Mr Paul Alan Rudge

Profession: Operating department practitioner

Registration Number: ODP15081

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/09/2019 End: 17:00 26/09/2019

Location: Copthorne Hotel, Paradise Circus, Birmingham, B3 3HJ, West Midlands

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as an Operating Department Practitioner at University Hospitals Birmingham NHS Trust you:

1. On a number of occasions, demonstrated inappropriate and/or unprofessional behaviour towards your colleagues, which included:

a) In relation to Colleague 1, on various occasions during 2016, you:

i. touched Colleague 1’s genitals;

ii. touched Colleague 1’s backside;

iii. told Colleague 1 that you would “take you round the back and bend you”, or words to that effect;

iv. asked Colleague 1 if he “Would like Colleague 3 to give you a blow job?”, or words to that effect.

b) In relation to Colleague 2, on various occasions during 2016, you:

i. said to Colleague 2, when she was leaning over a desk, “Oh my goodness sister, some things are worth losing your job for”, or words to that effect;

ii. asked Colleague 2 “When are you leaving your husband”, or words to that effect;

iii. pinched Colleague 2’s bottom.

c) In relation to Colleague 3, on various occasions during 2016, you:

i. asked Colleague 3, “is it time for us to have sex yet?”, or words to that effect;

ii. put your arm around Colleague 3.

iii. stated to a male patient “I’ve been with this girl for the entire morning, and I’ve been trying to get in her pants and obviously she must be gay or lesbian because I haven’t had success” or words to that effect.

d). In relation to Colleague 5, on various occasions, you:

i. hugged Colleague 5; OFFER NO EVIDENCE

ii. joked about having a threesome with Colleague 5;

iii. simulated sex from behind with Colleague 5.

2. The matters as set out in paragraph 1 amounts to misconduct.

3. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters:

Service and Proceeding in Absence

1. The Registrant did not attend the final hearing. The Panel first considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. The Panel concluded it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Asessor’s advice, and considered the guidance in R v Jones [2003] 1 AC 1 HL and GMC v Adeogba and Visvardis [2016] EWCA Civ 162, for the following reasons:

• The Panel is satisfied that the Registrant had notice of the hearing and that the rules on service had been complied with;

• The Registrant has not sought an adjournment;

• The Panel determined that the Registrant had chosen not to attend the hearing and voluntarily waived his right to appear

• There was no greater chance that the Registrant would attend any future hearing if there was a postponement;

• There is a general public interest in the expeditious disposal of this matter as the events date back to 2016.

Application to exclude evidence/ admit hearsay evidence

2. At the outset of the hearing the Panel was informed that Colleague 3 was not attending due to health reasons to give evidence and had not signed her statement. Mr Bridges submitted that in these circumstances he wished to apply for her evidence to be admitted as hearsay. He submitted that it was fair to do so and that the evidence was relevant to the issue of public protection.

3. The Panel accepted the advice of the Legal Assessor. The Panel bore in mind that under the Civil Evidence Act 1995, evidence should not be excluded solely on the grounds that it was hearsay. It also had regard to Rule 10 (1) (b) and (c) of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 “The Rules”. It considered the approach as set out in the cases of R(Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) and Thorneycroft v NMC [2014] EWHC 1565 (Admin).

4. The Panel noted the contents of the witness statement of Colleague 3. The Panel took account of the reasons why the witness was unable to attend and weighed this into the balance with the need to protect the public and the Registrant’s right to a fair hearing.

5. There was no objection to Colleague 3’s evidence by the Registrant and the Panel noted that he had been sent a copy of the bundle and was aware that Colleague 3 had stated she was unwilling to attend a hearing for health reasons.

6. The Panel considered that admission of this evidence is necessary in order to give full consideration to matters relating to the protection of members of the public.

7. It was satisfied that the public interest in allowing the evidence to be admitted, and thereby permitting the HCPC to present its case as comprehensively as possible, outweighed any prejudicial effect on the Registrant in the circumstances. The Panel also noted the further protection available in dealing with this evidence, in that it would have the benefit of ongoing legal advice in respect of the evaluation of hearsay evidence.

