Seth J Plumbley

Profession: Operating department practitioner

Registration Number: ODP33129

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 15/10/2015 End: 16:00 15/10/2015

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 at University Hospital Coventry and Warwickshire NHS Trust:

 

1. On an unknown date between 10 June 2013 and 6 January 2014, you stole the following items from University Hospital Coventry and Warwickshire NHS Trust premises:

 

a. 1 bottle of Ketalar, Batch number 70458C

 

b. 1 cannula

 

2. Your actions as set out at paragraph 1 above were dishonest.

 

3. The matters set out above constitute misconduct.

 

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters:

Proceeding in absence

1. The Panel was satisfied that the Registrant had been served with notice of the hearing in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

2. Ms Eales made an application for the Panel to proceed with the hearing in the absence of the Registrant. The Panel was informed that the Registrant had responded in May 2015 to a communication sent by the HCPC to his current address on the register. He had not applied for an adjournment or provided any information as to why the hearing should be adjourned. The Panel took into account the HCPC Practice Note on Proceeding in the Absence of a Registrant and accepted the advice of the Legal Assessor. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing and would be unlikely to attend at a future date if the hearing were to be adjourned. The Panel took into account the public interest in having the matter heard and determined without undue delay, having particular regard to the seriousness of the allegations. In all the circumstances, the Panel decided that it was in the interests of justice to proceed with the hearing in the absence of the Registrant.

Background

3. The Registrant was employed by University Hospital Coventry and Warwickshire NHS Trust (“the Trust”) as an Operating Department Practitioner (“ODP”). In his role, he was responsible for providing drugs to the Anaesthetist during medical procedures. From October 2012 onwards the Registrant worked in the Emergency Department of the Hospital.

4. On 6 January 2014, following the Registrant’s failure to pay his rent for his personal residence at Elmhurst Care Home, the landlady entered his residence and discovered a vial and cannula. She reported this to the Registrant’s employer, who arranged for photographs to be taken of the items in question following their removal to the police station.

5. It was confirmed that the items were a bottle of Ketalar and a cannula. The Ketalar was labelled with a batch number 70458C. Ketalar is also known as Ketamine which is a controlled drug used legitimately in hospital emergency departments. Trust records indicated that this particular bottle was distributed by the Pharmacy Department to the Emergency Department of the Hospital on 10 June 2013. The Registrant was working in the Emergency Department at or about the material time.

6. The Registrant was suspended from his employment in January 2014 pending investigation.

7. Following an investigation by the Trust, the matter was reported to the HCPC, resulting in the current proceedings.

8. The only engagement by the Registrant is a competed pro-forma dated 18 May 2015 by which he responded to a letter of 14 May 2015 informing him that the Investigating Committee Panel had found a case to answer. He said that he denied the facts alleged against him and made the following observations:
“1: I was not living at the property for the whole time of the allegation.
2: Other people had access to the property.”

Decision on Facts

9. The Panel was provided by the HCPC with a bundle of documents containing the HCPC witness statements and relevant documents.

10. The Panel heard evidence from two witnesses on behalf of the HCPC: PS, who was employed by the Trust as Modern Matron for the Main Theatre of the Hospital, and was appointed as Investigating Officer to consider the matters referred to above, and VB, a Director of Pinnacle Care Limited which owned the premises at which the items were discovered.

11. The Panel found the evidence of both witnesses to be consistent and credible.

12. The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so the particulars of the allegation must be proved on the balance of probabilities. The Panel accepted the advice of the Legal Assessor.

Particular 1 - Proved

On an unknown date between 10 June 2013 and 6 January 2014, you stole the following items from University Hospital Coventry and Warwickshire NHS Trust premises:
a.1 bottle of Ketalar, Batch number 70458C
b.1 cannula

13. The Panel found as a fact that a quantity of Ketalar, Batch number 70458C, was released by the Pharmacy Department to the Emergency Department of the Hospital on 10 June 2013 and that the Registrant was working in the Emergency Department at the relevant time.

14. The Panel found as a fact that on 6 January 2014 a bottle of Ketalar from the batch, and a cannula, were found at the Registrant’s address. In the Panel’s view, the use of the word “bottle” in this context is synonymous with “vial”.

