Mr Mundatta Nundoo

Profession: Operating department practitioner

Registration Number: ODP14890

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 23/05/2018 End: 16:00 25/05/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended on Day 1 of the hearing, 23 May 2018)

While registered as an Operating Department Practitioner and employed by Care UK:

1. On 17 June 2016, in respect of Patient X who attended North East London NHS Treatment Centre for a left knee Arthroscopy, you:

a) did not confirm the validity of the written consent form and/or the patient’s understanding of the nature of the operation in circumstances where the consent form was for a left knee aspiration and the patient said she expected to undergo a left knee arthroscopy;

b) did not escalate:

i) that the patient expected to undergo a left knee arthroscopy but the consent form was for a left knee aspiration; or
ii) the patient’s lack of understanding about the operation; and
iii) that the theatre list did not match the written consent form.

c) inaccurately documented that the consent information was accurate.

2. Your actions as described at particular 1 amount to misconduct.

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

Finding

Preliminary matters:

Service

1.The Panel was informed that written notice of these proceedings was posted to the Registrant at his registered address by first class post on 27 February 2018. It was also emailed to his registered email address on the same date. The Panel determined that notice of this hearing had been properly served in accordance with the relevant rules.
Proceeding in absence

2.Ms Sheridan submitted that it was appropriate to proceed in the absence of the Registrant. The Panel accepted the advice of the Legal Assessor and paid due regard to the HCPTS Practice Note on Proceeding in the Absence of the Registrant.

3.There has been no engagement from the Registrant in this regulatory process from the outset. Consequently, he has not made an application to adjourn these proceedings. The Panel was informed that the HCPC has warned a number of witnesses to attend this hearing to give live evidence. The misconduct alleged in this case took place almost two years ago and the Panel’s view is that it is in the public interest that these proceedings should take place, albeit in the absence of the Registrant. Thus, the application was granted. Given all the information to date, the Panel were satisfied that the Registrant had voluntarily absented himself form these proceedings.

Amendment of the Allegation

4.Notice was given to the Registrant by the HCPC that an application to amend the original allegation was to be made by a letter sent to his registered address dated 2 October 2017.

5.The proposed amendments were to correct an error and to add details to the Particulars designed to make them more intelligible and to be consistent with the expected state of the evidence.

6.The Panel determined that no prejudice would be caused to the Registrant by granting this application as the amendments were minor and sufficient notice had been given to the Registrant.

Background:

7.The Registrant was employed as an Operating Department Practitioner (ODP) in the North East London NHS Treatment Centre (NELTC) from 2011.

8.On 17 June 2016 Patient X was admitted to the NELTC to undergo a left knee arthroscopy. She had previously undergone a left knee aspiration in February 2016 at the treatment centre. A General Anaesthetic was administered to Patient X and she was transferred to the operating theatre from the anaesthetic room where second stage safety checks were conducted. At this stage the scrub nurse checked the patient consent form and noticed that it made reference to a knee Aspiration rather than a knee Arthroscopy. This conflicted with the details on the theatre list which correctly indicated that the procedure to be performed was one of Arthroscopy. The scrub nurse alerted the team to this error and, on investigation, it transpired that the consent form in question in fact related to the previous Aspiration procedure that Patient X had undergone in February 2016. The surgery therefore had to be abandoned.

9.As the responsible ODP, the Registrant took the lead in completing the Nursing Pre-Operative Checklist on the handover from the ward staff and the World Health Organisation (WHO) Surgical Safety Checklist in the anaesthetic room.

10.The Nursing Pre-Operative Checklist, as part of the patient pathway, required the Registrant to confirm that the consent form was “signed and verified against the theatre list.” The Registrant ticked this despite the existence of the discrepancy between the two forms. The Registrant also, in completing his part of the WHO Surgical Safety Checklist, remarked “patient identity/procedure consent/wristband confirmed.”

11.On noticing the discrepancy, the Registrant should have escalated matters immediately to the Consultant Surgeon or others within the operating department team. This was so that proper enquiries could be made before the patient was anaesthetised. This did not happen. The surgery had to be abandoned and the result was a delay to the treatment of the patient, who had to endure ongoing knee pain until the appropriate procedure was conducted about a week later.

Decision on Facts

12.The Panel has considered all the documentary evidence placed before it and has had regard to the testimony of the witnesses called by the HCPC. The Panel accepted the advice of the Legal Assessor.

