven.

Particular 6 g) You said to Student 1, “we can go to the office and have sex providing you want a girl because that is what I dish out”, or words to that effect.

149. Student 1 remembers that this comment was made to her on a day when she been observing the delivery of a baby in the morning and had enjoyed cuddling the newborn. She maintained that it was fairly accurate account of what the Registrant said, although again she had not made any notes of the wording at the time.

150. The Registrant stated that this comment could not have happened, and in any event it is unsupportable by the evidence that he has four children, two of each sex. It is therefore untrue that he could say he would be able to make a baby girl.

151. The Panel considered that without the wider context of what was said and where it was said it was difficult to place sufficient weight on the evidence of Student 1. The Panel therefore finds that the HCPC has not displaced the burden placed on it and accordingly finds this limb not proven.

Particular 10 in relation to the Panel’s finding on 6(b) – not proven.

10.Your conduct in relation to particulars 5 and/or 6 was sexual.

152. The Panel has made no findings of fact in relation to Particular 6, with the exception of 6(b). It is therefore only in relation to this discrete issue of the email that the Panel has to consider the issue of whether the Registrant’s actions were sexual.

153. The Panel has noted above that it agreed with the IO’s view that the wording chosen by the Registrant in his email to Student 1 was ill-judged and unfortunate. The Panel considers that this wording, relating as it did to the Registrant being late and leaving Student 1 outside an operating theatre without any explanation, would not be construed as being sexual in nature. That wording in the Panel’s view might be considered informal and familiar but it did not have sexual undertones. The Panel therefore finds this not proven.

Particular 7 – proven.

7.Between 4 March 2020 and 12 March 2020, you contacted student operating department practitioners, despite specific instructions not to do so.

154. The Panel had evidence that the Registrant had been restricted from his role as educator by BD from the 4 March 2020. There being no clinical concerns about his conduct, the Registrant had been allowed to continue working as an ODP until an investigation had been concluded. As part of that restriction of his educator role the Registrant was instructed not to have any contact with students.

155. The Registrant has admitted this particular and stated in support of his actions of sending a WhatsApp message to the student group, that he had only done so because of seeing two students walking by and not going towards a lecture that had been arranged for them. The Registrant stated that as there were only a few minutes left before the lecture was due to start contacting someone else to alert the student group was not practicable. The Panel does not have a copy of that WhatsApp message but there is reference to it within the notes of the Disciplinary Hearing.

156. The Panel find this particular proven.

Particular 8 – all four limbs are proven.

8.You responded to and/or contacted staff and/or students at Derby and Bournemouth Universities whilst not in a position to do so, due to being suspended and/or restricted from your role. on or around the following dates:
a) 2 April 2020,
b) 5 June 2020,
c) 8 June 2020,
d) 9 July 2020.

157. The Registrant admits this particular and that those contacts had been made when during a period when he was suspended from his educator role, a suspension which started on 4 March 2020. Limbs (a), (b) and (d) relate to contact with Derby University and limb (b) contact with Bournemouth University.

158. The Panel has seen copies of all the emails which support the fact that the Registrant had made those alleged contacts during the relevant period of suspension.

Limb (a) – proven.

159. The Registrant had made contact with RS at Derby University on 2 April 2020, in relation to the topic of ‘Apprenticeship support and challenges’ and asking whether the University had an interruption of studies form. RS in response sought clarification as he had been by AD that she was taking over the support for the apprentices in the Registrant’s absence.

Limb (b) – proven.

160. The Panel saw from an email of 5 June 2020, from RS to AD that RS was uncertain on the topic of ‘Point of contact – clarification’ and wished to know whether he should, as requested by the Registrant, be liaising with him rather than AD.

Limb (c) – proven.

161. The email on 8 June 2020 relates to the contact made by the Registrant with ODP students a few days before his disciplinary hearing on 9 June 2020 during which he had requested references to place before the Disciplinary Panel. This email is from JT to EJ relating to information supplied by AD on the topic of ‘Confidential – SDH OPP students’ confirms this contact with students.

Limb (d) – proven.

162. The Registrant had written on 9 June 2020 to RS at Derby with a heading ‘Restarting apprenticeship - update’ within which he refers to the apprenticeships and at the end states that Ad ‘and myself will be there to support the apprentices when they resume their studies’.

Proceeding in the absence of the Registrant

163. At the close of day nine the Panel was ready to hand down the decision on facts. At this point the Panel was informed that the Registrant was absent and through the HCPC presenting Officer they were informed that he had sent an email that morning explaining that the was working and would be in theatre all day.

164. The Panel appreciated the Registrant’s wish to work and as previously recorded considered that in so doing the Registrant had balanced his need to earn money with his requirement to attend the hearing. None the less, the Panel invited the Presenting Officers representation on the matter of handing down the decision and taking legal advice before proceeding.

165. The Presenting Officer stated the given the information received from the Registrant, he had clearly made an informed decision not to attend and so it could be assumed that he had voluntarily absented himself. There was public interest in this matter progressing with unnecessary delay. Further, delivering the decision now, rather than waiting until this matter resumed at a later date, it would allow both parties to consider the decisions made and permit of more preparation for the next stage in the proceedings.

166. The Legal Assessor reiterated her previous advice, and in her role of providing guidance to an unrepresented party made the point in the Registrant’s absence, that it was in the Registrant’s interests to learn of the Panel’s decision on facts today and not delaying.

