Kelvin Fletcher

Preliminary Matters

Proof of Service

1. The Panel found that there had been good service of the notice of hearing dated 1 March 2018 sent to the Registrant’s address by post as it appears on the HCPC Register and by email.

Proceeding in absence of the Registrant

2. The Registrant has not attended the hearing. The Panel considered whether to proceed with the hearing in the absence of the Registrant under rule 11 of the Procedure Rules 2003. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled Proceeding in the Absence of the Registrant, and followed that advice. In a telephone call on 11 April 2017 the Registrant stated that he does not wish to have any further involvement with these proceedings. He subsequently sent a letter dated 25 April 2018 stating that he will not be attending the hearing.

3. The Panel was reminded of the principles stated in the cases of R v Jones and R v Hayward to exercise utmost care and caution in considering the HCPC’s application inviting the Panel to proceed with this hearing in the absence of the Registrant. Also that in the case of GMC v Adeogba it was stated that a Registrant has a responsibility to engage with the HCPC. 

4. The Panel decided that it was in the interests of justice to proceed with the hearing in the absence of the Registrant taking into account that the Registrant has voluntarily absented himself. On the basis of the telephone call on 11 April 2017 and his letter dated 25 April 2018. The Panel was satisfied that he does not wish to engage with the HCPTS in relation to these proceedings. He has not requested an adjournment and it is not likely that he would attend in the future, if this hearing was adjourned. The witnesses who have attended today would be inconvenienced if the case did not proceed today. There is a public interest in dealing with this case expeditiously.

Background

5. The Registrant is registered in the Operating Department Practitioner (ODP) part of the HCPC Register. He was employed, as a Band 5 Anaesthetic Assistant at Yeovil District Hospital NHS Foundation Trust (the Hospital). His role was to work with an anaesthetist caring for patients being anaesthetised and assisting during surgery. He worked on the night shift from 15 to 16 September 2016 and fell asleep in the coffee room during his break with the on-call telephone next to him. He did not respond to an emergency telephone call in the early hours of 16 September 2016, from the Hospital maternity unit. Witness 2, a nurse who was working with the Registrant, heard the telephone ringing. She then telephoned the maternity unit to establish the reason for the telephone call and was told that she and the Registrant were likely to be required to attend a caesarean section operation. Witness 2 then tried to wake the Registrant but was unable to do so. Witness 3 who was also working with the Registrant then tried to wake him and succeeded in doing so after about 5 minutes. The Registrant then assisted with an emergency caesarean section operation without any issues being raised with his competence. On 6 October 2016, Witness 2 reported to Witness 1 that the Registrant had not initially woken up and had anaesthetic gas on his breath when she worked with him on 16 September 2016. Witness 1 requested via a colleague that the Registrant should attend a meeting to discuss the concerns raised. The Registrant then resigned from his post and his resignation was accepted by the Hospital on 10 October 2016. This matter was referred to the HCPC on 24 October 2016 by Witness 1.

Evidence considered by the Panel

6. In advance of the hearing, the Panel was provided with material submitted by the HCPC which included witness statements from Witnesses 1, 2, 3 and 4 together with exhibits. The Panel heard sworn evidence from: Witness 1 the Lead Practitioner in the main operating theatre at the Hospital; Witness 2 a Staff Nurse at the Hospital; Witness 3 a Theatre Care Assistant at the Hospital and Witness 4 a Scrub Nurse at the Hospital.

7. The Registrant has written to the HCPC to say he does not want to engage with this process and wants to resign from the HCPC register and no longer wishes to work as an ODP. He denies that he has done anything wrong and states that the allegations against him are unfounded.

8. The Panel considered that Witness 1 was credible and reliable with no ulterior motive in giving her evidence. She conceded when she did not know things and spoke to matters within her area of knowledge. She was not a first-hand witness and stated she was initially disappointed that Witness 2 had not disclosed her concerns earlier. Witness 1 was knowledgeable in relation to the areas of Hospital practice and understood why Witness 2 had been hesitant to report her concerns. Witness 1 accepted that Hospital staff doze during night duty and was realistic about this, but she was clear that the Registrant’s reported behaviour was not acceptable.

