Mr Prosper Johnson

Profession: Operating department practitioner

Registration Number: ODP13890

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/10/2020 End: 17:00 27/10/2020

Location: This hearing is being held virtually.

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered with the Health and Care Professions Council as an
Operating Department Practitioner and:

1. Working at Derriford Hospital on 9 June 2017 you:
i. Did not carry out observations of Patient A and/or have Patient A’s care pathway
ii. Fell asleep during Patient A’s procedure

2. Working at Northampton General Hospital in or around August 2017
you set up an arterial line with Hartmann’s IV fluid rather than
heparinised saline.

3. Your actions set out in paragraphs 1-2 constitute misconduct and/or
lack of competence.

4. By reason of your misconduct and/or lack of competence your fitness
to practise is impaired.

Finding

Preliminaries


Service of Notice of Hearing

1. The Panel was informed at the start of this hearing that Mr Prosper Johnson (the “Registrant”) was neither present by video link or telephone, nor was he represented.

2. The Panel was informed that the correct form of Notice of Hearing had been sent to the Registrant’s registered email address on 12 August 2020, being the email address that the Registrant has notified, and used in communication with the HCPC on 24 August 2017.

3. On 16 October 2020 a further email was sent to the Registrant but there has been no response from him.

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

5. The Panel took into account that the notice set out the date and time of the hearing and indicated that it would be held “via video conference”. It set out the powers of the Panel and said that “if you do not attend, the committee may proceed with the Hearing in your absence…”. It contained contact details so that the Registrant could make arrangements to attend the Hearing.

6. Having regard to the Covid-19 emergency and the restrictions that had been placed on regulators, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by sending a notice more than 28 days before the hearing to the email address held by the HCPC on the appropriate register, particularly in circumstances where the address was used by the Registrant to communicate with the HCPC.

7. The Panel considered all the information and was satisfied that the Registrant has been served with notice of this hearing in accordance with the requirements of the Rules.

Proceeding in Absence

8. Mr Foxsmith made an application for the Panel to proceed with the hearing in the absence of the Registrant pursuant to Rule 11 of the Rules. The Panel was informed that the Registrant had not responded to the notice of hearing and had not responded to any of the communications sent by the HCPC to his current email address on the register. He had not applied for an adjournment or provided any information as to why the hearing should be adjourned.

9. The Panel had regard to the guidance given in the Practice Note, 'Proceeding in the absence of the Registrant’ dated September 2016 and to the decision of the House of Lords in R v Jones [2002] UKHL 5. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care. It should look at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of right to appear. The Panel noted that the Registrant had not applied for an adjournment and it did not consider that adjourning this matter would secure the Registrant’s attendance. The Panel was satisfied that the Registrant had voluntarily absented himself from the Hearing and waived his right to attend.

10. The case concerns public protection issues arising in 2017. The Panel noted that a witness had attended to give evidence and another two witnesses were expected to attend on the second day of the case. The Panel considered that any delay may inconvenience these witnesses and may also have an adverse effect on the quality of their evidence.

11. The Panel accepted that a registrant may suffer prejudice by not being able to present his case. Nevertheless, the Panel balanced that against the public interest in allowing the HCPC to do its work protecting the public. The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: 'It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.’

12. In all the circumstances the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant because all the information pointed to the Registrant having voluntarily absented himself while there was a strong public interest in proceeding with the case so that it will be concluded without any further delay.

Background

13. The Registrant is a registered Operating Department Practitioner (ODP). He had been working as an agency worker since August 2014 through ID Medical Agency (the Agency).

14. On 9 June 2017 whilst working in the vascular theatre at Derriford Hospital, Plymouth Hospitals NHS Trust (Derriford Hospital), the Scrub Practitioner, Witness 1 allegedly witnessed the Registrant fall asleep whilst on duty during a procedure. She also noted that the Registrant failed to carry out appropriate observations of the patient (Patient A) and the Registrant did not have Patient A’s care pathway with him.

15. NS completed a Datix Incident Report (Datix) form at Derriford Hospital in respect of the incident and a complaint was filed with the Agency.

16. On or around the 14 August 2017, whilst the Registrant was working at Northampton General Hospital NHS Trust (“NG Hospital”), Witness 2. At the time of the incident she was the Main Theatre Manager and received a report that the Registrant had inappropriately set up an arterial line using Hartmann’s IV fluid instead of a heparinised saline solution. The incident was detected when the patient was received in the post-surgery recovery area. In a discussion with the Registrant the same day, Witness 2 reported that he accepted that he was responsible for the error and it was an oversight on his part as he had not checked the fluids properly. The Registrant was new to the department and did not follow the department’s checking process that requires a second member of staff to check the preparation of IV fluids and medications. The Registrant stated that he thought the correct fluid had been left out for him to use. The patient came to no harm.

