Mr Laval Robert Antoine

Profession: Operating department practitioner

Registration Number: ODP11446

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 18/07/2016 End: 16:00 21/07/2016

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

While registered as an Operating Department Practitioner and during the course of your employment at the Royal London Hospital of Bart’s Health NHS Trust, you:

 

1. Between 28 April 2014 and 9 May 2014 or thereabouts, while you were in theatre:

 

a) you slapped a scrub nurse on her bottom,

 

b) during a procedure involving a female patient who was under

anaesthetic, you:

i. said “she does not need to be covered as she’s asleep so no need to respect privacy and dignity” or words to that effect when Colleague C attempted to cover the patient’s genitalia, and

ii. inappropriately referred to the patient’s genitalia.

 

c) during a procedure involving a male adolescent who was under

anaesthetic, you said “he does not need to be covered up as he was asleep there was no need for it”, or words to that effect, when a colleague attempted to cover the patient’s genitalia.

 

2. On or around 19 May 2014, made inappropriate physical contact with Colleague A during a shift, in that you:

 

a) slapped her on the bottom,

 

b) hugged her from the side and attempted to move your hand towards her bottom, and:

 

c) placed your hand on her inner thigh.

 

3. On or around 19 May 2014, made inappropriate verbal comments to Colleague A in that you:

 

a) said “you can deny it all you like but when you leave here you know you were up for it” or words to that effect, and:

 

b) responded to Colleague A’s expressed disapproval of your remark that she was sexy by saying “fine then you make me horny”, or words to that effect.

 

4. On or around 20 May 2014, said to Colleague A “I’m on my knees why don’t you come join me”, or words to that effect, when she had requested a mentor comment from you for her portfolio.

 

5. Between 1 May 2014 and 23 May 2014 or thereabouts, you made

inappropriate physical contact with Colleague B in that you:

 

a) took her hand, and

 

b) wrote a telephone number on her hand.

 

6. Between 1 May 2014 and 23 May 2014 or thereabouts, you made

inappropriate verbal comments to Colleague B in that you said to her:

 

a) “come home with me” or words to that effect,

 

b) “you got me into trouble“ and “I slapped someone’s bum thinking it was you” or words to that effect,

 

c) “you smell nice” or words to that effect,

 

d) “why did I give you my number if you’re not going to do anything with it” or words to that effect, and

 

e) “sorry, I’m not into doing a threesome” and/or “who is better, me or your boyfriend?” or words to that effect when Colleague B informed you that she had a boyfriend.

 

7. Your actions in paragraphs 1 to 6 were sexually motivated.

 

8. Your actions in paragraphs 1 to 7 constitute misconduct.

 

9. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters:
Service of Notice
1. The notice of today’s hearing was sent to the Registrant at his address as it appeared in the register on 22 April 2016. The notice contained the date, time and venue of today’s hearing.
2. 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 address not less than 28 days before the date of the hearing starting.
3. 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
4. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submissions of Mr Ross on behalf of the HCPC.
5. Mr Ross 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 at the Investigating Committee stage and one could infer that he was aware of today’s proceedings. Mr Ross 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.
6. Mr Ross referred to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162. That case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba is clear that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”.
7. The Panel heard and accepted the advice of the Legal Assessor. The Legal Assessor reminded the Panel that the HCPC represents the public interest in relation to standards of health and social care. Registrants should not be permitted deliberately to frustrate the process and thereby incur additional costs and delay. However, as stated Sir Brian Leveson P in his judgment in Adegoba, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.
8. It is clear from the principles derived from case law that 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.
9. 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.
10. In reaching its decision the Panel took into account the following:
• The Registrant has not made an application to adjourn today’s hearing and the Panel is satisfied that the Registrant is aware that this case is scheduled for today;
• There is no reason to believe that the Registrant would attend were today’s hearing adjourned.
• There is a public interest that this hearing proceeds today. It has been listed for four days and witnesses have attended to give evidence.
11. 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. It determined that there would be no injustice to the Registrant by proceeding in his absence. 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.
Particular 1 (c) of the Allegation
12. Mr Ross told the Panel that he was offering no evidence in relation to particular 1 (c) of the Allegation.
Application to admit hearsay evidence
13. Mr Ross applied for the statement of Colleague C to be admitted into evidence as hearsay. He produced correspondence which demonstrated that Colleague C was currently out of the country but would return on 24 August 2016. There was no evidence that she was unwilling to appear as a witness in support of her witness statement on a date thereafter. He stated that the HCPC had decided however not to apply for an adjournment to enable Colleague C to attend to give evidence but was instead content to make this application for her witness statement to be admitted as hearsay.
14. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that the Civil Evidence Rules governed the admissibility of evidence in these proceedings. Therefore, a piece of evidence should not be excluded solely on the ground that it is hearsay. He advised the Panel that it must still consider whether each document subject to this application was relevant to the issues. He further advised that if it considered a document was relevant to such issues, the Panel should then go on to consider whether or not it was fair that such a document be admitted
15. The Legal Assessor drew the Panel’s attention to the following cases:
a) Bonhoeffer v GMC [2011] EWHC 1585 (Admin);
b) Thorneycroft v NMC [2014] EWHC 1565 (Admin); and
c) NMC v Ogbonna (2010) EWCA Civ 1216.
16. The Legal Assessor advised that the relevant principles articulated by the above cases are as follows:
a) The more serious the allegations, the more astute the Panel should be to ensure fairness.
b) The decision to admit hearsay evidence is not to be regarded as a routine matter. The Panel must specifically consider the issue of ‘fairness’ before admitting the evidence.
c) Considerations of what weight can be attributed to the evidence once it has been admitted is not relevant to the question of whether it would be fair for the evidence to be admitted in the first place.
17. The Panel accepted the Legal Assessor’s advice.
18. The Panel noted that the contents of the witness statement of Colleague C were not corroborated by any other evidence before the Panel and that in the absence of Colleague C’s appearance at the hearing there would be no opportunity for her evidence to be tested. Having applied the principles set out in the cases referred to by the Legal Assessor, the Panel decided it would be unfair to the Registrant to allow Colleague C’s evidence as hearsay. The Panel therefore refused the application.
Background:
19. The Registrant worked at the Royal London Hospital (“the Hospital”) as an agency Operating Department Practitioner (“ODP”). He was employed through Mayday Agency. The Registrant had been working at the Hospital for approximately two years when these allegations were made against him.
20. Whilst on a placement with the Hospital, a student nurse (Colleague B) was asked what she thought about the Registrant and she disclosed that he had made inappropriate comments to her, and had made unwanted physical contact with her. The other student nurses were then questioned about their own experiences with the Registrant. A number of the students made disclosures which were similar in nature to those of Colleague B. A total of four student nurses then submitted formal written statements about the Registrant’s conduct, alleging both inappropriate touching and contact as well as inappropriate comments and unprofessional behaviour.
