Health and Care Professions Council and Mr Philip A Welburn

Profession: Operating department practitioner

Registration Number: ODP17441

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/02/2018 End: 17:00 16/02/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered as an Operating Department Practitioner you:

 

1. In or around October 2016 and November 2016, implied to the Highfield Hospital that you had an appropriate professional indemnity arrangement in place, that would cover you to work at the Highfield Hospital as an Operating Department Practitioner, when you did not.

 

2. On or around 19 November 2016, worked as an Operating Department Practitioner at The Highfield Hospital without having an appropriate professional indemnity arrangement in place.

 

3. Your actions as described at particulars 1 and/or 2 were dishonest.

 

4. The matters described at particulars 1 to 3 constitute misconduct.

 

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

Finding

Preliminary matters:
Service
1. The HCPC was represented by Ms Kathryn Sheridan of Kingsley Napley, Solicitors. The Registrant was not present and was not represented. The Panel was informed by the Hearings Officer that notice of the hearing was sent to the Registrant by post on 20 November 2017. The notice was also sent to the Registrant by email on the same date.
2. Having seen and examined unredacted copies of the service bundle and having received the advice of the Legal Assessor, the Panel was satisfied that the procedural rules which required notice of the hearing to be sent to the Registrant’s address had been complied with and that there had been good service of the notice in accordance with the rules.
Proceeding in the Registrant’s absence
3. Ms Sheridan applied for the hearing to proceed in the Registrant’s absence. Ms Sheridan submitted that all reasonable efforts had been made to notify the Registrant of the hearing. Ms Sheridan referred the Panel to the factors set out in R v Hayward and submitted that it was in the public interest for the hearing to proceed in the Registrant’s absence. Ms Sheridan also set out the chronology of email contact between HCPC and the Registrant between 21 December 2017 and 13 February 2018.  Ms Sheridan also informed the Panel that two witnesses were present and ready to give their oral evidence.
4. The Panel received and accepted the advice of the Legal Assessor who advised the Panel that its discretion to proceed in the Registrant’s absence should be exercised with the utmost care and caution. The Legal Assessor also referred the Panel to the case of Adeogba v GMC and the importance of regulatory proceedings being dealt with expeditiously.
5. The Panel noted that the Registrant emailed the HCPC yesterday (13 February 2018) with a statement to be read and considered by the Panel. The Panel therefore concluded that the Registrant expected this hearing to continue in his absence. In the circumstances the Panel considered that the Registrant had voluntarily absented himself. The Panel noted that the Registrant had not made any application for the hearing to be adjourned. The Panel had no material before it which suggested that the Registrant might attend a future hearing if this hearing was adjourned. The Panel also had regard to the fact that two HCPC witnesses had attended today to give oral evidence. The Panel was also mindful that the allegations concerned alleged conduct in 2016.
6. Taking all matters into consideration the Panel concluded that it was in the public interest for the hearing to be heard expeditiously. The Panel therefore decided to allow the application to proceed in the Registrant’s absence.
Background:
7. The Registrant is a registered Operating Department Practitioner. On 27 October 2016, the Registrant sent a number of texts to the Clinical Manager (Theatre) at BMI Highfield Hospital [“the hospital”] regarding whether he was “still on the books” of the hospital as he was hoping to work at the hospital as First Assistant to an Orthopaedic Surgeon on 19 November 2016. The Registrant also stated that, having worked at the hospital before, the hospital had his certifications and indemnity insurance details. However, the Registrant’s documentation was never located or received by the Hospital.
8. On Saturday 19 November 2016, the Registrant worked at the hospital without producing his certifications and indemnity insurance details. The Registrant was requested to produce his indemnity insurance arrangements and the Registrant confirmed that it would be produced both prior to 19 November 2016, on and retrospectively but failed to do so.
9. On 2 February 2017 the Registrant sent an email to HCPC in which he accepted that his indemnity insurance was not in place for the period from 1 October to 31 December 2016.
Decision on Facts:
10. The Panel was provided with a Final Hearing bundle numbered pages 1-31 and an exhibits bundle numbered pages 1-113. The Panel heard oral evidence from two witnesses called on behalf of the HCPC. Witness 1 who is the Executive Director of the Hospital and Witness 2 who is the HCPC Registration Quality Assurance Manager. The Panel found that both witnesses were credible and consistent and gave evidence in a professional, even handed manner.
11. The Panel also carefully considered the contents of an email sent by the Registrant to HCPC dated 13 February 2018 and unsigned character references dated 5 and 7 February 2018.
12. Having carefully considered all of the oral and documentary evidence, the submissions made by Ms Sheridan and the Legal Assessor’s advice, the Panel found Particulars 1, 2, 3 all proved.
13. In relation to Particular 1, the Panel had regard to the text messages and email exchanges between the Registrant and the hospital both before he worked there on 19 November 2016 and after that date. On 28 October 2016 the Registrant texted that the hospital PA had his certs and indemnity insurance details. On 2 November 2016 the hospital informed the Registrant by text that they did not have his details and that they would need his certificates and indemnity insurance details. On 14 November 2016, the Registrant asked the hospital by text whether his documents had been received by post; when told that they had not been, the Registrant replied that he would resend them.
