Mr Mundatta Nundoo

Preliminary Matters

Proof of Service

1. In support of the application, a skeleton argument dated 29 April 2020 was provided to the Panel by Ms Simpson on behalf of the HCPC. She submitted that service of notice of the hearing had properly been effected in accordance with the Rules.

2. Ms Simpson stated that the Registrant was sent a Notice of Hearing on 2 April 2020 by email to his registered address. This Notice identified the date of the hearing, and confirmed that the matter would be considered ‘on the papers’. It also requested that the Registrant provide any written representations by 16 April 2020. The Notice was sent electronically only, because the HCPC has closed its offices in the light of the current pandemic and employees are unable to go outside in order to send anything by post. She informed the Panel that the email has not bounced back, and that delivery of the email has been confirmed.

3. The HCPTS has since written to the Registrant advising him to contact the HCPC by 29 April 2020 if he wishes to have his hearing moved to be heard ‘virtually’, by video link, rather than ‘on the papers’. He has not responded to that correspondence.

4. The Panel is satisfied that Notice of the hearing had been properly served by email on 2 April 2020 to the Registrant’s last known address. The Registrant has not stated that he wishes to appear pursuant to Rule 13(3) of the Rules. The Panel is therefore satisfied that service of the Notice has taken place in accordance with the Rules.

Proceeding in the absence of the Registrant

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

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

7. She reminded the Panel of the need for the HCPC to fulfil its statutory duty of protecting the public and reviewing the Order before its expiry under Article 30 of the Health Professions Order 2001. She submitted that if an order were made, it was open to the Registrant to request an early review under Article 30(2). 

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

9. The HCPC emailed the Registrant on 22 April 2020 asking that, given the proposal that the review be considered ‘on the papers’, if the Registrant wished nevertheless to attend by video and give oral evidence, he should notify the HCPC by 29 April 2020 so that the necessary arrangements could be made. She submitted that the Registrant has not made any application to adjourn the hearing, nor has he applied to have the matter listed ‘virtually’. Ms Simpson therefore submitted that the Registrant appears to have voluntarily absented himself from attending the hearing, and has deliberately waived his right to attend.

10. Furthermore, she submitted that, as this is a mandatory review of the current Order, it is in both the Registrant’s interests and in the public interest for a review of the statutory order to take place as scheduled. The consequences of not proceeding would be that the Order would lapse on expiry on 21 June 2020 (not the 1 June 2020 as stated in the skeleton argument) and the Registrant would be automatically restored to the HCPC Register in circumstances where it has not been determined that he is fit to return to practice.

11. The Panel heard and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution. He referred the Panel to the cases of R v Hayward, Jones & Purvis in the Court of Appeal ([2001] EWCA Crim 168), and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. He advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and the public interest and that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”. It further stated that, “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

12. The Panel has also taken into account the HCPTS’s Practice Note on Proceeding in the Absence of the Registrant.

13. The Panel was satisfied that notice of this hearing was sent to the Registrant’s registered address by email dated 2 April 2020. The Registrant had been informed that the case would be heard ‘on the papers’. The Panel considered that the HCPC had made all reasonable efforts to serve the notice on the Registrant in accordance with Rule 11 and that he had been provided with the means of knowledge as to when and how this hearing was to take place.

14. In reaching its decision, the Panel has taken account of the following:

• Notwithstanding that the HCPC’s skeleton argument was served on the Registrant by email on 30 April 2020, the Registrant has not responded to the application;

• The Registrant has not raised any objection to the case being heard ‘on the papers’;

• The Registrant has not stated that he wishes to attend the hearing nor has he applied for an adjournment.

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

Background

16. The Registrant was employed as an Operating Department Practitioner (ODP) in the North East London NHS Treatment Centre (NELTC) from 2011.

17. On 17 June 2016, Patient X was admitted to the NELTC to undergo a left knee arthroscopy. She had previously undergone a left knee aspiration in February 2016 at the treatment centre. A General Anaesthetic was administered to Patient X and she was transferred to the operating theatre from the anaesthetic room where second stage safety checks were conducted. At this stage the scrub nurse checked the patient consent form and noticed that it made reference to a knee Aspiration rather than a knee Arthroscopy. This conflicted with the details on the theatre list which correctly indicated that the procedure to be performed was one of Arthroscopy. The scrub nurse alerted the team to this error and, on investigation, it transpired that the consent form in question in fact related to the previous aspiration procedure that Patient X had undergone in February 2016. The surgery therefore had to be abandoned.

18. As the responsible ODP, the Registrant took the lead in completing the Nursing Pre-Operative Checklist on the handover from the ward staff and the World Health Organisation (WHO) Surgical Safety Checklist in the anaesthetic room.

