Mr Michael A Small
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Allegation (as amended)
During the course of your employment as an Operating Department Practitioner with the University College London Hospitals:
1. You refused to carry out work related instructions on:
i) 12 November 2012;
ii) 15 November 2012;
iii) 18 October 2013
2. You behaved inappropriately and/or aggressively in that:
a. In July 2013
i) You grabbed the arm of Colleague A
ii) You stated to Colleague A, “You need manhandling and I know exactly what to do with you”, or words to that effect.
b. On 30 August 2013 you stated to Colleague B, “Why won’t you go with me when you’ve slept with other members”, or words to that effect.
c. On 18 October 2013:
i) You behaved in an aggressive manner towards Colleague B in front of a patient and her son.
ii) Called Colleague B, “A silly fucking cow”, or words to that effect.
iii) Said, “don’t be fucking silly I wouldn’t say it in front of people”, or words to that effect.
d. On 15 November 2012, You said, “Are you taking the piss out of me or what to Colleague B, or words to that effect.
3. Your actions described in 2aii and 2b were sexually motivated.
4. The matters described in Paragraphs 1-3 amount to misconduct.
5. By reason of that misconduct your fitness to practise is impaired.
Service of Notice:
1. The Panel was referred to the Notice of this Hearing which was sent to the Registrant at his Registered address dated 27 May 2016. The Panel was satisfied that notice had been served in accordance with the rules.
Proceeding in absence
2. Mr Ross, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. He referred the Panel to the legal principles set out in the cases of R v Jones  QB 862 and Adiogba v GMC  EWCA civ 162. Mr Ross informed the Panel that as well as the service of the notice of hearing, the Registrant had been reminded of the hearing date in emails sent to him by the HCPC dated 21 July 2016 and 27 July 2016. The Panel was referred to these emails. Mr Ross submitted that the Registrant was aware of the hearing and had chosen not to attend. He further submitted that balancing the public interest with the Registrant’s interests, the Panel ought to proceed.
3. The Panel received and accepted the advice of the Legal Assessor that they should only proceed in the Registrant’s absence having considered the factors outlined in R v Jones in particular whether the Registrant had voluntarily absented himself and whether any purpose would be served by an adjournment, taking into account that three witnesses have attended on behalf of the HCPC. The Legal Assessor also advised that the Panel should consider whether all reasonable steps had been taken by the HCPC to inform the Registrant of the hearing, following the Judgement in Adiogba v GMC.
4. Having retired to consider the application, the Panel returned and asked for and was provided with an additional bundle which contained evidence of contact between the HCPC and the Registrant. The Panel received further advice from the Legal Assessor.
5. The Panel noted that on 24 March 2016 the Registrant had a telephone conversation with the HCPC Scheduling Officer regarding when he intended to attend this substantive hearing. The Registrant stated to the Scheduling Officer that he couldn’t afford to attend the entire hearing as he would have to work. The Registrant was unable to say at that stage, which day he would attend and was asked to inform the HCPC within seven days. It was explained to the Registrant that the reason that the HCPC needed to know in advance which day he would be attending was because, “due to nature of allegation if he wants to question one of witnesses directly then will need to instruct a lawyer to put his questions on his behalf”.
6. On 5 April 2016 the HCPC emailed the Registrant informing him of a new Scheduling Officer and requesting him to fill out and return the pre-hearing form by Friday 8 April 2016. The Registrant replied by email dated 8 April 2016 in which he confirmed that he would like to attend the hearing on the third day, that he would not be available for phone calls and would be representing himself.
7. On 20 April 2016 the new HCPC Scheduling Officer sent an email to the Registrant setting out the anticipated progress of the case from days 1 – 4. The email also states, “In light of your statement of attending the final hearing on the 3rd day of the hearing, if you choose to do this, please note you will not get the entirety of the final hearing and may not be able to cross examine witnesses, if you choose to, as subsequently they follow a set schedule”.
