Miss Rebecca J D Overton-Applebee

Profession: Operating department practitioner

Registration Number: ODP25397

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 26/10/2018 End: 11:00 26/10/2018

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

During the course of your employment as an Operating Department Practitioner from January to March 2012 with Gloucestershire Hospital NHS Foundation Trust, you:

 

1. On 7 March 2012, you received a caution for theft by employee of 4 x 30mg Codeine phosphate from Gloucestershire Constabulary.

 

2. On 7 March 2012 you:

a. self-administered 4 x 30mg of Codeine phosphate stolen from the controlled drug cupboard whilst on duty.

b. falsified records in the controlled drugs book to show that patients A and B had received Codeine phosphate when they had not.

 

3. You falsified records in the controlled drugs book to show that patients had received Codeine phosphate when they had not:

 

a. on at least seven occasions and in particular on:

i) 3 February 2012 - 60mg, Patient C;

ii) 24 February 2012 - 60mg, Patient D;

iii) 27 February 2012 - 60mg, Patient E;

iv) 5 March 2012 - 60mg, Patient F;

v) 21 February 2012 - 60mg, Patient G;

vi) 24 February 2012 - 60mg, Patient H;

vii) 2 March 2012 - 60mg, Patient I.

 

b. and in so doing, you:

i) stole the Codeine phosphate.

ii) self-administered the Codeine phosphate.

 

4. Your actions in 2 to 3 were dishonest.

 

5. Your fitness to practise is impaired by reason of your Caution as set out in paragraph 1.

 

7. The matters set out in paragraphs 2, 3 and 4 constitute misconduct.

 

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

 

Finding

Preliminary matters
Private Hearing


1. At the beginning of the hearing, the Panel considered a joint application by Ms Senior, on behalf of the HCPC, and Mr Ostreicher, on behalf of the Registrant, for parts of the hearing to be conducted in private as reference would be made to the Registrant’s health and private life. Having received advice from the Legal Assessor, the Panel granted that application in view of the principles set out in the HCPTS Practice Note, Conducting Hearings in Private. The Panel determined that those parts of the hearing that concern the Registrant’s health and private life should be conducted in private.


Background


2. The Registrant was employed by the Gloucestershire Hospital NHS Foundation Trust (the Trust) from 22 July 2002, initially as a Nursing Auxiliary, subsequently as an Operating Department Practitioner (ODP) in or about November 2006 after she had qualified as an ODP. She worked in the private sector between December 2006 and August 2008, after which she re-joined the Trust as a Band 5 Orthopaedic Scrub Practitioner and subsequently moved into the Recovery Unit.

3. On the dates identified in the Allegation, between February 2012 and March 2012, whilst on duty, the Registrant took Codeine phosphate from Trust supplies and falsified the controlled drugs record book to make it appear that patients had been given the Codeine phosphate. In relation to Particular 2, the Registrant was arrested and given a police caution on 7 March 2012.

4. The panel at the final hearing in June 2013 heard that Codeine phosphate is a mild pain killer that should not be used over long periods as it has an addictive property. It is a prescription drug that cannot be bought over the counter. That panel took account of the number of occasions when the Registrant had falsely signed the drug out of the controlled medications store in the names of patients when she had in fact self-administered the drugs. The facts were admitted and found proved in relation to Particulars 1, 2, and 3. The Registrant admitted dishonesty, impairment and misconduct as alleged.

5. The Registrant acknowledged at the substantive hearing in June 2013, that the allegations constituted serious matters. That substantive panel noted that self- administering medication whilst on duty was a matter of serious concern. Although there was no evidence of actual patient harm, the Registrant’s actions had exposed patients to a risk of harm in that, having been falsely recorded as receiving analgesia, they may have been denied pain management when it was genuinely required. It recommended that the Registrant provide to any reviewing panel evidence of remedial steps to preclude repetition as well as evidence of maintenance of professional skills and knowledge.

6. The first review took place on 12 June 2014. The panel at that hearing concluded that the Registrant had not provided any medical evidence which could have helped in determining whether there was any current risk of Codeine phosphate misuse and had taken few steps towards maintaining her Continuing Professional Development (CPD). She had not used any resources other than reading magazine articles and remained of the opinion that she had only taken Codeine phosphate and that was “not a major drug”. She expressed little insight into the effect of her actions on service users. That panel ordered a suspension for a further one year.


