Mr Alexander Joseph Colliety

Profession: Operating department practitioner

Registration Number: ODP35316

Interim Order: Imposed on 23 Mar 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/03/2018 End: 17:00 23/03/2018

Location: Health and Care Professions Council, Park House, 184 Kennington

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as an Operating Department Practitioner with Surrey & Sussex Healthcare NHS Trust, you:

1. On or around 23 March 2016, behaved in an inappropriate manner towards Colleague A, in that you said to Colleague A:

a. that Colleague A put sexual references in all of her conversations;

b. “oohhh…that really turned me on”, or words to that effect;

c. "just joking… or am I”, or words to that effect;

d. “do you like having 2 big ones in your hand?”, or words to that effect”.

2. On or around 21 March 2016, behaved in an inappropriate manner to Colleague B, in that you:

a. persistently asked Colleague B for her phone number;

b. stated to Colleague B, “we would be great together”, or words to that effect;

c. followed Colleague B into the preparation room and stated that you would make “great **** buddies”, or words to that effect;

d. followed Colleague B into the operating theatre and continued to make unwanted advances;

e. stated that Colleague B was “showing her bottom”, or words to that effect.

3. The matters described in Particulars 1 – 2 were sexually motivated.

4. The matters set out in Particulars 1 – 3 constitute misconduct.

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

 

Finding

Preliminary matters

Application to proceed in the Registrant’s absence

1. The Registrant was not in attendance at the hearing and was not represented. 

2. The Presenting Officer, Ms Thompson, made an application for the hearing to proceed in the Registrant’s absence. She first addressed the issue of service.  She submitted that the Registrant had been given proper notice of the hearing in accordance with the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).  A Notice of Hearing dated 30 January 2018 had been sent to the Registrant at his address registered with the Council, by first class post and also to an email address known to the Council. Evidence of proof of posting was provided. 

3. The Panel accepted the advice of the Legal Assessor, who referred to the requirements as to service of the Notice of Hearing under the Rule 6 and to the Panel’s discretion to proceed in absence under Rule 11.  The Panel also referred to the HCPTS Practice Note, “Proceeding in absence”, of 22 March 2017.

4. The Panel was satisfied by the information provided that proper service of Notice of the Hearing had been made in accordance with the Rules.

5. Ms Thompson next submitted that the Panel should exercise its discretion to proceed in the Registrant’s absence.  She informed the Panel that there had been no response from the Registrant to the Notice of Hearing.  She referred to an earlier pre-hearing form sent to the Registrant which he had returned to the HCPC indicating that he did not intend to attend a hearing of his case.  Ms Thompson confirmed that this form, which was undated, would have been sent to the Registrant after the sending of the Notice of Allegation, which in this case was dated 24 April 2017, but before a final hearing date was fixed.  There had been no further communication from the Respondent, nor any response to the Notice of Hearing sent on 30 January 2018. 

6. Ms Thompson submitted in the absence of any communication from the Registrant, there was no indication that he sought an adjournment of the hearing on any ground.  Ms Thompson submitted that the HCPC’s witnesses had been called and were ready to proceed.  She submitted that an adjournment would serve no useful purpose and it was in the public interest for the hearing to proceed today.

7. The Panel considered the submissions on behalf of the HCPC.  It accepted the advice of the Legal Assessor. The Panel's attention had been drawn to the guidance as to the factors the Panel should consider when deciding whether to proceed in absence in the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162.

8. Applying that guidance, the Panel was careful to remember that its discretion must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.

9. The Notice of Hearing had informed the Registrant of the date and details of the Conduct and Competence Committee hearing, and of his right to attend and be represented.  The Registrant was also advised of the Panel’s power to proceed with the hearing in his absence if he did not attend and of how he could apply for an adjournment of the hearing. He was informed of the sanctions powers available to the Panel, should it find his fitness to practise to be currently impaired.

10. The Panel noted that the Registrant had initially engaged with the regulatory proceeding by submitting a statement and accompanying documents dated December 2016. Thereafter, he returned the HCPC’s pre-hearing questionnaire indicating he did not intend to attend, but the Panel was mindful this was sent at an earlier stage in the process, before the present hearing date was fixed.  However, the Registrant had not engaged with the HCPC process since then. The Panel was aware that the Registrant had been contacted by the HCPC recently, when a preliminary application for special measures was being considered in February 2018, but he had not responded. 

