Mrs Lesley J Welsh

Profession: Operating department practitioner

Registration Number: ODP31647

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/03/2019 End: 17:00 18/03/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road, London

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While registered as an Operating Department Practitioner and employed with Heart of England NHS Foundation Trust, you:

1. In relation to Patient A, on or around 28 March 2015, did not undertake a pre-operative instrument count with the circulating practitioner prior to Patient A's surgery.

2. In relation to Patient B, on or around 07 July 2015, you:

a) Left Patient B in the operating theatre while undergoing a perineal repair, and/or did not notify the appropriate person and/or team that you were leaving the theatre.

b) Inaccurately recorded Patient Bs details on the World Health Organisation (WHO) checklist onto another patient's record.

 

And while registered as an Operating Department Practitioner and employed with Spire South

Bank Hospital on dates between 26 September 2016 and 07 April 2017:

3. You did not disclose that you were dismissed from your previous employment at Heart of

England NHS Foundation Trust.

4. You misrepresented yourself as having completed a nursing qualification and/or being a registered nurse.

5. On or around 06 February 2017 you:

a) did not undertake scrubbing duties for a General Laparoscopic list and/or a Gynaecological list;

b) did not demonstrate adequate circulating skills in that you:

i. had to be prompted to complete counts and instrument checks;

ii. had to be prompted to undertake tasks to assist with patient transfers and setting up for the procedure for patients;

iii. did not complete the care plans/ care pathways as required as part of your circulating duties.

 

6. You:

a) did not complete and/or record adequate information in patient care plans/ care pathways despite being prompted to do so;

b) failed to recognise that a patient had an Endo Tracheal Tube and:

i. did not remove the patients Endo Tracheal Tube in a timely manner; and/or

ii. failed to alert the anaesthetist that you were not trained to remove an Endo Tracheal Tube to ensure its timely removal.

c) did not take appropriate steps in an emergency situation as was requested by Colleague 2;

d). did not take appropriate steps to assist with the management of a patients laryngospasm, while working with Colleague 3;

e) had to be prompted to provide a patient with oxygen as was required;

f) removed a patients dressings and pack:

i) before the ENT consultant had confirmed whether or not it was safe to do so; and/or

ii) failed to use sterile resources when attending to the patients wound;

g) did not adequately and/or correctly complete the catheterisation of patients on at least 3 occasions;

 

7. Your actions described in paragraphs 3 and 4 were dishonest.

 

8. Your actions in paragraphs 3, 4, and 7 amount to misconduct.

 

9. Your actions in paragraphs 1, 2, 5 and 6 amount to misconduct and/or lack of competence.

 

10. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary matters:

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, by first class post on 2 January 2019, to the address shown for the Registrant on the HCPC register.  The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct and Competence Committee Rules 2003 (as amended).

Proceeding in Absence

2. Mr Dite made an application for the hearing to proceed in the absence of the Registrant, as permitted by Rule 11 of the Conduct and Competence Rules 2003 (as amended). Mr Dite informed the Panel that on 3 November 2018 the Registrant signed the Pro Forma, in response to the Notice of Allegation, in which she stated that the facts were not admitted and that she did not intend to attend the hearing. He referred the Panel to the further correspondence between the Registrant and the HCPC. On 19 December 2018, the Registrant indicated that she was willing to attend the hearing via video link or telephone. The HCPC, in an email dated 11 February 2019, sought to confirm the arrangements for a video link test call. However, the Registrant in her email response on 14 February 2019, stated that although she had hoped to attend the hearing, ‘…it is impossible for [her] to do so due to [her] current personal and financial circumstances.’ In an email dated 20 February 2019, the HCPC offered the Registrant the opportunity to attend an external venue to enable her to participate by telephone or video link. The Registrant responded on 21 February 2019. She indicated that she would not be able to attend for the entire hearing and may only be able to attend for one day on 4 March 2019, for “financial reasons”. On 22 February 2019 the Registrant provided the HCPC with her written submissions and on 25 February 2019 she stated that, ‘Due to changes in my personal circumstances, I cannot attend the planned 10 day Regulatory Hearing as I had hoped (sic).’

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

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

a) The Panel noted that the HCPC had made considerable efforts to provide the Registrant with the opportunity to participate in these proceedings. The Registrant confirmed that she would be unable to attend in person, by video-link or by telephone. Nor was she able to attend an external venue closer to her home or place of work. In these circumstances the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of her right to attend and her right to participate in these proceedings.

b) There has been no application to adjourn and no indication from the Registrant that she would be willing or able to attend on an alternative date and therefore re-listing this final hearing would serve no useful purpose.

c) The HCPC has made arrangements for 10 witnesses to give evidence during this hearing. In the absence of any reason to re-schedule the hearing the Panel was satisfied that the witnesses should not be inconvenienced by an unnecessary delay and should give evidence whilst the events are reasonably fresh in their minds.

d) The Panel recognised that there may be some disadvantage to the Registrant in not being able to make oral submissions. However, the Registrant had provided the Panel with written submissions, with regard to the factual particulars, which mitigated the potential disadvantage to some extent.

e) As this is a substantive hearing there is a strong public interest in ensuring that it is considered expeditiously.

Background

5. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP).

6. From August 2008 she was employed at the Heart of England NHS Foundation Trust (NHS Trust) as an ODP.

7. In June 2015 Witness RC was appointed to investigate an alleged incident relating to Patient A which had occurred on 28 March 2015. The incident involved the Registrant failing to undertake a pre-operative instrument count with another practitioner.

8. In July 2015 Witness RC’s investigation was revised to also include an alleged incident that occurred on 7 July 2015 involving Patient B. The second incident related to the Registrant leaving Patient B in theatre, failing to inform colleagues and recording the patient’s details in another patient’s record.

9. The incidents were internally investigated by Witness RC. She reviewed various documents and obtained statements from various people, including the Registrant.

10. The Registrant faced disciplinary proceedings at the NHS Trust. A disciplinary hearing took place on 20 July 2016. The outcome was confirmed on 21 July 2016, and on 22 July 2016 the Trust referred the Registrant to the HCPC.

11. The Registrant was then employed by Spire Healthcare as an ODP at the South Bank Hospital from September 2016 to April 2017.

12. The Registrant was interviewed for the ODP position by Witness DM, the Theatre Manager at Spire Healthcare, on 25 August 2016.

13. The Registrant allegedly failed to disclose that she had been dismissed from her role at the NHS Trust. During the interview, Witness DM also discussed the Registrant’s qualifications with her. The Registrant’s CV makes reference to her education as an ODP and nurse. In the interview the Registrant confirmed that she was dual qualified. Subsequently, after she was employed by Spire Healthcare, the Registrant also told a number of her colleagues that she was also a qualified nurse.

14. The HCPC’s case was that in not disclosing that she had been dismissed from the NHS Trust and in misrepresenting herself as having been a qualified nurse as well as an ODP, the Registrant was dishonest.

15. Soon after the Registrant began her employment at Spire Healthcare, a number of colleagues allegedly raised concerns with DM regarding the Registrant’s lack of knowledge, failure to assist, and lack of situational awareness.

