Mr Chika Okechukwu Iwuala

Preliminary Matters

Service

1. Written notice of these proceedings was posted to the Registrant at his registered address by first class post on 13 September 2019. 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 provisions of Rule 6(1) of the relevant rules.

Proceeding in absence

2. The Panel heard the submissions of Mr Millin to proceed in the absence of the Registrant. It 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 communication by the Registrant to the HCPC since a letter from him, dated 22 September 2017.

4. This case concerns alleged failings by the Registrant between 19 June 2017 and 25 August 2017, some time ago. The HCPC has warned four of its witnesses to attend this hearing in person.

5. The Panel’s view is that as there has been no engagement from the Registrant in over two years, the absence of the Registrant is voluntary and therefore nothing would be achieved by adjourning these proceedings.

6. As such, the Panel considers it is in the interests of justice and it is in the public interest to conclude this matter expeditiously. The Panel therefore granted this application.

Application to amend the Allegation

7. On 17 May 2019, a panel of the Investigating Committee of the HCPC met and determined that there was a case to answer in relation to a number of Particulars.

8. Thereafter, the HCPC instructed Kingsley Napley Solicitors to conduct the appropriate investigation. This involved taking statements from witnesses from July – October 2019.

9. On 8 October 2019 a letter was sent by the HCPC to the Registrant advising him of an intent to make an application to the Panel to make minor amendments to certain Particulars of the Allegation at the final hearing.

10. The stated reasoning behind this was to better reflect the evidence that had been gathered and to lend clarification to details of some Particulars.

11. The Registrant has not responded to the letter referred to above and the Panel determined that no prejudice would accrue to his cause by the granting of this application.

12. Thus, the Allegation was amended as sought.

Background

13. On 30 January 2017 the Registrant started his career as an Operating Department Practitioner (ODP) at Whipps Cross Hospital as an Orthopaedics Scrub Practitioner.

14. He left this job on 8 May 2017.

15. The Registrant was employed with Lewisham and Greenwich NHS Trust (the Trust) as a Band 5 Anaesthetic ODP from 19 June 2017 until 25 August 2017. Upon commencement of employment and subsequent to his induction, concerns were raised about his level of competence following observations from colleagues who had worked with the Registrant in operating theatres. As a result of these concerns being escalated, on the 12 July 2017 the Registrants supernumerary period was extended from four to six weeks and he was given a more experienced mentor to assist his working through his competency workbook.

16. This mentor also raised significant concerns about the Registrant’s ability to practise autonomously and safety.

17. In particular, it is alleged that the Registrant did not prepare fluids appropriately nor did he demonstrate the required knowledge of medical equipment. Furthermore, he displayed a lack of skill in theatre by contaminating sterile areas and the surgeon with whom he was working.

18. Additionally, it is alleged that he displayed a lack of knowledge in how to check the anaesthetic machine and he was unaware of how to pre oxygenate a patient or pass a laryngoscope appropriately. Also, on at least one occasion he did not reconnect the pipeline oxygen supply and did not switch on the gas analyser. It is also alleged that he was unable to practise autonomously.

19. On 31 July 2017, at the Registrant’s first Formal Capability meeting, he disclosed that he had previously worked at Whipps Cross Hospital.

20. On 7 August 2017 at an investigation meeting with AB, the Registrant openly admitted that he had failed to mention this previous job in his application for employment with the Trust. He provided reasons for this failure to AB, which were recorded as:
• He worked as a scrub nurse there for two months;
• He did not enjoy his time whilst working at Whipps Cross and that is why he left;
• The role he applied for at Lewisham was an anaesthetic role; therefore he felt that a scrub role at Whipps Cross did not need to be included in the application;
• He made the assumption that he would not be able to get a reference from Whipps Cross because he had only worked there for 2 months.

21. Throughout he has always maintained that there was no question of dishonesty on his part in omitting this detail from his application form.