11. The Registrant had neither requested an adjournment of the hearing today, nor communicated to the HCPC any reason why he was unable to attend. The Panel concluded that it was unlikely in these circumstances that an adjournment would secure the Registrant’s attendance on a future date. It took the view that the Registrant had voluntarily waived his right to attend and adjourning the hearing would serve little purpose. 

12. The Panel also considered fairness to the HCPC and its witnesses, who had been called and were ready to proceed today.  Further, the incidents which were the subject of the allegations occurred two years ago.  The Panel concluded, balancing the respective factors, that it was in the public interest that these proceedings should be resolved as expeditiously as reasonably possible. 

13. The Panel therefore granted the application to proceed with the hearing in the Registrant’s absence.

Background

14. The Registrant commenced employment as an Operating Department Practitioner (“ODP”) with Surrey and Sussex Healthcare NHS Trust (“the Trust”) in January 2016.  He was employed as a junior member of the theatre team at East Surrey Hospital. 

15.  A medical colleague, Colleague B, an anaesthetics trainee, submitted a complaint to the Trust following working her first shift with the Registrant on 21 March 2016.   She alleged he had made inappropriate comments of a sexual nature to her during the shift.

16. A further complaint was made by Colleague A, a Band 7 Registered Nurse in charge of Trauma and Orthopaedics.  She also alleged the Registrant made inappropriate comments of a sexual nature to her during a shift on 23 March 2016.

 The HCPC’s evidence

17. In considering the evidence in this case, the Panel was mindful that it must deal with the hearing in a fair manner and therefore, in the Registrant’s absence, determined that it would be appropriate for the witnesses for the HCPC to be asked any questions which were reasonably apparent from the papers which might assist, or be relevant to, the Registrant’s case.

DM

18.  DM was Theatre Matron at East Surrey Hospital.  She confirmed the content of her witness statement dated 15 August 2017.  DM was appointed to investigate the complaints against the Registrant by the Trust in 2016.

19. DM confirmed that the Registrant had been employed by the Trust as an ODP since 4 January 2016.  He was part of the theatre team for which she had overall responsibility.

20. DM explained the chronology of events. She said that the complaint of Colleague B, relating to the incident on 21 March 2016, had been received first, by the Registrant’s line manager.  Colleague B had wished the matter to be dealt with informally.  DM had returned from leave over Easter 2016 intending to meet informally with the Registrant.  She learned he had gone on annual leave, which then became sick leave and he never returned to work. On 9 May 2016, Colleague A submitted her complaint regarding an incident on 23 March 2016 and subsequently said that she wished her complaint to be dealt with formally, rather than through an informal process. 

21. DM had an informal meeting with the Registrant on 20 May 2016.  The Registrant apologised in relation to the first complaint (of Colleague B) and agreed that his actions had been inappropriate.  He said he had no recollection of the second complaint (of Colleague A) and did not recall that he had said anything inappropriate. 

22. The Registrant declined to attend subsequent investigatory meetings with DM. He wrote on 22 June 2016, stating he wished to resign from his position with the Trust.  DM was not able to accept the resignation and informed him that there would be a disciplinary hearing to consider the complaints.  She explained to the Panel this was in part to ensure that the Registrant continued to receive contact and support from the Trust. 

23. A disciplinary hearing was arranged for 8 August 2016, but did not proceed as the Registrant felt too distressed to enter the Trust building on that date and so a new venue was found and the hearing was re-scheduled to 28 September 2016. The Registrant attended the hearing and was supported by a union representative. 

24.  DM described the role of the Registrant as an ODP to involve supporting the Anaesthetist in taking patients to the operating table and in the recovery area. The Registrant was a junior member of the theatre team.  ODPs were not allocated to particular specialties, but were required to rotate.  DM stated that team working was important in the theatre, and the environment could be intense and, on occasions stressful.  DM said she would be concerned that communication difficulties between colleagues could impact upon patient care.

25. DM also produced the Trust’s Respect at Work Policy with which staff, including the Registrant, were expected to be familiar. This defined harassment as “any behaviour …that is perceived to be threatening, demeaning, humiliating or offensive to the recipient”.

In Private Session

26. DM was asked about reference in a note of the meeting with the Registrant on 20 May 2015 to difficulties in his personal life that contributed to his period of absence.  She explained that this referred to the death of the Registrant’s father.  He had also referred to difficulties in a previous employment due to him being bullied.  GP sickness notes provided to the Trust referred to the Registrant suffering with health issues.

