Ms Andrea Davis

Profession: Operating department practitioner

Registration Number: ODP10634

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 16/06/2020 End: 17:00 18/06/2020

Location: Hearing taking place virtually

Panel: Conduct and Competence Committee
Outcome: Suspended

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

Allegation (As amended at Final Hearing)

While registered with the Health and Care Professions Council as an Operating Department Practitioner and employed by Ramsay Nottingham Woodthorpe Hospital, you:
 
1. Created and/or signed a training certificate for Person A titled ‘Ramsay
Nottingham Woodthorpe Hospital’ dated 28/11/17 and;
 
a) You did not have authorisation and/or approval to create and/or sign this certificate;
 
b) Recorded that you were the training co-ordinator when this was not the case;
 
c) Recorded that Person A had attended training sessions on 28 November 2017 when this was not the case.
 
2. Your conduct in paragraphs 1a), 1b) and/or 1c) was dishonest.
 
3. The matters set out in paragraphs 1 - 2 constitute misconduct.
 
4. By reason of your misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters

Application to Amend the Allegation

1. Mr Foxsmith applied to amend the Allegation. Notice had been given to the Registrant on 1 August 2019.  Mr Foxsmith explained the proposed changes to the allegation and advised that the Registrant did not oppose them. He submitted that the allegation as proposed was stated more particularly and neutrally and did not alter the nature and gravity of the overall allegation. Mr Churchill confirmed that his client did not object, had been given due notice and had been given time to respond to the amended allegation. 

2. The Panel, having accepted the advice of the Legal Assessor and having considered the interests of justice, determined that the amendment be allowed. The Registrant was legally represented and did not object. The nature and gravity of the allegation had not changed, and the Registrant had been given notice and had responded to the proposed amended allegation. The Panel concluded that there was no prejudice to the Registrant in making the proposed amendment and granted the application.

3. The Registrant admitted the factual matter at 1 (c). Misconduct and dishonesty were denied.

Background

4. The Registrant is a registered Operating Department Practitioner (ODP). She was employed by Ramsay Nottingham Woodthorpe Hospital (“the Hospital”) as an ODP. Her husband is Person A. 

5. It is alleged that the Registrant created and signed  a training certificate for Person A for a course at the Hospital on 28 November 2017 when she had no authority to do so, and recorded that she was the training coordinator when she was not, and recorded that Person A had attended that training course when he had not done so. Witness ML, the Hospital Director, reported his concerns to the HCPC.

Witness 1 – ML

6. ML is the Managing Director of the United Lincoln Hospital NHS Trust and was previously the Hospital Director of Ramsay Nottingham Woodthorpe Hospital (“the Hospital”). He confirmed that his Witness Statement was signed by him and was true to the best of his knowledge and belief.

7. ML explained his role as the Director at the Hospital at the time of the allegation in 2017. He described the Hospital and his responsibilities.  He said he visited most departments at the Hospital on a daily basis and saw the Registrant and Person A frequently. Person A was the theatre manager and was the Registrant’s line manager. He explained the training process and the training coordination for staff and the Registrant’s involvement in reporting training needs to management. He said that the Registrant was not the training coordinator, a role done by another member of administration staff, NH. 

8. ML explained that training records were kept on an electronic database and certificates were kept in personnel files. External courses were signed off by an external course provider. ML told the Panel that he received a query about a training certificate which had been signed by the Registrant for Person A for a training course on 28 November 2017. He said that this certificate was not a Ramsay Nottingham Woodthorpe Hospital document as it was not in the correct format and had no logo on it, as it should. The certificate also contained a typographical error in a sentence about validity that did not appear on Hospital certificates.  ML said that the Registrant was described as “Training Co-ordinator” when she was not. When he checked the system no other certificate in that form was found. He also found that Person A had not attended the course and that it listed only three modules which was not the usual format for a whole day training session. 

9. ML stated that he had not given the Registrant authority to sign the training certificates as a Training co-ordinator. He said he was not able to speak to the Registrant or Person A as they had left employment.  He said he had  referred matters to senior management and was eventually instructed to refer the matter to the HCPC. ML said that the Registrant has not to his knowledge and after further enquiry signed any other training certificates.

10. Mr Churchill cross examined ML. ML confirmed that he had known the Registrant for some years and during his time as Director of the Hospital had promoted her following her successful application and she later became a Senior ODP. He said that training coordinator was  not part of her role although her role was broadly described in her job description. He said she was neither asked, or not asked, to do a training coordinator role and accepted that there was nothing to say she could not provide that role.

11. ML explained that the Registrant had temporarily undertaken a role at the Hospital supporting the out-patient department, and he had refused to shorten the agreed period in that role. He accepted that she had been unhappy about that but said he was not aware that she had raised a grievance about him but rather about the organisation. ML said the Registrant had been a hard-working and conscientious ODP. ML said he did not know whether or not Person A had attended training on the 7 November 2017. 

12. ML said that he had not checked the training records for November 2017 before making the referral to the HCPC and he did not contact the Registrant as she had left the organisation. He said he did not check with other staff members about the certificate signed by the Registrant, or whether she had a Training coordinator role in the theatre department. ML said that the Registrant was not a Training coordinator as such, although she might book people for training as she had some responsibility for work rotas. He said he considered the certificate was fraudulent, but it was not a criminal offence.

13. ML stated that he had never provided the Registrant with authority to sign a training certificate, or sign one for her husband, Person A. ML explained that a Training coordinator would go through a formal appointment process. ML considered a book compiled by the Registrant on training and expressed concern that such records were being kept which he said was a breach of the organisation’s data policies.

Half time Submission

14. Mr Churchill for the Registrant made a no case to answer submission in relation to particulars 1(a) and 1 (b) and particular 2, as it relates to them.

