Mr Liam Smyth
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By reason of your physical and/or mental health your fitness to practise as an Operating Department Practitioner is impaired.
1. At the outset of the proceedings the Registrant was neither present nor represented.
Service of Notice of the proceedings
2. Ms Vignoles on behalf of the HCPC, invited the Panel to accept that all reasonable steps have been taken to serve notice of the hearing on the Registrant, in accordance with the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003 ("the Rules") and if satisfied, to proceed in the absence of the Registrant.
3. The Panel received the advice of the Legal Assessor, which it followed, and which is incorporated in its decision set out below:
4. The Panel received evidence in the form of:
a. a Notice of Hearing dated 26 June 2019, which contained the time, date and venue of the hearing and,
b. a certificate of service, which showed that Notice of Hearing had been sent by first class post on 26 June 2019 to the address held by the HCPC on the Operating Practitioner Part of the register maintained by the HCPC.
5. The Panel had regard to Rule 3 of the Rules, which provides that “a reference to the sending of a notice or other document…is a reference to it being sent…in the case of a registrant, to his address as it appears in the register.” It also had regard to Rule 6, which provides that a registrant is entitled to 28 days notice of the day, time and venue of the hearing. It also had regard to Rule 11, which provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”
6. Finally, the Panel had regard to the guidance given to panels by the Court of Appeal in GMC v Adeogba  EWCA Civ 162 that, in deciding whether reasonable steps had been taken to serve a registrant, the Panel should bear in mind that a registrant has a duty to keep his address on the register up to date and engage with his regulator. Turning to the responsibility of the regulator, it said, “Their responsibility is very simple. It is to communicate with the practitioner at the address he has provided; neither more nor less.”
In these circumstances, the Panel was satisfied that the HCPC had taken all reasonable steps to serve a notice of the hearing on the Registrant by posting a notice to the address held by the HCPC on the appropriate part of the Register.
Whether the Panel should exercise its discretion to proceed in the absence of the Registrant
7. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence.
8. Ms Vignoles submitted first that the Panel was entitled to proceed in the absence of the Registrant because he had been served with notice of the hearing in accordance with the Rules. She submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because all the evidence indicated that he had disengaged from the HCPC proceedings and so voluntarily absented himself.
9. The Panel received the advice of the Legal Assessor, which it followed. The Panel had regard to the guidance given in the HCPTS Practice Note “Proceeding in the Absence of the Registrant" (dated 22 March 2017) and to the decision of the House of Lords in R v Jones  UKHL 5 and the further guidance given to panels by the Court of Appeal in GMC v Adeogba (above). It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care and caution.
10. It looked at the nature and circumstances of the Registrant's absence, and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear.
11. The Panel read a bundle of emails from the Registrant dated 7/2/18, 6/11/18,7/2/19, 27/2/19 and 17/4/19. It also read a report date stamped as received on 31 October 2018 and a letter from the practice where the Registrant is registered as a patient.
12. The Panel refers to these documents in the body of the decision. For the purposes of this application, their importance is as follows. The Panel did not find that the Registrant is voluntarily absent in the sense that he has disengaged from the regulatory process and does not have any interest in the process.
13. Taken together, the message of the documents is this; the Registrant has already taken important steps to overcome his health conditions and will continue to do so. He finds the continuing regulatory process very distressing and he very much wants it to be over as soon as possible.
14. Against this background, the Panel considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment, and whether there was any indication that the Registrant wished to be represented at this or a subsequent hearing.
15. The Panel was satisfied that that the Registrant did not seek an adjournment and was extremely unlikely to attend within any time frame within which the hearing could properly be adjourned. On the contrary, he wants the process to be completed as soon as possible. He has made it clear that he cannot secure representation.
16. The Panel considered what prejudice the Registrant would suffer by not attending. The Panel was satisfied that the Registrant would, unusually, suffer no prejudice because there was no suggestion that he challenged any of the evidence, he did not wish to return to work at this time and it was not possible for the Panel to strike him off the Register at this hearing.
17. The Panel also had regard to the public interest in allowing the HCPC to fulfil its duty to protect the public and resolve cases within a reasonable time. The Panel bore in mind the guidance given by the Court of Appeal in GMC v Adeogba (above). The Panel had regard to the fact that the HCPC had secured the attendance of a witness in person and a consultant psychiatrist who had made arrangements to attend by video link.
