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During the course of your employment as an Operating Department Practitioner for East Sussex Healthcare NHS Trust:
1. You did not maintain accurate records in that:
a) you did not complete the generic short stay surgical pathway documentation for the following patients on the surgical list you attended on 7 December 2012;
i. Patient A
ii. Patient B
iii. Patient C; and
iv. Patient D
b) you did not document that you had seen the consent form for Patient A until she was anaesthetised.
c) you did not transfer information from the generic short stay surgical pathway document concerning the patient allergies on the World Health Organisation (WHO) form in the case of:
i. Patient A; and
ii. Patient C.
2. On 21 March 2012, you were asleep whilst on duty.
3. You left the anaesthetic room and/or theatre room in an unacceptable condition on:
a) 23 March 2012;
b) 26 March 2012;
c) 27 March 2012;
d) 10 July 2012; and
e) 11 July 2012.
4. Your actions as described in paragraph 1 constitute misconduct and/or lack of competence.
5. Your actions as described in paragraphs 2 and 3 constitute misconduct.
6. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.
1. Mr Hesketh has neither attended this hearing nor been represented at it. Accordingly, at the outset of the hearing the Panel was asked to consider two preliminary matters, namely:
• whether a valid notice of hearing had been sent to Mr Hesketh;
and, if it was,
• to direct that the hearing should proceed in Mr Hesketh’s absence.
2. Before dealing with the Panel’s decision on these separate matters, it should be mentioned that the Panel was informed that Mr Hesketh had been the subject of other HCPC fitness to practise proceedings. The Panel was not informed of the subject matter of those proceedings or of the outcome, it being said that those matters were irrelevant to the issues to be decided at this first stage of the proceedings. However, as Mr Hesketh was not present at this hearing, it was considered important that the Panel should know that he had attended two hearings (held on 20 November 2013 and 25 November 2014) in relation to the other matter, and had been represented by his union on the first of those occasions. The Panel agreed that it was important that it should be informed of Mr Hesketh’s previous engagement with regard to the other matter.
3. Turning to the issue of the notice of hearing, the Panel was provided with a copy of a letter dated 15 April 2015 addressed to Mr Hesketh’s address as it appeared at that time on the HCPC register. It informed him of the date, time and location of the hearing. The one matter that caused the Panel to hesitate in accepting this letter as a valid notice of hearing was that it commenced with the words, “I am writing with reference to the Notice of Allegation sent to you dated 10 November 2014 …”. Strictly speaking the letter of this date was not a Notice of Allegation as it informed Mr Hesketh of the intention to refer back to the Investigating Committee allegations that had originally been formulated by that Committee on 12 March 2014. The Panel was informed, however, that the allegations as set out in the letter dated 10 November 2014 were in the form determined by the Investigating Committee on 12 January 2015 and, accordingly, the allegations before the Panel in this case. The Panel was therefore satisfied that there was no scope for any confusion to have arisen as to the subject matter of the hearing notified by the letter dated 15 April 2015, and the Panel decided that it was a valid notice of hearing.
4. The Panel treated the application made by the HCPC that the hearing should proceed in the absence of Mr Hesketh as a distinct issue. A valid notice of hearing is necessary, but this alone is not sufficient for a decision to be made that the hearing should proceed in the absence of a registrant. In considering this issue the Panel accepted the advice of the Legal Assessor and considered the terms of the HCPC’s Practice Note entitled, “Proceeding in the Absence of the Registrant”. The following factors were relevant to the decision:
• Mr Hesketh had not communicated with the HCPC at any stage in relation to any of the matters currently being considered by the Panel.
• As already mentioned, Mr Hesketh was sent a notice of hearing on 15 April 2015. As the HCPC register address to which this letter was sent was the address to which HCPC communications relating to the other HCPC fitness to practise hearings were sent, the attendance of Mr Hesketh at the hearings in the other case reassured the Panel that the notice of the hearing for this case was actually seen by Mr Hesketh.
