Mr Jabulani L Moyo

Profession: Operating department practitioner

Registration Number: ODP33865

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 05/04/2018 End: 16:00 06/04/2018

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

1. On or around 1 December 2016; you:

a. created a certificate to use as proof of training which you had not completed.

b. submitted the certificate you had created to the agency ‘Your World Recruitment Group’.

2. Your actions as described at particular 1 were dishonest.

3. Your actions as described at particulars 1-2 amount to misconduct.

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

Finding

Background:

1. Mr Moyo (“the Registrant”) is registered with the HCPC as an Operating Department Practitioner and at the relevant times was employed by Ramsay Healthcare (“Ramsay”) in its West Midlands Hospital. It is relevant to note that as well as working for Ramsay he would, from time to time, work for other employers through an agency (“the Agency”).

2. The HCPC’s case is that on or around 1 December 2016, he submitted, to the Agency, a certificate showing a training record and subsequent enquiries showed that certificate to be false.   


Preliminary Matters:

The Hearing

3. The Panel heard oral evidence from two witnesses and received a statement from a third witness in support of the HCPC’s case. Both of the witnesses who gave evidence were employed by Ramsay. The witnesses who attended to give evidence were:

Witness 1 – Training and Development Co-ordinator

Witness 2 – Theatre Manager. 

4. The witness statement was provided by Witness 3, a Compliance Officer with the Agency.


Decision on Facts:

5. The HCPC has the burden of proving the facts on the balance of probabilities.  The Panel has made the findings that follow in the subsequent paragraphs.


Particular 1

On or around 1 December 2016, you:

a) created a certificate to use as proof of training which you had not completed.

b) submitted the certificate you had created to the agency ‘Your World Recruitment Group’

6. The Registrant has admitted this particular. He also admitted the essence of this particular within a workplace disciplinary process which took place in 3 March 2017.  On the basis of the Registrant’s admission, the evidence from the three HCPC witnesses, the training record of the training actually undertaken by the Registrant and the copy, which the Panel has seen, of the false certificate created by him, the Panel is satisfied that this particular is proved.

Particular 1 is proved in its entirety.


Particular 2

Your actions as described at particular 1 were dishonest.

7. The Panel has taken into account the guidance on the test for dishonesty as is set out in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67:

When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.

8. The Registrant has admitted this particular. The Panel has taken into account that admission but also bears in mind that the Panel has to make its own independent judgment on the matter. The evidence of the two witnesses who attended the hearing was reliable. The Panel is satisfied that the Registrant knew he had not carried out the training that would be expected by the Agency. The Registrant obtained headed note paper from Ramsay and inserted a false training record. He applied a Ramsay stamp and a false signature to the record. He acted in a calculated and sophisticated manner in that respect. The actual state of mind of the Registrant was that he knew he was creating a document that was false and he provided the false document to the Agency with the intention that the Agency would be misled by the document.

9. The Panel is further satisfied that ordinary decent people would clearly see the Registrant’s actions as dishonest.

Particular 2 is proved.


Decision on Grounds:

Your actions as described in particulars 1-2 amount to misconduct.

10. Misconduct may be defined as a word of general effect, involving some act or omission of sufficient seriousness which falls short of what would be proper in the circumstances.

11. The actions of the Registrant were serious. He dishonestly created a false document with the intention of deceiving the Agency. In so doing he breached the following HCPC Standards of conduct, performance and ethics:

3.3  You must keep your knowledge and skills up to date and relevant to your scope of practice through continuing professional development.

3.4  You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.

9.1  You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

9.2  You must be honest about your experience, qualifications and skills.

12. The Panel is satisfied that the actions of the Registrant amount to misconduct.

Misconduct is proved.


Decision on Impairment: 

13. The Panel has taken into account the HCPTS Practice Note “Finding that Fitness to Practice is Impaired”.   The Panel is considering whether the fitness to practice of the Registrant is impaired as at today’s date.  The Panel is bound to take into account both the public and personal components.

14. The personal component includes the current competence, behaviour etc. of the individual registrant and the public component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulator.
 
15. The Panel accepts the regret, embarrassment and shame expressed by the Registrant. He has shown reliable insight and remorse. The evidence shows that he has been performing to the level of a competent practitioner. His employment was continued by Ramsay after this matter came to light. A reference from his line manager/Witness 2 confirms that there are no issues in the workplace and that the Registrant is working well within the theatre team.

16. The Panel assesses the risk of repetition of this type of conduct to be very low and has concluded that there is not a proper basis to find that fitness to practise is impaired on the ground of the personal component.

