Mrs Kelly Weir

Preliminary Matters

Service

1. There was before the Panel a Notice of Hearing dated 7 May 2019, having been sent by first class post to the address shown for the Registrant on the HCPC Register. The Notice was also sent to the Registrant via email on the same date.

2. The Panel was satisfied that Notice had been properly served on the Registrant in accordance with the Health and Care Professions Council (Conduct and Competence Committee)(Procedure) Rules 2003 (the Rules).

Proceeding in absence

3. Mr Dite applied, under Rule 11, for the hearing to proceed in the Registrant’s absence.

4. The Panel took into account the guidance set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”. The Panel accepted the advice of Legal Assessor.

5. The Panel determined that it was reasonable and in the public interest to proceed with the hearing in the absence of the Registrant for the following reasons:

• The Registrant had not engaged with the regulatory process since August 2018. In particular, she had not responded to the Notice of Hearing dated 7 May 2019;

• There had been no application by her for an adjournment, and no indication that she would attend at any future date were the hearing to be adjourned. Relisting this case would therefore serve no useful purpose. In these circumstances, the Panel concluded that the Registrant’s non-attendance was voluntary and, therefore, a deliberate waiver of her right to attend;

• Although there was a potential disadvantage to the Registrant in being unable to give evidence or to make oral submissions, she was given the opportunity to attend and was also informed in the Notice of Hearing that she could make written submissions. However, she did neither;

• The two HCPC witnesses were ready to give evidence, one via videolink, the other in attendance at the venue;

• The Panel was satisfied that, in the light of the serious nature of the allegation, there was a strong public interest in ensuring that this hearing proceed expeditiously.

Application to amend

6. Mr Dite applied for the allegation to be amended. He submitted that the proposed amendments were by way of clarification and did not alter its gravamen. He said that notice of the proposed amendment application had been sent to the Registrant on 15 May 2019. The Registrant did not respond.

7. The Panel was satisfied that the proposed amendments did not affect the substance of the allegation, but were merely by way of clarification. It therefore allowed the application and amended the allegation accordingly.

Background

8. The Registrant was employed by Nuffield Health Exeter Hospital (the Hospital) as an Operating Department Practitioner (ODP) between March 2016 and July 2017. Her main role was to work with the Consultant Anaesthetist. In this capacity, she held a key to the Scheduled Drug cupboard and to the Controlled Drug cupboard.

9. At the relevant time, Tramadol was stored in the Scheduled Drug cupboard in each anaesthetic room. When required, Tramadol would be taken from the cupboard by an ODP or registered Nurse and an appropriate entry would be made in the relevant drug record book. This served as a ‘stock and safety check’. The entries would be signed by the Anaesthetist and the ODP or Nurse.

10. On the weekend of 29-30 April 2017, the Registrant was on call. This would require her to attend at the Hospital within 30 minutes.

11. On 30 April 2017, at 11.40am, the Devon & Cornwall Police (the Police) call centre received a 101 call from a person who identified himself as the Registrant’s boyfriend. The information he gave was that he had received a message from the Registrant at 1.30am on that day. Further, he said that the Registrant had sent him a photograph of medication.

12. When the Police attended the Registrant’s address, there was no response and they therefore effected forcible entry. The Registrant was found to be in bed and appeared to be drowsy, emotional, and visibly upset. It was recorded by the Police that the Registrant said she had taken Tramadol some hours before.

13. The photograph of the medication, produced by the Registrant’s boyfriend to the Police, was of an opened ampoule of Tramadol bearing a batch number and date of manufacture.

14. The Police called for an ambulance and the Registrant was taken to hospital. On examination at hospital, the clinical notes recorded that she was intoxicated with ethanol and, five hours later, the notes stated that the Registrant was “still experiencing room spinning + can’t sit up.”

15. Investigation procedures and a disciplinary procedure in relation to the alleged removal of Tramadol were conducted at the Hospital, following which the Registrant was dismissed.

Decision on Facts

16. There was before the Panel a bundle of documents containing witness statements and exhibits prepared on behalf of the HCPC. There was also a bundle of correspondence between the HCPC and the Registrant in which she made a number of observations in regard to the matters alleged. In essence, the Registrant denied removing the ampoule of Tramadol from the Hospital, stating that the ampoule of Tramadol had fallen into her open handbag, which was sitting under the sharps bin. She also denied that she was unfit for duty as a result of consuming alcohol and/or Tramadol.