21. The matters were referred to the HCPC.
The Registrant’s Position
22. The Panel had regard to the last known communication from the Registrant, namely his submissions to the Investigating Committee Panel.
23. With regard to factual particulars 2, 3, 4 and 6 he states that he “did not make sexual advances to any nursing student or … any inappropriate contact and have always made the students feel welcomed and at ease”. He also stated that he “did not invite any of the student nurse (sic) via sexually suggestive comments to have any relationship verbal of physical outside the work place as [he is] aware that would constitute misconduct when taking place at work”.
24. With regard to particular 5, the Registrant wrote that he did not “recall doing it but if it happened, it could only be a hospital ward or any other professional number”.
25. He stated that he did not “comprehend the reasons behind the student nurses to have colluded towards building an allegation against [him]”.
The Oral Evidence
26. The Panel heard oral evidence from the following witnesses:
a) Witness 1 – Senior Nurse for Surgery at Barts Health NHS Trust (“the Trust”).
b) Colleague A, who was on placement at the hospital from 12 May 2014 for a period of three weeks as part of a placement requirement of her post graduate course.
c) Colleague B, who was on placement at the Hospital between 1 May 2014 and 24 May 2014 as part of a placement requirement on the degree she was undertaking in Child Nursing.
Witness 1
27. Witness 1 told the Panel that the Registrant worked in Paediatric Theatres while he was at the Hospital. She told the Panel that she had never met the Registrant and that she was the Investigating Officer appointed to investigate these matters. She told the Panel that she had conducted a number of investigations in the past and was therefore experienced and knowledgeable about the role of an Investigating Officer.
28. She then gave details of the investigation she carried out into these matters, including her methodology. She told the Panel that the evidence came from the complaint statements of the students concerned, and the interviews she carried out with them and others.
Colleague A
29. Colleague A told the Panel how she encountered the Registrant on most days during the time of the placement at the hospital. She told the Panel that she directly worked with him either two or three times during the second week of the placement when she was in the anaesthetic rooms.
30. She described the Registrant as a loud character who was generally very friendly. She told the Panel that on 19 May 2014 she was working with the Registrant in the anaesthetic room, when he suddenly approached her and slapped her on the bottom. She told the Panel that if he had made any comment prior to doing so she would have walked away or changed position in order to prohibit him from doing so.
31. Colleague A told the Panel that she was shocked by his conduct and told him not to do that again.
32. After several hours the Registrant again approached and hugged her from the side and attempted to move his hand towards her bottom. She said that this occurred in the corner outside the anaesthetic room whilst they were talking about work and other commitments they had for that day. As soon as the Registrant put his arm around her he started to move his hand towards her bottom but she did not believe he actually got as far as touching her bottom. Witness said that the manner in which the Registrant moved his hand down her back made it very clear what he was attempting to do.
33. Colleague A told the Panel that it was unwanted, not nice, and she did not feel comfortable with it. She pushed the Registrant away and once again told him that he should not be doing that and not to do it again. The Registrant tried to laugh it off.
34. Colleague A told that Panel that after several hours, once again the Registrant made unwarranted and unwanted physical contact with her by placing his hand on her inner thigh. This time the contact occurred whilst they were walking down a corridor. The Registrant, without warning or comment, lent forward and touched her more than halfway up her inner thigh. She told the Panel that the contact was horrible and she either slapped or pushed his hand away. She immediately remonstrated with the Registrant and he apologised.
35. Colleague A also told the Panel of the inappropriate comments the Registrant made to her on or around that time. She remembers when she told the Registrant that she had a boyfriend, the Registrant said words to the effect of “you can deny it all you like but when you leave here you know you were up for it”. Witness 1 accepted that she laughed off that comment.
36. Colleague A told the Panel that around that day, towards the end of her shift one afternoon, she was outside the anaesthetic room with the Registrant when he told her that he found her sexy. He then went on to say “fine then you make me horny”.
37. With regard to the incident on or around 24 May 2014, she told the Panel that she was looking for the Registrant and when she found him, he was in the anaesthetic room and was on the floor sorting something out on one of the beds. The Registrant then said to her, “I’m on my knees why don’t you come and join me” or words to that effect. She told the Panel that she did not feel uncomfortable with this comment as she did not think there was any sexual connotation to it.

