Martin W Swain

Profession: Operating department practitioner

Registration Number: ODP13102

Hearing Type: Review Hearing

Date and Time of hearing: 12:30 13/08/2015 End: 16:00 13/08/2015

Location: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as an Operating Department Practitioner with East Sussex Community Health Services at Victoria Hospital, Lewes

 

1. You made inappropriate and offensive remarks to colleagues, patients and third parties, including

a. On 9 June 2009 you told colleagues in a staff meeting words to the effect that shoddy building work recently undertaken in the Trust’s operating theatre was like that of Eastern European builders

b. On 17 June 2009 you asked a Moroccan patient if she had a camel

c. On 16 July 2009 you made remarks to a female colleague using words to the effect that

i. “jobs like this (fix a piece of equipment) were best left to men”

ii. “you should stick to childcare and knitting”

iii. “you would think/say that you’re a woman” (said in response to your comments being challenged by the colleague to whom they had been addressed)

d. On 16 July 2009 you made a general remark using words to the effect that “women should stick to what they know best; cooking, cleaning and bringing up children”

e. On 5 August 2009 you asked a colleague of middle-eastern origin whether/when the vote had been given to women in his country

f. On 5 August 2009 you said in front of a visiting Medical Equipment Representative (MER) words to the effect that you had driven home drunk and been faecally incontinent during the journey

g. On 5 August 2009 you persisted in distracting a visiting MER who was carrying out an equipment training assessment with a patient on the table by close and intense questioning about her job, to the extent that a senior colleague felt it necessary to apologise to the MER for your behaviour

h. On 5 August 2009 you received a patient who was a prisoner under guard and while prepping you asked the patient words to the effect “”where did you hide/bury the money”

 

2. You did not follow appropriate safety checks, including

a. On 11 June 2009 you failed to complete a second patient consent check

b. You did not complete instrument and/or swab counts by absenting yourself from the Theatre before the counts were completed

 

3. The matters set out in 1 above constitute misconduct

 

4. The matters set out in 2 above constitute misconduct and/or lack of competence.

 

5. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary matters:

Service of Notice and Proceeding in the Registrant’s absence

1. The Panel was content that it had evidence before it that Notice had been sent in the correct form, by the appropriate postal means, to the address shown on the Register and in sufficient time in advance of the hearing date. In addition there was evidence that, in accordance with the responsibility that rested with the Council that it had taken all reasonable steps to ensure the Registrant knew of the hearing, Notice had also been sent in an electronic format. This being the case, the Panel decided that there had been good service in accordance with the rules.

2. The Council made an application to proceed in the Registrant’s absence. The Council stated in support the following:

• There has been good service which, from the response received from the Registrant, indicates that he is aware of today’s hearing.
• There has been no request for an adjournment.
• There is no indication that the Registrant would attend at a future hearing if this matter were adjourned.
• The Registrant did not attend the Final Hearing nor was he at the first Substantive Order Review Hearing.

3. The Panel was assisted in reaching its decision by knowing that it had the relevant power to do so, the Practice Note issued by the Council, and the advice of the Legal Assessor. The Panel noted the representations made by the Council and after careful consideration came to the decision that it would proceed in the Registrant’s absence.

4. The Panel took into account the letter from the Registrant dated 11 August 2015, in which he stated that he will not be in attendance. This was taken by the Panel to indicate that he had voluntarily absented himself and, from his request that he be removed from the register, an understanding that this matter may proceed in his absence.

5. The Panel therefore concluded that there is no greater likelihood of the Registrant attending if this matter were adjourned, that it could proceed without any injustice to the Registrant, that the Registrant had voluntarily absented himself and that it was in the public interest to proceed.

Background:

6. The Registrant was employed as an Operating Department Practitioner (ODP) with the East Sussex Community Services based at the Victoria Hospital in Lewes from 04 February 2008 until 20 September 2010.

7. In a team meeting held on 09 June 2009, the Registrant allegedly made inappropriate comments which were heard by the entire department, in relation to the building work recently carried out at the Hospital, being ‘typical of Eastern European builders’.

8. On 16 June 2009, LS, Modern Matron, and the Registrant’s line manager met with him to discuss the above alleged comment.  Following this meeting, the Registrant was asked to attend equality and diversity and conflict resolution training sessions.

9. Between June and August 2009, a number of other concerns were raised by various staff members regarding the Registrant’s behaviour.

10. On 11 June 2009, CS, Theatre Bank Nurse, reported to LS that the Registrant had refused to carry out a second patient consent check. An Incident Report Form about this was submitted.