17. A Datix was completed in respect of this incident and a complaint was filed by NG Hospital with the Agency. This complaint was managed by Witness 3, Head of Complaints at ID Medical Group.

18. As a result of the complaints the Agency decided not to book the Registrant for any more shifts anywhere.

19. The Registrant was referred to the HCPC in respect of the incidents of 9 June 2017 and 14 August 2017.


The Evidence

20. The Panel heard evidence from the following witnesses.


On behalf of the HCPC:


• Witness 1: Scrub Practitioner, Derriford Hospital, NHS Plymouth (HCPC Registrant)


• Witness 2: Main Theatre Manager at Northampton General Hospital NHS Trust (HCPC Registrant)


• Witness 3: Head of Complaints at the Agency that placed the Registrant.
. On behalf of the Registrant:

 


• The Panel noted the statement made by the Registrant to the Agency dated 14 August 2017.

Witness Evidence


21. Witness 1 confirmed the contents of her signed statement with some minor clarifications. The Panel found Witness 1 to be a knowledgeable and honest witness. The Panel found Witness 1’s evidence to be reliable. She gave full answers to the questions put to her. She stated when her recollection of the details of the incident was not complete due to the passage of time since 2017.


22. Witness 2 confirmed the contents of her signed statement with some minor clarification of the length of time she had now been in her post. The Panel found Witness 2 to be a credible and reliable witness, and it was satisfied that she was well-qualified to provide evidence to the Panel. She answered questions clearly and in a balanced way, and the Panel found her evidence helpful, reliable and informative. She stated when she was not able to answer the question.


23. Witness 3 confirmed the contents of her signed statement. The Panel found Witness 3 to be a reliable witness She answered questions carefully, clearly and in a balanced way, and the Panel found her evidence helpful. She stated when she was not able to answer the question.


Findings of Fact


24. The Panel heard Mr Foxsmith’s submissions for the HCPC and considered all the written and oral evidence. It also accepted the advice of the Legal Assessor.


Submissions and advice


25. The Panel heard the submissions of Mr Foxsmith who set out the law and reminded the Panel of the evidence of the witnesses, as supported by the contemporaneous records. He also reminded the Panel that although they should not draw an adverse inference against the Registrant because he has not attended, the material from him before the Panel could not have the same weight as sworn evidence.


26. The Panel also heard the advice of the Legal Assessor which it accepted and has followed in the decision set out below.


Decision on Facts


27. The Panel bore in mind that at this stage the burden of proving each paragraph of the Allegation rests upon the HCPC. The Registrant does not have to prove anything. It reminded itself that the standard of proof is the civil standard, that is to say the balance of probabilities.

1 Working at Derriford Hospital on 9 June 2017 you:
i. Did not carry out observations of Patient A and/or have Patient A’s care pathway- Proved


28. The Panel accepted Witness 1’s evidence that she could see the Registrant as he was about three or four metres away from her during Patient A’s procedure and that the Registrant did not carry out any observations of Patient A.

29. The Panel also accepted Witness 2’s evidence that the Registrant did not have any patient notes or Patient A's care pathway with him. Witness 2 stated that a care pathway booklet is given to all theatre patients. Witness 2 stated that it is a narrative of care and drugs that commences at pre-operative assessment through to post-operative recovery so that everything that happens on a patient's journey is completed in the booklet and signed by care providers.

30. The Panel also noted this account was consistent with Witness 2’s completion of the Datix. The Panel noted the Registrant did not provide the Agency with any substantive information about this incident.

1. Working at Derriford Hospital on 9 June 2017 you:
ii. Fell asleep during Patient A’s procedure - Proved

31. The Panel accepted Witness 2’s evidence that she was about three or four metres away from the Registrant during Patient A’s procedure and that she had observed the Registrant had fallen asleep during Patient A’s procedure. Witness 2 gave evidence that the Registrant was asleep for approximately 20 minutes. The Panel noted this was consistent with Witness 2’s written account in the Datix she completed. The Registrant had not provided any evidence in respect of this Particular.

