Mr James Kwabena Aboagye

Profession: Operating department practitioner

Registration Number: ODP35326

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 26/10/2020 End: 17:00 28/10/2020

Location: Virtual Hearing

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

As a registered Operating Department Practitioner (ODP35326) your fitness to practise is
impaired by reason of your conviction and/or misconduct. In that:

1. On 23 October 2018, at Cambridgeshire Magistrates Court, you were
convicted of driving a motor vehicle on 11 June 2018, after consuming so much
alcohol that the proportion of it in your blood, namely 188 milligrammes of
alcohol in 100 millilitres of blood, exceeded the prescribed limit. Contrary to
section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic
Offenders Act 1988.

2. You did not inform the HCPC in a timely manner that you had been
convicted of the offence at allegation 1 above.

3. Your conduct in relation to allegation 2 above was dishonest.

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

5. By reason of your conviction and/or misconduct, your fitness to practise is
impaired

Finding

Preliminary matters
1. It was proposed and accepted by the Panel that in this particular case it would be more appropriate and practical to hear the evidence and make a decision upon the issues set out in particulars 2 and 3 above, and whether, if found, they support a finding of misconduct, before moving on to consider the issue of impairment.

Background
2. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP). On 23 October 2018 he had been convicted of driving under the influence of alcohol at Cambridge Magistrate’s Court. The incident that led to this conviction occurred on 11 June 2018.

3. The Registrant applied on the 3 December 2018, to be registered with the Your World Recruitment Group (the Agency) as a locum to enable him to undertake additional shifts at hospitals in various locations around London. These shifts were to be in addition to his full-time employment at North Middlesex University Hospital.

4. The Registrant confirmed in his application to the Agency that he had received the conviction for drink-driving in October 2018. The Agency asked the Registrant whether he had informed the HCPC and the Registrant had replied that he intended doing so on renewal of his registration. The Agency, having checked with the HCPC on 7 January 2019, informed the Registrant by email on the 11 January 2019, that he should make a self-referral to the HCPC.

5. The Registrant sent to the fitness to practise department a completed self-referral form relating to his conviction which was dated 8 February 2019 and received by the HCPC on 13 February 2019.

Decision on Facts
6. The onus to prove the facts is upon the HCPC. It was accepted that whilst the Registrant has made an admission to Particular 2, this does not amount to a confession and does not shift the burden from the HCPC. The standard to which the HCPC must prove the Particulars identified in the Allegation is the common law standard of the balance of probabilities.

7. The Panel heard and accepted the advice of the Legal Assessor on the matters which it should consider at this factual stage of the proceedings. In relation to the issue of dishonesty, the Legal Assessor gave detailed advice including reference to paragraphs 74 and 75 of the case of Ivey v Genting Casinos 2017.

8. The Panel has received and read the HCPC’s electronic bundle of documents which contained 103 pages. The Registrant provided the Panel with a bundle of documentation prior to the hearing however these did not pertain to the factual stage of proceedings.

9. Within the HCPC bundle were two statements from MR, a Registration Manager at the HCPC. The HCPC relied on the contents of these two statements and the supporting documentation as evidence that the Registrant had:

• On first registration with the HCPC on 30 September 2013 disclosed a conviction on 11 February 2009 for drink-driving.

• Not provided the HCPC Registrations Department with notice of the Conviction on 23 October 2018 in a timely manner, in that it was only brought to the attention of the HCPC on 13 February 2019.

• Not sent the notification of the 2018 Conviction on 23 October 2018 directly to the Registrations Department but to the Fitness to Practise department.

10. The Panel noted that in relation to the two statements of MR, who did not give live evidence, it was to give them appropriate weight.

11. The Panel in reaching its decisions on the factual basis of Particulars 2 and 3 has taken into account the totality of the information placed before it.

12. The HCPC relied upon the evidence of SMC, a nurse registered with the Nursing and Midwifery Council, and who is the Clinical Advisor at the Agency. She had been involved with the Registrant’s application and admission onto the Agency’s register of ODPs in Anaesthetics. The Panel considered her to be a reliable and credible witness whose evidence was consistent with her sworn statement and supporting documentation.

