Mr Lloyd Subner

Profession: Operating department practitioner

Registration Number: ODP13308

Hearing Type: Final Hearing

Date and Time of hearing: 08:00 03/09/2015 End: 16:00 03/09/2015

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

Panel: Conduct and Competence Committee
Outcome: Restored

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Allegation

(as heard by the HPC Conduct and Competence Committee at the Final Hearing on 06 October 2008. All the particulars of the allegation, with the exception of 3(c), were found proved)

Your fitness to practise as a registered health professional is impaired by reason of your misconduct in that:

1.     At all material times  you were registered  as an  Operating Department Practitioner under registration number ODP13308.

2.     From 2 October 2006 to 3 January 2007, you were employed as an anaesthetic practitioner band 5 by King's College Hospital NHS Trust.

3.     On 12 December 2006, during the course of your employment, you

a.     Physically assaulted another member of staff; and

b.     Verbally assaulted the same member of staff;

c.     [Not proved]

Finding

Background

1.     This is an application pursuant to Article 33 of the Health and Social Work Professions Order 2001 for restoration to the register by the Applicant, Mr Lloyd Subner, who was struck off by a panel of the then-HPC Conduct and Competence Committee at a Final Hearing on 6 October 2008.

2.     The original panel at the Final Hearing made the following findings:

 

“On the first particular, the Panel was satisfied that on the day in question Mr. Subner physically assaulted Mrs. Natarajan by throwing a box of 10 one litre units of Intravenous fluids at her. Mr. Subner denied throwing the box. In the disciplinary investigation conducted by his employers he said that he had put the box down and brushed Mrs. Natarajan as he did so. In the statement sent to this hearing he said that he had dropped the box and that it hit Mrs. Natarajan as it fell. However, the Panel noted that Mrs. Natarajan's account that he threw the box at her was supported by Ms. Fleming, who was present at the time. There was some difference in their accounts of how far Mr. Subner threw the box, but this was only to be expected given that these events took place some time ago and no one had measured the distances involved at the time. Furthermore, Ms. Marshall's evidence that when she arrived at the scene she found the box on the floor, and Mrs. Natarajan shaking, cowering and "looking a mess" was more consistent with an assault than an accident. The Panel also considered that if what had occurred had been an accident, one would have expected Mr. Subner to apologise and ask whether Mrs. Natarajan were hurt, rather than abruptly leaving as he did. Finally, in his own statement Mr. Subner agreed with Mrs. Natarajan's evidence that he had not been happy with her during the working day.

 

On the second particular, the Panel was satisfied that Mr. Subner swore at Mrs. Natarajan in the course of the incident when he threw the box. He called her a "fucking bitch". Although he denied swearing at her, again Mrs. Natarajan's evidence on this point was corroborated by Ms. Fleming… The Panel was satisfied that It plainly was misconduct to throw a heavy box at a colleague and to swear at her in the way that Mr. Subner did…

 

The Panel then considered whether Mr. Subner's fitness to practise is impaired, and reminded itself that this is a question to be addressed as at today's date. The Panel was satisfied that behaviour of this nature is entirely unacceptable and would cause members of the public to lack confidence in a professional who committed it. Mr. Subner has not accepted the facts of what he did or that what he did was wrong. The Panel was therefore satisfied that his fitness to practise is impaired…

 

Mr. Subner has not attended the hearing to put forward any explanation of his conduct, any assurances about his future conduct such as references or examples of remedial action, or any evidence that he has reflected on what occurred. He has not accepted the seriousness of his conduct in assaulting his line manager while at work. Although he  offers  some apology  to  Mrs. Natarajan  in  his  witness  statement,  this  is qualified by criticism of her and still does not amount  to a recognition that he assaulted her. The Panel was satisfied that the assault was very frightening and caused Mrs. Natarajan injuries that required treatment for some months.

 

In the circumstances the Panel is satisfied that it is necessary for the protection of the public and proportionate to the circumstances of the case to make a striking off order.”

 

Submissions

3.     The Applicant states that since he qualified as an Operating Department Practitioner in 1995 he has worked for private hospitals and for the NHS, including King’s College Hospital for 2 to 3 months where he worked as an anaesthetist’s assistant. Since his dismissal he states that he has kept up his professional development. He had not been the subject of any previous complaints and he has struggled since 2007 to earn a living. The incident on 12 December 2006 was out of character.

4.     The Applicant says it is unfair to say he lacks insight into the incident because he denied the allegations. He says he snapped at BN but did not call her a “fucking bitch” or throw a box of intravenous fluids at her. He accidentally dropped the box of fluids and apologises for any distress caused to BN. He promises that nothing like this will ever happen again.

5.     He failed to attend the hearing on 6 October 2008 because his legal representative withdrew from the case and he panicked because he did not feel able to represent himself. He did not expect to be struck off. He says the hearing was held too long after the incident to be fair and the case against him was assembled in a piece-meal way. He says the panel’s findings “…that I deliberately threw the box and/or that I said the precise words alleged are unsafe”. He gave evidence to the Panel today that he was periodically unemployed for several years but he has taken steps to maintain his knowledge by reading journals. He obtained his Security Industry Authority license and has worked as a security officer but has not worked in a health-related role since 2006. He enjoyed working as an Operating Department Practitioner and he has been approached by agencies who state that the NHS is currently understaffed. He has not been in any trouble since 2006 and what happened then was out of character. He did not attend the hearing on 6 October 2008 because his representative withdrew from the case. He is sorry that BN alleged he had assaulted her and if a similar situation arose again he would report the matter to a manager and seek help from a union representative. He is willing to comply with any relevant conditions of practice if he is restored to the HCPC Register. He says he is in good health.

