Mr Ross Tomlinson

Profession: Operating department practitioner

Registration Number: ODP32720

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 26/03/2018 End: 16:00 28/03/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

During the course of your employment as an Operating Department Practitioner with Countess of Chester Hospital NHS Foundation Trust, you:

1. Between 26 August 2013 and 4 October 2013, while on paid sick leave from your employer, undertook paid work for Bluestones Medical on approximately 19 occasions.

2. Your actions as described in paragraph 1 were dishonest.

3. The matters described in paragraphs 1 to 2 constitute misconduct.

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

Finding


Preliminary matters:

1.Mr Foxsmith applied to amend the allegation to insert the word “approximately” within particular 1 of the Allegation, as set out above, replacing the words “at least”.  The Registrant, Mr Tomlinson, indicated that he had been on notice of this amendment many months in advance and had no objections.  Having accepted the advice of the Legal Assessor that amendment could be made if the Panel was satisfied that no injustice was caused, the Panel permitted the amendment to the Allegation.

Background:

2.The Registrant was employed as an Operating Department Practitioner, working at the Countess of Chester Hospital NHS Foundation Trust, (“Trust”) at the relevant period. He was in the anaesthetic support and recovery team, working in main theatres. He was employed by the hospital on a full-time contract: that is 37 ½ hours per week.

3.On 26 August 2013, he was working a night shift when a problem was suspected with his left hand. He went to the x-ray department of the hospital and there was a diagnosis that he had broken a bone in his little finger on his left hand. As a result of that injury he was sent home from work; he remained absent from work at the Trust from that night until 4 October 2013.

4.As part of his absence from work, the Registrant submitted two statements of fitness for work forms to his line manager. Both of those forms were signed by medical practitioners at the Trust, advising the Registrant was unfit for work, because of the fracture to his left fifth metacarpal from 2nd September 2013 to 30th September 2013.

5.The Registrant undertook a return-to-work interview with his line manager on 8 October 2013.  Following this return to work, the Registrant supplied his line manager with a further sick note, confirming the advice that he was not fit for work for the period from 30th September 2013 to 7th October 2013 inclusive.

6.While on sick leave from the Trust, the Registrant was entitled to, and did receive sickness pay, a net figure of £1617.32.

7.Whilst the Registrant had provided his line manager at the Trust that he was unfit to work during the period of his injury, he had, in fact, worked and arranged work through a recruitment agency called Bluestones Medical Agency (“the Agency”). Between 28 August and 4 October, he worked shifts on approximately 16 occasions at hospitals at different locations in the Chester/Liverpool area.

8.Once the agency’s fees were taken into account, over the period that the Registrant declared that he was unfit to work, his cumulative take-home pay from the Agency amounted to just over £5,500. However, he continued to be paid by the Trust whilst he was signed off as unfit to work.

9.In November 2013, an audit agency commenced an investigation into the circumstances of the Registrant’s claim. They made enquiries of the Trust and with the Agency. In the meantime, the Registrant resigned from the Trust in a letter dated 5 December 2013. When he was interviewed in February 2014 under caution, he gave a prepared statement, essentially asserting that he had not set out to behave dishonestly and offering to repay the overpayment made by the hospital. For the remainder of the interview, he was asked about the detail of the allegations and he exercised his right to make no comment.

10.The case was referred to the HCPC.  A criminal trial for the alleged fraud took precedence. In October 2016 the criminal trial proceeded at Chester Crown Court.  He was acquitted.  The Registrant has always been clear that he did work extra shifts via an agency but that he did not do so dishonestly; in the Crown Court he relied on his assertion that the work for the Agency and the Trust were materially different.

Decision on Facts:

11.Mr Foxsmith opened the case on behalf of the HCPC.  He said that it was the HCPC’s case that the Registrant deliberately submitted certificates to his employer that he was unfit for work, and during this period of absence he had worked as an ODP, via an agency for different hospitals, earning himself thousands of pounds whilst still receiving his NHS salary. Mr Foxsmith submitted that this is clearly dishonest.

12.As part of the HCPC case, the Panel heard live evidence from two witnesses; the witness statements of a further two witnesses were agreed and entered into evidence. The first witness to give evidence was Ms CS of Mersey Internal Audit Agency. She said she was employed as an Anti-Fraud Manager and her duties include investigating allegations and obtaining evidence to support or refute allegations. She has held this post since July 2011. In November 2013, an allegation in respect of the Registrant had been reported to her. The allegation involved the Registrant having undertaken paid work via the Agency while he was on paid sick leave from his job as an Operating Department Practitioner at the Trust.

