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During the course of your employment as a Senior Operating Department Practitioner at the Trust with Guys and St. Thomas’ NHS Trust, you:
1. On or around 25 April 2013, whilst on-call, attended work in the Cardiovascular Theatres whilst under the influence of alcohol.
2. On or around 25 April 2015, whilst on-call, attended work in the Cardiovascular Theatres whilst under the influence of alcohol.
3. The matters set out in Paragraphs 1 and 2 constitute misconduct.
4. By reason of that misconduct, your fitness to practise is impaired
1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at her registered address on 06 December 2016. The notice was also sent to the Registrant at her last known email address. The Panel was shown documents which established both the fact of the service and the identity of the Registrant’s registered address. In these circumstances the Panel accepted that proper service of the notice had been effected.
Proceeding in the absence of the Registrant.
2. Ms Eales on behalf of the HCPC submitted that the Panel should consider the case in the absence of the Registrant. She told the Panel that the Registrant has not engaged with the HCPC and that there has been no communication from her of any kind.
3. This Panel heard and accepted the advice of the Legal Assessor.
4. This Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great caution. However this Panel has decided 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 applied for an adjournment.
• There are 4 witnesses present to give evidence.
• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.
• The allegations go back to 2013 and there is a public interest in hearing this case as expeditiously as can properly and fairly be done.
5. The Panel decided to consider the facts, misconduct, and impairment as a single stage. Sanctions if appropriate, will be considered at a separate stage.
6. No formal admissions to the Particulars in the Allegation have been made by the Registrant
7. The Registrant was employed by the Guy’s and St Thomas’s NHS Trust [the Trust] as a Band 6 Operating Department Practitioner. It is alleged that on the two occasions specified in Particulars 1 and 2 of the Allegation and when she was on call, she attended work in the Cardiovascular Theatres when she was under the influence of alcohol.
Decision on facts
8. The Panel heard oral evidence from the following witnesses who were called by the HCPC:
• From NA who is employed by the Trust as a Senior Clinical Perfusionist responsible for operating the heart lung bypass machine in the Paediatric and Adult Cardiovascular Theatres. She has made a formal written statement in these proceedings dated 07 October 2016 and also made a written statement dated 25 April 2015.
• From JS who is the Deputy Perfusion Services Manager in the Department of Clinical Perfusion at the Trust. He has made a formal written statement in these proceedings dated 28 August 2016. He had previously supplied information regarding the events alleged in Particular 2 by way of an email dated 29 April 2015.
• From AR who is employed by the Trust as a Band 6 Scrub Staff Nurse in the Cardiovascular Theatre at St Thomas’s Hospital. She has made a formal written statement in these proceedings dated 24 November 2016. She had previously supplied information regarding the events alleged in Particular 1 by way of an email dated 25 April 2013.
• From SO who was at the time of the alleged incidents employed by the Trust as a Matron within the Cardiovascular Theatres responsible for a team of 47 staff and 5 theatres. She has made a formal written statement in these proceedings dated 23 January 2017. She was responsible for conducting the investigation into the incident alleged in Particular 2 of the Allegation and she produced the formal investigation report into that incident.
9. The Panel regarded all the witnesses called by the HCPC as credible, professional and focussed. The Panel did not think that they had displayed any animus against the Registrant. The evidence that they gave to the Panel was consistent with the statements that they had made in the course of the investigation.
10. The Panel has seen the written statement of PR made in these proceedings and dated 25 October 2016. PR is a Site Nurse Practitioner employed by the Trust and his statement relates to the incident alleged in Particular 1 of the Allegation. The Panel has also seen the written statement from BT made in these proceedings dated 05 October 2016. BT is a Consultant Cardiac Anaethetist employed by the Trust and his statement relates to the incident alleged in Particular 2 of the Allegation.
11. The Panel considered a bundle of documents comprising 146 pages which was produced by the HCPC. This bundle contained contemporaneous documents relating to the allegations against the Registrant and documents which came into existence as part of the investigation including statements made by witnesses during the course of the investigation and written statements made by the Registrant together with the notes of the Investigation Meeting conducted on 27 May 2015
HCPC submissions as regards facts, statutory grounds and impairment.
