Mrs Sharon Forsyth

Profession: Operating department practitioner

Registration Number: ODP12091

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/12/2020 End: 17:00 15/12/2020

Location: Virtual hearing, Video conference

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

(As amended on day 1 of the hearing, namely, 14 December 2020)

As a registered Operating Department Practitioner (ODP12091) your fitness to practise is impaired by reason of misconduct. In that:

1. On or around 17 May 2018, you submitted by email to your employer Statements of fitness to work dated 3 April 2018 and 11 May 2018 that;

a) Were altered Statements of fitness to work that you had previously submitted in January 2018, in that you had changed the dates by hand;

b) You purported these statements to be from your General Practitioner (GP), when this was not the case.

2. Your conduct in relation to allegations particulars 1a) and/or 1b) above was dishonest

3. The matters set out in allegations 1 and 2 above constitute misconduct.

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

Finding

Preliminary Matters

Service

1. The Panel was satisfied that a Notice of the Hearing had been sent to the Registrant by an email dated 24 September 2020, sent to her email address held by the HCPC.  This gave notice of the hearing date and informed the Registrant that the hearing was to be a virtual hearing. The Panel had sight of a confirmation of delivery email dated 24 September 2020.

2. In addition to the Notice of Hearing, the Hearings Officer had sent an email to the Registrant dated 8 December 2020 and had also sent her the link to attend the virtual hearing.  There had been no response to either from the Registrant.

3. The Panel was satisfied that there had been proper service of the notice of this hearing in accordance with the requirements of Rule 6 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”). 

Application to proceed in the absence of the Registrant

4. Mr Bridges applied on behalf of the HCPC to proceed with the hearing in the absence of the Registrant.    

5. Mr Bridges informed the Panel that the HCPC had received no response from the Registrant to the Notice of Hearing. Since that date, a number of attempts had been made to contact the Registrant, but there had been no further response from her. There was no request for an adjournment. 

6. Mr Bridges submitted that in the absence of any engagement from the Registrant, the Panel should conclude that she had voluntarily absented herself and it was in the public interest for the hearing to proceed today. 

7. The Panel considered the submissions on behalf of the HCPC.  It accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Note of September 2018, Proceeding in Absence, which sets out guidance from the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162.  Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.  

8. The Panel was satisfied in accordance with Rule 11 that the HCPC had made all reasonable efforts to inform the Registrant of the details of the hearing scheduled for today and to inform her of her right to participate in the hearing and be represented.  She was informed of the Panel’s power to proceed in her absence and of the sanctioning powers available to the Panel, should the Allegation be found proved. The HCPTS hearing officer had also attempted to contact the Registrant by email on 8 December 2020, but received no response. 

9. The Registrant had not communicated with the HCPC since 28 November 2018, at an early stage in the HCPC’s investigation.  The Registrant had not responded to any of the HCPC’s further communications. The Panel concluded that an adjournment to a future date would not serve any useful purpose.   The Panel was satisfied that the Registrant had voluntarily absented herself from the hearing and waived her right to attend. 

10. The Panel was mindful of the public interest in the fair and expeditious resolution of regulatory cases, as described in the case of Adeogba, and of the readiness of the HCPC’s two witnesses to proceed today.  The Panel was satisfied it was fair and in the public interest to proceed with the hearing in the Registrant’s absence.

Documents

11. The Panel received and have read a pdf of the HCPC hearing bundle, which comprised 108 pages, and a small bundle of service documents.   

Application to Amend the Allegation

12. Mr Bridges applied to amend the Particulars of the Allegation.  The Allegation, showing the proposed amendments in bold, is set out below:

“As a registered Operating Department Practitioner (ODP 12091) your fitness to practise is impaired by reason of misconduct in that:

1. On or around 17 May 2018, you forged Statements of fitness to work from your GP covering the period between 03 April 2018 and 18 June 2018 submitted by email to your employer Statements of fitness to work dated 3 April 2018 and 11 May 2018 that;

a. were altered Statements of fitness to work that you had previously submitted in January 2018, in that you had changed the dates by hand;

b. You purported these statements to be from your General Practitioner (GP) when this was not the case.

2. On 17 May 2018 you submitted by email, the Statements of fitness to work in allegation 1 to Western Sussex hospitals.

3 2. Your conduct in relation to allegations particulars 1a and 1b 2 above was dishonest.

4 3. The matters set out in allegations 1 and 2 and 3 above constitute misconduct

5 4. By reason of your misconduct your fitness to practise is impaired.