16. In February 2017, upon receiving a complaint from an anaesthetist that the Registrant did not appear to know what she was doing, Witness DM investigated the matter. Witness DM discovered that the Registrant was not a registered nurse and that she had allegedly been dismissed from the NHS Trust, her previous place of employment. She met with the Registrant on 10 February 2017 to discuss these concerns.

17. Subsequently the matter was referred to Witness JW for investigation, and statements from a number of staff at Spire Healthcare were obtained detailing their observations and concerns regarding the Registrant.

18. The Registrant had sent Witness JW a letter responding to the allegations against her in February 2017. Witness JW subsequently interviewed the Registrant on 8 March 2017. Witness JW produced an investigation report dated 27 March 2017.

Assessment of Witnesses

19. In undertaking its evaluation of the witnesses the Panel was mindful of the submissions put forward by the Registrant which included that many of the allegations were “a fiction” and that the witnesses may have received financial reward. The Panel notes that particularly within Spire Healthcare, the Registrant worked within a comparatively small team where it would be likely that matters relating to this case may have been discussed. Nevertheless the Panel found no evidence of collusion or inappropriate motive by witnesses in respect of this allegation. It was the Panel’s view that those attending to give evidence did so honestly not for gain and without malice. 

Witness RC – Theatre Matron (NHS Trust)

20. On 12 June 2015, Witness RC was appointed as the Investigating Officer to investigate an incident relating to a pre-operative instrument count. On 14 July 2015 the remit of her investigation was revised to include an allegation that the Registrant left Patient B in theatre, failed to inform colleagues and recorded the patient’s details in another patient’s record.

21. Witness RC had no prior knowledge of the Registrant and no first-hand knowledge of the events that she investigated.  The Panel found her evidence to be measured, fair and balanced. Her investigation was thorough, and the Panel was satisfied that she pursued all reasonable lines of enquiry. For example, when the Registrant suggested that there were IT issues, Witness RC made enquiries with the IT department to rule out the possibility of a technical failure. The Panel had no reason to question the independence of her report.

22. The Panel concluded that Witness RC was a credible and reliable witness.


Witness MF – Maternity Support Worker (NHS Trust)

23. Witness MF worked with the Registrant on 28 March 2015 and provided evidence with regard to the pre-operative instrument count.

24. The Panel found the evidence of Witness MF to be fair and balanced. She provided a factual account of the events that took place and was careful not to be overly critical. The only time she expressed a critical view was when she was asked to explain her thought process. Witness MF had a good independent recollection of the relevant incident and was able to describe the impact of the incident on the patient, the patients’ partner and on herself.

25. The Panel concluded that Witness MF was a credible and reliable witness.

Dr PS – Consultant Obstetrician and Gynaecologist (NHS Trust)
26. Dr PS worked with the Registrant on 28 March 2015 and provided evidence with regard to the pre-operative instrument count. In particular she noted that the checklist had not been completed contemporaneously.

27. The Panel found Dr PS’s evidence to be measured and considered. She was careful not to overstate the event and the Panel concluded that her evidence was fair and balanced. Dr PS was willing to make concessions and readily accepted that were occasions when the theatre was short staffed.

28. The Panel concluded that Dr PS was a credible and reliable witness.

Witness RH – Theatre Practitioner/Staff Nurse (NHS Trust)

29. Witness RH provided evidence to the Panel in relation to the events which took place on 7 July 2015.

30. The Panel noted that Witness RH had a clear and detailed recollection of the events which took place. She explained that she was able to recall the detail because it was an unusual situation. Witness RH’s evidence was fair and balanced. She accepted that on occasions there were computer system problems and acknowledged that, without compromising safe practice, it was sometimes necessary to work flexibly.

31. The Panel concluded that Witness RH was a credible and reliable witness.

Witness JW – Clinical Lead (Spire Healthcare)

32. Witness JW was appointed to investigate four allegations relating to the Registrant’s employment by Spire Healthcare within South Bank Hospital.

33. Witness JW had no prior knowledge of the Registrant. She had never worked with the Registrant and only saw her in passing at the hospital. The Panel had no reason to question her independence and found her evidence to be measured, fair and balanced. Witness JW provided the Panel with helpful evidence with regard to the procedure she followed and the demeanour of the Registrant.

34. The Panel concluded that Witness JW was a credible and reliable witness.

Witness DM – Theatre Manager (Spire Healthcare)

35. Witness DM’s evidence related to the Registrant’s recruitment and a particular incident which took place in Recovery.

36. The Panel found Witness DM’s evidence to be balanced. She did her best to assist the Panel but, due to the passage of time, she did not appear to have a detailed independent recollection of events. 

37. The Panel concluded that Witness DM was a credible and reliable witness.

Witness AMJ – Theatre Scrub Nurse (Spire Healthcare)

38. Witness AMJ’s evidence related to the Registrant’s qualifications and the events that took place on or around 6 February 2017.

39. The Panel noted that Witness AMJ was team focussed and appeared to be passionate about her role. She was careful not to exaggerate and the Panel concluded that she gave a fair and accurate account of the events that she witnessed first-hand.  Witness AMJ had a good independent recollection and did her best to assist the Panel.

40. The Panel concluded that Witness AMJ was a credible and reliable witness.

Witness EM – Theatre Recovery Nurse (Spire Healthcare)

41. Witness EM provided evidence with regard to the Registrant’s practice.

42. Witness EM’s evidence was clear and precise. She had a good recollection of events and her answers to the questions that were put to her were reflective. She did not appear to bear any malice towards the Registrant and the Panel concluded that her evidence was balanced and fair.

43. The Panel concluded that Witness EM was a credible and reliable witness.

Witness VW – Operating Department Practitioner (Spire Healthcare)

44. Witness VW provided evidence with regard to the Registrant’s practice.

45. Witness VW’s evidence was measured, fair and balanced. He had a good recollection of events and did his best to assist the Panel.

46. The Panel concluded that Witness VW was a credible and reliable witness.

Witness KH – Critical Care and Resuscitation Lead (South Bank Hospital)

47. Witness KH provided evidence with regard to the Registrant’s practice and conversations she had been party to regarding the Registrant’s training as a nurse and her “silver buckle”.

48. The Panel concluded that Witness KH was a credible and reliable witness.

Panel’s Approach

49. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

50. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, the Registrant’s written representations and the documentary evidence contained within the hearing bundle as well as the oral submissions made by Mr Dite. The Panel also ensured, as far as possible, that the Registrant’s assertions were put to the witnesses.

51. The Panel accepted the advice from the Legal Assessor. The Panel noted that following the Supreme Court decision in Ivey v Genting Casinos the test for dishonesty is an objective test only. The Panel first had to determine the Registrant’s actual knowledge or belief and then determine whether her act or omission was, on the balance of probabilities, dishonest by the ordinary standards of reasonable and honest people.

