Mr Paul R Hicks

Preliminary matters:

Service

1. The Panel was aware that written notice of these proceedings was sent by email to the Registrant at his registered email address on 10 August 2020. The Notice gave full particulars of this hearing, including date, time and the fact that it would be conducted remotely. The Panel was shown documents which established both the fact of the service, the information supplied and the identity of the Registrant’s email address. In these circumstances the Panel accepted that proper service of the notice had been effected in accordance with the rules.

Proceeding in the absence of the Registrant.

2. Mr Lloyd on behalf of the HCPC submitted that the Panel should consider the case in the absence of the Registrant.

3. Mr Lloyd informed the Panel that the HCPC has received no communication from the Registrant as regards this hearing. He further informed the Panel that the Registrant had not engaged with the HCPC since January 2020.

4. The Panel heard and accepted the advice of the Legal Assessor.

5. The Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great care and caution. However, the Panel has decided to proceed in the absence of the Registrant. The reasons are as follows:

• Service of the appropriate notice of this hearing has been properly effected.

• The Registrant has not applied for an adjournment. He has not engaged with the HCPC as regards this hearing or at all since January 2020.

• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.

• There is a public interest in proceeding.

• In all the circumstances the absence of the Registrant should be treated as voluntary.
Application to amend the Allegation

6. At the commencement of the hearing, Mr Lloyd on behalf of the HCPC applied to amend the Allegation by substituting the year 2018 for 2017. He said that this would accurately reflect the evidence. Mr Lloyd informed the Panel that the Registrant had been told of the nature of the proposed amendment by a letter dated 2 January 2020, sent to his registered address. Mr Lloyd stated that the proposed amendment did not change the substance of the case and that the amendment could be made without unfairness to the Registrant. Mr Lloyd further informed the Panel that the Registrant has not raised any objection to the proposed amendment or otherwise engaged with the HCPC with regard to this hearing. The Panel heard and accepted the advice of the Legal Assessor. Having concluded that the amendment could be allowed without unfairness to the Registrant, the Panel determined that the Allegation should be amended so as to substitute the year 2018 for the year 2017.

Procedure

7. The Panel decided to consider the facts, misconduct and impairment as a single stage and then, if appropriate, to consider sanction separately.

Background:

8. The Registrant was employed as an Operating Department Practitioner with Spire Healthcare from 16 May 2005 to 4 May 2018. At the time of the alleged incident, the Registrant was working in the Theatre Department at the Spire Bushey Hospital.

9. On 17 February 2018, The Registrant arrived at work to assist in a theatre deep clean. Two members of staff, KBM, an Operating Department Practitioner, and VS a Scrub Nurse, encountered the Registrant on separate occasions and were concerned that he was under the influence of alcohol whilst at work.

10. Both KBM and VS reported their concerns to SM, Deputy Theatre Manager. SM escalated the concerns to LS, Theatre Manager. The Registrant was sent home.

11. LS was appointed as the investigating officer on 17 February 2018.

12. There was an investigatory meeting with the Registrant on 1 March 2018 and a disciplinary hearing was held on 24 April 2018, which was attended by the Registrant.

13. On 24 May 2018 the HCPC received a referral regarding this matter.

Summary of the evidence and other material before the Panel

14. The HCPC case was supported by the oral and written evidence of the two witnesses mentioned above, namely KBM and VS. Both have made written statements which the Panel has seen. The statement of KBM is dated 4 January 2020 and that of VS is dated 11 January 2020. Relevant parts of the oral and written evidence given by the two witnesses are summarised below.

15. In addition, the Panel has seen a written statement from LS which is dated 22 January 2020.

16. The Panel was greatly assisted by the evidence of both live witnesses. The Panel regarded both of them as honest and credible. Their oral evidence was consistent with that contained in their written statements. The Panel detected no evidence of animus against the Registrant. Both witnesses responded to the questions put to them with clarity. Both acknowledged when they did not know the answer to the questions posed.

17. In addition, the HCPC has produced and an extensive bundle of documents. The bundle included:

• the written statements of all the relevant witnesses.

• Notes of the meetings conducted with the witnesses and with the Registrant including the disciplinary hearing conducted on 24 April 2018

• Other documents which were generated in the course of enquiries by the HCPC, including material relating to the health of the Registrant and the policy document issued by Spire Healthcare on Substance Misuse.

