Mr Mark Matthews

Profession: Operating department practitioner

Registration Number: ODP12167

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/12/2016 End: 17:00 12/12/2016

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

On 11 December 2015 at Redhill Magistrates' Court you were convicted of:

 

1. On dates between 31st June 2015 and 3rd September 2015 at Horley in the county of Surrey stole 40 x 100mg ampoules of Tramadol belonging to Spire Health Care - Gatwick Park Hospital Contrary to section 1(1) and 7 of the Theft Act 1968.

 

2. By reason of your conviction as set out at paragraph 1 your fitness to practise as an Operating Department Practitioner is impaired.

Finding

Preliminary matters:

1. At the outset of the hearing Ms Young addressed the Panel as to notice and service.  She submitted that proper notice of the hearing had been served on the Registrant at his registered address on 28 September 2016.

2. She submitted with regard to Bundle 2, that all reasonable steps had been taken to inform the Registrant of today’s hearing and the Panel should exercise its discretion in the public interest to proceed in his absence.

3. The Panel heard and accepted the advice of the Legal Assessor.

4. The Panel was satisfied that the notice had been served in accordance with the Rules and that it would be in the public interest to proceed in the absence of the Registrant.  The Panel noted that the Registrant last had contact with the HCPC in February 2016 via email.  However subsequent attempts to contact him at the same email address have gone unanswered.  Further, the Panel noted the use of a tracing agent to locate the Registrant but to no avail.  In the circumstances the Panel is satisfied that the HCPC has taken all reasonable steps to try and locate the Registrant and inform him of today’s hearing.

5. The Panel had regard to the public interest in this case and it is satisfied that a reasonable inference can be drawn from the Registrant’s non communication with the HCPC after February 2016 that he has deliberately absented himself from today’s hearing.  The Panel is not satisfied that an adjournment would secure his attendance on a future occasion. There is a public interest in the expeditious disposal of this case. 

6. Having decided to proceed in the absence of the Registrant, Ms Young applied to have the allegation amended by the insertion of numerically numbered paragraphs and by the addition of the words ‘on or around November to December’ 2015. She submitted that this better particularised the proceedings before the criminal court. 

7. The Panel was satisfied that the above amendment could be made without prejudice as it was not material to the allegation.  The Registrant would have known about the fact of his conviction and that it was this that had led to the referral to the HCPC.


Background

8. On 3 September 2015, MS reported to the Police that Mark Matthews (the Registrant) was suspected of stealing controlled drugs.  MS informed the Police that the Registrant was employed as an Operating Department Practitioner at Spire Health Care at Gatwick Park Hospital. 

9. On the morning of 3 September 2015, a drug count indicated that 1 x 100mg ampoule or Tramadol was missing.  A review of the Controlled Drugs Registers indicated Tramadol was given to a patient on 2 September 2015.  The Register had been signed by the Registrant and another signature for a Responsible Person appeared on the document showing as an Anaesthetist.  However, that particular Anaesthetist stated that he never prescribes Tramadol and a further review of the Patient Record shows that that patient did not receive Tramadol on 2 September 2015.  MS provided a schedule of nine incidents of theft of Tramadol between 1 July 2015 and 2 September 2015, where a total of 40 x 100mg ampoules of Tramadol were said to be stolen by the Registrant.

10. The Registrant was arrested and interviewed on 8 September 2015.  During his interview the Registrant made full admissions in relation to the theft of Tramadol on nine occasions stating that he had medical issues and was self - prescribing. 

11. On 11 December 2015, the Registrant attended Surrey Magistrates’ Court and pleaded guilty to the following offence:
On dates between 31 June 2015 and 3 September 2015, at Horley in the County of Surrey, stole 40 x 100 mg ampoules of Tramadol belonging to Spire Health Care – Gatwick Park Hospital, contrary to s.1(1) and 7 of the Theft Act. 

12. The Registrant received a Community Order setting out that he must carry out unpaid work for 140 hours within 12 months.  In addition, the Registrant was ordered to pay a Victim’s Surcharge of £60, to pay the Crown Prosecution Service costs of £85 and to pay the Criminal Courts’ charge of £180. 

 

Decision on Facts

13.  The Panel had sight of the certified copy of the memorandum of conviction from Surrey Magistrates Court dated 11 December 2015 and is satisfied that this proves the Registrant has been convicted of a criminal offence and of the findings of fact upon it was based in accordance with rule 10 (1)(d) of the HCPC (Conduct and Competence Committee)(Procedure) Rules 2003.


Decision on Grounds and Impairment

14. The Panel is satisfied that the statutory ground for impairment under Article 22 (1)(a)(iii) of the Health and Social Work Order 2001 is made out.  The decision on impairment is a matter for the Panel exercising its own professional judgement.  The Panel will have regard to the future but it will take into account the nature, circumstances and gravity of the offence, as advised in the HCPC Practice Note on Conviction and Caution Allegations. The Panel took into account the submissions made by Ms Young.  