9. The Panel found Witness 2 to be an honest and credible witness who gave clear and consistent evidence. She was the only witness who gave direct evidence of the Registrant’s alleged misuse of anaesthetic agent. In her detailed account she was adamant about the smell of anaesthetic agent on the Registrant’s breath. She described the circumstances in which he rolled over onto his back and exhaled causing her to recoil from the anaesthetic smell. Her evidence was consistent and credible, and she admitted that she dozed herself during night shifts. However she was adamant that the Registrant’s behaviour deviated significantly from the accepted practise amongst other staff. She has 15 years’ experience in her role and gave a credible explanation for not reporting her concerns sooner. She explained she was hesitant in case she had been wrong and that she worked with the Registrant’s wife in a small department. She was reluctant to criticize the Registrant and the Panel found her evidence to be balanced and fair when she explained her heartfelt deliberations, before deciding to report her concerns.

10. The Panel also found Witness 3 to be consistent and honest. She was an eye witness to part of the events on the night of 15/16 September 2016 described by Witness 2. She did not say that she had smelt anaesthetic on the Registrant’s breath but she was clear in describing her observations of the Registrant’s behaviour. There were some discrepancies in respect of the time of the emergency call and the category of the emergency. However she was clear and unfazed in providing her account to the best of her ability and recollection. Her evidence was credible in that she stated she did not hear the Registrant snoring and could not remember if his shoes were fully unlaced. She was also very honest about the impact amongst the staff in the theatre department from the issues raised concerning the Registrant.

11. The Panel found Witness 4 to be expressive, credible, honest and consistent. She gave direct evidence of her conversation with Witness 2 concerning the Registrant. She corroborated the evidence of Witness 2 by describing her own experiences of working with the Registrant. She stated that he would go into a deep sleep and was difficult to wake. When he did wake he would be slow, his shoes would be undone, and he was uncommunicative. She recalled telling him to be careful on one occasion because his laces were unfastened. She fairly described the length of time it took to rouse the Registrant, in that she stated it might not have been as long as she had initially thought, but it seemed to be a long time in the context of having to respond to an emergency call. She was clear in accepting that she had never smelt anaesthetic on the Registrant’s breath.

Decision on Facts

12. The Panel carefully considered all of the evidence in the case. It noted the submissions from Ms Mond-Wedd, on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor. In assessing the factual particulars in the case, the Panel kept in mind that the burden of proof lies with the HCPC and that the Council must prove its case on the balance of probabilities.

Particular 1a

Whilst employed as an Operating Department Practitioner at Yeovil District Hospital:

1.     On or around 15 September 2016, whilst on night duty:

a) You used and/or were under the influence of an anaesthetic agent;

13. Witness 2 was the only witness who stated that she could smell anaesthetic agent on the breath of the Registrant. However she was sure about this based upon her 15 years of experience and the unmistakable smell which caused her to recoil. She said it could not have been anything else and her evidence was supported by Witness 4 who also stated that she regarded the smell of anaesthetic gas as being unmistakable. The Panel considered whether the Registrant’s behaviour could be caused by being a heavy sleeper and therefore difficult to rouse. Also Witness 3 did not hear the emergency telephone ringing. However two witnesses described seeing the Registrant visiting operating theatre 4 during night shifts for short periods of time in stocking feet without shoes then coming back and going to sleep. There was no apparent reason for him to visit theatre 4, which was rarely used and out of view from the coffee room rather than theatre 2 which is the emergency operating theatre, and was much closer and was within view from the coffee room. Witness 4 described it taking longer to rouse the Registrant from sleep on other occasions compared to some patients who had been given anaesthetic. Her evidence was consistent with the other evidence that he was not “with it” when he woke, and she described his slowness, disorientation, struggling to tie his shoes laces and being uncommunicative. Even if the Registrant was in a heavy sleep he was on-call at the Hospital and would be expected to respond quickly when he was called. Witness 2 knew what she had seen but still agonized about acting upon this and discussed the matter with colleagues, before reporting it. She said that she did not want to believe what she had seen.