In Public Session

Colleague B

27.  Colleague B gave her evidence from behind a screen, in accordance with a direction for the use of Special Measures given by the Panel Chair on 14 February 2018.  This was to enable her to give her best evidence by restricting her from being seen by the Registrant or the public, as she was regarded as a vulnerable witness under Rule 10A of the Rules and because the allegation concerned matters of a sexual nature in respect of which the witness was the victim.

28. Colleague B confirmed her witness statement signed and dated 14 July 2017.  She confirmed that she is a medical practitioner and in March 2016 was a second year anaesthetics trainee, and had recently commenced employment in the theatre team at East Surrey Hospital. 

29. On 21 March 2016, she was on duty with the Registrant.  Although she knew him, she had not worked on a shift with him before.

30. Colleague B confirmed the contents of a record she had made of the events of 21 March 2016 shortly after that date.  The record confirmed all the comments referred to in particulars (a) to (e) of Allegation 2.

31. In answer to further questions, Colleague B said that the Registrant had kept asking for her phone number during the shift, every five to ten minutes and at least a dozen times and that she said “no” each time. 

32. When asked what she thought the Registrant meant by the comment “we’d be great together”, she said she believed he meant that he wanted to take her out and have a relationship with her.  When asked what she thought he meant by the phrase about being “great fuck buddies, she said she understood this to mean that he wanted to have sex with her. 

33. Colleague B said she had spoken to a friend at lunchtime because she felt that the situation must be her fault or that she must have provoked the Registrant’s behaviour. She explained that she was very distressed.  In talking with her friend she realised that she had not done anything wrong.  She said nothing like this had ever happened to her before.

34. Colleague B did not want to work with the Registrant again and was concerned that he might be waiting for her when she finished her shift.

35. She sent an email to the Registrant, copied to Mr M, his line manager at Mr M’s request, in which she stated that he (the Registrant) had made her feel uncomfortable and that she believed he had “crossed the line”.

36. Colleague B was asked about the Registrant’s comments in a letter to the HCPC dated 16 December 2016, where, although accepting the incidents concerning Colleague B had taken place, he referred to them as “banter” and “miscommunication”.  Colleague B said if that was the case, this was banter that was clearly inappropriate. 

Colleague A

37.  Colleague A gave evidence from behind a screen following the same direction given by the Panel Chair for Special Measures and for the same reasons as Colleague B. 

38. Colleague A confirmed her witness statement signed and dated 9 January 2018.  She was referred to an email dated 12 April 2016 which she had sent to herself. This set out her recollection of the incidents on 23 March 2016 and related to the particulars at (a) to (d) of allegation 1.  She confirmed her record of these events was accurate and also that at the time she wrote the email, she had a very good recollection, as she still did in giving her evidence to the Panel. She explained that the time delay between the event and the making of the email record was because of the Easter holiday she had taken from work and the time it had taken for her to think about the events and to resolve in her own mind the responsibility for what had happened.

39. Colleague A is, and was in March 2016, a Band 7 Registered Nurse in charge of the Trauma and Orthopaedics theatres at East Surrey Hospital. Her role involved co-ordinating the work of the theatres and theatre staff, and dealing with any problems and issues which arose across the theatres in what was, as she described in evidence, a very busy challenging and stressful clinical environment.

40. Colleague A had worked on shifts with the Registrant prior to 23 March 2016, but probably less than ten times.  He was a junior in the team and relatively new.  Colleague A said she had noted on previous occasions that he had made comments that she considered were inappropriate, but nothing in the nature of his comments to her on 23 March. 

41.  Colleague A described herself as “fairly tough” and someone who in her role had to deal with many types of people and issues. She was used to stressful situations and dealing with problems.  She was however, taken aback by the comments and behaviour of the Registrant on 23 March.  She described herself as a middle aged woman with children and said she had never encountered such comments before. She described that her reaction was to assume that it must be her fault and that she must in some way have provoked the Registrant’s comments.  She said she felt “dirty” and was caused to worry about how she was perceived by colleagues. She described the shock and upset that these events had caused her. She accepted that banter between colleagues was part of the working environment but that the Registrant’s behaviour had gone far beyond banter.

