Mr James Germain

Preliminary Matters

Proof of Service

1. In support of the application, a skeleton argument dated 26 March 2020 was provided to the Panel. Ms Simpson, on behalf of the HCPC, submitted that service of notice of the hearing had properly been effected.

2. The background to this hearing is that the hearing was originally listed for 28 February 2020. However this hearing had to be cancelled for administrative purposes. The hearing was then re-listed for 3 March 2020. However that hearing was adjourned by the panel as it was not satisfied good service had been effected. The hearing was re-listed again for 1 April 2020.

3. Ms Simpson submitted that due to government recommendations on the COVID-19 pandemic, the Registrant was written to on 25 March 2020 and advised his hearing would be heard ‘on the papers’, and would be postponed to a later date. However, given that the order expires on 3 April 2020, that date had to be proceeded with for the HCPC to fulfil its statutory duty of protecting the public and reviewing the order before its expiry under Article 30 of the Health Professions Order 2001. The Registrant was therefore sent a new Notice of Hearing on 26 March 2020. This confirmed that the hearing would go ahead on the date scheduled, 1 April 2020, and would take place ‘on the papers’. This was sent electronically only, because the HCPC has closed its offices in the light of the current pandemic and employees are unable to go outside in order to send anything by post. Confirmation of the Registrant’s registered email address has been included in the bundle provided to the Panel.

4. The Panel was satisfied that notice of the hearing had been properly served by email and post on 4 March 2020 to the Registrant’s last known address. The Registrant has not stated that he wishes to appear pursuant to Rule 13(3) of the Rules. The Panel concluded that the HCPC’s letters of 25 and 26 March 2020 merely clarified both the date and nature of the hearing. The Panel is therefore satisfied that service of the Notice has taken place in accordance with the Rules.

Proceeding in the absence of the Registrant

5. Ms Simpson, on behalf of the HCPC, also applied in her skeleton argument for the hearing to proceed in the Registrant’s absence.

6. Ms Simpson reminded the Panel that it can proceed to hear the matter in the absence of the Registrant pursuant to Rule 11 of the Conduct and Competence Committee Procedure Rules, if satisfied that all reasonable steps have been taken to serve the Notice of Hearing on the Registrant in accordance with the HCPTS Practice Note on Proceeding in the Absence of the Registrant. A Panel must first consider whether notice of the proceedings have been served on the Registrant. The Panel must also have consideration of all the circumstances of the case when taking the decision to proceed in absence, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

7. Given the government recommendations on containing the current COVID-19 pandemic, the HCPC has decided to suspend all public hearings to protect the health and safety of its registrants and stakeholders. However, to ensure that it can continue to perform its statutory duties of protecting the public and maintaining the integrity of the register, the HCPC has arranged for this hearing to be considered ‘on the papers’. Therefore, the HCPC submitted that the Registrant has been given sufficient notice of the proceedings and reasonable steps have been taken to serve the notice which has been sent to his registered email address.

8. The Registrant has not made any application to adjourn, and has not responded to the various correspondence which has been sent to him asking whether he objects to the matter being heard ‘on the papers’. When the hearing was originally listed to take place orally, for example, the Registrant did not respond to any email or postal correspondence regarding his reviews, he did not attend the review on 3 March 2020, and did not answer any calls made to him.

9. Ms Simpson also submitted that the Registrant did not attend the Substantive Hearing, and “deliberately disengaged with the process” throughout the HCPC’s investigation, nor did he respond to any correspondence from his previous Agency, NHS Professionals. The Registrant appears to have entirely and deliberately disengaged from the HCPC fitness to practise investigation and process.

10. It is therefore the HCPC’s submission that the Registrant appears to have voluntarily absented himself from attending the hearing, and deliberately waived his right to attend. Ms Simpson submitted that no decision to adjourn this hearing would secure his attendance at any later date. Furthermore, as this is a mandatory review of the current order, it is in both the Registrant’s interests and in the public interest for a review of the statutory order to take place as scheduled. The consequences of not proceeding today would be that the order would lapse on expiry in two days’ time and the Registrant would be automatically restored to the HCPC Register in circumstances where it has not been determined that he is fit to return to practice.

