Mr James Germain

Preliminary matters:

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been posted on 30 May 2019 by First Class post, to the address shown for the Registrant on the HCPC register. In addition, the Notice was also sent to the Registrant by email on the same date. 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 & Competence Committee Rules 2003 (as amended).

Proceeding in the absence of the Registrant

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence. The Panel accepted the advice of the Legal Assessor. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the absence of the Registrant”.

3. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Registrant last made contact with the HCPC by email on 8 November 2018. Since that date, the Registrant appears to have deliberately disengaged with the process. Accordingly, the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend and/or be represented.

b) The Registrant has not made an application to adjourn the hearing and there is no evidence before the Panel that the Registrant would re-engage with the process or attend the hearing should an adjournment be granted.

c) The HCPC has made arrangements for four witnesses to give evidence during this hearing. Two of those witnesses have attended today and one has travelled from Scotland. In the absence of any cogent reason to adjourn the hearing, the Panel was satisfied that the witnesses should not be inconvenienced and should be able to give evidence whilst the events are reasonably fresh in their   minds.

d) The Panel recognised that there may be a disadvantage to the Registrant in not being able to respond to the HCPC’s case.  However, he was given the opportunity to participate in these proceedings in person or by submitting written representations and has not done so. In these circumstances, the Panel concluded that any disadvantage to the Registrant was outweighed by the strong public interest in ensuring that the substantive hearing is commenced and considered expeditiously.

Background:

4. The Registrant is a registered Operating Department Practitioner. He was employed by the Sandwell and West Birmingham NHS Trust (“The Trust”).

5. It is alleged, that between 17 September 2016 and 3 April 2017, the Registrant falsified staff rostering shift entries retrospectively. It is alleged that he entered these on to the electronic rota system under another person’s username and password without their consent.

6. This resulted in the payment to the Registrant of 33 shifts, which were not worked, to the value of approximately £9400. MT (Witness 2) was appointed the Investigating Officer and he completed an investigation into the concerns of entering shifts not worked.

Decision on Facts

7. The Panel reminded itself that the burden of proving the facts is on the HCPC and that the Registrant does not have to prove anything.  Further, a fact is only to be found proved if the Panel is satisfied of it on the balance of probabilities; that is that the alleged fact is more likely than not to have happened.

8. The Panel heard submissions from Mr Lloyd on behalf of the HCPC and received and accepted advice from the Legal Assessor, who reminded it of the contents of the Practice Note as well as how to approach the assessment of witnesses and the drawing of inferences.

9. The Panel heard evidence from:

(a) MH, The E-rostering Manager at the Trust between 2012 and 2018;
(b) MT, The Employee Relations Advisor/ Case Manager at the Trust, responsible for conducting internal employee related internal investigations;
(c) DC, an Operating Department Practitioner employed by the Trust in the rile of Speciality Manager at the Birmingham Treatment Centre; and
(d) KS, an Operating Department Practitioner employed by the Trust as a Speciality Theatre Manager responsible for managing the staff in the Recovery and Maternity Theatres and recovery in the day unit at the Birmingham Treatment Centre.

10. Supplementing the oral evidence of the above witnesses, there was a bundle of written statements and exhibits consisting of some 711 pages which included:

(1) Witness statements from MH, MT, DC and KS;
(2) ‘Initiation of Management Investigation’ letter to the Registrant;
(3) Interview notes of the Trust interview of the Registrant;
(4) DC interview notes;
(5) KS interview notes;
(6) MH telephone interview notes;
(7) Copy of the shifts identified as suspect;
(8) Registrant’s parking permit records;
(9) Registrant’s swipe access on the City Site;
(10) E-roster for the Registrant, DC and KS;
(11) Cross-reference information;
(12) Internet browsing history for the Registrant;
(13) Paper Rotas completed in theatres;
(14) The Trust Disciplinary Policy;
(15) The Trust Investigatory Guidance Notes;
(16) Job description; and
(17) The Trust Security Management Policy.

11. The Panel had considered the bundle of statements and exhibits and document A in advance of the hearing and this bundle formed the reference material for the evidence during the fact-finding stage.