15. The Panel heard and accepted the advice of the Legal Assessor. 

16. The Panel went on to consider the nature, circumstances and the gravity of the offence.  The Panel had regard to public protection in the widest sense, including whether the Registrant’s conviction brings the profession into disrepute or may undermine the public’s confidence in the profession and the HCPC as the Regulator. 

17. The Panel found that a particularly concerning aspect of this case was that the Registrant’s actions in stealing a controlled drug occurred in a workplace setting and involved, on four of the nine occasions the falsification of patient records. On the other five occasions this involved manipulation of theatre transfer records.  Furthermore, this conduct took place over a two month period and showed a deliberate calculation on the part of the Registrant to conceal his actions.   

18. The Panel accepted that the Registrant pleaded guilty at the first available opportunity but was concerned that he has had no meaningful engagement with the HCPC in terms of demonstrating his insight into the nature of the offence or to address the risk of repetition as at the current time. The Panel noted that during the hospital investigation the Registrant referred to possible health conditions which led him to steal.  However, the Panel has been provided with no up to date information about the Registrant and therefore it cannot discount the risk of repetition at the current time. The Panel was provided with no information that he has successfully completed his community order.

19. The Panel is in no doubt that the conviction of the Registrant would be properly viewed as very serious in the context of his abuse of trust of his employer and colleagues and that he compromised the care of patients in his charge.

20. The Panel had regard to the observations of Dame Janet Smith in the Fifth Shipman Inquiry Report “,….The role of regulator in protecting (service users) involves different considerations from those taken into account by the criminal courts when passing sentence…what may well appear relatively trivial in the context of general criminal law may be quite serious in the context of (professional) practice.”

21. The Panel is in no doubt that public confidence in the profession would be undermined if a finding of impairment were not made in this case.  This is necessary to protect the public, to maintain public confidence in the profession and the need to uphold proper standards of conduct and behaviour.


Decision on Sanction

22. In considering what sanction, if any, to impose, the Panel took into account the submissions of Ms Young.  It heard and accepted the advice of the Legal Assessor and has had regard to the HCPC Indicative Sanctions Policy. 

23. The Panel has at all times had regard to the principle of proportionality.  The Panel had regard to the protection of the public and the wider public interest which includes the declaring and upholding of proper standards and behaviour and the Panel balanced those interests against the Registrant’s interests. 

24. The Panel notes that the purpose of a sanction is not to be punitive, but it may have a punitive effect. 

25.The Panel took into account the following mitigating factors;

•Guilty plea at the first available opportunity
•Well regarded in the workplace
•Possible health condition

26. The Panel took into account the following aggravating features;

• Abuse of position of trust
• The deliberate alteration of patient records and risk of harm to patients
• The theft was calculated and repeated over a period of time

27. In view of the seriousness of the matters found and the Panel’s decision on current impairment, the Panel determined that to take no further action or to impose a Caution Order would not be sufficient to maintain public confidence in the profession and the regulatory process.  Mediation would not be applicable in the circumstances of this case.

28. The Panel then went on to consider whether a Conditions of Practice Order would be appropriate and proportionate.  The Panel had regard to paragraph 27 of the ISG where the imposition of conditions requires a commitment of the part of the Registrant to resolve matters and Conditions of Practice are unlikely to be suitable in cases;

• Where there are serious or persistent overall failings;
• the Registrant lacks insight or any denies any wrongdoing; or
• involving dishonesty, breach of trust or the abuse of service users. 

In this case, the Panel has no information as to what the Registrant is currently doing (including where he is employed or where he is residing) or what his future intentions are and in the circumstances a Conditions of Practice Order is unworkable. 

29. The Panel then went on to consider whether a Suspension Order would be the appropriate and proportionate sanction.  In particular, the Panel had regard to the approach set out in Parkinson v NMC 2010 (EWHC) 1898. The Panel noted that the Registrant has not engaged since February 2016 with these proceedings and has not demonstrated insight and/or remorse before this Panel. The Panel notes that the offence for which the Registrant was convicted is a serious offence for a professional person, involving as it does dishonesty, which occurred in a professional setting and there remains a risk of repetition.  In particular, the circumstances of the offence and the other aggravating features identified above, are in the Panel’s assessment incompatible with a period of suspension and thereby the potential to resume unrestricted practice at the end of such period. 

30. The Panel is satisfied that only a striking off order would be the appropriate and proportionate sanction in this case.  Anything less would not be in the public interest, would not protect patients in the absence of any evidence to mitigate the current risk identified and nor would it send out a deterrent message to the profession that such behaviour is incompatible with continued registration. 

Order

The Panel imposes a striking off order. 

Notes

The Panel imposed an Interim Suspension Order to cover the appeal period. 

Hearing History

History of Hearings for Mr Mark Matthews

Date Panel Hearing type Outcomes / Status
12/12/2016 Conduct and Competence Committee Final Hearing Struck off