Mrs Sian Lindop

Profession: Operating department practitioner

Registration Number: ODP09885

Interim Order: Imposed on 22 Jul 2015

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 11/07/2016 End: 16:00 12/07/2016

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 by Spire Southampton Hospital, you:

 

1. On 24 April 2015, whilst on duty, attended your place of work smelling of alcohol.

 

2. On 27 April 2015, whilst on duty, attended your place of work;

(a) smelling of alcohol.

(b) under the Influence of alcohol.

(c) with a plastic bottle containing alcohol.

 

3. The matters set out in paragraphs 1 - 2 constitute misconduct.

 

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

Finding

Preliminary matters
Service
1. The Panel was satisfied on the documentary evidence provided, that the Registrant, Ms Sian Lindop, had been given proper notice of this hearing in accordance with the Rules. Notice of this hearing was sent by first class post to her address on the Register by letter dated 29 February 2016. The notice contained the relevant required particulars.

Proceeding in Absence

2. The Panel heard an application from Ms Hastie, on behalf of the HCPC, to proceed in the absence of the Registrant.

3. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in the absence of the Registrant was one that must be exercised with the utmost care and caution.

4. Having considered the circumstances the Panel determined to proceed in the absence of the Registrant. The reasons are as follows:

- Service of the appropriate notice of this hearing   has been properly effected.

- The Registrant has not been in contact with the HCPC at any stage of these proceedings. She did not make contact with the HCPC following service of  the notice (29 February 2016), nor once the hearing bundles were sent to her on 23 May 2016, nor following two emails sent to her by the HCPC on 16 and 21 June 2016. It follows that the Registrant has not requested an adjournment. The Panel is of the view that there would be no greater chance of the Registrant attending in the future were it to adjourn.
 
- There is a public interest in proceeding. The allegation dates back to April 2015. The Panel was aware that there were four witnesses who were in attendance to give evidence and was mindful of the impact on the witnesses if it did not proceed and that memories fade with the passage of time.

-  In all the circumstances the Panel was of the view that the Registrant knew or ought to have known of today’s hearing and she has voluntarily chosen not to attend, thereby waiving her right to attend.

Background
5. The Registrant is registered in the Operating Department Practitioner (ODP) part of the HCPC Register. She commenced employment at Spire Southampton Hospital (the Spire) as an ODP on 10 May 2004. In her role, the Registrant was a Team Leader within the Theatre Department and was responsible for the operation of the Theatre when she was on shift.

6. On 24 April 2015, Witness 2 was working as a Support Worker under training in Operating Theatre 3, assisting with an operation. Also present were the Surgeon and the Registrant. It is alleged by Witness 2 that the Registrant repeatedly left the theatre, and seemed particularly excitable and over exuberant, and was singing and jumping up and down in in Theatre. Witness 2 alleges that after the surgery, when she and the Registrant were together, she could smell alcohol on the Registrant’s breath when she spoke.

7. On 27 April 2015, Witness 3 was working as a Scrub Nurse in Theatre 2. He first saw the Registrant in the evening, when she was setting up the theatre and preparing the instruments for surgery. It is alleged by Witness 3 that the Registrant was hyperactive and behaving out of character and that she was “giggly and kept laughing”, which led him to believe that the Registrant was under the influence of alcohol. It is alleged that the Registrant hugged a member of the team who had scrubbed up in preparation for surgery, which de-sterilised them. She also allegedly hugged Witness 3 who had scrubbed up in preparation for surgery, which also de-sterilised him. It is further alleged that a water bottle which the Registrant had been using, contained alcohol.

8. Witness 1, the Deputy Matron at the Spire, was asked to conduct an investigation into the Registrant’s conduct on 24 and 27 April 2015. As part of her investigation, she conducted a number of investigatory interviews with members of staff on or around the 28 and 29 April 2015. She also conducted an investigatory interview with the Registrant on 8 May 2015. The Registrant denied the allegations that she had smelt of alcohol on those dates or that she had been under the influence of alcohol on 27 April 2015, or that the water bottle which she had with her on 27 April 2015 had contained alcohol. The Registrant stated in that interview that her bottle contained an “aquitiser” made from freshly squeezed grapes and lemons.