22. On 25 August 2017 the Registrant resigned from the Trust.

Decision on Facts

23. The Panel has considered all of the documentary evidence placed before it and has had regard to the testimony of the four witnesses called by the HCPC. They were:
• AB, at the material time Clinical Governance and Practice Development Facilitator at the Trust and the Registrant’s line manager. He gave general evidence about the Registrant’s employment at the Trust and provided specific details of meetings he had with him on the 12 and 31 July and 7 August 2017. He could not comment directly upon the Registrant’s alleged failings as pleaded in Particular 1 of the Allegation. However, he did offer helpful evidence of the financial impact on the Trust and the potential patient safety consequences. He was also willing to concede when he could not recall certain events.
• Dr AM, Consultant Anaesthetist at the Trust. He worked directly with the Registrant and was able to state his view that he was unable to practise autonomously (Particular 1(i)). He also gave direct evidence about the Registrant’s struggle to pre oxygenate a patient (Particular 1(e)) and his inability to appropriately pass a laryngoscope (Particular 1(f)) on multiple occasions.
• Dr SE, Consultant Anaesthetist at the Trust. She told the Panel that she clearly recalled working with the Registrant on 11 July 2017 when she noted a number of flaws in his practice (Particular 1(a) – 1(d)) and told his mentor that day that he should not be permitted to practise autonomously due to patient safety concerns.
• CL, Senior ODP and Lead for Paediatrics at Lewisham Hospital. She told the Panel about a number of incidents that she witnessed which involved what she said displayed a lack of competency on his behalf. As the Registrant’s mentor she painted a picture of what she claimed was the Registrant’s ineptitude.

24. The Panel accepted the evidence of all the witnesses. They were generally clear, credible and fair minded in their recollection of the events. In the case of witnesses CL, Dr AM and Dr SE, who had worked directly with the Registrant, there was considerable criticism of his competency. Nothing that was said by any of them was inconsistent with the contents of their written witness statements.

25. The letter provided by the Registrant, dated 22 September 2017, contained a robust rebuttal that the omission in his employment application form was dishonest. He said that this was due to the fact that he did not spend much time at Whipps Cross Hospital and that he thought it unlikely that they would provide him with a work reference. Insofar as the allegations contained within Particular 1 are concerned, the Registrant did not address them specifically. He said he did his “best to catch up though I was slow”. In assessing the weight to be attached to the contents of this letter, the Panel reminded itself that, although it amounts to being material in the case, it did not come into the category of formal evidence.

26. Dealing with the Particulars one by one, the Panel’s findings are as follows:

Particular 1(a) – Found Proved
27. Dr SE said that on 11 July 2017 she saw the Registrant unable to properly prepare fluids and relevant equipment for a patient, with the result that air appeared in the line. Had this not been noticed, the repercussions could have been serious. There were no representations from the Registrant to contest this. The Panel found this proved.

Particular 1(b)(i), 1(b)(ii), 1(b)(iii) – Found Proved
28. Dr SE gave evidence that on the same date (11 July 2017) the Registrant did not know what a filter needle or a Tuohey needle was. She added that the Registrant asked her what the fresh gas flow switch was, knowledge of which should be basic for an ODP. Again, there are no representations from the Registrant to contest these criticisms. This Particular in its entirety was found proved.

Particular 1(c)(i) – Found Not Proved
29. From the outset of these proceedings, the HCPC offered no evidence with regard to this. The Panel agreed this was the appropriate course and found this Particular not proved.

Particular 1(c)(ii) and 1(c)(iii)  – Found Proved
30. Dr SE, in her evidence, said that on 11 July 2017, in ignorance that the surgical field of a patient (his leg) was sterile, the Registrant touched the area with sheets after it had been prepped with an iodine based antiseptic. He also bumped into the surgeon as he was standing next to him, with the effect that the surgeon became desterilised. There is no evidence to rebut the truth of this criticisms. Particulars 1(c)(ii) and 1(c)(iii)  are both found proved.

Particular 1(d) – Found Proved
31. When Dr SE worked with the Registrant on 11 July 2017, it was plain to her that he seemed unfamiliar with how to check the anaesthetic machine which she said was a standardised process. Dr SE stated the Registrant told her he was unable to check the anaesthetic machine. The Panel found this Particular proved.

Particular 1(e) – Found Proved
32. Dr AM told the Panel that the Registrant struggled a great deal with pre oxygenating a patient even after he had demonstrated this repeatedly to the Registrant. More than once, he added, did he seem unable to understand what was being asked of him in this context. The Panel finds this Particular proved.

Particular 1(f) – Found Proved
33. Dr AM told the Panel the Registrant had handed him a laryngoscope the wrong way round on multiple occasions despite being told how to do it correctly. The witness CL informed the Panel that she witnessed the Registrant pass a laryngoscope to an anaesthetist in inappropriate fashion a number of times. On one such occasion she said that he passed the instrument backwards, which had the potential to increase the time the anaesthetised patient was failing to get oxygen. The Registrant has not sought to deny this. As such, this Particular is found proved.

Particular 1(g) – Found Proved
34. According to CL she witnessed an occasion when the Registrant had failed to reconnect the pipeline oxygen supply and conduct the requisite checks. CL told the Panel the Registrant had told her he had reconnected the pipeline although it was evident to her he had not. Again, there was no material to contradict this evidence. The Panel finds this Particular proved.

