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1. You made a false entry in the controlled drugs book to show that a missing ampoule of Midazolam had been wasted.
2. You asked a colleague, TH, to countersign the false entry.
3. The matters set out in paragraphs 1-2 amount to dishonesty.
4. The matters set out in paragraphs 1 - 2 constitutes misconduct.
5. By reason of your misconduct your fitness to practise is impaired.
1. The Registrant was not present or represented. The Case for the Health and Care Professions Council (HCPC) was presented by Ms Sian Jones of Kingsley Napley, Solicitors. The Panel considered Ms Jones’ application to proceed in the Registrant’s absence. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules and it therefore had a discretion to proceed in the Registrant’s absence in terms of rule 11. The Panel considered the submissions of Ms Jones, the advice of the Legal Assessor and had regard to the HCPC Practice Note on Proceeding in Absence. The Panel is aware that its discretion to proceed in absence is one which must be exercised with the utmost care and caution. The Registrant had provided a written response to the HCPC dated 24 June 2014 in which he advised that he would do his best to attend any hearings. However in his Response Pro forma dated 25 May 2015, he has advised that he will not be attending the hearing and will not be represented. In reaching its decision, the Panel has borne in mind the need to strike a careful balance between the Registrant’s interests and the wider public interest. There is one witness for the HCPC present today. The allegation dates back to 2013 and there is a public interest in the case being heard in a timely manner. Given the Registrant’s response in the Response Proforma, the Panel is of the view that the Registrant has voluntarily absented himself and that an adjournment would be unlikely to secure his attendance at a future date. The Panel has therefore agreed to proceed in the Registrant’s absence as it is satisfied that it is in the public interest to do so.
2. The Panel thereafter considered Ms Jones’ application to amend particular 4 by deleting “2” and substituting “3”. Ms Jones advised that the Registrant had been given notice of the amendment and no response had been received. Ms Jones advised that the amendment was minor and that it corrected a typographical error. She also advised that there would be no prejudice caused to the Registrant in allowing the amendment and that it clarified the Council’s position in relation to misconduct.
3. The Panel considered the submissions of Ms Jones and the advice of the Legal Assessor. The Panel was satisfied that amendment was merely a typographical error and that it did not cause any injustice to the Registrant. The Panel therefore agreed to grant the application.
4. The Registrant commenced employment with Spire Cambridge Lea Hospital on 28 October 2008 as an Operating Department Practitioner (ODP).
5. On 16 August 2013 the Registrant was working the morning shift in Theatre 3. At some stage during the shift, Dr D, Anaesthetist, asked the Registrant to provide him with Midazolam 1mg/ml 5ml ampoule (a sedative). The Registrant retrieved two ampoules from the controlled drugs cupboard, but then Dr D informed the Registrant that he only required one. One ampoule was used during treatment by Dr D. What happened to the second ampoule remains unknown.
6. Following the Registrant’s shift another ODP, TH, took over. At the end of his shift, TH checked the controlled drugs register to ensure everything had been properly accounted for. Upon checking the drug register he noted that there was a discrepancy with regard to the balance of Midazolam, in that the controlled drug cupboard contained one ampoule less than the controlled drugs register indicated. TH then telephoned AP, the ODP who had relieved him when he had taken a break, to enquire if she had used any Midazolam. She confirmed that she had not and suggested that he contact the Registrant.
7. TH spoke with the Registrant who stated that he had taken two ampoules of Midazolam out of the drugs cupboard while assisting Dr D, but that he thought he had put the unused ampoule back in the cupboard. TH raised the issue with the ODP Team Leader and performed a search of the theatre to try to find the missing ampoule.
8. On 17 August 2013 the Registrant and TH performed a further search of Theatre 3 but ultimately were unable to find the missing ampoule. It is alleged that the Registrant then made a false entry in the controlled drugs book to the effect that the missing ampoule of Midazolam had been “drawn in error/wasted” and asked TH to countersign his entry, which TH did.
9. AP raised the matter with TW, Theatre Manager, who then asked SM, Pharmacy Manager, to undertake an investigation
10. The Registrant was interviewed in the course of that investigation on 28 August 2013 and stated that he and TH had searched for the ampoule but couldn’t find it so they entered in the controlled drugs book that it was “drawn up and wasted to keep the numbers straight”. The Registrant also acknowledged that he should have recorded the ampoule as lost.
11. The matter proceeded to a disciplinary hearing on 23 September 2013 and the Registrant was dismissed from his employment on the grounds of gross misconduct. He appealed that decision at a hearing on 28 October 2013 and the appeal was unsuccessful.
Decision on Facts
12. The Panel heard evidence from SM, Pharmacy Manager for Spire Cambridge Lea Hospital (“the Hospital”), who conducted an investigation on behalf of the Hospital. The Panel has also had sight of the documentary evidence in relation to the investigation conducted by the Hospital and has considered the Registrant’s submissions dated 24 June 2014.