9. The matter was referred to the HCPC on 29 June 2015.

Decision on facts
10. On behalf of the HCPC, the Panel heard evidence from:

• Witness 1 – the Deputy Matron at the Spire, and registered with the NMC;
• Witness 2 – now a Theatre Assistant at the Spire;
• Witness 3 – now a Team Leader for General Surgery in the Theatre Department for the Spire, and registered with the NMC;
• Witness 4 – the Deputy Theatre Manager at the Spire, and Education and Governance Lead in the Theatre Department and registered with the NMC.

11. The Panel heard and accepted the advice of the legal assessor. The Panel understood that the burden of proving each individual fact rests on the HCPC and that the HCPC will only be able to prove a particular if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

12. The Panel found the evidence of all four of the HCPC witnesses to be credible fair, measured and balanced. Witness 1 had not known the Registrant before she conducted her investigation. Each of the other three witnesses had known and worked with the Registrant and all were very complimentary about her performance and capabilities as an ODP. It was apparent to the Panel that the witnesses who had worked closely with the Registrant found it difficult being required to give evidence against a colleague whom they had liked, trusted and admired.

13. The Registrant did not attend the hearing, but the Panel did not hold her non-attendance against her and scrutinised all of the evidence objectively.

Particular 1

14. The Panel found this particular proved.

15. The Panel was satisfied that the Registrant was on duty on 24 April 2015, and that she was working in Theatre 3 with the Surgeon (SP) and Witness 2, and that the Registrant’s role, included supervising Witness 2, who was  a Support Worker under training. Witness 2 gave evidence that the Registrant was required to remain in Theatre with her at all times during the procedure. However, she said that the Registrant repeatedly left the theatre to search for her water bottle leaving Witness 2 unsupervised.

16. Witness 2, in both her Witness statement dated 22 April 2016, and her oral evidence, described that she had smelt alcohol on the Registrant’s breath. In her written statement, she described that after the surgery was finished, she was with the Registrant in the ‘gowning’ area when she smelt alcohol on the Registrant’s breath. She said that she (Witness 2) had taken her face mask off, was stood next to the Registrant for about 5 minutes and could smell the alcohol in her breath strongly and distinctly when she spoke.

17. Witness 2 agreed that she had told Witness 4 on 28 April 2015 that she had not been “100% sure” that the Registrant was under the influence of alcohol, so had not said anything on the day. The Panel accepted her explanation that this was because she had found it difficult to report the matter, as she had been taught by the Registrant, respected her and described her as a “fantastic ODP”, so part of her did not want to accept that the Registrant had behaved in this way.

18. The Panel was therefore satisfied, to the required standard, that the Registrant had, whilst on duty, attended her place of work smelling of alcohol.

Particulars 2(a), (b) and (c)

19. In relation to particular 2, the Panel was satisfied the Registrant was on duty on 27 April 2015, and that she was working with Witness 3 in the evening, in Theatre 2.

20. The Panel found particular 2(a) not proved.

21. In support of this particular, the HCPC relied on the information that had been gathered by Witness 1 during her investigative interviews with members of staff, one of whom was a healthcare assistant who had been working alongside Witness 3 in Theatre 2 on 27 April 2015. Her potential evidence to the effect that the Registrant’s breath smelt of alcohol, was untested because the HCPC had neither obtained a statement from her, nor had she been called to give evidence. As a result the Panel was unable to place much weight on her potential evidence.

22. The Panel also took into account that Witness 3 who had also been working with the Registrant on the 27 April 2015, in his Witness statement, said that he ‘did not smell alcohol on [the Registrant] at any point but her behaviour made [him] think she had consumed alcohol’. In his oral evidence, Witness 3 confirmed that he had not smelt alcohol on the Registrant, and he had been within an arm’s length of her.

23. In light of this conflicting information, and the fact that the healthcare assistant’s potential evidence was untested, the Panel could not be satisfied that the HCPC had proved to the required standard, that the Registrant, whilst on duty, had attended her place of work smelling of alcohol.

