Mr Philip Francis Henry

Profession: Operating department practitioner

Registration Number: ODP15710

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 16/04/2018 End: 16:00 20/04/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Whilst registered as an Operating Department Practitioner and during the course of your employment at Epsom and St Helier University Hospital Trust between  1 March 2006 and February 2016:
1. You made inappropriate and/ or intimidatory comments to colleagues, in that you:
a. Stated to colleagues “JFDI” and/or “just ****ing do it” or words to that effect on multiple occasions.
b. Called female colleagues “love” or words to that effect on multiple occasions.
c. Called Band 7 colleagues a “shower of ****” or words to that effect on multiple occasions.
d. Stated to Colleague A on an unknown date in or around 2015 or 2016 “cheers for popping in love,” or words to that effect.
e. Stated to Colleague B on an unknown date: in or around 2014 or 2015 “suck up and shut up,” or words to that effect
f. Stated to Colleague B on an unknown date in or around 2013 “if you want to dress up darling, you can do that. But I don’t care what you wear,” or words to that effect
g. Stated to Colleague C on an unknown date in or around 2014 “you won’t be able to give your husband a hand job then,” or words to that effect.
h. On an unknown date or dates called Colleague D “the illiterate Glaswegian,” or words to that effect.

2. On approximately 10 December 2013 and/or on unknown dates following this, told Colleague A that she was being investigated by human resources, which was not the case.
3. Your actions as described in paragraph 1 and 2 constitute bullying and /or harassment.

4. Your actions as set out in paragraphs 1 to 3 constitute misconduct.

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

Finding

Preliminary matters
Service
1. The Panel was informed that an original notice of hearing was sent to the Registrant’s address, as it appears on the HCPC Register, on 23 January 2018. The Panel was satisfied that good service had been effected in accordance with Rules 3 and 5 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’) and it was satisfied that all reasonable steps had been taken by the HCPC to inform the Registrant of today’s proceedings.

Proceeding in absence
2. Mr Millin, on behalf of the HCPC, applied for the hearing to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules.  He referred the Panel to the fact that there had been no application for an adjournment by the Registrant who had failed to engage with the HCPC throughout the entirety of the regulatory proceedings.

3. The Panel accepted the advice of the Legal Assessor, that the decision to proceed in the absence of the Registrant is a decision to be taken with the utmost care and caution.  The Panel had regard to the relevant Practice Note including the criteria set out in R v Jones [2002] UKHL 5 and the guidance in General Medical Council v Adeogba/ Visvardis [2016] EWCA Civ 162. In particular the Panel noted that it must consider whether to proceed by reference to all the circumstances of which it is aware, with fairness to the practitioner being of prime importance, but fairness to the regulator and the public interest also being taken into account.

4. The Panel noted that the Registrant had not sought an adjournment. The Panel was satisfied that all reasonable efforts had been made to serve the Registrant with the notice of hearing and concluded that the Registrant had voluntarily absented himself from the proceedings. The Panel noted that there had been no engagement at all during the regulatory process and no change of address had been indicated to the HCPC by the Registrant. In the absence of his engagement in the regulatory process, there was nothing to indicate that the Registrant was likely to attend a subsequent hearing if the matter was adjourned.

5. The Panel recognised that the Registrant could be disadvantaged if the hearing was to go ahead in his absence, as he would be unable to challenge witnesses and put his own case forward. The Panel determined that the Registrant had voluntarily absented himself from the proceedings and he had also failed to take the opportunity to put forward written representations. Furthermore, the Panel knew something of his position from the representations he had made during the Trust’s internal investigation. In this respect, the Panel was mindful of its role, in accordance with McDaid v NMC [2013] EWHC 586, to make such points on behalf of an absent Registrant as the evidence permitted, which would go some way to mitigating any disadvantage.

6. The Panel also noted that there were four witnesses scheduled to attend the hearing. Accordingly, it would be in the interests of the witnesses for the hearing to proceed on the date it was scheduled rather than incurring any further delay and the associated effect on their memories. The wider public interest is also best served by dealing expeditiously with cases where a Registrant’s fitness to practise is in issue. This is consistent with the HCPC’s role to protect the public.

7. In all of these circumstances, and given the nature of the concerns raised, the Panel concluded that the public interest and the interests of the witnesses required it to consider the issues associated with this case expeditiously.  It was therefore appropriate and fair to proceed in the absence of the Registrant today. The Panel would draw no adverse inferences from his  non-attendance.

Application to amend the Allegation
8. The Panel next heard an application by Mr Millin, on behalf of the HCPC, to amend the Allegation as Particularised above. The Registrant had been notified of the application and the details thereof on 20 September 2017. No objections had been received by, or on behalf of, the Registrant. The Panel received and accepted the advice of the Legal Assessor. It was satisfied that the amendments were necessary and desirable as they provided greater clarity, did not substantively change the nature of the Allegation, and were not prejudicial to the Registrant.