167. The Panel considered that it would be in both parties’ interests that this hearing progressed, but particularly so for the Registrant. The Panel therefore proceeded in the Registrant’s absence and handed down its decision.

168. There being no further maters to be addressed, the Panel adjourned with a stated intention of resuming the hearing on 5 December 2023.

Resumption Monday 8 April 2024 and Registrant’s attendance

169. Due to changes in availability and scheduling issues, this hearing did not resume again on 5 December 2024, but on 8 April 2024. This resumed hearing is scheduled for a further four days. The Registrant had been consulted and had agreed to the dates of this resumed hearing. The Registrant was in attendance on 8 April 2024.

170. The Registrant confirmed that he was unable to attend on subsequent days due to financial and work pressures. He confirmed his current working arrangements which run until 3 May 2024. The Panel noted this.

171. After consultation it was agreed that the Panel would take the stages of misconduct and impairment together today, thereby obtaining the Registrant’s submissions on both in person: the Panel was concerned to ensure that the unrepresented Registrant was given as much support as possible to provide the Panel with the information it would find useful in reaching its decisions at this stage of the hearing. The Panel made it clear to the Registrant that it would not move forward to consider the issue of impairment until it had concluded its deliberations on misconduct.

Further documentation

172. During the misconduct stage of the hearing the Panel was provided with copies of the Registrant’s most recent mandatory training records.

Submissions on the statutory ground of misconduct

173. The HCPC addressed the Panel on each of the particulars that had been found proven, namely, 1(a), 1(b), 1(d) (partially), 3, 4(a), 5, 6(b), 7 and 8(a), 8(b), 8(c) and 8(d). The HCPC reminded the Panel that there was no onus upon the HCPC at this stage in the proceedings.

174. In relation to the findings relating to Particular 1, the HCPC stated that the Registrant’s actions fell outside the scope of his practice. The consequences of his misconduct were that seven assessments of student nurses within their theatre placement had been signed off, two student nurses had been signed off and admitted onto the NMC register, and one student had been signed off from year one to year two of their study course.

175. None of those actions were within his remit and in relation to the admission of the two nurses onto the NMC register, he never was and never could have signed off on their registration, only Practice Assessors could do that and those were Registered nurses. The Registrant’s action in signing them off onto the Register called into question the validity of those two nurses’ NMC registration. The HCPC relied upon breaches of Standards of Conduct, Performance and Ethics (SCPE) sections 3.1 and Standards of Proficiency (SOP) ODP 1.1 in respect of those particulars.

176. In relation to Particular 3, there was considerable evidence that the Registrant could have attended the Practice Supervisor Preparation Training course. He had been requested and reminded by many during 2019 and early 2020 to attend the course. Had the Registrant attended, he would have been better informed about the changes to the NMC rules, changes which had been made in May 2018, and which had resulted in the errors referred to in Particular 1. The HCPC relied upon breach of SCPE section 3,3 and SOP4ODP 1.3.

177. The HCPC reminded the Panel that the performance assessment carried out for a colleague as identified in Particular 4(a), had contained insufficient detail to identify whether they required further training in ODP. The HCPC relied again upon breach of SCPE 3.3 and SOP4ODP 1.3.

178. Particulars 5 and 6(b) both related to the use of unprofessional language in communications. The HCPC relied upon breach of SCPE 2.7 and SOP4ODP 7.1.

179. In relation to Partcular 5, the colleague considered that the language used, including ‘Little Angel’ and reference to ‘just thinking about her’, had caused her concern, for the tone adopted in that communication was different to that engaged by her with the Registrant. After this event the colleague had chosen to change her style of dress and took steps to ensure that she was not alone with the Registrant.

180. In relation to Particular 6(b), the student nurse had been questioned about this text message, and when asked whether this was an attempt at a humorous and lighthearted comment by the Registrant had replied, ‘I don’t know, I’m not him’. The Panel was reminded that it had found this comment to be ‘ill-judged and unfortunate.’

181. In relation to Particulars 7 and 8, these were deliberate actions taken by the Registrant at a time when he was aware of the restrictions that had been placed upon him. The HCPC relies in relation to these matters upon breach of SCPE 3.4.

182. In relation to Particular 8, the Registrant had been the instigator of three of the four communications, when he had been given clear instructions not to. This had impacted not only on the Trust but also the two outside Universities with whom the Trust had an educational relationship. The HCPC maintained that this was intentional and persistent and so amounted to serious misconduct.

183. In relation to the issue of misconduct, the Registrant did not make any specific representations, however he stated in broad terms that his actions did not, in his view, constitute misconduct. He stated that the circumstances should be taken into account when considering what he had done.

Decision on Grounds

184. The Panel sought and accepted the advice of the Legal Assessor. At this stage in the proceedings there is no onus upon the HCPC. The decisions to be made are for the Panel’s judgment. The Panel would consider the terms of the Standards published by the HCPC in reaching those decisions, but appreciated that a breach of those provisions does not, in itself, amount to misconduct.

185. The Panel further appreciates that it is to discount any matters on which it has made no finding. Those matters which remain to be considered for the purposes of misconduct are: 1(a), 1(b), 1(d) in relation to signing off but not in the reviewing of the assessments, 3, 4(a), 5, 6(b), 7, 8(a), 8(b), 8(c) and 8(d).