19. The Nursing Pre-Operative Checklist, as part of the patient pathway, required the Registrant to confirm that the consent form was “signed and verified against the theatre list.” The Registrant ticked this despite the existence of the discrepancy between the two forms. The Registrant also, in completing his part of the WHO Surgical Safety Checklist, remarked “patient identity/procedure consent/wristband confirmed.”

20. On noticing the discrepancy, the Registrant should have escalated matters immediately to the Consultant Surgeon or others within the operating department team. This was so that proper enquiries could be made before the patient was anaesthetised. This did not happen. The surgery had to be abandoned and the result was a delay to the treatment of the patient, who had to endure ongoing knee pain until the appropriate procedure was conducted about a week later.

Substantive Hearing: 23-25 May 2018

21. The Registrant was referred to the HCPC, and a substantive hearing took place between 23 -25 May 2018. At that hearing, the Registrant was neither present nor represented. At that time, he had not engaged in the regulatory process at all from the very outset.

22. The substantive hearing panel found the facts of the Allegation proven. The Registrant, it appeared from the documents relating to the Registrant’s employer’s disciplinary process, did not deny the existence of the discrepancy, nor did he deny the fact that he failed to confirm or raise the discrepancy with his colleagues. He stated instead, that the patient was unsure of the procedure, but as the consent form had been signed, he gave precedence to this and ignored dealing with the discrepancy.

23. The substantive hearing panel also found that the Registrant had been responsible for failing to conduct safety checks and failing to inform the operating team that the patient did not have a valid written consent form for the procedure she was to undergo. This, it concluded, was a basic and central part of his duty, and the Registrant failed to abide by it. The result was that the operation was abandoned after the patient was anaesthetised. The patient had to receive a second general anaesthetic unnecessarily, and the patient remained in pain for another week. The substantive hearing panel concluded this was a serious failing in that the Registrant wholly failed to engage with mandatory patient safety procedures.

24. The substantive hearing panel also found the Registrant’s fitness to practise was impaired. He had not fully recognised his failings, nor the danger his misconduct posed. He had not provided evidence of remediation, and consequently, the substantive hearing panel concluded that there was a risk of repetition of such shortcomings.

25. The substantive hearing panel considered that this was an isolated incident, and that the Registrant was generally a valuable and conscientious staff member. However, the misconduct caused unnecessary pain to the patient, and resulted in her undergoing a second general anaesthetic. The Registrant had also sought to deflect the blame elsewhere. It therefore considered that anything less than a Conditions of Practice Order would not provide the appropriate level of public protection or uphold the public interest.

26. The Registrant’s lack of engagement with the process, as well as the seriousness of the misconduct, meant that a Conditions of Practice Order was considered inappropriate. The substantive hearing panel therefore imposed a Suspension Order for a period of 12 months, to allow the Registrant to reflect on the findings, and consider how he might remediate his failings.

First Substantive Review Hearing: 21 May 2019

27. The Suspension Order was first reviewed on 21 May 2019. At this hearing, the Registrant attended via telephone and represented himself, but did not provide any documentation. The Registrant gave evidence, but the reviewing panel had some reservations about it. For example, he told the reviewing panel that he accepted responsibility at the disciplinary hearing, but the substantive hearing panel found it was only during the appeal process that the Registrant began to show an element of insight into his shortcomings. The Registrant told the reviewing panel about the significant impact of the Suspension Order on himself and his employment. Although he apologised, the reviewing panel was not persuaded he had demonstrated remorse. He had not focussed fully on the nature and gravity of the substantive hearing panel’s finding of misconduct.

28. He had, however, in the reviewing panel’s judgment, begun to reflect on the decision, and develop some limited insight. He spoke about the impact on the patient, her family, and public, and his profession. He acknowledged that the patient suffered harm because she was subject to a secondary unnecessary anaesthetic. He described, however, the events as a ‘mistake’, which in the reviewing panel’s view, did not properly reflect the nature or gravity of the Registrant’s misconduct.

29. Although this was an isolated incident in a long career, the reviewing panel was concerned that there was no persuasive evidence that the Registrant would act differently in the future, so that a similar incident would not be repeated. When asked what he would do differently, the Registrant said he would ask another member of staff to check his documentation. The reviewing panel considered this was unrealistic and impracticable. The Registrant is an autonomous practitioner, and is expected to take personal responsibility for the accurate completion of his work.

30. The reviewing panel remained concerned at the limited level of insight demonstrated by the Registrant, and concluded that there remained a risk of repetition of his failings. It therefore found the Registrant’s fitness to practise remained impaired. It imposed a further 12 months’ Suspension Order, to enable the Registrant to further reflect on its decision, and develop his level of insight. It considered that a future reviewing panel would be assisted by:

a. A reflective piece in writing, demonstrating his understanding of the nature and gravity of the misconduct, and its wider impact on various parties; and

b. Details of what steps he has taken to facilitate his returning to practice.