42. Colleague A said that for the rest of the shift on that day, she was quiet, withdrawn thinking about what had happened and wanting to avoid any further contact with the Registrant.  She said that over the following weeks she thought a great deal about the events of 23 March 2016 and eventually recognised that the Registrant’s behaviour was not because of anything she had done but was the Registrant’s own responsibility.  She wrote her email of 12 April to record the events.  Then in May she reported her complaint to the Trust.  She said she had taken this time to do so because she was reluctant to take steps that might impact on another person’s career.  Ultimately, she decided that she had a responsibility to do so because she was a concerned that the Registrant may act in a similar way to other, and possibly more junior, staff who would be less able to deal with the situation than she was. 

43.  Colleague A expressed her concern that patients in the operating theatre are in a vulnerable situation, concerned about their health and being put to sleep when they do not know what might happen to them whilst under anaesthetic.  She would not be happy for patients to be spoken to in the way the Registrant had spoken to her in her department.  She said her priority was the safety of patients and this was paramount. 

44.  Colleague A confirmed that she had received the letter from the Registrant which appeared, undated, in the hearing bundle. This contained an apology, but stated that the Registrant could not remember the incidents of 23 March 2016. 

Submissions

45. Ms Thompson, on behalf of the HCPC, submitted the evidence of both witnesses was credible and persuasive and the Panel should find the facts proved as alleged.  Her submission was that the facts alleged were clearly evidence of inappropriate behaviour.  Whilst it did not necessarily follow that the conduct was sexually motivated, her submission was the Panel should find that it was.

46. If the Panel found the facts proved Ms Thompson submitted the facts represented a serious falling short of professional standards and would clearly amount to misconduct.  She referred the Panel to the HCPC Standards of Conduct Performance and Ethics and the Standard of Proficiency.

47.  Ms Thompson submitted that the Panel should find the Registrant’s fitness to practise to be currently impaired and submitted that in this case, the Registrant’s conduct also impacted upon wider public confidence in the ODP profession. 

Legal Advice

48.  The Panel received and applied the advice of the Legal Assessor. The Panel was reminded that the burden of proof was upon the HCPC which brought the allegations.  The standard of proof was the civil standard, the balance of probabilities. 

49.  In relation to the approach to considering the allegations, the Panel was reminded that if it found any of the factual particulars alleged in allegations 1 and 2 proved, it must then go on to consider whether those amounted to “inappropriate behaviour”. Then if the Panel found allegations 1 and/or 2 proved, it should then consider whether, as alleged in particular 3, the conduct in each was sexually motivated.  The Panel was reminded that behaviour may found to be inappropriate but not sexually motivated - this was a matter for the Panel it its judgment to determine. 

50. On the issue of “sexual motivation” the Panel was referred to the guidance in the case of Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin), to the effect that if the Panel considered there was no direct evidence of motive, it may be possible to prove sexual motivation by way of inference.  The Panel would have to be satisfied on the balance of probabilities that sexual motivation should be inferred from an assessment of the primary facts and all the circumstances, including evidence of the Registrant’s character.

Decision on Facts

51.  The Panel accepted the evidence of DM which related to both allegations.  It found her to be a credible and truthful witness.

Allegation 1 (a) to (d)

52. The Panel found Colleague A to be a truthful and reliable witness and accepted her evidence.  She had a detailed recollection of the events of 23 March 2016. Her written statement and her oral evidence supported each of the particulars (a) to (d).  She gave compelling evidence of the impact of the comments upon her and how she questioned whether this was her fault.  Colleague A also explained why she had written the email recording the incident to herself and later reported the matter to the Trust.

53.  The Panel noted the Registrant had stated throughout that he did not recall the incidents of 23 March 2016 as described by Colleague A, although he did later apologise to her. 

54. The Panel was satisfied on the basis of Colleague A’s evidence, oral and written, that each of the particulars (a) to (d) was proved on the balance of probabilities. These were comments made to another health professional in the context of a busy operating theatre environment, where the Registrant’s attention should have been focused on the interests of patients. The comments had the effect of distracting Colleague A and upsetting her.  The Panel recognised that a degree of banter, good natured comments between friends and close colleagues, can be appropriate. However, the Panel was satisfied that the nature and quality of the Registrant’s behaviour and comments went far beyond anything that could properly be regarded as banter.  The Panel concluded the comments made by the Registrant amounted to behaving in an inappropriate manner towards Colleague A. 