13.It has also paid due regard to the submissions from Ms Sheridan.

14.In relation to issues of fact, the Panel has reminded itself throughout that the burden of proof rests on the HCPC and the applicable standard is the civil one.

15.The Panel heard from three live witnesses called by the HCPC:

• Witness 1 – TM, Investigating Officer

She was an independent witness who gave fair and credible evidence and did not embelish the incident.

• Witness 2 – ZP, Anaesthetist

The Panel also found this witness to be credible and balanced in the giving of her testimony. Although she was hesitant and anxious, her evidence in relation to Patient X was unequivocal that the patient had attended for a left knee arthroscopy.

• Witness 3 – LT, Head of Nursing and Clinical Services at NELTC (at the time of the allegation)

He also was a good and credible witness. He was straightforward and robust in describing how he gave very clear instructions to his staff.

16. The documents presented by the HCPC were a clear documentary trail and corroborated the live testimony provided by the witnesses.

17. The Registrant gave no evidence, nor did he call any witnesses on his own behalf. The only answers he gave in the interview, conducted as part of the internal investigation by the NELTC that could be said to amount to a denial of any of the Particulars related to his contention that Patient X did not expect to undergo a left knee arthroscopy. In addition, the Panel took into account of the responses from the Registrant as part of his appeals procedure. The Panel also had sight of the theatre list and the consent form used on 17 June 2016.

Particular 1 a)

18.There is no doubt in this case that a discrepancy existed between the details on the consent form and those on the theatre list. The former referred to a left knee aspiration and the latter to a left knee arthroscopy. The Registrant has never denied the existence of this discrepancy, nor the fact that he failed to confirm or raise such a discrepancy with his colleagues on 17 June 2016. In fact, the Registrant stated that the patient was unsure of the procedure, but as the consent form had been signed he gave precedence to this and ignored dealing with the discrepancy. This Particular was found proved.

Particular 1 b) (i) & (ii)

19. Although the Registrant’s case in interview was that the patient lacked understanding about the details of the operation she was to undergo on 17 June 2016, he sought to deny that she was aware that it was going to be a left knee arthroscopy. The Panel was satisfied to the requisite standard that credible evidence rebutted this and that the Registrant did not escalate matters as particularised in 1 b) (i). This Particular was found proved and, since 1 b) (ii) has been framed in the alternative, the Panel found it unnecessary to consider that.

Particular 1 b) (iii)

20. There has been agreement from all sides that the theatre list did not match the written consent form. This Particular is found proved.

Particular 1 c)

21. The relevant surgical safety checklist (at D81 of the bundle) showed that the Registrant had signed to the effect that patient consent had been confirmed. This was inaccurate and, consequently, the Panel found this Particular proved.

Decision on Grounds

22.The Panel has found that the Registrant has been responsible for failing to conduct safety checks and a failure to inform the operating team that the patient did not have a valid written consent form for the arthroscopy procedure she was to undergo. This was a basic and central part of his duty and he failed to abide by it. The result was that the operation was abandoned after the patient was anaesthetised.

23.Had the Arthroscopy gone ahead, the NELTC would have put itself at risk. The patient had to receive unnecessarily, a second General Anaesthetic. The impact upon her must have been severe as the Panel heard she was angry and still in pain. The Panel has no doubt that the facts proved show this to have been a serious event. The Registrant failed wholly to engage with mandatory patient safety procedures. These safety checks are specifically designed to prevent wrong site surgery.

24. The Registrant’s behaviour means that he has breached the HCPC’s Standards Conduct Performance and Ethics;

1.2 You must work in partnership with service users and carers,
involving them, where appropriate, in decisions about the care,
treatment or other services to be provided.

1.4 You must make sure that you have consent from service users or
other appropriate authority before you provide care, treatment or
other services.

2.6 You must share relevant information, where appropriate, with
colleagues involved in the care, treatment or other services
provided to a service user.

3.4 You must keep up to date with and follow the law, our guidance
and other requirements relevant to your practice.

6.1 You must take all reasonable steps to reduce the risk of harm to
service users, carers and colleagues as far as possible.

6.2 You must not do anything, or allow someone else to do anything,
which could put the health or safety of a service user, carer or
colleague at unacceptable risk.