11. On 16 July 2009, JB, Staff Nurse, submitted an Incident Report Form, detailing the Registrant’s alleged behaviour towards her in the theatre area namely that ‘you just stick to your childcare and knitting’.

12. On 18 June 2009, EC, Sister on the Robinson Ward, reported an incident to LS, involving the Registrant allegedly asking a patient of Moroccan origin if she owned a camel. An Incident Report Form about this was submitted.

13. On 05 August 2009, SM, Theatre Practitioner, reported concerns to LS that the Registrant had acted inappropriately towards a visiting Medical Equipment Representative informing her that he had driven home drunk and had been faecally incontinent. An Incident Report Form about this was submitted.

14. LS conducted an investigation into the concerns raised by staff members and recommended that the matter be heard by a Disciplinary Panel. The first Disciplinary hearing took place on 30 December 2009, when it was decided that the Registrant would be dismissed from his post on grounds of gross misconduct. The matter was appealed by the Registrant, and it was discovered that the Intermediate Care Manager did not have the authority to dismiss him. Therefore the matter was re-heard on 26 July 2010, and the panel decided to dismiss the Registrant. There was an appeal to this decision, which took place on 20 September 2010, and the original decision to dismiss was upheld.

15. The matter was referred to the HCPC and after investigation the Registrant faced the following allegation:
“During the course of your employment as an Operating Department Practitioner with East Sussex Community Health Services at Victoria Hospital, Lewes:

1. You made inappropriate and offensive remarks to colleagues, patients and third parties, including:

a. On 9 June 2009 you told colleagues in a staff meeting words to the effect that shoddy building work recently undertaken in the Trust’s operating theatre was like that of Eastern European builders.

b. On 17 June 2009 you asked a Moroccan patient if she had a camel.

c. On 16 July 2009 you made remarks to a female colleague using words to the effect that:

i. “jobs like this (fix a piece of equipment) were best left to men”;

ii. “you should stick to childcare and knitting”;

iii. “you would think/say that you’re a woman” (said in response to your comments being challenged by the colleague to whom they had been addressed).

d. On 16 July 2009 you made a general remark using words to the effect that “women should stick to what they know best; cooking, cleaning and bringing up children”.

e. On 5 August 2009 you asked a colleague of middle-eastern origin whether/when the vote had been given to women in his country.

f. On 5 August 2009 you said in front of a visiting Medical Equipment Representative (MER) words to the effect that you had driven home drunk and been faecally incontinent during the journey.

g. On  5  August  2009  you  persisted  in  distracting  a  visiting  MER  who  was carrying out an equipment training assessment with a patient on the table by close and intense questioning about her job, to the extent that a senior colleague felt it necessary to apologise to the MER for your behaviour.

h. On 5 August 2009 you received a patient who was a prisoner under guard and while prepping you asked the patient words to the effect “”where did you hide/bury the money”.

2. You did not follow appropriate safety checks, including:

a. On 11 June 2009 you failed to complete a second patient consent check.

b. You did not complete instrument and/or swab counts by absenting yourself from the Theatre before the counts were completed. (No case to answer)

16. No case to answer was entered for particular 2(b). The Final Hearing Panel decided that the matters found proved constituted misconduct and that there was current impairment. A Suspension Order for twelve months was imposed. The Registrant had not attended the Final Hearing.

17. The two subsequent reviews have resulted in findings that the Registrant’s fitness to practise remained impaired and imposed further periods of suspension.

18. The Registrant did not attend or provide any current references or testimonials to the Panel that reviewed this matter on the 14 November 2013 although he had communicated with the HCPC by way of an email dated 11 November 2013. That Panel took the view that the Registrant had not yet developed full insight or fully remedied his behaviour. It imposed a further period of suspension of 12 months. It advised that a reviewing Panel may be assisted by independent evidence that the Registrant understands, adopts and practises non-discriminatory attitudes and behaviour in accordance with prevailing legislation and practices. Furthermore, evidence that the Registrant was following safe, consistent and reliable practices in any paid or unpaid work would also be helpful.

19. The Registrant attended the Review Hearing held on the 10 November 2014. He gave testimony that he had been working in a furniture store for a number of years. He had maintained that he understood the importance of equality and diversity and he realised that he should not upset people. When he was asked if he had kept his professional knowledge up to date he said that he had done nothing official but had kept in touch with a number of acquaintances who still worked in the profession and would give him current information.  He said that he would like to “have the opportunity not to waste my experience” in returning to work. He acknowledged that he would have to undergo a return to work course. He did however produce references and testimonials from his current employers and others. Some of those references referred to the stresses that he had been under at the time of the original allegation in 2009.  They also referred to his current working practices and the fact that there had been no other complaints.

