Mr Mark S Langford
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By reason of your physical and/or mental health, your fitness to practise as an Operating Department Practitioner is impaired as set out in Schedule A.
The Registrant is a registered Operating Department Practitioner (ODP). The Registrant was employed as an ODP at the Berkshire Independent Hospital (the Hospital).
2. On an unknown date in 2016, the Registrant referred himself to the HCPC. He disclosed that, he had been suspended from work pending an investigation into an error he had made while on duty. The Registrant was suspended and was then signed off work. On 9 December 2016, the Registrant provided an update.
3. On 16 August 2019, a panel of the Investigating Committee determined that there was a case to answer and the matter was referred to the Health Committee.
4. The HCPC obtained a desktop report from an expert. His report is dated 2 January 2020.
Proof of Service
7. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been emailed to the Registrant on 22 July 2020.
8. The Panel accepted the advice of the Legal Assessor.
9. The Panel noted that the email to the Registrant confirmed, in accordance with government guidance on containing the COVID-19 pandemic, that the HCPC has decided to suspend all public hearings to protect the health and safety of its registrants and stakeholders. However, to ensure that the HCPC can continue to perform its statutory duties of protecting the public and maintaining the integrity of the register, it arranged for this hearing to be heard remotely via video conference. The date and time of the substantive hearing was confirmed in the Notice of Hearing, and the Registrant was invited to confirm whether he would be attending the hearing by 28 July 2020. The Registrant did not respond to this request.
10. The Panel was satisfied that the Notice of Hearing had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Health Committee (Procedure) Rules 2003 (as amended) and that the Registrant had been given a reasonable opportunity to participate.
Proceeding in Absence
11. Mr Bridges made an application for the hearing to proceed in the absence of the Registrant’s absence, as permitted by Rule 11 of the Health Committee (Procedure) Rules 2003 (as amended).
12. The Panel accepted the advice of the Legal Assessor and took into account the guidance as set out in the HCPC Practice Note “Proceeding in Absence”.
13. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
a) The HCPC has made reasonable and sufficient efforts to provide the Registrant with the opportunity to participate in these proceedings. Furthermore, the Panel noted that there has been no engagement from the Registrant since 2018. In these circumstances, the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance represents a deliberate waiver of his right to participate in these proceedings by video-conference or by any other means.
b) The Panel had no confidence that the Registrant would attend on an alternative date and therefore concluded that re-listing the substantive hearing was unlikely to serve any useful purpose.
c) The Panel recognised that there may be some disadvantage to the Registrant in not being able to give evidence or make oral submissions. However, the Panel noted that the allegations date back to 2016 and that the HCPC had arranged for Dr Samarasinghe to give evidence. The Panel concluded that any potential disadvantage to the Registrant was significantly outweighed by the public interest in ensuring that the hearing is heard and concluded expeditiously.
14. Mr Bridges, on behalf of the HCPC, made an application for the hearing to be conducted in private under Rule 10 (1) (a) which provides that:
“At any hearing... the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;...”
15. The Panel noted that this case predominantly relates to issues which are said to be associated with the Registrant’s health. The Panel concluded that it would not be practical or appropriate to attempt to separate the health matters from the non-health matters. The Panel was mindful of the principle of ‘open justice’ but was satisfied that the entire hearing should be conducted in private to protect his right to a private life. Therefore, no specific references to the Registrant’s health will form any part of the public record.
Decision on Facts and Grounds
16. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.
17. In reaching its decision the Panel took into account the documentary evidence which included the medical report.
“By reason of your physical and/or mental health, your fitness to practise as an Operating Department Practitioner is impaired as set out in Schedule A.
18. The Panel concluded that the facts had been proved and that these facts amount to health grounds.
Decision on Impairment
21. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the submissions of Mr Bridges on behalf of the HCPC. The Panel also took into account the HCPC Practice Note: ‘Finding that Fitness to Practise is Impaired’. The Panel accepted the advice of the Legal Assessor.
22. In determining current impairment the Panel had regard to the following aspects of the public interest:
• The ‘personal’ component: the current behaviour of the individual registrant; and;
• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
23. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.
24. For these reasons, the Panel concluded that the Registrant’s fitness to practise is currently impaired based on the personal component.
25. In considering the public component, the Panel had regard to the important public policy issues which include, the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
26. The Panel concluded that public confidence in the profession and in the HCPC as a regulator would be undermined if a finding of fitness to practise was not made.
31. Therefore, the Panel was satisfied that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and as a consequence the HCPC’s case is well-founded.
Decision on sanction
29. Mr Bridges, on behalf of the HCPC, was neutral as to what sanction, if any, should be imposed. However, he referred the Panel to the HCPTS Sanctions Policy and reminded the Panel that the primary purpose of any sanction is to protect the public interest.