12. In addition, the Panel was provided with a copy of two emails from the Registrant dated 8 and 9 November 2018 (Document A) in which he set out his position. He stated:
“…The original allegation that I/myself entered the shifts into the e-roster systems I still deny to this day as this must have meant for myself to have obtained two of my managers passwords and login details which I strongly disagree with. I do believe this was an act of malice which was never followed up by management.
However, I do agree that what I did was completely dishonest and unprofessional and that I should have been more open and honest about how much I was being paid and informed my managers accordingly…”

13. The Panel heard evidence from MH and MT on, Day 1 of the hearing (2 September 2019).

14. MH told the Panel of his extensive experience in working with E-rostering system software. He said that he had first become aware of this matter following a call received by the Trust bank admin clerk from LH, Theatre Lead, querying the system and suspecting it was over-charging as there was an increase in payments going out. This led him to conduct audits on the Smart E-rostering system and on a separate IT system at the Trust called “Barnacles” which provides a more detailed report showing when a shift was booked, how and when it was entered, whether it was retrospective, who verified it and when. He referred the Panel to his report at appendix 10 of the bundle and stated that these shifts relating to the Registrant were all entered onto the system retrospectively and had been booked after 5pm. He confirmed that the shifts in the system appeared to have been verified by two managers, DC and KS.

15. MT informed the Panel that he had taken over the Trust internal investigation into these matters as a colleague, CT, was leaving the team. His role had been to pull together the investigation documents and to conclude the investigation report. In particular, his task was focused on piecing the information together to see if the Registrant was on site at the time the shift was worked and also to see if the Registrant, DC or KS was on site at the times the shifts were retrospectively entered and verified on the E-rostering system. This involved cross-referencing the information from the E-rostering system with the paper rota held in theatre, and the Registrant’s car park permit records, swipe card access records and his internet browsing history. He concluded that a total of 33 shifts between 17 September 2016 and 21 January 2017 had been paid to the Registrant when he had not worked them to the total amount of £9,446.77.

Email received from the Registrant

16.  At the commencement of Day 2 of the hearing (3 September 2019), Mr Lloyd informed the Panel that overnight an email had been received from the Registrant. The email was timed and dated 19:30, 2 September 2019 and was from an email address not held by the HCPC and the telephone number provided within this was also not on record. In the email, the Registrant stated:

“…I am extremely sorry for my late reply to this investigation but a lot has changed since this all began and I have been living in different locations (sofa surfing).

I have sent a separate email with the pro-forma response in which I can admit to 2 allegations which was (sic) 2band 3a/bUnfortunately, as I only received this pack recently and have ony just became (sic) aware of this situation I fear it may be too late to change any outcome which may occur.

I have attached a personal statement regarding this whole incident and I hope I can still practice at the end of this…”

17. The email, the personal statement and the pro-forma were provided to the Panel (Document B).

18. The Panel noted that in the pro-forma response, in answer to the question “Are you planning to attend the hearing?” the Registrant had written “No”. However, in light of the contact by the Registrant, the Panel adjourned the hearing to allow for attempts to be made to contact the Registrant in order to ascertain if he wished to participate in the hearing.

19. The Registrant was called by the Hearings Officer on the telephone number he had provided in his email and messages were left asking him to call back. In addition, an email was sent by the Hearings Officer to the Registrant asking him to contact her. Unfortunately, by 2 pm there was no response from the Registrant to the phone messages or the email.

20. Mr Lloyd on behalf of the HCPC submitted that the hearing should continue. He submitted that there was no application for an adjournment and that there was an explicit statement in the pro-forma from the Registrant stating that he did not intend to attend the hearing. Mr Lloyd further submitted that the HCPC had two witnesses in attendance who were ready to give evidence.

21. The Panel took advice from the Legal Assessor.

22. The Panel decided that in all of the circumstances, the hearing should continue. The Panel was satisfied that it had afforded the Registrant a reasonable opportunity to respond and in the absence of an application to adjourn, the Panel must take at face value the Registrant’s answer on the pro-forma that he did not intend to attend the hearing.

23. The Panel then heard evidence from the witnesses DC and KS.

24. DC told the Panel that the Registrant worked in three of the departments under his supervision, Anaesthetics, Surgery and Recovery. He stated that E-rostering was a fairly new system that was brought in to manage staffing levels on the wards predominantly. It was implemented in Theatres as part of the Trust roll out. DC explained that all the regular shifts for staff are paid through E-roster once a month and “Bank” shifts are paid weekly. The theatre secretary adds the regular shifts for all staff onto the system and Band 7 managers are required to add all bank shifts for all staff. DC stated that he usually worked between 8 am and 5.30 pm. He stated that he would access the E-roster system during these hours and did not have remote access to the system. He explained that he had been given a generic password, “Password 1” and that he had not updated it, nor had he been prompted to do so. DC was asked to comment on the long delays for the retrospective entry of the shifts on to the system and he stated that it was very unusual as the bank shifts are paid weekly which meant that any discrepancies would be dealt with the following week not months later. He was also asked whether he would have verified a shift in the early hours of the morning to which he replied that he would not and that he would only access the system during working hours.