Allegation 2 (a) to (e)

55. The Panel found Colleague B to be a truthful and reliable witness and it accepted her evidence.  Her evidence was consistent and it was evident to the Panel that two years later, she still had a very clear and detailed recollection of the events of 21 March 2016.  Her oral evidence and witness statement were supported by the record she had made of the events of 21 March shortly after the incident.  Colleague B had also sent an email referring to the incident to the Registrant on 23 March 2016.  Colleague B’s evidence was consistent and supported each of the particulars of allegation 2, at (a) to (e).

56. In addition, the Panel took account of the record of the meeting between the Registrant and his line manager, dated 29 March 2016, when he acknowledged initiating the conversation and that on reflection it went beyond and may have been “unwise”.  He admitted using sexually explicit language and specifically using the words “fuck buddy”.

57.  The Panel found each of the particulars (a) to (e) proved on the balance of probabilities. Again, the Panel was of the view that these were comments made to another health professional in the context of a busy operating theatre environment, where the Registrant’s attention should have been focused on the interests of patients.  Colleague B’s evidence was that she found the comments distressing.  They impacted on her work on that day, as following the incident, she wished to avoid the Registrant and this was an area where, as the Panel had heard from all three witnesses, good team working and communication were essential for the care of vulnerable patients. As with Colleague A, the Panel was satisfied that the Registrant’s comments went well beyond anything that could be regarded as banter.

58. The Panel concluded the comments made by the Registrant amounted to behaving in an inappropriate manner towards Colleague B.

Allegation 3 - Sexual motivation

59.  In considering the allegation of sexual motivation, the Panel noted that certain of the comments made by the Registrant to Colleagues A and B were explicitly sexual in nature, clearly indicating sexual motivation. Others were heavy with sexual innuendo.

60.  The Panel was assisted by the guidance issued by the Council for Healthcare Regulatory Excellence in 2008 entitled “Clear Sexual Boundaries between Healthcare Professionals and Patients”.  The Panel was aware this guidance did not deal with the area of relationships between colleagues, but it found the examples of sexualised behaviour in Appendix B of assistance.  It noted that the examples included issues which appeared in these allegations.  The example referring to “sexual humour” was relevant to Allegation 1.  The example “asking for or accepting a date”, “asking for sex” and making “inappropriate or demeaning comments … for example about their body…” were relevant to Allegation 2.

61. The Panel was satisfied on the balance of probabilities that the Registrant’s conduct towards Colleague A, as found proved in allegation 1, was sexually motivated.  Some of the comments were   explicitly sexual in nature, for example stating that Colleague A put sexual references in all her conversations and reference to “being turned on”. The comment referring to having “2 big ones in your hand” was heavy with sexual innuendo.  Taken together, the comments demonstrated a pattern of sexually motivated behaviour towards Colleague A on 23 March 2016. 

62.  The Panel was satisfied on the balance of probabilities that the Registrant’s conduct towards Colleague B, as found proved in Allegation 2, was sexually motivated.  In this allegation, there were clear references to the Registrant making sexual advances to Colleague B and wanting to pursue a sexual relationship with her.  Colleague B was clear in her evidence that this was how she had interpreted the Registrant’s comments. 

63. The Panel further noted that in the record of the meeting between the Registrant and his line manager on 29 March 2016, the Registrant admitted having used sexually explicit language in his comments to Colleague B. 

Decision on Ground

64. The Panel next considered whether the factual allegations proved amounted to misconduct.  The Panel was mindful that not every falling short of the required standard amounts to misconduct: the falling short must be of a serious nature.

65. The Panel considered the conduct in relation to the HCPC Standards of Conduct, Performance and Ethics.  It considered the following had been breached by the Registrant’s actions in this case:

Standard 1: Promote and protect the interests of service users and   carers;

Standard 2: Communicate appropriately and effectively;

Standard 2.5: You must work in partnership with colleagues… for the  benefit of service users and carers; 

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

66.  The Panel concluded that the allegations concerned conduct towards two healthcare professional colleagues.  It took place in a clinical setting of operating theatres, Trauma and Orthopaedics, which are by their nature busy and high stress environments where good team-working and communication are critical.  Healthcare staff need to be able to focus their attention on the care and safety of patients. The Registrant’s conduct in these two incidents undermined this.  There was a significant risk that he was not fully focused on his own duties, and his conduct distracted colleagues and caused them distress. 