15. Mr Churchill submitted that there was a lack of evidence that there was a lack of authority by the Registrant to create or approve a certificate or that she was not a training co-ordinator. He submitted that the HCPC bore the onus to prove the case and it had not produced evidence that the Registrant lacked the authority as referred to in particular 1(a). He submitted that the Registrant’s role description was broad, it referred to “additional duties” and was vague, and did not state that she did not have the authority to do what she did.
 
16. Mr Churchill stated that ML in his evidence accepted that the Registrant’s ODP role was not exhaustively described in the contract documentation. He said that the Panel had not heard from the colleague, NH, who had been appointed as the training co-ordinator, or seen documentation in respect of the role. He said the roles of the Registrant and the appointed training co-ordinator were not mutually exclusive and that the HCPC had failed to provide evidence of the absence of the Registrant’s authority.
 
17. Mr Churchill submitted that even if proved 1(a) and 1(b) were not dishonest.  He stated that there had to be either actual knowledge by the Registrant that she did not have actual authority, or that no reasonable person in that position could have concluded that they had authority. He concluded that there was therefore no real prospect of success in relation to these particulars.

18. Mr Foxsmith in reply referred the Panel to the HCPTS Practice Note on half time submissions. He urged the Panel to proceed cautiously. He reminded the Panel of the terms of the training certificate itself which describes the Registrant as both a Senior ODP and training co-ordinator.  He also referred to the evidence of ML, whose evidence was that the Registrant was not the training co-ordinator at the Hospital and that only the appointed person could create and sign a training certificate. Mr Foxsmith submitted that this evidence was good, clear evidence in support of the allegation from which ML did not depart under cross examination. He submitted that the absence of documentation did not mean that the Registrant in fact had authority to create and sign a certificate, and that ML’s oral evidence  was good enough to support the particulars of the allegation. 

Decision on Half time submission

19. The Panel considered the HCPTS Practice Note and the guidance in R v Galbraith  [1981] 1 WLR 1039. It accepted the advice of the Legal Assessor and was mindful that the onus of proof rests on the HCPC.

20. The Panel considered the submissions of both Mr Churchill and Mr Foxsmith.  It did not consider any aspect of the Registrant’s own position as put to witness ML. It has heard the live evidence of ML who spoke to the particulars under challenge and it has considered his witness statement, with which his live evidence was consistent. His evidence is relevant to, and addresses the particulars directly. The Panel did not find the evidence of ML tenuous or unsatisfactory. His evidence was not inherently weak or vague, indeed  he was clear and consistent in respect of the lack of authority by the Registrant to create and sign the certificate and to record that she was the training co-ordinator. ML did not alter his position in any material way under challenge in cross examination. The absence of documentation as to the lack of the Registrant’s authority was noted but, given the evidence of ML, the Panel concluded that such an absence was not fatal to the HCPC’s case on these particulars. 
 
21. The Panel concluded that the evidence of ML is such that there is a case to answer.  The reliability and credibility of ML’s evidence remains to be tested at the conclusion of the case on facts once all the evidence has been heard. The Panel concluded that on one possible view of the evidence it could properly come to the conclusion that particulars 1(a) and 1 (b) are proved. On that basis the Panel concluded that there is a case to answer on those particulars. Having decided that, it is not necessary to separately consider the issue of dishonesty as alleged at particular 2.

Witness 2 - MC

22. MC took the oath and confirmed her witness statement was true to the best of her knowledge and belief. She is a Senior Recovery Nurse at the Hospital and has worked there since October 2017. She said she had a number of roles including blood transfusion trainer but worked mainly in recovery. 

23. MC said she worked with the Registrant at the Hospital. MC said that the Registrant, or the Duty Manager would usually book her on any training she needed. MC stated that Person A was on the same training course she attended on 7 November 2017. MC said she had not needed a certificate and did not recall from whom she would obtain such a certificate. She could not recall that colleague NH  had been appointed as a training coordinator, and she did not know that was her role. MC said that she had never needed a training certificate so had never needed to ask NH for one. MC had no knowledge of who else may issue a training certificate but said she would just have asked the theatre manager.
 
24. With regards to the particular training course in November 2017, MC recalled that this training took place each month as it was mandatory. She said she had checked the e-roster, which records work rosters, and it recorded that she had attended the training on 7 November 2017. She recalled Person A attending on 7 November 2017 as he was providing the Basic Life Support (BLS) training and recalled that about 10 people attended the training. She said that if she conducted any BLS training she would not supply a certificate but would simply sign the attendance form.

25. MC said that she had not recalled that NH was the training coordinator but was told this when she was questioned by the Registrant’s solicitors and that was why she referred to NH as the training coordinator in her witness statement. She said she had never seen a training certificate.

The Registrant’s Evidence

26. The Registrant took the oath and confirmed that her witness statement was true to the best of her knowledge and belief. She referred to her job description in 2012 and said that she understood her duties were as described as well as anything else she was asked to do that was within her skills.  She became a senior ODP in 2016. She said she had never been told that any particular role was not her responsibility and she did not receive any job description for the senior role.

27. The Registrant said she managed training for staff and would book and coordinate theatre staff on any required training. Previously when they attended training the staff member would sign an attendance sheet which would then be returned to the department and a record would go into their file. However, the Registrant said that this procedure had stopped prior to November 2017 and she had never seen a sign in sheet or record of attendance for the training on 7 November 2017. The Registrant referred to her personal written record of training. She said that colleague NH was a Health support worker and also had a training coordinator role, but NH was not involved in training for the theatre staff and did not sign certificates. 