18. The Panel received the oral and written evidence from the two witnesses called by the HCPC.

The evidence of KBM

19. In her written statement KBM described her encounter with the Registrant on the morning of 17 February 2018. She said that she and the Registrant were checking drugs in a theatre together, when she noticed that the Registrant was acting strangely. He was struggling to say the names of the drugs which they were checking. He was also struggling to find the pages on which the drugs were written and he could not read the numbers on the pages. He was also holding himself up on the table and was swaying. She further said that the Registrant smelt like alcohol. The smell was fresh and was coming from his breath. She said that she could smell it at a distance of one meter. She noticed that the Registrant smelt strongly of aftershave. In her statement she said “which made me think that he was trying to hide the smell of alcohol”. She described being approached by VS, who asked if she thought that the Registrant was drunk. She agreed that he was. VS then reported the Registrant to the Deputy Theatre Manager.

20. KBM responded to questions from Mr Lloyd and from Panel members. In summary her answers included the following:

• That the smell of the alcohol was very distinctive.

• The Registrant’s behaviour was unusual. He was not himself.

• He was acting as if he was drunk.

• He was struggling to stand up.

• When checking the drugs, the Registrant’s voice was slurring.

• In her opinion the Registrant did not seem unwell. There was no sign that he had a temperature or that he was clammy. In her opinion he was drunk.

• She did not think that the Registrant was fit to be at work. It was not safe for anybody. He would not be able to look after patients and was in no state to do the job.

• She had worked with the Registrant before. He often smelt strongly of aftershave.

The evidence of VS:

21. In her written statement VS described her encounter with the Registrant on the morning of 17 February 2018. She said that she was working with the Registrant when she noticed that he did not look well. She noticed that the Registrant appeared unsteady and was struggling to stand up. She said that he had to keep using trolleys and furniture to lean on, in order to help himself to stand up. She said that when the Registrant spoke, his voice was not clear and that it was difficult to understand what he was saying. She also noticed that the Registrant smelt of alcohol, as if it had been consumed the evening before and that the alcohol had not had time enough to be fully digested. She said that the smell was coming from the Registrant’s breath. She said that she was aware that the Deputy Theatre Manager intended to ask the Registrant to bring patients down to the theatre. She thought that the Registrant was in no state to do that. Following a discussion with KBM about the condition of the Registrant, she spoke to the Deputy Theatre Manager about her concerns regarding the Registrant. The Deputy Theatre Manager said that she would send the Registrant home.

22. VS responded to questions from Mr Lloyd and from Panel members. In summary her answers included the following:

• She said that the Registrant was struggling to keep himself on his feet. His face looked puffy and his eyes were half closed.

• She said that she was often close to him, less than one meter away. Not continuously, as he was coming and going. He definitely smelt of alcohol.

• She did not think that the Registrant was ill. She thought that he was under the influence of alcohol. In her opinion the Registrant was displaying the classic signs of being drunk.

• The Registrant smelt of alcohol and chewing gum. She could not recall any smell of aftershave or of cologne. The smell was not of fresh alcohol but of alcohol drunk the previous night.

• She said that the Registrant was not fit to work that day and that a patient would be disconcerted by his appearance and speech; the fact that he was unsteady on his feet, was mumbling and smelt of alcohol. He could not concentrate and would make mistakes.

23. The Panel has read the statement of LS. The Panel is aware that LS is medically unfit to attend this hearing. After hearing and accepting the advice of the Legal Assessor, the Panel decided to admit the written statement as evidence. The Panel was told by Mr Lloyd that the Registrant had been supplied with all the written material that the HCPC would rely on at this hearing, including the written statement of LS. The Registrant had not raised any objection to any of that material.

24. On 1 March 2018 LS conducted an interview with the Registrant regarding his conduct and condition on the morning of 17 February 2018. A note of the interview was made and was sent to the Registrant so that he could check them and confirm that they were accurate. LS confirmed that the notes were a true and accurate record of the meeting. The Registrant has never commented on the accuracy of the record or sought to correct it.

25. In the course of the interview with LS, the statements made by KBM and VS were put to the Registrant with regard to the incident on 17 February 2018. He said that he had a very limited recollection of the events of that morning. However, he denied being drunk that morning or on the night before. He said that the previous night he had drunk a glass of wine before going to bed at 10.00pm. He said that he “just felt weird” on the morning of 17 February 2018.

