Mr Benjamin Jones
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Whilst employed as an Operating Department Practitioner at St Georges Healthcare NHS Trust you:
1. Self-administered non-prescribed drugs Proven
2. Stole drugs from the Trust – namely Diazemuls and/or Midazolam on a number of occasions including on 08 August 2011 Proven
3. Distributed drugs stolen from the Trust to your brother Proven
4. Drank alcohol prior to or whilst at work including 09 August 2011 Not Proven
5. Your actions as outlined in paragraphs 2 and/or 3 were dishonest.
6. The matters set out in paragraphs 1-5 amount to misconduct.
7. By reason of that misconduct, your fitness to practise is impaired.
1. The Panel is satisfied that there has been good service of the Notice of Hearing. A letter was sent to the Registrant’s registered address, giving notice of this hearing on the 16 February 2017.
2. The Registrant has not attended the hearing today. The Panel has seen an email dated the 17 March 2017 from Registrant. It is apparent that the Registrant is aware of today’s hearing and expresses the view that he hoped that he would be voluntarily removed from the register today.
3. The Panel first considered whether it ought to exercise its discretion to continue with this hearing in the absence of the Registrant. The Panel concluded that it was in the public interest to do so, having considered the HCPC Practice Note on Proceeding in the Registrant’s Absence, having taken the Legal Assessor’s advice, and considered the guidance in R v Jones  UKHL 5 and GMC v Adeogba and GMC v Visvardis  EWCA Civ 162, for the following reasons:
(a) The Panel is satisfied that the Registrant had notice of the hearing.
(b) The Registrant is aware of the hearing today and has signed the Voluntary Removal Agreement.
(c) The Panel was of the view that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion and he has not requested an adjournment.
(d) The Panel concluded that the Registrant has deliberately chosen not to attend this hearing. However, the Panel concluded that given the nature of the hearing today there is no prejudice to the Registrant, in proceeding in his absence.
(e) The Panel determined that it was reasonable and in the public interest to proceed today in the circumstances, given that it was a hearing to determine whether to revoke the Suspension Order to allow a Voluntary Removal Arrangement to be put into effect.
4. The Panel has been provided with a bundle of documents which runs to 127 pages, together with the documents relating to the Voluntary Removal Agreement.
5. The Registrant is an Operating Department Practitioner. At a final hearing on 20 July 2012, a panel made findings of both misconduct and dishonesty. The Registrant had self-administered non-prescription medication and had stolen drugs from his then employers, St Georges Healthcare NHS Trust. These included Diazemuls and/or Midazolam on a number of occasions. The Registrant had also distributed drugs stolen from the Trust to his brother. The panel at the final hearing heard evidence that on the night shift of the 9 to the 10 August 2011 the Registrant was found unconscious, displaying symptoms of a seizure, whilst on duty. His personal effects were searched and an ampoule of Diazemuls was found. During a subsequent internal investigatory meeting, the Registrant admitted having self-administered stolen medication and having distributed stolen drugs to his brother. He was subsequently dismissed for gross misconduct.
6. That panel concluded that the Registrant’s Fitness to Practise was impaired. There was some evidence of genuine remorse and insight. The Registrant had taken some steps to address his failings. However, that panel was not satisfied that the Registrant was sufficiently recovered from his health issues, and concluded that he continued to pose a danger to the public. The panel also found impairment, having regard to the public component, concluding that public confidence in the regulatory process and in the profession would be damaged, if there was no finding of current impairment.
7. That panel imposed a Suspension Order for a 12 month period. There was evidence that the Registrant had engaged with treatment and had rebuilt some relationships with family and he had a support network of longstanding friends. The treatment needed to continue and the Registrant needed to provide independent evidence of his progress.
8. An early review took place on the 5 April 2013, which was adjourned to the 16 July 2013. The Registrant submitted evidence of his treatment. He was working as a street fundraiser. That panel concluded that there had been remediation and remorse for the serious misconduct and dishonesty found by the original panel and continued engagement with the HCPC. However, it concluded that it was not yet clear that a return to practice was in the public interest. A further Suspension Order for 12 months was imposed. This was deemed necessary to protect service users and to maintain public confidence in the profession and the regulatory process. That panel commented that the Registrant was a credible and believable witness who had impressed them with his genuine remorse and attempts to change his behaviour.
9. There was a review on the 16 July 2013. The Registrant supplied a letter from his treating Consultant. The Registrant asked for the suspension to be lifted as he was “no longer a threat to my profession or the public.” That panel was not satisfied that the Registrant had sufficiently recovered from his health issues and concluded he continued to pose a danger to the public. That panel in particular was not satisfied that the risks for the long term had been suitably minimised. A further Suspension Order for 12 months was imposed.