28. The Registrant said that Person A was her Line manager and her husband but that had no impact on her professional role. She said that she had worked as an ODP for 20 years and had never had her professionalism or honesty questioned.

29. The Registrant said that her records were that Person  A attended the training on 7 November 2017 and not on 28 November 2017. She said she had made an honest mistake as there had been a number of training dates that month. She said that her records show that witness MC and another colleague from theatre attended the training on 7 November 2017.

30. The Registrant said she produced the certificate for Person A as he asked for it as he had completed the training. She said she had booked the course and knew he had completed the training, so she provided the certificate. She said she understood she had the autonomy to provide the certificate as she was responsible for training in the department which was well known by staff. The Registrant said she described herself as “Training Co-ordinator” on the certificate as she had authority to do so. She said she did not contact NH as she did not consider that was necessary given her own seniority.

31. The Registrant explained that she had raised a grievance against ML on 1 February 2018 over an issue regarding annual leave. She said she had been asked to provide a positive email testimonial in support of ML some time before she raised the grievance and she felt he had an issue with her. The Registrant referred to a number of positive testimonials from colleagues and friends. 

32. In response to Mr Foxsmith, the Registrant said that she considered ML was biased and had lied in his evidence when he said that she did not have a grievance with him. The Registrant did not accept that she had to any extent failed in her professional standards.

33. The Registrant reiterated that she was asked to produce the certificate by Person A, her Line manager. She said her role included training coordination for the theatre department and she would not know who outside that department attended training. She said she had authority and autonomy to create and sign a training certificate as her role was varied and wide. She said she was following an instruction and fulfilled that role and had the authority to produce the certificate because she had been asked to do so by Person A, her Line manager.

34. The Registrant said she did not know how the attendance sheets for training were dealt with or who produced training certificates. She said that NH did not produce training certificates and accepted that the only place where the Registrant is described as a training coordinator is on the certificate she produced. She created the certificate as a word document on her work computer and did not use any template. She did not consider her own records in her book were a breach of any policy or data protection as it was her own personal property.

35. The Registrant said that Person A would have delivered and done the training for BLS on the 7 November 2017. She understood that it was possible to both teach BLS and be accredited as an attendee at training if one already had Advanced Life Support (ALS) training.

36. The Registrant told the Panel that Person A had asked her at work around the 28 November 2017 to produce the certificate as he required it for a particular Agency who later interviewed him in June 2018. She said that the three aspects detailed on the certificate were all Person A required to be detailed, although the training likely covered more. The Registrant said she had produced only this certificate and was sure the theatre manager had given her a role on training for theatre staff. She said she would have checked her own book to check the training record for Person A and accepted that she had made an error as to the date but could not recall what she had checked at the time. The Registrant explained that she would regularly use her mobile telephone to photograph computer screens of the roster at the Hospital.  She had now deleted those photographs although she accepted they were still on her phone until May 2019. She said that witness MC had supplied the photograph of the roster with her witness statement. 

Witness 3 – Person A
 
37. Person A took the oath and confirmed that his witness statement was true to the best of his knowledge and belief. He was the Theatre Manager at the Hospital at the relevant time and managed the theatre team including the Registrant. He was aware that the Registrant had a training coordination role and booked people on the required courses. He explained the training programmes and the record and attendance record keeping. He said he had asked the Registrant to coordinate the training for the department as he needed to delegate that role.

38. Person A said he knew little of NH but that she did have a role as training coordinator. He said that she was not involved in the theatre staff or training for them. He said he had asked the Registrant to produce the certificate to supply to an Agency who required it. He had asked the Registrant as she was the training coordinator and NH did not produce “in house” training certificates. He said he was never told he required permission to delegate roles. Person A said the Registrant had authority to create and sign the certificate as that was what he required her to do.  He said she was the training coordinator for the theatre.

39. Person A told the Panel that as he was qualified in ALS he was allowed to teach BLS and he had done so at the training session on 7 November 2017.  He said that the certificate wrongly states that he did the course on 28 November 2017 when in fact he did the course on 7 November 2017 and taught the BLS part. He recalled witness MC and another colleague also attended on 7 November 2017. He did not know what happened to the sign in sheets used at the training sessions.

40. In response to Mr Foxsmith, Person A said he had given the Registrant the job title of training coordinator and that he had the authority to do so. He accepted he had not told the HR department in the Hospital that he had delegated that role to the Registrant. He said the certificate was produced because an Agency required it and the Hospital did not provide training certificates. He said that he could not recall when he asked the Registrant for the certificate, but the Agency had signed him up for work before the certificate in any event.

41. Person A told the Panel that he did not know whether this was the first certificate the Registrant had issued and he had not seen any other certificates she had issued. He said he did not consider there was any conflict of interest in asking the Registrant for the certificate as it was part of her role as theatre training co-ordinator. He stated that no one did the role before he delegated it to the Registrant and there was likely nothing in writing. He did not know who produced training certificates and was not aware of any electronic report recording training. He stated that if he had needed to find out what date a member of staff had last completed training, he would have contacted HR.

Reconvened Hearing 16 June 2020

42. The hearing reconvened remotely on 16 June 2020 on which date the Panel heard from Ms Claire Parry for the HCPC and Mr Churchill for the Registrant on facts and statutory grounds. The Registrant was not present.

Closing Submissions for the HCPC

43. Ms Parry summarised the evidence and the HCPC’s position. She submitted a written skeleton argument. She submitted that ML’s evidence was clear and coherent, and he was clear that the Registrant had no authority to produce or sign a certificate confirming attendance at training. She submitted that there was no evidence to support the Registrant’s position that she had authority to produce a certificate and was a training coordinator, and there was no policy produced in evidence to support that contention. She reminded the Panel that this certificate was the only certificate the Registrant had ever produced and signed. 

