Mrs Jolene Khumalo

Profession: Operating department practitioner

Registration Number: ODP33225

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 28/04/2016 End: 11:30 28/04/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

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 The Royal Orthopaedic Hospital NHS Foundation Trust between October 2010 and 20 April 2012:

1. On 27 September 2011 you selected the wrong type of patient positioning prop (a clamp) despite having been instructed that same day on the correct type.

 

2. Not proved.

 

3. On 22 November 2011 you did not put monitoring on a patient until prompted to do so.

 

4. On an unknown date in November 2011 you did not try to fix a faulty anesthetic machine.

 

5. Not proved.

 

6. On 24 February 2012 you:

 

a. Not proved.

 

b. did not hand over information regarding the patient who was in the operating theatre and/or

 

c. Not proved.

 

7. were unable to work autonomously in that you required prompting from other members of staff, including on 08 March 2012.

 

8. The matters set out in paragraphs 1 - 7 constitute lack of competence and/or misconduct.

Finding

Preliminary Matters:

Service


1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at her registered address on 09 March 2016 . The Panel was shown documents which established both the fact of the service and the identity of the Registrant’s registered address. In these circumstances the Panel accepted that proper service of the notice had been effected.

Proceeding in the absence of the Registrant

2. Ms Aumeerally on behalf of the HCPC submitted that the Panel should consider the case in the absence of the Registrant.

3. The HCPC has received an email from the Registrant dated 14 April 2016 in which she said that she was not going to attend today’s hearing and further “It is highly unlikely that I will practise again as an ODP”

4. This Panel heard and accepted the advice of the legal assessor.

5. This Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great caution. However this Panel has decided to proceed in the absence of the Registrant. The reasons are as follows;
• Service of the appropriate notice of this hearing has been properly effected.
• The Registrant did attend and was represented at the substantive hearing in 2013 but did not attend and was not represented at the hearing on 14 April 2015.
• The Registrant has not applied for an adjournment.
• She has stated that she is not going to attend this hearing and furthermore is unlikely to work again as an ODP.
• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.
• There is a public interest in proceeding.
• The present review of the suspension order is mandatory.
• In all the circumstances the absence of the Registrant should be treated as voluntary.

Background:

6. It is not intended to rehearse the full details of this case. Suffice to say the Registrant is a Band 5 Operating Department Practitioner [ODP] who was employed at the Royal Orthopaedic Hospital NHS Foundation Trust [the Trust] at their site at Bristol Road, Northfield, Birmingham from November 2010 until she resigned on 21 March 2012.

7. The Registrant had qualified as an ODP immediately before commencing her employment at the Trust. Band 5 is an entry level position for newly qualified ODPs.

8. Shortly after she was employed at the Trust, concern was raised about the Registrant’s performance by David Mantale a senior ODP. As a consequence the Trust took measures to ensure that the Registrant did not work “autonomously” - that is, without the assistance of a senior ODP or other senior staff members. A Band 5 ODP was expected to be an autonomous practitioner.

9. In the course of the Registrant’s employment concern was raised regarding a number of matters, some of which are reflected in the allegations and are dealt with below.

10. There was a performance review on 22 November 2011. It was considered that the Registrant was not achieving what she should achieve in terms of her performance and competence and that she was not achieving her objectives within the set deadlines. As a consequence of that the Registrant was required to meet certain objectives.

11. There were further review meetings in December 2011 and in February 2012 and the Registrant was the subject of a role play assessment in January 2012, in the course of which a number of deficiencies in her performance were identified.

12. On 24 February 2012 it was decided to invoke “the formal performance management process” and the Registrant was informed of this on 6 March 2012. The first formal meeting took place on 13 March 2012. The Registrant was informed that the purpose of the meeting was to discuss concerns about her performance and what steps should be taken to address these concerns

13. By a letter dated 21 March 2012 the Registrant gave the Trust 4 weeks’ notice of her intention to resign and her resignation became effective in April 2012 and since that date it would appear she has not been employed as an ODP. At a hearing of the Conduct and Competence Committee held on 29, 30 April and 1 May 2013, the Panel found the majority of the facts proved and that those facts amounted to a lack of competence. The Panel found the Registrant’s fitness to practise was impaired by reason of the lack of competence and imposed a Conditions of Practice Order for two years. 
 
Review on 14 April 2015.                        

14. The order made on 1 May 2013 was reviewed on 14 April 2015. That Panel first considered whether the Registrants’s fitness to practise was still impaired. That Panel concluded that her fitness to practise was still impaired. It explained its reasons as follows;

15. ‘The Panel first considered whether the Registrant’s fitness to practise is impaired. Since the date of her resignation in March 2012, the Registrant has not practised as an ODP. Her fitness to practise was found to be impaired at the substantive hearing in May 2013 and there is no information or evidence before this Panel to show that she has done anything to rectify this position.  In particular there is no evidence that she has addressed any of the deficiencies in her practice that were found by the Panel at the substantive hearing. Additionally, the Panel noted that there is no evidence that she has kept up her clinical knowledge and skills, and there is no evidence of continuing professional development (CPD). There has been a lack of engagement with the regulatory process since the substantive hearing and for these reasons the Panel concludes that the Registrant’s fitness to practise is still impaired by reason of lack of competence.’