13. The Registrant gave evidence and offered himself for cross examination. In the Panel’s view his testimony was credible, consistent, and accorded with the body of documentation before the Panel. His evidence of his intentions and state of understanding in relation to notification of his conviction to the HCPC, was believable and was consistent with the evidence of SMC and the supporting exchanges of emails between them.

Particular 1 – evidence of a conviction.
14. The Panel accepts the electronic Certificate of Conviction provided by the Cambridge Magistrates Court as incontrovertible proof of that conviction. The Panel accepts that it cannot go behind the fact of that conviction. The Panel noted that the Registrant had entered a guilty plea at the hearing and had been banned from driving for a period of twenty months, which would be reduced by 20 weeks by the Registrant completing a course approved by the Secretary of State, such course not to cost more than £250. The Registrant had been fined £441 and ordered to pay Crown Prosecution Services costs of £85 plus a surcharge to fund victim services of £44.

Particular 2 – found proved
15.  The Panel heard evidence from SMC, that following the receipt of the Registrant’s application for registration dated 3 December 2018, she had asked the Registrant the following week during a telephone conversation if he had informed the HCPC of his conviction. SMC recalls that the Registrant’s response was that he would wait until his registration was renewed to inform the HCPC about his conviction. SMC had then contacted the HCPC on 7 January 2019 and was informed that the Registrant was required to inform the HCPC as soon as possible after receiving the conviction. SMC had informed the Registrant of this by way of email on 11 January 2019. The Panel noted that this information had been supplied to the Registrant by SMC by way of forwarding the email which SMC had received from the fitness to practise department. In a further email exchange SMC had provided the HCPC with the Registrant’s details and confirmed that the Registrant had told her that he had informed his full-time employer of his conviction and was handling the matter of notification with the support of his employer.

16. The Registrant confirmed in evidence that he did not disclose the conviction to the HCPC in October 2018 and had initially relied upon his employer for advice and guidance. He believed that he would be required to disclose his conviction at the time of the renewal of his registration. He told the Panel that having been alerted to the need to notify the HCPC he then needed to find the time to complete and send off the form to the HCPC which he found difficult as he did not have a scanner at home. He stated that he had eventually bought a scanner to assist him complete this task. The Registrant told the Panel that he did not appreciate how important this notification process was, and only now that it has reached a hearing does he appreciate that he should have given it a much higher priority than he did in January 2019. He said that on reflection he had made a ‘wrong judgment’. Within the context of working long shifts and spending 3 hours a day commuting to and from work he realised he had not given time to what he now knew was an important matter.

17. Standard 9.5 of the HCPC Standards of Conduct, Performance and Ethics states:

You must tell us as soon as possible if: –
you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence.’

The Panel noted that this standard required the Registrant to inform the HCPC in June 2018, at the time he was charged as well as at the time of his conviction. The Panel considered that the period between the conviction on 23 October 2018 and notification on 8 February 2019 was certainly not ‘as soon as possible’. The Particular as drafted alleges that the notification had ‘not been made in a timely manner.’  Had the notification been a few weeks or even a month late, depending on the circumstances that prevailed, it could be considered that this was timely. In the Panel’s view, this delay of several months could not be considered to have been made in a timely manner. The Panel therefore find this Particular proved.

Particular 3 – found not proven
18. The HCPC, in fairness to the Registrant, acknowledged that the Registrant had made disclosure of his previous conviction in 2009 to the HCPC on his application to be registered in 2013, and he had also provided the Agency with information of his 2018 conviction at the time of application. The HCPC reminded the Panel that there was a two-stage process of establishing dishonesty. The first stage involves the Panel assessing the Registrant’s state of mind and his knowledge or belief of the facts. The second stage involves an assessment as to whether an ordinary member of the public would consider, that given the Registrant’s state of knowledge and belief, his failure to inform the HCPC of his conviction was dishonest. The HCPC contended that the evidence demonstrates that the Registrant knew that on initial registration with the HCPC in 2013 he had been required to declare his previous conviction. This would have informed his knowledge that the HCPC needed to know of this later conviction. The Registrant’s course of action in not informing the HCPC directly at the time or for some months after could be considered by an ordinary member of the public to be dishonest.

