Mr Shaun Gilbert

Profession: Operating department practitioner

Registration Number: ODP16605

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 27/07/2016 End: 16:00 29/07/2016

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

During the course of your employment as an Operating Department

Practitioner for Care UK:

 

1. On or around 23 January 2015 you:

 

a) administered to Patient A a 20mg bolus of tramadol, which was a higher bolus dosage than had been prescribed;

 

b) administered to Patient B more tramadol than had been prescribed;

 

c) did not report the incidents referred to in paragraphs 1a) and 1b) to a manager.

 

2. You used inappropriate and/or offensive language in that:

 

a) On or around 2 December 2014, you said or mouthed the words “**** off”, or words to that effect, in response to a reasonable management request;

 

b) On or around 28 November 2014, you said to your line manager “I don’t ******* know, it’s starting to **** me off and stress me out” or words to that effect;

 

c) On or around 19 November 2014, you said to your line manager “you’re all taking the ******** ****” or words to that effect.

 

3. The matters as described in paragraphs 1a) - 1c) constitute misconduct and/or lack of competence.

 

4. The matters as described in paragraphs 2a) - 2c) constitute misconduct.

 

5. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

 

Background

1.     The Registrant commenced employment with Care UK as a Theatre Recovery Operating Department Practitioner (ODP) at St Mary’s NHS Treatment Centre. He was responsible for patients entering the recovery area of theatre following anaesthesia. The allegations relate to the Registrant’s conduct and/or performance whilst working as an ODP.

 

2.     The Registrant provided written representations for the Panel. He accepted that the administration errors had occurred but he submitted that they were minor. He maintained that he had told his Line Manager about the error within 30 minutes and that he had also told the Anaesthetist. He strongly denied the allegation that he had sworn on the three occasions.

 

The Hearing

 

3.     Miss Johnson opened and summarised the HCPC case and she referred to the evidence in support of the allegations.

 

4.     The Panel heard evidence from the following witnesses for the HCPC: AK (Investigating Officer), TH (CW’s Line Manager), KJ (Investigating Officer) and CW (Line Manager).

 

5.     The Panel, and where necessary the Legal Assessor, addressed the issues raised by the Registrant in his written representations with the witnesses so that their responses on those points were available for consideration.

 

6.     At the close of the HCPC case, the Panel acknowledged the Registrant’s written representations and noted his case on the issues.

 

7.     The Panel then heard the closing submissions on behalf of the HCPC and received advice from the Legal Assessor.

 

Decision on Facts

8.     The Panel was aware that the burden of proving the facts was on the HCPC, that the Registrant did not have to prove anything and that the case is only to be found proved if the Panel was satisfied on a balance of probabilities.

 

9.     The Registrant’s partial-admissions and/or absence did not alter the burden or standard of proof.

 

10.   The Panel took account of all the oral and written evidence, the documents in the case including the Registrant’s written representations and the submissions.

 

11.   The Panel accepted the evidence of all the HCPC witnesses as being honest, credible, balanced and persuasive. The Panel found them to be reliable witnesses.  

 

12.   Both Investigators, AK and KJ, had conducted proportionate investigations and produced relevant documentary evidence including the prescriptions and Observation Charts for both Patients A and B. There were statements from other members of staff who had been interviewed as part of the investigations. Neither Investigator knew the Registrant and they had been selected for their impartiality. The Panel found them to be balanced, fair and objective.

 

13.   TH produced a report relating to the drug errors including a copy of the General Surgery list for 23 January 2015. She also produced a copy of the letter from the ODP student who had drawn attention to the drugs error. In the panel’s view TH had been balanced, fair and objective. TH did not directly work with the Registrant but line managed CW.

 

14.   CW gave clear and compelling evidence about the Registrant’s use of swear words on two occasions when it had been alleged that he had sworn at her. She gave a plausible context to each incident and she fairly described the prevailing circumstances for the Registrant that may provide a health based context for that which had occurred. She also highlighted some positives about the Registrant’s interaction with patients, saying that at times he could “be lovely” but also pointing out that he could be unpredictable with mood swings. In the Panel’s view this witness was at pains to ensure that she was clear, fair and honest. There was no evidence of any hostility, bullying or harassment towards the Registrant from this witness or from her perspective as his line manager. She also gave clear and compelling evidence that the Registrant had not informed her of the drug errors.