24. The Panel found particular 2(b) proved.

25. Witness 3 described the Registrant’s behaviour in theatre as hyperactive, inappropriate and as acting out of character. He said that he and another colleague, AH, had been sterilised for surgery, meaning that they had washed and put their gowns and gloves on, when the Registrant went first up to AH and hugged her, and then did the same to him. He said this was unprofessional behaviour, as it de-sterilised them, so they had to sterilise again for surgery.

26. Witness 3 said he was shocked by the Registrant’s behaviour, and although he did not smell alcohol on her, her behaviour made him think that she had consumed alcohol. He said that her behaviour was inappropriate for the environment of the Theatre and that when she left the theatre he was “relieved that she wasn’t in theatre anymore putting patients at risk”. In evidence, he said that after the Registrant had left the Theatre, he had asked DH, another member of staff in Theatre, whether the Registrant was alright, and DH told him that the Registrant had been like this all day and “looks drunk” and/or “was acting drunk”.

27. Witness 3 described the Registrant as a ‘very good practitioner’, and that the occasion of 27 April 2015 was the first time that he had felt uneasy in her presence or  questioned her ability to do her job.

28. The Panel was therefore satisfied, to the required standard that the Registrant had, whilst on duty, attended her place of work under the influence of alcohol.

29. The Panel found particular 2(c) proved.

30. The evidence was that two water bottles had been discovered. The first was one that Witness 3 said the Registrant had left behind when she left Theatre on 27 April 2015, and which contained a clear liquid. He said that DH had asked him to smell the liquid, which he did and he said that it smelt like alcohol. He then took the bottle to a team leader JB who he said agreed it smelt like alcohol. Although Witness 3 did not know what type of alcohol it contained, he said it smelt like a spirit. The Panel was satisfied that this bottle had belonged to the Registrant, and she had, whilst on duty, attended her place of work with this plastic bottle and that it contained alcohol. 

31. The second water bottle was one that Witness 4 said she found on the morning of 28 April 2015, when she and another member of staff searched the Registrant’s locker, which had been locked. She said that the bottle had a small amount of clear liquid in it. She said that she had both smelt and tasted the liquid and that it had smelt and tasted of alcohol. She thought it might have been vodka. She had then called Witness 1 who agreed it smelt the same as the other bottle. The evidence was that the Registrant had not been in work on 28 April 2015 and so the Panel was satisfied to the required standard that this bottle had belonged to the Registrant, that she had it with her at her place of work on 27 April 2015, and that it contained alcohol.

32. Therefore the Panel was satisfied that the Registrant had, on 27 April 2015, whilst on duty, attended her place of work with at least one plastic bottle containing alcohol.

Decision on grounds
33. The Panel next considered whether the facts found proved as set out above, amounted to misconduct, and if so whether, by reason thereof, the Registrant’s fitness to practise is currently impaired.

34. Ms Hastie submitted that each of the allegations effectively amounted to misconduct on the part of the Registrant. She submitted that there were breaches of the relevant standards, namely 3 and 13. She submitted that it was the HCPC’s position that all of the particulars fell well below the standards to be expected of an ODP.

35. The Panel heard and accepted the advice of the legal assessor. The Panel was aware that any findings of misconduct were matters for the independent judgement of the Panel.

36. The Panel was aware that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to misconduct and that the misconduct is serious.

37. The Panel inferred from its finding in particular 2(c) (attending work with a bottle containing alcohol) and the evidence that the bottle in the locker had very little liquid left in it, that the Registrant had consumed alcohol whilst on duty on 27 April 2015. It also took into account the evidence of Witness 3 that The Registrant’s behaviour indicated that she was under the influence of alcohol during the evening having been at work all day. The Panel was of the view that the behaviour of the Registrant, in attending work on two occasions, either smelling of alcohol, or under the influence of alcohol, and drinking alcohol whilst on duty, was a serious departure from the standards of behaviour to be expected of an ODP. The context of this behaviour was that she had been in a position of great responsibility as Team Leader responsible for the management of the operating theatres at the Spire, where patients undergoing operations were reliant on staff for their safety and wellbeing.