13.As part of an investigation she carried out, she interviewed the Registrant under caution. She also obtained statements from a number of witnesses. She obtained evidence from the Agency and exhibited a number of self-employed sub contracted pay slips and timesheets that the Registrant had submitted. She explained that the matter had progressed to a criminal trial on the 22 October 2016. The Registrant was found not guilty at the Crown Court on the basis that the agency roles he undertook whilst on sick leave were different to those that would have been required by his main employer.

14.Ms HD next gave evidence.  At the relevant time she was employed as a Senior Theatres Consultant at the Agency.  She confirmed that the Registrant registered with the agency on 11 October 2012. She said that the Registrant had never told her that he was off sick from a substantive NHS post, or that he could not perform specific duties. She said that there was an unwritten rule that work would not be given to NHS employees while they were signed-off as unfit to work, but notwithstanding this, she had not questioned the Registrant about his status specifically. She offered him work that she thought was suitable by text message, and he accepted various shifts but did not advise that he had any limitations.

15.The Panel found the live witnesses to be credible and consistent. They did not contradict the statements they had previously made or each other.  They accepted the limitations on their memories due to the passage of time, given that relevant events occurred almost five years ago now.  Further, they did not enter into clinical areas, and made clear the limit of their competence. 

16.Their evidence was added to by the witness statement of Ms TL who was the Compliance and RGN Manager at the Agency. She clarified that the Registrant had in fact worked 16 shifts, three additional booked shifts not having been worked but cancelled.   The witness statement of Mr CS, the Registrant’s line manager at the relevant period, added further information. It set out that a “return to work” interview had been carried out with the Registrant on his return to work but that at that meeting, no mention of the Registrant’s paid employment while he was off sick had occurred.  He said that he was later informed that the Registrant had done paid work via an agency whilst signed off as unfit to work.  He did not indicate whether it was the Registrant or another person who had informed him of this fact.

17.The Registrant himself gave evidence under oath. He said that he thought that his first sick-leave certificates from the Trust referred to the fact that he was not fit to do the job he usually did for the Consultant that signed it.  This job might involve heavy lifting which could not be done with a fractured bone in his hand.  He said that he did not think that he would be paid while he was on sick leave as he had never been on long-term sick leave before and did not know what processes applied.  The Registrant stated that he was aware of a lot of the people in the NHS on “long-term sick” but was unsure about any sick pay arrangements. He referenced a relative long-term sick leave from the NHS who was not getting paid. He had never made an application for sick leave and thought that he could work instead at other hospitals as he occasionally did at weekends, along with most of his colleagues at the Trust.  He had offered to continue working for his employer on “light duties” he said, but that this had not been acceptable to his employer.  He said he thought that it was something to do with insurance.

18.The Registrant told the Panel that he believed that at the point he was sent home from work by the Trust, that he did not believe he would be paid any sick leave.  He had not asked anyone about this but made this assumption. The Registrant had been off sick in the past for less than a week and did not know whether he was paid during these periods. In hindsight he accepted that he probably had.  He was unsure because his salary varied by as much as 50% extra depending on the shift-work and weekend work that he did.  He thought that there was something different about less than 7 days sick leave from longer term sick leave but was not sure what. He had taken agency work primarily in Opthalmics.  He said that he had offered the Trust to do such work but been turned down by them.  However, he had taken agency work in other anaesthetic specialities as well as recovery as an ODP.

19.Mr Foxsmith submitted that it was not credible that a man who had qualified three years before the material time and was employed full time by the NHS was not aware of statutory sick pay.  His case was not that the Registrant had deliberately engineered the situation that he found himself in but rather that he had been opportunistic making the most of the time he had away from work to earn extra money.  He said that this was objectively dishonest, even allowing for the Registrant’s knowledge and belief.

20.Having accepted the advice of the Legal Assessor on the burden and standard of proof, recent case law regarding dishonesty, and heard a good character direction, the Panel considered the factual particulars of the Allegation:

Particular 1 - Admitted and Found Proved.

21.This was on the basis of the Registrant’s admissions and the evidence from witnesses.  The Panel did find that 16 rather than 19 shifts had been worked.  The Registrant indicated that he cancelled the three shifts that he felt he could not do.

Particular 2 - Not admitted but Found Proved.