44. Ms Parry asked the Panel to prefer the evidence of ML who did not accept that the Registrant’s position as a senior ODP would have carried with it the authority to produce and sign the certificate. He had said that any authority to do so would have been formally documented.

45.  On the issue of dishonesty, Ms Parry referred to Ivey v Genting Casinos [2017] UKSC 67.  She submitted that the Panel should first ascertain the Registrant’s belief as to the facts and then, second apply the objective test for dishonesty.

46. On particular 1(a), the HCPC’s position was that the Registrant knew she did not have authority to produce and sign  the certificate. She had made no check about her authority to produce such a certificate and Ms Parry submitted that this was dishonest. On particular 1(b) Ms Parry referred to the evidence of ML who was clear that the Registrant was not the training coordinator. Ms Parry submitted that the conduct in 1 (a), (b) and (c) had been dishonest.

47.  Ms Parry submitted that the matters alleged, if proved, amounted to misconduct. She explained that the HCPC’s position was that the dishonesty stood separate from misconduct which could be found, even should there be no finding of dishonesty. She reminded the Panel it was at liberty to consider the HCPC Code when considering misconduct.

The Registrant’s Closing Submissions

48. Mr Churchill for the Registrant submitted a written skeleton submission.   He submitted that it was not the HCPC case that particular 1(c) had been dishonest as it had not been put to the Registrant as dishonest in the cross examination by Mr Foxsmith for the HCPC. He referred the Panel to the transcript of the evidence in that regard. On the issue of dishonesty, Mr Churchill submitted that the Registrant was of previous good character.

49. Mr Churchill submitted that the evidence of ML was that it was unlikely the Registrant was a training coordinator, but not impossible. He reminded the Panel that there were no documents showing that the Registrant was a training coordinator, but there were no documents that showed the Registrant’s role would not include the role of training coordinator or that there was only one training coordinator. He submitted that the HCPC had chosen not to provide direct evidence on this issue. He asked the Panel to prefer the evidence of  MC who was the independent witness on the issue of the role of training coordinator.

50. On the issue of delegation of authority, Mr Churchill submitted that  there had been no evidence that the Registrant knew the extent of ML’s authority. There was also no job description for a senior ODP produced. He submitted that the job description produced did include a statement that the job description was not exhaustive. He submitted that the Panel should first consider whether training coordinator formed part of the Registrant’s role.  Secondly,  it should consider whether Person A was allowed to give the role to the Registrant, or was the Registrant allowed to rely upon Person A giving her that role? He stressed that the job description was not exhaustive, and there was no evidence that there could only be one training coordinator.

51. The Registrant was clear in her evidence that she had authority because she was given it by her Line manager, Person A. Mr Churchill submitted that it was not clear in the evidence that the Registrant had been made aware that Person A did not have authority. He referred the Panel to legal issue of authority and relied on the case of East Asia Company Ltd v PT Satria Tirtatama Energindo (Bermuda) [2019] UKPC 30.

52. Mr Churchill submitted that there was no suggestion that there was any limit in Person A’s authority, or that any limit was made known to the Registrant.  She had understood Person A was entitled to give her the authority to act as a training coordinator and produce the certificate.

53. On particular 1 (c) Mr Churchill submitted that the Registrant had said Person A attended on 7 November and it had been a mistake to record it was on 28 November. The Registrant had admitted the particular.

54. Mr Churchill made extensive submissions on the issue of dishonesty. He referred to the cases of Ivey and Soni v General Medical Council [2015] EWHC 364 (Admin).  He submitted that for the Panel to find dishonesty in particular 1 (a) and 1 (b),  it would have to find that the Registrant knew, or a reasonable person in her position would have known, that  she did not have authority to produce the training certificate. He submitted that the Panel would have to find that the Registrant knew about the lack of authority, or had been reckless as to her knowledge of that.

55. Relying upon Soni, Mr Churchill submitted that the Panel had to exclude as less than probable other, honest, reasons for the Registrant’s behaviour. He stressed the importance of the Registrant’s previous good character and the lack of evidence of motive or financial gain. Mr Churchill submitted that the Panel must have a proper evidential basis on which to infer dishonesty.

56. Mr Churchill submitted five issues arose for the Panel to consider:-  there was no statement of the Registrant’s job responsibilities, the Registrant’s good character, there was no motive, it had been an error in administration, and there was no evidence to suggest that the Registrant was not authorised to carry out these activities.

57. Mr Churchill submitted that even if particular 1 was proven, the conduct was a failure of administration and did not amount to dishonesty and was not misconduct. He submitted that the fact the Registrant and Person A were spouses did not go to the question of dishonesty or motive, and that suspicion alone was not a proper basis on which to find or to infer dishonesty.

58. In reply, Ms Parry submitted that the overriding principle in Soni is the need to carefully scrutinise the evidence on dishonesty. As regards negligent administration she submitted that the evidence was that the Registrant's actions were deliberate and were not a mistake. ML had been clear in his evidence that the Registrant had not been a training coordinator. Ms Parry submitted that purpose and motive were synonymous and there was a clear gain for the Registrant in providing a training certificate for her husband, Person A. The Registrant had taken active steps to hold herself out in the role of training coordinator. Ms Parry also referred to Standard 10 of the HCPC Code being a duty to keep proper records. 

Decision on Facts and Grounds

59. The Panel accepted the advice of the Legal Assessor and it applied the relevant principles. He reminded the Panel that the onus of proof rested on the HCPC and that the balance of probabilities applied. The Registrant need prove nothing.