38. The Panel found that the Registrant had breached the following Standards of conduct performance and ethics –

• 1 - You must act in the best interests of service uses;
• 3 - You must keep high standards of personal conduct; and
• 13 - You (…) must make sure that your behaviour does not damage the public’s confidence in you or your profession.

39. In all the circumstances, the Panel was of the view that the behaviour in the facts found proved amounted to misconduct.                  .

Decision on impairment 
40. Having determined that the Registrant’s actions in particulars 1, 2(b) and 2(c) amounted to misconduct, the Panel next went on to consider whether her fitness to practise is currently impaired as a consequence of that misconduct. What has to be determined is whether there is current impairment, that is looking forward from today.

41. Ms Hastie submitted that the Registrant’s fitness to practise is currently impaired. She identified the case of Grant and submitted that the following limbs were engaged:

a – has in the past acted and/or is liable in the future to act so as to  put a 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 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 profession.

42.  She also submitted, that in the absence of any engagement by the Registrant, the Panel could not be satisfied that there had been any insight, remorse or remediation by her. She effectively submitted that a finding of impairment was required in order to uphold public confidence in the profession.

43. The Panel accepted the advice of the legal assessor. It had regard to the Practice Note on Impairment, and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’

44. The Panel first considered the ‘personal component’.

45. The Panel was of the view that, in the absence of any engagement with the HCPC during the course of these proceedings, it had no evidence of any insight on the part of the Registrant, in particular in respect of whether or not she recognised or acknowledged the potential risks that her behaviour posed to patients, or the adverse reputational effect such behaviour would have on the profession. It also had no evidence of any remorse by her for her behaviour, particularly as she had denied all the allegations at the time, and had sought to suggest that she would not have drunk alcohol because she was on medication and she had driven to work and would be driving home. She also stated that her bottles contained fruit juice, not alcohol.

46.  As the Registrant has not engaged in these proceedings, the Panel also had no information about the Registrant and her current personal circumstances. As a consequence, the Panel had no information as to whether or not the Registrant had remediated her misconduct and therefore whether this was a limited episode of two occasions of alcohol-related misconduct, by a previously very good ODP, or whether this was part of a wider, and ongoing issue. In the circumstances and in the absence of any evidence to the contrary the Panel concluded that there must be a risk of repetition in the future.

47. In light of the above, in respect of the ‘personal component’, the Panel concluded that the Registrant’s fitness to practise is currently impaired.

48. The Panel went on to consider the ‘public component’.

49. The Panel took into account that Witness 2 was a Support Worker under training, and that the Registrant had the responsibility of supervising her. It also took account of the evidence it had heard from Witness 1, that the responsibilities of an ODP included ensuring that the Theatre was run with the necessary surgeon, anaesthetist, skill mix of staff, supervision for less qualified members of staff, and her view that there was a ‘most extreme’ risk to patients as a result of the Registrant’s behaviour. The Registrant left the theatre frequently, leaving an unqualified member of staff unsupervised. In addition her decision-making is likely to have been impaired due to her being under the influence of alcohol, and the evidence was that her behaviour was distracting to staff undertaking a surgical procedure.

50. The Panel was of the view that the public expects those responsible for the running of surgical theatres, to do so without having consumed alcohol. Consuming alcohol whilst on duty, would adversely affect a Registrant’s judgement and performance. It therefore concluded that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made in this case. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on sanction
51. Having concluded that the Registrant’s current fitness to practise is impaired, the Panel went on to consider what would be the appropriate, proportionate and sufficient sanction or other outcome in this case.

52. The Panel accepted the advice of the legal assessor. It had regard to the Indicative Sanctions Policy (ISP) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive, but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

53. The Panel considered that the following were mitigating factors in this case:

• The Registrant had over 10 years of previous experience of working for the same employer.
• The colleagues who gave evidence for the HCPC and who had worked closely with the Registrant, each described her as an experienced and highly regarded practitioner and a good teacher and supervisor, prior to the incidents.

54. The Panel considered that the following were aggravating factors:

• The misconduct was repeated;
• The Registrant had been on duty in the Operating Theatres at the time she had either smelt of or been under the influence of alcohol, which placed patients at risk of harm;
• The Registrant had been in a senior role and on the first occasion had been responsible for supervising a junior colleague;
• The Registrant’s lack of engagement with the HCPC and these proceedings.