11. The Panel heard and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution. He referred the Panel to the cases of R v Hayward, Jones & Purvis in the Court of Appeal ([2001] EWCA Crim 168), and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. He advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and the public interest. In that regard, the case of Adeogba was clear that, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

12. The Panel was satisfied that notice of this hearing was sent to the Registrant’s registered address by letter dated 4 March 2020. A copy of the notice was also sent to him by email on the same date. The Registrant had been informed of the date, time and original venue of the hearing and was subsequently informed that the case would be heard ‘on the papers’. The Panel considered that the HCPC had made all reasonable efforts to serve the notice on the Registrant in accordance with Rule 11 of the Rules, that he had been provided with the means of knowledge as to when and where this hearing was to take place.

13. In reaching its decision, the Panel has taken account of the following:
• Notwithstanding that the HCPC’s skeleton argument was only served on the Registrant by email on 27 March 2020, the Registrant has not responded to the application;
• The Registrant has not raised any objection to the case being heard ‘on the papers’;
• The Registrant has not stated that he wishes to attend the hearing nor has he applied for an adjournment;
• The Registrant has a history of non-engagement with the regulatory process.

14. Having done so, and having considered the submissions made, the Panel is satisfied that the Registrant has voluntarily absented himself. The Panel was satisfied that there would not be a significant risk of unfairness to the Registrant if it decided to proceed in his absence, and further recognised that there was a public interest in conducting a mandatory review of the Substantive Order currently in place prior to its imminent expiry. It has therefore decided to proceed in the Registrant’s absence.

Background

15. The Registrant was employed by the Sandwell and West Birmingham NHS Trust (“the Trust”) as an Operating Department Practitioner. The Trust alleged he falsified, between 17 September 2016 and 3 April 2017, staff rostering shift entries retrospectively. They alleged he did so under another person’s electronic username and password, without their consent. This resulted in the payment to the Registrant of 33 shifts, which were not worked, to the value of approximately £9,400.

16. The HCPC conducted an investigation and the Final Hearing took place between 2 - 5 September 2019. That panel (“the Substantive Hearing panel”) found that Particulars (1)(a)-(gg), that the Registrant entered 33 shifts on the e-roster system which he had not worked, were not found proven. It did, however, find that the Registrant had received payment of approximately £9,400 from the Trust for shifts which he had not worked, and that he did not inform his employer that he had been overpaid.

17. The Substantive Hearing panel found this was dishonest. It also found that the Registrant lent his Hospital ID Card to another individual, and failed to report the subsequent loss of that card to his employer. The Substantive Hearing panel determined that these acts amounted to misconduct. The Substantive Hearing panel considered the Registrant had demonstrated some insight and remorse for his actions in his written representations to the HCPC, and had stated during the Trust’s internal investigation process that he was both willing and able to pay the overpayments back in full. The Registrant also admitted all of the factual particulars found proven by the panel. They did not therefore consider his fitness to practise to be impaired on the personal component.

18. On the public component, the Substantive Hearing panel was satisfied this was a serious case, in which the Registrant had, by his dishonest behaviour, retained public money destined for use in the NHS. They therefore made a finding of current impairment in order to uphold proper professional standards and confidence in the profession. The Substantive Hearing panel imposed a Suspension Order for a period of six months, and recommended he provide to any future reviewing panel:
a. His attendance, in person or by telephone; and
b. Any character references and testimonials, dealing in particular with his probity and integrity.

19. Since the Substantive Hearing, the Registrant was written to by post to his registered postal address regarding his Substantive Review Hearing. He was also contacted by email on 12 February 2020 reminding him of the advice given to him by the Substantive Hearing panel. He was also called on 2 March 2020, on all three numbers the HCPC held on its systems for him. Both mobile numbers rang out as ‘invalid’. The third number rang, but there was no answer. The Presenting Officer left a voicemail, requesting a call back. The HCPC has received no correspondence from the Registrant since the Final Hearing, by post, email or telephone. He also did not attend his Review Hearing on 3 March 2020, which was adjourned by the panel at the hearing.

20. On 25 February 2020, the HCPC received an email from a concerned member of the public, and previous colleague of the Registrant. This individual identified that she was employed as an ODP at Worcestershire Acute Hospital Trust, and that the Registrant had worked there through an Agency after the date that he was suspended by the HCPC. This individual was not able to provide further information or evidence, nor was the Trust in question, as the Registrant worked there through an Agency.