12. The Panel considered the submissions as to facts, misconduct and impairment made by Ms Eales on behalf of the HCPC.
13. In summary Ms Eales submitted that the facts set out in Particulars 1 and 2 should be found proved. She submitted that the facts set out in the Particulars were sufficiently serious as to amount to misconduct. She invited the Panel to conclude that the Registrant’s fitness to practise was impaired. In relation to current impairment Ms Eales referred to and relied on the guidance given in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant  EWHC 927 [Admin]. Ms Eales submitted that the Registrant was in breach of Standards 1, 3 and 13 of the “Standards of conduct, and performance and ethics” published by the HCPC in 2012 [The Standards] and of Standards 2.1, 2.2 and 3.1 of the “Standards of proficiency” for “Operating Department practitioners” [ODP Standards] published by the HCPC which were in force in 2013 and 2015 and are in substance the same.
Standard 1 you must act in the best interests of service users
Standard 3 you must keep high standards of personal conduct
Standard 13 You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession
Standard 2.1 You must understand the need to act in the best interests of service users at all times
Standard 2.2 You must understand what is required of them by the HCPC
Standard 3.1 You must understand the need to maintain high standards of personal and professional conduct
14. The Panel heard and accepted the advice of the Legal Assessor as to facts, misconduct and impairment.
15. The Panel was aware that on matters of fact [as distinct from issues of misconduct and impairment] the burden of proof rested on the HCPC and that the standard of proof is the civil one namely on the balance of probabilities. This is the standard of proof that the Panel has applied throughout its consideration of the facts.
Particular 1 – found proved
16. Ms Eales relied on the oral and written evidence adduced by the HCPC in support of this Particular and especially on the oral and written evidence of AR.
17. AR informed the Panel that the Registrant arrived at work at approximately 6.30pm on 25 April 2013. The Registrant had been off duty in the day time but was on call in the evening. In her oral evidence, AR told the Panel that the Registrant seemed “not to be herself”, “not very coherent in what she was saying”, “not very sharp or on point” and that this affected her “delivery and her demeanour”. In her written statement, AR said of the Registrant, “she did not seem herself in that she had difficulty in focussing, was rambling and did not seem as cohesive or lucid as she normally is”. AR further informed the Panel, both in her oral evidence and written statement, that the Registrant had, when asked to explain herself, stated “that she had been out to lunch with her daughter and had one glass of wine”. This explanation was consistent with the explanation furnished by the Registrant on 26 April 2013 at a meeting with the Head of Nursing and which is summarised in documents which the Panel has seen. The Panel noted and took into account that AR also said that she had not noticed any alcohol on the breath of the Registrant.
18. The Panel noted the written evidence of PR, who had seen the Registrant on 25 April 2013 and after AR had become concerned at the Registrant’s conduct. He stated “From my observation of Catrina Thomson, it looked as if she was under the influence of something as she seemed flushed and did not seem to be focussing very clearly. However she was not slurring her speech and I could not smell alcohol on her breath. Although Catrina Thomson stated that she had only one glass of wine, based on her appearance, it seemed that she may have had more than one glass of wine.”
19. The Panel accepted the evidence of AR and PR. The Panel also accepted the accuracy of the written record of the meeting of 26 April 2013. The Panel noted that there was also written evidence comprised within the bundle of documents supplied by the HCPC, that the Registrant had an underlying problem with alcohol use. The Panel considered that alcohol consumption was the only plausible explanation for the Registrant’s conduct as observed by AR. The Panel considered that the explanation advanced by the Registrant on 26 April 2013 was not a credible explanation of what had been observed by AR. Having regard to all the evidence that it has seen the Panel accepted that the HCPC had proved Particular 1 on the balance of probabilities
Particular 2 – found proved
20. Ms Eales relied on the oral and written evidence adduced by the HCPC in support of this Particular and especially on the oral and written evidence of NA, JS and SO and on the written evidence of BT.
21. In her oral evidence to the Panel NA said that she had been called on to attend on an emergency aortic dissection which was conducted by BT at which the Registrant was assisting. The time was around 9pm on 25 April 2015 and the operation was a very prolonged one. NA said that BT told NA that he thought that he could smell alcohol on the Registrant’s breath. NA told the Panel that she did smell alcohol on the Registrant’s breath when she was in theatre. In her oral evidence to the Panel, NA described the Registrant’s conduct as “lacking focus, not on the ball, dithering and not understanding requests made of her”. She said that the Registrant repeatedly left the theatre for extended periods and was incapable of providing BT with the required assistance.