The Panel’s Approach
30. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that as this is a health case a Striking Off Order is not an option and that protecting the public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.
31. The Panel had regard to its findings in relation to impairment of the Registrant’s fitness to practise on grounds of health. The Panel also had regard to the Sanctions Policy (updated March 2019) and took into account the submissions made by Mr Bridges, on behalf of the HCPC.
32. In determining the appropriate sanction, if any, the Panel considered both aggravating and mitigating factors.
33. The Panel first considered taking no action. The Panel noted that if it were to take no action the Registrant would be permitted to practise unrestricted. Furthermore, in the absence of exceptional circumstances the Panel concluded that taking no action would be insufficient to protect the public and maintain public confidence in the profession.
36. The Panel went on to consider a Caution Order. The Panel noted paragraph 101 of the Sanctions Policy which states:
“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.”
37. The Panel took the view that the Registrant’s health conditions could not be described as limited or minor in nature as they affected his ability to perform his role as an ODP for a significant period of time. The Panel also noted that a Caution Order would impose no restriction on the Registrant’s practice and therefore concluded that it would not provide any protection to the public.
38. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the Sanctions Policy states at paragraph 107:
“Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings.”
39. The Panel noted that a Conditions of Practice Order requires a willingness on the part of the Registrant to comply with them and a willingness to make a determined effort to seek and maintain appropriate treatment. The Panel concluded that given the Registrant’s inability or unwillingness to engage with the hearing process and provide any evidence that he is committed to returning to practice, the Panel could have no confidence that he would comply with a Conditions of Practice Order. In the absence of any evidence of such commitment the Panel concluded that there were no conditions it could devise which would be appropriate or workable. Furthermore, the Panel concluded that, given the Registrant’s lack of engagement, conditions would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.
40. The Panel, having determined that a Conditions of Practice Order would be insufficient to protect the public and the wider public interest, concluded that the Registrant should be made subject to a Suspension Order.
41. A Suspension Order prevents the Registrant from practising during the suspension period, which would therefore provide temporary protection to the public and the wider public interest.
42. In assessing the length of the Suspension Order the Panel noted that the Registrant does not appear to have worked as an ODP since 2017.
43. In these circumstances, the Panel concluded that if the Registrant is to return to practise at some point in the future, he would need to demonstrate that his health conditions are under control, followed by a staged return to practise if sufficient progress has been made. Therefore, the Panel took the view that the Suspension Order should be imposed for the maximum period of 12 months.
44. This Order will be reviewed shortly before expiry. Although this Panel cannot bind a future reviewing panel, that panel is likely to be assisted by the following:
a) Evidence of the Registrant’s current state of health from a suitably qualified medical practitioner (for example GP);
b) Evidence of any previous treatment or ongoing treatment during the last 12 months from a suitably qualified medical practitioner;
c) Testimonials from current or previous employer(s) (paid or unpaid work);
d) Attendance of the Registrant in person, by telephone or via video conference.
Order: That the Registrar is directed to suspend the name of Mr Mark S Langford from the Register on the date this order comes into effect.
Proceeding with the application in the Registrant’s absence
1. Mr Bridges made an application for the hearing to continue to proceed in the Registrant’s absence in order to consider an application for an interim order. He submitted that the Registrant had been given notice that the HCPC may make such an application, in the Notice of Hearing sent to him by email on 22 July 2020.
2. The Panel decided that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed that such an application might be made, and he has not provided any response. Furthermore, the Panel has made findings which identify clear public interest concerns, including a potential risk of harm to patients and the need to maintain public trust and confidence in the profession.
Application and Response
3. Mr Bridges, on behalf of the HCPC, made an application for an Interim Suspension Order to cover the appeal period, on the grounds that it is in the interests of the public and otherwise in the public interest.
4. The Panel accepted the advice of the Legal Assessor.
5. The Panel determined that the public interest outweighed the Registrant’s interests and that an interim order is proportionate. A member of the public would be concerned if a registrant, with unmanaged health conditions which pose a risk to patients, was permitted to continue to practise during an appeal period. Therefore, the Panel determined that an Interim Suspension order is necessary for the protection of the public and is otherwise in the public interest. Furthermore, to decide otherwise would be inconsistent with the Panel’s impairment determination. In reaching this decision the Panel concluded that an Interim Condition of Practice Order would not be appropriate for the same reasons that it was not appropriate to impose a substantive Conditions of Practice Order.
6. The Panel decided that the appropriate length of an interim order is 18 months, to cover the 28-day appeal period and the time it may take for any appeal, if made, to be determined.
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.