22.The Panel considered what the Registrant had done by his own admission and listened to the evidence that he gave along with the submissions on behalf of  the HCPC.

23.The Panel considered particular 2 and the question of dishonesty in the light of the recent decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The judgment of Lord Hughes was applied:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

24.The Panel applied this by considering three questions:
•What did the Registrant do?
•What was the effect of that?
•On the basis of the answers to points 1 & 2, would ordinary, decent people think he had acted dishonestly?

25.The Panel considered that the Registrant had accepted work from an agency while on sick-leave and signed off as unfit to work from his main employer. He did this because he felt able to work, but continued to provide sick-notes every two weeks to his main employer. Accordingly, he was paid for his work via the agency, while also being paid by his main employer. The Panel is in no doubt that ordinary decent people would think this behaviour was dishonest.  The Panel did consider the evidence of the Registrant but considered it highly unlikely that an Operating Department Practitioner who had worked for the NHS for three years, was not aware of statutory sick-pay for employees. The Panel found that the Registrant had not set out to deliberately commit fraud but had been quick to take advantage of the situation he found himself in, accepting work only two days after he had been signed off.  He submitted sick-certificates regularly to his employer, and each of these are headed with the title “Statement of Fitness for Work; For social security or Statutory Sick Pay”

26.The Panel considered it was highly unlikely that any medical practitioner would have signed sick-notes without engaging in a conversation about what work a Registrant was involved in, and his capabilities, given the forms intended purpose.

Decision on Grounds:

27.Having found all of the facts proved, the Panel went on to consider whether they amounted to misconduct. In making this decision, the Panel took into account the facts found proved, the submissions made, and the advice from the Legal Assessor. It was mindful that misconduct must be serious.

28.The Panel has found dishonesty in relation to the Registrant submitting certificates signed by medical practitioners to the Trust, while working via the Agency, in effect getting paid twice.  These are serious matters and fellow practitioner would find these actions deplorable. The sum of money that the Registrant earned while on sick leave was not inconsiderable.  His behaviour fell far below the standards expected of an ODP.

29.This behaviour has the potential to bring the profession into disrepute. The Panel noted the HCPC Standards of Conduct, Performance and Ethics, and in particular:

•Standard 13, “You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.”

30.The findings of dishonesty are also so serious as to amount to misconduct.

31.The Panel therefore finds misconduct in this case.

Decision on Impairment:

32.Mr Foxsmith took the Panel briefly through the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.  He submitted that this is a case of misconduct, and impairment should be found on both the personal and public component.

33.The Registrant gave evidence on oath again, read a Reflective Statement to the Panel, made submissions and answered Panel questions.  He drew a number of points to the attention of the Panel.  These included the following:

•That he approached the Trust to tell them what had occurred before receiving any formal notification of wrongdoing;

•That he had reflected heavily over the last 5 years on his actions at length;

•That he had held a number of responsible roles since 2013 and had a reference from one of his employers to support this;

•That his work record indicates that his employers have trust within him as he is used for long periods of time, rather than just occasional shifts to provide cover for absent colleagues;

•That he is now scrupulous about doing the correct thing and behaving with integrity, such that he will not take advantage of rules that allow agency staff to be paid for a minimum 4 hour shift but rather indicate that he will be available for this period of time;

•That where a shift is cancelled (e.g. with less than 24 hours’ notice), he will no longer assume that payments made are correct, but will seek advice, and get signatures to evidence any grey areas;

•That the last 5 five years have been a salutary lesson on a number of fronts. He risked having a criminal record, his ability to obtain a mortgage and buy his dream house, his good name at the Trust, the effect on his financial stability and the confidence that he will be able to provide for his new family;

•That he now recognises that other professionals, the public and his family, as well as himself have been negatively impacted by his behaviour;

•That he resigned from the Trust, and has not gone back there even to undergo medical tests/treatment because of the shame he felt over what had occurred.  That he has since been given positions of trust by professional colleagues, over and above those normally given to agency ODPs, demonstrating their confidence in him and his ability to show integrity.