18. In all the circumstances, the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant.
Hearing the evidence in private
19. At the start of the hearing, the Panel heard an application by Ms Vignoles that the hearing should be held in private because the Allegation was founded upon the Registrant’s health conditions.
20. The Panel had regard to an email from the Registrant in which he drew the Panel’s attention to his fear that the proceedings would be in public and the detrimental effect this would have.
21. The Panel heard the advice of the Legal Assessor, which it accepted and incorporated into the decision set out below.
22. It had regard to Rule 10(1)(a) of the Health and Care Professions Council (Conduct Committee) (Procedure) Rules 2003 (the ‘Rules’) which states
“At any hearing
(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”
23. The Panel found that the case was entirely based upon the Registrant’s health concerns and that it was effectively impossible to identify parts of the evidence or submissions that could properly be held in public.
24. Accordingly, the Panel decided to hear the whole of the hearing in private.
Evidence by video link
25. Before the hearing began the Chair dealt with a written application by the HCPC that the Panel hear the evidence of Dr Suleman, a consultant who had written a report on the Registrant’s health dated 14 June 2019, over a video link. The reason for the application was that Dr Suleman could not attend in person on 2 August 2019 but could give evidence by video link.
26. The Chair received the advice of the Legal Assessor, which he accepted and incorporated into this decision.
27. He had regard to his general power to make directions under Article 32(3) of the Health and Social Work Professions Order 2001 (the “Order”) which provides that “the Committee concerned may give directions as to the conduct of the case” and directs panels that proceedings “shall be dealt with expeditiously” He also had regard to Rule 10(1)(c) of the Rules, which provides that the “the Committee may hear or receive evidence which would not be admissible in such proceedings if it is satisfied that admission of that evidence is necessary in order to protect members of the public;”
28. The Chair considered the following matters:
a. whether the witness could give relevant evidence which is necessary to protect the public and decided that he could because his evidence related to the Registrant’s health and his fitness to practise;
b. whether the video link was an efficient way of presenting evidence to the Panel and decided that it was because it enabled the Panel and the Registrant to see as well as hear the witness and ask questions;
c. the submissions of the HCPC that, if the application were not granted, Dr Suleman could not give evidence until the following week and this would mean it was unlikely that the hearing could be completed in the time allotted to it;
d. whether there was any danger of unfairness to the Registrant if he allowed the application.
The Registrant was asked for his views by email but did not respond. In any event, the chair was satisfied that no injustice would be caused to the Registrant who appeared unlikely to attend the hearing.
29. Having regard to all these matters the Chair exercised his powers under Article 32 of the Order to allow Dr Suleman’s evidence to be heard by video link.
30. Between 6 February 2017 and 26 October 2017, the Registrant was employed at Huddersfield NHS Foundation Trust (“the Trust”) as a Band 5 Operating Department Practitioner within the Theatres department. He was based at the Trust’s Huddersfield Royal Infirmary (“HRI”) site and his day to day responsibilities entailed assisting Anaesthetists by preparing drugs, monitoring patients undergoing anaesthesia, carrying out scrub duties within theatres and completing circulating duties.
31. On 10 May 2017, the Registrant informed his line manager, Sharon Berry, the then Clinical Operation Manager, that he had been suffering from a health condition. At this time, the Registrant was still in his probationary period of employment at the Trust. Over the course of his employment, Sharon Berry reports that the impact of the Registrant’s health upon his conduct at work became apparent and concerns began to be reported by his colleagues. The Registrant also had several periods of absence from work during his probationary period. As a result, the Registrant was not able to complete his probationary period.
32. In addition to the documents referred to in paragraph 11 above, the Panel also received a bundle of documents from the HCPC which included the following documents:
a. A report prepared by Dr Suleman;
b. A witness statement from Ms Sharon Berry;
c. A bundle of letters and emails detailing the contact between the Trust and the Registrant, detailing the difficulties the Registrant had as a result of his health difficulties and the efforts made by the Trust to enable the Registrant to complete his probationary period.
33. The Panel first heard from Dr Suleman by a video link. He adopted his report and summarised his conclusions for the Panel.
34. He explained that he had not examined the Registrant himself because he had not been instructed to do so. He readily accepted that this was not ideal but he felt able to give an opinion based upon the Registrant’s medical notes and a number of documents submitted by the Registrant himself and those from whom the Registrant has sought help in the past 2 to 3 years. These included the following documents:
b. ;c. A letter from Kevin Chandler, treating the registrant;
d. An email dated 17 April 2017 from the Registrant himself.