19. The Registrant confirmed that he had been in practice since 2015 and he has never been accused of being dishonest and this Allegation has been very distressing for him. The Registrant stated that the day after his arrest for drink-driving he had informed his female theatre manager. He further stated that upon conviction he had promptly informed his male theatre manager. He had relied upon and been expecting advice from his managers. The Registrant stated that he thought that he was required to declare the conviction at the time of his next renewal. The Registrant stated that he had not attempted to conceal his conviction as he told his employer and the Agency, and he also knew that it would show up on his DBS. When the Registrant had received a telephone call from SMC, asking if he had informed the HCPC he had gone onto the HCPC website, but he could not identify the information that he needed. On a second attempt, some-time later, the Registrant had found the self-referral form.

20. The Panel noted that the Registrant had been a little uncertain about HCPC procedures and requirements. The Registrant’s reliance on his employer to advise him what to do and his abrogation of personal responsibility for the notification could be a reflection that he has in practice had little contact with his regulator. Notwithstanding this, the Registrant was required to disclose that he had been charged and later convicted of drink-driving and regardless of his state of understanding he was at fault for failing to do so. However, the Panel has to decide whether his omission was also dishonest.

21. The Registrant’s actions throughout were consistent with his stated personal understanding and belief that he could safely wait to notify the HCPC on renewal. From his responses to SMC, as recorded in her statement and exhibited documentation, the Registrant had no appreciation of the urgency of the situation and indicated that he had no understanding that he was required to undertake the notification himself. In evidence the Registrant had expressed his surprise that this lack of, and delay in, notification had become so very serious and led to an allegation of dishonesty. This surprise further supports his statement that he had not thought this an important or urgent matter. The Registrant’s description of his busy full life supported his decision to avoid and delay anything that he did not know or believe was important or urgent. The evidence supports the position that his was a genuinely held belief that the notification was not required by him at that time and that he could delay in notifying his regulator until renewal. He maintained this belief until he was put on notice of the necessity of informing his regulator in January 2019. Despite some tardiness in responding to this new information he did eventually inform the HCPC of his conviction on 13 February 2019. Overall the Registrant’s actions displayed a failure to comprehend the importance and urgency of the requirement to inform the HCPC of his conviction.

22. There is no evidence of concealment of his conviction from either his employer or the Agency which would undermine the Panel’s conclusion that the Registrant genuinely believed that he did not have to notify the HCPC immediately.

23. The Panel having reached this decision on the Registrant’s state of knowledge and belief of the facts moved on to consider whether an ordinary member of the public would consider that the Registrant had been dishonest. The Registrant could be accused of tardiness and naivety but on the information before this Panel it has concluded that a member of the public would not find the Registrant’s actions dishonest. The Panel has therefore concluded that the Registrant’s actions do not amount to dishonesty.

Decision on Grounds
24. In undertaking its consideration of the statutory grounds, the Panel has excluded from its consideration Particular 3 which has not been found proven.

25. At this stage in the Panel’s decision-making process there is no burden on the HCPC, and it is a matter for the Panel’s judgment. In exercising that judgment, the Panel has taken into account the advice of the Legal Assessor and the terms of the HCPTS practice notes. The Panel has also had regard to the terms of the HCPC’s Standards of Conduct Performance and Ethics in force at the time of the events that led to the Allegation, which in this instance is the 2016 edition.

26. In relation to the matter of a conviction, the evidence of a copy of the record of conviction as held on the electronic register at the Magistrate’s Court is sufficient. That copy extract is the current day equivalent of a certified copy of conviction, as referred to in the statutory provisions. In the Panel’s view this is incontrovertible evidence to support this statutory ground.

27. In relation to Particular 2 the Panel, as stated above, has accepted that the Registrant’s actions are in breach of Standard 9.5. The Panel appreciates that a breach of a provision does not of itself support a finding of misconduct.

28. The Panel has found that the Registrant’s action in not notifying the HCPC ‘as soon as possible’ was not dishonest. In making that finding the Panel has undertaken an assessment of the Registrant’s state of mind, his knowledge and belief of his requirement to notify his regulator. From this the Panel concluded that the Registrant has acted as if the notification of his conviction was an administrative tick box process. This approach constitutes conduct unworthy of a registrant however, given that the Registrant informed his employer and Agency, the Panel does not consider that fellow professionals would consider the Registrant’s actions in not informing the HCPC as ‘deplorable’ or ‘serious misconduct’. The Panel has exercised its judgment on this issue, and in isolation from any other finding of misconduct on the part of the Registrant, has concluded that it is conduct which is insufficient on its own to support a finding of serious misconduct. The Panel therefore makes no finding of misconduct in relation to Particular 2.