Colleague B
38. Colleague B gave evidence on oath. She told the Panel that at the time of the incident, she was on a placement at the Royal London Hospital as part of the Child Nursing Degree that she was undertaking.
39. Colleague B told the Panel that during the course of her placement she never worked in the theatres with the Registrant, but often saw the Registrant during lunch breaks in the staff room. This was because several theatre teams shared the staff room. She remembers that the Registrant was flirtatious with many female members of staff and students and that he would make numerous inappropriate jokes.
40. She told the Panel that the first time the Registrant did anything that she felt inappropriate was when he took her hand and wrote his telephone number on it. She remembers that in doing so, he told her to call him. She told the Panel that she felt uncomfortable with his actions and that she washed her hands immediately after.
41. Colleague B told the Panel that the next day or a few days after, the Registrant said to her, “you got me into trouble” and “I slapped someone’s bum thinking it was you”. She told the Panel that the Registrant was laughing as he said it, and that she was thinking how relieved she was that he had not touched her bottom. She felt very uncomfortable at that comment and she believed it was the Registrant’s way of gauging what her reaction would be if he did slap her bottom. She did not make any formal complaint as she was a student nurse at that time who was only on placement for a short period of time, and as a result she did not know where she stood or what she should do if she had concerns.
42. Colleague B referred to the email dated 30 May 2014 wherein she had written an account of the incidents with Registrant. That email was written within days of the incidents when they were still fresh in her mind. She said that the incidents had affected her and she had ‘turned them over’ in her mind. As such she was clear that the email presented an accurate recollection of events. She told the Panel that on the first occasion when he wrote his number on her hand, he also said “Come home with me”, as she had stated in that email.
43. Colleague B told the Panel the next incident occurred when she was in theatre observing a surgical procedure. The Registrant was present and he came up close to her and made grunting noises which were, in her opinion, clearly intended to be sexual, to her in her ear. There was no doubt in her mind that the Registrant intended the noises to be sexual in nature. He then told her that she smelt nice and asked her what the point was in giving her his number if she wasn’t going to do anything with it. Colleague B immediately told the Registrant that she had a boyfriend to which he responded, “sorry, I’m not into doing a threesome”.
44. Colleague B told the Panel that she felt uneasy being around the Registrant and that after that she tried to avoid contact with him as much as possible.
Decision on Facts:
45. In coming to its decision on the factual particulars, the Panel had regard to the oral and documentary evidence in this case.
46. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that the burden of proving the facts was on the Council and the standard of proof was the balance of probabilities. The Panel found all three witnesses to be believable, credible, and honest. Their evidence was clear and credible. There was no evidence of any collusion on their part, nor was there any reason for collusion on their part.
Particular 1
47. The Panel found this particular not proved in its entirety. There is no evidence to support this particular and Mr Ross accepted that to be the case once the statement of Colleague C was ruled inadmissible.
Particulars 2, 3, and 4
48. The Panel found these three Particulars proved in their entirety. Whilst the Panel considered each particular in turn, the evidence for each of them relies solely on the evidence of Colleague A. The evidence of Colleague A was clear and unequivocal about what occurred. As the Panel indicated above, it found Colleague A to be credible and honest. There is no evidence that contradicts her evidence in any way and the Panel finds these Particulars 2, 3 and 4 proved.
Particular 5 and 6
49. Like the above particulars, whilst the Panel considered each particular in turn, the evidence for these Particulars relies solely on the evidence of one witness, namely Colleague B.  The Panel found Colleague B to be particularly credible and honest. She had made a note of the incidents a few days after they occurred and she accepted that she had left some details out of her statement, as she did not recall them when making her statement. Her account in her statement is consistent with her note contained in the abovementioned email. There is no evidence to suggest that she is fabricating her account of what happened. Therefore the Panel finds Particulars 5 and 6 proved.
Particular 7
50. Having found the abovementioned particulars proved, the Panel went on to consider whether the Registrant’s actions were sexually motivated. The Panel determined that all the above particulars apart from particular 4 were sexually motivated. The circumstances of Particulars 2, 3, 5, and 6 are such that words used indicated a sexual motive, the intention to be conveyed behind those were sexual in nature, and the recipients perceived them to be sexual in nature.
51. In relation to particular 4, Colleague A was clear that the circumstances in which they were said indicated that no sexual message or intention were conveyed in what was said, and that she thought they were not said with any sexual motivation. There is no evidence to show otherwise.
Decision on Grounds:
52. Mr Ross submitted that all the particulars alleged in the allegation amounted to the statutory ground of misconduct.
53. Mr Ross referred the Panel to the case of Roylance v General Medical Council [1999] UKPC 16, in particular to the judgement of Lord Clyde who described misconduct as “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.”
54. Mr Ross also referred to the case of Remedy UK Ltd v GMC [2010] EWHC 1245 (Admin) and submitted that the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics (2008 edition): 3, 7 and 13.
55. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:
a) Calhaem v GMC [2007] EWHC 2606 (Admin)
b) Roylance v GMC (2000) 1 AC 311
56. The Panel reminded itself that there is a two stage process in relation to a finding of impairment by reason of misconduct. The Panel recognised that it must first consider whether, on the facts found proved, the Registrant’s behaviour constituted misconduct, and secondly, if applicable, whether his fitness to practise is currently impaired by reason of that misconduct.
57. As stated above, the Panel exercised its own judgement in determining the issue before it. In considering the Registrant’s fitness to practice, the Panel reminded itself of its duty to protect patients and its wider duty to protect the public interest which includes the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process.
58. The panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:
• 3 - You must keep high standards of personal conduct.
• 7 - You must communicate properly and effectively with service users and other practitioners
• 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you and your profession.
59. The Panel also determined that the Registrant had breached the following paragraphs of the HCPC’s standards of proficiency for Operating Department Practitioners:
Registrant Operating Department Practitioners must:
• 1a.8 understand the obligation to maintain fitness to practice
- understand the need to maintain high standards of personal conduct
• 1b.1 be able to work, where appropriate, in partnership with other professionals, support staff, services users and their relatives and carers
- understand the need to build and sustain professional relationships a both an independent practitioner and collaboratively as a member of a team
60. The Panel reminded itself of the advice of the Legal Assessor. He had reminded the Panel that misconduct is “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances”. His advice was that Misconduct is a term of art in these proceedings and that it meant ‘serious misconduct’. He stressed that Misconduct is qualified by the word “serious”. It is not any professional misconduct which will qualify.
61. The Panel reminded itself that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.
62. The Panel noted that the Registrant’s conduct was unwanted, persistent and unwarranted towards more than one student nurse. He was in a position of seniority, in relation to them, in the workplace and he knew they would only be on their placements for short periods of time. Given this context, the student nurses were vulnerable and he took advantage of their vulnerability.
63. The Panel considered that the facts found proved were serious enough so as to amount to Misconduct for the purposes of these proceedings. The context in which Registrant’s words and actions were made and done, the sexual motivation behind them, and the impact upon the student nurses involved means that this matter clearly amount to serious misconduct.
Decision on Impairment:
64. The Panel then went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct.
65. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions of Mr Ross on behalf of the HCPC.
66. Mr Ross submitted that the Registrant has not attended nor has he given any evidence as to the actions he has taken since these incidents. As such, the Panel cannot be satisfied that the Registrant’s misconduct has been remedied, and in the absence of any evidence of remediation, there was a high risk that his misconduct would be repeated.
67. Mr Ross submitted that the serious nature of the matters are such that public confidence in the profession and in the regulatory process would be undermined if a finding of impairment were not found.
68. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that there was no burden of proof nor was there a standard of proof in relation to determining whether the Registrant’s fitness to practise was impaired by reason of his misconduct.
69. The Legal Assessor also advised the Panel that as this was a case of misconduct as opposed to lack of competence, the Panel might consider insight of primary importance when considering whether any misconduct amounts to impairment. He advised the Panel that it may wish to take into account matters such as the following:
• What insight, if any, has been demonstrated by the Registrant into his behaviour;
• Whether the misconduct has been or is easily remedied;
• The likelihood of repetition of the misconduct;
• Whether or not it arises from a single episode;
• The seriousness of the misconduct;
70. The Panel took into account the approach formulated by Dame Janet Smith in her 5th report of the Shipman inquiry, and which was cited with approval in the case of CHRE v NMC & Grant, as follows, by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put patient or patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Operating Department Practitioner profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the Operating Department Practitioner profession”
71. The Panel notes that the Registrant has not submitted any evidence as to any insight that he has into the nature of his behaviour, the impact of such behaviour upon others, and the inappropriateness of such behaviour.
72. In the light of the lack of any evidence of insight on the part of the Registrant, the Panel concluded that there was a very real risk of repetition of the Registrant’s misconduct and therefore there was a risk that the Registrant:
a) is liable in the future to bring the Operating Department Practitioner profession into disrepute; and
b) is liable in the future to breach one of the fundamental tenets of the Operating Department Practitioner profession?
73. The Panel also considered the sexual nature of the misconduct is such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made.
74. Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct.
Submissions on Sanction:
75. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction should be imposed, if any. It heard the submissions of Mr Ross on behalf of the HCPC.