13. The Registrant was given notice of the proposed amendments in a letter from the HCPC dated 1 June 2020.  The HCPC had received no comment on, or objection to, the proposed amendments from the Registrant. 

14. The Panel took advice from the Legal Assessor. The Panel considered that the amendments sought were a re-formulation of the Particulars of the Allegation as initially put to the Registrant.  They did not substantively change the Allegation or extend its scope, but separated out the factual particulars from the Allegation of dishonesty.  The Panel was satisfied that no unfairness or prejudice would be caused to the Registrant, who had been given ample notice of the application and had not notified the HCPC of any objection.

15. The Panel therefore determined that it was appropriate for the amendments to the Allegation to be made.

 

Background

16. The Registrant was employed by Western Sussex Hospitals NHS Foundation Trust (“the Trust”) as a Band 6 Operating Department Practitioner from October 2011 until June 2018.  She worked at St Richard’s Hospital and dealt with all specialties, including patients needing both urgent and elective procedures. 

17. The Registrant was on long-term sickness absence from January 2018 and was being managed under the Trust’s Health and Wellbeing Policy.  This involved the Registrant's line manager, RS, Band 7 Team Leader, meeting with her regularly to discuss her health issues and absence from work.  During her absence, the Registrant submitted Statements of Fitness for Work (“Fit Notes”) which identified the health condition which was the reason for her absence. 

18. The Trust held a Final Stage Formal Sickness Meeting on 21 March 2018, which the Registrant did not attend.  Following this, the Registrant was referred to Occupational Health and an appointment was scheduled for 17 April 2018.  The Registrant did not attend the appointment. 

19. In April 2018, the Registrant submitted a letter of resignation to the Trust.  Subsequently, in May 2018, queries arose over the validity of two Fit Notes submitted by the Registrant dated 3 April 2018 and 11 May 2018. The concern was that these Fit Notes appeared be altered versions of the Notes she had obtained from her GP in January 2018 and they purported to cover her absence in April and May 2018.

20. The Trust referred its concerns regarding these two Fit Notes to the NHS Counter Fraud Service for investigation and subsequently referred the Registrant to the HCPC on 8 August 2018.  


The HCPC’s case

Witness RD

21. RD is the Care Group Manager for Trauma and Orthopaedics at St Richard’s Hospital. Previously, from March 2017 to December 2018, he was Theatre Services Manager for the Trust and had overall responsibility for the theatre staff. 

22. RD explained the background and produced the correspondence relevant to the matter.  He told the Panel that he chaired the Final Stage Formal Sickness Meeting under the Trust’s Health and Well-being Policy on 21 March 2018 and that RS, who was the Band 7 Team Leader and the Registrant’s Line Manager, presented the management case.

23. RD explained that the Registrant did not attend the meeting, but submitted a personal statement in which she stated that she was under investigation for certain health conditions.  She also referred to incidents at work which she had not previously mentioned. 

24. RS raised a query with the Registrant relating to not having any Fit Notes for the period from 3 April 2018.  He wrote to the Registrant on 10 May 2018.

25. On 17 May 2018, the Registrant sent an email to RD and to RS attaching photos of Fit Notes apparently dated 3 April 2018 and 11 May 2018. She stated that these Fit Notes were duplicates and were marked as such by the receptionist at the GP practice. The Registrant also said that copies had also been posted to RD and RS. However, RD told the Panel he did not believe these were ever received by the Trust. 

26. The two Fit Notes were sent to the Trust’s HR team in order to process the Registrant’s pay. A member of the HR team, RM, raised concerns about the Fit Notes. It appeared that the dates had been blanked out and different dates handwritten over them.  Further, the unique identifier numbers at the foot of the forms were noted to be the same as those on the Fit Notes submitted by the Registrant in January 2018. The authentic Fit Notes had been fully printed, rather than handwritten. RD confirmed that the matter was referred to the NHS Counter Fraud Service for investigation.

27. RD explained that he made a number of attempts to contact the Registrant to discuss these matters with her but was unsuccessful.  In a letter dated 3 July 2018, RD informed the Registrant that if he did not hear from her by 13 July 2018, the Trust would have to reclaim the monies paid to her since 3 April 2018 and would be referring the case to the HCPC. The monies had never been repaid.

28. RD also told the Panel that in the period during which he had worked with the Registrant he had no concerns regarding her clinical practice and found her to be helpful.  

Witness HG

29. HG was employed from December 2016 as an Assistant Manager at RSM UK. She worked in the Southern Fraud Team and was the local counter fraud specialist for several NHS trusts, including the Trust.

