Mr Chika Okechukwu Iwuala

Preliminary Matters
Service
1. The Panel noted that written notice of these proceedings was posted to the Registrant at his registered address by first class post on 13 November 2020. In addition, the Panel took account of the note of a telephone conversation which took place on 7 December 2020 between the Registrant and Ms Knight, the HCPC Presenting Officer, wherein the Registrant confirmed that his address was the same as that recorded in the HCPC’s Register. The Panel determined that notice of this hearing had been properly served, in accordance with the provisions of Rule 6(1) of the relevant rules.

Proceeding in absence
2. The Panel heard the submissions of Ms Knight to proceed in the absence of the Registrant. It accepted the advice of the Legal Assessor and paid due regard to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”.  Ms Knight once again referred to the note of her telephone conversation with the Registrant on 7 December 2020 which referred to the Registrant querying what the review hearing was about; stating that he did not know whether he would attend the hearing and that he would have to think about it as “I have things to do on Tuesday”; subsequently saying that he did not know if he would attend the hearing or even submit written representations; and making no comment when it was pointed out to him that the Panel had the power to strike him from the Register.

3. Ms Knight went on to say that the Registrant, by not attending even when spoken to a week earlier and being reminded of his entitlement to engage with the proceedings, had voluntarily chosen not to attend.  She further reminded the Panel that he had not asked for any adjournment of the hearing, that the substantive order was due to expire on 15 January 2021, and therefore needed to be reviewed before that date.  

4. The Panel decided to proceed in the Registrant’s absence. It noted that: he had been spoken to by Ms Knight a week before the hearing and had therefore been reminded of its existence; he had not attended the previous hearing in December 2019 and since that time had not initiated any communication with the HCPC; he had not asked for any adjournment; and that the substantive order was due to be reviewed before its expiry on 15 January 2021. Taking account of all these factors and reminding itself that the Registrant had been given sufficient notice of the hearing, the Panel concluded that the Registrant had voluntarily absented himself from the hearing and that it would not be unfair to him to proceed in his absence.  

Background
5. The Panel took account of the background of this matter as set out in the previous panel’s determination dated 18 December 2019:

“On 30 January 2017 the Registrant started his career as an Operating Department Practitioner (ODP) at Whipps Cross Hospital as an Orthopaedics Scrub Practitioner.

He left this job on 8 May 2017.

The Registrant was employed with Lewisham and Greenwich NHS Trust (the Trust) as a Band 5 Anaesthetic ODP from 19 June 2017 until 25 August 2017. Upon commencement of employment and subsequent to his induction, concerns were raised about his level of competence following observations from colleagues who had worked with the Registrant in operating theatres. As a result of these concerns being escalated, on the 12 July 2017 the Registrants supernumerary period was extended from four to six weeks and he was given a more experienced mentor to assist his working through his competency workbook.

This mentor also raised significant concerns about the Registrant’s ability to practise autonomously and safety.

In particular, it is alleged that the Registrant did not prepare fluids appropriately nor did he demonstrate the required knowledge of medical equipment. Furthermore, he displayed a lack of skill in theatre by contaminating sterile areas and the surgeon with whom he was working.

Additionally, it is alleged that he displayed a lack of knowledge in how to check the anaesthetic machine and he was unaware of how to pre oxygenate a patient or pass a laryngoscope appropriately. Also, on at least one occasion he did not reconnect the pipeline oxygen supply and did not switch on the gas analyser. It is also alleged that he was unable to practise autonomously.

On 31 July 2017, at the Registrant’s first Formal Capability meeting, he disclosed that he had previously worked at Whipps Cross Hospital.

On 7 August 2017 at an investigation meeting with AB, the Registrant openly admitted that he had failed to mention this previous job in his application for employment with the Trust. He provided reasons for this failure to AB, which were recorded as:
• He worked as a scrub nurse there for two months;
• He did not enjoy his time whilst working at Whipps Cross and that is why he left;
• The role he applied for at Lewisham was an anaesthetic role; therefore he felt that a scrub role at Whipps Cross did not need to be included in the application;
• He made the assumption that he would not be able to get a reference from Whipps Cross because he had only worked there for 2 months.