10. The case was further reviewed on the 18 July 2014. That panel heard evidence that the Registrant had taken a range of courses to aid his recovery. He now had strategies in place to prevent a recurrence. However, he had an occasion in January 2015 when his health issues had recurred. There was no evidence from a health professional in relation the Registrant’s recovery.
11. The Registrant told the panel he had read some assignments from his course and reviewed textbooks, as well as writing some assignments to keep up to date with developments in the profession. However, there was no independent evidence of CPD.
12. Although the review panel was impressed by the Registrant’s insight, they extended the Suspension Order for a further 12 month period. That panel found current impairment and determined a further period of suspension would allow the Registrant to demonstrate a sustained period of abstinence and evidence of ongoing CPD. This would also allow the Registrant to provide further medical evidence.
13. A further review took place on the 12 August 2015. The Registrant accepted that he was not ready to return to practice, but indicated that he had changed and needed to prepare evidence to satisfy a future panel that he could work in a hospital again. He had not been affected by his health issues for about 12 months. He had attended treatment. However, in evidence the Registrant admitted his health condition had affected him on one occasion since the previous review. That panel imposed a further Suspension Order for a period of 12 months, to allow the Registrant to gather evidence that was required. That review panel noted that a future panel might be assisted by medical evidence, up to date testimonial evidence relating to any paid or voluntary work and a short report from his GP regarding his general health and fitness to return to work. That panel expressed the hope that the Registrant would provide compelling evidence in support of his expressed desire to return to practice, and noted that it was unlikely that his suspension would be allowed to continue indefinitely.
14. A fourth review took place on the 14 July 2016. There was no evidence that the position had changed or that the Registrant’s fitness to practise was no longer impaired. The Registrant had engaged with the process, but was indicating that he no longer wished to return to the profession. A further period of suspension for 5 months, following the expiry of the existing order was imposed to allow for a disposal of this case by voluntary removal.
15. A fifth review took place on the 9 December 2016. The Registrant did not submit any further information as to his current state of health or CPD. There was no evidence to suggest that the Registrant had changed his position in relation to a return to the profession. The documentation for voluntary removal had almost been completed and the only outstanding matter was that the Registrant had not returned a signed copy of the documentation.
16. That panel concluded that a further period of suspension would not normally be appropriate, without a commitment to remaining in the profession, and a lack of evidence of remediation, which was unlikely to change in the future. However, that panel extended the Suspension Order for 3 months. This was to allow the voluntary removal process to be completed - this having to be re-started due to the dates involved.
17. The Panel has today been provided with a signed copy of the Voluntary Removal Agreement dated 17 March 2017. The Panel notes that the Allegation is admitted and the contents of the Schedule D contain an Agreed Statement.
18. This hearing is to determine whether the existing Suspension Order should be revoked in order to allow the Voluntary Removal Agreement to be put into effect.
Voluntary Removal Agreement
19. The Panel had regard to the advice of the Legal Assessor and has had regard to the Practice Note of Disposal of Cases by Consent. The Panel notes that a panel should not agree to resolve cases by consent, unless it is satisfied that the appropriate degree of public protection is being secured and that doing so would not be detrimental to the wider public interest.
20. Article 11(3) of the Health and Social Work Professions Order 2001 and Rule 12(3) of the Health & Care Professions Council (Registration and Fees) Rules 2003 prevent a Registrant from resigning from the Register whilst the Registrant is subject to an Allegation or a Conditions of Practice Order or a Suspension Order.
21. However, in cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was allowed to resign from the Register, it may enter into a Voluntary Removal Agreement, allowing the Registrant to do so, but on similar terms to those which would apply if the Registrant had been struck off. In cases where there is an existing order, such an agreement cannot take effect, unless the proceedings are withdrawn or the Panel revokes the order.
22. In the present case, the HCPC has given formal notice of withdrawal, and asks the Panel to revoke the existing Suspension Order to allow the Voluntary Removal Agreement to be put into effect.
23. The Panel noted that the Registrant has now not been in practice since 2012 and that there is little prospect of him now doing so. The only sanction which the Panel could have realistically imposed in these circumstances, at any further review, given the length of suspension, and the lack of intention to return to practice, would have been a Striking Off Order. In the circumstances, the Panel is satisfied that the appropriate degree of public protection that is required would be secured by the Voluntary Removal Agreement and agrees to revoke the existing Suspension Order.