• Furthermore, the notice of hearing dated 15 April 2015 was sent to Mr Hesketh by email.
• Mr Hesketh received further communication of the present hearing dates as a result of the hearing bundles being sent to him by the HCPC’s Solicitors on 01 June 2015. Not only did the letter enclosing the hearing bundles explicitly refer to the present dates, but the front page of the bundle of witness statements also stated the dates.
• There had been no request by Mr Hesketh for an adjournment of these proceedings.
• The disadvantage arising from Mr Hesketh’s absence was mitigated by the fact that the Panel has been provided with the record of his interview in the Trust’s disciplinary process, as well as transcripts of the disciplinary hearings, which included Mr Hesketh’s statements.
• The most recent factual particular to be decided concerned events some two years and six months ago, and the majority of the matters occurred over three years ago. Further delay could potentially compound difficulties for the witnesses in recollecting events.
• Four days had been set aside for the hearing and six witnesses were due to attend the hearing, three of them being present from the outset.
In the light of these factors the Panel concluded that Mr Hesketh had voluntarily absented himself from the hearing. There was no information on which the Panel could conclude that he would be likely to attend a hearing on a future occasion were it to be adjourned. Accordingly, whilst acknowledging the seriousness of a direction that a hearing should proceed in the absence of Mr Hesketh, the Panel concluded that a clear public interest in the allegations being resolved at the present time dictated such a decision being made. Accordingly, the hearing continued.
5. The history of this matter so far as it relates to the formulation of the allegations is unusual. A Panel of the Investigating Committee originally decided that there was a case to answer in relation to allegations of misconduct and lack of competence on 12 March 2014. When subsequent investigations revealed additional matters it was decided that the matter would be re-referred to the Investigating Committee. This re-referral was that communicated to Mr Hesketh in the letter dated 10 November 2014 to which reference has already been made. A Panel of the Investigating Committee determined that there was a case to answer in relation to these revised allegations on 12 January 2015, and it is these revised allegations that are set out at the head of this decision document and which have been considered by the present Panel in this case.
6. It was appreciated from the outset of the case that there would be mention of Mr Hesketh’s health during the hearing. The Panel determined before Ms Thompson opened the case that during any mention of Mr Hesketh’s health the Panel would direct that the hearing should proceed in private. Such a direction was necessary to protect Mr Hesketh’s private life.
7. The Presenting Officer, Ms Thompson, requested that the Panel should initially make and announce its decisions on the facts and the statutory grounds before considering the issue of current impairment of fitness to practise. She told the Panel that she made this request because if the Panel found a statutory ground to be made out she would wish to put information before the Panel that it would not be appropriate to introduce before the facts and grounds were decided. The Panel acceded to this request.
8. Mr Hesketh is an Operating Department Practitioner (“ODP”). He is reported to have said that he qualified more than 25 years ago and that he had worked in a very large number of hospitals. His employment with the East Sussex Healthcare NHS Trust (“the Trust”) commenced in mid-May 2008 as a Band 5 practitioner. He progressed to Band 6 but as a result of re-organisation his post was re-banded as Band 5 in 2012.
9. Problems with Mr Hesketh’s practice which were reported in the early months of 2012 resulted in stage one of the Individual Performance Management process (“IPM”) being instigated in mid-May 2012. When further problems were reported in the summer of 2012, the IPM was escalated to a higher level. Eventually, the matters that occurred on 07 December 2012 that are included in particular 1 of the present allegations led to the commencement of disciplinary proceedings by the Trust. A disciplinary hearing held on 31 July 2013 concluded with Mr Hesketh being dismissed from his employment. His appeal against that decision was held on 9 October 2013 but was unsuccessful.