Throughout he has always maintained that there was no question of dishonesty on his part in omitting this detail from his application form.

On 25 August 2017 the Registrant resigned from the Trust.”

6. The Panel further noted that the previous panel had found all the Particulars proved, with the exception of Particulars 1(c)(i) and 3, and that it had gone on to find that the facts found proved amounted to both a lack of competence and also misconduct, which grounds are, usually, mutually exclusive and pleaded as alternatives. The Panel noted the following paragraphs from the previous panel’s determination in relation to the issue of Grounds:

“44. With these submissions in mind and with consideration of all of the evidence in this case, the Panel’s judgement is as follows:
• The Registrant’s lack of competence was well below the standard expected of a Band 5 ODP, even one with limited experience.
• The proved shortcomings of the Registrant had the potential to put patient safety at risk - for instance, his contamination of sterile areas, his unawareness of how to pre oxygenate a patient, his failure to switch on a gas analyser and his ignorance of what to do with the fresh gas flow switch on the anaesthetic machine.
• The fact that the Registrant was unable to practise autonomously resulted in almost constant supervision which had the effect of managers and colleagues having to be taken off other more important work.

45. The Panel found that the Registrant fell short of the following ‘Standards of conduct, performance and ethics’:
Standard 3  work within the limits of your knowledge and skills

Standard 6 manage risk

46. The Panel also found that the Registrant fell short of the following ‘Standards of proficiency for ODPs’:
Standard 1 be able to practise safely and effectively within their scope of practice

Standard 2 be able to practise within the legal and ethical boundaries of their profession

Standard 3 be able to maintain fitness to practise

Standard 13  understand the key concepts of the knowledge base relevant to their profession

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

Standard 15.8   understand the nature and purpose of sterile fields, and the practitioner’s individual role and responsibility for maintaining them 

47. In the judgement of the Panel, the facts proved under Particular 1, which represent a fair sample of the Registrant’s work, amount to a lack of competence. It is plain to the Panel that the Registrant was incapable throughout his time at the Trust of being able to demonstrate many of the basic techniques expected of a Band 5 ODP. Thus the Panel is satisfied that the cumulative shortcomings of the Registrant were such as also to amount to misconduct.” 

7. The Panel pauses there to comment that it found the rationale of the previous panel’s decision somewhat difficult to follow and ambiguous.  It is aware that it cannot go behind that panel’s findings but it would make the observation that the previous panel appeared to be particularly concerned more with the Registrant’s lack of competence and not with his misconduct. It appeared to this Panel that, although misconduct was pleaded in the alternative in relation to Particular 1, the issues raised therein seemed to be more concerned with issues of competence rather than misconduct. The Panel is supported in this view by the previous panel’s observations in paragraph 53 of its determination, which states:

“53. In reaching its determination, the Panel considered the personal component. There is no evidence that he has shown any insight into his shortcomings. This, and other factors, including the lack of evidence of remediation, have persuaded the Panel that there exists a real risk of repetition of misconduct if the Registrant were permitted to return to unrestricted practice. The Panel has borne in mind the evidence of the Registrant’s senior mentor. She was quite shocked by his lack of competency [this Panel’s emphasis] which, to her mind, put him on the level of a first year student, 6 months into training. Equally the Panel was taken by the opinion of DR SE that “his lack of knowledge was extraordinary”. Dr AM in his evidence said that the Registrant “did not know what he was doing”.
 
8. The Panel also observes that, although the previous panel found Particular 2 (in respect of which only misconduct was alleged) proved, that panel made no subsequent specific reference to that finding, so this Panel found it difficult to ascertain whether Particular 2 had been taken into account when the previous panel reached its conclusions regarding misconduct as a whole.

9. Accordingly, although it was aware that it could not go behind the previous panel’s findings, this Panel considered that, where if there was any ambiguity in the previous panel’s determination, it should be resolved in favour of the Registrant. 