2. Working at Northampton General Hospital in or around August 2017 you set up an arterial line with Hartmann’s IV fluid rather than heparinised saline. - Proved

32. The Panel heard evidence from Witness 2 and Witness 3 in respect of this Particular.

33. The Panel accepted Witness 3’s evidence that she had been told that the Registrant had set up an arterial line with Hartmann’s IV fluid rather than heparinised saline. The Panel accepted her evidence that at a meeting on the same day of the incident, the Registrant had confirmed to Witness 2 that he had set up the Hartmann’s IV fluid and that it was a mistake. Witness 2 stated that the Registrant accepted responsibility and was remorseful.

34. The Panel noted that Witness 2’s contemporaneous written note prepared on the day of the incident supported her recollection.

35. The Panel accepted Witness 3’s evidence that she had spoken to the Registrant about the incident and that the Registrant accepted that he had made a mistake, and he took responsibility for that and was remorseful.

36. The panel also considered and accepted the Registrant’s written response to PR’s request for an account of the incident. On 14 August 2017 the Registrant replied:


‘….there was a small amount of mitigating circumstances where I was shunted to another theatre and the bag of fluid was laid out for me although the system cannot work without a degree of trust I take full responsibility and trust, I take full responsibility and apologize to all parties concerned.


I thank God for protecting and pointing out my error although not fatal it could have been this I am thankful for I have been an exemplary Theatre Technician, ODP. Indeed I was the only ODP scrubbing for Paediatric Cardiac Surgery at Great Ormond years ago.….’
37. The Panel having considered the available evidence including the Registrant’s own account found this Particular proved.'

Submissions on Grounds


38. Mr Foxsmith submitted that the matters found proved amounted to misconduct and/or lack of competence. He invited the Panel to find misconduct and/or lack of competence for all the matters found proved, both individually and together.


39. Mr Foxsmith drew the Panel’s attention to the HCPC “Standards of conduct, performance and ethics”. He submitted that the Registrant had breached fundamental tenets of the profession and in particular breached standards 2, 3, 6 and 10 of the HCPC Standards of Conduct, Performance and Ethics January 2016.


40. With regard to impairment, Mr Foxsmith drew the Panel’s attention to the relevant law and emphasised the Panel’s duty to consider the wider public interest as well as the protection of the public.


Decision on Grounds


41. The Panel heard and accepted the advice of the Legal Assessor, which it has reflected in its decision below. The Panel bore in mind that both grounds and impairment are matters for its independent judgement. The Panel considered the submissions made by Mr Foxsmith.


Decision on Lack of Competence


42. The Panel considered whether the facts found proved amounted to a lack of competence. It bore in mind that a lack of competence is less likely to arise from a single act or omission. There should normally be a fair sample of the Registrant’s work.


43. The Panel noted that the HCPC alleged the conduct of the Registrant could amount to a lack of competence.


44. The Panel considered the findings in Particular 1. i and Particular 1.ii and noted Witness 3’s evidence that the Registrant who qualified in 1977 had been booked by the Agency about 100 times between 2014 and 2017. Witness 3 could not find any information about any adverse incident noted prior to the incident in June 2017. The Panel took this into account and was satisfied the Registrant knew not to fall asleep on duty and knew to carry out observations on Patient A and to have Patient A’s care pathway with him, during Patient A’s procedure.


45. The Panel was also satisfied that in respect of Particular 2, the Registrant had not demonstrated a lack of competence as the evidence was clear that the Registrant knew how to set up an arterial line and to use the correct fluid.


46. The Panel was not persuaded that the Registrant did not know what his responsibilities were or how to fulfil them. The Panel determined that the Registrant just did not do what he should have done. The Panel also took into account that these were two isolated incidents, albeit in a short space of time, but in the context of some 100 shifts undertaken by the Registrant for the Agency over a period of 3 years.


47. The Panel was not satisfied that the Facts found proved supported a finding of Lack of Competence.

Decision on Misconduct


48. The Panel assessed whether the proven facts amounted to the statutory ground of misconduct, noting that Roylance v GMC (No 2)[2001] defined misconduct: ‘Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a... practitioner in the particular circumstances.’


49. The Panel had concerns about the Registrant’s conduct in this matter. However, it was aware that the misconduct required to establish the statutory ground of misconduct needed to be serious misconduct. This called into question whether the Registrant had met the standards of proficiency, conduct, performance and ethics when practising his profession.


50. The Panel considered whether the facts found proved in Particular 1.i and Particular 1.ii amounted to misconduct. The Panel was satisfied that having regard to the standards expected by the profession and the public this conduct falls sufficiently below what is expected and it is sufficiently serious to amount to misconduct.


