Mr Salim M Ahmaida Makhlouf

Preliminary matters

Service

1. The Registrant was not present at the hearing and was not represented. 

2. The Panel was satisfied that notice of the review hearing had been sent to the Registrant by a letter dated 12 February 2020, sent to his registered address by first class post and also by email, giving notice of the hearing date and the venue. The Panel had sight of a proof of service document dated 12 February 2020. 

3. The Panel was satisfied that there had been proper service of the notice of the review hearing. 

Decision to proceed in the Registrant’s absence

4. Ms Welsh, on behalf of the HCPC, submitted that it was fair and in the public interest that this mandatory review of the current Suspension Order should be reviewed today. 

5. Ms Welsh referred to an email from the Registrant to the HCPC, dated 3 March 2020, in which he stated that he was sorry that he could not attend this hearing “as I am busy with my PhD study.  I will let you know as soon as I do any trying course regarding this matter”.  She submitted that the Registrant had voluntarily absented himself and an adjournment would serve no useful purpose. 
 
6. The Panel considered the submissions on behalf of the HCPC and 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.  

7. The Panel was satisfied from his email of 3 March 2020 that the Registrant was aware of the review hearing taking place today and did not intend to be present.   The email did not seek an adjournment for any reason. The Panel concluded that the Registrant had voluntarily absented himself and waived his right to attend.  The Panel noted the Registrant had not engaged in any of the previous hearings concerning his case. 

8. The Panel was mindful that this was a mandatory review of the current order of suspension which is due to expire on 18 April 2020.  It is in the interest of the Registrant, and is in the public interest, that the current order be reviewed.    The Panel was satisfied it was fair and in the public interest to proceed with the review hearing today.

Background

9. The Registrant commenced employment as a Band 5 Operating Department Practitioner (ODP) at the York Teaching Hospital NHS Foundation Trust (the Trust) on 25 April 2016. The Registrant had a six-week induction period during which he was orientated to the Trust. He was also given a local induction package to complete. During this time he was supernumerary. This was his first ODP job in the UK. He was supported by other ODPs and registered practitioners who provided guidance and orientation when required.

10. On 7 June 2016, the Principal ODP and Team Leader for chronic pain in the Theatres, Anaesthetics and Critical Care Department, carried out a review of the Registrant’s probation. The Registrant’s induction period was extended due to concerns that had been raised by colleagues during this period. In summary, there were serious concerns about the Registrant’s clinical knowledge and skills and his ability to practise as an autonomous practitioner.

11. The Registrant was asked to answer a set of questions in line with the expected knowledge of a newly qualified ODP to try to ascertain whether he felt under pressure in clinical situations, had difficulty in communicating, or if he simply did not have the required clinical knowledge. The answers that were received raised concerns about the Registrant’s knowledge and skills.

12. At the HCPC substantive hearing on 19 – 21 March 2018 a panel of the Conduct and Competence Committee found the Registrant’s fitness to practise to be impaired and imposed a 12-month Suspension Order.

13. At the first review hearing on 14 March 2019, the reviewing Panel concluded that the deficiencies in the Registrant’s knowledge and skills made by the last panel remained and there had been no material change since the initial hearing. The Panel was provided with no clear information as to what the Registrant had been doing since the substantive hearing. The Panel found the Registrant’s fitness to practise remained currently impaired and imposed a further period of suspension of 12 months.

14. The Panel in March 2019 stated in its determination that it strongly recommended that at the next (today’s) review hearing the Registrant should provide full information about any action he has taken to remedy the significant and wide-ranging deficiencies which were identified at the substantive hearing. It also recommended that he provide information about how he has kept up with his Continuing Professional Development (CPD) and that the Registrant should attend the next review hearing.

Submissions

15. Ms Welsh for the HCPC submitted that the Registrant’s fitness to practise remains currently impaired in respect of both the personal and public components.  There had been no change in circumstances and the Registrant had provided no information for today’s hearing.
 
16. Ms Welsh referred to the Registrant’s lack of insight and the absence of any attempt by the Registrant to remedy his clinical failings which are serious and wide-ranging.  Ms Welsh submitted that the Panel should impose a Striking Off Order or failing that, a short period of 6 months’ suspension.   

Legal Advice

17. The Panel took into account the submissions of the HCPC and accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Notes, Finding That Fitness to Practise is Impaired and Reviews of Article 30 Sanction Orders.