8. On 21 July 2016, the HCPC Hearings Officer emailed the Registrant to introduce herself and to give information about the hearing venue, parties and procedure. The HCPC Hearings Officer followed up with another email to the Registrant dated 27 July 2016. In that email the Hearings Officer made reference to having tried to contact the Registrant. The email also stated, “In correspondence with us in April 2016 you confirmed that you will be attending on day 3 of the hearing. Please can you confirm if this is still the case or whether you have since considered attending on a different or more than one day of the hearing”.
9. The Panel retired to deliberate further and was then asked to return to the hearing. Mr Ross, for the HCPC, presented a further email from the original Scheduling Officer to the Registrant dated 24 March 2016. Mr Ross submitted that this email followed on from the telephone conversation with the Registrant earlier on the same day.
10. Mr Ross for the HCPC referred the Panel to the contents of a particular paragraph in the email which states, “If you are to attend the hearing (either on one or more days) please confirm which days you will be in attendance. I need to know this information in advance of the hearing because of the nature of the allegation. Our Rules stipulate that in cases such as these a Registrant may not be permitted to cross-examine certain witnesses directly. If you are in attendance at the hearing when this particular witnesses (sic) gives her evidence, and you wish to ask her questions, an independent person must be appointed to do this on your behalf…I would be grateful if you would respond to this email by Friday 1 April 2016 with confirmation as to the day (if any) when you will be personally in attendance at the hearing. Please also confirm whether you will be present by telephone for any other days of the hearing”.
11. The Panel considered that the email trails evidenced that rather than being a Registrant who had not engaged with the HCPC, the Registrant had in fact engaged. The Panel noted that the Registrant had replied to the email sent to him by the HCPC on 24 March and made clear that he would like to attend the hearing on the third day, that he would not be available by telephone for the rest of the hearing and that he would be representing himself. The Panel also noted that the Registrant had informed the HCPC during his telephone conversation on 24 March that he could not afford to attend the whole hearing and had to work.
12. In considering the essential question of the fairness of proceeding in the Registrant’s absence, the Panel had regard to the HCPC Practice Note entitled, “Cross-Examination in Cases of a Sexual Nature”. The Panel noted the procedure set out therein, whereby the witness is first consulted as to whether he/she consents to being questioned by a Registrant. If the witness indicates that they do not wish to be cross-examined by the Registrant, arrangements will be made for a legal representative in accordance with the HCPC Practice Note.
13. The Panel considered that the HCPC’s own procedure regarding cross-examination in cases of a sexual nature was not properly explained to the Registrant in his telephone conversation with the original Scheduling Officer and her subsequent email to him. The Registrant was never told that the role of the legal representative appointed by the HCPC would be to take instructions from him so as to formulate questions which he wished to be asked. The Panel considered from the contents of the Registrant’s email dated 8 April, that he could be under the impression that he had to arrange his own legal representation (which he had already indicated he could not afford).
14. The Panel’s concern was strengthened by the contents of the email to the Registrant from the HCPC dated 20 April 2016, which gave him the impression that if he chooses to attend on the third day of the hearing, he may not be able to cross-examine witnesses if he chose to. The Panel was satisfied that if the HCPC had followed its own procedure, the Registrant ought to have been offered the opportunity to meet with a Legal Representative appointed by the HCPC to discuss the case and to give instructions as to the questions he wanted put to the witness in question. The failure to follow this procedure and the failure to explain it properly to the Registrant at the outset has, in the Panel’s view, led to unfairness such that the Registrant was left in the dark as to how he could properly present his case.
15. The Panel carefully considered whether the email dated 24 March 2016, presented to the Panel after it had retired to consider the application was sufficient to remedy the unfairness to the Registrant. The Panel concluded that it did not. In its view, the paragraph relied upon by Mr Ross on behalf of the HCPC added to the confusion and may have given the impression that an independent person would have questioned the witness, even if the Registrant was not in attendance at the time of the witness giving evidence.
16. The Panel’s primary concern was whether in proceeding in the Registrant’s absence the process would be fair and transparent and concluded that it would not be. The Panel was unable to conclude that the Registrant had voluntarily absented himself, given his stated desire to attend at least part of the hearing. For the same reasons, the Panel was further unable to conclude that there would be no purpose in adjourning the hearing, particularly because once the cross-examination process is properly explained to the Registrant, his attendance at a future hearing may be secured.