14. The Panel finds both limbs of this particular are proved.

Particular 1b

Whilst employed as an Operating Department Practitioner at Yeovil District Hospital:

1.     On or around 15 September 2016, whilst on night duty:

b) You were asleep and did not rouse in a timely manner to an emergency call;

15. The Panel finds this particular is proved because the Registrant was responsible for the on-call telephone during a night shift and for responding to it. Despite the fact that the telephone was situated close to the Registrant’s head at the time of the incoming call, he did not wake and respond to it when it rang.

Particular 1c

Whilst employed as an Operating Department Practitioner at Yeovil District Hospital:

1.     On or around 15 September 2016, whilst on night duty:

c) You did not arrange for another colleague to take responsibility for the emergency telephone while you were asleep;

16. The Panel finds this particular is not proved. There was no policy or practice in force at the relevant time which placed a duty upon the Registrant to arrange for another colleague to take responsibility for the emergency telephone while he was asleep.

Particular 1d

Whilst employed as an Operating Department Practitioner at Yeovil District Hospital:

1. On or around 15 September 2016, whilst on night duty:

d) You were affected by excessive tiredness;

17. The Hospital Conduct and Standards Manual states that employees should “be fit for work at all times and should not be affected by alcohol, drugs or excessive tiredness”. Witnesses 2 and 3 stated it was difficult to rouse the Registrant and he was disorientated when he woke up. He had difficulty tying his shoe laces and he was slow and tired. He did not offer any explanation to them for being asleep and unable to rouse himself easily. The Panel finds this particular is proved because the Registrant was under the influence of anaesthetic gas causing him to be affected by excessive tiredness at the relevant time.

Decision on Grounds

18. The Panel next determined whether the facts found proved amounted to the ground of misconduct. The HCPC submits that the Registrant’s actions amount to misconduct, falling seriously short of what would be proper in the circumstances. The Panel accepted the advice of the Legal Assessor that there is no standard of proof to be applied at this stage and whether the threshold for misconduct has been reached is a matter of judgment for the Panel. Misconduct involves a serious act or omission which falls short of what would be proper in the circumstances which would attract strong public disapproval. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner. The rules and standards ordinarily required to be followed by the Registrant would have been the HCPC Standards of Conduct, Performance and Ethics (2016) which include the following standards:

1. Promote and protect the interests of service users and carers
9. Be honest and trustworthy
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession

19. In addition the HCPC Standards of Proficiency for Operating Department Practitioners (2014) state:

2. be able to practise within the legal and ethical boundaries of their profession
2.1 understand the need to act in the best interests of service users at all times
3. be able to maintain fitness to practise
3.1 understand the need to maintain high standards of personal and professional conduct

20. The Panel has determined that the facts found proved, 1a, 1b and 1d amounted to misconduct because the Registrant’s behaviour on the night in question fell seriously short of what would be proper in the circumstances. His behaviour in deliberately administering anaesthetic gas to himself causing him to be affected by excessive tiredness while on duty at the Hospital was in breach of the above HCPC standards and would be regarded as deplorable by the public and fellow professionals.

Decision on Impairment

21. The Panel went on to consider whether, by reason of his misconduct, the Registrant’s fitness to practise as an ODP was currently impaired. The Panel reminded itself that it was considering the Registrant's fitness to practise as of today, not at the time of the relevant events in 2016.

22. The Panel had regard to the HCPTS Practice Note on ‘Finding fitness to practise impaired’. It considered both the personal component (the current competence, behaviour etc of the individual registrant) and the public component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession).

23. The Panel had specific regard to the guidance in the case of NMC and Grant. The circumstances where impairment might arise are: (a) where a registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession.  Furthermore in determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.