186. The Panel noted that these matters fell into three broad categories:
• The Registrant’s actions had fallen outside his scope of practice.
• He had communicated unprofessionally and inappropriately.
• He had failed to follow instructions. First, in not undertaking specific training and secondly, making contact with students and/or university staff when he was not permitted to so do by the Trust.

187. The Panel appreciated that it is able to take into account all evidence before it in reaching its conclusions and that the threshold for conduct is serious misconduct, conduct which fellow practitioners would consider deplorable.

Particular 1

188. In relation to the three limbs of Particular 1 that have been found proven. the Panel noted that:
• The Registrant had only discovered that what he was doing was considered to be incorrect, after there had been an investigation into how two student nurses had been admitted to the NMC register.
• The guidance surrounding the implementation of the NMC rule changes was still being communicated at the time.
• There was nothing explicitly set out in any message or guidance directed to the Registrant informing him of what he could or could not do in relation to the ‘signing off’ of assessments.
• There was, and remains, a lack of clarity in relation to the extent of the Registrant’s role. This Panel has seen a copy of the Department structure and has been unable to identify where his job and role fitted into this.
• The University and Trust accepted that they had identified an IT systems problem which had resulted in the Registrant being able to access parts of the system he should not have been able to, unbeknownst to him.
• The screens where ‘signing off’ information was entered did not contain an alert to the user as to what the direct consequence of completion would be, such as access to the NMC register.

189. The Panel noted that the Registrant’s acts and omissions had exacerbated the situation. Matters may have been different if the Registrant had not solely relied upon others for guidance on implementation of the NMC changes; relied upon the robustness of the OPAL IT system; or had attended in 2019 the Practice Supervisor Preparation Training course.

190. The Panel further noted that whilst the Registrant had not taken steps to establish the limit of his practice, there is no evidence to support the position that the Registrant had intentionally or knowingly acted beyond his scope of practice.

191. The Registrant, however, thought that he was following the processes set up to address these changes in the NMC processes. Accordingly, when he had signed off one after another, seven nurses, it was in the Panel’s view, as a result of his lack of understanding of the systems failings, rather than willfulness or recklessness. The Panel considers that his actions in relation to limb 1(a) do not constitute misconduct.

192. As set out above, the Registrant had relied upon the system set up by others. In the absence of any guidance, instruction, or user alerts on the ‘signing off’ screen, the Panel cannot find any distinction between this entering of two students onto the NMC register from innocently signing off seven nurses from a theatre placement. The outcome for the two student nurses would be more serious, but the Registrant’s actions and intent were the same. The Panel therefore finds that his actions as set out in limb 1(b) do not amount to misconduct.

193. In relation to the Registrant’s actions in signing off a student to pass them from year one to year two, again the Panel cannot establish how this would be different from his innocent, if misguided, adherence to the OPAL IT program stages, and so accordingly also find that 1(d) does not amount to misconduct.
194. The Registrant’s actions were in all three instances in breach of the HCPC standards. This Panel however considers that if fellow practitioners had knowledge of the circumstances within which those errors had arisen, the Registrant’s conduct would not be considered by those fellow practitioners as deplorable.

Particular 3

195. The Registrant’s core responsibilities as Practice Educator related to him maintaining and expanding his knowledge for the benefit of others. The Registrant’s tardiness in attending the Practice Supervisor Preparation Training course, had repercussions not only for him but also for those who he had responsibility to train and mentor. Attendance on that course would have equipped him with knowledge as to the limitations of his abilities to sign off students’ assessments. Further, arguably, such knowledge may have equipped him with the knowledge to identify and challenge the OPAL system process failings.

196. There is considerable evidence that the Registrant had been urged, instructed and reminded to attend this course during his employment. Despite this, it was not till July 2020 that the Registrant attended the course and the evidence before this Panel is that notwithstanding this attendance, he failed to complete the course work booklet and so was unable to claim the credit for completing this training.

197. The Registrant’s failure to maintain his knowledge is a clear breach of Standard 3.3 and is a serious breach in that his main responsibility for keeping his knowledge up to date was so that he could perform his duties and role as Practice Educator. The Panel considers this to constitute misconduct.

Particular 4(a)

198. The failure to complete his colleague’s performance assessment form competently was, according to the Registrant, because others were better placed to do so, as this colleague had spent the majority of their time within other clinical areas.

199. The Panel notes that it had made no finding in relation to 4(b) relating to lack of underlying knowledge of how to complete the section on competencies. The Trust had treated this matter as one that required a few words of advice and the incident had not been taken any further. The Panel also considers that this incident is of the same magnitude.

200. This failure to complete the competency section to an adequate standard, had, once brought to the attention of the Registrant, been immediately addressed by him without adverse impact on the colleague. The Registrant had been careless and lacking in focus on the seriousness of the task he had been charged with doing. There is no evidence that this carelessness derived out of recklessness or malice. The carelessness, for which the Registrant apologised at the time, would amount to a breach of the standards, however in the Panel’s view, it is not a breach serious enough to constitute misconduct.

Particular 5

201. In relation to this incident, the Panel noted that this matter was not brought to the Registrant’s attention at the time. The matter of how the Registrant’s conduct had made Colleague 1 feel had been dealt with internally, discreetly by management. The Panel had noted that the Registrant expressed surprise when he heard from the HCPC witness of the impact his conduct had upon this former close working colleague. He had described her as someone he could have a laugh with. He had today in hindsight noted that there had been a change within that relationship at some point.