Particular 1(h) – Found Proved
35. On one occasion CL discovered that the gas analyser had been switched off, although it was the responsibility of the Registrant to ensure that it was switched on, something that should be done as part of the anaesthetic routine checks. Although the Registrant claimed at the time that he had in fact switched it on, the Panel accepted the evidence of this witness and found this Particular proved, on the balance of probabilities.

Particular 1(i) – Found Proved
36. When Dr AM worked with the Registrant he felt that he (the Registrant) was not skilled enough to practise autonomously. “He did not know what he was doing” was the expressed view of this witness. The Registrant’s inability to practise autonomously was confirmed by the evidence of CL and Dr SE. The material supplied by the Registrant does not address this point. The Panel found this Particular proved.

Particular 2 – Found Proved
37. The omission of these details in his application form to the Trust has always been accepted by the Registrant. Indeed, he volunteered as much in the Formal Capability meeting of the 31 July 2017. The Panel found the Particular proved.

Particular 3 – Found Not Proved
38. Conscious of the advice received from the Legal Assessor on this topic, the Panel concluded that there was not sufficient evidence to find this Particular proved. It noted the fact that the Registrant had always conceded that he had made an error in omitting to mention his job at Whipps Cross Hospital in his job application form to the Trust. There was never any attempt by him to conceal this. Naive though he may have been, his omission fell short of dishonesty.

Decision on Grounds

39. Whether or not the facts found proved amount to misconduct and/ or lack of competence are matters for the professional judgement of the Panel.

40. Throughout its deliberations on these subjects, the Panel reminded itself that lack of competence is regarded as less serious than misconduct and that the proved facts, in appropriate cases, can amount to misconduct and lack of competence.

41. As far as misconduct is concerned, the Panel is aware that this could not be found unless the conduct concerned was serious and brought the profession into disrepute.

42. As far as lack of competence is concerned, the Panel recognised that this is conceptually separate from misconduct and connotes a standard of professional competence which is unacceptable, in relation to a fair sample of the Registrant’s work.

43. Mr Millin submitted that the facts found proved come into the category of misconduct or lack of competence. He left it to the Panel to decide which category they fell into.

44. With these submissions in mind and with consideration of all of the evidence in this case, the Panel’s judgement is as follows:
• The Registrant’s lack of competence was well below the standard expected of a Band 5 ODP, even one with limited experience.
• The proved shortcomings of the Registrant had the potential to put patient safety at risk - for instance, his contamination of sterile areas, his unawareness of how to pre oxygenate a patient, his failure to switch on a gas analyser and his ignorance of what to do with the fresh gas flow switch on the anaesthetic machine.
• The fact that the Registrant was unable to practise autonomously resulted in almost constant supervision which had the effect of managers and colleagues having to be taken off other more important work.

45. The Panel found that the Registrant fell short of the following ‘Standards of conduct, performance and ethics’:
Standard 3  work within the limits of your knowledge and skills
Standard 6 manage risk

46. The Panel also found that the Registrant fell short of the following ‘Standards of proficiency for ODPs’:
Standard 1 be able to practise safely and effectively within their scope of practice
Standard 2 be able to practise within the legal and ethical boundaries of their profession
Standard 3       be able to maintain fitness to practise
Standard 13  understand the key concepts of the knowledge base relevant to their profession
Standard 14 be able to draw on appropriate knowledge and skills to inform practice
Standard 15.8   understand the nature and purpose of sterile fields, and the practitioner’s individual role and responsibility for maintaining them 

47. In the judgement of the Panel, the facts proved under Particular 1, which represent a fair sample of the Registrant’s work, amount to a lack of competence. It is plain to the Panel that the Registrant was incapable throughout his time at the Trust of being able to demonstrate many of the basic techniques expected of a Band 5 ODP. Thus the Panel is satisfied that the cumulative shortcomings of the Registrant were such as also to amount to misconduct.

Decision on Impairment 

48. Whether or not a Registrant’s fitness to practise is currently impaired is a question for the Panel alone.

49. The Panel paid due regard to the submissions on this topic from Mr Millin and reminded itself of the contents of the Practice Note entitled ’Finding that Fitness to Practise is Impaired’. It also accepted the advice of the Legal Assessor.

50. Mr Millin, in contending that the fitness to practise of the Registrant is currently impaired, emphasised the seriousness of the Registrant’s failings and stressed that these occurred even though he had been given robust mentoring support by the Trust.

51. Mr Millin also pointed to the many examples within the evidence of the failings of the Registrant leading to the possible compromising of patient safety.

52. The Registrant has not effectively engaged with the regulatory process. Although he has accepted that he was slow to learn, there has not been any acknowledgement by him of his particular failures.