21. The HCPC, however, made a request for information to NHS Professionals, the Agency with whom the Registrant allegedly worked during the period of his suspension. NHSP confirmed on 12 March 2020 that the Registrant worked as an ODP, via NHSP, at Worcestershire Acute Hospitals NHS Trust after the date of his suspension on 5 September 2019. He apparently worked a number of shifts between 5 September and 15 November 2019 at the Alexandra Hospital. The Registrant only stopped working at that point because NHSP received notification (via an ‘HCPC alert match’) that he had been suspended. They therefore excluded him from working any further shifts on 18 November 2019, and terminated his registration with NHSP on 3 February 2020.

22. NHSP wrote to the Registrant on a number of occasions regarding this, but received no response. NHSP provided the HCPC with evidence of his shifts worked.

HCPC Submissions
23. Ms Simpson submitted that the Panel’s role is to review the matter on the basis of the evidence available today, and decide whether the Registrant’s fitness to practise remains impaired, and if so, to decide what the appropriate sanction should be.

24. She reminded the Panel that under Article 30(1) of the Health Professions Order 2001, the Panel may:
a. extend the Suspension Order;
b. make any order it could have made at the time of the original order being imposed or;
c. replace the Suspension with a Conditions of Practice Order, with which the Registrant must comply if he resumes practice.

25. She submitted that as this is a case based on a finding of misconduct, all available sanctions are available to the Panel, up to and including a Striking Off Order.

26. Ms Simpson further submitted that if this hearing were listed by way of an oral hearing, the HCPC would have requested a Striking Off Order be made in light of:
a. the lack of engagement from the Registrant throughout the investigatory process, with the Substantive Hearing and now with the Substantive Review Hearing, and;
b. crucially, evidence that the Registrant continued to practise whilst subject to a Suspension Order prohibiting him from doing so.

27. She submitted that any insight or remedial work done by the Registrant to allow the Panel to determine he was not impaired on the personal ground, has been undone. These additional matters highlight that there remain serious concerns in relation to the Registrant’s honesty, integrity and probity, as raised in the original findings.

28. She reminded the Panel that the purpose of the original Suspension Order was to maintain public confidence in the profession and the regulatory process, and to uphold and maintain proper standards of behaviour. Given that the Registrant did not abide by that Suspension Order, and only ceased to practise when compelled to by his Agency, it is the HCPC’s position that failing to make a finding that the Registrant is currently impaired would be seriously detrimental to the public interest, the maintenance of professional standards and would seriously undermine confidence in the reputation of the profession and the regulatory process.

29. However, she submitted that the Registrant had not had the opportunity to attend the hearing in person and to make any representations orally to the Panel in light of the government restrictions imposed because of the current COVID-19 pandemic. Although it does appear that he would not have attended in any case, given the lack of engagement detailed above, the HCPC considered it would be fairer and proportionate for the Panel to impose a further period of suspension for 12 months. She informed the Panel that if a further Suspension Order is imposed, once the effects of this pandemic are such that the HCPC is able to list hearings orally again, the HCPC will be calling for an early review and requesting that a future panel strike the Registrant’s name from the register in line with the submissions above.

Registrant’s submissions
30. No submissions have been provided either by, or on behalf of the Registrant.

Legal advice
31. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

32. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:
“Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired by reason of his misconduct in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the social work 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 profession?
d) has in the past acted dishonestly and/or is liable to act dishonestly in the future.”

33. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired, then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor advised the Panel that, if it determined that the Registrant’s fitness to practise remained impaired, any of the options under Article 30 of the 2001 Order could be exercised by the Panel. He also advised the Panel that it should bear in mind the principles of fairness and proportionality and have regard to the Sanctions Policy document issued by the HCPC. He reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or otherwise would be in the public interest.

Panel’s decision
34. The Panel accepted the advice of the Legal Assessor. The Panel has also had regard to the HCPTS’s Practice Note on Fitness to Practise Impairment. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Simpson. The Panel considered that this required the Registrant to demonstrate both developed insight and remediation of his failings for him to be considered suitable for return to unrestricted practice.

35. There is no evidence or information before the Panel today that could satisfy it that the Registrant’s fitness to practise is no longer impaired. The Registrant did not fully engage with the Final Hearing nor has he engaged in the review process. There is no indication to suggest that the Registrant has started the remediation process including whether he has reflected on his past failings or by taking any of the steps suggested by the previous panel. Indeed, the Panel noted that there was evidence before it that the Registrant had continued to practise as an Operating Department Practitioner despite a Suspension Order being in place. He was only prevented from working as an Operating Department Practitioner when his employer was alerted by the HCPC of his suspension. In the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the personal component of impairment.