202. The Panel noted that the wording adopted by the Registrant was open to a wider interpretation to someone looking for an alternative intent from this reply to a business email. It was the Registrant’s position that he had meant the wording used to be taken at face value. He had used a term of friendship for someone he worked well with, and a simple turn of phrase adopted in the moment and without any underlying intent.

203. In speech it is possible to identify by way of tone, the intent behind a particular comment, but within a short and swift exchange of emails it is more difficult. The Panel considers that the use of ‘Little Angel’ and ‘just thinking about you’ were poor choices of wording by the Registrant however, they are sufficiently innocuous to be considered just that, and nothing more. In the Panel’s view this choice of wording, whilst unprofessional, does not take the matter into the realm of misconduct.

Particular 6(b)

204. The Registrant accepted that it was an email he had sent to Student 1. The Panel has previously noted that this particular email was the only one which Student 1 had retained.

205. The Panel has described the Registrant’s choice of wording in this email as ill-judged and unfortunate. The Panel considered that the circumstances in which this email was sent, support the reason given by the Registrant for this poor choice of wording: the Registrant had suffered a car malfunction and was running late and so was concerned that this student may be caused distress and upset by his lateness.

206. The Panel has concluded that within this context the choice of wording appropriately described what the Registrant is in effect doing, not attending an arranged meeting on time. Within that interpretation there is nothing within the wording chosen that goes beyond poor judgement and choice and into the realm of misconduct.

Particular 7

207. It is accepted that at the time of this event the Registrant had been told not to make contact with students. In relation to this particular matter the Panel has again taken into consideration the context of the event. This was when a complaint had been made about his conduct in relation to Student nurse 1, but the Registrant had not been told the reason behind the restriction on his duties. That restriction was so that he did not come into contact with students whilst there was an outstanding complaint concerning his behaviour.

208. The incident revolves around him sending a group WhatsApp message to the current cohort of students to alert them to the fact that a particular lecture was just about to start. This message was sent to prevent some students from unintentionally missing a lecture, and for the lecturer’s time being wasted by non-attendances. The Registrant using this immediate means of contacting the cohort was expedient given the lack of time available to him to use the other means, of a third party.

209. The Panel also noted that whilst restricted from his practice educator role, the Registrant was working in the same clinical environment as student ODPs. The Panel could envisage a situation where if it were noted that the Registrant had not alerted the cohort he could have been criticised for his omission to act. In addition, this is an incident which was not taken further by the Trust and in the Panel’s view, is not an action which was done with any intent to subvert the restriction placed upon him by the Trust, but for the genuine reason of concern for the students, lecturer, and one of expediency.

210. The Panel accepted that this action in contacting the cohort was a breach of the Trust’s restriction imposed on his practice and one that should have been adhered to, however in the given circumstances of this case, the Panel considers that the means of contact, and the reason for contact, do not take it beyond the threshold into misconduct.

Particular 8

211. The incidents set out in the four limbs of this Particular occurred at a time when the Registrant knew that he was the subject of a disciplinary process, and restrictions on whom he could contact had been put in place. A Trust placing someone on suspension and restricting their communications whilst the investigatory and disciplinary process goes forward are serious matters and one which should be adhered to.

212. In relation to limb 8(c), the Registrant had contacted students with a view to obtaining statements for the disciplinary process hearing. Whilst the Panel noted that this was an action undertaken at a time when he was most anxious to obtain evidence to assist his case, there are processes and procedures within the NHS for obtaining this information without the Registrant using direct communications with individuals. In the Panel’s view there was no reasonable excuse for the Registrant to have contacted students in this way. This was an intentional breach of the restrictions the Trust had placed upon him, and which he understood he was breaking when he made contact. The Panel considers that this incident constitutes misconduct.

213. Similarly, with Particular 8(a), (b) and (d), the three occasions when the Registrant had made contact with outside university staff, he was in breach of the Trust’s restrictions. The email he received directly from an outside individual could and should have been redirected to someone else to deal with.

214. Further, at this time the Registrant should not have instigated of his own volition contact with the two Universities in relation to training issues, a remit he had removed from him at the time of suspension. The Registrant gave explanations, but it was not clear as to why he had considered that the reasons given were justifications for breaching the Trust’s restrictions on his practice.

215. These were not trivial matters and there appeared to be no reasonable explanation for the contacts he made with the two outside Universities. In the Panel’s view this is conduct that is inexcusable and which amounts to misconduct.

Impairment

216. The Panel having concluded that the matters set out in Particulars 3 and 8 constitute misconduct, this Panel moved forward to consider the second limb of its deliberations on fitness to practise, which is that of current impairment.

217. The Panel had at this stage received oral and written submissions from the Registrant and had placed before it again a testimonial that had been provided in the October hearing. The Registrant also provided the Panel with a comprehensive list of the mandatory training he had undertaken in the last year.

Submissions

218. The HCPC submitted that the Registrant’s fitness to practise should be considered as impaired on both the personal and the public component and that it was right to do so in all the circumstances of this case.