Consideration of  potential under-prosecution
9. At the conclusion of Colleague A’s evidence the Panel invited representations in respect of the possibility that there was a potential, at that stage, for it to conclude that the case had been under-prosecuted.  It was mindful that Colleague A was the only witness who could give evidence in respect of Particular 2 and those parts of Particular 3 which were inextricably linked with the facts of Particular 2.  The Panel noted that, in her oral evidence, Colleague A had asserted, on at least four occasions, that she considered that the Registrant had been lying (or words to that effect) when he informed her that she was being investigated by the Human Resources Department of the Trust. The Panel therefore invited submissions and requested legal advice on the appropriateness or otherwise of there being an additional Particular in which the Registrant was charged with an allegation of dishonesty. It stressed that, at that point, it had made no determination on the facts; neither had it made an assessment as to the credibility of Colleague A.  Nevertheless, the Panel considered that, in discharging it’s duty to be proactive in its own proceedings, the matter must be properly raised and considered at the stage when all of the evidence in respect of Particular 2 had been received; and that was at the conclusion of Colleague A’s evidence.

10. Mr Millin, on behalf of the HCPC, drew the Panel’s attention to the case of PSA v HCPC & Doree [2017] EWCA Civ 319.  That case identified, amongst other things, that there would be instances where a late amendment of the Allegation faced by a Registrant would be justified, even after the evidence had been heard and findings of fact had been made. In Doree reference was made to the case of R (on the application of the Council for the Regulation of Health Care Professionals) v Nursing and Midwifery Council and Kingdom [2007] EWHC 1806 (Admin), in which a Committee of the NMC made no finding of misconduct on any of the charges pleaded. It was held that a failure to charge the Registrant properly in that case was “a serious procedural error”. If the issue of dishonesty had been on the charge sheet and decided against the Registrant, the finding that there had been no misconduct would, “undoubtedly have been unduly lenient” (paragraph 31). The submission that the Committee “could not reconsider or amend the charge once the facts were proved” was also rejected.

11. Mr Millin accepted therefore that there was a power for the Panel to amend the Allegation to include a charge of dishonesty against the Registrant at this stage. He submitted however, that it was not necessary in the present case as the gravamen of the misconduct before the Panel was contained within the charge of bullying and harassment at Particular 3 of the Allegation. Evidence regarding the potentially untrue information given by the Registrant to Colleague A was adduced as an example of that behaviour, upon which a finding of misconduct could legitimately be found. The present case could therefore be distinguished from the case of R v NMC on that basis.

12. The Panel received and accepted the advice of the Legal Assessor.  It noted that it had an inherent power to amend the Allegation, in the interests of justice and in accordance with the cases already cited.  It was also mindful of the guidance in the cases of Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2004] EWCA Civ 1356 and The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council, Ms Winifred Nompumelelo Jozi [2015] EWHC 764 (Admin).  It was aware that the duty of a disciplinary tribunal is to play a more proactive role than a judge presiding over a criminal trial and that it must ensure that the severity of the Registrant’s conduct was charged and presented to it as part of the Allegation in order to ensure that the case did not go "off on a fundamentally misconceived footing” [paragraph 23, Jozi]. However, the Panel was also aware that a careful balance must be struck between ensuring the case was properly presented, identifying under-prosecution and avoiding an appearance of bias in accordance with the principles of Porter v Magill [2001] UKHL 67.

13. The Panel considered very carefully the submissions made and the legal advice received.  It was mindful that it must reflect the interests of justice, in terms of fairness to the Registrant and also in the wider public interest of ensuring cases are appropriately prosecuted in order for it to discharge it’s duty to protect the public. With these considerations in mind, the Panel determined that it was able to proceed with this case without the need to amend the Allegation to include a charge of dishonesty.  It noted that, were it to find Particular 2 proved to the requisite standard (and no such decision had yet been made), it would not be necessary to reference dishonesty, as the mischief behind, and the seriousness of, the Registrant’s alleged conduct was contained within the ‘bullying and harassment’ charge at Particular 3.  Unlike the case of R v NMC, there was a route available to this Panel upon which it could base a fully informed decision in relation to the ground of misconduct by reference to the matters pleaded at Particular 3, without the need for an amendment.  Furthermore, the Panel noted that, whilst Colleague A’s perception was that the Registrant had lied to her, there was no independent evidence from the Trust as to whether there had in fact been an investigation focussed upon her at the relevant time. In all of these circumstances, the Panel could identify no procedural irregularity or undercharging in the present case and determined to proceed with the Allegation in it’s current form. The Panel was satisfied that this decision was appropriate and proportionate in all the circumstances of which it was aware; it also reflected the interests of fairness to the Registrant and was in the wider public interest.

Proceeding in private
14. The Panel determined that it would hear those parts of the case in which reference was made to the health and private life of the witnesses, in private, under Rule 10 (1)(a) of the Rules. In making this decision the Panel received the advice of the Legal Assessor and  had regard to the HCPTS Practice Note ‘Conducting Hearings in Private’ dated March 2017. The Panel acknowledged that there is a presumption that hearings will be held in public and noted that the witnesses identities were being redacted such that they could not be identified by members of the general public. Nevertheless, the Panel considered that the witnesses may be identifiable to colleagues and others who knew them.  Furthermore, it would enhance the quality of the oral evidence if matters personal to the witnesses were given in private. The decision is therefore to protect the private life of the witnesses which the Panel considers outweighs the public interest in this instance.

Background
15. The Registrant is a registered Operating Department Practitioner (“ODP”). He was employed by Epsom and St Helier University Hospitals NHS Trust (“the Trust”) in various roles from June 2001. In February 2010, he became Matron for Epsom Theatres, this was a ‘Band 8A’ position. Within this position, and amongst other things, he managed a team of eight people in ‘Band 6 and 7’ positions.