53. In reaching its determination, the Panel considered the personal component. There is no evidence that he has shown any insight into his shortcomings. This, and other factors, including the lack of evidence of remediation, have persuaded the Panel that there exists a real risk of repetition of misconduct if the Registrant were permitted to return to unrestricted practice. The Panel has borne in mind the evidence of the Registrant’s senior mentor. She was quite shocked by his lack of competency which, to her mind, put him on the level of a first year student, 6 months into training. Equally the Panel was taken by the opinion of DR SE that “his lack of knowledge was extraordinary”. Dr AM in his evidence said that the Registrant “did not know what he was doing”.

54. As far as the public component is concerned, the Panel has borne in mind the need to declare and uphold the proper standards of conduct and behaviour so as to maintain public confidence in the profession and the regulatory process. The Panel has also recognised in mind the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession and the regulatory process.
55. The Panel has concluded that the fitness to practise of this Registrant is currently impaired on both the personal and public components.

Decision on Sanction

56. The Panel heard submissions from Mr Millin who did not advocate the imposition of any particular sanction but, rightly, left it to the independent judgement of the Panel. The Panel paid careful regard to the HCPTS’ Sanctions Policy and 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 behaviour.

57. One factor the Panel took into account is the failure by the Registrant to engage in this process and its consequent lack of any knowledge as to what the Registrant has been doing since August 2017.

58. The Panel took into account the following mitigating and aggravating factors:
• The mitigating factors include the previous unblemished record of the Registrant and the fact that he has never sought to deny any of the factual Particulars that the Panel has found proved. The Registrant was described by Dr SE in her evidence as being “very nice and in no way rude or offensive”.
• The aggravating factors are the many examples of lack of competency in the Registrant’s role as an ODP at the Trust, encapsulated in the comment from Dr SE that “he did not seem to know what was going on and was not familiar with what was required of him”. These many shortcomings have the potential to compromise patient safety and also to call into question the reputation of his profession. Furthermore, as has been noted above, the Panel has not been provided with any evidence of insight, remediation or feelings of remorse by the Registrant.

59. The Panel is satisfied that the Registrant’s proved failures would be regarded as sufficiently serious by fellow practitioners and the public at large as to merit the imposition of an appropriate and proportionate sanction. Given the nature of the Registrant’s misconduct, the Panel is of the view that it would not be sufficient to conclude this case by taking no action or by referring it for mediation. Neither course would serve to protect patients or maintain the standing of, and public confidence in, the profession.

60. The Panel then moved on to consider whether to conclude this case with the imposition of a Caution Order. Again, given the nature and seriousness of the misconduct, such a course would neither provide adequate public protection nor lay down the requisite standards of conduct and behaviour for the profession at large.

61. In considering whether the case could be concluded with a Conditions of Practice Order, the Panel had regard to the advice of the Legal Assessor that conditions must be appropriate, measurable and verifiable. The picture that has been painted by the witnesses in this case is of a man whose incompetence is wide-ranging. In coupling this view with the silence of the Registrant as to what he has been doing over the last two years and four months, the Panel has determined that it could not formulate any appropriate conditions to meet the justice of this case. Such a course would also fail adequately to reflect the seriousness of the Registrant’s misconduct.

62. Accordingly, the Panel has considered that a Suspension Order for a period of 12 months is necessary and proportionate in this case. This is designed to protect the public interest and, in the view of the Panel, such an order would send out the appropriate signal to the profession. It will also provide the Registrant with an opportunity to remedy his failings.

63. Any future Panel, on reviewing this order, may be assisted by evidence from the Registrant that he has in the meantime done his best to learn from his errors. A reflective statement from the Registrant and evidence that he is keeping his Continuing Professional Development up to date would also be of help as would evidence as to what he has been doing since August 2017.

64.  In the circumstances of this case, the Panel considered that a Striking Off Order would be disproportionate.

Order: That the Registrar is directed to suspend the registration of Mr Chika Okechukwu Iwuala for a period of 12 months from the date this order comes into effect.

Application for Interim Order
Mr Millin has made an unopposed application for an Interim Suspension Order to be imposed upon the Registrant for a period of 18 months and that it is appropriate and fair for this application to be made in the absence of the Registrant.

The Panel reminded itself that the Notice sent to the Registrant dated 13 September 2019 warned him that such an application might be made in the event of certain orders being imposed, including that of a Suspension Order. The same reasons provided by the Panel at paragraphs 2 – 6 above still have application in relation to proceeding in the absence of the Registrant. It is fair and in the public interest for matters to proceed.

As far at the application to impose an interim suspension order is concerned, the Panel considers that, in the light of its findings of misconduct, this is necessary in order to protect the public and is also in the wider public interest. This is imposed for a period of 18 months.

Interim Order
The Panel makes an Interim Suspension under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. 

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mr Chika Okechukwu Iwuala