 

15.   The Panel took into account the inherent limitation associated with hearsay evidence from those who had provided statements but who had not given evidence. This included the Anaesthetist who was on duty on 23 January 2015. In the Panel’s view this evidence was not necessary to prove the allegation that the Registrant did not report the drugs errors to a manager. The evidence from the Anaesthetist was only relevant to the question of whether or not the Registrant had informed him of the drugs error as part of the Registrant’s case on this issue. The Panel concluded that it could place sufficient reliance on the hearsay evidence from the Anaesthetist as it was not the sole or decisive evidence and related to a secondary issue.

 

16.   The Panel felt unable to place sufficient reliance on the hearsay evidence from the two witnesses who were present in theatre on 2 December 2014 in respect of the use of, or mouthing of swear words by the Registrant towards CW when she had left theatre. The evidence was inconclusive, the witnesses were inconsistent with each other, there was no opportunity to reconcile the inconsistency or to clarify the evidence and there was no corroboratory evidence from the patient or surgeon who were also present.

 

17.   The Panel noted the Registrant’s admissions in relation to the drug errors but otherwise found the Registrant’s submissions largely concentrated on a wide ranging criticism of his former colleagues, managers and employer. He devoted a considerable amount of his 46 page representation to the conduct of others. The Panel found no evidence to support the Registrant’s case that the HCPC witnesses had lied, that there was bullying or that he had been placed under undue pressure causing him to make mistakes.

 

18.   Accordingly, apart from Particular 2(a), the facts were proven on the strength of the HCPC evidence.

19.   Particular 1(a) and (b) were proved. The Registrant admitted that he had administered more than the prescribed doses of Tramadol to both patients. The Panel felt able to rely on the admission which was unequivocal and consistent with the evidence. The HCPC evidence included copies of the prescriptions and observation charts for the patients.

 

20.   Patient A had been prescribed a 10mg bolus of Tramadol to a maximum of 50mg. The Registrant administered 20mg bolus. This meant that a higher dosage than that which had been prescribed was administered, namely a double dose. There was evidence from the Anaesthetist that the administration was within the limits of a 50mg maximum.

 

21.   Patient B had been prescribed Tramadol in doses of 10mg to a maximum of 50mg. The Registrant administered 20mg doses on five occasions over 25 minutes making a total of 100 mg, this was more Tramadol than had been prescribed being double the maximum.

 

22.   Particular 1(c) was proved. CW was the line manager to whom the error should have been reported. She was clear that the Registrant did not inform her of the drugs error. This evidence was particularly compelling because CW set out a number of steps that would have been taken if she had been made aware of the error including the need, as a new Line Manager, to seek out assistance from TH for guidance as to how to deal with the issue. There was evidence that this did not occur. The issue first came to CW’s attention from others on 30 January 2015, which was a week after the event. CW then made further inquiries into the circumstances by speaking to the student who was present at the time. None of the other managers had been informed of the error by the Registrant.

23.   The Panel did not accept the Registrant’s case in his written representations that he had informed CW approximately 30 minutes after the error had occurred. The Registrant’s case on this issue was inconsistent. When he was interviewed on 12 February 2015 he admitted that he had not informed his Line Manager that the error had occurred. The Panel found it unlikely that the Registrant did inform his Line Manager and his credibility was undermined by the clear evidence to the contrary.

24.   By way of context, the Panel considered whether or not the Registrant had informed the Anaesthetist that the error had occurred. The Panel felt unable to rely on the Registrant’s evidence that he had done so in light of his credibility being undermined. In any event, there was sufficient evidence from the Anaesthetist in which he made it clear that he had no recollection of being told about the error. It was compelling that the Anaesthetist made it clear that if he had been informed of the error then certain steps would have been necessary, which had not occurred, such as re-issuing the prescription. The Panel found it unlikely that the Registrant informed the Anaesthetist as claimed.

 

25.   Particular 2(a) was not proved. The evidence was hearsay in nature from the two witnesses who either heard or saw the Registrant using swear words in the direction of his Line Manager on 2 December 2014 when she had left theatre. Their evidence was not the sole evidence bearing in mind the context of alleged swearing on two previous occasions but it was decisive. With this in mind the Panel felt unable to place sufficient reliance on this hearsay evidence. It was inconsistent with one witness suggesting that the Registrant had actually used swear words with the other suggesting that he had mouthed them. This was capable of being clarified if the witnesses had given evidence but they were not called to do so. There was no corroboration. The Registrant had made strong representations that the patient and surgeon, who were present, should be interviewed. There was no evidence from either. CW had already left theatre. The Panel thus felt that the hearsay evidence, even in the context of the swearing in the recent past, was insufficient for this Particular to be proved.