Decision on Facts
10. A cursory glance at the factual particulars of the allegations set out in particulars 1 to 5 inclusive will disclose that they do not appear in chronological order. To avoid confusion when explaining its decisions on the facts the Panel will take them in the order in which they appear in the formal allegation. Subsequently, however, it will be necessary to re-order them into chronological sequence.
11. Before turning to the specific decisions on the facts there are three general matters the Panel should deal with. They are:
• The approach it has taken to the decision on the facts.
• A description of the witnesses called to give evidence and the Panel’s general view of those witnesses.
• The significance of the information received by the Panel concerning Mr Hesketh’s health.
12. The Panel has approached the task of deciding the facts on the basis that it is for the HCPC to prove the relevant matters against Mr Hesketh. That burden is not lessened by Mr Hesketh’s non-engagement, and it is a burden only discharged by the HCPC if the Panel concludes that a factual contention is more likely to be correct than not. Each particular is to be considered separately, applying the specific evidence relevant to the particular to answer the question whether the matter has been proved. In this regard, in addition to a bundle containing the witness statements of the six individuals who were called to give evidence, there was also available a bundle of exhibits running to 278 pages.
13. The HCPC relied upon six witnesses, each of whom attended the hearing and gave evidence. They were:
• FE, a senior nurse who had never worked with Mr Hesketh, but who was asked to conduct an investigation on behalf of the Trust into the matters that occurred on 07 December 2012.
• TL, an ODP, who from March 2012 was a Theatre Matron at the hospital where Mr Hesketh worked, and who, in that role, line managed Mr Hesketh.
• DB, a nurse and the Ward Matron of the Short Stay Surgical Department at the same hospital.
• SP, a nurse and a Deputy Lead Practitioner (Junior Sister).
• SF, a nurse who until November 2012 was a Band 6 scrub nurse, subsequently becoming a Deputy Lead Practitioner.
• SG, a nurse who worked occasional shifts at the hospital before January 2011 when she was employed as a bank nurse in the Anaesthetic Team.
14. After each witness gave evidence in chief the Panel withdrew to consider issues it wished to explore with the witness. Included in this exercise were comments that had been made by Mr Hesketh in the context of the Trust’s disciplinary process.
15. The Panel was satisfied that each of the witnesses identified gave truthful evidence and did their best to assist the Panel. Their evidence accorded with the witness statements each had made. The passage of some years since the relevant events inevitably resulted in some failures of recollection. Additionally, there were some areas where the Panel would have expected formal contemporaneous records to have been made only to be told that they had not been created. Nevertheless, the Panel was satisfied that the totality of the evidence, both oral and written, provided a substantial basis upon which it could make its decisions.
16. Mention has already been made of the fact that the Panel directed at the outset that any discussion of Mr Hesketh’s health would be heard in private. As this decision is being delivered in public, and this decision document can be published, no detail of that evidence will be given. The Panel is able to say that in reaching the decisions to be announced the evidence was kept firmly in mind. However, in the judgement of the Panel, such ill health as Mr Hesketh experienced during the relevant period is irrelevant to the issues being considered. This is because there is neither evidence nor credible suggestion that ill health caused or contributed to any act or omission alleged against Mr Hesketh in this case.
17. Particular 1(a) – the allegation that Mr Hesketh failed to complete the generic short stay surgical pathway documentation for the four identified patients on 7 December 2012. The relevant documents for the four patients, appearing respectively at pages 30, 35, 40 and 45 of the exhibit bundle, demonstrate that this particular is proven against Mr Hesketh in relation to each patient.
18. Particular 1(b) – the allegation that Mr Hesketh recorded on the WHO form that Patient A had given written consent when he did not know this was the case. It is accepted on behalf of the HCPC that written consent existed at the time Mr Hesketh recorded that he had seen it. What is alleged against him is that he had not established that the written consent existed by locating it in the patient records. The Panel finds that the HCPC has not produced clear and cogent evidence that Mr Hesketh had not seen the written consent when he recorded its existence. Accordingly this particular is not proven.