60. The Legal Assessor advised the Panel that the Registrant was previously of good character.  He referred to the approach in the Soni  case and the need to consider any evidence of alternative explanations for the conduct. He reminded the Panel that the authoritative test for dishonesty was in the more recent case in the Supreme Court of Ivey v Genting Casino which states:-
“When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest".
61. On misconduct the Legal Assessor referred the Panel to the guidance in Roylance v GMC (No 2) [2001] 1 AC 311 and reminded it that misconduct was a matter for its own professional judgement.

62. The Panel carefully considered the live evidence, the documents before it, the submissions from Mr Foxsmith, Ms Parry and Mr Churchill, and the Registrant’s evidence.

The Witnesses

63. The Panel found ML clear, straightforward and consistent in his evidence. It did not find that he demonstrated any ill-will toward the Registrant and found him balanced, fair, credible and reliable. 

64. The Panel preferred the evidence of ML to that of the Registrant and Person A, particularly as regards the alleged appointment of the Registrant as a training coordinator. ML was clear that such a role required formal approval and would require to be documented. He was clear in his evidence that Person A was not authorised to create that role.  ML had not appointed the Registrant as a training coordinator, nor had he been made aware that had happened.

65. The Panel found MC open, reliable and credible. She sought to assist the Panel. The Panel found, however, that she had limited involvement in the management of the department. The Panel noted from her evidence that whilst she conducted training herself, she did not produce certificates. 

66. The Panel found Person A was guarded in his evidence.  The Panel did not find him open and at times he was rather hostile. He said he had given the Registrant the role of training coordinator and asserted he had authority to do so as her Line Manager. He had not sought approval for that appointment. He did not record the appointment of the Registrant as a training coordinator, either at the time or at any time after.  

67. The Panel found the Registrant consistent in her version of events and disputed any wrong-doing. Due to her lack of knowledge regarding training process and procedures, the Registrant’s version of events lacked credibility.
 
Particular 1 (a) , 1 (b) – Proved

“1. Created and/or signed a training certificate for Person A titled ‘Ramsay Nottingham Woodthorpe Hospital’ dated 28/11/17 and;
a) You did not have authorisation and/or approval to create and/or sign this certificate”
b) Recorded that you were the training co-ordinator when this was not the case;”
68. The Panel found Particular 1 (a) and 1 (b) proved. That the Registrant created and signed the training certificate for Person A titled ‘Ramsay Nottingham Woodthorpe Hospital’ dated 28/11/17 is not disputed. The issues for the Panel is:- a) whether the Registrant had the authorisation and/or approval to do so; and b) whether she recorded herself as training coordinator when that was not the case.

69. The evidence of Person A and the Registrant was that the appointment of the Registrant as a training coordinator by Person A gave her the authority and approval to create and sign the certificate. The authority to do so was purportedly given to the Registrant by Person A as her Line Manager. He said that he had the authority at will to appoint the Registrant as a training coordinator.

70. That appointment and the role were not documented or recorded by either Person A or the Registrant. The Registrant did not keep formal records, merely her own “purple book” which she produced at the hearing and which she said she had kept at home. She did not tell HR that she had been appointed to the role, she did not liaise with HR and she did not seek, or gain, access to staff training records or to personnel files.

71. The Panel was struck by the fact that the training certificate created by the Registrant for Person A was the only certificate the Registrant ever produced. There was no dispute about that fact. The Registrant had not enquired with the Hospital about any template or company style to be used in the certificate she created for Person A. She did not seek out or follow any company template or style, and the certificate did not contain the company logo and contained errors. 

72. The Panel considered the case of East Asia Company Ltd (Respondent) v PT Satria Tirtatama Energindo (Appellant) (Bermuda) [2019] UKPC 30 referred to by Mr Churchill. That is a case concerning a share transfer signed by a Mr Joenoes on behalf of East Asia in favour of the other party, a transfer purportedly later approved by board resolutions of East Asia. This transfer formed part of a “Heads of Agreement “ document agreed between the parties.

73. The central issue in those proceedings was whether effect should be given to the share transfer. Satria contended that the sale was valid as Mr Joenoes had ostensible authority. East Asia contended that it was not bound by the Heads of Agreement as Mr Joenoes had no ostensible authority to enter into it on behalf of East Asia and, amongst other issues,  that Satria had been put on inquiry as to Mr Joenoes’ lack of authority.  Therefore, Satria contended they were not bound by the Heads of Agreement and consequently not bound by the share transfer. The case discusses the law of agency and the extent to which an “outsider” should be “put on inquiry” about the authority of the individual with whom they contract.

74. The Panel determined that the role of an autonomous, regulated health care professional is not analogous to that of contracting parties. The Panel did not find this case helpful, relevant or meaningful in the context of professional, health care regulation. The law of agency has little relevance to the role and responsibilities of an autonomous  health care professional. The role of the HCPC is primarily to protect the public and to maintain public trust and confidence in the health care professions. The corporate environment, company structures and legal environment in which companies transact is very different indeed from the environment in which health care professionals undertake their duties and exercise their own professional judgement.  

75. Both the Registrant and Person A were employed as autonomous health care professionals, and as such operated in an environment entirely different from that in which companies transact and execute legal documents. The Registrant is bound by a detailed Code of conduct, performance and ethics. Companies are not. At all times, and in all that she does in the conduct of her professional duties, she must exercise her own independent professional judgement, and she is trusted to do so by her colleagues  and by the public.  Furthermore, the public interest is such that the Registrant must conduct her duties, and exercise her professional judgement, in a manner which engenders and promotes the trust and confidence of the public in her profession.

76. The Code explicitly requires the Registrant, amongst other things, to promote and protect the interests of service users and carers, communicate appropriately and effectively, work within the limits of their knowledge and skills, delegate appropriately, manage risk,  to be honest and trustworthy, and to keep records of their work. 