16. During a Care Quality Commission (“CQC”) visit in November 2015, concerns were raised about inappropriate behaviour, particularly bullying and harassment, at Epsom Theatres. The Trust commissioned a company, called Consulting at 216, to undertake an informal investigation into the organisational culture of the Trust in December 2015. During that investigation, concerns were raised regarding the Registrant’s behaviour.  In response to this, in February 2016, the Trust commissioned Consulting at 216 to undertake a formal investigation into the Registrant’s conduct. Both investigations were conducted by an independent consultant instructed by Consulting at 216. The Registrant did not engage with the second investigation which was into his alleged conduct.

17. Information gathered in these investigations forms the basis of the Allegation.

Decision on facts
18. The Panel carefully considered all of the evidence in the case. It noted the submissions of Mr Millin and it accepted the advice of the Legal Assessor. On behalf of the HCPC, the Panel heard oral evidence from Witness KW, Colleague A, Colleague B, Colleague C and Colleague E. It also considered a written witness statement from a Legal Assistant which was uncontentious, the purpose of which was to exhibit relevant documentation. The Registrant did not attend or give evidence; the Panel drew no adverse inference from this fact.

19. The Panel received two bundles of documentation from the HCPC, comprising the witness statements of those who gave evidence and 181 pages of exhibits. It disregarded any reference to incidents which do not form part of the Allegation and reminded itself that the burden of proving the facts is on the HCPC alone and that the standard of proof is the ordinary civil standard, namely the balance of probabilities.

20. The Panel noted the case of Enemuwe v Nursing and Midwifery Council [2015] EWHC 2081 and disregarded the findings of the internal investigation conducted by the Trust. The Panel was not provided with the conclusion of the second Trust investigation. Furthermore, the Panel ensured that it was not influenced in its deliberations by its knowledge of those internal processes. The Panel also noted the case of Mahfouz v GMC [2004] EWCA Civ 233 and disregarded several parts of Colleague A’s written evidence which it had had sight of but which were not admitted in evidence by the HCPC. Similarly, it disregarded parts of Colleague E’s oral evidence, at the invitation of Mr Millin.

Credibility of the Witnesses and Assessment of the Evidence
21. The Panel first made an assessment of the credibility of all the witnesses that appeared before it:

Witness KW
22. Witness KW undertook the internal investigations on behalf of the Trust. The Panel considered that she was a very experienced and independent investigator who gave credible evidence. She gave evidence regarding her efforts to engage the Registrant in the internal investigations and exhibited certain documents and records produced during those investigations. Her evidence was largely uncontentious as she had no direct involvement in the incidents upon which the factual Particulars of this case were based.

Colleague A
23. At the relevant time, Colleague A was a Band 7, Senior Sister in the position of Day Case Unit Manager at Epsom Theatres. The Registrant was Colleague A’s line manager. The Panel considered that Colleague A gave fair and credible evidence which she did not seek to embellish. She was prepared to give evidence which was favourable to the Registrant, and in that respect, the Panel noted that she considered that she got on well with the Registrant on occasions. However, she was confident in respect of all of her evidence, particularly regarding the events at Particular 2 of the Allegation. The Panel noted that those events had a significant and lasting impact upon her and her distress was clearly evident during the course of her oral evidence.

Colleague B
24. Colleague B was a Band 6 Sister at the relevant time. The Registrant was her senior manager. The Panel considered her evidence to be credible and consistent with her written statement. It was given in a fair, calm and measured way and it was clear when she was reporting information imparted to her by others.

Colleague C
25. Colleague C was a Band 6 Sister at the relevant time. The Registrant was her senior manager. The Panel considered Colleague C to be a truthful witness whose oral evidence was largely consistent with her written statement. However, the Panel noted that her evidence, on occasion, strayed into opinion and contained assumptions. For example the Panel did not consider it could attach any weight to her opinion that the Registrant’s conduct had impacted upon the health of people within the department. There was no independent evidence of causation in this respect. The Panel considered that her personal feelings had an impact upon her view of the Registrant’s conduct and was therefore less objective than it might have been. Nevertheless, the Panel concluded she gave truthful evidence relating to events that were within her direct knowledge. The Panel noted that those events had a significant and lasting impact upon her and her distress was clearly evident during the course of her oral evidence.

Colleague E
26. Colleague E was a Band 7, Senior Sister at the relevant time. The Registrant  was her line manager. The Panel considered her evidence to be consistent and credible.  It noted that she endeavoured to give evidence within her own knowledge and she was prepared to say positive things about the Registrant, such as the fact that the Registrant was largely respectful towards her. She also readily admitted when she had not personally witnessed behaviours observed by other colleagues. The Panel considered her account of events to be fair, balanced and reliable.

Hearsay Evidence
27. The Panel exercised caution in considering the hearsay evidence. The witnesses all gave evidence of events reported to them by others, to varying degrees. The Panel attached weight to the hearsay evidence, only to the extent that it was appropriate, where this evidence was corroborated or consistent with other evidence received.

The Registrant
28. The Panel did not hear from the Registrant.  Accordingly, it was unable to assess his credibility or reliability. The Panel recognised that the Registrant’s position was largely unknown because the relevant issues had not been discussed directly during the one interview in which he participated during the Trust’s first investigation. Nevertheless, within this interview, the Panel noted that the Registrant had asserted that:

 ‘I believe that all staff are treated equally, and I support them equally’.