17. The following witnesses were called on behalf of the HCPC.

18. JF is a registered ODP employed by the Hospital as Theatre Manager. He conducted the investigation into the incident, with particular reference to the ampoule of Tramadol depicted in the photograph. His evidence also set out the requirements of an ODP when on call. The Panel found JF to be honest, credible, and clear in his evidence. He did not exaggerate and he accepted that there were matters upon which he was unable to comment or that he could not recall in detail.

19. In his evidence, JF described the method of storing Tramadol and the system for checking use and stock. He said that the Registrant had a key to the Scheduled Drug cupboard. JF further stated that no members of staff, including ODPs, were entitled to remove ampoules of Tramadol from the Hospital premises. In regard to the ampoule shown in the photograph, he said that although the batch number was partially obscured, it appeared to conform to the batch number of the Hospital’s stock. He had confirmed this with the Pharmacy Manager at the Hospital at the time.

20. The Registrant’s account of how she had come into possession of the ampoule was put to him. JF said that it was highly unlikely that it could have been accidentally dropped into the Registrant’s handbag by someone when disposing of the ampoule in the sharps bin. Furthermore, that there were still globules of liquid apparent in the ampoule, which would have been most unlikely had the opened ampoule been in the Registrant’s handbag for any period of time. Moreover, it was contrary to Hospital policy for staff to take bags into the anaesthetic rooms and JF was not aware of any such practice.

21. In the course of the investigations, JF conducted interviews with the Registrant. He exhibited the notes of these interviews in the HCPC bundle.

22. JF, in describing what was required of an ODP when on call, said that there was no specific policy in regard to alcohol consumption but that it was implicit that staff would be fit to attend work and that this would require them not to be under the influence or alcohol or drugs.

23. Police Constable VF was one of the officers who attended the Registrant’s address following the 101 call on 30 April 2017. Her evidence was clear and credible, and consistent with the notes she made soon after attending the Registrant’s address. Her evidence was also consistent with notes made by JF regarding what she had said in telephone conversations between them on 2 and 9 May 2017.

24. In her evidence, PC VF said that, on entering the address, she observed a wine bottle on the table. Further, that a number of empty alcohol bottles were found in the Registrant’s kitchen. She described the Registrant as being in bed, very drowsy, emotional, “sobbing and shaking”, and unable to conduct a meaningful conversation. The Registrant did, however, tell PC VF that she had taken Tramadol a couple of hours before. PC VF further said that, as a consequence, she and her colleagues conducted a search of the property to see whether there were any drugs present, or evidence of their use. She said that nothing of that nature was found. There was a prescription in the Registrant’s name in the kitchen, but Tramadol was not amongst the listed medications. PC VF stated that she had recorded that the Registrant had said that she had taken the Tramadol outside her address and disposed of the packaging because she “wasn’t that stupid.”

25. PC VF further said that, having called the ambulance, the Registrant’s boyfriend attended the property and produced the photograph which he said the Registrant had sent him, showing an opened ampoule of Tramadol.

26. In reaching its decision, the Panel considered all the evidence before it, together with the submissions of Mr Dite and what was said by the Registrant in her correspondence. It accepted the advice of the Legal Assessor.

Particular 1

27. In her interview with JF on 22 May 2017, the Registrant said that she had taken Tramadol pills from an old packet and had called her boyfriend, sending him a photograph of an opened ampoule, which she had found in her handbag, in order to get a reaction from him following an altercation between them earlier that day.

28. The Panel was satisfied, from the evidence of JF, that the opened ampoule was more likely than not from the same batch as the Hospital stock, and that the presence of liquid globules inside the ampoule indicated that it had been opened recently.

29. The Panel considered the Registrant’s explanation—that the opened ampoule had, unknown to her, fallen into her bag when being disposed of in the sharps bin—to be implausible. It found also that there were significant inconsistencies in the account given by the Registrant in the course of the investigation and disciplinary hearings. The Panel’s decision was that these inconsistencies undermined her credibility.

30. The Panel therefore concluded that the ampoule, in its unopened state, was removed from the Hospital stock by the Registrant without justification.

Particular 2

31. The Panel accepted PC VF’s description of the condition in which she found the Registrant. This, together with the A&E doctor’s clinical notes that the Registrant was intoxicated by ethanol, and one comment made by the Registrant in the course of the interview to the effect that she had taken Tramadol “whilst drunk”, clearly indicated that she was unfit for duty whilst on call, either through the effects of alcohol or Tramadol. There being no other explanation of her condition, the Panel therefore found this particular to be proved.

Particular 3

32. In the light of its finding under particular 1, and considering the legal advice on the test for dishonesty, the Panel was satisfied that the Registrant acted dishonestly in removing an ampoule of Tramadol from the Hospital without justification. It therefore found this particular proved.