26. The Panel has further seen the notes of the disciplinary hearing conducted with the Registrant on 24 April 2018. At that meeting the Registrant emphatically denied that he was drunk on the morning of 17 February 2018. He suggested that the witnesses who thought that they had smelt alcohol, may have confused the smell of alcohol with the smell of aftershave, which he was wearing that morning. He repeated that he had one glass of wine the night before and he had gone to bed sober. He said that there was no way in which he would put his job on the line by being drunk on duty. He said that he would not dream of drinking prior to or during a shift.

27. The Panel has seen a report dated 16 April 2018 from Jenpen, Occupational Health Services. The report purports to contain information gained by the Registrant’s doctor on 10 April 2018.

Submissions made as to the facts, misconduct and impairment

28. The Panel heard the submissions of Mr Lloyd in respect of the facts, misconduct and impairment. In summary, he submitted as follows:

• The evidence of the two live witnesses was consistent and credible. He said that on the basis of that evidence, the HCPC had established on the balance of probabilities, that on the morning of 17 February 2018 the Registrant had attended at his place of work under the influence of alcohol and that the Registrant smelt of alcohol.

• That the Registrant was in breach of relevant provisions of the HCPC’s Standards of Conduct, Performance and Ethics and also of the Operating Department Practitioner’s Standards of Proficiency. He identified the provisions on which he relied.

• That the facts alleged amounted to a serious departure from the standards of conduct to be expected from an Operating Department Practitioner and amounted to misconduct.

• That the Registrant has not displayed any insight into his conduct. There was no evidence of remediation; there was a risk of repetition and for that reason the Panel should find that the Registrant’s fitness to practise was impaired.

• Public confidence in the profession, its regulator and the need to maintain professional standards, would all be undermined if a finding of current impairment was not made.

29. The Panel has received no submissions or representations from or on behalf of the Registrant. The Registrant has not engaged with the HCPC since January 2020. The Panel has no information as regards the present circumstances of the Registrant. The Panel however has noted what the Registrant said in the interview conducted on 1 March 2018 and at the disciplinary hearing on 24 April 2018.

30. The Panel heard and accepted the advice of the Legal Assessor as to facts, misconduct and Impairment.

31. The Panel was aware that on matters of fact the burden of proof rests on the HCPC and that the standard of proof is the civil one, namely on the balance of probabilities.

Decision on Facts:

32. Having considered all the evidence that it has received and the submissions that it has heard, the Panel makes the following findings:

With regard to Particulars 1 a) and 1 b) - Both particulars found proved.

33. The Panel’s reasons for concluding that both the particulars are proved are as follows;

• It accepts the evidence of the witnesses called by the HCPC. It finds their evidence to be detailed, truthful and credible. Both witnesses were clear in their evidence that the Registrant was under the influence of alcohol and that they smelt alcohol on his breath. Their evidence was authoritative and mutually consistent. Their oral evidence was also consistent with their written statements. The Panel had no hesitation in accepting the truth of what they said in evidence. As a consequence of what they had observed and the action taken, the Registrant was sent home. The Registrant has not given any plausible explanation for his condition that morning. Accordingly, the Panel accepts that on the morning of 17 February 2018 the Registrant attended his place of work under the influence of alcohol and that his breath smelt of alcohol.

Decision on Grounds and Impairment:

34. The Panel next considered whether the matters found proved amount to Misconduct; if so, whether the Registrant’s fitness to practise is thereby impaired.

35. The Panel heard and accepted the advice of the Legal Assessor. Both Mr Lloyd and the Legal Assessor referred the Panel to relevant cases. Mr Lloyd also referred the Panel to the Practice Note issued by the Health and Care Professions Tribunals Service. The Panel is aware that any findings of Misconduct and Impairment are matters for the independent judgement of the Panel and that, in respect of both issues, there is no burden or standard of proof.

36. The Panel considered the submissions of Mr Lloyd and concluded that the conduct of the Registrant as found proved did amount to breach of Paragraph 6.1, 6,2, 6.3 and 9.1 of the HCPC Standards of Conduct Performance and Ethics [2016]

• 6 - Manage risk

Identify and minimise risk

• 6.1 - You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

• 6.2 - You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
Manage your health

• 6.3 - You must make changes to how you practise, or stop practising, if your physical or mental health may affect your performance or judgement, or put others at risk for any other reason.