77. The Registrant was not an “outsider” dealing with Person A in an arms- length, contractual sense, otherwise unknown to one another. Person A and the Registrant were colleagues working together in a health care environment. They were also spouses. The Registrant was a senior ODP.

78. The Panel determined that, to use the legal language of authority and approval, the Registrant can be seen to have been “put on inquiry” when Person A, her Line Manager and her husband, purported to give her the authority to produce a certificate.  She was put on inquiry as she had not previously undertaken that responsibility and when considering this request, she ought reasonably to have exercised her professional judgement and been mindful of the Code and, indeed, what the public might make of such an arrangement. 

79. The Panel found it difficult to reconcile Person A and the Registrant’s version of events about the purported role and the certificate with the complete lack of formality, and the failure to record it and report it to the management at the Hospital. The Registrant created a training certificate which she issued to her husband and Line Manager, Person A, without any reference to her employer. She did not ever produce another training certificate for any other member of staff and had not done so previously. 

80. The Registrant did not keep a formal record of training, and the training certificate in fact failed to mention aspects of the training undertaken by Person A and contained the wrong date.  If, as she said in evidence, she had authority and approval, it is difficult to understand  why did she not report and record her appointment to the role to management, and provide a copy of the training certificate she had issued to HR? Why did she not seek a template and advice on how to produce the training certificate given that she had never created one?  Why did she not tell colleagues, who may well have needed to consult her about their training needs? Why was there no formality? The Panel did not find it credible that none of these considerations would have occurred to the Registrant.

81. The Panel concluded that the evidence, and version of events, offered by the Registrant, and Person A, was not plausible or credible.The Registrant said she had the role and the authority as Person A had given it to her. The Panel does not accept that Person A had the authority to create the role and does not accept that in fact he did so. The Panel concluded that the Registrant’s version of events makes little sense. The Panel did not believe the Registrant or Person A.

82. The Panel preferred the evidence of ML and MC. ML said he did not know at the time that the Registrant had been appointed a training coordinator. ML was clear that he had not appointed the Registrant as a training coordinator, and that Person A should not do so without his permission and with that of the Matron. ML stated that such permission had not been sought nor granted. He said having this specific responsibility would be a formal process. MC’s evidence was that despite providing training herself, she would not create a training certificate.

83. The Panel concluded that the more probable explanation was that the Registrant knew that she was not a training coordinator and knew that she did not have the authority or approval to create and sign a training certificate for Person A. When she recorded on the certificate that she was a training coordinator she knew that was not the case. Both 1(a) and 1 (b) are found proved. 

Particular 1 (c) – Proved

“1. Created and/or signed a training certificate for Person A titled ‘Ramsay Nottingham Woodthorpe Hospital’ dated 28/11/17 and;
c) Recorded that Person A had attended training sessions on 28 November 2017 when this was not the case.”
 
84. The Registrant admitted this particular and the evidence of MC is clear that the training in fact took place on 7 November 2017. The Registrant admitted that this had been an error. This particular is proved.  

Decision on Dishonesty - Particular 2 

85. The Panel was mindful of the authoritative guidance in Ivey. It also considered the guidance in Soni and was mindful of carefully scrutinising the evidence and of excluding as less than probable any other possible explanations heard in evidence for the conduct found proved.  It did not speculate and scrutinised the version of events put forward by the Registrant and by Person A.

86. The Panel considered the chronology. The training course in question was done on 7 November 2017. The Registrant told the Panel that she and Person A were suspended from work on 22 February 2018 and that was their last day working in the Hospital. Person A required the certificate as he needed it to apply for a new job. His wife the Registrant supplied the certificate.  

87. An employment agency, Cromwell Medical Staffing, queried the training certificate in an email to Ramsay Head Office on 13 August 2018. ML considered matters and was advised by his HR department to refer his concerns about the training certificate to the HCPC in November 2018.

88. The Panel did not have before it any independent evidence as to when the training certificate was actually produced. No rationale was provided by the Registrant as to why, if she was still at work, she did not use the Hospital template and the Hospital logo. Further to its factual findings on particulars 1(a) and 1 (b), the Panel found that she had never produced a training certificate before, she did not have access to the online training records for any member of staff, she had no access to training records for staff  or information on when their training was due to be updated, other than her from own “purple book”. 

89. The Panel did not find it credible or plausible that a training coordination role would have been given to the Registrant in such an informal and inefficient manner, without the knowledge of any other person. Further, this explanation is not plausible because had he been working in the Hospital at the time, it would have made more sense for Person A to simply have asked HR to give him a copy of his training certificate. There is no dispute that the training was done.

90. The Panel was asked to consider motive by Mr Churchill. The Panel had little difficulty in finding a clear motive for the Registrant’s conduct - to assist her husband in obtaining gainful employment.

91. The Panel took account of the Registrant’s previous good character.  However, in all the circumstances, the Panel concluded that the  more probable and plausible explanation for the conduct found proved is that the Registrant deliberately produced the certificate for her husband to assist him in his employment applications.  She did so knowing that she had not been appointed as a training coordinator, and knowing that she did not have the authority or approval to create and sign such a certificate.  Her actions at the time did not accord or align with someone acting under an honest or genuinely held belief or understanding that they, in fact, had that authority and role.

92. The Panel next applied the crucial, objective test in Ivey – what would an ordinary member of the public make of the facts found proved?  The Panel concluded that  a member of the public learning that one health care professional, without inquiry or formality, had provided a training certificate to another health professional when she did not have the authority to do, and on which she describes herself as having a role she did not in fact hold, was dishonest. This is further supported by the fact that the role and authority to do so were purportedly bestowed by the recipient of the certificate, who was also her husband.