24. The Panel was satisfied that, with regard to the personal component, the Registrant’s misconduct would justify a finding of current impairment. The Registrant has not engaged with the HCPTS process and there is no evidence of any expression of insight, remediation, regret or remorse. The Panel concluded that there was a risk of harm to a mother and baby as a result of his misconduct identified and there is a continued risk of harm to service users in the future. There is a risk of repetition based upon his previous behaviour not least because the misconduct found proved in this case occurred when the Registrant was the subject of a 3 year Caution Order for misconduct imposed by a panel of the HCPC on 30 April 2015 for similar conduct. He has breached a fundamental tenet of the profession by reason of his misconduct and is liable to do so in the future. He has brought the profession into disrepute and is likely to do so again in the future. The public interest requires that a finding of current impairment is made in order to maintain public confidence in the profession and in the regulatory process so the Panel concluded that a finding of impairment on public interest grounds is clearly required. Any other outcome would undermine confidence in the ODP profession and in the HCPC as its regulator.

Decision on Sanction

25. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to the circumstances of this case and to its findings on the facts, the statutory ground and current impairment.

26. The Panel has considered the submissions made on behalf of the HCPC and accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had regard to the HCPC Indicative Sanctions Policy (ISP), which states that any sanction must be proportionate. It is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

27. The Panel first identified the aggravating and mitigating factors that it should take into account.

28. The aggravating factors are:

• The Registrant’s misconduct caused a potential risk of harm to a vulnerable service user
• There has been no insight, remorse, acceptance, regret or remediation demonstrated by the Registrant.
• The Registrant was subject to 3 year caution for similar misconduct.
• The Registrant’s misconduct is likely to be repeated.
• The Registrant has denied the facts found proved.
• The Registrant has not engaged in these proceedings.

29. The mitigating factors are:

• That no service users were actually harmed by the Registrant.

30. The Panel has considered sanctions in ascending order of gravity. All sanctions are available in this case. Taking no action and mediation would not be appropriate in this case. The Panel has decided that a caution order is not an appropriate sanction in this case, due to the Registrant’s lack of engagement, insight and remorse.
31. The Registrant’s misconduct has not been remediated and there is no indication of a willingness on his part to comply with conditions of practice. The Panel has concluded that conditions of practice are not an appropriate sanction in this case because the Registrant has not engaged with this hearing. The Registrant has stated that he does not wish to return to practice as an Operating Department Practitioner and the Registrant was subject to a 3 year Caution Order for similar misconduct when this misconduct occurred.

32. The Panel has concluded that a Suspension Order is not appropriate because there is no indication that the Registrant is likely to resolve or remedy his misconduct, due to his lack of engagement, insight and remorse and the risk of repetition. Suspension is not appropriate, in view of the seriousness of the repeated misconduct and persistent failures.

33. The Panel has decided to impose a Striking Off Order. Striking off is appropriate because these are serious, deliberate and reckless acts, involving abuse of trust and persistent failures. There is no other way to protect the public due to the lack of insight and the continuing problems are unlikely to be resolved. Striking off is therefore the only appropriate and proportionate sanction in all the circumstances.

ORDER: The Registrar is directed to strike the name of Mr Kelvin Fletcher from the Register on the date this Order comes into effect (the Operative Date).

Interim Order Application

Following the announcement of the sanction and the Registrant’s right of appeal, the Presenting Officer applied for an Interim Suspension Order. The Panel was satisfied that it was appropriate to consider the HCPC’s application for an Interim Order in the absence of the Registrant because he had been informed by the notice of hearing dated 1 March 2018 that such an application might be made, and he has not responded with regard to that warning. The Panel accepted the advice of the Legal Assessor to consider whether an Interim Order was necessary to protect the public and in the public interest because of the nature and seriousness of the findings made. If the Panel identifies clear public interest concerns that is a factor in favour of proceeding in the Registrant’s absence. The Panel finds it is unlikely that an adjournment would secure the Registrant’s attendance and is satisfied that it is appropriate to direct that the Registrant’s registration should be suspended on an interim basis. This Order is required for the protection of the public, and a fair minded member of the public would be dismayed by the absence of such a restriction. The Panel has concluded that the appropriate length of the Interim Suspension Order is 18 months, as an Interim Order would continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal with the 28 day period. 

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 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.

History of Hearings for Kelvin Fletcher