219. The HCPC reminded the Panel that within the Registrant’s latest written representations submitted the night before this hearings resumption, he had again referred to someone else using his login to make the entries on the system. This was an example of the Registrant still distancing himself from his actions and not accepting full responsibility for those actions. It was also an example of the Registrant not accepting this Panel’s findings and so brought into question his insight into his previous behaviour. The Panel was told that there is no evidence that the Registrant would not again go outside his scope of practice. There had been little insight shown into his previous actions and so there remained in the HCPC’s view a likelihood of the conduct being repeated. These were all matters which supported a finding on the personal component.

220. Whilst there were no clinical concerns raised by these findings there were many breaches of the standards and in relation to the instance of the two student nurses that had been signed onto the NMC register, there had been some harm caused by his actions. Whilst there were issues with the IT system this does not diminish the Registrant’s culpability for creating that risk. He should not have entered the information which was beyond his remit and abilities as a Practice Educator. The HCPC therefore concluded that the public would be rightly concerned if those matters raised in this case were not noted by some form of restriction and that a finding of current impairment on the public component should be made.

221. The Registrant stated that he had treated all students the same and in his long career there had never been a complaint, and more importantly there had been no further concerns raised since. He stated that there had been over 20 students who had all gone through under his tutelage. He was proud of his career, and he continued to enjoy his job.

222. The Registrant reminded the Panel that he had twice taken the initiative to inform the HCPC of actions taken by the Trust to investigate and then suspend and place him within a disciplinary process. The Registrant stated that he had not been able to present more supporting evidence to the Panel as it had been lost by the Trust during the disciplinary process. He reminded the Panel that the Matron had retained his services as an ODP for seven months after the events that gave rise to his suspension.

223. The Registrant stated that he had kept his training and knowledge up to date on all mandatory elements. He had undertaken separately further study into counselling and mental health support. He had undertaken equality and diversity training on an annual basis and considered that since these events he had become more conversant with the extent of language boundaries that now exist, and which it is important to adhere to, acknowledging ‘the world had moved on in the last 20, 30, 40 years’ The Registrant had told the Panel that as part of his process of self-directed induction with a new locum contractor he now studied all local protocols and procedures before starting clinical duties.

224. The Registrant outlined the additional charitable and community work he was undertaking and how he was currently supporting his daughter who is undergoing examinations this summer. He identified instances when colleagues had identified the value of his contribution in theatre. He informed the Panel that he had assisted with establishing a new clinical pathway and was able to assist in setting up processes within theatre but was cautious in doing anything outside of his sphere of responsibility and in support of this he cited a request by an anaesthetist to intubate a patient. Whilst he recognised this was a learning opportunity, he declined to do so, as he felt it was outside of his ODP responsibilities.

225. The Registrant informed the Panel that he had used time over the festive period to undertake reflection on events and to identify where the mistakes had occurred, particularly in relation to the signing off of student nurses.

226. The Registrant was content at present working in a locum position as an ODP and would perhaps consider a senior ODP role if it came up but he thought it unlikely that he would undertake a Practice Educator role. He enjoyed his profession and did not wish to lose his registration. He confirmed to the Panel that he would be willing to comply with any restriction which the Panel chose to put upon him and would eagerly undertake any further courses of study the Panel may consider necessary.

Panel decision on impairment

227. The Panel appreciated that at this stage it was considering all evidence before it to assess the Registrant’ current fitness to practise: that is his ability to work today, safely, without any restriction. There are two elements that make up this assessment and those are the personal and the public components. The first relating to the steps the Registrant has taken to redress his misconduct and the public interest in ensuring and maintaining professional standards and the reputation of the professions.

228. The Panel sought and accepted the advice of the Legal Assessor. The Panel also referred to the guidance issued by the HCPTS relating to the issue of ‘Fitness to Practise: Impairment’. The Panel considered all the new documentation placed before it and the representations of the parties. In this regard, the Panel discounted the information voluntarily presented by the Registrant in his oral submissions to matters that would more properly go to any consideration this Panel may have at any subsequent sanction stage.

229. The Panel noted that in relation to the personal component the Panel should consider whether the misconduct found proven is capable of remedy, has been remedied and whether and to what degree there is a likelihood of the misconduct being repeated in the future. In this regard the Panel will take into account information relating to the Registrant’s previous career and details of his current work and performance.

230. The Panel noted the steps taken by the Registrant to keep his practice up-to-date and to remain abreast of clinical and procedural practice issues. The evidence before the Panel is that the Registrant has not only undertaken mandatory training but has also embarked on further courses of study that would assist him in his wider role within the community, of helping those suffering from PTSD. The Panel also noted that in relation to his interpersonal communication skills he had regularly undertaken courses on equality and diversity, study which would be of general assistance to his practice going forward.

231. The work the Registrant had undertaken to maintain his knowledge and skills informed the Panel’s decision in relation to Particular 3: a matter where the Registrant had failed, over a considerable period of time, to undertake crucial training: training which would have arguably resulted in him avoiding some of the matters that have brought him before his regulator.

232. The Panel noted that there had been no subsequent concerns about his practice, and that the Registrant had chosen to not work as an educator or trainer but restricted his practice purely to the clinical aspects of an ODP. It was, as a Practice Educator, that the majority of the issues arose. His personal decision not to attend a relevant course, forming the basis of Particular 3 of the Allegation.

233. On the evidence before this Panel there has been sufficient remediation and insight into the issue of training, retaining, maintaining, and broadening of the Registrant’s knowledge and skill base. There has also been sufficient insight shown by the Registrant into the limitations of his personal practice abilities by his decision to restrict himself to the purely clinical aspects of the ODP role at present. There is also evidence that he has adhered to mandatory training requirements in the last year.