20. The last Review Panel noted that the Registrant in giving evidence appeared to lack full insight. He had referred to some of the matters in the original allegation as being “ridiculous outbursts”.  He had given no evidence of having reflected upon the impact of what he had said at the time upon patients or colleagues.  Although the Panel had been impressed by the fact that the Registrant had produced up to date references and testimonials it took the view that he had not fully remedied his behaviour and his fitness to practise remained impaired. The Review Panel had gone on to make the following observations and recommendations:
“This Panel considers that the suspension order should be continued for 9 months. It has chosen this period of time in order to afford the opportunity for the Registrant to demonstrate he had understood and remedied his failings, whilst ensuring that the matter is reviewed at the first opportunity given that 2 years have now elapsed since the substantive hearing.”
“Shortly before the end of the period there should be a review and that Panel may be assisted by independent evidence that the Registrant understands, adopts and practises non-discriminatory attitudes and behaviour in accordance with prevailing legislation and practices. He may do this by providing evidence he has studied Equality and Diversity issues.  He should also produce a reflective diary which shows how he applied what he learned in his Equality and Diversity studies to his daily work. The reflective piece should also show that the Registrant appreciates the impact his words had on patients and colleagues.  It should also show what efforts he has made to keep up to date with ODP practice.”

Decision: 

21. In undertaking its task today the Panel is conducting a comprehensive appraisal of the Registrant’s current abilities with a view to establishing whether he is now fit to return to unrestricted practice.  The Panel is not undertaking the task of rehearing the matters that had been brought against the Registrant nor going behind the previous findings of the Final Hearing or Reviewing Panels.

22. There is no fresh information before this Panel other than the Registrant’s letter of the 11 August 2015 in which he states that he ‘would be grateful if you would remove my name form the HCPC register’. There is therefore no evidence of further study or of a reflective diary.

23. This Panel has taken into account all documentation placed before it; it has heard the Council’s submissions; taken and accepted the advice of the Legal Assessor; and, it has reminded itself of the terms of the Council’s Practice Note. The Panel has adopted a two stage process, first considering whether the Registrant’s fitness to practise remains impaired and, if that is still the case, the appropriate and proportionate sanction to impose to achieve continued service user protection and which would be in the wider public interest.

24. In relation to the issues of impairment, in the absence of any new evidence of direct relevance since the last review, the Panel cannot be satisfied that the Registrant has successfully adopted non-discriminatory attitudes and behaviour. Therefore, the Panel finds that the Registrant’s fitness to practise remains impaired.

25. The determinations from previous reviews provided the Registrant with helpful guidance on how he could show full insight and prove that he had adopted appropriate personal behaviours. In the absence of any directly relevant input from the Registrant, the Panel must safeguard the public and the profession from the risks of a recurrence of the Registrant’s earlier unacceptable behaviour and this will require the imposition of a sanction.

26. No further action, mediation and a Caution Order would fail to address the underlying attitudinal issues and are therefore not appropriate or proportionate. A Condition of Practice Order is also not appropriate as the Panel considers it not to be possible to formulate workable conditions that would address the attitudinal issues. A Suspension Order would protect the public and the reputation of the profession by preventing the Registrant from practising. However, the Registrant has not used the opportunities provided by the previous periods of suspension to address his unacceptable behaviour and the Panel is of the opinion that a further period of suspension would not produce any different outcome.

27. The Panel next considered the imposition of a Striking-Off Order. This would protect the public and profession and mark the unacceptability of the Registrant’s previous behaviour - behaviour that he had failed to demonstrate that he had addressed over a period of years. The Panel noted that the Registrant had recently indicated that he wished his name to be removed from the Register, an indication that he too had reached the conclusion that this was now the appropriate and proportionate measure at this time. However, the Panel members reminded themselves that the question of what, if any, sanction is appropriate and proportionate is one for the Panel alone to determine. Given the inappropriateness of a further period of suspension, for the reasons given above, a Striking-Off Order is, in the Panel’s view, the only appropriate and proportionate sanction in this case at this time.

28. The Order is to take immediate effect.

Order

The Panel directed the Registrar to strike the name of Mr Martin Swain from the Register.

Notes

This order will come into effect immediately.

Hearing History

History of Hearings for Martin W Swain

Date Panel Hearing type Outcomes / Status
13/08/2015 Conduct and Competence Committee Review Hearing Struck off