Decision on Impairment 
29. On the morning of the first day of this hearing the Panel received a small bundle of documents from the Registrant. It consisted of five pages and contained four professional references and a covering note. The four references were from fellow practitioners at North Middlesex University Hospital NHS Trust. The reference from the Registrant’s male theatre manager confirmed knowledge of these HCPC proceedings, was on headed notepaper and stated that the Registrant was considered by his employer to be fit to practise. The other three references were silent on the point of knowledge of these proceedings. All three attested to the Registrant’s good qualities and he was described as professional; having a flexible and calm way of working; being an exceptional team member; a valued colleague; and that his work ethic was ‘exemplary’.

30. From the sworn statement of SMC the Panel was able to identify that the Registrant had worked regularly for the Agency from July 2019 and was still being given placements. SMC had confirmed that the Agency had not received any complaints and had no cause for concern.

31. At the start of this hearing the Registrant had taken the opportunity to open his evidence with an apology to the Panel for the behaviour which had led to him coming before them. The Registrant then confirmed that he would never put himself into this situation again and that he was ashamed of his actions and behaviour. He had told the Panel that in his role as a mentor he had advised students to avoid getting into the same situation.

32. In addition to this evidence, the Registrant at this stage in the proceedings provided information in relation to his current practice and his current view of his conviction. The Registrant told the Panel that as he was the main income generator in his family, and he had suffered greatly as a result of this conviction. Whilst he was banned from driving, he had been forced initially to live away from his family in a hotel close to his work and then later to rent a room near to where he worked. This was costly and in addition there was the cost of travelling to his accommodation on a weekly basis and also the inconvenience of taking his possessions back and forth. The impact of this additional expenditure resulted in him making little contribution to the household. It also impacted on him and his family as he was forced to be apart from them. The fine imposed by the Court and the cost of the approved drink awareness course had added to the financial strain.

33. The Registrant told the Panel that he had learnt a lot from the prescribed alcohol awareness course. He referred to learning the ‘calculation’ of how drink adversely affects a driver’s reaction times and the corresponding impact alcohol has on a driver’s ability to drive safely.

34. He told the Panel that he had been ashamed when he told his colleagues of his conviction. His colleagues had been surprised and had ‘felt sorry for him’ and were concerned ‘as they didn’t want to lose him’ as he was a good worker. The Registrant told the Panel that his employer had not taken any action following his conviction for drink driving. The reference from his male theatre manager appears to confirm this statement.

35. The Registrant repeated his apology for his behaviour and stated that he has made a pledge to himself never to drink again. He told the Panel that his wife was supporting him in adhering to this pledge. The Registrant said that he has taken the step of distancing himself from friends with whom he used to drink socially. He would not be seeing those friends again and had stopped socialising and going to parties where there would be alcohol available. He no longer buys alcohol, and none is now kept in his home.

36. The Registrant confirmed that he had recently been given a ‘recognition award’ for his efforts during the COVID-19 pandemic. In terms of his learning, he told the Panel that in addition to his diploma he had obtained a degree and was planning to study for a masters if he is permitted to continue practising. He stated that there had been no complaints about him professionally either in his full-time employment or arising from placements arranged by the Agency. On several occasions he stressed how important his work, profession and registration were to him.

37. The HCPC stressed that this was the second occasion on which the Registrant had received a conviction for drink-driving and there must therefore remain some concern in the Panel’s collective minds regarding the likelihood of a repetition of that behaviour.

38. The HCPC drew the Panel’s attention to the case of R (Low) v General Osteopathic Council [2007] which marked a distinction between the length or severity of a sentence imposed by a criminal court and that of a sanction imposed by a regulatory body. A regulator will be considering the wider public interest and the need to maintain standards rather than to punish and therefore a regulator may consider minor criminal matters more severely than do the courts.

39. In regard to the public component of the Panel’s decision, the HCPC submitted that in line with the dictum in the case of Grant (referred to below), the public would rightly be concerned if no finding of impairment were made in this case, ‘for drink driving is exceptionally dangerous conduct which must be decried by the regulator and which, if public confidence is in the profession is to be maintained, must be marked’.