7. At the second review on 24 June 2015 the panel noted that, since the previous hearing, the Registrant had given birth and, as a result of her personal circumstances, she had been unable rather than unwilling to remedy the failings in her practice or to address the recommendations made by the previous panel. The second reviewing panel noted that, in a letter dated 18 June 2015, the Registrant indicated the personal difficulties that she had to deal with and it took account of her commitment to remaining on the Register as an ODP. She expressed in that letter her remorse for what she had done in the past and expressed a wish to eventually return to her profession.


8. That second reviewing panel concluded that a Suspension Order for a further 12 months was the appropriate and proportionate order. It indicated that a future reviewing panel would be assisted by: independent medical evidence to show that the Registrant had been free from the use of Codeine phosphate for a substantial period; evidence of achievement of insight into dishonesty; and evidence that the Registrant had taken steps to maintain her CPD.


9. The third review hearing took place on 17 June 2016. That third reviewing panel concluded that although the Registrant had not provided information suggested by the previous panels, for evidence of remediation, this was not due to a lack of desire by the Registrant, but rather due to her full time caring responsibilities. That panel noted that the Registrant had written a letter detailing her reflections for the Panel, as well as providing a letter from her GP, dated 3 June 2016, which indicated that the Registrant’s own health was being investigated and treated. The third reviewing Panel extended the Suspension Order for a further 12 months and gave similar guidance which the previous panels had given, of the areas of information which may assist a future reviewing panel.


10. The fourth review hearing took place on 27 June 2017. That fourth reviewing panel concluded that the matters which had led to the Suspension Order had not been fully addressed or remediated, although it acknowledged that there were understandable reasons for that. It determined to extend the Suspension Order for a further 9 months, and made further, similar recommendations of the information which may assist a future reviewing panel. This panel also made references to this being the Registrant’s ‘last chance to remediate her misconduct’.


11. The fifth review hearing took place on 12 March 2018. Although the Registrant was not present at that hearing due to her daughter’s health, she had provided written representations for the panel’s consideration. The panel concluded that the Registrant’s written reflective piece of 9 March 2018 was “genuine and powerful’ and demonstrated that she had developed considerable insight and remorse into her actions and her dishonesty. The residual concern of the panel was the Registrant’s state of health and medication regime.


12. In all the circumstances, the fifth reviewing panel concluded that a Suspension Order for a further period of 7 months was the appropriate and proportionate response. In deciding upon this length, the panel had regard to the representations of the Registrant’s representative that a further review date be scheduled for October 2018, at a date to be fixed after consultation with all parties. This date would be anticipated to give the Registrant the opportunity to participate in person or by telephone, and to provide up to date medical and other relevant information to confirm what medication she is taking and any coping strategies she has in place to satisfy that there is no longer a risk of repetition. 


Decision


13. Ms Senior, on behalf of the HCPC, submitted that the HCPC acknowledged the particularly challenging personal circumstances faced by the Registrant, especially the complex enhanced health needs of her daughter, for whom the Registrant is the primary carer. Ms Senior submitted, however, that the Registrant does not appear to have addressed the residual issues of concern raised by the previous panels around the Registrant’s current health and the risk, if any, of the Registrant misusing drugs. This, Ms Senior submitted, was in spite of clear indications from previous panels as to the information that they would be assisted by. She submitted that the Registrant’s fitness to practise remained impaired.


14. In terms of sanction, Ms Senior submitted that the HCPC’s primary position was that a striking-off order is now the appropriate and proportionate sanction in this case. The Registrant has now been suspended for a total period of five years, and the last 16 months of her suspension were ordered by the two previous reviewing panels in the full knowledge of the Registrant’s challenging familial circumstances, to allow her time to demonstrate remediation. She has not done so and Ms Senior submitted that, if it is the case that the Registrant is unable to remedy the residual issues, a further period of suspension would serve no useful purpose.


15. Ms Senior submitted that if the Panel were not minded to impose a striking-off order, a further short period of suspension of a minimum of 6 months would be appropriate. There had been a very recent indication from the Registrant that she might wish to be considered for Voluntary Removal from the Register and a short period of suspension might allow this to be considered by the HCPC.


16. Mr Ostreicher submitted that a striking-off order would be wholly disproportionate in the particular circumstances of this case. He reminded the Panel of the Registrant’s stated commitment to her profession and that it is as a result of her daughter’s severe health difficulties that the Registrant has been unable to engage with the various suggestions of the previous panels.