18. The Legal Assessor reminded the Panel that it should first consider whether the Registrant’s fitness to practise remains currently impaired.  She reminded the Panel of its powers at a mandatory review under Article 30(1) of the Health Professions Order, if current impairment is found. This case concerned a lack of competence allegation and so, per Article 29(6) of the Health Professions Order 2001 (as amended), the option to make a Striking Off Order was available, as the Registrant will have been continuously suspended for a period of two years at the point where any order made today comes into effect, i.e. on the expiry of the current order on 18 April 2020. 

19. The Legal Assessor reminded the Panel, in deciding on any sanction, to refer to the HCPC Indicative Sanctions Policy.  It must apply the principle of proportionality and impose the least restrictive order which appropriately protects the public and the public interest.

Decision  

20. The Panel carefully considered the documents presented and the submissions of the HCPC.  No submissions had been received from the Registrant. The Panel accepted and applied the advice of the Legal Assessor and was guided by the HCPTS Practice Notes to which it had been referred.

21. The Panel first considered whether the Registrant’s fitness to practise remains currently impaired. 

22. In considering this matter, the Panel was mindful that the Registrant has not engaged substantively throughout the HCPC process: he did not attend the final hearing in March 2018, nor has he attended the first review hearing in March 2019, or this review. 

23. The Panel found the Registrant’s fitness to practise to be currently impaired in respect of the personal component of current impairment. The concerns about the Registrant’s clinical practice originally identified at the final hearing were serious, basic and wide-ranging.  The Panel has no evidence before it that the Registrant has engaged with addressing these issues or taking action to remedy them throughout this process. He has not demonstrated any insight into his past clinical failings.  There is no evidence that he has attempted to follow the clear recommendations made by the March 2019 review Panel.  

24. In the absence of any evidence of remediation, the Panel also observed that the Registrant’s current fitness to practise is likely to have further deteriorated over the time period since the initial hearing in 2018. The Panel concluded that the public would be placed at risk of harm if the Registrant were permitted to return to practise without restriction.  The Panel finds the Registrant to be currently impaired in respect of the personal component of impairment.  

25. The Panel also found impairment in respect of the public component.  It concluded that members of the public would be concerned if a Registrant who has such serious, wide-ranging and basic failings, which he has not sought to address or remedy, and who poses a potential risk to the public, were found not be to impaired. Public confidence in the profession and the regulatory process would be undermined.

26. The Registrant has not met the persuasive burden upon him at this review to satisfy that Panel that he is fit to practise.  The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired on the grounds of public protection and the wider public interest. 

27. The Panel considered its powers under Article 30(1) of the Health Professions Order 2001 (as amended).  In determining its approach to sanction, the Panel took into account the contents of the HCPC Indicative Sanctions Policy and carefully considered the sanctions in ascending order of seriousness.  The Panel applied the principles of proportionality, reminding itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest.

28. The Panel had received no submissions from the Registrant regarding the impact of any order upon his interests.

29. The Panel considered that it would not be appropriate to impose no order or a Caution Order because the public would not thereby be protected and the wider public interest would not be addressed.

30. The Panel concluded that a Conditions of Practice Order would not be appropriate or workable, as the Registrant has not engaged with the HCPC process or made any attempt to remedy the failings identified in his clinical practice.  The Panel can have no confidence that he either wishes to or would comply with any conditions, nor does the Panel consider that conditions of practice would appropriately protect the public or maintain public confidence in the profession in this case

31. The Panel considered whether a further period of suspension would be appropriate.  It was mindful that on the expiry of the current Order, the Registrant will have been the subject of a suspension order for a period of two years.  Given the history of complete lack of engagement described above, the Panel is not satisfied that a further period of suspension will serve any useful purpose.  It can have no confidence at this point that the Registrant has any commitment to achieving current fitness to practise.

32. The Panel accepted the submission of the HCPC and the advice of the Legal Assessor that the sanction of a striking off order from the date of expiry of the present order on 18 April 2020 is available in this lack of competence case, as the Registrant will by that date have been continuously suspended for a period of two years.

33. The Panel concluded that the appropriate and proportionate sanction in this case is a Striking Off Order.

The Registrar is directed to strike off the name of Mr Salim M Ahmaida Makhlouf from the Register.

The order imposed today will apply from the expiry of the current order on 18 April 2020.

History of Hearings for Mr Salim M Ahmaida Makhlouf