40. In reaching its decision on impairment the Panel has accepted the advice of the Legal Assessor. The Panel has also taken into account the following:

• In relation to impairment, the test of impairment is expressed in the present tense, that fitness to practise ‘is impaired’.

• Whether the Registrant’s fitness to practise is impaired is a matter of judgment for the Panel.

• The need to consider the personal and public components of its decision separately and to ensure that the Panel has given full consideration to the public interest in making a finding of impairment, as identified by Mrs Justice Cox in the case of CHRE v NMC and Grant [2011] ECHR 927 (Admin).

• Rule 9 of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) provides ‘where the Committee has found that the health professional has failed to comply with the standards of conduct, performance and ethics established by the Council under Article 21(1)(a) of the Order, the Committee may take that failure into account, but such failure will not be taken of itself to establish that the fitness to practise of the health professional is impaired’.

• The guidance issued by the HCPTS entitled ‘Fitness to Practise Impairment.’

41. The Panel first considered the evidence it had before it relating to the personal component and in this regard as to whether the failings were remediable, had been remedied, and whether there was a likelihood of further repetition of those failings in the future.

42. The Panel considered that it was possible to remedy a drink driving conviction through taking appropriate action and demonstrating insight into the behaviour that led to the conviction.

43. The Panel then considered whether the Registrant had taken appropriate and sufficient steps to remedy his failing. The Panel noted that the Registrant had gained a fuller understanding of the impact of alcohol by attendance at the awareness course. The Panel further noted the personal pledge the Registrant had made to himself to abstain from alcohol and the measures he had adopted to ensure that he was not placed within environments where there would be a temptation to drink. The Panel however had concerns that those measures alone may not be sufficient. The Panel noted the evidence it had from the Registrant regarding the impact on him of the conviction and the HCPC hearing process. The Panel had heard from the Registrant how seriously concerned he was that there was a mark on his professional reputation and professional status. The Registrant was able to express clearly what he feared would happen in the future if there was a repetition: he would lose his registration. The Panel considered that this obvious fear of future repercussions from his actions was what would strengthen and support the Registrant’s personal pledge and his avoidance measures. The Panel therefore came to the conclusion that on the evidence before it the Registrant has taken sufficient steps to address his failings and, in the process, has gained a better understanding of the impact of his previous action. 

44. The Panel then turned to consider whether, in respect of the personal component, there remains a likelihood of a repetition of the behaviour that led to the Registrant’s conviction. To assess this the Panel considered what degree of insight the Registrant has developed into his behaviour. The Panel noted that the Registrant has been able to articulate fully that he has gained insight into how his actions were at fault and how they have impacted his personal professional reputation. The Registrant has demonstrated to the Panel how seriously he applied himself to his work, and the professional references support this view of him. The Registrant has expressed his regret and has apologised several times. This reflects his growing, if not yet fully developed, insight into how seriously others considered a conviction for drink-driving. The Registrant has been clear on what he needs to do to ensure there would not be a repetition. This, together with his current level of developing insight, supports the Panel’s conclusion that it is unlikely that there will be any repetition. 

45. In the Panel’s view the Registrant has taken appropriate steps, has gained sufficient insight, and is unlikely to repeat his behaviour. The Panel has therefore concluded that a finding of current impairment on the personal component is not warranted.

46. The Panel then moved on to consider the public component of its decision. The Panel considered whether the Registrant had brought his profession into disrepute and if his actions had undermined public confidence in the profession and failed to uphold standards.

47. Whilst the Registrant’s actions have not put a patient at risk of harm, his actions had exposed fellow road users and himself to the risk of harm or serious harm.

48. The Panel noted that this was a second drink-driving offence and that whilst the first one was some time ago and occurred before the Registrant was registered with the HCPC it was none the less a repetition, and one that would reflect on his profession. The Registrant’s actions in 2018 had, in the Panel’s view, adversely affected the reputation of the profession.

49. Whilst the Registrant had been able to demonstrate insight into the impact this conviction had on him, in the Panel’s view he had struggled to extend this understanding to the wider public view of his actions. The Panel had asked the Registrant whether he thought a patient who had no previous knowledge of him other than that he had two convictions would have confidence in him as an ODP. The Registrant had difficulty in articulating an understanding of how the patient’s judgment may have been affected by this knowledge. He expressed that he respects everyone, he does not judge, and it is up to him to prove that he is not that kind of a person. For this reason, the Panel considers that the Registrant has not fully understood how his actions may have affected the public’s confidence in him and his profession.