51. This conduct had the potential to expose the patient to risk with serious consequences and to undermine public confidence in the profession. The Panel determined this conduct was serious and amounted to misconduct.


52. The Panel considered whether the facts found proved in Particular 2 amounted to misconduct. The Panel was satisfied that having regard to the standards expected by the profession and the public this conduct falls sufficiently below what is expected and it is sufficiently serious to amount to misconduct. This conduct had the potential to expose the patient to risk with serious consequences.


53. The Panel determined that this conduct was serious, amounted to a clear breach of the fundamental tenets of the profession and amounted to misconduct.


54. The Panel had regard to the HCPC Standards of conduct, performance and ethics 2016 and in particular:


1.Promote and protect the interests of service users and carers
Treat service users and carers with respect


2.Communicate appropriately and effectively
Communicate with service users and carers


6. Manage risk
Identify and minimise risk


10. Keep records of your work
Keep accurate records

55. The Panel was satisfied that the conduct of the Registrant in respect of Particulars 1.i,1.ii and 2 had fallen significantly short of what would be proper in the circumstances.


56. It found that the Registrant was under an obligation to (i) stay awake whilst working, (ii) carry out observations on patients , (iii) have the patient’s pathway during a procedure, and (iv) ensure the correct IV fluid is set up for patients and had not done so. The Panel was satisfied that in not doing so, this conduct fell far short of that to be expected of a registered professional.


57. The Panel determined that each of Particulars 1.i and 1ii and 2 was sufficiently serious to amount to the statutory ground of misconduct, it being serious misconduct, behaviour which fell far below that expected of a registered Operating Department Practitioner and having potentially serious consequences for the patients concerned.

Decision on Impairment


58. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by his misconduct.


59. The Panel considered the evidence, and submissions from Mr Foxsmith.


60. The Panel heard and accepted the advice of the Legal Assessor and considered the guidance in the HCPTS Practice Note ‘Fitness to Practise - Impairment’.


61. The Panel is aware that impairment is a matter for its own professional judgement. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the misconduct found proved and public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect.


62. The Panel also bore in mind that it was concerned with whether the Registrant’s fitness to practise is currently impaired and focused on the need to protect the public and the wider public interest now and in the future.


63. The Panel bore in mind that a finding of impairment is separate from the finding of misconduct and that a finding of misconduct does not automatically mean that a registrant’s fitness to practise is impaired.


64. The Panel had at the forefront of its mind that over three years have elapsed since the Registrant’s misconduct and there is no evidence that the Registrant has committed similar misconduct either before or since the two matters proved in June 2017 and August 2017.


65. On this issue, the Panel noted in particular the observations of Silber J in Cohen v GMC [2008] EWHC 581 (Admin):


'There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discrete exercise whether the practitioner’s fitness to practise has been impaired.’


66. The Panel also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin): ‘Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:


a. has in the past acted and/or is liable in the future to act so as to put a patient or patients 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 medical profession; and/or


d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.’


67. The Panel also had regard to the passage from the Cohen case above and cited by Cox J which reminds panels that there may need to be a finding of impairment in the public interest, even if the misconduct can be characterised as an isolated incident:


'Any approach to the issue of whether a (registrant’s) fitness to practise should be regarded as 'impaired' must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their (registrants) and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the (profession)” [sic].


68. The Panel reminded itself that the overarching objective involves acting:


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


b) to maintain public confidence in the profession;


c) to promote and maintain proper professional standards and conduct for members of that profession.


69. The Panel found that the Registrant’s misconduct has brought the profession into disrepute and breached a fundamental tenet of the profession, sleeping at work and not carrying out observations on a patient, not having a patient’s pathway during a procedure and setting up the wrong IV fluids to a patient.


70. Looking to the future, the Panel considered the personal component of fitness to practise. The Panel considered the evidence to ascertain whether there was any evidence that the Registrant had developed insight into his misconduct and taken steps to ensure that it was not repeated.


71. The Panel noted that the Registrant had no adverse regulatory history prior to these proceedings. Witness 3 provided information that the Registrant had qualified in 1977. The Panel noted there was no evidence of any referrals before or since 2017.


72. The Panel noted that the Registrant had not engaged with the Agency or the regulator in relation to Particular 1.i and Particular 1.ii concerning the incident at Derriford Hospital in June 2017. The Panel concluded that there was therefore no evidence of the Registrant having developed any insight and remorse or having undertaken any remediation in relation to the misconduct in Particular 1.i and Particular 1.ii.