22. The evidence of NA was consistent with that of JS who in his oral evidence to the Panel described how the Registrant “kept dropping things, was clumsy” and asked questions such as “am I doing this right” in respect of things which she ought to have known how to do. JS also told that Panel that the Registrant smelled strongly of alcohol.
23. The oral evidence of NA and JS was wholly consistent with their formal written statements and with the information that they had provided during the course of the investigation. The evidence of NA and JS was also consistent with the written statement of BT who described how he could detect on the Registrant “a strong odour of alcohol” and how the Registrant “was not focussed and required a lot of direction, When the patient began deteriorating, I had to ask her to syringe in some blood products but she did not seem to understand what I was asking and was not able to do it. Given the urgency of the situation, NA had to step in and assist with giving large volumes of blood”.
24. In her oral representation to the Investigation Meeting which was held on 27 May 2015 the Registrant stated that whilst she had not had any alcohol to drink on 25 April 2015 she had drunk “two or three wines. Drink consisted of watered down wine” the previous evening. “I was home by 11-11.30”. In the written statement that she prepared for the purposes of the Investigation Meeting held on 27 May 2015 the Registrant described the alcohol that she had consumed on the evening prior to 25 April 2015 as “my usual, spritzers, half white wine and half tonic water”. She attributed her conduct in theatre to fatigue.
25. The Panel accepted the evidence called by the HCPC. It was satisfied that when in theatre the Registrant did indeed smell of alcohol. It accepted that the Registrant’s conduct was indeed as described by the witnesses and that she was unable to perform the role which she was employed to perform. The Panel did not accept that her conduct was due to fatigue or to alcohol consumed the previous evening. Having regard to all the evidence before it the Panel was satisfied that the HCPC has proved this Particular on the balance of probabilities.
Decision on grounds
26. The Panel proceeded to consider whether the matters found proved as set out above, amount to misconduct. If so, whether the Registrant’s fitness to practice is thereby currently impaired.
27. The Panel considered the submissions made by Ms Eales on behalf of the HCPC.
28. The Panel heard and accepted the advice of the Legal Assessor.
29. The Panel is aware that any findings of misconduct and impairment are matters for the independent judgement of the Panel.
30. The Panel was aware that consideration of impairment only arises in the event that the Panel judges that the proven facts do amount to misconduct.
31. The Panel concluded that in respect of the matters that are set out above, the Registrant is in breach of Standards 1, 3 and 13 of the Standards and Standards 2.1, 2.2 and 3.1 of the ODP Standards.
32. The Panel has concluded that the facts as found proved, amount to misconduct. The behaviour of the Registrant in allowing herself to be under the influence of alcohol, when working in a Cardiovascular Theatre, fell far below the standards to be expected of a Senior Operating Department Practitioner. The operation performed on 25 April 2015 was lengthy and complicated. It was one in which the patient was exposed to considerable risk. The Registrant’s inability to properly perform her role greatly increased that risk and accentuated the burden imposed on others. Inevitably patients who are being operated upon, are vulnerable. The success of an operation depends on the competence of those responsible for their performance. In attending, when under the influence of alcohol, as she did, on both 25 April 2013 and 25 April 2015, the Registrant exposed the patients in her care, to greatly increased risk. Her conduct was a serious departure from proper standards and is a serious incident of misconduct.
Decision on impairment
33. The Panel has determined that the Registrant’s fitness to practise is currently impaired. The Panel has concluded that there is a serious risk of repetition. Consequently the Registrant is liable to put patients at risk of unwarranted harm and further that she is liable to bring her profession into disrepute and to breach fundamental tenets of that profession. In coming to this conclusion the Panel has noted that there is a pattern of the Registrant working when under the influence of alcohol. This is evidenced by the fact that the Panel has found proved, two incidents of working under the influence of alcohol, each separated by a period of two years. There is also an abundance of evidence in the documentation supplied by the HCPC, that the Registrant has a long standing problem with alcohol consumption which she has been unable wholly to resolve. Moreover the Registrant has not engaged with these proceedings. Consequently there is no evidence of insight, contrition, remorse or remediation. There is nothing to suggest that the Registrant’s problem with alcohol has in any way been addressed, far less remedied. Moreover and as a result of these facts the Panel has concluded that public confidence in the profession and in the regulatory powers of the HCPC, together with the need to maintain proper standards of conduct within the profession would be undermined if a finding of impairment was not made.