14. On 21 November 2016 (after the Registrant had worked at the hospital on 19 November 2016) the Registrant sent an email to the hospital in which he accepted he had worked there on the Saturday (which was 19 November 2016) and had forgotten to hand in the relevant documents. Witness 2 emailed the Registrant on 12 and 18 January 2017 and on 01 February 2017 again requesting copies of his insurance cover. On 2 February 2017, following the matter being referred to the HCPC, the Registrant, in an email to Witness 2, accepted that indemnity insurance was not in place for the period during which he had worked at the hospital.
15. The Panel considered that there was overwhelming evidence that the Registrant had repeatedly implied to the hospital that he had an indemnity insurance arrangement in place when he did not.
16. In relation to Particular 2, the Panel had regard to the clear evidence of Witness 1 and to the Registrant’s email to the hospital on 21 November 2016, that he had worked there on 19 November 2016. The Panel was also satisfied that no indemnity insurance was in place at that time, which was accepted by the Registrant in his email to HCPC dated 2 February 2017.
17. In relation to Particular 3, the Panel considered that the Registrant had repeatedly implied that his indemnity arrangement was in place, both before and after he had worked at the hospital on 19 November 2016. The Panel was satisfied that the Registrant, both on the occasions when he implied that he had appropriate indemnity insurance in place and when he worked at the hospital on 19 November 2016, knew that he did not have any indemnity insurance because he could not have produced details of his insurance cover to the hospital as he suggested when such cover did not exist. The Panel was also satisfied that it had been made abundantly clear to the Registrant that he could not work at the hospital without an appropriate indemnity arrangement being in place. The Panel concluded that a reasonable person would consider the Registrant’s actions as described in Particulars 1 and 2 to be dishonest.
Decision on Grounds:
18. The Panel considered that honesty and integrity are fundamental requirements for any professional who is registered with the HCPC. Furthermore, by working without insurance service users (and the hospital) were put at risk of exposure of financial loss in the event that a claim were made against the Registrant.
19. The Panel was further satisfied that the Registrant’s conduct fell seriously below the HCPC ‘Standards of conduct, performance and ethics’ at Standard 1, which requires him to promote and protect the interests of service users… and at Standard 9, which requires him to be honest and trustworthy.
20. For all of the above reasons, the Panel was satisfied that the Registrant’s conduct amounted to misconduct.
Decision on Impairment:
21. The Panel next considered whether, as a result of the misconduct found, the Registrant’s fitness to practise is currently impaired. The Panel had regard to the submissions made by Ms Sheridan on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.
22. The Panel carefully considered the HCPC practice note on ‘Finding that Fitness to Practise is Impaired’ and the references therein to the factors to be taken into account, as set out in the case of Cohen v GMC [2008] EWHC 581 (Admin). In particular, whether the misconduct was remediable, had been remedied and was highly unlikely to be repeated.
23. Whilst no clinical concerns regarding the Registrant’s practice as an Operating Department Practitioner had been raised, the Panel was provided with no evidence that the Registrant has any insight into the implications of his dishonest behaviour or the potential financial harm which could be caused to service users and to the hospital by working without an appropriate indemnity arrangement being in place. In the absence of demonstrable evidence of insight into his failings the Panel could not conclude that it was highly unlikely that his dishonest behaviour would be repeated.
24. The Panel was also mindful of the wider public interest considerations in this case, particularly the need to declare and uphold proper standards of conduct and behaviour and maintain confidence in the reputation of Operating Department Practitioners.
25. The Panel had regard to the judgement of Mrs Justice Cox in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and concluded that public confidence in the profession and in the HCPC as the regulator would be undermined were a finding of impairment not made on public interest grounds.
26. For all of the above reasons, the Panel found that the Registrant’s fitness to practise is currently impaired
Decision on Sanction:
27. The Panel moved considered what, if any, sanction to impose. At the end of the first day of the hearing, the Panel requested that the Hearing Officer send an email to the Registrant informing him that the Panel would be considering whether to impose a sanction and affording the Registrant another opportunity to make any submissions.
28. The Panel was referred to the email sent to the Registrant by the Hearings Officer on 14 February 2018 at 15:39 which was in the following terms:
“Dear Mr Welburn,
I am contacting you to advise you of the progression of the hearing.
The Panel have reached a determination in relation to the facts, grounds and impairment stages in this case. Please find attached a copy of the decision so far.
The hearing will resume at 09.30am tomorrow (15 February 2018) to consider the sanction stage.
If you wish to make any submissions to the Panel in relation to sanction then please notify the HCPC before 09.00am tomorrow morning”.
29. The Panel was informed that the above email was sent to the email address used by the Registrant on 13 February 2018. The Panel was also informed that no reply had been received by HCPC by 09.45 am on 15 February 2018.
30. The Panel was satisfied that the Registrant had been afforded an additional opportunity to make representations regarding sanction and had chosen not to do so.
31. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.