16. Having concluded that the Registrant’s fitness to practice remains impaired, that panel went on to consider the question of sanction. It concluded that a conditions of practice order was no longer appropriate and determined to impose an order for suspension for a period of 12 months. It explained its reasons in the following terms:

17. ‘Having determined that the Registrant’s fitness to practise is still impaired, the Panel went on to consider the question of sanction. It bore in mind the HCPC guidance entitled “Indicative Sanctions Policy” and approached the question of sanction from the least restrictive in ascending order of seriousness. It considered that in these circumstances where serious deficiencies had been identified in the Registrant’s practice, and there is no information that she has sought to remedy them, it would be inappropriate and insufficient to revoke the existing order or to allow it to lapse. The Panel considered it is necessary in this case to impose a sanction. It then considered whether a Caution Order would be appropriate. The Panel determined that a Caution Order was not sufficient to adequately protect the public or to maintain public confidence in the profession given the findings made by the previous Panel. On all the evidence before it, and in view of the lack of engagement by the Registrant, the Panel considers she is not safe to practise without restriction’.

18. ‘The Panel therefore carefully considered whether to continue the Conditions of Practice Order. In reaching its decision, the Panel paid particular regard to the email sent by the Registrant to the HCPC on 9 April 2015. Within this email she stated “I have not fulfilled the conditions of practise order because I think I am better off not pursuing this profession. I am currently on a full time study programme in a bid to change profession.” Furthermore the Panel also noted that during the two years since the Conditions of Practice Order has been imposed, the Registrant had not responded to three letters from the HCPC requesting her to provide updates about her compliance with those conditions’.

19. ‘Given the Registrant’s stated intention not to return to practise as an ODP, the Panel has concluded that an order of Conditions would not be relevant and could not be made workable; the Registrant has indicated that she is not willing nor has she expressed a desire to comply with Conditions. In the circumstances the Panel has therefore determined that it is proportionate, appropriate and in the public interest to impose an Order of Suspension for twelve months. This Order will give her adequate time to reflect and a further opportunity during that period should she seek an early review to show that she wishes to continue her practice’.

20. At the conclusion of the hearing on 14 April 2015 that Panel stated as follows

21. At a review hearing a Panel would be assisted by:
• Evidence of the Registrant’s intention to return to practice;
• Evidence that she has engaged in clinical education and continuing                                                                                                             professional development;
• Evidence of an action plan setting out how she proposes to return to practise as an ODP.
Decision:

21. This Panel has reviewed the 12 months suspension order imposed on 14 April 2015.

22. This Panel considered the submissions of Ms Aumeerally for the HCPC, both on impairment and sanction. In summary she submitted that the Registrant was still impaired, an order was necessary and that in all the circumstances and having regard to the email dated 14 April 2016, none of the less restrictive orders were appropriate and that the Panel should make a striking off order.

23. This Panel has had regard to the email from the Registrant dated 14 April 2016 the contents of which are summarised at paragraph 3.

24. This Panel heard and accepted the advice of the legal assessor

25. This Panel is aware that it has all the powers that are set out in Article 30 [1] of the Health and Social Work Professions Order 2001 [The Order].

26. This Panel was aware that impairment and, if appropriate, the order, were matters for its professional judgement. This Panel is further aware that when exercising that judgement it should take into account all the presently available information.

27. This Panel is aware that the process under Article 30 of the Order was one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise is still impaired and if so whether the suspension order under review remains an appropriate and proportionate means of public protection or should be varied or replaced by some other order.

28. This Panel is aware that the issue of an order only arises if there is a finding of current impairment to the Registrant’s fitness to practise

29. This Panel has concluded that the Registrant’s fitness to practise is still currently impaired. Its reasons are as follows;
• The Registrant has not produced any evidence to demonstrate remediation or insight. She has not produced any of the material that was identified in the determination made on 14 April 2015 as being helpful on review. In the absence of any evidence of remediation or insight, this Panel has concluded that the considerations that operated in April 2015 are still valid and as a consequence the Registrant’s fitness to practise remains impaired by reason of lack of competence. In particular this Panel considered that having regard to all the matters set out above there is a continuing risk of unwarranted harm being caused to members of the public. Furthermore, public confidence in the profession of Operating Department Practice, in the HCPC and its regulatory processes would be undermined if a finding of current impairment to the Registrant’s fitness to practise were not made.

30. Having concluded that the Registrant’s fitness to practice is still impaired, this Panel proceeded to consider what order is appropriate, proportionate and sufficient to protect the public and safeguard the public interest. This Panel took into account the principles of proportionality balancing the interests of the Registrant with the public interest.

31. This Panel has had regard to the contents of the Indicative Sanctions Policy and is aware that sanctions should be considered in ascending order of severity. This Panel is aware the purpose of sanctions is not punitive but to protect members of the public and to safeguard the public interest. The latter objective includes maintaining standards within the profession, together with public confidence in the profession and in its regulatory processes.

32. The Panel has concluded that to take no action, thus allowing the present order to lapse, or to impose a caution order would be inappropriate having regard to the gravity of the matters found proved. The Panel further determined that for all the reasons identified by the Panel on 14 April 2015, a Conditions of Practice Order would be inappropriate.

33.This Panel has concluded that having regard to all the matters set out above a suspension order for a further period would serve no purpose and that a striking off order is necessary and proportionate to protect the public and is in the public interest.

34. Having regard to all the matters set out above this Panel has concluded that it is appropriate and proportionate that the striking off order should be made to come into effect on the expiration of the current order of suspension.

Order

Order:

That the Registrar is directed to strike the name of Mrs Jolene Khumalo from the Register on the date this order comes into effect.

The order imposed today will apply from 29 May 2016.

Right of Appeal:


You may appeal to the appropriate court against the decision of the Panel and the order it has made against you.  The appropriate court is the High Court in England and Wales.
Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. 

Notes

No notes available

Hearing History

History of Hearings for Mrs Jolene Khumalo

Date Panel Hearing type Outcomes / Status
28/04/2016 Conduct and Competence Committee Review Hearing Struck off