17. However, this is a case where the Panel must keep in mind the public component factors. Members of the public and members of the Operating Department Practitioners’ profession would be shocked to learn about a case of an Operating Department Practitioner falsifying his own training record to give the impression that he had undertaken training which he had not. Such behaviour is bound to bring the profession into disrepute. The Registrant actions amounted to a fundamental breach of the expected tenet of honesty.

18. In addition, the Panel takes into account the need to declare and uphold proper standards of behaviour and maintain public confidence in the profession.

19. When the Panel considers all of the public component factors referred to above, and despite the absence of personal component factors, the Panel has concluded that the fitness to practice of the Registrant is currently impaired.


Decision on Sanction:

20. The Panel has considered the appropriate Order and has taken into account the “Indicative Sanctions Policy”, the submissions made by the parties and the legal advice. The purpose of sanctions is not to be punitive. The primary purpose is to protect members of the public. Relevant other objectives are to maintain the reputation of the Operating Department Practitioner’s profession and confidence in this regulatory process.

21. In deciding what, if any, sanction to impose, Panels should ensure that any sanction is proportionate and strikes a proper balance between the protection of the public and the rights of the Registrant.

22. The aggravating features in this case are:

• the nature of the dishonest act, which amounted to a deliberate and planned act of deception. However, the Panel observes that whilst the failing was serious the actions were not at the most serious level within the full range of possible dishonest acts.  

• the Registrant’s failings have the potential to cause significant damage to the reputation of Operating Department Practitioners.

• the Registrant had reasonable opportunity to undertake the required training and did not.

23. The mitigating features are:

• this was a single occasion of dishonesty.

• the Registrant has no previous history of wrongdoing of this, or any other, kind.

• whilst there was potential harm to service users (by being treated by a practitioner who did not have completely up to date training) there were no concerns on the part of Ramsay as to the Registrant’s continuing competence and there was no actual harm caused to service users.

• the Registrant admitted his dishonesty from the outset. Within this hearing the Registrant has made genuine expressions of remorse and regret and has displayed insight into his wrongdoing and taken responsibility for remediating his misconduct.

• there is little risk of repetition given that the Registrant has developed strategies to seek help and advice if, in future, he faces stress at work.

• the Registrant has an unblemished record in respect of his professional practice. There are positive references from Ramsay.

• he has engaged positively with the HCPC and HCPTS process.

24. In this case, the seriousness of the Registrant’s failing means that it is not appropriate to make no order. To make no order would not properly reflect the public interest factors. Mediation is not appropriate because the failings of the Registrant were not minor.

25. A Caution Order may be seen as appropriate where the failing on the part of the Registrant is isolated, there is a low risk of recurrence, the registrant has shown insight and has taken appropriate remedial action. The Panel is satisfied that each of those criteria applies in this case. In particular, the Panel accepts that the Registrant has carried out significant evaluation of his failings. He recognises the seriousness of his action. He has shown insight into the damage he has caused to the reputation of his profession and to his relationship with his employer and the risk to members of the public that he posed by his actions (by pretending to have untaken training which he in fact had not carried out). The Registrant has remediated the position by his written and oral reflections and by his continuing good work in his employment. In the view of the Panel it is relevant to take into account that the Registrant is well thought of by his employer despite the fact that the Registrant created his deception whilst in that employment and, indeed, used Ramsay property in doing so.  

26. Conditions of Practise are unlikely to be suitable in cases which involve dishonesty. The Panel is satisfied that there are no workable and effective Conditions of Practise that could be applied in this case.

27. The Panel considered a Suspension Order but determined that such an order would not be a proper balance between the public interest and the Registrant’s interests in the circumstances of this case. In making that evaluation the Panel recognises that the Registrant’s failings amounted to a calculated and sophisticated act of dishonesty. However, the Panel has again taken into account the factors referred to above in paragraph 25 and, in taking account of all of those factors, has concluded that a Suspension Order would not be proportionate. 

28. The Panel decided that a Caution Order is the appropriate sanction, and then went on to consider an appropriate length. Such an order may run for between 1 and 5 years. The Panel again took into account the seriousness of these acts of dishonesty. The actions of the Registrant were at the more serious end of the scale of failings that may properly be dealt with by a Caution Order. There is a significant public interest in a sanction that provides a deterrent to others and which maintains public confidence in the Operating Department Practitioner’s profession and this regulatory process. The Panel has concluded that a Caution Order to run for 4 years is proportionate and will properly reflect all of the factors considered above.

Order

The Registrar is directed to annotate the register entry of Mr Jabulani L Moyo with a caution which is to remain on the register for a period of 4 years from the date this order comes into effect.

Notes

 

Hearing History

History of Hearings for Mr Jabulani L Moyo

Date Panel Hearing type Outcomes / Status
05/04/2018 Conduct and Competence Committee Final Hearing Caution