13. The Panel found SM to be a credible and reliable witness. The Panel is aware that her evidence is hearsay evidence and that she provides evidence in relation to her investigation and does not give direct evidence in relation to the allegation. However, her evidence is supported by contemporaneous notes of interviews with the Registrant, TH and AP.
14. The Panel has heard evidence from SM that she interviewed the Registrant on 28 August 2013 and in the course of that interview, the Registrant admitted that he had made a false entry in the controlled drugs book on 17 August 2013. SM also gave evidence that in the course of the disciplinary hearing on 23 September 2013 the Registrant accepted that he made a false entry in the controlled drugs book. The Panel has had sight of the contemporaneous notes of both interviews and of the entry in the controlled drugs book. In addition in his written submissions dated 24 June 2014, the Registrant admits that he made a false entry. The Panel is therefore satisfied on the balance of probabilities that the facts of particular 1 are proved.
15. Again the Panel has heard evidence from SM that in the course of his interview on 28 August 2013, the Registrant admitted that when he could not find the missing ampoule, he spoke to TH and agreed that it was gone, so they entered it as “drawn up and wasted” in the controlled drugs book. In his written submissions dated 24 June 2014, the Registrant denies that he coerced TH to sign the entry and states that “we both signed it together”. The Panel has also had sight of the notes of SM’s interview of 28 August 2013 with TH in which he states that the Registrant asked him to sign the entry in the controlled drugs book that the Midazolam was “drawn and wasted”. This is the only evidence from the investigation interview notes that the Registrant asked TH to sign the entry. The Panel has not heard evidence directly from TH and therefore not had an opportunity to test that evidence.
16. In his Response Pro Forma, in response to the question “Do you admit the facts alleged against you?” the Registrant states “If it brings an end to all this…yes”. The Panel does not accept this as an unequivocal admission of the facts. In the course of the investigatory interview, in the disciplinary hearing and in his written submissions of 24 June 2014, the Registrant has maintained his position that they agreed to sign it, whilst accepting from the outset that he did make the false entry. The Panel is therefore not satisfied on the balance of probabilities that the Registrant asked TH to sign the entry and it is not satisfied that the HCPC has discharged its burden of proof and finds that the facts of this particular are not proved.
17. The Panel next considered whether the Registrant’s actions in particular 1 were dishonest. In his written submissions, the Registrant states that his only omission was a failure to comply with policy in completing the incident forms and correctly reporting the matter. He also states that the “act of correcting the drug book was not committed to prevent his holiday being interrupted. It was genuinely to enable the Department to continue unimpaired by drug count delays”.
18. The Panel is of the view that the Registrant’s conduct in making a false entry was deliberate and was designed to mitigate the fact that he was unable to account for the missing ampoule of Midazolam. The Panel has concluded that he was aware that his actions were dishonest. In these circumstances the Panel is also satisfied that the Registrant’s actions in deliberately falsifying an entry in the controlled drugs book would be deemed to be dishonest by the ordinary standards of reasonable and honest people. The Panel has noted that in the disciplinary hearing the Registrant stated “...it is just the fact that I have not documented it correctly in the book, and I have just done a quick swindle rather than fill in the incident forms that should have been completed”. It is therefore clear to the Panel that the Registrant in fact knew by those standards that his actions would be regarded as dishonest. The Panel is therefore satisfied that his actions in particular 1 were dishonest
Decision on Grounds
19. The Panel next considered whether the Registrant’s actions amounted to misconduct. The Panel is of the view that the Registrant’s conduct fell well short of what would be proper in the circumstances and breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics:-
Standard 3 – you must keep high standards of personal conduct;
Standard 10 - you must keep accurate records;
Standard 13 – you must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in your profession.
20. The Panel has found that the Registrant has made a false entry in the controlled drugs book and that in doing so he acted dishonestly. In all the circumstances the Panel has concluded that such actions are sufficiently serious to amount to misconduct.
Decision on Impairment
21. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component.
22. In terms of the personal component, the Panel has considered whether his conduct is remediable and is agreed that it is. The Panel is of the view that there is no ongoing attitudinal problem, given that this is a single, isolated incident. The Panel has found that he has demonstrated some evidence of remediation in his written submissions in which he acknowledges that any attempts to hide mistakes prevent learning, he states that he is able to action practices within his current employment to bring them into line with HCPC safety standards, that he is re-learning every day and that he has moved on back into the NHS and intends to continue to practise, promote and teach the highest standards of operating department practice which the Panel accepted on face value. However the Panel has concluded that the Registrant has not fully remediated his actions in that he does not appear to understand the wider consequences of his actions.