55. Although the Panel acknowledged that the Registrant appears to have been highly regarded before these two incidents, for the reasons previously set out, the Panel had no evidence of any remorse or remediation on the part of the Registrant. Also, in the absence of any engagement by the Registrant with the HCPC or in these proceedings, it followed that the Panel has no information at all as to her current level of insight in respect of her behaviour, and specifically whether she recognised the potential impact of her behaviour on both public protection and public confidence in the profession, or how she might avoid a recurrence of such behaviour in the future.

56. The Panel does not consider the option of taking no further action to be appropriate or proportionate in the circumstances of this case. It would not address the identified risks, including that of repetition.

57. The Panel does not consider that a Caution Order would meet the criteria as set out in paragraph 22 of the ISP. This was not an isolated incident, albeit it was limited to two occasions. There was no evidence of insight, remorse or remediation. There was a risk of recurrence.

58. The Panel next considered a Condition of Practice Order. The Panel had regard to paragraph 26 of the ISP, and in particular that if such an Order were imposed, Panels “need to be confident that the Registrant will adhere to the conditions”. In light of the lack of engagement by the Registrant and the consequent lack of information about her current circumstances, the Panel could not be confident that the Registrant would be either willing or able to adhere to conditions.

59. The Panel also took account of paragraph 27, which indicates that the imposition of conditions requires a commitment on the part of the Registrant to resolve matters and so conditions of practice are unlikely to be suitable in cases where the Registrant ‘lacks insight or denies wrongdoing’, as is the case here. Therefore the Panel concluded that a Conditions of Practice Order was not the appropriate or proportionate response in this case.

60. The Panel next considered a Suspension Order. The Panel was of the view that the allegation was ‘serious in nature’, because the Registrant had put patients at ‘extreme’ risk on two occasions, when she had been on duty in a senior role, responsible for patient safety on both occasions and for supervising junior colleagues.

61. The Panel had regard to paragraph 32 of the ISP, which states: ‘Suspension should be considered (…) where the allegation is of a serious nature but unlikely to be repeated and, thus, striking-off is not merited’. In this case, as stated above, the Panel is satisfied that the allegation was of a serious nature, but given the absence of any information about the Registrant’s current circumstances and the lack of any evidence of insight, the Panel was unable to conclude that the behaviour was ‘unlikely to be repeated’.

62. The Panel also had regard to paragraph 34 of the ISP, which states: ‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking-off may be the more appropriate option’. As the Registrant has not engaged with the HCPC, the Panel had no information before it as to what had happened to her since the incidents, or what her current circumstances are. Therefore, the Panel had no information before it to suggest that the Registrant may be able to resolve or remedy her behaviour. In fact, the lack of engagement suggested to the Panel that she may be unable to resolve or remedy her behaviour. The Panel therefore considered that a Suspension Order was not the appropriate and proportionate response.

63. The Panel next went on to consider a Striking Off Order and concluded that this was the only appropriate and proportionate sanction in this case. The Panel had regard to paragraph 41 of the ISP, which states: ‘Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate’.

64. For the reasons previously given, including: a risk of repetition; no evidence of insight or remediation; the Registrant’s complete denials at the investigatory stage, followed by non-engagement with these proceedings, the Panel concluded that there was no other way to protect the public and meet the wider public interest in this case. The Panel was of the view that the public would be justifiably concerned about an ODP practicing whilst under the influence of alcohol and consuming further alcohol whilst at work.

65. Therefore the Panel was of the view that a Striking Off order was required not only to protect members of the public but also to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

66. Although the Panel had no information as to the Registrant’s current situation, it acknowledged the serious impact that such an Order would have upon her. However, the Panel determined that the interests of protecting the public and upholding confidence in the profession outweighed the individual needs of the Registrant.

Order

ORDER: The Registrar is directed to strike the name of the Sian Lindop from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 9 August 2016 (the Operative Date).

Hearing History

History of Hearings for Mrs Sian Lindop

Date Panel Hearing type Outcomes / Status
11/07/2016 Conduct and Competence Committee Final Hearing Struck off