29. Questions relating to the Registrant’s treatment/support of staff were put to the relevant witnesses and the Panel took into account their responses and demeanour when forming a view about the weight to be attached to their evidence. The Panel also noted that the Registrant was a man of previous good character and, as stated above, it drew no adverse inference from his absence.

Stem – found proved
Whilst registered as an Operating Department Practitioner and during the course of your employment at Epsom and St Helier University Hospital Trust between  1 March 2006 and February 2016:
30. The Panel was satisfied that the Registrant was employed as an ODP at the Trust during the relevant period. The oral evidence of the witnesses was corroborated by the documents exhibited in this respect.

Particular 1 – found proved
You made inappropriate and/or intimidatory comments to colleagues, in that you:                                                                                          
31. The Panel found all of the factual sub-Particulars to charge 1 of the Allegation proved, as detailed below. It was satisfied that each of these facts amounted to the making of inappropriate comments to colleagues. Furthermore, with the exception of sub-Particulars 1(b), 1(d) and 1(h), the Panel considered that each of the facts also amounted to the making of intimidatory comments.

32. In reaching these conclusions the Panel had regard to the definitions of the relevant terms as follows:
 Inappropriate: meaning ‘not suitable or proper in the circumstances’;
 Intimidatory: derived from the verb ‘intimidate’ meaning ‘to frighten or overawe (someone), especially in order to make them do what one wants’.

33. The Panel took into account the impact of the individual facts found proved upon the relevant witnesses, and considered that the conduct was part of a pattern of behavior over a protracted period in which the Registrant refused to respond to requests for support or help from his staff within his capacity as Matron. His use of words and wider attitude, particularly towards female members of staff, was entirely inappropriate in the busy surgical environment within which they worked, or indeed any professional environment, and in many respects constituted  an abuse of power. 

34. The Registrant’s comments and general attitude were indicative of a lack of support for more junior staff which undermined their professional confidence and affected their morale, motivation and the way in which they operated within the professional environment.  This was corroborated by the four witnesses who had worked alongside the Registrant and who gave oral evidence. Notably, they confirmed that the Registrant did not wish to be “bothered” in assisting or supporting them, particularly in relation to ensuring that the surgical lists were properly staffed at times of extreme pressure. These were the duties and responsibilities associated with his position, yet his attitude (which Colleagues A and C described as misogynistic) and the language he adopted was designed to deter staff from asking him for assistance and support, in circumstances within which it was entirely appropriate for them to do so. The staff were accordingly deterred in this respect. Without exception, the witnesses gave evidence that they would avoid approaching him or even interacting with him.  For example, Colleague C gave evidence that she would deliberately miss taking rest breaks throughout the day and remain in theatre in order to avoid interacting with the Registrant. Colleague E gave evidence that the Registrant was “generally irritated by people”. Hence the finding of “intimidatory” comments in respect of all but three of the sub-Particulars. 

Particular 1(a) – found proved
Stated to colleagues “JFDI” and/or “just f***ing do it” or words to that effect on multiple occasions.                                          
35. Colleagues A, C and E confirmed that it was the Registrant’s practice to routinely use the words “just f***ing do it” or the acronym “JFDI” when interacting with colleagues. In particular the Registrant used these terms to female colleagues of a subordinate grade, primarily when being asked for help to solve a problem in his capacity as Matron. Colleague B confirmed that, whilst she had never personally heard the Registrant use either of these specific terms, she was aware from others that he did.  Furthermore, he had once told her directly to, “just f***ing get on with it” when she had requested help in staffing a surgical list. The Panel considered this language to be virtually identical to the term “Just f***ing do it”. The evidence of Colleagues A, B, C and E  was consistent and corroborative. Accordingly, Particular 1(a) was found proved.

36. All colleagues who gave oral evidence confirmed that there was no general culture of swearing within the department. Furthermore, the Registrant was able to moderate his language such as in formal meetings. However, he chose not to do so when dealing with more junior staff, who were predominantly female, in order to deter them from requesting assistance from him. Colleague B gave evidence that the use of this terminology, “made her feel inferior, panicky and nervous….like she wasn't doing her job properly”. Colleague C said she found it distressing and frustrating, and the Registrant used this terminology more frequently towards female staff. Whilst Colleagues A and E were not personally offended by this language, they recognised that it was inappropriate and were aware that it did upset other members of staff. They had come to accept it from the Registrant as he used it so frequently. In all of these circumstances, the Panel considered that the use of this language was both inappropriate and intimidatory.

Particular 1(b) – found proved
Called female colleagues “love” or words to that effect on multiple occasions.
37. Colleagues A, B, C and E gave consistent and corroborative evidence that the Registrant called female colleagues “love” on an almost daily basis.  Accordingly, Particular 1(b) was found proved. Whilst generally the witnesses who gave oral evidence did not consider the use of this term to be offensive, they confirmed that the Registrant would frequently use this term in a patronising and demeaning way. Colleague B had heard nurses ask the Registrant to desist from calling them “love” but he did not refrain from doing so. Colleague C asserted that she considered he used the term towards women in an unfriendly and misogynistic way. Colleagues A and E asserted that the use of this terminology was symptomatic of the Registrants tendency to demean the women whom he came into contact with. In all of these circumstances, the Panel was satisfied that the use of this term was inappropriate in the context and way in which it was used.  However, it did not consider that it amounted to intimidatory language.