67. The Panel acknowledges that some good-natured banter may be acceptable in a workplace in the context of existing friendships.  In this the case, the behaviour went far beyond what was acceptable.   The evidence of the two colleagues was that the conduct was entirely unwelcome, undermined their confidence at the time, and caused them significant upset and distress. 

68.  In the judgement of the Panel, the Registrant’s actions amounted to a serious falling short of the standards expected of an ODP and constituted misconduct.

Decision on impairment

69. The Panel considered the HCPTS Practice Note, Finding Impairment of Fitness to Practise. In relation to the personal component, the Registrant, in his communications to the Trust and earlier letters to the HCPC, had demonstrated some, limited, insight. He had apologised for his behaviour to Colleague B and acknowledged that it had gone too far.  The Panel was however concerned that the Registrant had not demonstrated that he fully understood the consequences of his actions upon his colleagues, or the potential impact of his actions on patient care in the theatres.  Whilst he had written an apology to Colleague A he had said he had no recollection of saying anything inappropriate to her.

70.  The Panel was not satisfied that the Registrant had remediated his conduct. He had made references in his letter of 18 December 2016 to referring to guidance on the HCPC website, having undertaken on-line training and to having reflected on his communication skills.  However, the Panel had no current evidence of this before it and this was far from sufficient for the Panel to be satisfied that the misconduct was remediated, particularly in circumstances where the Registrant had not attended the hearing in person to present evidence to the Panel. 

71. The Panel considered there was a serious risk of the Registrant repeating his behaviour as he did not appear to understand where social and professional boundaries lay.

72.  The Panel considered the public component.  The Registrant's actions in March 2016 put patients at potential risk of harm given that it risked undermining the vital team work and communication required of all professionals within the clinical setting of an operating theatre.  It was behaviour which would undermine the confidence of patients undergoing surgery who need to be able to trust the healthcare professionals in whose care they put themselves when undergoing surgery.

73. The Panel concluded that public trust would be undermined if it was considered acceptable for professionals to behave in this manner.  The Panel further concluded that professional standards would be undermined if it was considered acceptable for professionals to behave in this manner. Health care professionals must be able to attend work, be treated with dignity and respect, enable to focus on patient care and safety, without having to be subjected to the sort of grossly inappropriate, undermining and upsetting behavior exhibited by the Registrant.

74. The Panel therefore found the Registrant’s fitness to practise to be currently impaired.

Decision on Sanction

75. Ms Thompson made submissions on the issue of sanction.  She informed the Panel there were no previous disciplinary findings in respect of the Registrant.

76. Ms Thompson did not propose a particular sanction to the Panel, but submitted that, in the light of the Panel’s findings that there was a risk of harm to the public and a lack of insight on the part of the Registrant into his past conduct, to order mediation or to take no further action were unlikely to be appropriate courses of action in this case. 

77. Ms Thompson referred the Panel to the authority in the case of Burrows v General Pharmaceutical Council [2016] EWHC 1050 (Admin). In that case, the Court referred to the risk a professional takes by deciding not to attend a hearing in relation to their fitness to practise, as a result of which the Panel is unable to hear from the Registrant concerning the extent of their insight into their past misconduct.  Ms Thompson reminded the Panel that in this case, as advocated by the Court in Burrows, the Registrant had been made aware by the Notice of Hearing of the Panel’s powers in relation to proceeding in his absence and to the Panel’s sanction powers. 

78. The Panel accepted the advice of the Legal Assessor. It referred to the HCPTS Indicative Sanctions Guidance of 22 March 2017. 

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

80. The starting point for the Panel was that the misconduct was serious. It constituted a serious breach of the HCPC Standards.

Mitigating factors

81. The Panel identified the following mitigating factors:

• There was no previous disciplinary history.

• The Registrant had accepted the incidents referred to in allegation 2.  He had written letters apologising to both Colleague A and Colleague B, and had indicated some insight in his response to the HCPC of December 2016.  However, the Panel was also mindful that the insight shown was limited and did not indicate that the Registrant understood the impact of his actions upon his colleagues and upon patient care. 

• At the end of her evidence, Colleague B had described the Registrant as “young and stupid” and not malicious in his behaviour towards her.  The Panel took account of Colleague B’s view, but was also aware from the evidence overall that there was an element of manipulation in the Registrant’s behaviour on the days in question. The Panel was mindful that the Registrant had been employed at the Trust for nearly three months and, although relatively junior in the profession, had worked in an ODP role previously and would have undergone training.  He would therefore be expected to have an understanding of what was and was not acceptable behaviour towards colleagues in the work setting.  