8. Therefore, the Panel determined to allow the application to admit the statement of Colleague 3 into evidence. Having reached and announced this decision the Panel placed on record that it was reserving its position with regard to how much if any weight it would place upon the evidence until it began its deliberations and had received the Legal Assessor’s advice on this separate issue.

Background:

9. The Registrant is an Operating Department Practitioner. He was employed by University Hospitals Birmingham NHS Trust (the Trust) initially as a Theatre Porter. He qualified as an Operating Department Practitioner in January 2003 and at the time of the allegations he was working as a Band 6 Theatre Team Leader.

10. On 29 September 2016 Colleague 1 made a formal complaint about the conduct of the Registrant and alleged that he had inappropriately touched Colleague 1 on a number of occasions on the genitals and backside and had also made inappropriate comments of a sexual nature.

11. A formal investigation was conducted on behalf of the Trust by an Investigating Officer, Peter Vance, into the allegations. As part of that investigation, details were taken from a number of other colleagues regarding the Registrant’s behaviour. Colleague 2, Colleague 3 and Colleague 5 also made allegations of inappropriate touching and/or sexual comments.

12. The Registrant was interviewed as part of the investigation and stated that his comments had been taken out of context and amounted to no more than “banter”. The Registrant vehemently denied any touching of Colleague 1 and stated that this was a “fantasy”. He also denied ever having touched Colleague 2 or Colleague 3 in the manner alleged.

13. In November 2017, before the investigation was concluded the Registrant resigned from his position at the Trust. The Registrant made a self-referral to the HCPC whilst suspended during the investigation.

Decision on Facts

14. The allegation was read out. In the absence of the Registrant, the Panel appreciated that it would have to decide each Particular. The Panel bore in mind the burden and standard of proof and considered each Particular separately.

15. The Panel first considered the witnesses who had given evidence. The HCPC called 3 witnesses;

• Colleague 1 – Allegation 1(a) in its entirety

• Colleague 2 - Allegation 1 (b) in its entirety

• Colleague 5 – Allegation 1(d) in its entirety

16. The Panel examined all of the evidence, carefully taking account of the responses given by the Registrant during the investigation by his employer. The Panel considered that all of the witnesses called for the HCPC were consistent and truthful. They gave evidence to the best of their ability, making allowances for the passage of time. They recognised when they were unable to remember specific details. The Panel considered all of the witnesses were fair to the Registrant and did not embellish or exaggerate. The Panel found their evidence to be persuasive and consistent with the documentary evidence.

17. In particular, the Panel considered Colleague 1 had a good recollection of events. He was a credible witness who did his best to answer all questions put to him. The Panel finds him to be a reliable witness on whose evidence considerable weight can be placed.

18. Colleague 2 was a balanced and credible witness who found some questions to be challenging emotionally, but who provided insightful and fair evidence throughout. The Panel considered that she was highly professional and helpful.

19. Colleague 5 gave open, reliable, credible and thoughtful evidence. She was honest and consistent, placing her established relationship with the Registrant to one side in describing his conduct.

20. The Panel also relied upon a large amount of written material put before it. This included copies of the investigation reports and interviews and contemporaneous emails and letters.

21. There was no further evidence from the Registrant but there was some response to the allegations in the interviews he gave as part of the internal investigation carried out by the Council and in the Pro-Forma returned to the HCPC.

22. The Panel then considered the individual Particulars.

Particular 1a (i) Proved

23. The Panel considered that Colleague 1 was clear in both his written and oral evidence that the Registrant had touched his genitals on more than one occasion. The Panel notes the Registrant’s denial in his response Pro-Forma to the HCPC and during the Trust’s investigation. However, the Panel prefers the evidence of Colleague 1 which it found to be both honest and compelling. Accordingly, the panel finds on the balance of probabilities that this allegation is proved.