50. The Panel has already articulated the reasons why it considers that the Registrant would be unlikely to repeat his behaviour on a third occasion. However, in the Panel’s judgment a member of the public would rightly be shocked and concerned by the fact of the repetition of a drink-driving offence in 2018 by the Registrant. Drink-driving is a serious offence with potentially serious consequences and there is a need to send a clear message to the Registrant and the profession that such behaviour is not acceptable and warrants a mark of censure. On the basis of the need to declare and maintain proper standards of conduct as well as the need to maintain public confidence in the profession and the regulatory process, the Panel has concluded that on the public component of its decision there is current impairment.

Decision on Sanction
51. The Panel received the parties’ submissions, as summarised below, on the issues they wished the Panel to consider when determining the proportionate and appropriate sanction to impose on the Registrant’s registration.  The Panel has accepted the advice of the Legal Assessor and referred to the March 2019 HCPC Sanctions Policy.

52. The HCPC stressed that the Panel’s finding on impairment on the public component reflects the impact that the Registrant’s actions have had upon the public’s confidence in the profession and that public confidence has been undermined. The HCPC emphasised that it was a matter for the Panel’s judgement as to which sanction to impose and it would not advocate the imposition of any particular sanction.

53. The HCPC however drew the Panel’s attention to the considerations that it should take into account at this stage in the proceedings. In particular, this was a second offence of drink driving and the Presenting Officer drew the Panel’s attention to the Sanctions Policy guidance in relation to the repetition of a course of behaviour. The Registrant should however be given some credit for his entering a guilty plea in 2018 which could be construed as showing a degree of insight. The Registrant’s action in disclosing his conviction to the Agency may also be considered as evidence that there had been no attempt at concealment and he should be given credit for that too.

54. The Panel has found that the Registrant has brought his profession into disrepute, that public confidence in the profession has been undermined and that a mark of censure is required. It would therefore, in the HCPC’s view, be a case where taking no further action would be inappropriate. The Presenting Officer directed the Panel to the relevant section of the HCPC Sanctions Policy which set out the criteria to be considered in relation to the imposition of a Caution Order. He then went on to highlight the practical difficulties the Panel may encounter in formulating conditions of practice where there are no failings with regard to the Registrant’s practice. In reflecting the Panel’s finding that there is no cause for concern in relation to the Registrant’s professional practice, the HCPC submitted that the impact of the imposition of a more serious order of suspension or strike off may be considered by the Panel as disproportionate. 

55. The Registrant told the Panel again that he was a dedicated ODP, loved his job and wished to be allowed to continue with his clinical practise. He emphasised that he had worked very hard to ensure that he undertook his professional duties to the best of his abilities. He reminded the Panel of the financial and personal impact his conviction has had on him and his family.

56. The Panel appreciates that in assessing what is the appropriate and proportionate sanction to impose it is balancing the interests of service users, the wider public and the Registrant. When considering this issue the Panel understands that it should start at the bottom of the range of sanctions available to it and work upwards until it finds the least restrictive sanction that will provide the requisite level of public protection and be in the wider public interest.

57. To assist it in this assessment of the proportionate and appropriate sanction the Panel has identified the following relevant aggravating and mitigating factors:
a. Aggravating factors
i. The Registrant has received two convictions for drink driving.
ii. The amount of alcohol found in the Registrant’s blood in June 2018 was over twice the permitted legal limit.
iii. The Registrant’s actions had exposed the public and himself to a serious risk of harm.
b. Mitigating factors
i. The Registrant has shown true remorse for his actions.
ii. The Registrant has apologised on several occasions for his behaviour.
iii. The Registrant has been able to express his regret for his actions and identify ways in which he will not repeat his behaviour.
iv. The professional references from those who have worked closely with the Registrant described a man who is competent, diligent, hardworking and a flexible team player. He is considered a dedicated and committed Operating Department Practitioner by these colleagues.
v. The Registrant has attended and completed the drink awareness course and has been able to articulate the benefits he gained from undertaking that course.
vi. The Registrant has fully engaged with the Courts and in this HCPTS process.