30. HG explained that the Registrant’s case was referred by RM, HR Adviser at the Trust, on 22 May 2018. During her investigation, HG had reviewed the Fit Notes dated 11 January, 17 January, 3 April and 11 May 2018.  HG contacted the Registrant’s GP Practice and sent copies of these Fit Notes. 

31. HG told the Panel that on 24 May 2018, the GP Practice informed her that Dr G had reviewed the Fit Notes. She was told that Dr G said that the notes dated 11 and 17 January 2018 were genuine. The notes dated 3 April and 11 May 2018 appeared to be fraudulent. HG observed on the copies that there appeared to be overwriting and smudging in parts. 

32. HG confirmed that the long “unique identifier numbers” at the bottom of the Fit Notes are indeed unique to each individual Fit Note which is issued.  HG confirmed, by reading them out to the Panel during her evidence, that the number of the genuine Fit Note dated 11.01.18 (Exhibit 3) was the same as that on the photo of the Note submitted by the Registrant dated 03.04.18 (as seen in Exhibit 15). HG further confirmed that the number of the genuine Fit Note dated 17.01.18 (Exhibit 4) was the same as that on the photo of the Note submitted by the Registrant dated 11.05.18 (as seen in Exhibit 15). HG also told the Panel that whilst some GP practices would prepare printed forms and others would complete the forms manually, in her experience, GP practices tended to be consistent in their practice. 

33. HG said that she was subsequently informed that the Assistant Director of Finance at the Trust did not require further investigations to be undertaken and HG was not required to produce a formal investigation report. 


The Registrant’s case

34. No evidence or submissions had been received from or on behalf of the Registrant.

 

Legal Advice at the facts stage

35. The Legal Assessor advised the Panel that the burden of proof is upon the HCPC.  The standard of proof in HCPC proceedings is the civil standard, the balance of probabilities. This means in order to find a fact proved, the Panel must be satisfied it is more likely than not that it occurred.

36. The Legal Assessor drew the attention of the Panel to the test for dishonesty as set out in the case of Ivey v Genting Casinos (UK) Ltd. t/a Crockfords [2017] UKSC 67. 


Decision on facts

37. The Panel considered the submissions of Mr Bridges and accepted the Legal Assessor’s advice. In the absence of any admissions from the Registrant, the Panel treated the Allegation as denied.

38. The evidence of fact came from the HCPC witnesses RD and HG and the documents themselves. The Panel found both witnesses RD and HG to be clear and consistent in their evidence. 

39. HG gave hearsay evidence concerning information she had been given by the GP practice. The Panel gave weight to HG’s evidence, which was obtained in the course of a formal investigation in her professional capacity as an Assistant Manager in the Southern Fraud Team and as the local counter fraud specialist for the Trust. HG produced the email from the GP Practice which confirmed that the GP Dr G had reviewed the Fit Notes and advised the those dated 3 April 2018 and 11 May 2018 appeared to be “fraudulent”.

40. The Panel found it significant that on the later, photographed, Fit Notes the identifier numbers, which it had heard were unique to each individual form, were the same as those on the genuine Fit Notes. The Panel concluded this clearly indicated that these copies were altered versions of the original notes.
 
41. In respect of Particulars 1a and 1b, the Panel was satisfied that on the balance of probabilities, the Registrant submitted to her employer Fit Notes dated 3 April 2018 and 11 May 2018 which were altered versions of those she had previously submitted in January 2018. The Panel was further satisfied, on the balance or probabilities, that the Registrant had changed the dates on the Fit Notes by hand. The Panel gave weight to the evidence from the GP Practice that it would not do that.

42. For completeness, the Panel considered the Registrant’s account in her email to the HCPC of 28 November 2018, although it gave little weight to this as the Registrant had not attended the hearing to give this evidence to the Panel and it was not sworn evidence. The Panel found the Registrant's account that a temporary receptionist working at the GP practice would have manually altered these important formal documents in this manner and provided them to a patient to be highly improbable. 

43. The Panel was satisfied that the Registrant submitted these altered Fit Notes to her employer under cover of her email of 17 May 2018. In so doing, she clearly represented them as having been obtained legitimately from her GP Practice. The Registrant was aware that her employer required her to provide the Statements from her for the relevant period in order to process and pay her salary.