19. Particular 1(c) – transferring information concerning patients’ allergies from the Generic Short Stay Surgical Pathway document to the WHO form. At the outset the Panel should state that the evidence it received as to the obligations of an ODP completing the WHO form led it to conclude that there was no requirement that the ODP should transfer the information onto it. The Panel was told that some did and others did not. However, the Panel has come to the clear conclusion that if an ODP elected to write an entry against the pre-printed word “Allergy” on the WHO form, there was an obligation to do so accurately. This being the case, in respect of the three particularised patients, Mr Hesketh wrote against “Allergy”, respectively, “No”, “Nil” and “X”, when the Pathway documentation disclosed allergies. The particular is therefore proved.
20. Particular 2 - being asleep whilst on duty on 21 March 2012. In relation to this incident the Panel heard direct evidence from two witnesses called at the hearing, evidence that was supported by contemporaneously completed records, that they had seen Mr Hesketh asleep. The first witness had woken him up, the second witness found him asleep again shortly afterwards. Had Mr Hesketh taken a nap in a coffee room during a recognised break, it is unlikely that an issue would have been raised. However, on this occasion Mr Hesketh was clearly on duty as he was in possession of the emergency bleep. Furthermore, the evidence discloses that he was sleeping deeply. Not only was he not easily woken, but colleagues had also attached items to his clothing while he slept. The Panel finds this particular proved.
21. Particular 3 – leaving the anaesthetic and/or theatre room in an unacceptable condition on the eight occasions identified in sub-particulars (a) to (h). Some of these occasions – (c), (d), (e), (f) and (g) - were demonstrated by contemporaneously completed incident report forms that were completed by members of staff who were concerned about the condition of the rooms. With regard to (g), SG gave direct evidence that she found the anaesthetic room in a highly unsatisfactory state and completed an incident report form at the time. Other occasions – (a), (f) and (h) were directly witnessed by TL, and although he did not record his observations on incident report forms at the time, he did record them in file notes which were subsequently referenced in IPM meetings. The incident reflected in (b), was reported to TL and recorded in a file note and was also referred to in IPM meetings attended by Mr Hesketh. The conclusion of the Panel is that in relation to each of these eight occasions the HCPC has discharged the burden of proving both that the premises were left in an unacceptable condition and that it was Mr Hesketh who was responsible for it being so left. Accordingly this particular is proved.
22. Particular 4 - not being available to assist with the patient’s anaesthetic reversal on 23 March 2012. The Panel accepted the evidence of TL that on this day, when he was working in an adjoining operating theatre, it was necessary for him to attend the theatre in which Mr Hesketh should have been working when Mr Hesketh could not be located to assist a junior anaesthetist with the anaesthetic reversal of a patient. TL assisted for approximately 10 minutes and Mr Hesketh only reappeared after the patient had left the operating theatre altogether. TL recorded this incident in an incident report form on the same day. This particular is proved.
23. Particular 5 – the absence of the consent form on 15 February 2012. The evidence produced by the HCPC has satisfied the Panel that there was no written consent form relating to the patient and that it was the clear responsibility of Mr Hesketh to establish that there was such a form. The Panel heard evidence from SF, the nurse who was in charge of the relevant operating list. Her evidence, accepted by the Panel, was that it was not until the patient had been anaesthetised that it was appreciated that no written consent had been given by the patient. She questioned Mr Hesketh about the matter at the time. The Panel accepts her evidence that his reply to her question whether there was a consent form was to the effect of “obviously not”. This reply not only amounted to an acceptance that he had not checked to establish that the consent form was present, but also indicated a lack of concern about the matter. Mr Hesketh said that he had seen a yellow form included in the notes and had simply assumed it was a completed consent form as that was the colour of the document. Such was her concern at the seriousness of the issue she reflected on the matter, made her own notes that same evening, and subsequently completed an incident report form which was available for the Panel to see. This particular is proved.