10. The Panel further noted that, when considering sanction, the previous panel stated, in the following paragraphs:

“…58. The Panel took into account the following mitigating and aggravating factors:
• The mitigating factors include the previous unblemished record of the Registrant and the fact that he has never sought to deny any of the factual Particulars that the Panel has found proved. The Registrant was described by Dr SE in her evidence as being “very nice and in no way rude or offensive”.
• The aggravating factors are the many examples of lack of competency [this Panel’s emphasis] in the Registrant’s role as an ODP at the Trust, encapsulated in the comment from Dr SE that “he did not seem to know what was going on and was not familiar with what was required of him”. These many shortcomings have the potential to compromise patient safety and also to call into question the reputation of his profession. Furthermore, as has been noted above, the Panel has not been provided with any evidence of insight, remediation or feelings of remorse by the Registrant…

61. In considering whether the case could be concluded with a Conditions of Practice Order, the Panel had regard to the advice of the Legal Assessor that conditions must be appropriate, measurable and verifiable. The picture that has been painted by the witnesses in this case is of a man whose incompetence is wide-ranging. [This Panel’s emphasis] In coupling this view with the silence of the Registrant as to what he has been doing over the last two years and four months, the Panel has determined that it could not formulate any appropriate conditions to meet the justice of this case. Such a course would also fail adequately to reflect the seriousness of the Registrant’s misconduct.

62. Accordingly, the Panel has considered that a Suspension Order for a period of 12 months is necessary and proportionate in this case. This is designed to protect the public interest and, in the view of the Panel, such an order would send out the appropriate signal to the profession. It will also provide the Registrant with an opportunity to remedy his failings.

63. Any future Panel, on reviewing this order, may be assisted by evidence from the Registrant that he has in the meantime done his best to learn from his errors. A reflective statement from the Registrant and evidence that he is keeping his Continuing Professional Development up to date would also be of help as would evidence as to what he has been doing since August 2017.

64.  In the circumstances of this case, the Panel considered that a Striking Off Order would be disproportionate.”

11. Ms Knight indicated in her submissions that, since the previous panel’s decision in December 2019, the Registrant had failed to engage with the HCPC and had not initiated any communication with it.  In particular, he had not, as suggested by that panel, submitted any reflective statement nor any evidence of Continued Professional Development (CPD). She submitted that, as the Registrant was not engaging and as he had apparently done nothing to address his failings, a Striking Off Order was the appropriate and proportionate sanction to impose. 

Decision 
12. The Panel noted the submissions of Ms Knight and considered the advice of the Legal Assessor, who confirmed that it was entitled to use the previous panel’s findings as a starting point and to presume impairment but to consider whether there had been any changes in the Registrant’s situation since the last hearing in deciding whether there was any current impairment. It also had regard to the HCPC’s Practice Notes entitled ‘Finding that Fitness to Practise is “Impaired”’ and “Review of Article 30 Sanction Orders”. The Panel was aware that, in determining whether fitness to practise is impaired, it had to take account of a range of issues which, in essence, comprised two components, namely the ‘personal’ component (the current competence and behaviour of the individual Registrant) and the ‘public’ component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession).  

Current Impairment
13. The Panel first considered whether the Registrant’s fitness to practise remained impaired. It concluded unhesitatingly that it was. In respect of the personal component, it noted that the Registrant had not engaged with the previous panel nor had he engaged with the HCPC subsequently or with this Panel. There was no information before this Panel to suggest that he had remediated his failings and consequently there remained a significant risk of repetition. The Panel therefore concluded that, as there was no apparent change in the Registrant’s situation since December 2019, he remained impaired in relation to the personal component. In respect of the public component, the Panel considered that a finding of impairment was necessary in the public interest; public confidence in the profession and the regulator would be undermined were a finding of impairment not made in these circumstances.

Sanction
14. The Panel paid careful regard to the HCPTS’ Sanctions Policy (appreciating that it was guidance and could be departed from for good reason and with explanations) and the advice of the Legal Assessor that it should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of behaviour.

15. The Panel approached its task by considering the sanctions in order of seriousness, staring with the least onerous sanctions. 

16. Given the nature of the Registrant’s failings and his lack of remediation, the Panel was of the view that it would not be sufficient to conclude this case by taking No Action or by referring it for Mediation. Neither course would serve to protect patients or maintain the standing of, and public confidence in, the profession.

