Mr Benjamin Jones

Profession: Operating department practitioner

Registration Number: ODP32597

Hearing Type: Unknown

Date and Time of hearing: 13:00 09/12/2016 End: 17:00 09/12/2016

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation, as proved at Final Hearing

Whilst employed as an Operating Department Practitioner at St Georges Healthcare NHS Trust you:

1. Self-administered non-prescribed drugs

2. Stole drugs from the Trust – namely Diazemuls and / or Midazolam on a number of occasions including on 08 August 2011

3. Distributed drugs stolen from the Trust to your brother

4. (Not proved)

5. Your actions as outlined in paragraphs 2 and / or 3 were dishonest.

6. The matters set out in paragraphs 1 - 5 amount to misconduct.

7. By reason of that misconduct, your fitness to practise is impaired.

Finding

Background

1. Mr Jones was employed as a Theatre Practitioner in Anaesthetics by St George’s Healthcare NHS Trust from May 2011 until he was dismissed for gross misconduct on 3 November 2011. Mr Jones is a qualified Operating Department Practitioner.  

2. During the night shift spanning 9 and 10 August 2011 Mr Jones was discovered unconscious displaying symptoms of a seizure whilst on duty. In a search of Mr Jones’ personal effects an ampoule of diazemuls and an empty beer can were found. Text messages on Mr Jones’ mobile phone suggested that he was supplying drugs to a third party.

3. His employers suspected that Mr Jones had self-administered prescription drugs obtained from the Trust and this was the cause of his collapse and fitting.

4. On 8 August 2011 a 5 mg ampoule of midazolam went missing from the Trust in theatres. The midazolam remained unaccounted for and the Trust suspected that Mr Jones might be responsible for its disappearance.

5.

6. On 30 August 2011 he was suspended on his return to work from sickness absence. He attended an investigatory meeting with RG on 12 September 2011 where he initially denied all the allegations made against him. However during the course of the investigatory meeting Mr Jones admitted that: he had self-administered non-prescribed drugs; stolen diazemuls from the Trust on a number of occasions and distributed drugs stolen from the Trust to his brother.

7. The Trust convened a disciplinary hearing on 3 November 2011 which Mr Jones did not attend. The outcome of the hearing was that Mr Jones was dismissed for gross misconduct and the Trust referred this matter to the HPC.

Service of Notice

8. The notice of today’s hearing was sent to the Registrant at his address as it appeared in the register on 8 November 2016. The notice contained the date, time and venue of today’s hearing.

9. The Panel accepted the advice of the Legal Assessor and is satisfied that notice of today’s hearing has been served in accordance with the rules.

Proceeding in the absence of the Registrant

10. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11. In doing so, it considered the submissions of Ms Shenton on behalf of the HCPC.

11. Ms Shenton submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She further submitted that the Registrant has engaged with the process and is aware of today’s proceedings. Ms Shenton
told the Panel that the Council has been in constant contact with the Registrant in an attempt to finalise the voluntary removal procedure before today. Further, the Registrant was specifically, and repeatedly, told that if the documentation regarding the voluntary removal procedure was not completed by today, the HCPC would seek to proceed on the basis of an Article 30 substantive order review as per the notice of hearing sent on 8 November 2016. Further attempts had been made today to contact the Registrant and there has been no contact from the Registrant since 7 December 2016. An adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.

12. The Panel accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel had the discretion to proceed in the absence of the Registrant.

13. It was clear from the principles derived from case law that the Panel was required to perform a balancing exercise to ensure that fairness and justice was maintained when deciding whether or not to proceed in a Registrant’s absence.

14. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing.

15. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

16. In reaching its decision the Panel took into account the following:
• The Registrant has sent an email that was received at 14:23 today making various representations.
• The Registrant has not made an application to adjourn today’s hearing.
• The Registrant is clearly aware of today’s hearing.
• The Registrant has an expectation, expressed in the email sent today, that the hearing proceeds in his absence
•There is a public interest that this substantive order is reviewed before it expires.

17. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing and had waived his right to be represented. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest in the expeditious disposal of this case with the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Decision:

Submissions

18. Ms Shenton outlined the background to these proceedings to the Panel. She submitted that whilst the Registrant has engaged with the process, he has not submitted any further information regarding his circumstances that previous panels had indicated would be of use for further panels when considering the issue impairment of his fitness to practise.

Legal advice

19. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive appraisal of the Registrant to determine if he is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

20. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor advised the Panel that, if it determined that the Registrant’s fitness to practise remained impaired, the Panel could exercise all options under Article 30 of the 2001 Order. He also advised the Panel to have regard to the Indicative Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.

Panel’s considerations and decision

21. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Shenton.

22. This is a case of misconduct and there is no suggestion that the Registrant lacked the requisite competence to carry out the role of a ODP. 

23. The Registrant has not submitted any information regarding the current state of his health nor regarding how he has maintained his knowledge and skills as an ODP. The Panel noted that the Registrant had indicated at the last review hearing that he no longer wished to return to the profession, and therefore he had not maintained his knowledge and skills as an ODP.  There is no indication that the Registrant’s position has changed

24. Therefore there is no evidence before the Panel today that could satisfy it that the Registrant’s fitness to practice was no longer impaired.

25. In the light of all the above, the Panel determines that the Registrant’s fitness to practise remains impaired.
 
26.The Panel then went on to consider what the appropriate and proportionate sanction should be.

27.The Registrant has not submitted any representations, and there is no reason to suppose that his position has changed regarding his intention not to return to the profession. The Panel also noted that the documentation for voluntary removal had been almost completed and the only outstanding matter was for the Registrant to return a copy of the documentation with his signature. 

28.The Panel had regard to the Indicative Sanctions Guide issued by the HCPC and considered the available sanctions in order of severity, starting with the least restrictive. In the light of the lack of engagement and commitment to the profession on the part of the Registrant, the Panel determined that it was not appropriate to take no further action.

29. The Panel also considered that conditions of practice were not appropriate in the light that the Registrant has indicated that he does not intend to return to the profession.

30. In the light of all the above, the Panel also considered that a further period of suspension would not normally be appropriate. Without a commitment to remaining in the profession, and lack of evidence of remediation, the Panel determined that the situation was unlikely to change in future.  The Order was extended on the last occasion because “a further period of Suspension would allow for a disposal of this case by voluntary removal.”  The reviewing Panel was of the view that a Striking Off Order at that stage “would be disproportionate in the light of the engagement of the Registrant throughout this process, his insight, his previous attempts to remediate his practice and his early determination to remain in the profession”.

31. However, the Panel had sight of a letter sent by the HCPC to the Registrant dated 30 November that indicated all the paperwork for the Voluntary Removal Agreement was in order. It also stated in that letter that the Voluntary Removal Hearing would take place on 20 December 2016.

32. Taking all of the above into consideration, the Panel determined that the only fair and proportionate action is to extend the suspension order for a further period of three months. The Panel was told that because of the dates involved, the entire Voluntary Removal process will have to be re-started. In these circumstances, the Panel determined that a further period of suspension of three months will enable the process to be completed.

Order

The Registrar is directed to suspend the registration of Mr Benjamin Jones for a further period of three months on the expiry of the existing order.

Notes

This order comes into effect on the 17 January 2017. 

Hearing History

History of Hearings for Mr Benjamin Jones

Date Panel Hearing type Outcomes / Status
17/03/2017 Conduct and Competence Committee Final Hearing Voluntary Removal agreed
09/12/2016 Conduct and Competence Committee Unknown Suspended
14/07/2016 Conduct and Competence Committee Review Hearing Suspended