234. Further there is no evidence that during his long career there has ever been a previous failing of the same nature, and indeed his qualifications attained over a long period speak to him historically keeping his practice knowledge up to date. On this basis, the Panel has concluded that there is no continuing fitness to practise issues in relation to training matters as identified in Particular 3.

235. There was, however, nothing before this Panel that provided it with assurance in relation to the behavioral issues identified in Particular 8. The Registrant told the Panel that as a former member of the military he can accept instructions, however the four instances in the summer of 2020, show clearly that the Registrant did not take instruction and abide by them. The Registrant’s position on those matters remains unclear to this Panel. Whether he has gained any insight or understanding of the seriousness of those matters is not known. There has been no evidence of any apology or remorse for those wilful acts of disobedience nor is there any independent evidence to demonstrate that the Registrant is able and willing to adhere to management instructions and advice whilst working as an ODP.

236. Those intentional actions had been serious breaches of the restrictions placed on his practice by the Trust following the identification of errors and concerns about his working practice as a Practice Educator. There appears to this Panel no evidence of understanding by the Registrant of the seriousness, nor impact of his actions, which were not just a breach of the Trust’s restrictions, but serious breaches of the HCPC SCPE.

237. The Registrant had told the Panel that he had taken time to reflect on matters and had clearly expressed those in relation to the issues of use of the computer system and the issues arising from his using unguarded, casual, and therefore unprofessional communications with colleagues and students. There was however no reference to any insight into his flagrant breach of the Trust’s restrictions, or the HCPC standards, in relation to his intentional contact with students and Universities when prohibited from doing so. In questioning the Panel did not discern any reflective statement on this disobedient behaviour: behaviour which was at variance with his stated normal conduct.

238. The Panel noted that the Registrant had been given the opportunity during the adjournment period to consider how to present his case. There is now detailed guidance on the HCPTS website for unrepresented registrants: guidance which was brought to the Registrant’s attention in October. As a Practice Educator and trainer, the Registrant would have been familiar with the need for research and preparation. The Panel did not have sufficient evidence from the Registrant on what he had done in terms of reflection and remedial action since October 2023. Therefore, there was little evidence of insight. This seeming lack of engagement to identify and address this element of his behaviour is concerning.

239. With regards to Particular 8, there still appears to be little recognition of its seriousness nor its impact on his employer, the Universities and the students. For these reasons the Panel finds that the Registrant’s fitness to practise remains impaired on the personal component.

240. The Panel also considered that there remained impairment on the public component. A member of the public may be sympathetic to the circumstances of the Registrant’s failure to maintain his training skills, but they would not be accepting of his blatant disregard of Trust instructions. The public would be rightly concerned, not just at the breach of etiquette for obtaining reference by making direct approaches to students, but the fact that it was made directly to persons who are at a power base disadvantage to himself. This approach for references was further aggravating as it was in response to an allegation relating to his poor conduct with a student nurse. It therefore could have had a detrimental impact on ongoing investigations.

241. In the Panel’s view, the public would be very concerned at the overstepping of boundaries by the Registrant making three unwarranted contacts with Universities at a time when he clearly knew that he was suspended from his role as Practice Educator. These were actions of sheer defiance by someone who was held out by the Trust as a senior member of its education team. The Universities had been confused and members of the public may also be confused, as to why the Registrant did this. His actions have brought him, his employer and his profession into disrepute. The Panel determined that public confidence in both the profession and the regulatory process would be undermined were there not to be a finding of impairment.

242. This Panel therefore finds that the Registrant’s fitness to practise remains impaired on both the personal and the public components of its decision.

Sanction

Proceeding in the absence of the Registrant

243. The Panel’s decision on misconduct and impairment was handed down in the afternoon of Tuesday 9 April 2024, in the Registrant’s absence. This was noted on the record at the time of handing down. The Panel did not consider it appropriate at that stage to formally go through proceeding in absence, having received in person on Monday 8 April 2024, the Registrant’s reasons for his absence during the rest of the scheduled hearing, and having received from him a clear understanding that he appreciated this hearing would proceed in his absence.

244. During that handing down of its decision, the Panel noted on the record that the Registrant had made contact with the hearings officer and indicated that he wished to attend the hearing at some point on Wednesday 10 April 2024, to enable him to make further representations to the Panel. The Panel had sight of that communication during its deliberations.

245. The Panel concluded that day’s hearing on the understanding that it would reconvene the next day, Wednesday 10 April 2024, at 10.30. The delayed start would give the Registrant the opportunity to consider the terms of its determination and to either draft something for the Panel’s consideration at the next sanction stage, or to identify what he would wish to say in person, having identified and confirmed a time before 2pm at which he was able to so address the Panel.

Registrant’s further documentation

246. Prior to reconvening on Wednesday 10 April 2024, the Panel received two further documents. The first was a written statement from the Registrant in which he set out more fully his thoughts and feelings he experienced at the time of the events in 2020. The other was a positive reference from the hospital at which he was currently contracted to work as an ODP in a locum capacity. The writer of that reference stated that they would be ‘delighted’ if the Registrant applied for a permanent position.