17. The Panel then moved on to consider whether to conclude this case with the imposition of a Caution Order. It noted that a Caution Order was:
“…likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.”
 
18. The Panel considered that none of these criteria applied to the Registrant’s case and therefore concluded that a Caution Order was not an appropriate sanction in this case.

19. The Panel then moved on to consider a Conditions of Practice Order.  It noted the following paragraphs from the Sanctions Policy:
“106. A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met; and
• the registrant does not pose a risk of harm by being in restricted practice.

When might a conditions of practice order not be appropriate?

107. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process [the Panel’s emphasis] or where there are serious or persistent failings.”

20. Once again, the Panel took account of the lack of engagement by the Registrant and decided that the principles of paragraph 107 were determinative of this issue and that therefore a Conditions of Practice Order was inappropriate in this case.

21. This left the Panel with the sanctions of suspension (for a maximum of a further year) or of a Striking Off Order. The Panel decided that it was appropriate to consider these sanctions together.  It noted that:

“121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• 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 their failings.”

22. The Panel pauses there to comment that not all the listed criteria justifying a Suspension Order apply to this Registrant’s case; for instance, there is no evidence before it of any insight; it cannot be said that the issues are unlikely to be repeated; and there is no evidence before the Panel that the Registrant is likely to be able to resolve/remedy his failings.
    
23. The Panel further notes:
“130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):
• dishonesty (see paragraphs 56–58);
• failure to raise concerns (see paragraphs 59–60);
• failure to work in partnership (see paragraphs 61–62);
• discrimination (see paragraphs 63–66);
• abuse of professional position, including vulnerability (see paragraphs 67–75);
• sexual misconduct (see paragraphs 76–77);
• sexual abuse of children or indecent images of children11 (see paragraphs 78–79 and 87–89);
• criminal convictions for serious offences (see paragraphs 80–92); and
• violence (see paragraph 93).

131. 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 profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”
 
24. The Panel would comment that, although it is fair to say that none of the factors listed in paragraph 130 apply to the Registrant, it is arguable that most of the negative factors in paragraph 131 do apply. 

25. In reaching its decision the Panel reminded itself that, as there has been a finding by the previous panel that all the facts found proved amount to misconduct, it would be entitled to conclude this matter by striking off the Registrant since the two year limitation referred to in the second bullet point of paragraph 131 of the Sanctions Policy does not apply to the ground of misconduct.  Moreover, it is arguable that, given the Registrant’s lack of engagement and apparent disinterest in these proceedings, it would be futile to deal with the matter by a further period of suspension. 

26. However, the Panel is concerned about the ambiguous nature of the previous Panel’s findings as expressed in its determination of December 2019. It appears to the present Panel that a significant amount of emphasis was made in that determination specifically about the Registrant’s lack of competence compared with the very general comments about his misconduct. If, as appears to this Panel to be the case, the previous panel was more concerned with the Registrant’s lack of competence, this Panel considers that it would be inappropriate and unfair for it to exercise the ultimate sanction of Striking Off when the Registrant has only been suspended for one year. The Panel therefore concluded that the appropriate, fair and proportionate sanction in this particular case would be one of a further Suspension Order for a period of one year. This is the maximum period of suspension that could be imposed upon him, but it has the advantage of giving the Registrant sufficient time to remedy his failings, especially given that he may be hampered in doing so by the effects of the current pandemic.

27. The Panel wished to emphasise that if the Registrant fails to take this opportunity to preserve his registration with the HCPC, then the next reviewing panel might deem it inevitable that it exercises the “sanction of last resort” of a Striking Off Order. Accordingly, the future reviewing panel would be assisted by the Registrant not only submitting a reflective piece which indicates that he has gained insight into his failings but also evidence of ongoing CPD. Further, if he wishes to preserve his registration, it would assist the Registrant and the future panel that he engages in the process and attends any hearing.              

The Registrar is directed to suspend the registration of Mr Chika Okechukwu Iwuala for a further period of 12 months on the expiry of the existing order.

The Order imposed today will apply from 15 January 2021.

This Order will be reviewed again before its expiry on 15 January 2022.

History of Hearings for Mr Chika Okechukwu Iwuala