Particular 1a (ii) - Proved

24. For the same reasons as set out in respect of Particular 1a(i) above, the Panel finds this allegation to be proved. Colleague 1 was credible and reliable in his evidence and his account to the Panel was consistent with his earlier accounts given during the course of the Trust investigation.

Particular 1a (iii) - Proved

25. For the same reasons as set out in respect of Particular 1a (i) above, the Panel finds this allegation to be proved. Colleague 1 was credible and reliable in his evidence and his account to the Panel was consistent with his earlier accounts given during the course of the Trust investigation.

Particular 1a (iv) - Proved

26. Colleague 1 provided a clear description based on a good recollection of events. He had reported the incident the next day in an email dated 29 September 2016. Colleague 1’s version of events was consistent with the hearsay evidence of Colleague 3 provided during the Trust investigation. The Panel has taken account of the Registrant’s denial but prefers the evidence of Colleague 1 and finds this particular to be proved.

Particular 1b(i) - Proved

27. In her oral evidence, Colleague 2 provided a clear description of this incident, remarking that it had upset her and was, she felt, wholly unacceptable. The Registrant, during the Trust’s investigation, admitted that he had made a sexual comment when Colleague 2 was leaning over the desk. He stated, “Colleague 2 was leaning over the desk and I did make a sexual comment….she looked at me and wen(sic) “oh Paul”, shook her head.” The Panel is satisfied that the events took place as alleged and finds this charge to be proved.

Particular 1b (ii) – Proved

28. During the Trust’s investigation, in response to the question: “Have you on frequent occasions asked her [Colleague 2] when are you leaving your husband?” the Registrant stated, “jovially yes, not in any kind of manner.”

29. Colleague 2’s written and oral evidence was clear that the question of when she would be leaving her husband was put to her repeatedly by the Registrant and she described this in her oral evidence as “tiresome”. The Panel finds that this particular is proved.

Particular 1b (iii) – Proved

30. The Registrant denied pinching Colleague 2’s bottom when asked about it during the Trust investigation. However, the Panel finds Colleague 2’s evidence that the incident did take place to be compelling and credible and rejects the Registrant’s version of events. This particular is found proved.

Particulars 1c (i), (ii) and (iii) – Not Proved

31. The Panel was unable to place any significant weight on the evidence offered by the HCPC in relation to Particulars 1(c) (i), (ii) and (iii). Colleague 3 did not attend the hearing to give oral evidence and consequently the Panel was unable to test the account she had given during the Trust’s investigation. In addition, the brief statement by Colleague 3 produced by the HCPC in evidence was neither signed nor dated. The Panel could not be satisfied that Colleague 3 agreed with the contents of the statement or considered the notes of her interview with the Trust to be an accurate reflection of what was alleged. The Panel could not be satisfied on a balance of probabilities that the incidents occurred as alleged and determined that the HCPC has failed to prove its case in respect of these particulars.

Particular 1(d) i – Not Proved

32. The Panel noted that the HCPC has offered no evidence in respect of this particular and therefore there is no basis upon which to find this allegation proved.

Particular 1 (d) (ii) – Not Proved

33. In her written statement, Colleague 5 said that she thought the Registrant made remarks about having a threesome, but added that she cannot be sure. In her interview during the Trust’s investigation she said, “…he’s probably joked about having like a threesome…”. In response to questions from the Panel Colleague 5 said that this was the sort of remark that the Registrant might make, but she could not recall a specific occasion when he had said it. In the circumstances the Panel cannot be satisfied on the balance of probabilities that the remark was ever made and finds this particular not proved.

Particular 1 (d) (iii) – Proved

34. This incident was witnessed by Colleague 1 who described it in detail in his written and oral evidence. This description was consistent with the evidence of Colleague 5, both in her oral and written evidence at this hearing and the evidence provided to the Trust investigation. When asked as part of that investigation, “..Does he simulate humping?”, Colleague 5 replied, “Yes, he probably has done actually.”