 

26.   Particulars 2(b) and (c) were proved. The Panel was satisfied that use of words such as “I don’t fucking know”, “it is starting to piss me off” and “you are all taking the fucking piss” all amounted to inappropriate and offensive language. The swear words had been used by the Registrant towards CW. CW was clear that the Registrant had done this. CW suggested that the Registrant should see the Occupational Health Service and the Registrant became agitated and aggressive. He went on to use the swear words alleged in that situation. The Panel accepted CW’s evidence as clear, honest and credible on this. The circumstances and history made it plausible and likely that the Registrant behaved as alleged. The Panel noted that he later apologised for his conduct. The Panel did not accept the Registrant’s generalised denial based on lies being told, bullying or harassment. There was no evidence to support the Registrant’s case in this respect.

27.   On 28 November 2014 CW had asked the registrant if he had completed some audit work that he had volunteered to undertake. The Panel accepted CW’s evidence that the Registrant became angry and reacted by swearing at her. In addition CW’s evidence was corroborated by the evidence of another colleague who had witnessed the incident and wrote a letter of complaint about the Registrant’s behaviour. Again in this instance the Registrant apologised for his conduct. The Panel did not accept the Registrant’s denial nor did it accept his case that he had been put under pressure to carry out work. CW was clear that the Registrant was experienced at carrying out audit work and that she had taken up his offer of assistance with the audit work.

 

Decision on Grounds

 

28.   In the Panel’s assessment the administration errors and the lack of notification to a manager did not arise from a lack of competence. The Registrant was an experienced ODP having been in post for around five years before these incidents occurred, he would have undoubtedly carried out countless such administrations and thus knew how to do so correctly. He had also been an interim manager and was well aware of the need to report any errors. Indeed, in his interview, he was able to point this out even before the Policy documentation was drawn to his attention. The Panel did not have before it a fair or representative sample of the Registrant’s work to conclude that he lacked competence.

 

29.   The Panel took into account the guidance from Roylance v General Medical Council [2001] AC 311. The Panel is satisfied that all the proven Particulars amount to misconduct. The Registrant’s actions fell far below those that can be expected of a registered Operating Department Practitioner. There were departures from fundamental tenets of the profession including the need to act in the best interests of Service Users and the need to communicate properly and effectively with colleagues.

 

30.   The Registrant’s role required him to correctly administer the prescribed doses. He was not authorised to change the dose nor was he authorised to give more than that which had been prescribed. He administered twice the prescribed dose in respect of Patient B. This represents a serious departure from that which can be accepted as proper. The Registrant went beyond the scope of his practice. He was not entitled to increase the doses. If he felt that the patients required a higher dose then he was obliged to seek authority to do so from the prescriber.

 

 

31.   The error was compounded by the serious failure by the Registrant to report the errors to a manager. The very purpose of such a process is to ensure that when errors occur the patients’ safety is prioritised and lessons are learned from mistakes.  

 

32.   In the Panel’s view the Registrant put the two patients at risk of harm by increasing the doses and exceeding the maximum by failing to administer the Tramadol in accordance with the prescriptions. He also put them at risk of harm by failing to report matters to a manager as the patients were denied the safeguards that would have been invoked such as a review of their condition and an assessment of the impact of receiving doses or amounts which went beyond what had been prescribed.

 

33.   In the Panel’s view the Registrant’s conduct towards his manager also amounted to misconduct. It was unacceptable for him to use such offensive language towards a colleague. The conduct was repeated. The Registrant knew his behaviour was unacceptable because he apologised for it on both occasions. It also caused another colleague who had heard the swearing to be so outraged that she complained about the behaviour to management. The Registrant was obliged to communicate properly and effectively and he failed to do so.

 

34.   In the Panel’s view the totality of the conduct fell far below what can be accepted as proper.

 

35.   The Registrant breached the following HCPC Standards of Conduct Performance and Ethics:

 

Standard 1 – The Registrant failed to act in the best interests of Service Users.

Standard 7– The Registrant failed to communicate effectively.

 

36.   In all the circumstances the Panel’s assessment was that the proved facts amounted to misconduct

 

Decision on Impairment

 

37.   The Panel has taken into account that the purpose of these proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

 

38.   The Panel took into account the HCPC Practice Note on Finding that Fitness to Practise is “Impaired”. The Panel took account of the guidance in General Medical Council v Meadow [2006] EDCA Civ 1319 and Cohen v General Medical Council [2008] EWHC 581 (Admin).

 

39.   The Panel took into account the documents submitted by the Registrant. The Registrant’s decision not to attend this hearing or to provide more detailed evidence has meant that the Panel only has his limited reflections to consider.