Decision on Facts

Particular 1 – Found Proved

‘In relation to Patient A, on or around 28 March 2015, did not undertake a pre-operative instrument count with the circulating practitioner prior to Patient A's surgery’

52. There was no dispute that the Registrant was employed as an ODP with NHS Trust. Witness MF informed the Panel that on 27 March 2015, she worked a night shift as a maternity support worker at the Good Hope Hospital. She was the circulating practitioner and it was her role to act as a ‘runner’ for the scrub practitioner who had to remain sterile.  She stated that at approximately 04.20am on 28 March 2015, she was informed ‘that there was a category 1 C section’, which meant that the theatre had to be prepared for surgery. She explained that pre-surgery there are two distinct equipment counts. The first count is conducted in relation to swabs, sutures etc and is recorded on the whiteboard in the theatre. The second count is in relation to the instruments and recorded on a paper checklist. Witness MF informed the Panel that she and the Registrant checked the swabs, blades, sutures. However, she stated that she did not check the instruments with the Registrant. Witness MF stated that she was not involved with the count of the instruments because the surgeon asked her for a pair of gloves, which were not in theatre, and therefore she had to leave the theatre to find a pair in the stockroom. She stated that when she returned the Registrant asked her for a pair of gloves which required her to leave the theatre again. Witness MF stated that when she returned to the theatre for a second time the operation was about to commence.

53. Witness MF informed the Panel that it is important for the scrub practitioner to conduct the instrument count with another member of staff to ensure that the count is accurate. She also stated that a miscount can raise concerns that an instrument may have been left inside the patient during an operation. She confirmed in her statement that this was a concern in this case.

54. The evidence of Witness MF was corroborated by Dr PS. Dr PS informed the Panel that it is important for a pre-operative instrument count to be conducted with another practitioner to reduce the risk of a counting error. During her oral evidence, Dr PS stated that a request was made for her to attend the theatre in relation to a missing instrument. She stated to the Panel that when she arrived, she asked Witness MF and the Registrant, if they had counted the instruments and was informed by the Registrant that she had counted the instruments with Witness MF. MF was adamant that she had not been involved in any instrument check as she was not present in the Theatre at the time. When challenged by Dr PS the Registrant eventually admitted that she had undertaken the check alone. In response to Dr PS the Registrant stated that she was sure there had been five clips prior to the operation. Dr PS informed the Panel that when she saw the checklist and noted that the tick boxes were blank. During the course of the investigation she was shown the checklist which had then been completed. She confirmed that it had been competed retrospectively.   

55. The Registrant accepted, in her written submissions, that on 28 March 2015, she was both the scrub and recovery practitioner. She stated in her written submission that she had completed the pre-operative instrument check with Witness MF.

56. The Panel accepted the evidence of Witness MF and Dr PS. The Panel preferred their clear and consistent evidence over the assertion made by the Registrant. The Panel was satisfied that the custom and practice at the Good Hope Hospital was for the pre-operative check to be conducted by two practitioners. However, on 28 March 2015, it was completed by the Registrant alone who was unable to tick the checklist as she had to remain sterile and therefore could not use a pen. The Panel concluded that there was no good reason for not following the established procedure.

57. Accordingly, Particular 1 was found proved.

Particular 2(a) – Found Not Proved

‘In relation to Patient B, on or around 07 July 2015, you:

Left Patient B in the operating theatre while undergoing a perineal repair, and/or did not notify the appropriate person and/or team that you were leaving the theatre’

58. Witness RH informed the Panel that on 7 July 2015, she assisted with a perineal repair patient in theatre (Theatre 1). She stated that an emergency Category 1 cesarean section patient was be dealt with and she left Theatre 1 to prepare the anaesthetic process for that patient. Witness RH informed the Panel that whilst she was setting up the anaesthetic equipment in (Theatre 2) the Registrant entered and asked her to sign an instrument checklist in Theatre 1.  Witness RH stated that although in her view the form was not a priority, the Registrant insisted that she (RH) return to Theatre 1 to sign the form, which she did. Witness RH informed the Panel that, having returned to Theatre 2, when the emergency patient was in the theatre, she saw the Registrant through the windows which look onto the corridor. She stated that the Registrant was walking up and down the corridor. Witness RH stated in her witness statement that the Registrant should not have left Theatre 1 unless it was something important. She did not consider the signing of the checklist to be a satisfactory reason. 

59. Witness RC stated in her witness statement that the Registrant did not inform her theatre colleagues that she was leaving the theatre or the reasons why she was leaving.

60. The evidence in support of this allegation comes from a statement made by Dr GK the anaesthetist in Theatre 1 and from RH. Dr GK sets out the circumstances relating to the Registrant’s request that RH signs the checklist. It would appear that in this instant the Registrant had discussed her absence from Theatre 1 and this absence had been agreed.  In respect of any subsequent absences the Panel has heard evidence from RH that the Registrant was seen in the corridor outside of Theatre 2 and written evidence from Dr GK that she was not available at a moment when she was required. However, the Panel has no further evidence from the surgeon or others present at the time to confirm whether or not the Registrant had sought permission to leave the theatre and whether this had been agreed.  The Panel concluded that there was insufficient evidence that the Registrant had failed to notify her colleagues of the need to leave the theatre. 

61. Accordingly, Particular 2(a) was found not proved.

Particular 2(b) – Found Proved

‘Inaccurately recorded Patient B’s details on the World Health Organisation (‘WHO’) checklist onto another patient's record’

62. Witness RC informed the Panel in her witness statement and during her oral evidence that Patient B’s details were entered into the system but on another patient’s records. She stated that she made enquiries with the IT department and was provided with documentary evidence that the login details for the incorrect entry were the Registrant’s.

63. In her written submissions the Registrant denied that she had inserted the incorrect details.  She asserted that the allegation is ‘a fiction’. She stated that Anaesthetics had completed the start of the record and the “Time Out” phase for the first elective patient - Patient X. She also stated that she had identified and quickly rectified what they had entered onto the computer. The Registrant also asserted that there had been repeated system errors with the IT system reported that day.

64. The Panel was provided with a copy of an email dated 7 July 2015, from the IT department to Witness RC which confirmed that the Registrant opened the record and that all the changes to the record were made when she was the user. The Panel accepted the evidence of RC which was supported by the documentary evidence which confirmed there were no reported IT issues that day.

65. Accordingly, Particular 2(b) was found proved.

Particular 3 – Found Proved

And while registered as an Operating Department Practitioner and employed with Spire South Bank Hospital on dates between 26 September 2016 and 07 April 2017:

You did not disclose that you were dismissed from your previous employment at Heart of England NHS Foundation Trust’

66. There was no dispute that the Registrant was employed as an ODP between 26 September 2016 and 7 April 2017.

67. Witness DM informed the Panel that when Spire Healthcare was looking for a candidate for an ODP Pulse Recruitment provided the hospital with the Registrant’s CV.  She stated that the Registrant also completed an application form. Witness DM reviewed the Registrant’s application and interviewed the Registrant for the position on 25 August 2016. Witness DM informed the Panel that the application form included a specific box for the Registrant to include her “reason for leaving” her previous employment. The Registrant wrote in this box “organisational change/managerial changes”. During her oral evidence, Witness DM explained that the Registrant mentioned that there had been some kind of investigation at the NHS Trust but was she very clear that the Registrant did not mention that the investigation was in relation to her. She stated that she formed the opinion that the investigation was related to others and did not disclose that it had resulted in her dismissal.