76. Mr Ross indicated that the Council was not seeking any particular sanction. He reminded the Panel of the approach that it should take and that it should have regard to the Indicative Sanctions Policy, in particular paragraphs 41 and 42. He submitted that the following were aggravating features of this case:
a) The Registrant’s disengagement from the process;
b) The Registrant’s conduct was unwanted and unwarranted towards student nurses;
c) It was a breach of trust in that the Registrant was in a position of power over the student nurses;
d) The Registrant targeted student nurses who were on placement and were only there for a short period of time;
e) The impact upon those student nurses;
f) The absence of any insight on the part of the Registrant
g) In his letter to the Investigation Committee, the Registrant made an allegation that the witness had colluded and lied about events. This amounted to an accusation of dishonesty on the part of the witnesses.
Legal Advice
77. The Panel accepted the advice of the Legal Assessor. He advised the Panel that the full range of sanctions is available to the Panel. The Panel’s attention was drawn to the HCPC’s Indicative Sanctions Policy. He advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.
78. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. He reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. The purpose of a sanction is to protect members of the public and the wider public interest. The Legal Assessor advised that the Panel should consider the least restrictive sanction first and move up the scale of severity only if that sanction is inappropriate. He also reminded the Panel it must apply the principles of fairness and proportionality, weighing the Registrant’s interest against the public interest. 
Decision on Sanction:
79. The Panel has had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. The Panel noted the testimonials provided by the Registrant. However, the Panel determined that no weight could be placed on them for the following reasons:
a) Only one of the four references are signed;
b) They are out of date, the earliest being dated 14 August 2011 and the latest being dated May 2014;
c) None of them give any indication that they are made with knowledge of these proceedings;
d) All of them deal with the Registrant’s ability and competency to carry out his role as an Operating Department Practitioner, which are not in issue in this case.
80. The Panel considered the aggravating factors in this case to be:
a) The Registrant has not demonstrated any insight or remorse.
b) The Registrant engaged in a pattern of behaviour which was predatory, pestering and persistent, targeting junior members of staff, namely students.
c) The Registrant was in a position of trust and his misconduct was a serious breach of trust. The Registrant was in a position of power when compared to student nurses who were on placement.
d) The Registrant has transgressed professional boundaries.
e) The Registrant has not taken any responsibility for his actions and has made baseless accusations of dishonesty against those he victimised.
81. The Panel could not find there to be any mitigating features in this case.
82. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.
83. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct, this would be wholly inappropriate.
84. The Panel then considered whether to make a caution order. The Panel was mindful of its finding that the Registrant was likely to repeat his misconduct. It bore in mind that a caution order would not restrict his right to practise. In these circumstances, the Panel concluded that a caution order would not be sufficient to protect the public from the risk posed by the Registrant or, in any event, to satisfy the wider public interest.
85. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant lacked insight into his misconduct, into the nature of his behaviour, the impact of such behaviour upon others, and the inappropriateness of such behaviour. This was not a case where the Registrant’s clinical skills are in question. There are no identifiable areas of his practice which might benefit from re-training.
86. Taking into account all of the above, the Panel concluded that conditions could not be formulated which would adequately address the risk posed by the Registrant, and in doing so protect patients, colleagues and the public during the period they are in force.
87. The Panel went on to consider whether a period of suspension would be appropriate in this case. A period of suspension would be appropriate if the Registrant had demonstrated insight into his misconduct such that there was not a significant risk of repetition, and also if there was no evidence of deep seated-personality or attitudinal problems.
88. Unfortunately, that is not the case here. The Registrant has disengaged from the process, and has not provided any evidence of insight or remorse. The Panel has determined that there is a significant risk of repetition of his misconduct. Furthermore, the Registrant’s misconduct, and his actions, demonstrated evidence of deep-seated attitudinal problems on the part of the Registrant.
89. In that light, the Panel determined that even the maximum period of suspension would not serve to protect the public in the long term and in addition, protect the wider public interest.
90. Therefore, the Panel is satisfied that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a Striking-Off Order.

Order

Order:
That the Registrar is directed to strike the name of Mr Laval Robert Antoine from the Operating Department Practitioner part of the Register.

Notes

Right of Appeal
You may appeal to the High Court in England and Wales against the decision of the Panel and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European alert mechanism
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States the your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Suspension Order:
Having heard submissions from Mr Ross, on behalf of the HCPC and having taken advice from the Legal Assessor, the Panel makes an Interim Suspension Order, for a period of eighteen months under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Laval Robert Antoine

Date Panel Hearing type Outcomes / Status
18/07/2016 Conduct and Competence Committee Final Hearing Struck off