 

40.   In the Panel’s assessment the Registrant’s current fitness to practise is impaired.

 

41.   The established misconduct is serious involving the incorrect administration by the Registrant of Tramadol to two patients which was a serious error. Patient A received twice the dose and Patient B received twice the maximum dose which could have put both patients at risk of serious harm.

 

 

42.   The error only came to light in the first instance because it was detected by the ODP student being mentored by the Registrant who drew it to his attention. It is fundamental to patient safety to ensure that the correct treatment takes place in accordance with prescriptions.

 

43.   The Registrant told the ODP student how important it was to report such matters and left her with the impression that he would report the error thus making it clear that he knew what was required of him. This failure is regarded by the Panel as being intentional. The ODP student was under the impression that the Registrant would report matters. However, his failure to report the error only came to light when the student returned to work at a later stage and enquired what had happened.

 

44.   The Panel regarded the Registrant’s behaviour and language towards his Line Manager as intimidatory, unprofessional and that it served to undermine the effectiveness of the multi-disciplinary team which had the potential of impacting on patient care. This behaviour was repeated despite an apology.

 

45.   In terms of insight, the Registrant has offered no explanation as to how the drugs errors occurred. He was working in normal circumstances with the correct level of staffing. Until the Registrant has identified why such errors occurred, he cannot start the process of reflecting on how such errors can be avoided in the future. He has failed to take full responsibility for his conduct. He said “I agree that this was still over the prescribed amount and I accept responsibility for this to some degree”. He also said that he believed that a mountain had been made out of a molehill. The Panel disagree with his assessment and regard the errors and his response as serious. The Panel noted that in June 2014 Tramadol became subject to stricter controls following a review carried out by the Advisory Council on the Misuse of Drugs.

 

 

46.   The Registrant had denied using inappropriate or offensive language towards his Line Manager. This has been proved against him. Accordingly, the Registrant has not shown that he has taken responsibility, reflected or taken any steps to remedy this issue.

 

47.   In the Panel’s view the Registrant has expressed no remorse for the experience of the Service Users or his Line Manager who were all affected by his conduct. His regret centres upon the impact on his career and reputation.   

 

48.   The misconduct is remediable but there is little evidence of any remediation in either case. His insight into the seriousness of the drugs errors is minimal and despite apologising for inappropriate and offensive  language he repeated it. The Registrant, in his letter to the HCPC of 15 July 2015, stated that “I regret fully some of the errors; I have now asked myself how to improve and to learn on my subsequent mistakes.” However he did not expand on this and went on, in the same document, to set out his response to the allegations against him and to describe a range of allegations against his former colleagues, stating that he was in the process of bringing formal complaints.  

 

 

49.   In all these circumstances, the Panel is not satisfied that the Registrant has remedied his misconduct.

 

50.   In considering the likelihood of recurrence the Panel was of the view that the absence of insight, remorse and evidence of effective remedy means that there is a high risk of this Registrant repeating the misconduct.

 

51.   Therefore in addressing the considerations termed as the personal component within the HCPC Practise Note, the Panel concluded that there is little insight, there has been no remediation and there is a risk of recurrence.

 

52.    In addressing the public component the Panel considered the misconduct was serious. There was a potential of serious harm to patients. The Registrant has damaged public confidence in him. The Registrant has also damaged the confidence that colleagues could have in him as part of a multi-disciplinary team.

 

53.   This Registrant has breached fundamental tenets of the profession to such a degree that his actions certainly negatively affect public confidence in the profession.

 

54.   In such circumstances it is important to make a finding that fitness to practice is currently impaired in order to protect patients, restore and maintain confidence in both the profession and regulatory process; to send a clear message to both the public and profession that such behaviour is not acceptable.

 

55.   In the Panel’s assessment critically important Public Policy issues are still engaged in this case.

 

56.   Accordingly, the HCPC’s case is well-founded.

 

 

 

 

Decision on Sanction

57.   In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor.

58.   The Panel took account of the submissions made by Miss Johnson who highlighted some of the aggravating and mitigating features. She reminded the Panel of the approach that should be taken and confirmed that the HCPC had a neutral stance at this stage of the proceedings.

59.   The Panel took account of the aggravating features, including:

(a)    The seriousness of the drugs error involved the administration of the wrong dose of drugs for two patients.

(b)    There was a risk of serious harm to the patients.

(c)    The Registrant did not report the error to managers despite telling the ODP student that he would do so.

(d)   The Registrant was in a position of seniority and should have been setting an example for the ODP student.