68. The evidence of Witness DM was corroborated by the evidence of AMJ. Witness AMJ informed the Panel that the Registrant stated that she had left the Trust on her own accord and that the hospital were trying to get her to go back to work there.

69. In her written submissions the Registrant asserted that she told Witness DM on a “need to know basis” that a mistake had been made by human resources at the NHS Trust after she had resigned from her post. However, in addition she did state that she was “due to return in November 2016 to address the alleged disciplinary action” and had already commenced employment tribunal proceedings. The Registrant stated that she was open and honest with Witness DM and informed her of the situation at the interview.

70. The Panel accepted the evidence of Witness DM. The Panel was satisfied that the Registrant was dismissed from the NHS Trust for the following reasons:

i. The Registrant’s signed written submissions dated 8 July 2016, for her disciplinary hearing make no reference to her having resigned.

ii. A disciplinary hearing was held on 20 July 2016. A letter confirming the outcome noted that the hearing was reconvened on 21 July 2016 for the decision and the decision was dismissal with immediate effect. The letter clearly indicates that the Registrant was present at the outcome stage.

iii. The Registrant submitted an appeal against her dismissal the following day and an appeal hearing was held on 9 November 2016.

71. The Panel was satisfied that at no point did the Registrant disclose that she had been dismissed.

72. Accordingly, Particular 3 was found proved.

Particular 4 – Found Proved

‘You misrepresented yourself as having completed a nursing qualification and/or being a registered nurse’

73. Witness DM informed the Panel that when she interviewed the Registrant for the ODP role on 25 August 2016, she was left with the impression that the Registrant was a registered nurse.  However, she acknowledged that the phrase used by the Registrant was ‘dual trained’. During the course of her subsequent investigation she checked the NMC register and found no entry relating to the Registrant. Witness DM informed the Panel that when she confronted the Registrant with the information she had obtained about her qualifications, the Registrant initially maintained that she was a registered nurse, but it was only when it was pointed out that 210 credits is not enough to become qualified she accepted that she was not a qualified nurse.

74. Witnesses AMJ, KH, EM, all informed the Panel that the Registrant referred to herself as being a nurse. Witnesses KH and EM also referred to a discussion, during which the Registrant mentioned that she had received a buckle, which implied that she had qualified as a nurse at the time when silver buckles were bought for nurses by families and friends upon qualification. Witness VH stated that sometime in December 2016, the Registrant refused to leave the recovery area to accompany one of the patients to the ward, as she was concerned that the recovery area would be left without a nurse to cover the area and so implying that she was a qualified nurse.

75. The Registrant stated in her written submissions that she had never represented herself as being a nurse. However, the Panel noted that the Registrant had included on her CV ‘RN Dip HE Nursing, 210 pts’. In a statement the registrant completed in relation to the missing instrument, under professional qualification, she lists Adult Nursing Dip HE.

76. The Panel accepted the evidence of Witnesses DM, AMJ, KH, EM and VH. The Panel was satisfied that the Registrant had gone further than simply stating that she was ‘dual trained’ and had expressly stated on several occasions to different people that she was a nurse which suggested that she was a fully qualified nurse and that she was registered with the NMC. The Panel concluded that this was a misrepresentation as the Registrant had not completed the nursing qualification.  As a consequence the Registrant was not a nurse and therefore could not be registered with the NMC.

77. Accordingly, Particular 4 was found proved.

Particular 5(a) – Found Proved

‘On or around 06 February 2017 you:

did not undertake scrubbing duties for a General Laparoscopic list and/or a Gynaecological list’

78. Witness AMJ informed the Panel that a scrub practitioner could be a Nurse or an ODP. She stated that on either 6 February 2017 or 7 February 2017, the Registrant was asked to scrub for a general surgery laparoscopic list in the morning but refused. Witness AMJ informed the Panel that she asked the Registrant if she required training in this area and the response, she received was that the Registrant considered herself to be ‘highly proficient’. Witness AMJ stated that the Registrant indicated that she was happy to scrub in for the gynaecological list in the afternoon. However, Witness AMJ was informed by other staff that the Registrant refused to scrub for that list also. 

79. The Registrant asserted in her written submissions that this allegation was ‘a fiction’. 

80. The Panel accepted the evidence of Witness AMJ. The Panel was satisfied that a reasonable request was made for the Registrant to scrub in on the general laparoscopic list and the gynaecological list and on both occasions she refused. The Panel was unable to identify any good reason for the refusal.

81. Accordingly, Particular 5(a) was found proved.
Particulars 5(b)(i) – Found Proved

‘did not demonstrate adequate circulating skills in that you:

had to be prompted to complete counts and instrument checks’

82. Witness AMJ informed the Panel that on 6 or 7 February 2017, the Registrant undertook circulating duties instead of scrubbing duties. She stated that a circulator is expected to check the surgical equipment/instruments with the scrub practitioner and conduct ‘counts’ prior to every surgery. She informed the Panel that although the scrub practitioner is ultimately responsible for ensuring that the check is conducted properly, the circulator ‘must be attentive’. Witness AMJ stated in her witness statement and during her oral evidence that when she was observing the Registrant, she noted that the Registrant had to be asked by other members of staff to assist with the counts and the instrument checks. 

83. The Registrant asserted in her written submissions that this allegation was ‘a fiction’.

84. The Panel accepted the evidence of Witness AMJ. The Panel was satisfied that whilst performing the role as a circulator the Registrant had a duty to assist the scrub practitioner by actively participating in the instrument check and count. The Panel noted that the Registrant was an experienced practitioner and concluded that she ought to have been able to perform this aspect of her role without prompting. The Panel was unable to identify any good reason for the Registrant to be prompted when performing the circulator role.

85. Accordingly, Particular 5(b)(i) was found proved.

Particular 5(b)(ii) – Found Not Proved

‘had to be prompted to undertake tasks to assist with patient transfers and setting up for the procedure for patients’

86. Witness AMJ informed the Panel that the circulator is required to assist in setting up the equipment in preparation for surgery. She stated that this includes ensuring that any additional equipment required is brought in, checked and ready for use. Witness AMJ informed the Panel that when a patient is due for surgery under anaesthetic they are anaesthetised in the anaesthetic room and then brought into theatre. She informed the Panel that a lateral transfer aid is used to move the patient from a trolley to the operating table. She explained that this manoeuvre requires a member of staff both at the head and foot of the patient and a member of staff at either side. Witness AMJ stated that the Registrant was not proactive in setting up the theatre and equipment before surgery and assisting in the transfer of patient. She informed the Panel that the Registrant had to be asked and prompted to do these tasks.

87. The Registrant asserted in her written submissions that this allegation was ‘a fiction’.

88. The Panel noted that the stem of Particular 5(b)(ii) referred to the relevant incidents occurring ‘on or around 6 February 2017’. However, the Panel noted that it was not clear from Witness AMJ’s written statement or from her oral evidence when the event occurred. The Panel concluded that the evidence was too vague with regard to the time period and on that basis insufficient evidence had been adduced.