34.Having found that the matters found proved amounted to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. It bore in mind the evidence given in this hearing, the submissions made by Mr Foxsmith and the Registrant, the advice of the Legal Assessor and the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

35.The Panel considered the two component parts relating to impairment, the ‘personal’ component and the ‘public’ component. It first considered the ‘personal’ component; whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

36.In this case, the Panel has not found that the Registrant deliberately set out to be dishonest. The Registrant gave evidence that his employers had no objection to his colleagues or him working extra agency shifts in their free time, such as at weekends or evenings.  The Registrant took advantage of being signed off sick as a similar opportunity to earn extra money. The difference being at this time his absence from work at the Trust was only authorised on the basis that he was not fit to work. He had shown some early insight by admitting what he had done to his line manager CS after the event, before being confronted, and by making an immediate offer to pay back the sick pay he received, once he realised that he had been paid when not entitled to this, before being asked to do so. 

37.This is not a situation where the Registrant engineered time off work to earn more money. There is evidence that the Registrant had broken a bone in his little finger on his left hand which led to him being signed off work. He resigned from the Trust in December 2013, largely it appears to the Panel as a result of the shame he felt over his predicament.  He had begun to appreciate the gravity of the situation rather than viewing it as a “grey area” that allowed him to earn extra money. That shame continues to this day, this conclusion being supported by his observation that he will not go back to the Trust even for his own medical tests/treatment now.  The Registrant has continued working as an ODP and intends that this is his future profession. He has engaged with the HCPC and the regulatory process and attended this hearing.

38.There is evidence of further insight and remediation by the Registrant. This is demonstrated by his heartfelt Reflective Statement. The Registrant has acknowledged that receiving two income-streams simultaneously was objectively wrong. His oral evidence and his Reflective Statement, taken together with his conduct in the intervening five years, is a demonstration of the journey that the Registrant has undertaken and continues to undertake to rebuild the trust and confidence in his integrity as a professional.  Almost five years after the the misconduct occurred, he is able to acknowledge the impact of his behaviour on the public, including patients he might have to work with, and has undertaken to behave conscientiously and with integrity, even when the rules under which he works allow latitude. The Panel considers that before it now is a different person to the cavalier individual who existed in 2013. For the above reasons, the Panel convinced the panel that the Registrant would not repeat his previous behaviour.

39.The Panel was impressed with the references that were put before it and to the Registrant’s work history since 2013.  This is to his credit and it appears that the Registrant is held in high regard by his colleagues and given roles with added responsibility over and above his day job, evidencing the trust his colleagues have in him.  The Panel were alive to the Registrant’s enthusiasm for his job as an ODP and his professional ambitions to work within the NHS in a multi-disciplinary team; this was also to the Registrant’s credit.

40.Having considered all of these issues the Panel does not find the Registrant is currently impaired with regard to the ‘personal’ component.

41.The Panel then looked to the ‘public’ component of impairment. It noted the passage in the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”, which states that “It is important for Panels to recognise that the need to address the “critically important public policy issues” identified in Cohen - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that a Panel cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the Allegation arose, the Registrant has corrected matters or “learned his or her lesson”.

42.The Panel considered that the misconduct is serious and there is a finding of dishonesty. As the misconduct is serious it has the potential of undermining public confidence in the profession if no action were taken.  The public would expect the Regulator to take action against a Registrant where misconduct is found and particularly where the Allegation includes dishonesty by a Registrant related to working practices.

43.The work of an OPD, particularly those dealing with monitoring patients under anaesthetic or coming round from anaesthesia post a surgical procedure is one where trust is important.  Patients must be able to have trust and confidence in the honesty and integrity in those who are looking after them during surgical procedures.  Not being able to have such reliance could have significant consequences, and cause unnecessary stress for patients and their loved ones.

44.The Panel took this into account in deciding whether the Registrant’s fitness to practise is currently impaired, it also took the view that, because of the serious nature of the misconduct, public confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made in this case.

45.For all of these reasons, the Panel finds that the Registrant’s fitness to practise is impaired on the basis of the ‘public’ component in this case.

46.Accordingly, it is the Panel’s finding that the Registrant’s fitness to practise is impaired on the public component but not on the personal.

Decision on Sanction:

47.Having found that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel went on to consider the question of sanction. It heard brief submissions from Mr Foxsmith and from the Registrant. The Registrant’s submission included the following points:

•An earnest apology to the public, the Tribunal, to everyone in the room, to the Trust, the Agency, his profession as a whole, and his family;

•Gratitude for recognising the personal journey that he has been on over the last 5 years;

•How momentous the changes he faces this year will be, in both attending this hearing and in becoming a father;

•He did not set out to create a situation intentionally, which permitted dishonesty;

•In considering proportionality, whether the Panel can consider the finding of impairment sufficient to mark the public interest, and if not, whether his work over the last 5 years where he has worked conscientiously in order to make reparation, is sufficient to instill the necessary confidence in the public;

•That the last 5 years, with the uncertainties and legal processes has been a heavy punishment already, given that he did not intentionally set out to be dishonest;

•That the imposition of even a Caution Order on his prospects could be marked, given that he obtains work via an Agency, rather than working under a contract of employment as a permanent member of staff.