32. The Panel took into account the submissions of Ms Sheridan and accepted the advice of the legal assessor. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

33. In deciding whether to impose any sanction, the Panel had regard to paragraph 13 of the Indicative Sanctions Policy which states,
 "The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant: 
• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.”

34. Having carefully considered the above paragraphs of the Indicative Sanctions Policy, the Panel concluded that given the seriousness of the misconduct and that the Registrant’s fitness to practise is currently impaired, a sanction was required to protect the public and was in the public interest, to mark the seriousness of the matter.

35. The Panel considered that whilst the period over which the Registrant had practised without an appropriate indemnity cover being in place was relatively short, there was repeated dishonesty by the Registrant (albeit just in relation to this one issue) as shown by the text messages and emails between him and the Hospital. The Panel considered that to be an aggravating feature. The Panel also considered that the lack of any meaningful insight into his misconduct was also an aggravating feature.

36. The Panel however, accepted as mitigating factors, the fact that the Registrant has no previous disciplinary record and is otherwise a well -regarded and competent Operating Department Practitioner, as stated in the two testimonial statements provided on his behalf and the fact that the surgeon in question wanted to retain his services as the first assistant.

37. The Panel considered the available sanctions in ascending order of seriousness and concluded that taking no action or imposing a Caution Order would be not be appropriate to mark the seriousness of the matters for which the Registrant’s fitness to practise is found to be impaired. The nature of the misconduct was not of a limited or minor nature. The Panel did not consider this to be a suitable case for mediation.

38. The Panel next considered whether to impose a conditions of practice order. Paragraph 33 of the Indicative Sanctions Policy makes it clear that conditions of practice will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to redress and can be trusted to make a determined effort to do so. The Panel considered that no working or practicable conditions could be formulated, given the nature of the misconduct in this case which does not involve any clinical deficiencies and the Registrant’s lack of engagement in the regulatory process. The Panel also considered that conditions of practice would not be sufficient to protect the public or uphold the reputation of the profession.

39. In considering whether a Suspension Order would be appropriate and proportionate, the Panel had regard to Paragraph 39 of the Indicative Sanctions Policy, which indicates that suspension 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.

40. The Panel considered that the appropriate sanction in this case was very finely balanced between a period of suspension and a striking off order. The Panel has already found that there is a risk of repetition and it was not presented with any evidence of any meaningful insight or remorse. The Panel also had regard to the guidance that a striking off order is a sanction of last resort and should only be imposed where the misconduct makes it fundamentally incompatible to remain on the Register. Whilst dishonesty had been found proved, the Panel had regard to the fact that no harm had actually been caused to patients and that the Registrant was an otherwise good and competent practitioner.

41. The Panel took all matters into consideration and concluded that whilst a Striking Off Order would be justified by the Sanctions Policy, the public and wider public interest would be adequately protected by the maximum period of suspension which is for 12 months. In reaching that conclusion, the Panel was mindful that there would be a mandatory review hearing before the end of the period of suspension at which, if the Registrant failed to attend and demonstrated full insight into his misconduct, a striking off order would be considered.

42. For all of the above reasons, the Panel determined that a Suspension Order for a period of 12 months was the proportionate sanction in this case.

 

Order

The Registrar is directed to suspend the name of Philip A Welburn from the Register for a period of 12 months from the operative date.

Notes

Application for an Interim Order:
1. Ms Sheridan applied for an interim suspension order for a period of 18 months. She submitted that such an order was necessary for the protection of the public and was otherwise in the public interest given that the substantive suspension order would not come into effect for a period of 28 days or until any appeal had been concluded.
2. The Panel received and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders which was updated in September 2017.
3. The Panel was satisfied that the Registrant had been informed in the notice of hearing that the HCPC could apply to the Panel to impose an interim order. The Panel also considered that it was in the public interest to consider the application in the Registrant’s absence, given his non attendance at the hearing and the further opportunity given to him to make representations.
4. Having regard to its findings that the Registrant’s misconduct involved repeated dishonesty, his lack of any meaningful insight and the risk of repetition, the Panel was satisfied that an Interim Suspension was both necessary for the protection of the public and was otherwise in the public interest. Were an interim order not made, the Registrant would be able to continue to practise unrestricted pending the outcome of any appeal and the public would not be protected and therefore neither would be the public interest.
5. Accordingly, the Panel imposed an Interim Suspension Order for 18 months.


Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
 

Hearing History

History of Hearings for Health and Care Professions Council and Mr Philip A Welburn

Date Panel Hearing type Outcomes / Status
14/02/2018 Conduct and Competence Committee Final Hearing Suspended