Decision on sanction
34. The Panel has considered the submissions made by Ms Eales on behalf of the HCPC.
35. The Panel heard and accepted the advice of the Legal Assessor. He advised the Panel of the need to have regard to the Indicative Sanctions Policy [ISP] published by the HCPC, the importance of applying the principle of proportionality, the need to consider available sanctions in ascending order of severity, the need to consider relevant mitigating and aggravating circumstances and when considering a Conditions of Practice Order, the need to consider whether possible conditions were relevant, proportionate, workable and enforceable.
36. The Panel kept in mind that the purpose of a sanction is not punitive but is designed to protect the public interest which includes protecting members of the public from possible harm, maintaining proper standards within the profession, the reputation of the profession itself and public confidence in the regulatory functions of the HCPC.
37. The Panel took into account the ISP.
38. In considering whether to make an order and the nature and duration of any order to be made, the Panel applied the principle of proportionality weighing the Registrant’s interests in the balance with the need to protect the public interest.
39. The Panel took into account both mitigating and aggravating circumstances.
40. Mitigating factors included the following:
• That prior to 2013 the Registrant had not been subject to any regulatory procedure
41. Aggravating factors included the following;
• That the Registrant’s misconduct was repeated and exposed patients in her care to serious risk of unwarranted harm.
• There has been no engagement, from the Registrant, with the regulatory process.
42. The Panel considered the sanctions available to it in ascending order of severity. In arriving at its decision the Panel applied the principles that are set out in the ISP.
43. The Panel concluded that having regard to the facts that have been found proven, to take no further action would be wholly inappropriate. The Registrant’s failures are too serious to permit such an outcome, which would provide no protection to the public, would undermine confidence in the profession and in the regulatory functions of the HCPC and would not serve to uphold proper standards of conduct and performance within the profession.
44. The Panel concluded that mediation was not appropriate in a case of this kind.
45. For the same reasons as those just expressed with regard to taking no action, the Panel concluded that a Caution Order would also be inappropriate.
Conditions of Practice Order
46. The Panel considered making a Conditions of Practice Order. The Panel was aware that the conditions imposed by such an order must be relevant, workable, enforceable and proportionate. The Panel concluded that in the circumstances of this case, appropriate Conditions of Practice cannot be formulated and in any event would not sufficiently safeguard the public interest or uphold appropriate standards of conduct within the profession. In coming to this conclusion the Panel took into account the following:
• The Registrant has shown no insight, contrition or remorse.
• The Registrant has not provided the Panel with any evidence as to what she is presently doing or the circumstances of her present employment [if any].
• The Panel has seen material within the bundle of documents produced by the HCPC that suggests that the Registrant has in the past not been wholly compliant with the requirements of her counsellors.
• The documents produced by the HCPC also suggests that as recently as 2015 the Registrant did not accept that she “was alcohol dependant”.
• The Panel cannot be confident that the Registrant would comply with a Conditions of Practice Order
47. The Panel concluded that having regard to the Registrant’s conduct, a Suspension Order was the appropriate and proportionate sanction. Such an order would provide proper and sufficient protection to the public and help to sustain public confidence in the profession. The Suspension Order will be for a period of 12 months. This will provide sufficient time for the Registrant to reflect on and acknowledge her failings and to seek ways to demonstrate that she has addressed it.
48. The Panel did consider a Striking Off Order. It was aware that such an order is a sanction of “last resort”. The Panel did not consider that at this stage such an order was either necessary or proportionate.
49. This order will be reviewed prior to its expiration. The Panel considered that a reviewing panel would be assisted by the physical presence of the Registrant and also by evidence that she has recognised and properly addressed the problems associated by her alcohol consumption. Such evidence could take the form of a reflective piece, a report from her medical advisers or other professionals from whom she has taken advice. Testimonials from the Registrant’s present employers or those with whom she has been working, could also be helpful to a reviewing panel.
This order will be reviewed again before its expiry on 12 June 2018.