7.1 You must report any concerns about the safety or well-being of
service users promptly and appropriately.

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

25.Accordingly, the Panel is satisfied that the allegation of misconduct is well founded.

Decision on Impairment 

26.The Panel accepted the advice of the Legal Assessor and reminded itself of the contents of the HCPTS Practice Note on Finding that Fitness to Practice is Impaired. It recognised that the question of current impairment is a matter for its professional judgement.

27.In determining this question, the Panel first gave thought to the personal component. In this context, the Panel took into account that there has been no engagement in the regulatory process from the Registrant at all.

28.In his interview of 2 August 2016 the Registrant said that he felt that he had done nothing wrong, although, during the appeal process which took place on 6 September 2016, he began to show an element of insight into his shortcomings. Overall, though, the Panel’s view is that the Registrant has not fully recognised the error of his ways or the danger that his misconduct posed.

29.There is no evidence of remediation and, consequently, there exists a risk of repetition of such shortcomings. There was also an absence of any tangible remorse or personal reflection on the incident.

30.Turning to the public component, the Panel was mindful of its duty to maintain confidence in the profession and to declare and uphold proper standards of conduct and behaviour. As such, it has no doubt that fellow practitioners would find the misconduct found in this case to be deplorable.

31.In the above circumstances the Panel finds it impossible to disagree with the submission of Ms Sheridan that the fitness to practise of this Registrant is currently impaired.

Decision on Sanction

32.The Panel heard submissions from Ms Sheridan. In coming to its own independent decision on sanction, the Panel paid careful regard to them and the HCPC’s Indicative Sanctions Policy (ISP). It also took into account the advice of the Legal Assessor that it should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

33.The Panel took into account the following mitigating and aggravating features in this case:

Mitigating

• This was an isolated incident in the Registrant’s otherwise unblemished career;

• The witness ZP regarded the Registrant to be “a hard worker, a conscientious and valuable staff member who is “usually very cautious.”

Aggravating

• This misconduct caused unnecessary pain to Patient X and resulted in the need for her to undergo a second general anaesthetic.

• Had the scrub nurse not realised the error, the operation would have gone ahead without informed consent and put the NELTC at risk

• At the start of the subsequent investigation, the Registrant claimed he had done no wrong and sought to deflect the blame elsewhere.

• The Registrant has failed to engage at all with these proceedings.

34.It would clearly be inappropriate to conclude this case by taking no action or by referring it for mediation, nor would it be appropriate to impose a Caution Order. None of these courses would serve to protect patients or maintain the good standing of the profession.

35.The Registrant’s lack of engagement with the process means that the Panel has no information about the Registrant’s current employment, if he has any. As a consequence, it is difficult for the Panel to assess his willingness to comply with any Conditions of Practice, or gauge how realistic it might be that any conditions could be practicable, workable, or verifiable. There are no conditions that could address this situation. Furthermore, a Conditions of Practice Order would fail adequately to reflect the seriousness of the Registrant’s behaviour.

36.The Panel next considered the Suspension Order and felt that this sanction is the first one, given all the circumstances that would properly and proportionately protect the public and maintain public confidence in the ODP profession and the regulatory process. It would also allow the Registrant to reflect upon the Panel’s findings at a personal and professional level and consider how he might remediate any failures identified to a future panel which might mean he could return to safe practice in the future.

37.The Panel’s decision is that a 12 month Suspension Order would be appropriate. This would allow the Registrant sufficient time to achieve these outcomes if he was to re-engage with the regulatory process.

38.A Striking Off Order, not least because the Registrant’s misconduct was a single act, would be disproportionate in all the circumstances.

39.The conclusion of the Panel is that it is necessary to protect the public and in the wider public interest that a Suspension Order for a period of 12 months should be imposed.

40.A reviewing Panel would be assisted by the presence of the Registrant and a personal statement from him demonstrating that he is conscious of the gravity of his misconduct and its impact and that he has taken steps on the road to remediation.

Order

Order:  The Registrar is directed to suspend the registration of Mr Mundatta Nundoo for a period of 12 Months from the date this order comes into effect. 

Notes

This order will be reviewed again before its expiry on 21 June 2019.

Hearing History

History of Hearings for Mr Mundatta Nundoo

Date Panel Hearing type Outcomes / Status
23/05/2018 Conduct and Competence Committee Final Hearing Suspended