Particular 1(c) - found proved
Called Band 7 colleagues “shower of s**t” or words to that effect on multiple occasions.
38. Colleagues A, B, C and E gave consistent and corroborative evidence that the Registrant referred to Band 7 colleagues as a “shower of s**t” on multiple occasions.  Accordingly, Particular 1(c) was found proved. Colleague B heard the Registrant make this comment to a number of senior male colleagues, she considered this was inappropriate and demeaning particularly given that most Band 7 staff were female.  Colleagues A and E, who were both Band 7 staff themselves, considered that the Registrant was referring to them in making these comments, and Colleague C considered that he was also referring to her despite the fact that she was a Band 6 member of staff at the time.  The witnesses reported feeling distressed, undervalued, under-supported and demoralised. In these circumstances the Panel was satisfied that the use of this terminology to refer to primarily female staff of a more junior grade, amounted to inappropriate and intimidatory language.

Particular 1(d) – found proved
Stated to Colleague A on an unknown date in 2015 or 2016 “cheers for popping in love,” or words to that effect.
39. Colleague A gave persuasive and credible evidence that, during the relevant period,  the Registrant had responded to a problem, which she had brought to his attention, with the words, “I’ll leave you to sort that out cheers for popping in love”. Accordingly, Particular 1(d) was found proved. The evidence of Colleague A was that she found this language to be inappropriate  and patronising but that she was not intimidated or upset by it. Rather, she had become used to this type of language from the Registrant in a professional context. In these circumstances the Panel considered this amounted to inappropriate, but not intimidatory, language.

Particular 1(e) – found proved
Stated to Colleague B on an unknown date: in or around 2015 or 2016 “suck up and shut up,” or words to that effect
40. Colleague B gave compelling evidence that the Registrant made this remark to her within the context of a meeting with several other members of staff present. Accordingly Particular 1(e) was found proved. The evidence was that this comment had a marked impact upon the meeting, the other members of staff fell silent, apparently in shock or surprise. Colleague B felt embarrassed, blushed and kept her head bowed. She also asserted that this made her feel inadequate and under significant pressure. In all of these circumstances, the Panel considered that this amounted to the making of a comment which was both inappropriate and intimidatory.

Particular 1(f) – found proved
Stated to Colleague B on an unknown date: if you want to dress up darling, you can do that. But I don’t care what you wear,” or words to that effect
41. Colleague B gave consistent and credible evidence that she was attempting to reach a compromise with a male colleague whom she was managing, in respect of his uniform.  She was trying to get him to wear uniform in anticipation of a Care Quality Commission (“CQC”) inspection, he preferred theatre scrubs as he found the uniform uncomfortable. The male nurse approached the Registrant directly in this regard. During the subsequent conversation between the Registrant and Colleague B the Registrant made the comment alleged. Accordingly, Particular 1(f) was found proved. In the context within which this comment was made, the evidence of Colleague B was that she felt belittled and humiliated. Her authority in respect of the male nurse was undermined and she considered it demonstrated the Registrants pattern of disregard for women. In these circumstances the Panel was satisfied that it amounted to both inappropriate and intimidatory language.

Particular 1(g) – found proved
Stated to Colleague C on an unknown date “you won’t be able to give your husband a hand job then,” or words to that effect
42. Colleague C gave persuasive evidence that the Registrant made this comment to her when she requested permission to purchase a specific mouse-mat in order to relieve symptoms of a health condition. Accordingly, Particular 1(g) was found proved. Colleague C’s evidence was that this comment caused her and her husband to be upset, angry and embarrassed given its personal and sexualised nature. In these circumstances the Panel was satisfied that it amounted to an inappropriate and intimidatory comment.

Particular 1(h) – found proved
On an unknown date called Colleague D “the illiterate Glaswegian,” or words to that effect.
43. Colleague D was the Theatre Anaesthetics Manager who held a more senior position than the Registrant. Colleague E gave compelling evidence that she heard the Registrant refer to Colleague D in the way described. Accordingly, Particular 1(h) was found proved.  Colleague E was unclear whether Colleague D, who was male and not present at the time the comment was made, knew that the Registrant used this terminology, but she asserted that she found that type of derogatory language “difficult to listen to”. This was clearly a disrespectful and highly inappropriate comment, however, the Panel did not consider that this amounted to an intimidatory comment in the circumstances described.

Particular 2 – found proved
On approximately 10 December 2013 told Colleague A that she was being investigated by human resources, which was not the case.         
44. Colleague A gave credible evidence that the Registrant informed her, on more than one occasion during the relevant period, that she was being investigated by the Human Resources Department (“HR”) of the Trust in relation to her agreed flexible working hours contract. In doing so the Registrant asserted that, whilst he did not personally have a problem with the hours she worked, more senior managers and some of Colleague A’s own staff did have concerns in that they considered that it was not working for the department. The Panel noted that the perception of Colleague A was that the Registrant had lied to her when he informed her that she was being investigated. She based this conclusion upon information she received from an unnamed source who worked in HR, who informed her that there was no such investigation, and also the fact that she received no formal notification of an investigation in accordance with the Trust’s usual policy. The Panel noted that there was no independent evidence from the Trust as to whether there had, in fact, been an investigation at the relevant time.  Nevertheless it was satisfied that, in the absence of any formal notification to Colleague A of an investigation, it was more likely than not that there was no such investigation. Accordingly, Particular 2 was found proved.

