Michael Small

Profession: Operating department practitioner

Registration Number: ODP10031

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 11/05/2018 End: 11:30 11/05/2018

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

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 the University College London Hospitals:

 

1. You refused to carry out work related instructions on:

i) not proved

ii) 15 November 2012;

iii) 18 October 2013.

 

2. You behaved inappropriately and/or aggressively, in that:

a. In July 2013:

i) not proved

ii) not proved

b. On 30 August 2013, you stated to Colleague B ‘‘Why won’t you go with me when you’ve slept with other members’’ or words to that effect.

c. On 18 October 2013:

i) not proved

ii) Called Colleague B ‘‘A silly fucking cow,’’ or words to that effect.

iii) Said ‘‘don’t be fucking silly I wouldn’t say it in front of people’’ or words to that effect.

d. On 15 November 2012, you said ‘‘Are you taking the piss out of me or what’’ to Colleague B, or words to that effect.

 

3. Your actions described in 2b were sexually motivated.

 

4. The matters described in Paragraph 1-3 amount to misconduct.

 

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

Finding

Preliminary Matters

Service of Notice


1. The notice of this hearing was sent to the Registrant at his address as it appeared in the register on 11 April 2018. The notice contained the date, time and venue of today’s hearing.


2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).
Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Dudrah on behalf of the HCPC.


4. Ms Dudrah submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She further submitted that the Registrant has not engaged with the HCPC, and that an adjournment would serve no useful purpose. Ms Dudrah said that the HCPC had contacted the Registrant by telephone and she provided the Panel with a record of that telephone call. She pointed out that the Registrant’s response was ambivalent, when told about this hearing and his right to attend and/or provide written submissions. She reminded the Panel that there was a public interest in this matter being dealt with expeditiously.


5. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised the Panel that the Adeogba case reminded it that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.


6. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.


7. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing and had voluntarily absented himself.


8. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case against the Registrant’s right to a fair hearing.


9. In reaching its decision the Panel took into account the following:


• The Registrant has not made an application to adjourn today’s hearing and had stated in a telephone conversation on 8 May 2018 that he was happy that the case proceeds today in his absence;
• There is a public interest in this substantive order being reviewed before it expires.


10. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. There is a distinction between a case where the Registrant is clearly aware of the hearing date, and one where there has been no response from the Registrant. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest for expedition in cases against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.


Background

11. The Registrant was a Senior Band 6 Operating Department Practitioner (ODP) at the Heart Hospital, Barts Health NHS Trust. The case concerned the alleged behaviour of the Registrant towards colleagues in 2012-2013 during the course of his professional duties and at a staff party. The allegation was that he had refused to comply with work related instructions and that he had made offensive comments to colleagues, including remarks towards an agency nurse (Colleague A) and an Operating Department Practitioner colleague (Colleague B) that were sexually motivated.


12. LS, the Director and Interim Project Manager at Stephens Consultancy Ltd, a contract position with the Barts NHS Trust, was the Registrant’s Line Manager from 2011 to 2013. She was made aware of concerns about the behaviour of the Registrant in early 2012. On 21 October 2013, Colleague B reported concerns to LS regarding the Registrant’s behaviour towards her at an office party in August 2013 and on another occasion in October 2013. On 5 November 2013, Colleague A contacted LS by email to report further allegations. A formal disciplinary investigation commenced.  Subsequently, MB, a matron at the infection division, was appointed to lead the investigation.


13. MB interviewed the Registrant about the allegations. In particular he noted the Registrant’s behaviour towards Colleague B at the 30 August 2013 leaving party (‘why not go with me when you have been with others’). MB formed the view that his actions were sexual in their nature. The Registrant’s response to this incident was that he was merely asking her for a dance. The Registrant accepted in interview that he said words to the effect of “what’s wrong with me when you’ve slept with others”. MB considered that the Registrant showed a lack of insight into the sexual nature of his alleged remarks and the effect on colleagues.


14. MB found the Registrant’s attitude to the allegations to be both flippant and dismissive when he was interviewed. He did not appear to take the allegations seriously. The Registrant made a written response before his interview in which he rejected the various allegations. MB’s concern was that the Registrant’s conduct suggested a pattern of persistent behaviour that was unacceptable and which demonstrated no insight.