89. Accordingly, Particular 5(b)(ii) was found not proved.

Particular 5(b)(iii) – Found Proved

‘did not complete the care plans/ care pathways as required as part of your
circulating duties’

90. Witness AMJ informed the Panel that the care pathway refers to the ‘patient documentation for their journey from admission to discharge’. She stated that the care pathway must be completed for all theatre patients.  Witness AMJ explained that the circulator is responsible for the documentation in the theatre section of the care plan. She stated that the circulator is required to record timings including the dosage of local anaesthetic given. She informed the Panel that the scrub practitioner is ultimately responsible for checking that the documentation is accurate at the end of the case. Witness AMJ stated that the Registrant completed some details in the patients’ care plans but not all and when she drew this to the attention of the Registrant her response was that it was the responsibility of the scrub practitioner. Witness AMJ explained that although the scrub practitioner is ultimately responsible, they cannot complete the paperwork during the surgical procedure because they are required to remain sterile and have limited time to complete the paperwork after the procedure and prior to handover to the recovery team.

91. The Registrant asserted in her written submissions that this allegation was ‘a fiction’.

92. The Panel accepted the evidence of Witness AMJ that it was the custom and practice in place at the Spire Healthcare which the Registrant was expected to follow. The Panel was satisfied that it was a reasonable expectation and concluded that the Registrant did not complete the care plans/care pathway on or around 6 February 2017. The Panel was also satisfied that there was no valid reason for the Registrant not to have completed the paperwork as expected.

93. Accordingly, Particular 5(b)(iii) was found proved.

Particular 6(a) – Found Proved

‘You: did not complete and/or record adequate information in patient care plans/ care pathways despite being prompted to do so’

94. Witness VW corroborated the evidence of Witness of AMJ with regard to the importance of the care plans/care pathway. He stated that on 6 February 2017 he checked the care pathway in relation to one of the Registrant’s patients and noted that she had initialled various sections, but the information box was blank. He stated that he informed the Registrant that more information was required. In response she stated that it was the responsibility of the scrub practitioner to complete the form. However, Witness VW informed the Panel that it was part of the Registrant’s role as the circulator to complete the relevant sections in the care pathway booklet.  He also stated that it forms part of the training for ODPs.

95. In her written submissions the Registrant asserted that this allegation was ‘a fiction’. She maintained that the documentation is the responsibility of the scrub practitioner to complete at the end of the surgery.

96. The Panel accepted the evidence of Witness VW that it was the custom and practice in place at the Spire Healthcare which the Registrant was expected to follow. The Panel was satisfied that it was a reasonable expectation and concluded that the Registrant did not complete the care plans/care pathway on or around 6 February 2017. The Panel was also satisfied that there was no valid reason for the Registrant not to have completed the paperwork as expected.

97. Accordingly, Particular 6(a) was found proved.

Particular 6(b)(i) – Found Proved

‘failed to recognise that a patient had an Endo Tracheal Tube and:
did not remove the patient’s Endo Tracheal Tube in a timely manner;’

98. Witness EM informed the Panel that sometime in late January 2016 or early February 2017 she was working with the Registrant in recovery when a patient who had an Endo Tracheal Tube (in situ ET tube) was brought into the recovery area by an anaesthetist. She explained that an ET tube is an airway device that is inserted into patients’ throats to assist their breathing during surgery. She stated that ODPs and nurses must receive additional training in order to know how to remove the ET tube from a patient as it is a relatively complex airway device, which requires use of suction equipment and a syringe. Witness EM informed the Panel that although not all nurses or ODPs are trained to remove ET tubes they are expected to recognise such a tube. She stated that an ET tube is very visible and obvious.

99. Witness EM informed the Panel that she noticed that when the anaesthetist left the room the Registrant did not start to get things ready for the removal of the tube and it appeared that she was oblivious to the ET tube. She explained during her oral evidence that the anaesthetist had asked the Registrant if she was ‘happy’ to assume care of the patient, which would necessarily involve removal of the ET tube. She stated that if the Registrant was not competent to remove the tube she should have said so, as it needed to be removed in a timely manner before the patient regained consciousness which could occur very quickly. Witness EM informed the Panel that she was not trained to remove the tube and would be unable to assist in an emergency situation. Witness EM asked the Registrant if she could remove the ET tube but the Registrant did not answer. Witness EM then said “are you competent to do it, yes or no?” the Registrant said “I think so”. In the light of this response EM sought the assistance of the anaesthetist to resolve the situation.

100. In her submissions the Registrant asserted that the substance of this allegation did not happen and is ‘a fiction’. She maintained that she knows when a patient has an ET tube and knows when to alert an anaesthetist.

101. The Panel accepted the evidence of Witness EM. The Panel was satisfied that the ET tube had to be removed in recovery. The Panel accepted that the Registrant should have recognised that the patient had an ET tube even if she was not competent to remove it. The Panel also accepted that if the Registrant had recognised that the patient had an ET tube she should have, and ought to have, taken preparatory steps to ensure that it could be removed. The Registrant did not do so, and the Panel concluded that it was reasonable to infer that she did not recognise that the patient had an ET tube. The Panel concluded that the Registrant did not remove the ET tube in a timely manner.

102. Accordingly, Particular 6(b)(i) was found proved.

Particular 6(b)(ii) – Found Proved

‘failed to alert the anaesthetist that you were not trained to remove an Endo Tracheal Tube to ensure its timely removal’

103. Witness EM informed the Panel that she was concerned that the patient would wake up from the anaesthetic and attempt to remove the ET tube which could cause harm.

104. The Panel took into account its finding in relation to Particular 6(b)(i) and concluded that the Registrant had a duty to alert an anaesthetist that she was not able to remove the tube herself. The Panel was satisfied this was not done and there was no good reason for failing to do so.

105. Accordingly, Particular 6(b)(ii) was found proved.

Particular 6(c) – Found Proved

‘did not take appropriate steps in an emergency situation as was requested by Colleague 2’

106. Witness DM informed the Panel that on one occasion the Registrant failed to assist her in an emergency situation. She stated that she was looking after one patient and the Registrant was looking after another patient who was clinically stable and awaiting a return to the ward. DM informed the Panel that her patient’s oxygen saturation levels dropped to 79% which required immediate intervention. She stated that she shouted for assistance from the Registrant and asked her to lower the head of the bed so that she could commence manual ventilation. Witness DM informed the Panel that the Registrant attended but simply smoothed the sheet on the patients bed.

107. In her submissions the Registrant asserted that this allegation did not happen and is ‘a fiction’. She maintained that Witness DM would have had an emergency buzzer to call for help if the incident actually happened.

108. The Panel accepted the evidence of Witness DM. The Panel was satisfied that the Registrant had a duty to assist a colleague dealing with an emergency situation and that the incident occurred as described by Witness DM. The Panel concluded that the Registrant did not provide any assistance.

109. Accordingly, Particular 6(c) was found proved.

Particular 6(d) – Found Proved

‘did not take appropriate steps to assist with the management of a patient’s laryngospasm, while working with Colleague 3’

110. Witness EM informed the Panel that laryngospasm refers to when a patient’s larynx spasms resulting in the patient being unable to breathe. She stated that it is a serious condition requiring the use of drugs and airway devices to enable the patient to breathe. Witness EM informed the Panel that on one occasion a patient started to have a laryngospasm following surgery. She stated she and the Registrant were called into the theatre to assist. She informed the Panel that she started to assist but the Registrant stood against the wall and did nothing. Witness EM stated that the consultant had to ask the Registrant to do something to help and her response was to hold the patient’s foot whilst the consultant plastered it.