24. Summary. The consequence of the above findings is that all of the factual particulars with the exception of particular 1(b) are proven.
Decision on Grounds
25. The task of the Panel is to decide if the proven facts amounted to misconduct and/or demonstrated a lack of competence. In the judgement of the Panel it is necessary to summarise the proven facts, but at this stage for that summary to be undertaken in chronological order. They are:
• 15 February 2012, the absence of the consent form (particular 5).
• Five weeks later, on 21 March 2012, being asleep on duty (particular 2)
• Two days later, on 23 March 2012 not being present to assist with the anaesthetic reversal (particular 4)
• Commencing on the same day, 23 March 2012, and being repeated on a further seven occasions over a period of nearly five months until 11 July 2012, leaving the clinical environment in an unacceptable condition.
• The issues concerning the documentation included in particulars 1(a) and 1(c) on 07 December 2012.
Relevant to this chronology are two further matters. One is the IPM was commenced in mid-May 2012 (which means that five of the proven instances of leaving the clinical environment in an unacceptable condition occurred after the IPM commenced). The other fact is that in the period between 11 July 2012 and 07 December 2012 there were substantial periods when Mr Hesketh was not at work as a consequence of health matters.
26. The findings made against Mr Hesketh represent serious shortcomings which not only had the potential to result in harm to patients, but also exposed the Trust to reputational damage and financial damage. All of the breaches represented departures from the basic professional obligations of an ODP. Mr Hesketh was an experienced practitioner who had worked in a large number of hospitals. Mr Hesketh’s ability to work safely and effectively was demonstrated by the evidence of TL who told the Panel that he had observed Mr Hesketh working in a clinically competent manner. In the judgement of the Panel the matters found proved represented repeated demonstrations of an attitudinal problem on the part of Mr Hesketh who was simply not prepared to perform his duties in an acceptable manner despite his ability to do so. They amounted to serious breaches of the following standards of the HCPC’s Standards of Conduct, Performance and Ethics: standard 1 (“You must act in the best interests of service users”); 3 (“You must keep high standards of personal conduct”); 7 (“You must communicate properly and effectively with service users and other practitioners”); 10 (“You must keep accurate records”) and 13 (“You …. must make sure that your behaviour does not damage the public’s confidence in you or your profession”).
27. The matters found proven against Mr Hesketh amounts to misconduct. No issue of lack of competence arises.
Decision on Impairment:
28. After announcing the decision on the facts and grounds, Ms Thompson addressed the Panel on the issue of current impairment of fitness to practise. She also provided the Panel with the Notices of Decision and Order from the hearings in the other fitness to practise process, of which mention has already been made in this decision. These documents disclosed that on 20 November 2013 there was a final hearing of allegations that Mr Hesketh’s fitness to practise was impaired by reason of two convictions relating to drink driving offences and a contention of misconduct arising from the use of a Trust vehicle when he lacked a valid driving licence. The allegations were determined to be well founded and a suspension order for a period of 12 months was imposed. Upon the review of that initial period of suspension being held on 25 November 2014, a further period of suspension for 12 months was imposed. It follows that Mr Hesketh’s registration is currently suspended as a consequence of those other fitness to practise proceedings.
29. The Notices of Decision and Order in the other fitness to practise matter describe Mr Hesketh’s professional activities since the end of the period covered by the facts found by the present Panel. Save for this information the Panel does not consider that anything concerning that other fitness to practise process assists with the decisions left to be made in the present case. It is clearly stated in the decision of 20 November 2013 that Mr Hesketh had not worked as an ODP since the end of the relevant period. Furthermore, as he has been suspended from the HCPC Register since 20 November 2013, of necessity he has not practised as an ODP since that date.