15. These matters were subsequently referred to the HCPC and the substantive hearing was held on 22 to 24 May 2017, when the allegation was found proved and a 12 month Suspension Order was imposed as a sanction.


Decision

Submissions


16. Ms Dudrah outlined the background of the case and submitted that in the light of the lack of substantive engagement on the part of the Registrant he remains impaired. She also submitted that an extension of the Suspension Order would serve no useful purpose and would not further the public interest. Therefore the HCPC submitted that the Registrant’s name be struck off the register.
Legal advice


17. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.


18. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:


Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired by reason of his misconduct in the sense that he:


a) is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or
b) is liable in the future to bring the Operating Department Practitioner profession into disrepute; and/or
c) is liable in the future to breach one of the fundamental tenets of the profession?


19. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired any of the options under Article 30 of the 2001 Order could be exercised by the Panel. He also advised the Panel that it should bear in mind the principle of fairness and proportionality and have regard to the Indicative Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.
Panel’s considerations and decision


20. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Dudrah. In particular it noted the following factors:


(a) This is a case of misconduct and there is no suggestion that the Registrant lacked the requisite competence to carry out the role of a Operating Department Practitioner. In fact, there was evidence heard at the substantive hearing, which indicated that the Registrant was a very competent ODP. This is a case involving attitudinal issues, where the Registrant’s insight is of greater importance.


(b) The lack of engagement of the Registrant with the process, resulting in the absence of any indication that the Registrant remained committed to the profession and any information regarding the Registrant or his current circumstances including any continuing professional development since the allegations of 2012 and 2013.


21. There is no evidence before the Panel today that could satisfy it that the Registrant’s fitness to practise is no longer impaired. He did not engage with the final hearing nor has he engaged in this review process.


22. There was no evidence of insight or reflection on the part of the Registrant regarding his misconduct.  All the facts found proved led the previous panel to conclude that there was a real risk relating to the protection of patients and the wider public interest. In the light of the lack of insight and remediation on the part of the Registrant, this Panel concluded that public protection and the wider public interest remain current issues.


23. In the light of all the above, the Panel determined that the Registrant’s fitness to practise remains impaired.


24. The Panel then went on to consider what the appropriate and proportionate sanction should be. It had regard to the Indicative Sanctions Policy issued by the HCPC and considered the available sanctions in order of severity, starting with the least restrictive. In the light of the lack of engagement the Panel determined that taking no further action or imposing a caution would not be sufficient to protect the public, nor would either be in the public interest.


25. The Panel considered whether to impose a Conditions of Practice Order but concluded that it would neither been appropriate nor could it formulate adequate conditions that would properly address the attitudinal issues identified. This is not a case where there are identified areas of the Registrant’s practice where he lacks competence and that could be easily addressed by conditions. 


26. The Panel went on to consider a further period of suspension but concluded that this was also not appropriate. The panel on the last occasion was unambiguous when it stated that:


“the facts of this case were at the upper end of seriousness for a Suspension Order and that the Registrant’s misconduct came close to the level of gravity appropriate for a Striking-Off Order. However, the Panel ultimately decided that the Registrant’s behaviour was capable of remedy and wanted to give him the opportunity to demonstrate this.”

27. That panel also provided some guidance as to what the Registrant could do in the subsequent period in order to demonstrate insight.


28. This Panel determined that the Registrant has had more than sufficient time to provide some evidence that he has taken the previous findings to heart but he has not availed himself of the opportunity. The Panel considered that this was unlikely to change in future, bearing in mind the Registrant’s total non-engagement with these proceedings since before the last hearing took place. The Panel determined that a further period of suspension would serve no useful purpose and would not further the public interest. The attitude of the Registrant, coupled with the resultant risk to the public and the public interest means that it is no longer appropriate for the Registrant to remain on the HCPC register.


29. The Panel determined that the appropriate and proportionate sanction is to strike the Registrant’s name off the Register.

Order

Order:  The Registrar is ordered to remove the name of Mr Michael A Small from the Operating Department Practitioner part of the HCPC register

Notes

 

The order imposed today will apply from 21 June 2018

 

Hearing History

History of Hearings for Michael Small

Date Panel Hearing type Outcomes / Status
11/05/2018 Conduct and Competence Committee Review Hearing Struck off
22/05/2017 Conduct and Competence Committee Final Hearing Suspended
15/08/2016 Conduct and Competence Committee Final Hearing Adjourned