Particular 3 – found proved
Your actions as described in paragraph 1 and 2 constitute bullying and /or harassment.             
45. In considering this Particular the Panel had regard to, but was not limited to, the Trust’s Bullying and Harassment Policies dated May 2011 and October 2014, by which the Registrant was bound at the relevant time.  It noted in the 2011 policy the definitions given were as follows:

Harassment in general terms is unwanted conduct affecting the dignity of all persons in the workplace.  It may be related to age, sex, race….or any personal characteristic of the individual, and may be persistent or an isolated incident.  The key is that the behaviour is viewed as intimidating upsetting, embarrassing, humiliating, demeaning, offensive and unacceptable to the recipient. The recipients view will not, however constitute the only interpretation at to what is reasonable behaviour and what is not.

Bullying occurs when one person finds the behaviour of another individual… offensive, intimidating, malicious or insulting. This sort of behaviour is often unpredictable, unfair, irrational and can also be unseen.  Bullying may also be regarded as the use of position or power to coerce others by fear, persecution or to oppress them by force or threat…. Bullying can result from persistent criticism, both verbal and non face to face,….which humiliates and demeans the individual, gradually eroding his/her sense of self worth. As with harassment, the recipients view will not, however constitute the only interpretation at to what is reasonable behaviour and what is not.

46. These definitions remained largely identical in the Trusts’s updated policy dated October 2014. The Panel also noted a further definition of harassment found in relation to the criminal law, namely: ‘behaviour which causes alarm or distress’.

47. The Panel was satisfied that the pattern of behaviour found proved at Particular 1 of the Allegation amounted to both bullying and harassment. The Panel recognizes that the Registrant was managing staff in a highly pressured environment. However, the comments and language used were offensive, patronising and entirely inappropriate and were directed primarily towards female staff of a lower grade than the Registrant in order to coerce them into refraining from requesting his professional support, in circumstances where it was appropriate for them to do so. The witnesses reported, in compelling detail, the detrimental impact which the Registrant’s conduct had upon them and the department. For example, Colleague B asserted that the Registrant undermined her confidence in her work.  He  trivialised matters which she brought to him as her line manager and she was made to feel “inferior, nervous and panicky”. It was clear from the consistency of the evidence received that the Registrant treated females differently than males. Colleague B reported seeing Colleague A crying immediately after an interaction with the Registrant and it appeared commonplace for female members of staff to cry immediately following an interaction with the Registrant. The Panel considered it worrying that the Registrant’s behaviour was so persistent and ingrained that the witnesses accepted it as normal for him. Colleagues A and E both described it as unacceptable but that it was “just Phil being Phil”.

48. Colleague C described the Registrant’s conduct variously as “dismissive”, “rude”, “upsetting”, “distressing” and “frustrating”. She stated that there was often a member of staff  in tears somewhere in the department as a result of his conduct.  All members of staff who gave oral evidence considered the Registrant’s behaviour to be detrimental to the department and demoralising to staff but did not consider they could do anything about it without making matters worse. It was therefore something they came to tolerate, and they  all adjusted the frequency with which they would approach the Registrant for support as a result. Colleague C gave a particular example to corroborate this conclusion, in respect of an occasion when she e-mailed the Registrant, outlining problems which she was experiencing with the rostering of the department. She copied this e-mail to the General Manager. The Registrant subsequently marginalised her and stopped acknowledging her  entirely for six weeks. He also removed her from the Sisters e-mail group, she therefore did not have access to information regarding the management of the department. This evidence was corroborated by Colleague E. Whilst this incident did not form part of the Allegation, it provides corroborative information as to why Colleagues A, B, C and E consistently maintained that, to challenge the Registrant’s conduct would have risked making matters worse for them and the department.

49. In respect of Particular 2, the Panel was similarly satisfied that the conduct found proved amounted to bullying and harassment in accordance with the definitions given. Colleague A gave a vivid description of the impact of being told inaccurately that she was being investigated by HR. She described being shocked and incredibly upset. The Registrant mentioned or implied she was being investigated repetitively over a period of several years. In particular the Registrant called her into his office specifically to impart this information to her formally, and on more than occasion, it was directly following a period of annual leave in the context that he had informed her there was dissatisfaction amongst her staff and managers with her flexible working pattern. She considered this conduct to be a threat to her job and it undermined her confidence in her own work and trust in those with whom she worked. These events have had a lasting effect upon her and she remains distressed by them.

Decision on grounds
50. The Panel next determined whether the facts found proved amounted to misconduct. The Panel accepted the advice of the Legal Assessor. It bore in mind that there is no standard of proof to be applied at this stage; consideration as to whether the threshold for misconduct has been reached is a matter for its own judgment.

51. The Panel had specific regard to the helpful guidance provided in Roylance v GMC (No 2) [2000] 1 AC 311, Meadows v GMC [2007] QB 462 and Shaw v GOsC [2015] EWHC 2721. It noted that misconduct involves an act or omission which falls short of what would be proper in the circumstances and that in order to amount to misconduct, the act or omission needs to be serious and one which would attract a degree of strong public disapproval.