25. KS told the Panel that as a Band 7 manager her hours were also 8 am to 5.30 pm. She explained that she had also been provided with a generic password “Password 1”. Unlike DC, she stated that she had been prompted to update it from time to time but had simply used the same password and changed the numbers to “Password 2” and “Password 3” provided by the system. She stated that she had not shared her password with anybody else. She told the Panel that she was not on site at the times the Registrant’s shifts were entered on to the E-roster system or when they were verified using her login details as it was outside her set working hours. KS also confirmed that she did not work Wednesdays, weekends or at night.

26. In addition to the evidence of the four witnesses, the Panel carefully considered the material contained in the bundle, the representations from the Registrant in Documents A and B and the written submissions provided by Mr Lloyd on behalf of the HCPC including a detailed evidence matrix.

27. The Panel assessed the credibility of each witness, and did not detect any motive on the part of any of the witnesses other than to assist the Panel in adjudicating on the Registrant’s case. There was, in the Panel’s view, nothing to support any suggestion of malice against the Registrant, either at the relevant time or in respect of their evidence for this hearing.

28. As to reliability, the Panel considered that the oral evidence of each witness was consistent with their written evidence (supported by the available exhibits). 

29. For these reasons, the Panel concluded that it could and should rely on all of the evidence presented to it by the HCPC’s witnesses. 

Particular 1(a) – 1(gg) – Not Proved

30. The Panel accepted the evidence of DC and KS that they did not input or verify the shifts on the E-roster system and that someone else had used their login details. The Panel noted, however, that at the time the E-rostering system was relatively new and that there was a poor security procedure in place in relation to passwords. The Panel also took into account that for each of the 33 shifts, the Registrant had originally been scheduled to work but had not done so due to being on sick leave. The Panel carefully considered the evidence matrix provided by Mr Lloyd and cross-referenced it with the source material in the exhibit bundle. Having done so, the Panel was satisfied that there was evidence that the Registrant was on site at the time that the shifts were input and verified on the system but there was no direct evidence that the Registrant was responsible for these actions. The Panel was of the view that this was an extremely serious allegation, effectively alleging a deliberate systematic fraud by the registrant. The Panel also noted that the Registrant has consistently denied this allegation. He stated during the Trust’s internal investigation interview that “Just because I was here doesn’t mean I did it.” Applying the burden and standard of proof, the Panel decided that it was not safe to infer on the available evidence that the Registrant had input and verified the shifts on the 33 occasions alleged. Accordingly, these particulars of the allegation are not proved.

Particular 2 - Proved

31. The Panel accepted the unchallenged evidence of MT that 33 shifts between 17 September 2016 and 21 January 2017 had been paid to the Registrant when he had not worked them to the total amount of £9,446.77. The Panel also took into account the Registrant’s admission to this particular of the allegation. The Panel found this particular proved.

Particulars 3(a) and 3(b) - Proved

32. The panel noted that the Trust’s ‘Security Management Policy’ provided by the HCPC did not include any information regarding the reporting of lost ID cards. The panel was told by MT that the lost card did not form a part of the investigation interview carried out by his colleague (CT). However, the Panel accepted the evidence of MT that the Trust’s policy of reporting the loss of ID cards was printed on the reverse of the card and that this policy would have been explained to the Registrant during his induction. The Panel also took into account the Registrant’s admission to these particulars of the allegation. The Panel found these particulars proved.

Particular 4 – Proved in Part

33. In reaching its decision, the Panel applied the test of dishonesty in accordance with the case of Ivey v Genting Casinos [2017] UKSC 67. In so doing, the Panel was satisfied that the Registrant’s actions in particular 2 were dishonest. The Panel also noted the Registrant’s own words in Document A when he described his behaviour as follows: “I do agree that what I did was completely dishonest and unprofessional”. Accordingly, the Panel finds particular 4 of the allegation proved in relation to particular 2.

Decision on Grounds

34. The Panel heard submissions from Mr Lloyd to supplement his written submissions on the question of grounds and current impairment.  The Panel noted that although the Registrant had not specifically availed himself of the opportunity to provide any written submissions, testimonials or other forms of evidence that might be relevant to this stage of the proceedings, he had in documents A and B demonstrated some insight and remorse into his behaviour. He had also stated that he had continued to work as an Operating Department Practitioner. In Document A dated 8 November 2018, the Registrant stated:

“…I do agree that what I did was completely dishonest and unprofessional and that I should have been more open and honest about how much I was being paid and informed my managers accordingly. I have taken the last year out for a few reasons firstly to spend some time to reflect on what I had done wrong… I would love to be able to practice again as I don’t think this reflects on what type of practitioner I can be because ever since I qualified as an ODP all I have ever wanted to do is supply the best care and compassion for my patients.
I do realise what I have done and what I must not do in the future… I also realise that what I have done professionally is wrong and how this reflects on my training and what my mentors felt when this happened because they watched me grow into the practitioner I became from quite a young age and this is not what they taught me…”

In Document B dated 2 September 2019, the Registrant stated:

“…I’ve always tried to be the best practitioner I can be, giving my patients 110%, assisting and mentoring new starters on how things are done properly…I sincerely apologise for any wrongdoing… I love my job and it brings me great regret to know that I have let the profession down… I do not know any other job other than this and would love to keep my registration.”

35. Mr Lloyd submitted that taken together, or individually, the dishonest behaviour outlined in the factual particulars amounted to the statutory ground of misconduct in that it constitutes a serious falling short of what would be proper in the circumstances.

36. Mr Lloyd referred the Panel to the definition of misconduct provided by Lord Clyde in Roylance v GMC (No.2) [2001] 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.”

37. Mr Lloyd further submitted that the rules and standards required to be followed by the Registrant would have been the HCPC Standards of Conduct, Performance and Ethics, in particular standards 5,6,8 and 9.

38. The Panel heard advice from the Legal Assessor who addressed them on the point that misconduct, in line with the Practice Note and the case of Meadow v GMC[2006] EWCA Civ 1319 , requires a serious falling short of the standards expected of a registrant in the circumstances.

39. The Panel accepted the legal assessor’s advice and took account of the matters set out in the Practice Note.  The decision on statutory grounds is one for the Panel applying its judgment and not a matter of proof.

 
40. The Panel was satisfied, applying its judgement that the Registrant’s dishonest behaviour in keeping and not reporting the overpayment of some £9446.77 in respect of 33 shifts he had not worked amounted to serious professional misconduct. The Panel concluded that standards 9 and 9.1 of the Standards of Conduct, Performance and Ethics were engaged, namely:

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

The panel also concluded that standards 3 and 3.1 of the Operating Department Practitioner Standards of Proficiency were engaged, namely:

3. Be able to maintain fitness to practise;
3.1 Understand the need to maintain high standards of personal and professional conduct.

41. The Panel, therefore, found the statutory ground of misconduct to have been made out.

Decision on Impairment

42. The Panel heard submissions from Mr Lloyd on the question of current impairment.  Mr Lloyd referred the Panel to the practice note and in particular the two elements set out within the note. He submitted that in relation to the personal component, there is a lack of insight and a risk of repetition and in relation to the public component, a finding of current impairment is required to maintain public confidence in the profession and the regulator.

43. The Panel accepted the advice of the Legal Assessor who again invited the Panel’s attention to the Practice Note, highlighting the need to consider the personal and public component.  He also referred the Panel to two parts the judgement of Cox J in the case of CHRE v Grant (2011) EWHC 927 (Admin). First:

“In determining whether a practitioner’s fitness to practice is impaired by reason of misconduct, the panel should generally consider not only whether the practitioner constitutes a present risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

The second part of the judgement is where Cox J also cited with approval the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her 5th Shipman report:

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional practice, adverse health, conviction or caution show that his/her fitness to practice is impaired in the sense that he or she

(a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
(b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
(c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
(d) has in the past acted dishonestly and/or be liable to acts of dishonestly in the future.”

44. The Panel reminded itself that impairment is a matter for its judgment based on the evidence and its earlier determinations. Further, the Panel is judging the question of impairment as at the date of the Hearing and not the date of the events giving rise to the allegation.

45. On the personal component, the Panel was of the view that the Registrant had demonstrated both insight and remorse for his actions in his representations sent to the HCPC in documents A and B. The Registrant also stated during the Trust’s internal investigation process that he was both willing and able to pay the overpayments back in full. The Panel noted that the Registrant had also admitted all of the factual particulars that were found proved by the Panel. The Panel therefore, did not find the Registrant’s fitness to practise to be impaired on the personal component.

46. On the public component, the Panel was satisfied that this was a serious case. By his dishonest behaviour, the Registrant had retained over £9,400 of public money destined for use in the NHS. The Panel concluded that limbs (b), (c), and (d) of Dame Janet’s formulation are engaged in this case.

47. Accordingly, in its judgement, a finding of current impairment is required in this case in order to uphold proper professional standards and confidence in the profession.
48. The Panel has therefore determined that the Registrant’s fitness to practise is currently impaired as a result of his misconduct.