(e)    The use of offensive language occurred on two separate occasions.

(f)     The use of the offensive language towards the Line Manager was heard by another colleague.

(g)   This was a serious case with departures from fundamental Standards.

(h)   There is limited insight, there has been no remediation or remorse and there is a high risk of recurrence.

60.   The Panel took into account the mitigating features, including:

(a)    Some admissions were made.

(b)    The Registrant had apologised to his Line Manager after each of the incidents of using offensive language.

(c)    The Registrant hitherto had a blemish free regulatory record.

61.   The Panel decided that the seriousness of this case meant that taking no action was not an option and a Caution Order, even for the maximum duration, was inadequate. The lapses in this case were neither minor nor isolated. No remedial action had been taken by the Registrant. There is a significant lack of insight and the Panel has already found a high risk of repetition. A Caution Order would fail to protect the public.

62.   The Panel then carefully considered and excluded the imposition of a conditions of Practice Order. The Panel was of the view that such an Order was insufficient in light of the seriousness of the case. The Panel was of the view that the high risk of repetition meant that this Order would not adequately protect the public. The Registrant’s behaviour towards his Line Manager meant that such an Order would be unworkable. In addition, such an Order would not sufficiently address the public reassurance requirements or act as a deterrent for others.

63.   The Panel then went on to consider and excluded the imposition of a Suspension Order.

64.   The Panel had no confidence that the Registrant would take any steps to develop an insight into his failings. In the Panel’s view it was highly unlikely that he would take the necessary remedial steps to resolve these serious deficiencies which involved drug errors involving two patients who were put at risk of harm. The correct steps on an error occurring were not followed further putting patients safety at risk. The Registrant also used offensive language to his line manager on two separate occasions and offended a colleague who heard the language he used. The Registrant denied using offensive language and has maintained this to date. He is unlikely to alter his view and has made it clear that he will be making complaints about his former colleagues. The Registrant minimised the seriousness of the drugs error and there is nothing to indicate that he will alter this stance. There was nothing in the Registrant’s representations that gave any confidence that insight may develop or that remedial steps would be taken. The Panel concluded that a Review would thus be meaningless and the Indicative Sanctions Policy was clear that in such circumstances Striking Off Order would be more appropriate than a Suspension Order.

 

65.   In these circumstances the Panel took the view that a Striking Off Order was the more appropriate outcome to ensure the seriousness of the case was properly recognised and to ensure that the public are protected on a permanent basis. In addition a Striking Off Order will act as a sufficient deterrent for others who may contemplate departing from fundamental standards. Further, this Order will sufficiently reinforce the requirement to uphold and declare proper standards of behaviour when fundamental standards have been breached such as the need to act in the best interest of service users and to communicate effectively.

66.   This Order will maintain confidence in the profession and in the regulatory process as members of the public will know that these types of situations are taken seriously and suitable sanctions are imposed.

67.   The Panel took account of the Registrant’s right to continue in his chosen profession. These individual considerations were balanced against the need for public protection and reassurance in a case as serious as this and the Panel concluded that the public’s rights were dominant.

68.   The Panel was of the view that a Striking off Order in these circumstances was necessary and proportionate. The Panel recognised that this was the Order of last resort but felt that in the absence of confidence in a Review being meaningful it was the more appropriate Order to be imposed.

 

69.   In all the circumstances the Panel believes a Striking Off is a necessary and proportionate sanction.

 

70.   Having imposed a Striking Off Order the Panel anticipated the HCPC application for an Interim Order of Suspension. The Panel was satisfied that the Registrant had been notified that such an application may be made when notification of this hearing was given. The Panel was satisfied that an Interim Order is necessary in the circumstances of this case rather than it being an automatic consequence. The Panel made the Order on two of the statutory grounds, namely the need to protect the public and it being otherwise in the wider public interest. The absence of an Order would have left the public at risk pending the substantive order coming into force. In the Panel’s view this would have represented an unacceptable risk to public protection and would have also seriously undermined confidence in the profession and this regulatory process. Furthermore, in the event of an appeal, the public would be left at risk for an even longer period. The Panel adopts the reasons in the main decision as further justification for the imposition of an Interim Suspension Order.

Order

The Panel imposed to strike off the registrant from the register.

Notes

An interim order was imposed to cover the appeal period.

This was a Conduct and Competence Committee hearing held at the HCPC between 27 - 29 July 2016.

Hearing History

History of Hearings for Mr Shaun Gilbert

Date Panel Hearing type Outcomes / Status
27/07/2016 Conduct and Competence Committee Final Hearing Struck off