6.     He has supplied letters from Jane Ellison MP, Rev. AB, DB, PV, Martyn Berkin (Counsel), a medical report from Dr CK and a testimonial from NP. He has undertaken training courses in basic life support and manual handling in 2015.

7.     Mr Berkin submitted that the Applicant accepts he did not behave in a proper way and his actions were not appropriate on 12 December 2006, although he continues to dispute the allegations which the panel found proved on 6 October 2008. He has fought to be restored to the HCPC Register. He has no other professional qualifications and should be given a chance to practise again as an Operating Department Practitioner, due to the lapse of time since his striking off and the low risk of future misconduct. He fulfils the requirements of the HCPC Practice Note on “Restoration” because the allegations relate to an isolated incident which was wholly out of character. He has since taken steps to remediate his behaviour and his work as a security guard shows he can deal with the pressures of a difficult workplace. He has tried to keep his professional skills up to date and attends a church group. 

8.     The HCPC submits that the findings of the original panel are highly relevant to the restoration application. The burden is upon the Applicant to establish on a balance of probability that he has demonstrated sufficient insight and reflection in relation to the matters giving rise to the original decision. He has limited insight because he does not accept the allegations which were found proved. However, the testimonials as to his good character and the remedial steps he has taken may suggest to the Panel that his behaviour was out of character and is not likely to recur.

9.     Article 33 of the Health and Social Work Professions Order 2001 (the 2001 Order) states:

 

(5) The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant not only satisfies the requirements of article 9(2)(a) and (b) but, having regard in particular to the circumstances which led to the making of the order under article 29, 30 or 38, is also a fit and proper person to practise the relevant profession.

 

(6) The Committee may make the granting of an application subject to the applicant satisfying such requirements as to additional education or training and experience as the Council has specified under article 19(3) and which apply to him.

 

10.   The HCPC Practice Note on “Restoration” states:

 

An application for restoration is not an appeal from, or review of, the original decision and Panels should avoid being drawn into ‘going behind’ the findings of the original Panel or the sanction it imposed. However, in determining applications for restoration, the issues which a Panel should consider include:

 

       the matters which led to striking off and the reasons given by the original Panel for imposing that sanction;

 

       whether the applicant accepts and has insight into those matters;

 

       whether the applicant has resolved those matters, has the willingness and ability to do so, or whether they are capable of being resolved by the applicant;

 

       what other remedial or rehabilitative steps the applicant has taken;

 

       what steps the applicant has taken to keep his or her professional knowledge and skills up to date.

 

 

Decision

 

11.   The Panel heard evidence on oath from the Applicant which was tested by cross examination and by the Panel’s questions. The Panel found him to be a credible witness. Based upon his oral evidence and the evidence within his references and testimonials, the Panel concludes that the Applicant has addressed the matters which led to the Striking Off and the reasons given by the original panel for imposing that sanction. He accepts that his behaviour was inappropriate and has apologised unreservedly for it. He also has insight into those matters and has sought to resolve them by attending a support group weekly for 5 years. He has the willingness and ability to remediate his misconduct and has taken steps to address relevant issues with support from his church. He has been regularly employed as a security guard and has been licensed to work as such. Gaining this license was dependent on him attending training in conflict management, how to deal with heart attacks and sudden collapse, and physical interventions in difficult situations. He produced testimonials confirming his good character. The Panel finds the issues giving rise to the allegations are capable of being resolved by the Applicant and he has done so by the remedial and rehabilitative steps he has taken. He has also tried to keep his professional knowledge and skills up to date by reading relevant journals and articles and by attending annual courses in manual handling and basic life support. He produced a certificate of attendance for his 2015 courses. The Panel has therefore decided to grant the application to restore the Applicant to the Operating Department Practitioner part of the HCPC Register.

 

12.   His return to practice will be subject to the provision of further evidence which satisfies the Registrar that he has successfully completed a 60 day period of professional updating in accordance with the HCPC “Returning to Practice” booklet, which will include supervised practice, formal study, and/or private or personal study. A copy of this booklet will be made available to the Applicant today.

 

Order

The Registrar is directed to restore Lloyd Subner (the Applicant) to the Operating Department Practitioner Part of the Register, but such restoration shall only take effect upon the Applicant paying the prescribed restoration fee and providing evidence which satisfies the Registrar that the Applicant has successfully completed a 60 day period of professional updating in accordance with the HCPC standards for Returning to Practice.

Notes

No notes available

Hearing History

History of Hearings for Mr Lloyd Subner

Date Panel Hearing type Outcomes / Status
25/09/2017 Conduct and Competence Committee Final Hearing Struck off
07/07/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
13/04/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
03/09/2015 Conduct and Competence Committee Final Hearing Restored