Decision on Sanction

49. On behalf of the HCPC, Mr Lloyd submitted that the question of sanction is a matter for the Panel and reminded the Panel of the Sanctions Policy and in particular paragraphs 56-58 which deal with dishonesty and to 121-132 which deal with suspension and striking-off orders.

50. The Panel accepted the advice of the Legal Assessor.

51. In reaching its determination on sanction, the Panel has again given careful consideration to all of the evidence and to the submissions of the HCPC as well as its findings at the impairment stage. 

52. The Panel reminded itself that the primary purpose of sanction is to address public safety, to uphold proper professional standards and to maintain public confidence in the Operating Department Practitioners’ profession and in the regulatory process.

53. The Panel had regard to the Sanctions Policy and the need to ensure that any sanction imposed is both reasonable and proportionate, properly balancing the interests of the public with the Registrant’s own interests. The Panel should impose no greater restriction on the Registrant’s ability to practise as an Operating Department Practitioner than is absolutely necessary to protect service users and/or to address the wider public interest aspects of the case.

54. In reaching its decision, the Panel gave careful consideration to the guidance in the Sanctions Policy on cases involving dishonesty.

55. The Panel went on to consider the aggravating and mitigating factors in this case.

56. In relation to aggravating factors the Panel identified the following factors:

• The dishonesty took place over a 3 month period; and
• The Registrant benefited from public funds intended for the NHS.

57. In respect of mitigating factors, the Panel found:

• The Registrant took a passive role in the dishonesty;
• The Registrant admitted all of the factual particulars found proved by the Panel;
• The Registrant has demonstrated remorse and regret for his actions;
• The Registrant has shown insight into his actions;
• The Registrant had indicated that he is able and willing to repay the money to the Trust;
• DC and KS spoke in positive terms regarding the Registrant’s practice; and
• No evidence of previous regulatory findings were made known to the Panel.

58. The Panel then considered what, if any, sanction to impose.

59. The Panel first considered taking no further action, but decided that the wider public interest considerations in this case would not be addressed by such an outcome. 

60. The Panel next considered mediation but determined that this would not be an appropriate sanction given the circumstances of this case and the Panel’s findings.

61. The Panel considered whether a caution order would adequately meet the public interest. The Panel had regard to paragraph 101 of the Sanctions Policy and determined that this is not a case where “the issue is isolated, limited or relatively minor in nature”. The Panel therefore concluded that a caution order was not an appropriate sanction.

62. The Panel then considered whether imposing a Conditions of Practice Order would be an appropriate and proportionate sanction. The Panel had regard to the Sanctions Policy and determined that conditions of practice could not be formulated to address the wider public interest concerns arising from the Registrant’s dishonesty.

63. The Panel then considered a Suspension Order, recognising that this would represent a serious and significant restriction on the Registrant’s ability to practise as an Operating Department Practitioner.  In so-doing, the Panel was mindful that the Registrant has been working since these matters occurred. The Panel took account of all of the evidence and was mindful of the relevant paragraphs of the Sanctions Policy. 

64. The Panel was satisfied that all of the factors identified in paragraph 121 of the Sanctions Policy as to when a suspension order is appropriate apply in this case. Namely:

• The concerns represent a serious breach of the Standards of conduct, performance and ethics;
• The Registrant has insight;
• The issues are unlikely to be repeated; and
• There is evidence to suggest the Registrant is likely to be able to resolve or remedy his failings.

65. The Panel therefore decided that a suspension order is the appropriate sanction in this matter. It would act as a deterrent to other practitioners from acting dishonestly and would serve to uphold proper professional standards and confidence in the profession by marking the seriousness of the Registrant’s behaviour in dishonestly keeping public funds meant for the NHS. It would, however, allow the Registrant to return to unrestricted practice in the future.

66. The Panel next considered the appropriate length of the suspension order. The Panel was satisfied that a short-term suspension order would be appropriate as there is no on-going risk of harm but further action is required in order to maintain public confidence in the profession. In all of the circumstances, the Panel concluded that a 6 month suspension order would be appropriate and proportionate.

67. This order will be reviewed before its expiry. A future review panel may be assisted by the following:

• The Registrant’s attendance at the review hearing (even if by telephone);
• Any character references and testimonials, dealing in particular with his probity and integrity.

ORDER: That the Registrar is directed to suspend the registration of Mr James Germain for a period of six months from the date this order comes into effect.
 

Interim Order:

68. The Panel considered whether to exercise its discretionary power to make an Interim Order under Article 31(2) of the Health and Social Work Professions Order 2001. 

69. The Panel received submissions from the HCPC and advice from the Legal Assessor.

Interim Order

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

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 6 months.

History of Hearings for Mr James Germain