35. In his interview as part of the Trust investigation, the Registrant said, in relation to Colleague 5 that “…when there are no patients around we have messed about.” The Panel is satisfied that the events occurred as alleged and this allegation is found proved.

Decision on Misconduct

36. The Panel finds that the Registrant’s actions in respect of the facts found proved were both inappropriate and unprofessional, and fall seriously short of what would be proper in the circumstances.

37. Colleague 1 felt that he was being harassed and described how the Registrant’s touching of his genitals had been “physically painful”. Colleague 1 gave evidence that he was “absolutely disgusted” by the Registrant’s actions, that he had been left feeling “furious” and that he was undergoing the ordeal of giving evidence at this hearing “to see that this does not happen to anyone else.”

38. Colleague 2 described how the Registrant had “left me feeling physically uncomfortable.” She said that she was “shocked that he had done something physical to me.” She described herself as feeling “very cross”.

39. The Registrant’s actions caused both physical and emotional harm to his colleagues. The Panel finds that as a consequence of the Registrant’s actions he will have compromised his colleagues’ ability to focus on their work and that this will have created a risk of harm to patients in their care.

40. The Registrant’s actions were in breach of the Trust’s Prevention of Harassment and Bullying at Work Policy, which aims to “ensure that [employees] are treated with dignity and respect, and to enable [them] to work in an environment that is free from harassment and bullying by colleagues.”

41. The Panel finds that the Registrant is also in breach of standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics.

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

42. The Panel also finds that the Registrant is in breach of the following standards of proficiency for Operating Department Practitioners:

2.2 understand what is required of them by the Health and Care Professions Council

3.1 understand the need to maintain high standards of personal and professional conduct

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

9.2 understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team

9.5. understand and be able to apply psychological and sociological principles to maintain effective relationships

43. The Panel considered that these failings would be considered deplorable by fellow practitioners and individually and cumulatively amounted to serious misconduct.

Decision on impairment

44. Having determined that the matters found proved amounted to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel bore in mind the evidence given in this hearing, the submissions made by Mr Bridges, the advice of the Legal Assessor and the HCPTS practice note ‘Finding that Fitness to Practise is “Impaired”’.

45. The Panel considered the two component parts relating to impairment, the personal component and the public component. It first considered the personal component, whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

46. The Registrant has shown no meaningful evidence of insight into his misconduct. Throughout the Trust’s investigation he maintained that his actions amounted to no more than banter and he claimed that he chose his audience with care. He challenged colleagues’ accounts of events in relation to charges that have been found proved at this hearing and accused them of lying.

47. Whilst the Registrant’s actions are in theory capable of remediation, there is no evidence before the Panel to suggest that any remediation has been achieved. The absence of insight and remediation leads the Panel to find that there is a real risk of repetition of the misconduct.

48. The Panel next considered the four criteria identified by Dame Janet Smith in the 5th Shipman Report. As recognised above under statutory ground, the Registrant has, through his actions towards his colleagues, caused actual harm to those colleagues and a risk of harm to patients in their care. The risk of repetition previously identified satisfies the Panel that the Registrant is liable to repeat his misconduct in the future.

49. The Panel therefore determined that the Registrant’s fitness to practise is impaired on the basis of the personal component.

50. The Panel then looked to the public component of impairment. It notes the passage in the practice note of ‘Finding that Fitness to Practise is “Impaired”. It is important for Panels to recognise that the need to address the “critically important public policy issues” identified in Cohen - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that they cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, the Registrant has corrected matters or “learned his or her lesson”.

51. The Public would find the Registrant’s misconduct to be deplorable and that his actions have brought the profession into disrepute. Again, the risk of repetition means that the Registrant remains liable to do so in the future.

52. In breaching the Standards of Proficiency identified above, the Panel finds that the Registrant has breached fundamental tenets of his profession and that he is liable to do so again in the future.

53. The Panel finds that the Registrant’s fitness to practise is currently impaired on the grounds of public protection and in the wider public interest of maintaining public confidence in the profession and the regulatory process, and the declaring and upholding of proper standards of conduct and behaviour.