35. The Panel was satisfied that it could proceed on the basis of this evidence because there was a broad measure of agreement between all those treating the Registrant (and the Registrant himself) with regard to both his diagnosis and prognosis. The Panel was also greatly assisted by the fair and measured way in which Dr Suleman presented his conclusions to the Panel.
36. He said that the Registrant was likely to recover from his current health condition but there was a high likelihood of a relapse. In order to be satisfied that the risk of relapse was no longer significant he would wish to see the achieving a period of stability.
37. He confirmed that, if he were instructed to review the Registrant’s progress in future, it would be highly desirable for him to examine the Registrant in person.
38. Ms Berry was also a helpful and balanced witness. She told the Panel that the Registrant had worked in her department as a student before he began his probationary period of full-time work. She said he had been an eager student who was willing to learn. She also told the Panel that he been an “exceptional” student who had published papers while still a student.
39. However, shortly after starting work, the Registrant had become effectively unable to work. He no longer engaged with his colleagues; he required significant periods of sick leave and could not engage with the occupational health department when they tried to assist him. He also took unexpected breaks during work shifts in a way that was incompatible with providing safe care to patients.
40. The Panel also read the Registrant’s email of 17th of April 2009 which is reproduced in Dr Suleman’s report. In that email he said, ” I have at each point openly stated that my fitness to practice was impaired during my employment… it still is impaired but also I do not have any plans to return to work as an Operating Department Practitioner.”
41. Ms Vignoles submitted that the evidence was clear that the Registrant had suffered for some time from the serious health conditions identified by Dr Suleman. She submitted that Ms Berry’s evidence showed that the Registrant could not work as an Operating Department Practitioner without relapsing. She acknowledged that he appeared to have insight into his health conditions and to be seeking appropriate treatment. Nevertheless, his fitness to practise would remain impaired until he could demonstrate recovery and a period of stability which was sufficient to reassure the Panel that the risk of relapse was no longer significant.
The Panel’s approach to the evidence and decision on facts and grounds.
42. The Panel heard the advice of the Legal Assessor, which it accepted and incorporated into its decision. In particular it bore in mind that at the first stage the burden of proving the allegation rests on the HCPC and that the Registrant need not prove anything. It does not assist the HCPC that the Registrant neither attended nor gave evidence. It also bore in mind that the standard of proof is the civil standard, namely the ‘balance of probabilities.’
43. The Panel accepted the evidence of Dr Suleman, which the Panel has already observed, was fair and balanced and was supported by all those who have treated the Registrant and by the Registrant himself.
44. Accordingly, the Panel found the allegation proved, in that the Registrant suffers from the medical conditions, set out in Schedule A.
Decision on Impairment
45. The Panel next considered whether the Registrant’s current fitness to practise is impaired by reason of the Health conditions it has found proved. The Panel heard the submissions of Ms Vignoles referred to above and the advice of the Legal Assessor, which it accepted. The Panel also had regard to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”.
46. The Panel was aware that impairment is a question for its own judgement. The Panel bore in mind that although it read and understood what the Registrant had said about his own fitness to practise, the Panel had to form its own judgment. In reaching its decision the Panel considered both the personal component and the public component of fitness to practise, which includes the need to protect service users, maintain confidence in the profession and the regulatory process and uphold proper standards of conduct and behaviour.
47. The Panel reminded itself that the question of fitness to practise separate to the question of whether the Registrant is unwell, otherwise there would be no point to a second, separate, stage. Many registrants suffer ill health without being unfit to practise.
48. In deciding whether the Registrant’s fitness to practise is currently impaired the Panel had regard to the following examples given by Dame Janet Smith in the 5th Shipman report and subsequently adopted by the High Court in Cheatle v GMC  EWHC 645 Admin and NMC v CHRE v NMC and P Grant  EWHC 927 (Admin),
a. Does the Registrant present a risk to patients
b. Has the Registrant brought the profession into disrepute
c. Has the Registrant breached one of the fundamental tenets of the profession
d. Is it the case that the Registrant’s integrity cannot be relied upon?
49. The Panel also had regard to the reminder given to all panels by Cox J in the Grant case above, not to lose sight of the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. She said:
50. “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
51. The Panel emphasises that the Registrant is not in any sense to blame for suffering ill health. The Panel accepts that he was a good student who has been prevented, thus far, from practising because of his health. It also accepts that Dr Suleman is right to conclude that the Registrant has insight into the nature of his illness and the steps he must take to recover. The Panel finds he has shown considerable courage and determination in pursuing treatment that cannot be easy to sustain, in order to recover his health. The Panel finds that these are hopeful and positive signs for the future.