52. The Panel first considered whether the proven facts amounted to breaches of the HCPC Standards of Conduct, Performance and Ethics 2012 (‘the Standards’). It bore in mind that breaches of any of the Standards did not, in themselves, necessarily constitute misconduct. 

53. The Panel determined that the following Standards had been breached:
3 You must keep high standards of personal conduct;
7 You must communicate properly and effectively with…….other practitioners;
13 You must….make sure that your behaviour does not damage the public’s confidence in you or your profession.


Particular 1
54. The Panel considered that the conduct found proved at Particular 1 was indicative of a course of conduct towards more junior colleagues, who were primarily female, which amounted to systematic intimidation and bullying. This undermined their professional confidence and affected morale, motivation and the way in which they operated within the professional environment. The Registrant adversely affected the self-esteem of his staff and their willingness to engage with him to seek support and guidance on matters which fell  within his responsibility.

Particular 2
55. The Registrant created an environment of mistrust, distress and unnecessary worry for Colleague A which undermined her professional confidence and her relationship/trust in others. The Panel considered this form of bullying and harassment to be particularly insidious and worrying given it was apparently designed specifically to isolate and undermine a professional colleague. The effects upon Colleague A have been significant and long-lasting.

Particular 3
56. The Registrant’s course of bullying and harassment of colleagues endured over a period of several years and affected a significant number of co-workers in a very busy department to whom the health, safety and lives of patients were entrusted. The Panel considered it to be of particular concern that the Registrant’s conduct was so persistent and ingrained that those affected accepted such unacceptable behaviour as the norm and something to be tolerated.

57. In these circumstances, the Panel considered, that each of Particulars 1 to 3 were capable of amounting to misconduct individually. More seriously, however, was that when seen collectively, the Registrant’s actions adversely affected a significant number of colleagues over a sustained period and impacted upon the efficiency of the department. The Registrant’s behaviour amounted to an abuse of power given that generally the victims of his behaviour were female colleagues who were more junior members of staff, whereas the Registrant was a well established ODP operating in a senior management position.

58. His failure to provide proper support and guidance to those whom he managed and the perpetuation of an environment of bullying, misogyny and harassment, created a potential risk to patient care, and the reputation of both the department and his profession in general. The Registrant demonstrated a pattern of inappropriate and unprofessional conduct which fell far short of that which would be expected of a registered ODP and which would undoubtedly attract a high degree of strong public disapproval. The Panel therefore determined that the Registrant’s actions amounted to misconduct.

Decision on impairment 
59. The Panel next determined whether, by reason of his misconduct, the Registrant’s fitness to practise is impaired. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on ‘Finding that Fitness to Practise is Impaired’, dated March 2017. It bore in mind that not every finding of misconduct will automatically result in a conclusion that fitness to practise is impaired and noted that impairment is “forward looking”. The Panel had specific regard to the guidance in the case of Meadows v GMC [2007]1 All ER 1, and Council for Healthcare Regulatory Excellence (CHRE) v NMC and Grant [2011] EWHC 927.

60. The starting point for the Panel was that the misconduct identified was serious. Through being abusive and undermining colleagues he failed to provide proper support and guidance to those whom he managed (and who had a right to look to him for leadership and support) and the perpetuation of an environment of bullying, misogyny and harassment, the Registrant’s conduct fell far short of that which would be expected of a registered ODP. In so doing, the Registrant created a potential risk to patient care, the welfare of co-workers, the reputation of the department within which he worked and that of his profession in general. The Registrant breached a fundamental tenet of his profession in failing to maintain high standards of conduct and communication with colleagues.

61. The Panel first considered whether the Registrant’s fitness to practise is currently impaired on a personal basis. Whilst the Registrant engaged during the first investigation at the Trust, he did not engage during the subsequent formal investigation into his conduct, neither has he engaged with his regulator. The Panel therefore knows nothing of his current attitude, position or indeed whether he has practised as an ODP since his resignation from the Trust in July 2016.

62. There has been no acknowledgement by the Registrant of any wrongdoing on his part and no demonstration of remorse for his conduct. The Panel is not aware that he has ever apologised to his colleagues for his conduct towards them. The Panel considered that the misconduct found proved is attitudinal in nature rather than clinical, and that this is more difficult to remedy than clinical errors. Nevertheless, it is not impossible to remedy this type of misconduct.  However, there is an absence of evidence of remediation and insight into the failings identified. In all of these circumstances, the Panel is satisfied that the risk of repetition is extremely high should the Registrant ever practise in a professional capacity again. Any such repetition of the failings identified, would potentially put patients at risk of harm and have an adverse effect on the Registrant’s colleagues, from which they require protection.  Accordingly, the Panel determined that the Registrant is currently impaired on personal level.

63. The Panel then went on to consider whether the wider public interest dictated that a finding  of impairment was required in this case. It noted that the findings made against the Registrant related to behaviour towards colleagues.  This presented an indirect risk of harm to patients due to the impact of the Registrant’s behaviour on the efficiency and morale of his colleagues in a high-pressure healthcare environment. In these circumstances, the public interest in upholding proper professional standards and public confidence in the profession and the regulatory process would be undermined if a finding of impairment was not made.

64. Accordingly, the Panel finds that the Registrant’s fitness to practise is also currently impaired in the wider public interest.

Decision on sanction
65. The Panel considered the submissions made by Mr Millin and it accepted the advice of the Legal Assessor.