17. The Registrant attended the hearing by telephone and gave oral evidence to the Panel. She told the Panel that she would like to return to practice but, in terms of progress since the last review hearing in March 2018, “we are very much in the same situation”. She provided detailed information around her current medication regime, including how she is avoiding the misuse of prescribed medication in the light of her medical history. She told the Panel that, due to her own ongoing physical health issues, she takes prescribed opioid medication for the treatment of severe pain. She said that she is very well-supported by her GP who is looking into alternative ways to alleviate her pain. In terms of her mental health, the Registrant has attended counselling sessions and finds her volunteering, meditation and art classes a support and told the Panel that she feels well. The Registrant also spoke about the level of care that her daughter requires, which is “24/7” and explained that there is a possibility that her daughter will have complex surgery next year.

18. This Panel considered the advice of the Legal Assessor. The Panel bore in mind that it must first decide if a finding of current impairment is necessary to protect the public from any risk of harm (assessing the extent of that current or future risk), maintain public confidence in the profession, or to declare and uphold the proper standards of conduct or behaviour. This is a matter for the Panel’s independent judgment and is essentially a risk assessment in light of all the information before the Panel today.

19. As to impairment, the Panel bore in mind the decisions of the previous panel at the final hearing and the review hearings that the Registrant’s fitness to practise was impaired on the grounds of public protection and being otherwise in the public interest. There has been engagement from the Registrant throughout her regulatory proceedings with the HCPC, including prior to and during the final hearing in June 2013, but no significant new evidence since the last review hearing.


20. The Panel bore in mind that any approach to the issue of whether a Registrant’s fitness to practise should be regarded as impaired must take account of the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour. It accepted the advice of the Legal Assessor and carefully considered the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’” and all the evidence before it.


21. In the Panel’s view, the Registrant’s misconduct involved serious breaches of her professional standards and did call into question her judgment.  Although the previous panel considered that the Registrant had demonstrated sufficient remorse and insight into her conduct, residual concerns around the repetition of the misuse of drugs remained. The Panel has concluded that the Registrant has still not provided any medical evidence which could have helped in determining whether there was any current risk of drug misuse. The Registrant has also not provided any evidence of Continued Professional Development. The Panel could therefore not be satisfied that the concerns underpinning the Registrant’s impaired fitness to practise have been overcome.


22. The Panel has determined that, in light of all the evidence before it, the Registrant’s fitness to practise continues to be impaired by reason of her misconduct. Both the public and the personal elements of impairment are engaged. The Registrant is not safe to practise given her current impairment  and the public interest requires that she should not be in a position to practise unrestricted.


23. The Panel carefully considered matters including the HCPC “Indicative Sanctions Policy”. It has borne in mind that any sanction must be proportionate and that the primary purpose of sanction is protection of the public. Any sanction it imposes must protect the public but must be the least restrictive sanction that achieves that aim.


24. Having considered these issues, the Panel has determined that the misconduct issues in this case are too serious to be met with either no further action or a Caution Order. The Panel next considered imposing a Conditions of Practice Order but, adopting the same reasoning as the previous panel, determined that it was not possible to devise appropriate, workable and realistic Conditions of Practice that would protect the public, given that the findings were for dishonesty and self-medication of prescription medication.


25. The Panel has therefore determined that the appropriate and proportionate sanction is to extend the current Suspension Order by a period of 12 months. The Panel was of the view that a further suspension order would provide sufficient public protection while leaving open the possibility of remediation taking place and providing objective medical evidence or, alternatively, affording the Registrant the opportunity to explore with the HCPC the possibility of Voluntary Removal from the register, should she wish to do so. A striking off order would preclude a return to practice for a minimum of 5 years and so, after very careful consideration by the Panel, was considered disproportionate.


26. The Panel considers that any future panel reviewing this Order would be assisted by:


• Detailed information from the Registrant’s GP in writing of the Registrant’s current medication regime and their assessment of the Registrant’s current risk of addiction to medication for pain relief.

• Information from the Registrant as to how she is avoiding the misuse of prescribed medication in the light of her medical history.


• Documentary evidence of any CPD undertaken.

Order

ORDER:
The Registrar is directed to suspend the registration of Miss Rebecca Overton-Applebee for a further period of 12 months on the expiry of the existing order.

Notes

A Review was held in London under Article (3) on 26 October 2018. The order is operative from 23 November 2018.

Hearing History

History of Hearings for Miss Rebecca J D Overton-Applebee

Date Panel Hearing type Outcomes / Status
26/10/2018 Conduct and Competence Committee Review Hearing Suspended
12/03/2018 Conduct and Competence Committee Review Hearing Suspended
27/06/2017 Conduct and Competence Committee Review Hearing Suspended
17/06/2016 Conduct and Competence Committee Review Hearing Suspended
24/06/2015 Conduct and Competence Committee Review Hearing Suspended
12/06/2014 Conduct and Competence Committee Review Hearing Suspended