• 9 - Be honest and trustworthy

Personal and professional behaviour

• 9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

37. The Panel, accepting Mr Lloyd’s submissions, also determined that there was a breach of paragraphs 2.9, 3.1 and 15 of the Operating Department Practitioner’s Standards of Proficiency.

• 2.9 - be able to exercise a professional duty of care

• 3.1 - understand the need to maintain high standards of personal and professional conduct

• 15 - understand the need to establish and maintain a safe practice environment

38. The Panel also had regard to the policy document issued by Spire Healthcare on Substance Misuse. It noted that with regard to the consumption of alcohol, the policy document stated “employees are required on all occasions to attend work in a fit state to be able to carry out their normal duties. Employees should not consume a quantity of alcohol before their shift (including the night before their shift) which is likely to impair their performance or conduct at work”. The Panel noted that the Registrant’s conduct on the morning of 17 February 2018 was in breach of this policy document.

Misconduct:

39. The Panel concluded, having regard to the guidance given by the courts in the relevant authorities, that the facts that have been found proved, are a serious departure from the standard of conduct and performance that is properly to be expected of an Operating Department Practitioner. The Panel concluded on the evidence before it, that on the morning of 17 February 2018 the Registrant was under the influence of alcohol and was unfit for work. The consequences of the Registrant’s failings could have caused serious harm to the patients involved and the Registrant should have known that. The Panel has therefore determined that the facts found proved amount to Misconduct on the part of the Registrant.

Impairment:

40. Having determined that the Registrant’s conduct, as found proved, amounts to Misconduct, the Panel proceeded to consider whether the Registrant’s fitness to practise is thereby impaired. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise. In considering this issue, the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin]. In particular the Panel considered whether there was a risk that the Registrant would in the future act in a way similar to that found proved. The Panel also considered whether public confidence in the profession, in the HCPC as its regulator and the need to maintain proper standards of conduct, would be prejudiced if a finding of current impairment was not made.

41. The Panel concluded that the Registrant’s current fitness to practise is impaired by reason of the facts that have been found proved. The Panel noted that the Registrant has not engaged with the HCPC with regard to these proceedings since January 2020. He has not produced any evidence of insight into or remorse for his condition on the morning of 17 February 2018. There is no evidence that he has sought to address or remediate his conduct or any of its underlying causes. In these circumstances the Panel concluded that there is a serious risk of repetition.

42. The Panel further concluded that public confidence in the Operating Department Practitioner profession and in the HCPC as its regulator, would be undermined if a finding of impairment was not made. The Panel considered that the need to maintain proper standards within the profession required a finding of present impairment to the Registrant’s fitness to practise.

Decision on Sanction:

43. Having concluded that the Registrant’s fitness to practise is impaired, the Panel proceeded to consider what, if any Order, is both appropriate and proportionate, to protect the public and to safeguard the public interest.

44. Mr Lloyd made submissions on behalf of the HCPC. He emphasised that the decision as to the appropriate sanction, was a matter for the judgement of the Panel and the HCPC did not intend to make any specific recommendations. He reminded the Panel of the principle of proportionally. He said that the Panel should have regard to the Sanctions Policy published by the HCPC and identified some aggravating and mitigating factors in the case.

45. The Panel has considered all the submissions. It has accepted the advice of the Legal Assessor. It has taken account of the Sanctions Policy published by the HCPC and dated March 2019. It kept in mind that the purpose of a sanction was not to be punitive but to protect the public and to sustain the public interest.

46. The Panel took into account the principles of proportionality, balancing the interests of the Registrant with the public interest.

47. The Panel also took into account the relevant aggravating and mitigating factors.

48. With regard to the aggravating factors; the Panel considered the following to be relevant;

• the risk of potential harm to patients - though none was in fact caused.

• The absence of any evidence of remorse on the part of the Registrant.

• The fact that the Registrant has not shown any insight into his conduct or into the impact that such conduct would have had on patients or on the reputation of his profession.

• The fact that the Registrant has not fully engaged with the HCPC.

• The absence of any evidence that the Registrant has addressed or sought to remedy his conduct or the underlying causes.

• The risk of repetition of the Registrant’s behaviour.

49. With regard to mitigating factors; the Panel took into account that no harm was in fact done to any patient.

50. The Panel has concluded that to take no action would be wrong. Such an outcome would be inappropriate having regard to the facts of the case. It would not protect the public or maintain public confidence in the profession or in the HCPC as its regulator. The Panel came to the same conclusion as regards a Caution Order.