93. The public quite properly trust health care professionals and expect them to act with integrity and honesty. The facts found proved in particular 1 (a) and 1 (b) viewed objectively were dishonest. 

94. In relation to particular 1(c) the Panel accepted the Registrant’s account that inserting the wrong date on the certificate was an error. There was nothing to be gained by inserting an incorrect date. In the circumstances the Panel concluded that this conduct was not dishonest.

Decision on Misconduct

95. The Panel was mindful of the guidance in Roylance as to misconduct.

96. The Panel determined that the facts found proved amount, individually and together, to a serious falling short of what would have been proper.  The findings in particulars 1 (a), 1 (b) and 2 are serious, honesty and integrity being utterly fundamental to the profession. They amount to misconduct.

97. In respect of particular 1(c) the Panel found that was a serious lack of diligence in failing to check the date of the course set out on the certificate.  It was serious, and a mistake that fell well below what would have been proper in the circumstances.

98. The Panel found that Operating Department Practitioner Standards of proficiency 4.4 had been breached.  The Registrant failed to practise as an autonomous professional exercising her own professional judgement, able to justify her decisions.

HCPC Submissions on Impairment

99. Ms Parry referred to the HCPC Practice Note on Impairment.  She invited the Panel to find the Registrant’s fitness to practise currently impaired.  She reminded the Panel of the guidance in the cases of  Meadow v GMC [2006] EWCA Civ 1390 and CHRE v NMC and Grant [2011] EWHC 927(Admin) and stressed the need to consider insight, remorse and remediation.

100. Ms Parry submitted that the Registrant had provided little evidence of insight into her actions. The Panel did not believe her account and the Registrant has shown very little insight into why she produced the certificate. The Registrant expressed regret she had done what she did, but this was directed at being part of the fitness to practise process and she had not shown meaningful remorse. Ms Parry submitted that there was a risk of repetition.

101. On remediation, Ms Parry reminded the Panel that the Registrant was an experienced practitioner and ML had spoken highly of her practise as an ODP. Ms Parry referred to the positive references provided and that the Registrant she continued to practise without restriction and without further incident since the referral to the HCPC. 

102. On the public aspect of impairment Ms Parry submitted the public would be shocked at the Registrant’s conduct and submitted that not to find her impaired would undermine public confidence in the profession.

Decision on Impairment

103. The Panel considered the submissions of Ms Parry and the written submissions of Mr Churchill on the Registrant’s behalf.  In considering its decision on impairment, the Panel exercised its own professional judgement. The Panel accepted the advice of the Legal Assessor who referred the Panel to the HCPTS Practice Note on Impairment and to the guidance in Grant. He reminded the Panel of the need to consider the Registrant’s insight, remorse, remediation and the risk of repetition of the alleged conduct.  It should also be mindful of the central importance of the public interest, including the need to maintain public confidence in the profession and uphold proper standards.

104. The Panel noted that in her evidence the Registrant said - “I wish I'd never written it in the first place, to be honest, it’s caused me so much grief…I stand by, that he has done the training, and I stand by everything that, apart from obviously the date, he has done that training, and I stand by that.  But the aggravation that it’s given me, I wish I’d never done it… I wish I'd never done it.”  The Panel found that this was the extent of the Registrant’s remorse which appeared to be largely focussed on the trouble her conduct had caused for herself.

105. The Panel heard nothing from the Registrant about any action taken by her to reflect on, learn from, or remediate her conduct. The Registrant denied any wrongdoing and sought to justify her behaviour. The Panel had no evidence from the Registrant about any reflection on the impact of her conduct on colleagues and on public confidence. The Registrant did not appear to grasp the seriousness of her conduct.

106. There was no evidence that the Registrant had considered her professional responsibilities when creating a training certificate for Person A on his instructions. This is particularly acute given that Person A was her Line Manager and husband. Further, the Registrant appeared not to appreciate her serious lack of diligence and professionalism in preparing the training certificate, an important document relied upon by employers that had possible implications for patient safety.  Her actions thus carried a risk of potential harm to patients. 

107. The Panel concluded that, despite extensive questioning by both representatives and by the Panel, the Registrant showed a serious lack of insight into her conduct, as she did not consider that she had done anything wrong. There is no evidence of any steps taken by the Registrant to remediate her conduct, although the Panel accept that dishonesty can be hard to remediate. Given her serious lack of insight, the Panel determined that the Registrant presents a real risk of repeating similar misconduct.

108. The Panel could not be assured of the Registrant’s integrity at this time. In acting dishonestly, the Registrant breached a fundamental tenet of the profession and her conduct undermines confidence in the profession. On the personal aspect of impairment, the Panel found the Registrant’s fitness to practise currently impaired.

109. The Panel next considered the public interest aspect of impairment. The Registrant breached fundamental tenets of her profession, namely trust and integrity. In that regard she also breached the HCPC Standards of conduct, performance and ethics. The Panel considers that there is a risk that she could do so again in the future. The Panel has found that the Registrant’s actions were dishonest and that a member of the public would be concerned were such a serious finding not to lead to a finding of current impairment. 

110. Given the nature and gravity of its findings, the Panel concluded that a finding of current impairment is necessary in the public interest in order to maintain public confidence in the profession, to declare and uphold proper standards, and to maintain public confidence in the regulator.

111. Accordingly, the Panel finds that the Registrant’s fitness to practise is currently impaired on both the personal and public aspects of impairment.