54. The public would expect the regulator to take action against a registrant where such misconduct is found and particularly where the allegation includes sexual impropriety by a registrant towards colleagues in the workplace. The Panel finds that the Registrant’s conduct was wholly unacceptable and not to be tolerated in the profession.

55. Taking all of these factors into account the Panel finds that the Registrant’s fitness to practise is also impaired on the basis of the public component in this case.

Decision on Sanction

56. The Panel considered the “Sanctions Policy” of the HCPC and accepted the advice of the Legal Assessor that a sanction should be the least restrictive that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.

57. The Panel identified the following mitigating factors:

• The Registrant’s claims, although unsupported by independent evidence, during the internal investigation concerning his health.

• No previous regulatory findings.

58. The Panel identified the following aggravating factors:

• The Registrant’s misconduct was repeated and sustained over a significant period of time.

• The Registrant’s actions were serious acts of verbal and physical sexual misconduct.

• Abuse of position of authority in relation to Colleague 1.

• The significant emotional impact of the Registrant’s actions on Colleagues 1 and 2.

59. The Panel finds that the aggravating factors in this case significantly outweigh the mitigating factors.

60. The Panel approached the ladder of sanction, beginning with the least restrictive. This case concerned serious issues and to take no further action would be entirely inadequate to protect the public and the public interest. It would be disproportionate and would fail to address the seriousness of the misconduct found proved.

61. The Panel considered whether to impose a Caution Order but decided that it was inappropriate as this was not an isolated instance of misconduct and there remains a significant risk of repetition. The Panel concluded that a Caution Order would not provide the necessary level of public protection and would not be sufficient to safeguard the wider public interest. As such, the Panel determined that a Caution Order would be neither appropriate nor proportionate

62. The Panel found that it would not be possible to formulate a workable Conditions of Practice Order in the specific circumstances of this case given the wide-ranging nature of the sexual misconduct. In addition, the Registrant had not engaged or shown any willingness to comply with any conditions. In any event the Panel did not consider that a Conditions of Practice Order would be proportionate to the seriousness of the misconduct and would not protect the public interest.

63. The Panel next considered the imposition of a Suspension Order. The Sanctions Policy suggests that a Suspension Order may be appropriate where the registrant has insight and the issues are unlikely to be repeated. The Panel was particularly concerned about the Registrant’s lack of insight and the previously identified significant risk of repetition. Moreover, the Panel finds that the Registrant has deep-seated attitudinal issues and there is no evidence that he has taken any steps to address these during the considerable period that has elapsed since these events. In the specific circumstances of this case a Suspension Order would not be an appropriate or proportionate sanction.

64. The Panel lastly considered the imposition of a Striking Off Order. The Sanctions Policy suggests at paragraph 131 that “A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the professions, and public confidence in the regulatory process.”

65. The Panel considered that the nature and gravity of the misconduct found proved, in particular the prolonged sexual misconduct, that caused actual harm to colleagues, together with the absence of meaningful insight was incompatible with continued registration. The Panel finds that a Striking Off Order was therefore the necessary and proportionate measure, both to protect the public and to uphold the wider public interest.

66. The Panel finds that a Striking Off Order is the only sanction that will achieve the overarching objectives and directs the Registrar to delete the Registrant’s name from the Register.

Order

ORDER: That the Registrar is directed to strike the name of Paul Alan Rudge from the Register on the date this order comes into effect

Notes

Interim Order:

1. There has been an application by the HCPC for an Interim Order to cover the appeal period.

2. The HCPC’s application is made on the 2 statutory grounds as follows:

• it is necessary for the protection of members of the public

• is otherwise in the public interest.

3. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition of the misconduct. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months to cover the length of any appeal.

 

Hearing History

History of Hearings for Mr Paul Alan Rudge

Date Panel Hearing type Outcomes / Status
23/09/2019 Conduct and Competence Committee Final Hearing Struck off