• The Panel had noted the reference to other issues in the Registrant’s personal life, but had been provided with very little evidence or information to take into account about these.

Aggravating factors

82. The Panel identified the following aggravating factors in this case:

• The misconduct had been sexually motivated;

• The Registrant’s conduct caused a significant degree of upset to the two witnesses for the HCPC.  In giving evidence, it was apparent that, despite the events being two years ago, their feelings were still quite raw;

• The misconduct took place in a clinical setting and caused a risk of harm to patients;

• The Registrant had only shown limited insight into his actions, both in terms of understanding the impact of his behaviour on his colleagues and of the potential consequences for the public and the profession;

• The Registrant had not engaged with the HCPC in the period leading to this hearing and had not attended the hearing.  

83. In light of all of these matters, the Panel considered what sanction, if any, should be applied, and considered the sanctions in ascending order of seriousness.

Mediation

84. This was not possible or appropriate given the Registrant’s lack of engagement with the HCPC and further, the allegations proved were too serious.
No Further Action
85. A risk of harm to patients had been identified and the safety of the public and the wider public interest would not be protected if the Panel were to take no further action in a case of this seriousness.

Caution

86. A Caution Order would be insufficient to mark the seriousness of the Panel’s findings and to protect the wider public interest. This was not a minor matter and the Registrant’s insight was limited.

Conditions of Practice Order

87. In the absence of engagement by the Registrant in this process, and given the Panel’s continuing concern about the Registrant’s lack of adequate insight, the Panel could not have confidence that the Registrant would be committed to compliance with conditions of practice. The Panel was also of the view that it would not be possible in the circumstances of this case to formulate workable conditions which would adequately maintain public confidence or underscore professional standards. There was also the difficulty of formulating appropriate conditions which would address the serious nature of the findings and the risk of harm to patients.

Suspension

88. The Panel gave very careful consideration as to whether a period of suspension would be appropriate.  The Panel considered suspension would mark the seriousness of the misconduct and would underscore professional standards.  It would remove the Registrant from practice for a period and thereby protect patients.  However, a period of suspension would involve an expectation that the Registrant would take steps to remediate his failings. This would require him to engage, to show full insight and to demonstrate there is no continuing risk of repetition of his behaviour.  Given his lack of engagement with the process, the Panel could not have confidence this would be the case.

89. Considering the history of the matter, the Panel noted that the Registrant had engaged with the local process at the informal stage.  In May 2016, DM had told him there could still be a place for him in the department, but they would first have to resolve what had occurred.  Following this, the Registrant did not respond to the formal disciplinary investigation and then, although he did attend the disciplinary hearing in September 2016, his engagement was limited.  By this time, he had in fact written to the Trust in June 2016, seeking to resign and stating that he recognised that the job was not for him.  

90. The Registrant submitted a response to the HCPC Investigating Committee in December 2016, but after that, despite opportunities, he did not engage with the HCPC process and has not attended this hearing. 

Removal from the Register

91. Given the history of lack of engagement set out above, the Panel could only conclude, with some regret, that there is no real prospect of the Registrant remedying his failings or engaging with the HCPC and therefore the appropriate order is removal from the HCPC register. 

92. In reaching this conclusion, the Panel considered the HCPTS Indicative Sanctions Guidance.  At paragraph 41, this indicated that if the evidence suggested the Registrant was unable to resolve his failings, then removal from the register may be appropriate.  The Panel was mindful that the Indicative Sanctions Guidance indicated that remove from the register was a last resort and should be used where there was no other way to protect the public, for example where there is a lack of insight or an unwillingness to resolve matters, which would suggest that a lower sanction may not be appropriate. 

93. The Panel is mindful of the personal 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. In light of this, the Panel is satisfied that removal from the Register is the appropriate and proportionate sanction in this case.

Order

That the Registrar is directed to strike the name of Mr Alexander Joseph Colliety from the Register on the date this order comes into effect.

Notes

An Interim Suspension Order was imposed to cover the 28 day appeal period.

Hearing History

History of Hearings for Mr Alexander Joseph Colliety

Date Panel Hearing type Outcomes / Status
21/03/2018 Conduct and Competence Committee Final Hearing Struck off