 Submissions on Sanction

112. Ms Parry submitted that sanction was a matter for the Panel. It should act proportionately and have regard to the HCPC “Indicative Sanctions Policy (ISP)”. She submitted that to take no action would not be appropriate.  She referred to paragraph 49 of the ISP which makes clear that dishonesty is a serious matter and she submitted that a Conditions of Practice Order would not be appropriate.

113. Ms Parry submitted that the aggravating features were the finding of dishonesty, the risk of harm and lack of insight into risk of harm and public perception. She also submitted that the Panel had found a risk of repetition.  

114. Ms Parry submitted that the mitigating features were that this was an isolated incident, there had been no other fitness to practise concerns about the Registrant, she had a number of positive references and ML had spoken of her clinical competence in his evidence. She added that no actual harm had been caused.

Decision on Sanction

115. The Panel took advice from the Legal Assessor. He referred the Panel to the HCPC “Indicative Sanctions Policy” and reminded it to act fairly and proportionately and to apply the least restrictive sanction necessary to protect the public and the wider public interest. In considering the appropriate sanction, the Panel had regard to its earlier findings and was mindful of the need to act proportionately.  It carefully considered the ISP.

116. The Panel considered that the mitigating factors were:-

• This was an Isolated incident
• There were no other fitness to practise issues
• Positive references
• No actual harm was caused
 
117. The Panel considered that the aggravating factors were:-

• Dishonesty
• Lack of insight or remorse
• Risk of repetition
 
118. In view of the seriousness of the case, to take no further action or to impose a Caution Order would not be appropriate, sufficient or proportionate.  A Caution Order would not address the seriousness of the finding of dishonesty, misconduct and the risk of repetition identified. No further action or the imposition of a Caution Order would not be sufficient to protect the public, maintain confidence in the profession and the regulatory process, or to uphold and declare proper standards.

119. The Panel next considered a Conditions of Practice Order.  The Panel was mindful of its findings as to the Registrant’s serious lack of insight and remediation. Given the finding of dishonesty, the Panel considered that Conditions would not be sufficient or proportionate. In any event, it was not able to formulate realistic, workable and verifiable Conditions of Practice to deal with the risk identified.  Further, Conditions would not be sufficient or proportionate to protect the public interest and would fail to maintain public confidence in the profession and the Regulator.

120. The Panel next considered a Suspension Order. The Panel has found that the Registrant has seriously limited insight and has found that she breached a fundamental tenet of her profession. The Panel has identified a risk of repetition.

121.  The Panel concluded that the dishonesty found was not the most serious, but it was concerned as to the Registrant’s serious lack of insight into her misconduct. The Panel was, however, mindful that this was an isolated, single incident in an otherwise blemish free career. There was no issue of clinical competence.

122. The Panel seriously considered imposing a Striking Off Order. It carefully considered the HCPC Sanctions Policy. It considered that the fact the dishonesty had been an isolated, one off event, and that no actual harm had been caused were powerful mitigatory features. Further, the conduct, whilst deliberate, was not persistent and the Registrant was, otherwise, a competent and experienced Operating Department Practitioner.

123. On balance, and after careful consideration, the Panel concluded that to impose a Striking Off Order would be punitive and that the lesser sanction of a Suspension Order for a period of 12 months would be the appropriate and proportionate sanction. A Suspension Order would serve to protect the public and would sufficiently mark the seriousness of the misconduct. 

124. The Panel further determined that public confidence in the profession and the regulatory process would be maintained by the imposition of a 12 month Suspension Order. It would act as an effective deterrent and send the appropriate message to the public and to the profession.

125. The Panel considered that a future Panel reviewing this order would be assisted by a written piece from the Registrant reflecting on why the misconduct took place, the finding of dishonesty, and the impact of her conduct on her colleagues, the profession, and on public confidence. It might also assist the Reviewing Panel if the Registrant was able to demonstrate well-developed insight into her misconduct.
 

Order

Order: That the Registrar is directed to suspend the registration of Mrs Andrea Davis from the Register for a period of 12 months from the date on which this Order comes into effect.

Notes

Decision on Interim Order


126. The Panel heard from Ms Parry and took account of all the information before it. Ms Parry given the findings of the Panel, applied for an Interim Suspension Order for 18 months in order to protect the public and the public interest, should the Registrant appeal.


127. The Panel accepted the advice of the Legal Assessor.  It was mindful that on day one of the hearing that the Registrant’s Counsel, Mr Churchill, had advised the Panel that the Registrant had instructed him for day one of this four day hearing only.  He told the Panel that, although fully aware of the hearing, the Registrant would not be attending or be represented at the remaining days of the hearing. In those circumstances, the Panel, having taken the Legal Assessor’s advice, decided that it was not necessary or appropriate to consider proceeding in the absence of the Registrant.


128. The Legal Assessor referred it to the HCPTS Practice Note on Interim Orders and reminded the Panel that the primary purpose of an interim order is protection of the public and that it was necessary to balance the interests of the Registrant with the need to protect the public and to act proportionately.

 
129. The Panel was mindful of its earlier findings, including the finding of dishonesty. It decided that that it would be wholly incompatible with its findings, and with the sanction imposed, to conclude that an Interim Order is not necessary for protection of the public or in the public interest. The Panel accordingly found that an Interim Order is necessary on both public protection and public interest grounds. Given its findings and the Sanction imposed, the Panel determined that it was appropriate that an Interim Suspension Order be imposed for a period of 18 months to cover any appeal period.  When the appeal period expires this interim order will come to an end unless there has been an application to appeal.  If there is no appeal the Suspension Order shall apply.

Hearing History

History of Hearings for Ms Andrea Davis

Date Panel Hearing type Outcomes / Status
16/06/2020 Conduct and Competence Committee Final Hearing Suspended
06/01/2020 Conduct and Competence Committee Final Hearing Adjourned part heard