Sanction

247. The Panel reconvened at 10.30 on Wednesday 10 April 2024, and was informed that the Registrant was able to address the Panel between 11.45 and 12.30 that day. The Panel considered that it was fair to allow the Registrant this opportunity to hear the HCPC representations and further personally address the Panel and so adjourned until that time. The HCPC raised no objection to that course of action.

HCPC’s Submissions

248. The HCPC stated that it was neutral on the issue of sanction, it being a matter for the Panel’s judgment. The HCPC drew the Panel’s attention to the four limbs of the overarching principles of regulatory proceedings set out in the HCPTS Sanctions Policy. The Presenting Officer also reminded the Panel that sanctions should not be a punishment and that the Panel should impose the least restrictive sanction it considered appropriate in all the circumstances of this case.

249. The HCPC considered that a mitigating element was the fact that the Registrant has been working without cause for concern for the last four years. In terms of aggravating features, the Presenting Officer identified the fact that there had been repetition in that there had been four occasions on which the Registrant had breached the restriction placed upon him by his employer. The Panel’s finding of lack of insight was something that would lead to a conclusion that there is a likelihood of repetition of that conduct.

Registrant’s submissions

250. The Registrant stated that on Monday evening, having been redirected to the HCPC and HCPTS documentation, including the Sanctions Policy, he realised that there were many more things which he should have referenced that day when addressing the Panel. That was why he had made contact on Tuesday and taken the opportunity today to add to his submissions.

251. In his oral address to the Panel the Registrant repeated the sentiments set out in his written statement received that morning. He repeated that he did regret his actions; that he was remorseful for the impact his conduct had on others; and was sincerely apologetic for his behaviour.

252. The Registrant was ashamed to admit that in 2020 his actions had been based upon the shame he felt. He was ashamed of himself and acutely aware of what others may think of him because of the matters raised. He had to some degree tried to go on as usual and ignore what had happened. This was his way of coping and pretending it would all go away. With his communications with the Universities, it was an attempt at normality. He said he felt isolated and shunned by those he worked with and that their view of him had been significantly impacted by the matters raised and the unintentional mistakes that he accepted he made.

253. In relation to the impact on others, the Registrant referred to a 2,000-word reflective piece of writing that he presented to the Trust at that time but now, along with all other papers submitted to the Trust, were unavailable to him once he had left employment at the Trust.

254. The Registrant repeated his evidence given in October 2023, that he had prepared a letter to go to the student that had to be reassessed. He stated that he was ‘appalled’ at the impact this must have had on them and understood that this review process would have caused that student stress and distress. His letter had expressed his regret and given an apology for his errors. He had been informed by the Trust that he could not send this letter, it being considered by the Trust as inappropriate.

255. The Registrant also told the Panel about his open public apology, made by him to those present in the coffee room. Making this public apology made him feel a bit better.

256. The Registrant referred to himself as a good problem solver and his time in the military supported this, so it had been of concern to him that he was unable to understand why he had those mistakes. This had resulted in him taking the decision never to put himself in the same position again where his reputation was in question.

257. In the last four years not only has he worked without concern, but he has made great efforts to regain his reputation as a totally reliable and competent practitioner. He stated that he would do whatever was required of him to satisfy this Panel that he is a safe practitioner and one that can and should be allowed to pass on his knowledge and skills to others in the future. He considered that any sanction which removed him from practice was not appropriate as he was not a threat to patients or colleagues.

Panel Decision on Sanction

258. The Panel took into account the guidance set out in the Sanctions Policy produced by the HCPTS. It had particular regard to the terms of paragraph 9 which states; ‘Sanctions should only be imposed in relation to the facts found proved, but should address all those facts which have led to a find of impairment’. The Panel appreciated that this was guidance only, and that it was a matter for this Panel to determine the appropriate level of practice restriction to impose that would provide the requisite level of public protection and reflect the interests of the Registrant and the wider public.

259. The Panel sought and accepted the Legal Assessor’s advice which included advice in relation to the measures which could be taken that would be applicable to the Registrant’s current work status as a locum practitioner.

260. The Panel noted the submissions made by the parties and the further documentation placed before it by the Registrant in the previous two days of the hearing.

261. This matter has reached the stage of sanction based solely upon the Registrant’s disregard for restrictions placed on his practice during the time he was the subject of suspension from his role as Practice Educator and part of disciplinary proceedings. The Panel also noted that the Registrant had worked without restriction or cause for concern for the four years since and that his clinical skills had never been a matter of concern. Whatever sanction was employed by the Panel should reflect this.

262. As advised the Panel identified the following aggravating and mitigating factors:

Aggravating factors
• The Registrant had failed to adhere to, and abide by, the instructions of the Trust when they suspended him from his role as Practitioner Educator despite his seniority and experience.
• The Registrant had not in 2020 taken the step of getting signed off on the Practitioner Supervisor Preparation Training course, something which was essential within his role as Practitioner Educator and may have ensured he avoided his subsequent errors.
• There had been emotional harm caused to a student, by his failure to identify the extent of his role as Practice Educator.
• Whilst this Panel has accepted under mitigating factors that this was one series of events, there had been four occasions when the Registrant failed to consider his actions despite the restrictions placed on his practice.
• The evidence of the Registrant’s insight into his former behaviour was evidenced very late in these proceedings. Whilst this Panel accepted that the process of insight had started at the time of the events, the Panel considers that even at this distance from those events there remains, albeit it little, additional work which the Registrant could undertake to further develop his insight.