44. The Panel found the facts in Particulars 1a and 1b proved.  

45. In respect of Particular 2, the Panel was satisfied, based on its findings of fact in Particulars 1a and 1b, that that the Registrant’s actions were dishonest.  She submitted the two altered Fit Notes to her employer and in so doing, she represented them as genuinely issued by her GP practice. She provided the Fit Notes in response to her employer’s request and did so in order to obtain payment of her salary. The Panel was satisfied that the Registrant’s actions were dishonest applying the objective standards of ordinary, decent people. In this case, the Panel was further satisfied that the Registrant must have appreciated that what she did was dishonest.

46. The Panel found dishonesty as alleged in Particular 2 proved.


Decision on Ground

47. The Panel considered the submissions of Mr Bridges and accepted the advice of the Legal Assessor. The Panel applied its own judgement in deciding whether the facts found proved amounted to misconduct.

48. The Panel considered that the Registrant’s dishonest conduct in submitting altered Fit Notes to her employer was serious.  She altered official forms certifying her entitlement to paid sickness absence.  In submitting the altered Fit Notes to her employer as if they were genuine, the Registrant sought to deceive her employer and she did so in order to obtain a financial benefit for herself, namely continued payment of her salary for the period in question.

49. A finding of dishonesty is a serious matter for an HCPC registered professional. The Panel concluded that the Registrant’s actions breached HCPC Standard of Conduct Ethics and Performance 9, “Be honest and trustworthy”.

50. The Panel was satisfied that the Registrant’s actions fell far short of the standard expected of a registered Operating Department Practitioner and amounted to misconduct.


Decision on Impairment

51. The Panel considered the submissions of Mr Bridges on behalf of the HCPC and accepted the advice of the Legal Assessor.  The Panel referred to HCPTS Practice Note, Fitness to Practise Impairment (December 2019).

52. The Panel considered the issue of impairment in the light of all the information known to it. The Registrant had not engaged with the HCPC process and, as far as was known based on her response at the time of the Trust’s investigation, she denied the Allegation.  She had not provided any information to the Panel to demonstrate any acknowledgment of her actions or any remorse. Dishonesty is difficult to remedy and the Registrant had not provided evidence of any attempt to do so. 

53. The Registrant had not demonstrated any insight into the misconduct and the Panel therefore concluded that there remained a risk of repetition.  The Panel found the Registrant’s fitness to practise is currently impaired in respect of the personal component.

54. The Panel also found impairment in respect of the public component of impairment.  The Panel concluded that members of the public would be concerned if a Registrant who had dishonestly submitted altered formal documents to her employer, and represented them as being from her GP, were not found to be impaired. The Panel took the view that public confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made in this case. 

55. The Panel therefore concluded that the Registrant’s fitness to practise was currently impaired in respect of both the personal and public components of impairment.  

 

Decision on Sanction
 
56. Mr Bridges addressed the Panel on the issue of sanction. He did not propose a particular sanction in this matter, but referred the Panel to relevant sections of the HCPC Sanctions Policy of March 2019.

57. Mr Bridges referred to the authority in the case of Parkinson v NMC [2010] EWHC 1898, in which it was stated that a nurse who has acted dishonestly who does not attend before the panel and demonstrate remorse, a recognition that the conduct was dishonest and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient course and impose a suspension rather than erasure.  

58. No submissions on sanction had been received from the Registrant.

59. The Panel received and accepted the advice of the Legal Assessor. The Panel was aware that the purpose of a sanction is not to be punitive, though a sanction may have a punitive effect. The Panel bore in mind that its primary function at this stage was to protect the public, while reaching a proportionate sanction, taking into account the wider public interest and the interests of the Registrant. The Panel referred to the HCPC’s Sanctions Policy and applied it to the Registrant’s case on its own facts and circumstances.

60. The starting point for the Panel was that the Registrant’s misconduct was serious, involving a finding of dishonesty.  She had not engaged with this hearing, hence the Panel had no up to date information about the Registrant’s current employment or personal circumstances.

61. The Panel first considered the mitigating and aggravating factors present in the case.
 
62. The Panel identified the following aggravating factors:

• The failure of the Registrant to engage with the HCPC process means that there is no information by way of explanation, acknowledgement, remorse, remediation or insight before the Panel;

• The Registrant’s actions were a deliberate and planned course of conduct which involved altering a formal document, seeking to deceive her employer and also implicating the GP practice;

• The Registrant acted for her own personal financial benefit.

63. The Panel identified the following mitigating factors:

• The Registrant has not previously been the subject of any regulatory findings;

• The dishonest conduct was an isolated episode.

64. The Panel referred to the HCPC Sanctions Policy in deciding what sanction, if any, should be applied.  The Panel addressed the factors set out as to the appropriate sanction where dishonesty has been found, at paragraphs 56 to 58.