23. The Panel has considered whether in the light of this, there remains a risk of repetition. The Panel has heard from the Registrant that he is now working in a more dynamic environment and that since the incident he has developed professionally. In his written submissions he states that he has altered his practice, researched the correct protocols and will not allow this type of incident to recur. Taking this into account together with the fact that this was a single, isolated incident which he openly admitted to at the outset, the Panel has concluded that the lack of full remediation is not such that it leads to a risk of repetition.
24. The Panel has also considered the level of insight demonstrated by the Registrant and has concluded that while he has an understanding of the personal consequences of his conduct, he has not demonstrated an understanding of the wider impact on the profession and fails to understand the impact on public confidence in the profession in circumstances where a health professional has been found to have acted dishonestly in the course of his employment. In his Response Pro-Forma the Registrant uses the words “as I have said before” on two occasions. The Panel is of the view that this demonstrates a rather casual approach and that his reflection does not demonstrate full insight and understanding of his actions. The Panel is of view he has taken the easy option by making a false record as opposed to following policy. However the Panel recognises that he has apologised and admitted his actions from the outset and fully co-operated with the hospital’s investigation, all of which demonstrate a level of insight. The Panel has therefore concluded that Registrant’s level of insight is not fully developed in the absence of an understanding of the impact on public confidence. The Panel is not therefore satisfied that the personal component of his conduct has been addressed.
25. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour. The Panel accepts that inaccurate or false records can have an impact on patient care and safety, but it is of the view that the falsification related to record –keeping of drugs and did not have any direct impact on patient care or safety. However in considering the breach of Standard 13 of the HCPC Standards of Conduct, Performance and Ethics and in particular the element of dishonesty, which breaches one of the fundamental tenets of the profession, the Panel is of the view that public confidence in the profession and in the regulatory process would be undermined if a finding of impairment was not made in the particular circumstances of this case. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by his misconduct and the allegation is well founded.
26. The Panel has heard further submissions from Ms Jones on the issue of sanction. The Panel is aware that the function of fitness to practise panels is not punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing his services in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process. The Panel has considered the sanctions available to it in ascending order of severity and has had regard to the HCPC’s Indicative Sanctions Policy and considered the advice of the Legal Assessor. The Panel has also considered the submissions of the HCPC and the Registrant’s written submissions.
27. The Panel has paid careful regard to the following mitigating factors: the Registrant has demonstrated remorse and insight; he did engage with the Hospital and admitted his actions from the outset; there have been no previous fitness to practise proceedings against the Registrant; there is nothing to suggest that this is anything other than an isolated incident of dishonesty; there were no issues of patient harm and there was no personal gain from the act of dishonesty.
28. In addition, in his written submissions, the Registrant states that he is currently employed as an ODP and that he has been honest and open with his employers in relation to the HCPC hearing. He also states that he should soon be beginning ODP Mentorship training and that he has already been allocated students to guide. He has advised that he is hoping to enrol on a degree course in Theatre/Hospital Management in October and that he intends to renew his advanced life support training in July. This indicates to the Panel that he is committed to his ongoing development and to his profession.
29. The Panel has also considered the aggravating factors as follows: the Registrant’s actions breached the HCPC’s Standards of Conduct, Performance and Ethics; his actions involved dishonesty which breaches a fundamental tenet of the profession and he has not demonstrated full insight or fully remediated his actions.
30. The Panel first considered whether to take no further action. It is of the view that this would not be sufficient to address the wider public interest considerations.
31. The Panel considered that mediation was not appropriate in all the circumstances of the case.
32. The Panel next considered a caution order. In terms of the Indicative Sanctions Policy, a caution may be appropriate where the lapse is isolated or of a minor nature, there is a low risk of recurrence and the Registrant has shown insight and taken remedial action. The Panel is satisfied that the Registrant has demonstrated some insight and remediation. The Panel has also found that there is no risk of repetition. Although the Panel has found dishonesty in this case, it is of the view that the level of dishonesty is at the lower end of the spectrum. In these circumstances, the Panel is of the view that a caution would be an appropriate and proportionate sanction.
33. The Panel next considered a conditions of practice order. However given the nature of the Registrant’s conduct involving dishonesty, the Panel is of the view that meaningful practice restrictions could not be imposed to address such conduct.
34. The Panel also considered that a suspension order would be punitive and disproportionate in the circumstances of this case where the Panel has found that the Registrant has demonstrated remorse, a level of insight and remediation and there are no ongoing attitudinal issues or risk of repetition.
35. The Panel has the discretion to impose a caution order for any period between one and five years. The Panel considers that a period of three years would be sufficient to mark the severity of the Registrant’s conduct.
No notes available
History of Hearings for Ben Coupland
|Date||Panel||Hearing type||Outcomes / Status|
|08/07/2015||Conduct and Competence Committee||Final Hearing||Caution|