Mitigating factors
• The matters found by this Panel do not constitute and fall within the definition of ‘serious’ matters as reference in the Sanctions Policy.
• The Registrant’s stated regret, remorse and apology was genuine.
• The early self-referral, on two separate occasions, of matters affecting his registration.
• The Registrant has had a long career without blemish until these matters were raised.
• There is not, and never have been, any concerns about his clinical abilities.
• There had been no further cause for concern relating to his conduct in the subsequent four years.
• The Registrant has been working as a locum without restriction during the last four years and there is evidence that there is an organisation willing to employ him in a permanent position.
• The matters which relate to his impairment whilst occurring on four occasions, arose out of one unique set of circumstances.
• At this hearing the Registrant made early and full admissions to many of the allegations he faced.
• Whilst the Registrant’s actions in signing off when using the OPAL system were incorrect, his actions are mitigated to a degree by the fact that he did not know he was making a mistake in doing so and did not know that the system had failings which had allowed him access to parts of the system he should not have had.

263. Having undertaken that assessment the Panel concluded that this was a matter that was too serious for it to decide to take no further action: doing so would send the wrong message to fellow practitioners, and not act as a deterrent. Further, it would not reflect the public perception of the Registrant’s behaviour and its impact on his profession.

264. The findings of this Panel identified an historical issue with a previous employer which in the Panel’s view was not a matter that would lend itself to mediation.

265. The Panel gave careful consideration to the imposition of a caution order. In this regard the Panel noted that within paragraphs 101 and 102 of the Sanctions Policy:

101. A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the Registrant has shown good insight;
• the Registrant has undertaken appropriate remediation.

102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspensions of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).

266. Whilst the Panel appreciated this level of sanction would not provide the Registrant with a means to demonstrate that he had revisited and fully learnt from his former failings, something which this Panel has identified is still required, in the Panel’s view the Registrant’s insight was now at such a level that there is only the slightest risk of repetition.

267. In making that assessment on risk of repetition, the Panel acknowledges that the Registrant’s actions arose out of a unique situation and one that is highly unlikely to be repeated.

268. The Panel noted that such a course of action would provide the Registrant with the ability to continue working whilst also flagging up to employers that there have been issues in the past, but that the main elements of the Allegation had been successfully addressed and resolved.

269. The Panel also considered the impact of the Sanctions guidance at paragraph 99 which states:

‘…An order of this sort may be taken into account if a further allegation is made against the registrant although, in doing so, the panel should take into account…’

This sanction will provide a deterrent effect in ensuring that the Registrant is highly unlikely to act in such a way in the future.

270. The Panel considered that a Caution Order would also ensure that public confidence in both the profession and the regulatory process was maintained.

271. To assess its conclusions, the Panel then considered the imposition of a conditions of practice order or whether a short period of suspension would achieve the effect, and result in the similar benefits to the Registrant and the public.

272. The Panel noted the Legal Assessor’s advice that conditions of practice may be constructed in anticipation of work, or drafted in a way that they solely focus upon a registrant’s personal development. Such conditions producing a tangible and practical outcome without requiring any oversight within the workplace.

273. There were no clinical or practice issues which would require workplace oversight. This being the case, the Panel considered whether and what form of conditions would be appropriate. Conditions could be crafted to place upon the Registrant the onus for carrying out further reflection, focus on continuous training and/or maintaining his wellbeing. However, there is nothing before this Panel to support imposing conditions on that basis. The level of reflection is such that this Panel considers that repetition was highly unlikely. There is evidence that the Registrant has been successfully maintaining his training and wellbeing.

274. The Panel has therefore concluded that conditions would not produce any tangible benefits for the Registrant, the wider public, the profession, nor indeed the regulator, who would be charged with review of those conditions. This being the case, it is arguably also not in the public interest to impose conditions which would produce no identifiable benefits.

275. The Panel then considered the imposition of a suspension order and quickly came to the conclusion that such a measure in this case would be disproportionate: within the context of unrestricted practise over the last four years, despite a much wider and more serious set of allegations. More importantly, it would be disproportionate in relation to the public interest, involving as it would, further lengthy processes for review of his practice until the Registrant were able to return to unrestricted practice.

276. Having concluded that a caution order is the proportionate and appropriate level of sanction the Panel considered what period that order should last for. In this regard, the Panel took into account the guidance at paragraph 103 which states:
The Panel can impose a caution order for any period between one and five years… the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.

277. The Panel has therefore concluded that in all the circumstances of this case a period of one year is appropriate and is in line with the principle of applying the minimum restriction necessary to protect the public, maintain public confidence and uphold professional standards. A caution order for that period would signal the seriousness, whilst at the same time identifying that matters have been resolved and addressed in a proportionate manner.

ORDER: That the Registrar is directed to annotate the register entry of Mr Tony P Clayton with a Caution which is to remain on the register for a period of one year from the date this order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Consideration of application to transfer secondary allegation to Health Committee

278. The HCPC invited the Panel to transfer Particular 9 to a Health Committee for consideration of discontinuance in light of its findings.

279. The Panel has had regard to the HCPC’s “Approach to dual allegations” document. Accordingly, the Panel now provides its view on the health allegation, and it will invite submissions from the parties on the how that allegation should be dealt with.

280. The view of the Panel is that the health allegation should be referred to a Health Panel.

History of Hearings for Tony P Clayton