58. The Panel considered first whether this was a case in which it could take no further action. The Panel noted the guidance within the HCPC Sanctions Policy which states at paragraphs 97 and 98:

• 97. A finding of impaired fitness to practise means that the panel has concerns about a registrant’s current ability to practise safely and effectively. It is therefore unlikely that the panel would take no action following a finding of impairment.
• 98. However, in the cases the panel considers taking no action to be the appropriate and proportionate outcome, it should provide clear reasons to explain this decision and its conclusion that there is no risk to the public, or to public confidence in the profession, in taking no action.

59. The Panel has stated clearly above that it has no cause for concern about the Registrant’s clinical practice. The finding of impairment was in relation to an undermining of the profession’s reputation and public confidence. The Panel is firmly of the view that taking no further action would be a further matter of concern to the public and could undermine the public’s confidence in the regulatory process. For these reasons the Panel has concluded that this is neither a proportionate nor an appropriate course of action.

60. The measure of offering mediation is also inappropriate in this case and would not provide a mark of censure nor would it serve the public interest.

61. The Panel then referred to the Sanctions Policy for guidance on whether the imposition of a Caution Order would be appropriate. The guidance states:
101. A caution order is likely to be an appropriate sanction for cases in which:
• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation.

62. The Panel did not consider this an isolated incident nor that it is minor however, it is limited to the Registrant’s actions on two occasions and relates to his personal, and not his clinical conduct. In the Panel’s view there is a low risk of repetition and the Registrant has shown good personal insight. The Registrant has in addition undertaken appropriate remedial steps to address his behaviour. For these reasons the Panel considers that this may be the appropriate level of sanction.

63. However, to test whether this conclusion is correct the Panel considered the guidance set out in paragraph 102 of the Sanctions Policy which states:

102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).

64. Given that the Panel had no cause for concern about the Registrant’s clinical skills it would, in the Panel’s view, be inappropriate to construct conditions that would restrict his ability to work and impact on his employment and his employer.  The Panel came to the conclusion that in this instance the imposition of conditions would neither be appropriate or practicable. The Panel therefore considered what conditions could be put in place that would reflect the public interest in a situation where the behaviour complained of is conduct that occurred outside of his professional practice. The Panel came to the conclusion that it could not construct such conditions. For this reason, the Panel considered that conditions would not be practicable, nor effective to reflect the public interest.

65. The Panel then considered whether the imposition of a period of suspension would be proportionate and appropriate and serve the public interest. Where there are no concerns about the Registrant’s clinical skills and professional conduct a period of suspension would, in the Panel’s view, be disproportionate and be another form of punishment in this case where the Registrant has already suffered from the impact of his conviction. Further, there is public interest in ensuring that a competent and well respected professional ODP remains in practice. The Panel considered that in all the circumstances of this case, where the Registrant has shown insight, remorse, expressed apology and has taken sufficient remedial steps, the imposition of a Suspension Order would be disproportionate.

66. The Panel having satisfied itself that a Caution Order was the proportionate and appropriate sanction considered the length of time that this should be shown on the Register. In deciding this the Panel took into account the following:
• A short period would not reflect the degree of public interest and may not be seen by fellow practitioners as a sufficient deterrent.
• The period should be sufficiently long to ensure that the adopted strategies to remain abstinent become ingrained and part of the Registrant’s permanent behaviour going forward.
• The period should be sufficiently long to be a reminder of past misdoing.
• The events that led to the conviction occurred over two years ago and that the Registrant and his employer have been aware of his misdoing for that period. Too long a period may be punitive.

67. The Panel has therefore, after very careful consideration come to the conclusion that a period of 3 years is adequate to reflect the public interest and act as a reminder and deterrent to the Registrant from acting in the same way again at any point in the future.

68. The Panel has taken this opportunity to stress to the Registrant that whilst it has accepted his genuine regret, apology and remorse and taken into account his personal strategies to remedy his behaviour he should not be in any doubt that if he were to come before a Panel of the HCPTS in the future, an order which would restrict or remove his ability to practise would be a possible outcome.

Order

That the Registrar is directed to annotate the register entry of Mr James Kwabena Aboagye with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect. 

Notes

No notes available

Hearing History

History of Hearings for Mr James Kwabena Aboagye

Date Panel Hearing type Outcomes / Status
26/10/2020 Conduct and Competence Committee Final Hearing Caution