111. In her submissions the Registrant asserts that this sub-particular did not happen and is ‘a fiction’.

112. The Panel accepted the evidence of Witness DM. The Panel was satisfied that the Registrant had a duty to assist a colleague dealing with an emergency situation and that the incident occurred as described by Witness EM. The Panel concluded that, given the Registrant’s training and experience, holding the patients’ foot was not appropriate assistance.

113. Accordingly, Particular 6(d) was found proved.

Particular 6(e) – Found Proved

‘had to be prompted to provide a patient with oxygen as was required’

114. Witness EM informed the Panel that patients in recovery are initially continuously monitored. She stated that on one occasion she walked past the Registrant and her patient and noticed that the patient’s oxygen saturation levels were 91%. She stated that the normal reading of saturation level is 94% or higher and that a lower reading indicates that oxygen should be administered. Witness EM informed the Panel that she told the Registrant that she should administer oxygen. The Registrant criticised Witness EM for ‘thinking [she] was in charge.’ She stated that the Registrant ignored her advice for a while but eventually administered oxygen to the patient.

115. In her submissions the Registrant asserts that this sub-particular did not happen and is ‘a fiction’.

116. The Panel accepted the evidence of Witness EM. The Panel was satisfied that the incident occurred as she described. The Panel noted that the Registrant should have noticed the patient’s reduced oxygen saturation level and followed protocols or prescriptions.  The panel was satisfied that if Witness EM had not prompted her the registrant would not have provided the patient with oxygen as was required.

117. Accordingly, Particular 6(e) was found proved.

Particular 6(f)(i) and 6(f)(ii) – Found Proved

‘removed a patient’s dressings and pack:
before the ENT consultant had confirmed whether or not it was safe to do so; and/or failed to use sterile resources when attending to the patient’s wound;’

118. Witness EM informed the Panel that on a separate occasion she was in recovery with the Registrant and a patient who had undergone surgery on his ear. She stated that the consultant surgeon had left. The patient was in recovery for a while and she noticed that the patients’ ear began to bleed through the dressing that had been applied and through the additional dressing that had also been applied. Witness EM informed the Panel that it was not an emergency situation, but she telephoned the consultant for advice on how to proceed. She stated that the Registrant was aware that she was calling the consultant because the call was made from within the recovery room.  During her oral evidence, Witness EM stated that the consultant advised her not to take the dressings off but to apply pressure to the wound. She informed the Panel that she repeated the consultant’s instructions aloud so that the Registrant would be aware of them, but nevertheless the Registrant removed all of the dressings. Witness EM stated that she also observed that the Registrant had used standard gloves and gauze to try to re-dress the patient’s ear rather than sterilised gloves and gauze so exposing the patient to the risk of infection.

119. The Panel accepted the evidence of Witness EM. The Panel was satisfied that the incident occurred as she described. The Panel noted that the Registrant should have waited for the consultant’s instructions to be confirmed and should have used sterilised gloves and gauze to tend to the patient’s ear.

120. Accordingly, Particulars 6(f)(i) and 6(f)(ii) were found proved.

Particular 6(g) – Found Proved

‘did not adequately and/or correctly complete the catheterisation of patients on at least 3 occasions’

121. Witness EM informed the Panel that catheterisation is a process commonly completed in the recovery area and is almost always required when an orthopaedic patient has had a spinal anaesthetic. She explained that it involves the insertion of a small tube into the patient’s bladder to allow the passing of urine. Witness EM informed the Panel that the Registrant had difficulty in inserting catheters, and she had to intervene to ensure that it was done correctly. She stated that it is not a lengthy process but on one occasion the Registrant attended a patient for the purpose of inserting a catheter and remained with the patient for over 20 minutes. Witness EM informed the Panel that she would have expected the catheterisation to take no more than 10 minutes. She stated that she repeatedly asked the Registrant if she was ‘ok’ and she repeatedly said ‘yes’. However, Witness EM became concerned by the length of time that it was taking and intervened. She stated that she noted that the Registrant was trying to re-insert the same catheter in the incorrect place so exposing the patient to a risk of infection. Witness EM retrieved a new catheter and inserted it correctly, which resulted in urine flowing through the tube and into the bag.

122. Witness KH corroborated the evidence of Witness EM with regards to the catheterisation process. She stated that ODPs are not required to know how to catheterise but can complete additional training to acquire the skill. She stated that on one occasion, the Registrant told her that she had catheterised the patient, but no urine was coming out which she thought might be because the patient was dehydrated. Witness KH informed the Panel that when she attended the patient, she noticed that the catheter had been inserted into the vagina rather than the urethra. She stated that the Registrant refuse to accept that she had inserted the catheter in the wrong place.
123. In her submissions the Registrant asserted that these allegations did not happen. She stated that she has qualifications and competencies related to female catheterisation. She also stated that if she had experienced any difficulty, she would have referred the matter to the RMO (Resident Medical Officer).

124. The Panel accepted the evidence of Witnesses EM and KH. Witness EM referred to two incidents and stated during her oral evidence there were many other occasions which required her to take over the catheterisation from the Registrant. Witness KH recalled another particular incident. The Panel was satisfied that the incidents occurred as described. The Panel concluded that on these occasions the Registrant did not adequately complete the catheterisation. Accordingly 6(g) was found proved.

Particular 7 – Dishonesty (in relation to Particulars 3 and 4) Found Proved

125. The Panel, having found particulars 3 and 4 proved, went on to consider the issue of dishonesty.  The Registrant did not specifically respond to the allegation of dishonesty. 
126. The Panel was satisfied that the Registrant knew that she had been dismissed from the NHS Trust for the reasons stated above.  The Panel was also satisfied that the Registrant had a duty to be open and honest in her written application form and during the interview with Witness DM. The Panel concluded that the omission was not a mistake or the result of a misunderstanding. It was a conscious and deliberate omission and the Panel was satisfied that the Registrant’s omissions were dishonest by the standards of reasonable and honest people.

127. The Panel was also satisfied that the Registrant knew that she was not a qualified nurse and that she was not registered with the NMC. The Panel was satisfied that the Registrant had a duty to be open and honest about her qualifications in her written and oral communications. The Panel concluded that the Registrant’s misrepresentation of her qualifications and her registered status was not a mistake or the result of a misunderstanding. It was a conscious and deliberate intentionally misleading act and the Panel was satisfied that the Registrant was dishonest by the standards of reasonable and honest people.

128. Accordingly, Particular 7 in relation to Particulars 3 and 4 were found proved.

Decision on Grounds

129. The question of whether the facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

130. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No 2) 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances…”. The conduct must be serious in that it falls well below the standards.