15. In considering whether the Registrant had stolen the Ketalar and cannula, the Panel applied the legal definition of “theft” contained in section 1 of the Theft Act 1968 namely, “the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it”.

16. The Registrant had access, by reason of his employment, to the Ketalar and to the cannulae. Although he said he did not live at the property for the whole of the relevant period, there was no evidence of any one else living there who would have had access to medication at the Trust. The Panel accepted the evidence of VB, that the Registrant had few visitors. In any event, there was no evidence that the visitors he did have would have had access to medication.

17. The Panel found it to be relevant that the bottle of Ketalar and the cannula were found together in the Registrant’s flat, as the cannula provided the means of drawing off and administering the Ketalar.

18. With regard to whether or not the Registrant “appropriated’ the two items, the Panel  inferred from the fact the Registrant was working at the relevant time in the Emergency Department to which the items were released and that they were subsequently found in his flat, that he appropriated them.

19. The evidence clearly established that the items in question belonged to the Trust, and not to the Registrant.

20. In considering whether the Registrant intended to deprive the Trust permanently of the items, the Panel inferred that he did so intend on the basis that they would have come into his possession at some point after 10 June 2013 and were found to be in his flat in January 2014, during which time he could have returned them to the Trust but did not do so. Whilst VB could not exclude the possibility of the Registrant having returned to his flat after October 2013, in the Panel’s view it is more likely than not that he did not return. Nobody saw him at the flat during the relevant time and he did not respond to notes asking him to make contact. On this basis, the Panel considered it more likely that the Ketalar and cannula had been taken prior to October 2013.

21. In considering whether or not the Registrant’s actions were dishonest, the Panel was of the view that a reasonable and honest person would recognise the importance of dealing with a controlled drug in the correct manner and would consider it to be dishonest for an employee of the hospital to treat the drug as his own. As an experienced ODP the Registrant would have undergone training and would have been aware of the medicines management policy relating to controlled drugs and the need to dispose of them in the appropriate manner. The Panel found that the Registrant knew that his actions in treating the bottle of Ketalar and the cannula as his own would be regarded as dishonest.

22. It follows that the Panel finds particular 1 of the allegation proved.

23. On the basis that dishonest is a necessary ingredient of particular 1, it follows that the Panel also finds particular 2 proved.

Decision on Grounds

24. The Panel is aware that findings as to misconduct are matters for its professional judgement, in respect of which neither the burden nor the standard of proof applies. The Panel  took into account the guidance of the Privy Council in the case of Roylance v General Medical Council (no.2) 2000 1 AC 31 to the effect that “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed …”

25. The Panel finds the Registrant to have been in breach of the following provisions of the HCPC’s Standards of conduct, performance and ethics, namely:
3: You must keep high standards of personal conduct
13: You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

26. The Registrant was also in breach of standard 3.1 of the HCPC’s Standards of Proficiency for Operating Department Practitioners which provides that a Registrant must understand the need to maintain high standards of personal and professional conduct, in order to be able to maintain their fitness to practise.

27. These breaches were serious in that they involved (i) a controlled drug (ii) a breach of trust (iii) a breach of policy and (iv) dishonesty.

28. The Registrant’s conduct fell far below the standards to be expected of a Health Care professional and constituted misconduct.

Decision on Impairment

29. The Panel applied the guidance contained in the HCPC Practice Note on “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the ‘personal’ and ‘public’ components. The ‘personal’ component relates to the Registrant’s own practice as an Operating Department Practitioner, including any evidence of insight and remorse and efforts to remediate his practice. The ‘public’ component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

30. With regard to the ‘personal component’, the proven facts do not relate to the Registrant’s competence as an ODP but they do concern his dishonest behaviour and, in particular, the risk of repetition, in respect of which the following factors are of particular relevance:
• The Registrant has not accepted that he has been guilty of any wrongdoing and, in his pro-forma response to the allegations dated 18 May 2015, maintained his denial. There is no evidence of remorse.
• The Registrant has provided no evidence of having learned from this incident or of remediation.
• He did not engage with the Trust in their disciplinary investigation and has only engaged with the HCPC in these proceedings to a very limited extent by completing the pro forma response with a denial of the allegation and brief comments in support.