30. The Panel has approached this consideration on the basis that the critical issue is whether there is current impairment of fitness to practise. This question is to be answered by reference to both the personal and public components as those concepts are described in the relevant Practice Note. Having carefully considered the matter the Panel has concluded that there is current impairment of fitness to practise arising from both the personal and public components. In particular:
• The attitudinal problems identified by the Panel were wide-ranging and resulted in many problems over a considerable period of time. There is no evidence that Mr Hesketh has even attempted to address these issues, still less successfully remediated them. He has not engaged in this process and the Panel therefore cannot be satisfied that he has the necessary insight without which no effective remediation could be demonstrated. It follows that there remains a very significant risk of repetition.
• Given the risk of harm to which patients were exposed by Mr Hesketh, a finding of current impairment of fitness to practise is required to satisfy the wider public interest. To decide otherwise would be to ignore the need to declare and uphold proper professional standards, and would seriously diminish public confidence in the profession.
31. The consequence of the finding that there is current impairment of fitness to practise is that the misconduct allegation is well founded. It is therefore necessary for the Panel to consider the issue of sanction.
Decision on Sanction:
32. After the Panel announced its decision that Mr Hesketh’s fitness to practise is impaired, Ms Thompson addressed the Panel on the subject of sanction. She reminded the Panel of the proper approach to the imposition of a sanction and of the HCPC’s Indicative Sanctions Policy document. Save for submitting that to take no further action would not be appropriate, she did not urge the Panel to apply any particular sanction.
33. The Panel has approached the issue on the basis that a sanction is not to be imposed to punish. Rather, a sanction is only to be imposed to the extent that it is required to protect the public and to maintain a proper degree of confidence in the relevant profession as well as in this regulatory process. As a finding that an allegation is well founded does not require the imposition of any sanction, the first question for the Panel to decide is whether a sanction should be imposed. If it is, then the available sanctions must be considered in an ascending order of seriousness until one that sufficiently meets the circumstances is reached. It is necessary that any sanction imposed should strike a proportionate balance between, on the one hand, the need to protect and maintain confidence, with, on the other, Mr Hesketh’s right not to have his ability to practise restricted save to the extent that it is absolutely required. The Panel confirms that it has applied these principles in reaching the decision on sanction.
34. It is important to stress the seriousness of the consequences of Mr Hesketh’s actions. All of them were serious but, in particular, his unavailability in order to assist with anaesthetic reversal and the repeated leaving of the clinical environment in a hazardous condition created a risk of direct and serious harm to patients. For this reason not only is a sanction required, but a Caution Order would not be a sufficient response. A Conditions of Practice Order would not provide sufficient protection given the risk of repetition already referred to, but in the judgement of the Panel would not be appropriate given that the fundamental problem is one of Mr Hesketh’s attitude. It follows that the Panel has had to choose between imposing a Suspension Order and the making of a Striking Off Order.
35. Were there to be realistic grounds for thinking that Mr Hesketh both wished to, and would, address the attitudinal problems, then the Panel would have decided that a Suspension Order would be appropriate. Such an Order would protect the public until such time as the problem was resolved, yet would allow him the prospect of returning to practice having achieved remediation. The position here, however, is that in the context of this HCPC fitness to practise process Mr Hesketh has made no contribution on which the Panel could base a finding that Mr Hesketh wishes to address the issue, still less that he might succeed in doing so. The fact that so many of the particulars found to be proven occurred after the instigation of the IPM provides positive evidence that Mr Hesketh lacked the willingness or ability to address matters. For this reason the Panel has concluded that it is not appropriate to impose a Suspension Order. It follows that the sanction to be imposed is a Striking-Off Order. The Panel is satisfied that this is a proportionate outcome in the circumstances, not least because, given Mr Hesketh’s lack of engagement, no lesser sanction would sufficiently address the issue of public confidence.
History of Hearings for David Hesketh
|Date||Panel||Hearing type||Outcomes / Status|
|20/07/2015||Conduct and Competence Committee||Final Hearing||Struck off|