131. The Panel considered that the dishonesty particulars (3, 4 and 7) were particularly serious. The dishonesty related to the Registrant’s employment and to the scope of her practice. The Registrant’s employer and colleagues relied on the Registrant to be honest and she broke that trust by deliberately creating and continuing a false narrative. In respect of particular 3 the Registrant deliberately hid from her employer the fact that she had been dismissed. In respect of particular 4 the Registrant misled her colleagues as to the level of her knowledge, skills and competence. She embellished and reinforced her lies on a number of occasions. Examples are the Registrant’s reference to receiving a silver nursing buckle and listing her qualification as Adult Nursing Dip HE in a written statement.

132. The Registrant’s conduct was a breach of the HCPC Standards of conduct, performance and ethics standard 9 “be honest and trustworthy”.

133. The Panel found that the Registrant’s conduct in particulars 3, 4 and 7 constituted misconduct.

134. In the Panel’s judgment particulars 1, 2, 5, and 6 did not constitute a lack of competence. The Registrant was an experienced ODP. The Panel carefully considered each particular, and decided that the Registrant either had sufficient knowledge,  skill and ability to carry out the task, or that she knowingly and deliberately persisted in carrying out a task when she knew that her skill or ability was insufficient. In both situations the Panel considered that the act or omission was more appropriately characterised as misconduct rather than a lack of competence.

135. The Panel considered whether particulars 1, 2, 5, and 6 were sufficiently serious to constitute misconduct. The Registrant’s conduct in particular 1 fell well below the standards of an ODP. It was the Registrant’s responsibility to carry out the pre-operative count in conjunction with her colleague. Her decision not to undertake the task was deliberate. It was important that the checks were carried out correctly to reduce the potential for uncertainty that an instrument may have been left inside the patient during an operation.

136. The Panel decided that the Registrant’s conduct in particular 2(b) was not sufficiently serious to constitute misconduct. The evidence before the Panel was that ODPs and other professionals occasionally make record keeping mistakes of this nature. Although the Registrant’s conduct was below the standard expected of an ODP, it was not far below those standards and not sufficiently serious to constitute misconduct.

137. The Panel decided that the Registrant’s conduct in particular 5(a) was sufficiently serious to constitute misconduct given the context that the Registrant was holding herself out as being a highly skilled and competent ODP and a qualified nurse. The Panel noted that the Registrant was offered support from a second person in Theatre, but she declined that offer. The request to the Registrant to carry out scrubbing duties for the General Laparoscopic List and the Gynaecological list was entirely reasonable in the circumstances. The Registrant not only declined to undertake one list on the day, but after stating she would undertake the Gynaecological List in the afternoon she then failed to undertake the duties. The Registrant placed the burden of the work onto her colleagues to carry out the work which is unacceptable.

138. The Panel also decided that the Registrant’s conduct in particular 5(b) was sufficiently serious to constitute misconduct. The Registrant knew and understood the role of the circulator and that the duties included pro-actively completing counts and instrument checks, assisting with patient transfers, setting up the procedure for patients and completing care plans and care pathways. The Panel considered that if the Registrant had not been prompted, the tasks would not have been carried out. The repeated need for prompting indicates that the Registrants conduct was due to attitudinal reasons.

139. Although a failure to record adequate information in patient care plans might be a careless mistake, the failure in particular 6(a) was that the Registrant did not complete the action of recording adequate information in patient care plans/care pathways after she was prompted to do so. A failure to respond appropriately to this prompt was serious, particularly because it had the potential to impact on the continuity of patient care. The failure in particular 6(a) fell well below the standards of an ODP and constituted misconduct.

140. In respect of particular 6(b), the removal of the ET tube is not within scope of practice of all ODPs. There was no evidence that the Registrant had been trained in the removal of the ET tube. She did not commence or try to undertake the task. The Panel therefore found that particular 6(b)(i) did not constitute misconduct. However, the Registrant should have recognised that the patient had an ET tube and immediately alerted the anaesthetist that she was not trained to remove it. This failure to communicate was serious because it put the patient at risk of harm.

141. The Panel noted that in respect of particular 6(c) the Registrant had been told what to do, but failed to do it. This was a potentially life-threatening situation involving a significant decrease in the patient’s oxygen saturation level. There was no reason why the Registrant could not have provided the assistance requested by DM. The Registrant’s omission to act was well below the standards of an ODP and constituted misconduct.

142. In the Panel’s judgment the Registrant’s conduct in particular 6(d) did not constitute misconduct. The Panel noted that there was a lack of evidence in relation to the steps that the Registrant was expected to take. There were other health professionals in the room and that may have limited the steps that the Registrant could have carried out.

143. The Panel decided that the Registrant’s conduct in particular 6(e) was sufficiently serious to constitute misconduct. The Panel considered that the Registrant’s omission was attitudinal. This was indicated by the Registrant’s response to the prompt from EM. The Registrant did not thank EM for the prompt, but instead criticised her.

144. In respect of particular 6(f) the Panel noted that the Registrant was given clear instructions by the ENT consultant, but disregarded them. The Registrant exposed the patient to the risk of harm both by disregarding the instructions and by failing to use sterilised gloves and gauze. In the Panel’s judgment particulars 6(f)(i) and 6(f)(ii) were sufficiently serious to constitute misconduct.

145. When considering particular 6(g) the Panel considered that the context and surrounding circumstances were particularly relevant. The Registrant presented herself as a nurse and gave the impression to her colleagues that she had the skills and ability to carry out catheterisation of patients. The Registrant did not ask for support or help. She did not say that she was unsure about her ability to carry out the task, but reassured EM that she was ok. In these circumstances the Panel considered that the Registrant’s conduct was more than simply a lack of skills or ability. The Registrant decided on at least three occasions to proceed with the work despite her lack of sufficient ability and despite her experience of previous problems. In this context the Panel decided that the Registrant’s conduct in particular 6(g) fell well below the standards for an ODP and constituted misconduct.

146. In reaching its decision that particulars 1, 5(a), 5(b), 6(a), 6(b)(ii), 6(c), 6(e), 6(f) and 6(g) constituted misconduct the Panel considered the HCPC Standards of Conduct Performance and Ethics and the Standards of Proficiency for Operating Department Practitioners. The Panel considered that the Registrants actions were a breach of the following ODP standards:
1. be able to practise safely and effectively within their scope of practice
2. be able to practise within the legal and ethical boundaries of their profession
3.1 understand the need to maintain high standards of personal and professional conduct
4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately

4.6 understand the importance of participation in training, supervision and mentoring

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others

9.1 be able to work, where appropriate, in partnership with service users, other professionals, support staff and others.

9.4 be able to contribute effectively to work undertaken as part of a multi-disciplinary team

10. be able to maintain records appropriately

11. be able to reflect on and review practice

14. be able to draw on appropriate knowledge and skills to inform practice

15. understand the need to establish and maintain a safe practice environment 

The following Standards of conduct, performance and ethics 2012:

1. You must act in the best interests of service users.

3. You must keep high standards of personal conduct.

5. You must keep your professional knowledge and skills up to date.

7. You must communicate properly and effectively with service users and other practitioners.

13. You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

The 2016 edition of the Standards of conduct and performance and ethics:

2. Communicate appropriately and effectively

3. Work within the limits of your knowledge and skills

6. Manage risk
8. Be open when things go wrong
9. Be honest and trustworthy
10. Keep records of your work

Decision on Impairment 

147. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that Fitness to Practice is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.

