Mr Benjamin Jones

Profession: Operating department practitioner

Registration Number: ODP32597

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 14/07/2016 End: 12:00 14/07/2016

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. Mr Jones was admitted to intensive care where he remained for 7 days.

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.

Preliminary matters

Service of Notice

8. The notice of today’s hearing was sent on 13 June 2016 to the Registrant at his address as it appeared on the Register. The notice contained the date, time and venue of today’s hearing.

9. The Panel accepted the advice of the Legal Assessor. The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”) require that a notice of hearing must contain the above information and be sent to the registrant at his registered address not less than 28 days before the date of the hearing.

10. Accordingly the Panel is satisfied that notice of today’s hearing has been served in accordance with the rules.

Proceeding in the absence of the Registrant

11. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submission of Mr Byrne on behalf of the HCPC.

12. Mr Byrne submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. He further submitted that the Registrant has engaged with the process and is aware of today’s proceedings. Mr Byrne drew the Panel’s attention to the Registrant’s email dated 14 July 2016 which states that he will not be attending today’s hearing. Further, the Registrant’s implicit expectation is that today’s hearing will proceed in his absence and that the Panel would take into consideration his representations. Mr Byrne submitted that the Panel can be satisfied that the Registrant’s absence today is voluntary and that he has waived his right to attend and/or to be represented. An adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.

13. 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 has the discretion to proceed in the absence of the Registrant.

14. The Legal Assessor referred to the case of GMC v Adeogba  [2016] EWCA Civ 162. That case reminded the Panel that its primary objective is the protection of the public and of the public interest. The case of Adeogba is clear that the “fair, economical, expeditious and efficient disposal of allegations made against (medical) practitioner’s is of very real importance”.

15. The Legal Assessor reminded the Panel that the HCPC represents the public interest in relation to standards of health and social care.

16. The Panel is required to perform a balancing exercise to ensure that fairness and justice is maintained when deciding whether or not to proceed in a registrant’s absence.

17. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of today’s hearing. It is also satisfied that the Registrant is aware of today’s hearing.

18. 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 attend.

19. In reaching its decision the Panel took into account the following:

• The Registrant has not made an application to adjourn today’s hearing and implicit in his letter dated 14 July 2016 is an expectation that proceedings today will proceed in his absence;

• The Registrant has engaged with the process throughout and has made  further written representations today;

• There is a public interest that this substantive order is reviewed before it expires.
20. The Panel was satisfied that the Registrant has voluntarily absented himself from the hearing and has waived his right to be represented. The Registrant has not asked for an adjournment although the Panel noted that he had done so on a previous occasion. 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:
21. Mr Byrne, on behalf of the HCPC, outlined the background of the case to the Panel. He submitted that in the light of the representations on the part of the Registrant, and the findings of the previous panel, that the Registrant remains impaired. He asked the Panel to further extend the period of suspension for a period of 5 months to allow for the Registrant to sign a voluntary undertaking that if the Order were allowed to lapse he would not be applying to return to the Register.

22. The Panel accepted the advice of the Legal Assessor. 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, and if not, what the appropriate sanction should be at this point in time. Its role is not to conduct a rehearing of the allegations nor is it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

23. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:

‘Does the evidence, if any, before the Panel today show that the Registrant’s fitness to practice remains impaired in the sense that he:

a) is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or

b) is liable in the future to bring the Operating Department Practitioner profession into disrepute; and/or

c) is liable in the future to breach one of the fundamental tenets of the profession; and/or

d) liable in the future to act dishonestly

24. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired all the options under Article 30 of the Health and Social Work Professions Order 2001 could be exercised by the Panel. He advised the Panel that it should bear in mind the principles of fairness and proportionality and 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.

25. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The previous panel determined that Mr Jones was impaired by his own admission, that he had not kept his knowledge and skills up-to-date and that his health issues had not been fully resolved. There was no evidence before the Panel today that the position had changed such that the Registrant’s fitness to practice was no longer impaired. The Registrant has engaged with the process and has now indicated that he no longer wishes to return to the profession. He has not provided information as to any remedial steps he may have taken since the last hearing.

26. In the light of all the above, the Panel determines that the Registrant’s fitness to practise remains impaired.

27. The Panel then went on to consider what the appropriate and proportionate sanction should be. It had regard to the Indicative Sanctions Policy issued by the HCPC and considered the available sanctions in order of severity, starting with the least restrictive. In the light of his health issues and lack of evidence of continuing professional development the Panel determined that it was not appropriate to take No Further Action or impose a Caution Order. The Panel considered that Conditions of Practice were not appropriate in the light of Mr Jones email that he no longer wished to practise as an Operating Department Practitioner.

28. The Panel went on to consider a further period of Suspension. A further period of Suspension would allow for a disposal of this case by voluntary removal.  The Panel noted that a previous panel had determined that the public interest had already been met by the periods of Suspension up to that point. The Panel considered that a Striking Off Order would be disproportionate in the light of the engagement of the Registrant throughout this process, his insight, his previous attempts to remediate his practise and his earlier determination to remain in the profession.

29. The Panel determined that the appropriate and proportionate action today is to further extend the period of suspension for 5 months. This period will allow sufficient time for the HCPC and the Registrant to work together in order to have an undertaking signed by the Registrant, and to list the matter for a review under Article 30(2) of the 2001 Order. If the undertaking is not completed before the next review, the panel may take the reasons for that failure into account when considering the options open to it.

Order

The Registrar is directed to suspend the registration of Mr Benjamin Jones for a further period of 5 months on the expiry of the existing order.

Notes

This order will be reviewed by the Committee no later than 17 January 2017 or earlier if new evidence which is relevant to the order becomes available after it was made.

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
12/08/2015 Conduct and Competence Committee Review Hearing Suspended
16/07/2015 Conduct and Competence Committee Review Hearing Adjourned