66. The Panel is aware that the purpose of any sanction is not to be punitive, though it may have a punitive effect. The Panel has borne in mind that its primary function at this stage is to protect the public, while reaching a proportionate sanction, taking into account the wider public interest and the interests of the Registrant. The Panel has taken into account the HCPC Indicative Sanctions Policy and applied it to the Registrant’s case on its own facts and circumstances.

67. The starting point for the Panel was that the misconduct was very serious. It constituted numerous breaches of the Standards and was also a breach of a fundamental tenet of the profession. Communicating  and working effectively with other professionals in a respectful manner and in the best interests of patients and the working environment are  fundamental obligations upon all ODP’s.

68. The Panel identified the following aggravating factors in this case:
• The failings identified were persistent, endured over a prolonged period of time and affected a large number of colleagues who were junior to the Registrant;
• The Registrant, through his conduct, appeared to have little regard as to how his colleagues were to achieve his instructions regarding the management of the department nor the impact of his behaviour upon his colleagues;
• The Registrant’s conduct towards at least two of his co-workers has had an on ongoing impact upon them which was evident whilst they were giving their oral evidence;
• There was an absence of remorse and no acknowledgement of wrongdoing on the part of the Registrant either during the internal investigation or within the regulatory proceedings;
• The Registrant’s behaviour amounted to an abuse of power given that generally the victims of his behaviour were female colleagues who were junior members of staff whereas the Registrant was a well established ODP, operating in a senior management position;
• The Panel identified an ongoing risk to the public, fellow practitioners and the reputation of the profession;
• There was a lack of demonstrable insight and remediation.

69. To balance against those issues, the Panel identified the following mitigating factor:
• The Registrant was of previous good character. The Panel noted that he had been registered as an ODP  with the HCPC and it’s predecessor since March 2001. There was no information before it that there had been any other concerns with the standard of the Registrant’s conduct during that time.

70. In conclsion, the Panel has found that the Registrant continues to present a risk of harm to the public and co-workers and has presented a risk of damage to the reputation of the profession. In light of all of these matters, the Panel has considered what sanction, if any, should be applied, in ascending order of seriousness.

No Further Action
71. The safety of the public (including colleagues) and the wider public interest would not be protected if the Panel were to take no further action in a case of this seriousness.

Mediation
72. The Panel does not consider mediation to be an appropriate option in this case. Given the serious and enduring nature of the misconduct, it could not be adequately addressed by mediation.

Caution
73. A Caution Order would be entirely insufficient to mark the seriousness of the Panel’s findings and to protect the wider public interest. In particular, the Panel noted that the failings identified were not  an isolated lapse, they were serious in nature, there was a high risk of reoccurrence and an absence of insight and remediation.

Conditions of Practice
74. The Panel concluded that it would not be possible to formulate workable or practicable conditions which would adequately address the attitudinal issues identified or reflect the wider public interest.  Even if the Panel could formulate appropriate conditions, it has no confidence that the Registrant would be willing or able to comply, given his lack of insight and engagement in the regulatory process. Furthermore, the Panel considered that a Conditions of Practice Order would not reflect the seriousness of the misconduct in this case.

Suspension
75. The ISP suggests that:
“A Suspension Order should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and thus, striking off is not merited’. However, it goes on to assert that, ‘if the evidence suggests that the registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option”.

76. In applying these principles to the current case, the Panel was satisfied that there had been a serious breach of the standards of expected conduct which caused a risk of harm to the patients, co-workers and the reputation of the profession. The failings identified were not isolated in nature rather the Registrant undertook a sustained pattern of bullying and harassment towards a number of colleagues over a prolonged period. There was nothing before the Panel to suggest that the Registrant has or is willing to address the failings identified. The Panel has also identified a high risk of repetition, the Registrant therefore, continues to present a risk of harm.

77. In the light of this, a Suspension Order, which recognises that there is potential for a return to unrestricted practice at a future point, would be insufficient to protect the public and uphold the wider public interest in the long-term. Furthermore, the Panel considers that, in this case it is necessary to impose a sanction which would have a real deterrent effect amongst other registered professionals and to send a clear message that such conduct is completely unacceptable. In all of these circumstances, the Panel considered that a Suspension Order would be unduly lenient.

Striking Off Order
78. The ISP states that:
“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”.

79. In this case the Panel was satisfied that it could potentially protect the public in the short-term by way of a Suspension Order. However, the Registrant’s lack of insight and his inability or unwillingness to remediate matters, indicate that a Striking Off Order is the more appropriate sanction. The nature of the failings are such that a lesser sanction would lack deterrent effect and would undermine public confidence in the regulatory process.

80. The failings, coupled with his attitudinal issues, lack of insight  and lack of remediation are fundamentally incompatible with the Registrant remaining on the Register. The Panel is mindful of the potential impact this order may have upon the Registrant.  However, it is satisfied that this is an appropriate and proportionate sanction in these circumstances. The need to protect the public, and maintain confidence in the profession and the regulatory process, outweighs the impact upon the Registrant of having his name struck from the Register.

Order

That the Registrar is directed to strike the name of Mr Philip Francis Henry from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 16 May 2018.

Hearing History

History of Hearings for Mr Philip Francis Henry

Date Panel Hearing type Outcomes / Status
16/04/2018 Conduct and Competence Committee Final Hearing Struck off