148. The Panel first considered the personal component which is the Registrant’s current behaviour.

149. The Panel carefully reviewed the Registrant’s written representations. The Registrant has provided no information about her current employment and very little information about her current circumstances. There was no evidence that the Registrant has developed or is developing any insight. Her position is that she denies the allegations, blames others, and does not accept her own responsibility. The Registrant completely denies any wrongdoing and therefore has not recognised that any remediation might be required. There is no evidence that she has reflected on the past events, other than to put forward her clear assertions that the events described by the witnesses are “a fiction”.

150. In the circumstances the Panel considered that there was a risk of repetition of misconduct including a risk of repetition of dishonest behaviour. The Panel had concerns about the Registrant’s attitude, which also indicated that there was a real risk of repetition. The risk of repetition involves an ongoing risk to patient safety. As an ODP the Registrant is directly involved in patient care, as illustrated by the various treatment and emergency care scenarios described in the Panel’s findings of fact.

151. The Panel considered that the Registrant’s past actions put patients at risk of harm, that her misconduct has brought the profession into disrepute, she had acted in breach of a fundamental tenet of the profession, and had acted dishonestly. There was a risk of repetition in respect of all these concerns.

152. In the Panel’s judgment the Registrant’s fitness to practise is impaired on the basis of the personal component.

153. The Panel next considered the wider public interest considerations including the need to maintain confidence in the profession and to uphold proper standards of conduct and behaviour. The Panel highlighted a number of aspects of the Registrant’s misconduct which would be particularly concerning for members of the public. The Registrant presented herself to her colleagues as a competent, trained nurse and ODP. This would create a level of expectation as to her competence and ability which she manifestly failed to live up to. The Registrant not only created this impression, but embellished the fiction. The Registrant put patients at unwarranted risk of harm. The Registrant also sought to deceive her employer Spire Healthcare as to the circumstances in which her previous employment came to an end. The particulars found proved, considered collectively, indicate that the Registrant had a cavalier attitude to parts of her job, and that she was not willing to accept support and constructive criticism. In these circumstances, public confidence in the profession would be undermined if the Panel did not find that the Registrant’s fitness to practise is currently impaired.

154. A finding of impairment is also required to uphold standards of conduct and behaviour. When she acted dishonestly the Registrant was in breach of a fundamental tenet of the profession and it was appropriate for the Panel to mark its disapproval of her conduct by making a finding of current impairment.

155. The Panel concluded that the Registrant’s fitness of practise is impaired on the basis of the personal component and the public component.

Decision on sanction

156. In considering which, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.

157. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.

158. The Panel decided that the aggravating features were:

• the Registrant impugned or tried to impugn the integrity of the witnesses and continued this through to her written submissions to the Panel;

• wide-ranging failures and a breach of fundamental tenets of the profession;

• failure to accept or acknowledge when asked to do something beyond her competence;

• unwilling to accept or support constructive criticism;

• failure to accept that she has misled others as to her level of training and competence which had the potential to place both colleagues and patients at risk;

• expectations of her in respect of her care for patients may have been higher than usual because she misled colleagues and her employer about the level and scope of her practice

• the dishonest conduct was perpetuated over a period of time.

159. The Panel decided that the mitigating features were:

• no fitness to practise history.

160. The Panel considered that the dishonesty in this case was at the high end of the spectrum of dishonesty because it was directly related to the Registrant’s practice as an ODP and involved the potential to put patients at risk of harm. The dishonesty was repeated, indicating that the Registrant lacked the integrity that is required for safe practice as an ODP.

161. The Panel considered the option of taking no action, but decided that the misconduct was too serious and that this option would not address the risk of repetition the Panel has identified. It would also be insufficient to maintain confidence in the profession and the regulatory process. For the same reasons a Caution Order would not be sufficient.

162. The Panel next considered a Conditions of Practice Order. Conditions of practice are not appropriate because the misconduct is attitudinal in nature. A Conditions of Practice Order would also be insufficient to mark the gravity of the Registrant’s misconduct and to maintain public confidence in the profession.

163. The Panel next considered the option of a Suspension Order. A Suspension Order would guard against the risk of repetition of dishonesty in professional practice while the Registrant was suspended. However, Suspension Orders are more appropriate where there is a prospect that the Registrant can be rehabilitated to the Register as a safe practitioner. The Panel did not consider that rehabilitation was possible in this case.

164. The Panel also considered whether a Suspension Order was a sufficiently severe sanction to act as a deterrent effect to other Registrants and to maintain public confidence in the profession and the regulatory process. Given the Panel’s findings on impairment and the aggravating features, the Panel did not consider that a Suspension Order would be sufficient.

165. Before it discounted the option of a Suspension Order the Panel carefully evaluated the mitigating factor. The absence of fitness to practice history was a minor factor, when weighed against the seriousness of the Registrant’s misconduct. The Panel decided that the mitigating factor carried little weight and did not indicate that a Suspension Order was the appropriate and proportionate sanction.

166. The Panel considered the more restrictive sanction of a Striking Off Order. The Panel noted that the criteria in the ISP for a Striking Off Order applied; in particular this case involved serious dishonesty and a breach of trust. The Panel also noted the Registrant’s limited engagement with the HCPC and her blanket denials. In these circumstances the Panel decided that a Striking Off Order was appropriate and proportionate. A Striking-Off Order would mark the seriousness of the Registrant’s misconduct, act as a deterrent to other Registrants, and maintain the reputation of the profession.

167. In reaching its decision the Panel took into account the Registrant’s financial and reputational interests, but decided that they were outweighed by the need to protect the public and by the wider public interest considerations. The Panel decided that the appropriate and proportionate Order was a Striking Off Order.

 

Order

The Registrar is directed to strike the name of Mrs Lesley J Welsh from the Register from the date this Order takes effect.

Notes

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order:

Mr Dite submitted that the Panel should hear his application for an Interim Suspension Order in the absence of the Registrant.

The Panel accepted the advice of the Legal Assessor.

The Panel decided that it was fair and appropriate to proceed and hear the application in the absence of the Registrant. The Registrant was advised in the Notice of Hearing dated 2 January 2019 that an application for an interim order might be made. The Panel earlier concluded that the Registrant had waived her right to attend the hearing and there was no change in the circumstances. It was in the public interest to proceed.

Mr Dite made an application for an Interim Suspension Order for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal.

The Panel accepted the advice of the Legal Assessor.

The Panel decided that an interim order was necessary for the protection of the public. The Panel has identified a risk of repetition and a potential risk to the public which is ongoing. The Panel also considered that an interim order was otherwise in the public interest. A member of the public would be shocked or troubled to learn that there was no interim restriction in place.
The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its earlier conclusions that conditions would not be sufficient to protect the public or the public interest.

The Panel decided to make an Interim Suspension Order for a period of 18 months, the maximum duration, to allow sufficient time for the disposal of any appeal.

Hearing History

History of Hearings for Mrs Lesley J Welsh

Date Panel Hearing type Outcomes / Status
04/03/2019 Conduct and Competence Committee Final Hearing Struck off