31. In these circumstances, the Panel concludes that the Registrant has little, if any, insight into the nature, implications and effect of his misconduct. In the absence of any evidence of insight and remediation, there is a significant risk that the Registrant will repeat his misconduct in the future. Accordingly, the ‘personal’ component of impairment of fitness to practise is established.

32. With regard to the ‘public’ component of impairment, by acting dishonestly, the Registrant was in breach of a fundamental tenet of his profession.

33. His misconduct and dishonesty brought the profession into disrepute.

34. As already stated, in the absence of insight and remediation, there is a significant risk of repetition with consequent damage to the reputation of the profession in the future.

35. Public confidence in the profession and in the HCPC as Regulator would be undermined if a finding of impairment were not made.

36. In all the circumstances, the Panel finds that the Registrant’s fitness to practise is impaired by reason of his misconduct.

Decision on Sanction:

37. The Panel considered the submissions of Ms Eales on behalf of the HCPC. The Panel noted that the Registrant has not provided any references or testimonials or other material in mitigation.

38. The Panel took into account the Indicative Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by upholding proper standards of conduct and behaviour and maintaining public confidence in the profession and the Regulator. Any sanction must be proportionate, balancing the public interest and the Registrant’s interests, and should be no more restrictive than is required to achieve the objectives of protecting the public and meeting the wider public interest.

39. The Panel first considered the aggravating and mitigating factors in the case.

40. The aggravating factors are that: (i) the Registrant stole a controlled drug to which he had access by virtue of his employment; (ii) his theft involved a breach of trust placed in him by his employer and a breach of the Medicines Policy; (iii) his actions were dishonest; and (iv) his dishonesty is aggravated by his denial and lack of remorse.

41. The mitigating factors are that this was an isolated incident in what otherwise appears to have been an unblemished career as an ODP, in which his clinical competence has not been brought into question.

42. The Panel considered the various options by way of disposal in ascending order of seriousness.

43. The case is too serious for the Panel to take no action, in a case where there are public interest concerns which need to be addressed.

44. Mediation could only be considered if the Panel would otherwise consider taking no further action.

45. A Caution Order is not appropriate because of the serious nature of the Registrant’s misconduct, which, coupled with the lack of insight and remedial action, gives rise to a significant risk of repetition. A Caution Order would provide no safeguard against the risk of repetition, and it would not address the wider public interest concerns identified by the Panel.

46. A Conditions of Practice Order is not appropriate because, given the Registrant’s lack of insight and failure to participate in this hearing, there is no likelihood that he would engage with any conditions of practice. Besides, there are no workable conditions, which could address the findings of the Panel which relate not to his competence as an ODP but to his dishonesty and attitude.

47. The Panel considered the criteria for imposing a Suspension Order but decided that the Registrant’s misconduct was so serious as to be fundamentally incompatible with his remaining on the Register. Further, there is no evidence before the Panel of a willingness or ability on the part of the Registrant to remedy his behaviour.

48. The Panel was mindful that a Striking Off Order is a sanction of last resort. However, the serious nature of the Registrant’s misconduct and dishonesty was compounded by his denial, lack of insight and remorse, which led the Panel to the conclusion that he is not a suitable person to practise as an Operating Department Practitioner. Any lesser sanction would lack the necessary deterrent effect. The nature and seriousness of the Registrant’s misconduct is such that public confidence would be undermined if he were allowed to continue in practice. In all the circumstances, the only appropriate and proportionate sanction is a Striking Off Order.


 

Order

The Panel decided to strike the Registrant from the HCPC register.

Notes

The Panel imposed an Interim Suspension Order to cover the 28 appeal period. The Strike Off Order is effective from 12 November 2015.

 

This was a Conduct and Competence Committee Final Hearing to take place at Park House, London on Thursday 15 October 2015.

Hearing History

History of Hearings for Seth J Plumbley

Date Panel Hearing type Outcomes / Status
15/10/2015 Conduct and Competence Committee Final Hearing Struck off