73. In relation to the incident referred to in Particular 2, the Panel also had careful regard to the Registrant’s immediate admissions and expressions of remorse to Witness 2 as well as the comments in his statement to the Agency dated 14 August 2017. The Registrant had provided this account to the Agency in the course of the investigation. The Registrant had immediately admitted and expressed responsibility for the error and concern for the patient as to what harm potentially might have happened. He had also expressed an expectation that the matter may be referred to his Regulator and this demonstrated an awareness of the seriousness of his actions. The Panel also noted there was no patient harm.


74. The Panel noted however that there was no current engagement with the Regulator and there was no information to demonstrate the Registrant’s remediation that might mitigate the risk of repetition.


75. The Panel concluded that the Registrant had displayed some insight but the Panel had no evidence that the Registrant had addressed his misconduct by remediation or what, if anything, he had learned during the last three years. There was also no information at all from the Registrant as to what he was now doing or any additional learning he had undertaken. However, the Panel was satisfied that remediation remains possible.


76. In the current circumstances the Panel found that there remains a significant risk of repetition and with it the risk that the Registrant will bring the profession into disrepute in the future.


77. Turning to the public component of impairment, the Panel is satisfied that a finding of impairment is necessary in order to protect the public, maintain public confidence in the profession and maintain proper standards of conduct by sending a clear message that the profession takes seriously misconduct of the sort proved in this case.


78. Accordingly, the Panel determined that the Registrant’s fitness to practise is impaired.

Decision on Sanction


79. 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.


80. Mr Foxsmith made submissions on behalf of the HCPC.


81. Mr Foxsmith emphasised that the decision as to the appropriate sanction to be imposed was a matter for the judgement of the Panel and the HCPC did not intend to make any specific submissions as to the appropriate sanction. He reminded the Panel of the principle of proportionality. He said that the Panel should have regard to the Sanctions Policy published by HCPTS. He reminded the Panel that it should have regard to both aggravating and mitigating factors; in respect of the former he identified in particular that the Registrant’s actions caused risk to patients. He submitted that the mitigating factors included that the Registrant admitted his conduct in relation to the second incident. However, he submitted that the Registrant had not demonstrated insight into the first incident and in the light of both incidents is a potential risk to patients. He submitted the Panel needed to mark the conduct but emphasised it was a matter for the Panel to decide.


82. The Panel considered the sanctions available to it in ascending order of severity and had regard to the HCPTS Sanctions Policy. The Panel accepted the advice of the Legal Assessor.


83. The Panel was aware that it is not the purpose of Fitness to Practise Panels to be punitive and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to patients in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.


84. The Panel firstly considered the mitigating and aggravating factors in this case.


85. The Panel identified the following aggravating factors:


• the Registrant has not engaged with the HCPC since 2017


• the Registrant did not engage with either Derriford Hospital or the Agency in relation to the incident in June 2017


• the misconduct in both incidents arose in the course of the Registrant’s professional practice


• the Registrant breached fundamental tenets of the profession


• the misconduct in both incidents had the potential to cause harm to patients


• the Registrant has not demonstrated remediation.


88. The Panel identified the following mitigating factors:


• the Registrant immediately expressed remorse and admitted responsibility for the incident in August 2017


• these were isolated incidents of misconduct involving two patients which occurred during a short period of time in 2017


• there is no evidence of patient harm in either incident


• the Registrant has had an otherwise unblemished career starting in 1975, there being no evidence of any previous or subsequent adverse regulatory history.


89. The Panel found that the Registrant did not comply with the safety requirements in place to protect patients during operating procedures, fell asleep whilst on duty and responsible for the safe care of a patient, and set up the wrong IV fluid. These actions potentially placed patients at risk of harm and are not the standards expected of Operating Department Practitioners. Protecting the safety of patients is a fundamental requirement of the profession. There was evidence of insight and remorse into the second incident, but the same did not apply in relation to the first.


90. The Registrant had not engaged prior to these proceedings and during the hearing and the Panel had no current information on the Registrant’s reflections on or insight in respect of the misconduct, his actions, if any, towards remediation and his current practice. The Panel had no information about the Registrant’s practice since August 2017.


91. The Panel first considered whether to take no further action and was of the view that this would not be sufficient to protect the public, having identified a risk of recurrence and no remediation of the misconduct identified.