36. The Panel concluded that there was no information before it that could lead it to conclude that there was not an ongoing need for a restriction on the Registrant’s practice. In those circumstances, it concluded that public confidence in the profession and in the regulatory process would be undermined if the Registrant were able to practise without restriction.

37. In the light of all of the above, the Panel determined that the Registrant’s fitness to practise also remains impaired on the public component.

38. The Panel then went on to consider what the appropriate and proportionate sanction should be, starting with the least restrictive. It bore in mind that the purpose of a sanction was not to be punitive, although a sanction may have that effect.

39. The Panel also bore in mind that its over-arching objective is:
• to protect, promote and maintain the health, safety and wellbeing of the public;
• to promote and maintain public confidence in the operating department practitioner profession; and
• to promote and maintain proper professional standards and conduct for members of the profession.

40. It had regard to the paragraphs 56 and 57 of the Sanctions Policy issued by the HCPC, noting the categorisation of matters of dishonesty as serious cases.

41. The Panel first considered taking no action but was satisfied that the Registrant’s failings were so serious that the public interest considerations could not be met by such an outcome. The Panel was not satisfied that there would be no risk to the public, or to public confidence in the profession by taking no action.

42. Given the Panel’s findings, it was also not satisfied that mediation was an appropriate sanction given that the particular circumstances of this case make such an outcome irrelevant.

43. The Panel next considered whether to impose a Caution Order in light of paragraph 101 of the Sanctions Policy. However it concluded such an order would not be sufficient to protect the public, nor would be in the public interest given that the Registrant’s failings were neither isolated, minor, nor limited in nature. Neither outcome restricted the Registrant’s practice and would therefore not adequately protect the public or safeguard the public interest.

44. The Panel next considered whether to impose a Conditions of Practice Order. It had regard to paragraph 106 of the Sanctions Policy but concluded that it would neither be appropriate nor proportionate given the nature of the misconduct found proved relating as it did to dishonesty, and not to matters of competence. In the circumstances, it concluded that it could not formulate appropriate conditions to address the Registrant’s dishonest behaviour, particularly given the Registrant’s lack of engagement and lack of demonstrable insight. The information before the Panel is such that the Panel cannot be satisfied that the Registrant is willing or able to comply with any conditions that may be imposed. Not only has the Registrant not engaged with these proceedings, but there was also evidence that the Registrant had failed to comply with the current restriction on his practice by working when subject to a Suspension Order.

45. The Panel next considered extending the existing Suspension Order. In doing so, it has had regard to paragraph 121 of the Sanctions Policy. The Panel noted that the Registrant has not engaged in the regulatory process to date, and has not availed himself, throughout that process, of the opportunity of demonstrating that he wished to return to practice. Similarly, there was no evidence before the Panel to demonstrate that that the Registrant had developed insight or taken steps to address his failings such that the Panel can be satisfied that it was appropriate for the Registrant to return to unrestricted practice.

46. However, the Panel was also mindful of the particular circumstances in which this hearing on the papers was taking place and the submissions made in that regard on behalf of the HCPC, particularly in relation to whether to impose a Striking Off Order at this stage. In all the circumstances, notwithstanding the Registrant’s non-engagement, the Panel nevertheless concluded that the appropriate and proportionate outcome, at this point in time, was to extend the Suspension Order for a further 12 months. This was considered an appropriate period of time given the current government restrictions on movement, noting that the HCPC propose applying for an early review once the restrictions have been lifted. However, that is not to say that the position will remain the same at the end of this further period of suspension if there is a continuing lack of engagement by the Registrant and an inability or unwillingness on his part to address his shortcomings. This, the Panel hoped, would be a sufficient period of time to allow for the matter to be relisted for an oral hearing once the current COVID-19 pandemic no longer prevented such a hearing taking place.

47. The Panel repeats the suggestions of the Substantive Hearing panel that a reviewing panel might be assisted by the following:
• The Registrant’s attendance at the review hearing (even if by telephone);
• Any character references or testimonials, dealing in particular with his probity and integrity.

The Registrar is directed to suspend the registration of Mr James Germain for a further period of 12 months upon the expiry of the current order.

The order imposed today will apply from 3 April 2020.
This order will be reviewed again before its expiry on 3 April 2021.

History of Hearings for Mr James Germain