65. The Panel was also mindful of the guidance in the case of Parkinson v NMC, as drawn to its attention by Mr Bridges.

66. The Panel took a proportionate approach and considered the available sanction in ascending order of seriousness:

Mediation

This was not appropriate, as the issues found proved were too serious to be addressed by means of mediation and the Registrant was not engaging with the HCPC;

No Further Action

Given the risk of harm to the public interest and the finding of dishonesty, the matter was too serious for no further action to be appropriate;

Caution

The factors indicating that a Caution Order may be appropriate were not present.  The dishonesty issue was not minor in nature. The Panel had no evidence of insight or remediation and was not reassured that the risk of repetition was low.  The Panel also considered that a Caution Order would be insufficient to mark the seriousness of the Panel’s findings and to maintain the confidence of the public and the profession.

Conditions of Practice Order

The Panel did not consider this was a case in which conditions of practice were appropriate. There was no indication that the Registrant would be willing to comply with conditions.  Further, it was difficult to formulate conditions which could address the finding of dishonesty.  The Panel decided that a Conditions of Practice Order would not be effective in marking the seriousness of the findings, nor would such an order protect the public interest.     

Suspension

The Panel carefully considered whether a period of suspension would be an adequate response in this case. In so doing, the Panel referred to the HCPC Sanctions Policy as to when a Suspension Order is appropriate, at paragraph 121. The Panel noted that there is no evidence that the Registrant has insight, it is not reassured that the issue is unlikely to be repeated and there is no evidence that the Registrant is likely to be able to resolve or remedy her misconduct. The Panel concluded that a Suspension Order would not be sufficient or appropriate.

Striking Off Order

The Panel went on to consider whether the ultimate sanction, a striking off order, was required in this case. 

The Panel was mindful of the Sanctions Policy at paragraph 58 which notes that there are different forms and degrees of dishonesty and that the sanction needs to be considered in an appropriately nuanced way.  The Panel considered the factors in paragraph 58.  Whilst this was a single episode of dishonesty, it involved a deliberate course of conduct, in which the Registrant took an active role.  There had been no admission or acknowledgement of the dishonest conduct and there were limited mitigating factors present.  

67. In these circumstances, the Panel concluded that a Striking Off Order was the appropriate and proportionate sanction which would protect the public interest and demonstrate the seriousness of the matter to the profession and the public.

Order

Order: The Registrar is directed to strike the name of Mrs Sharon Forsyth from the HCPC Register from the date this Order comes into effect.

Notes

Interim Order

Application for an Interim Order

1. The Panel first considered Mr Bridges’ application to proceed in the Registrant’s absence.  He confirmed that the position had not changed since his application at the beginning of this hearing, in that there had been no new contact from the Registrant.  He made his application in the same terms. 

2. The Legal Assessor confirmed her earlier advice.  The Panel noted that the Notice of Hearing dated 24 September 2020 put the Registrant on notice that an application for an interim order may be made if the Allegation was found proved. The position regarding the Registrant’s attendance had not changed and the Panel agreed to proceed with the application in the Registrant’s absence. 

3. Mr Bridges made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period, on the ground that it was necessary for the protection of the public and was otherwise in the public interest.

4. The Panel accepted the advice of the Legal Assessor. It bore in mind that an interim order in these circumstances is discretionary.  The Panel must consider whether an interim order is required, applying the test set out in Article 31(2) of the Health Professions Order 2001, and if it so decides, must act proportionately. This means balancing the public interest with the interests of the Registrant, and imposing the lowest order which will adequately protect the public.

5. The Panel was referred to the guidance in respect of immediate interim orders in the Sanctions Policy and the HCPTS Practice Note, Interim Orders (September 2018). 

6. The Panel considered the issue of proportionality and balanced the interests of the Registrant with the public interest. The Panel had determined to impose a substantive Striking Off Order and, given the gravity of the issue and the sanction imposed, the Panel considered it would be inconsistent not to impose an immediate interim order of suspension. 

7. The Panel considered whether interim conditions of practice would be appropriate, but concluded that conditions which would address the Panel’s concerns could not be formulated. 

8. Accordingly, the Panel determined that an interim order of suspension was necessary in order to protect the public and in the wider public interest.    

9. The Panel concluded that the appropriate and proportionate duration of the interim suspension order was 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal with the 28-day period.

10. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise 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, or, if an appeal is made against the Panel’s decision and Order, upon the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mrs Sharon Forsyth

Date Panel Hearing type Outcomes / Status
14/12/2020 Conduct and Competence Committee Final Hearing Struck off