Today’s Review Hearing:

HCPC’s Submissions

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

32. She reminded the Panel that under Article 30(1) of the Health Professions Order 2001, the Panel may:

a. Extend the Suspension Order;

b. Make any order it could have made at the time of the original Order being imposed;

c. Or replace the Suspension with a Conditions of Practice Order, with which the Registrant must comply if he resumes practice.

33. As this is a case based on a finding of misconduct, she submitted that all sanctions are available to the Panel, up to and including a striking off order.

34. Given that there has been no contact from the Registrant since his attendance at the last review hearing a year ago, the HCPC submitted that the Registrant’s fitness to practise remains impaired. Ms Simpson submitted that the Registrant has not discharged the persuasive burden placed on him by the case of Abrahaem v GMC [2008] EWHC 183 (Admin). It remains the case that:

a. The Registrant has not demonstrated any further level of insight;

b. The Registrant has not provided any evidence of steps taken to remediate his misconduct;

c. There must therefore remain a high risk of repetition of similar misconduct.

35. Ms Simpson submitted that, were this an oral hearing, the HCPC may well have requested that a striking off order be made, should nothing further from the Registrant be provided, in the light of his disengagement from the regulatory process. However, considering that the Registrant has not been able to attend this hearing and present his case to the Panel orally, in light of the COVID-19 pandemic restrictions, the HCPC submits that the appropriate and proportionate sanction is to impose is a further Suspension Order for a period of 12 months.

36. She stated that should anything further be received from the Registrant between the date of writing her skeleton argument and the date of the hearing, it will be forwarded to the Panel, along with any further submissions from the HCPC, if the information provided is such as it would change the HCPC’s position.

37. No further information has been made available to the Panel.

Registrant’s submissions

38. No submissions have been provided either by, or on behalf of the Registrant.

Legal advice

39. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. He referred the Panel to the case of Yussuff v GMC [2018] EWHC 13 (Admin) in relation to the approach to be adopted in relation to this review hearing. He reminded the Panel that its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

40. The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings:

“Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired by reason of his misconduct in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?...”

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

Panel’s decision

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

43. There is no evidence or new information before the Panel today that could satisfy it that the Registrant’s fitness to practise is no longer impaired. The Registrant did not fully engage with the final hearing nor has he engaged in the current review process. There is no indication to suggest that the Registrant has developed the remediation process including whether he has further reflected on his past failings or by taking any of the steps suggested by the Reviewing Panel. In the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the personal component of impairment.

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

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

46. The Panel then went on to consider what the appropriate and proportionate sanction should be, starting with the least restrictive. It bore in mind that the purpose of a sanction was not to be punitive, although a sanction may have that effect. In doing so, it took into account the HCPC’s Sanctions Policy.

47. The Panel also bore in mind that its over-arching objective is:

• to protect, promote and maintain the health, safety and wellbeing of the public;

• to promote and maintain public confidence in the profession; and

• to promote and maintain proper professional standards and conduct for members of the profession.

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

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

50. The Panel next considered whether to impose a Caution Order in light of paragraph 101 of the Sanctions Policy. However it concluded such an order would not be sufficient to protect the public, nor would either be in the public interest given that the Registrant’s failings were not minor. Such an outcome would not restrict the Registrant’s practice and would therefore not adequately protect the public or safeguard the public interest.

51. The Panel next considered whether to impose a Conditions of Practice Order. It had regard to paragraph 106 of the Sanctions Policy, but concluded that it would neither be appropriate nor proportionate given the nature of the misconduct found proved and his lack of engagement with this reviewing process.  In the circumstances, it concluded that it could not formulate appropriate conditions to address the Registrant’s misconduct, particularly given the Registrant’s lack of engagement in today’s hearing and lack of demonstrable insight. The Panel has no information as to the Registrant’s current circumstances. The information before the Panel is such that the Panel cannot be satisfied that the Registrant is willing or able to comply with any conditions that may be imposed.

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

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

54. The Panel repeats the suggestions of the first reviewing panel that a subsequent reviewing panel might be assisted by the following:

a.  his attendance at the next review hearing;

b.  a reflective piece in writing, demonstrating his understanding of the nature and gravity of the misconduct, and its wider impact on various parties; and

c. Details of what steps he has taken to facilitate his returning to practice, including any CPD he has undertaken.

Order: The Registrar is directed to suspend the registration of Mr Mundata Nundoo for a further period of 12 months upon the expiry of the existing order.

The order imposed today will apply from 21 June 2020.
 
This order will be reviewed again before its expiry on 21 June 2021.

History of Hearings for Mr Mundatta Nundoo