92. The Panel also considered mediation and was of the view that it was not appropriate in these circumstances.


93. The Panel next considered a Caution Order. The Indicative Sanctions Policy stated that a Caution may be appropriate where the lapse was isolated or of a minor nature, there was a low risk of recurrence and the Registrant had shown insight and taken remedial action. The Panel had found that these were two isolated incidents in the course of a three-month period between June 2017 and August 2017. The Registrant had demonstrated insight, but no evidence was before the Panel that he had remediated his failings had not remediated his failings in respect of either incident. In these circumstances, the Panel was of the view that a Caution would not be an appropriate sanction as it would not address the seriousness of the misconduct, the need for further remediation and the risk of repetition.


93. The Panel next considered the imposition of a Conditions of Practice Order. The Panel was not satisfied that the concerns in this case could be adequately and appropriately addressed through conditions. The Panel was of the view that it was not possible to formulate workable or appropriate conditions which would address the Registrant’s practice given there was no information about his current practice or his willingness to comply with conditions.


94. The Panel next considered a Suspension Order and concluded that this was the appropriate and proportionate sanction in the circumstances of this case. Although the Panel had found that the Registrant’s insight was limited at this time, it considered that a Suspension Order would provide the opportunity to the Registrant to further reflect on his misconduct, to demonstrate that he had developed an appropriate level of insight and to undertake relevant training. The Panel also considered that such an Order is required to maintain public confidence in the profession and to uphold professional standards.


95. The Panel considered that the length of the Order should be for 6 months with a review towards the end of that period. This is with a view to the Registrant demonstrating to the next Panel that he has reflected on his actions and omissions and has developed sufficient insight into them. This Panel was encouraged to note the commencement of the Registrant’s reflection when he last communicated with the HCPTS on 24 August 2017 in the following terms “I have been an ODP for a very long time maybe too long it is best I remove myself from the HCPC register then so be it with regret as having a tarnished reputation.” Accordingly the Panel considered this period of suspension would be appropriate and that public confidence in the profession would be damaged if any lesser period were imposed.


96. The Panel considered whether a Striking Off Order may be appropriate. However, in the context of the Registrant’s lengthy career to date, the Panel was of the view that a Striking Off Order for these incidents would be unduly punitive. While a finding of misconduct is always serious, in the particular circumstances of this case, the Panel considered this was at the less serious end of the scale. In light of this and in all the circumstances the Panel is of the view that a Striking Off Order would be disproportionate at this time.


97. This Panel considers that a future reviewing Panel may be assisted by any information which evidences a developing level of insight and remedial action, including:


• a reflective piece which


a) demonstrates the Registrant’s learning on the safe administration of fluids and medication;

 

c) considers how he would avoid a repetition of misconduct in the future.


• evidence of CPD in relation to the safe administration of fluids and medication and maintaining patient observations during procedures as well as demonstrating that the Registrant is keeping his skills up to date.


• relevant recent references or testimonials.


98. The Panel acknowledged that such an Order may have an adverse impact upon the Registrant. However, the Panel determined that the interests of protecting the public and maintaining public confidence in the profession outweigh the interests of the Registrant.

Order

Order: That the Registrar is directed to suspend the Registration of Mr Prosper Johnson for a period of six months from the date this order comes into effect.

Notes

Interim Order

99. The Panel considered whether an interim order should be imposed in terms of Article 31(3) of the Health Professions Order 2001.

100. The Panel heard submissions from the Mr Foxsmith as to whether an interim order should be imposed. Mr Foxsmith submitted that in view of the nature of the Panel's finding of misconduct and impairment an interim order was necessary to protect the public and in the wider public interest. Mr Foxsmith submitted that a period of eighteen months was the appropriate time required.

103.The Panel heard and accepted the legal advice from the Legal Assessor and referred to the guidance in the Sanctions Policy on Interim Orders.

104.The Panel assessed the risk to the public and the wider public interest and considered whether an order was necessary and proportionate. The Panel had regard to the nature of the Allegation found proved and decided that there was a real risk to patients from the Registrant's conduct. The Panel was satisfied that confidence in the profession would be undermined if the Registrant was allowed to remain in unrestricted practice.

106.The Panel determined that an Interim Suspension Order was required to protect the public and in the wider public interest. The Panel determined the Order should be for a period of eighteen months, due to the length of time that an appeal, if made, would take to be heard.

 

Hearing History

History of Hearings for Mr Prosper Johnson

Date Panel Hearing type Outcomes / Status
06/08/2021 Conduct and Competence Committee Review Hearing Struck off
22/04/2021 Conduct and Competence Committee Review Hearing Suspended
23/10/2020 Conduct and Competence Committee Final Hearing Suspended