Decision on Grounds

33. In acting in the manner found proved under particulars 1, 2 and 3, the Panel found that the Registrant was in breach of the following standards of the HCPC Standards of Conduct, Performance and Ethics:

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.
6.3 You must make changes to how you practise, or stop practising, if your physical or mental health may affect your performance or judgement, or put others at risk for any other reason.

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

34. It therefore concluded that the conduct and dishonesty found proved was clearly unworthy of an ODP and amounted to misconduct which was serious.

Decision on Impairment 

35. In reaching its decision, the Panel considered all the information before it. It had in mind the HCPTS Practice Note on “Finding That Fitness to Practise is ‘Impaired’”. It accepted the advice of the Legal Assessor.

36. This was a serious act of dishonesty by the Registrant, who was in a position of trust, having access to the Scheduled Drug cupboard. Further, she was unfit for duty as a consequence of her consumption of Tramadol and/or alcohol.

37. The Registrant continues to demonstrate a total lack of insight, in that she has not recognised the effect dishonesty of this nature could have on public confidence in the profession. Further, that to be unfit for duty whilst on call could give rise to risk to patient safety. She further has not demonstrated remorse or any remediation.

38. As a consequence, the Panel cannot be satisfied that misconduct of this nature would not be repeated.

39. In these circumstances, in regard to the personal component, the Panel has determined that the Registrant’s fitness to practise is currently impaired. Furthermore, that a finding of current impairment is also required in the wider public interest. This is necessary to declare and uphold proper professional standards. The public would expect an ODP to act in accordance with these standards. Public confidence in the profession and in the HCPC as regulator would be undermined if a finding of impairment were not made.

Decision on Sanction

40. In reaching its decision, the Panel considered all the information before it, together with the submissions from Mr Dite. It had regard to the HCPC Sanctions Policy (2019) (the Policy). It accepted the advice of the Legal Assessor.

41. Mr Dite made no submissions with regard to particular sanctions. He referred the Panel to the Policy and emphasised that the purpose of a sanction is not to punish a registrant but to protect the public and uphold the wider public interest.

42. The Panel found the following to be aggravating factors:

• This was an incident of dishonesty whilst in a position of trust;

• The use of medication intended for patients;

• The Registrant’s lack of insight into the nature of the misconduct and dishonesty;

• Being unfit for duty whilst on call;

• There is no indication that the Registrant has taken any remedial steps or shown remorse.

43. The Panel found these to be the mitigating factors:

• This was a single incidence of dishonesty and being unfit for duty;

• There has been some limited engagement with the regulatory process by the Registrant;

• There have been no previous fitness to practise matters;

• The Registrant’s personal circumstances at the time of the incident.

44. The Panel first considered whether to take no action, but the serious nature of the misconduct requires a sanction.

45. The Panel then considered mediation or a Caution Order. However, the serious nature of the misconduct found proved is such that neither would be sufficient to protect the public or to address public interest concerns.

46. The Panel next considered a Conditions of Practice Order, but there were no conditions which would be workable, appropriate, or sufficient in the light of the serious nature of the misconduct. Furthermore, the Registrant does not appear currently to be working as an ODP and, at present, she has indicated that she has no intention of so doing.

47. The Panel then considered a Suspension Order. The matters found proved are serious breaches of the HCPC Standards of Conduct, Performance and Ethics. Furthermore, the Registrant lacks insight and has taken no remedial steps. However, the misconduct occurred on a single occasion at a time when the Registrant had serious difficulties in her private life. In these circumstances, the Panel concluded that a Suspension Order for a period of 12 months would be an appropriate and proportionate sanction, sufficient to protect the public and to mark the serious nature of the Registrant’s misconduct. Furthermore, it would send a message to the profession that misconduct of this nature is wholly inappropriate. The period of 12 months would give the Registrant the opportunity to reflect upon her misconduct.

48. The Panel did consider a Striking Off Order, but it had in mind that this is a sanction of last resort and would be disproportionate in all the circumstances, given the mitigating factors found and her personal circumstances at the time. 

49. A reviewing panel would doubtless be assisted by the Registrant’s attendance at the review hearing. A reflective piece from her in regard to the Panel’s findings and testimonials from previous employers in her work as an ODP, and testimonials from any current employer would also assist. The reviewing panel would also be assisted by confirmation from the Registrant that she is interested in returning to the profession and is maintaining her professional knowledge.

That the Registrar is directed to suspend the registration of Mrs Kelly Weir for a period of 12 months from the date this order comes into effect.

This order will be reviewed again before its expiry.

History of Hearings for Mrs Kelly Weir