52. Nevertheless, it is the duty of the Panel to protect the public and the wider public interest. The Panel finds that all the evidence points to the Registrant still being too unwell to practise safely. It accepts the evidence of Ms Berry that the Registrant cannot remain at work and sustain a sufficient period of work to maintain patient safety, until his health recovers to the level it was at when he was an impressive student.
53. The Registrant suffers from more than one health condition and the Panel accepts the evidence that the presence of more than one condition makes recovery more difficult. The Panel accepts the evidence of Dr Suleman that the Registrant’s fitness to practise safely will remain impaired until he has completed his treatment for all aspects of his health conditions and enjoyed a period of relative stability. It would put patients at risk if the Registrant were allowed to return to practise at present.
54. The Panel is also mindful that it would undermine confidence in the profession if it allowed a registrant to return to practise before it is safe to do so.
55. For these reasons, the Panel finds that the Registrant’s fitness to practise is currently impaired by reason of the health conditions found proved above.
Decision on sanction
56. Having found that that the Registrant’s fitness to practise is impaired by reason of his health conditions, the Panel considered what, if any sanction to impose on the Registrant.
57. The Panel heard submissions from Ms Vignoles on the issue of sanction. The Panel also accepted the advice of the Legal Assessor and had regard to the HCPC’s Sanctions Policy dated March 2019 (SP).
58. The Panel is aware that the purpose of sanction is not to be punitive but to protect the public and the wider public interest which, includes the reputation of the profession and public confidence in the profession and the regulatory process.
59. The Panel also bore in mind the principle of proportionality and balanced the Panel’s duty to protect the public against the rights of the Registrant.
60. The Panel found that this was not a case where it was helpful to speak of mitigating and aggravating factors, although the Panel bore in mind that the Registrant appears committed to addressing his health conditions and is apparently engaged in residential rehabilitation. It also had regard to the Registrant’s own views that he is not currently well enough to return to work and his mind is currently set against returning to the profession.
61. The Panel also took into account the evidence of Ms Berry, the Registrant’s former line manager, who attested to the Registrant’s exceptional qualities as a student. When considering the public interest, the Panel reminded itself that there is a strong public interest in good professionals returning to the profession when it is appropriate and safe for them to do so.
62. The Panel considered the sanctions available to it in ascending order of severity. The panel considered whether it could take no further action. However, the Panel found that would not be sufficient to protect the public when the Registrant still suffered from unresolved health conditions which are likely to prevent his practising safely.
63. The Panel considered a caution order but concluded that this would not be sufficient to protect the public if the Registrant returned to work before he had fully recovered.
64. The Panel gave careful consideration to the imposition of a conditions of practice order. It had regard to paragraphs 106 and 107 of the Sanctions Policy which provide that such an order may be appropriate where the registrant has insight and the failure or deficiency is capable of being remedied. It noted that there is evidence that the Registrant has insight and is undergoing treatment.
65. Nevertheless, the Panel found that appropriate and realistic conditions could not be formulated while the Registrant is still undergoing treatment, the outcome of which remains uncertain, and he currently remains set against returning to the profession. The Panel acknowledged that there may come a time when appropriate conditions could be formulated but found that time had not yet arrived.
66. Accordingly, the Panel found that the only workable sanction that would protect the public while the Registrant is recovering from the health conditions from which he suffers, is a period of suspension.
67. The Panel decided that the correct period was 12 months because this was a long enough period for the Registrant to complete treatment and achieve a period of stability. It would also afford him sufficient time to consider whether he does wish to return to the profession in due course. It would also maintain public confidence in the profession by emphasising that the regulator would not permit a registrant return to work until it would be safe for him to do so.
68. The Panel noted that a striking off order was not a sanction available to it because the Registrant has not been subject to a substantive conditions of practise or a suspension order for 2 years.
69. The Suspension Order will be reviewed before its expiry. At the review hearing, the reviewing panel is likely to be assisted by:
a. the Registrant’s attendance at the Review Hearing;
b. a report from Dr Suleman, prepared after examining the Registrant in person.
c. An up to date report from those professionals treating the Registrant.
d. Evidence from the Registrant about his future plans.
ORDER: That the Registrar is directed to suspend the registration of Mr Liam Smyth for a period of 12 months from the date this order comes into effect.
A hearing was held from 2-5 August 2019 in London and a Suspension Order was imposed.