51. The Panel next considered making a Conditions of Practice Order. It has taken into account the guidance in the Sanctions Policy. It has concluded that a Conditions of Practice Order would not be appropriate and would not protect the public or address the public interest. In coming to this conclusion, the Panel was conscious that the Registrant has not engaged with these proceedings. He has provided no evidence as to the nature of his present employment [if any] and he has given no indication as to whether he wishes to resume his career as an Operating Department Practitioner. In these circumstances the Panel did not think that any appropriate conditions could be formulated, which would satisfactorily protect the public from risk or address the public interest.

52. The Panel next considered a Suspension Order. It concluded that a Suspension Order for a period of 12 months was the proportionate and appropriate Order. It took into account that the Registrant’s conduct was in principle remediable. Applying the principle of proportionality, the Panel concluded that it was right at this stage to give the Registrant a further opportunity to address and remediate his conduct and the underlying causes for that conduct. Moreover, a Suspension Order would protect the public and at the same time enable the Registrant to determine whether he wished to resume his career as an Operating Department Practitioner. A period of 12 months would give the Registrant sufficient time to address these objectives.

53. The Panel did consider making a Striking Off Order, but concluded, that on this occasion, such an Order would be disproportionate.

54. This Order will be reviewed before it expires. At such a review the full range of sanctions will be available to the reviewing panel including a Striking Off Order. The Panel considers that a reviewing Panel might be assisted by the following:

• The physical presence [if necessary by video link or telephone] of the Registrant.

• Evidence as to whether the Registrant wishes to resume his career as an Operating Department Practitioner.

• A reflective piece from the Registrant addressing the failings and deficiencies that have been established at this hearing. Also, his insight as to the impact that his conduct may have had on patients and colleagues and on public confidence in the profession of Operating Department Practitioner.

• Evidence as to what the Registrant has been doing both in paid employment and voluntary work since May 2018.

• Testimonials and references from any present employer and those with whom he has been working since May 2018.

• Evidence, including evidence from his GP, to demonstrate that he has addressed the problems identified in the report from Jenpen dated 16 April 2018 and has followed the advice which is there summarised.

That the Registrar is directed to suspend the registration of Mr Paul R Hicks for a period of 12 months from the date this order comes into effect.

This Order will be reviewed before its expiry.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European Alert Mechanism:

In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order:

Proceeding with the application in the Registrant’s absence

1. Following the Panel announcing its decision on Sanction, Mr Lloyd applied for an interim order application to proceed in the Registrant’s absence.

2. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to proceed in the Registrant’s absence. It was satisfied that the Registrant had been given notice, in the notice of hearing dated 10 August 2020, that the HCPC may make such an application in the event that a sanction which removed, suspended or restricted his right to practise was imposed.

3. The Panel considered that the same factors applied as for its decision to proceed with the hearing, namely that the Registrant had not engaged with the HCPC since January 2020, had not applied for an adjournment, it was unlikely that an adjournment would secure his attendance in future and that the Registrant appeared to have voluntarily waived his right to attend the hearing.

Interim Order Application

4. Mr Lloyd applied for an Interim Suspension Order for 18 months on the grounds of public protection, public interest and to cover the appeal period before the Suspension Order sanction comes into effect.

5. Having heard and accepted the advice of the Legal Assessor and having had regard to the Practice Note on Interim Orders, the Panel decided to impose an Interim Order of Suspension for 18 months.

6. The Panel was satisfied that an Interim Order was necessary to protect the public. The Panel has found misconduct and current impaired fitness to practise on both the personal and public components, as the Registrant has not demonstrated any insight, remorse or remediation of his failings and consequently there is a serious risk of repetition.

7. The Panel was also satisfied that an Interim Order was required in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour. Having found that the Registrant’s fitness to practise is currently impaired, and that the appropriate sanction is one of a Suspension Order, the Panel was of the view that the public would be concerned if the Registrant were permitted to practise during the appeal period.

8. The Panel considered an Interim Conditions of Practice Order, but given the Registrant’s lack of engagement, conditions were not appropriate for the same reasons as set out in the substantive hearing.

9. In all the circumstances the Panel decided to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.

Interim Suspension Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mr Paul R Hicks