48.Before reaching its decision, the Panel considered the HCPC Indicative Sanctions Policy and accepted the advice of the Legal Assessor.

49.In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

50.It is usual to impose a sanction where there is a need to demonstrate to the public and to registrants the importance of adhering to the fundamental requirement of keeping high standards of personal conduct by declaring and upholding proper standards of professional behaviour. This is similarly the case where there is also a need to maintain public confidence in the profession and the regulatory process. In this instance the Panel has found impairment on the public component alone.

51.The Panel considered the aggravating and the mitigating factors.

52.The aggravating factors are:

•The dishonesty was serious, a breach of trust, causing loss to the Registrant’s employer, while providing personal gain for the Registrant;

•This was an opportunist course of action, which required the acceptance of different jobs, while submitting further certificates signing him off as unfit to work; 

•Apart from his initial admissions in accepting that he had worked whilst signed off as unfit to work, he has since admitted he was “naïve” in not considering he was being dishonest. The Registrant has shown remorse, and provided an apology to the Trust and to the Agency;

53.The mitigating factors are:

•The Registrant is of previous good character;

•The circumstances in which the Registrant was signed off as unfit for work are accepted as being a physical injury rather than part of any deliberate plan;

•The Registrant has participated and engaged within this regulatory process, representing himself;

•No actual harm has been reported as having been caused to any patient;

•The Registrant is able to demonstrate almost five years of exemplary work as a practicing ODP in which he has sought to build up evidence of his commitment to his profession and professional integrity.

54.The Panel then looked at the available sanctions in graduating order of severity. The seriousness of this case meant that taking no action was not an option. While the Panel has the ability in exceptional circumstances to make a finding of impairment without imposing any sanction, the Panel did not find any such exceptional characteristics in this case.

55.Mediation has not been offered, nor is it appropriate.  This is because this situation is not confined to a dispute between two parties.  Further, the misconduct dates back almost 5 years.

56.A Caution Order, was next considered. While such an outcome does not protect members of the public, the Panel was of the view that the public are not at risk from a highly competent and skilled ODP, who is entrusted with tasks and responsibilities above the norm for agency staff.  The Panel considered that such an order could provide the required level of public reassurance, by acting as a salutary reminder to the Registrant of failing to act in strict accordance with rules.  While such an order will need to be disclosed to the Agency / any prospective employer, and could impact the Registrant’s employment opportunities, the Panel were of the view that this was the least restrictive Order required to mark the Registrant’s impairment and address the public interest.

57.The Panel considered but excluded the imposition of a Conditions of Practice Order on the grounds that such an outcome was inappropriate and unworkable because dishonesty is an attitudinal concern not able to be addressed by conditions.

58.The Panel then went on to consider the imposition of a Suspension Order. Given that this would deprive the Registrant of the opportunity to practice as an ODP, the Panel were of the view that this was disproportionate in all the circumstances. The Panel considers that the engagement by the Registrant, as has been identified in the mitigating factors, the Registrant’s insight and remorse about his behaviour as expressed during this hearing all pointed to there being little risk of repetition. The Panel was of the view that the public interest would be best served by the Registrant being able to continue practise without restriction.

59.The Panel therefore concluded that a sanction of suspension was inappropriate and disproportionate in this case.

60.In determining the length of the Caution Order, the Panel considered all the evidence that it had heard, it powers, the Indicative Sanctions Policy, and the submissions from the Registrant.  The Panel was of the view that the correct duration for such an order was 2 years.  The Panel arrived at this view, having taken into account, the passage of time that had already elapsed since 2013 and the Registrant’s extensive efforts to remediate and make reparation during this period.  This period of time was sufficient to meet the public interest and provide reassurance in the regulatory process and the Registrant’s future conduct.

 

 

Order

Order: That the Registrar is directed to annotate the register entry of Mr Ross Tomlinson with a caution which is to remain on the register for a period of 2 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Ross Tomlinson

Date Panel Hearing type Outcomes / Status
26/03/2018 Conduct and Competence Committee Final Hearing Caution