Mr Prosper Johnson

Preliminary Matters

Service

1.The Registrant was not present by video link or telephone and he was not represented.

2. The Panel was informed that the Notice of Hearing had been sent to the Registrant’s registered email address on 24 March 2021. The Panel noted that the Registrant had used this email address in communication with the HCPC on 24 August 2017 and that it remained the email registered with the HCPC.

3. Further emails were sent on 16, 21 and 22 April and a telephone call was made to him on 21 April 2021.

4. The Panel accepted the advice of the Legal Assessor. 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. The Panel reminded itself that it is the Registrant’s responsibility to keep contact information up to date.

5. The Panel was satisfied that the Registrant had been served with the Notice of Hearing in accordance with the rules.

Proceeding in Absence

6. The HCPC applied under Rule 11 to proceed with the hearing even though the Registrant was not present. The Panel accepted the advice of the legal Assessor and took note of the HCPTS Practice Note on Proceeding in Absence.

7. The Panel noted that the Registrant had not applied for an adjournment and that because he had not responded to any communication with the HCPC that there was no reason to believe that he would attend the hearing if it was adjourned to another day. The Panel decided that the Registrant had voluntarily absented himself and that therefore it would be fair and in the public interest to proceed with the case in his absence.

Background

8. 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).

First incident

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

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

Second incident

11. On about 14 August 2017, whilst the Registrant was working at Northampton General Hospital, he 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 theatre manager the same day, the Registrant 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 Image 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.

12. A Datix was completed in respect of this incident and a complaint was filed by the Hospital with the Agency.

13. On 14 August 2017 the Registrant replied to the complaint:

“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”.

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

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

16. The Registrant did not participate in the HCPC hearing in October 2020. He did not attend and did not submit any representations in writing for the Panel to consider.

17. The Panel found the facts proved. The Panel found that the Registrant had breached the following HCPC Standards of conduct, performance and ethics;

1. You much treat service users and carers with respect.
2. You much communicate with service users and carers.
6. You must identify and minimise risk.
10. You must keep accurate records.

18. The Panel decided that the breaches were sufficiently serious to be categorised as misconduct. 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 that he had not done so.

19. The Panel found that the Registrant’s fitness to practice was impaired. It bore in mind that by the time of the final hearing over three years had passed since the Registrant’s misconduct and that there was no evidence that the Registrant had committed misconduct before or since the two incidents in June and August 2017. However, the Registrant had decided not to engage with the regulatory process and had not provided any information to the Panel. It noted that he had also not engaged with the Agency that employed him or the hospital in respect of the first incident in June 2017. The Panel took into account, in his favour, the evidence of his early admission to the hospital in respect of the second incident in August 2017 but in the absence of any engagement with the HCPC there was no up to date evidence the Panel could consider when evaluating the risk of repetition.

20. 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 previous three years. There had been no information at all from the Registrant as to what he was now doing or any additional learning he had undertaken. However, that Panel was satisfied that remediation remained possible.

21. That Panel was also satisfied that a finding of impairment was 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.

22. Having concluded that the Registrant’s fitness to practise was impaired, the Panel in October 2020 proceeded to consider what, if any Order was appropriate and proportionate to protect the public and to safeguard the public interest. 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.

23. 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.

24. The Panel concluded that a Suspension Order was the appropriate and proportionate sanction. Although the Panel had found that the Registrant’s insight was limited at that 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.

25. The Panel decided that the length of the Order should be for 6 months with a review towards the end of that period. This was intended to give the Registrant an opportunity to demonstrate to the review Panel that he had reflected on his actions and omissions and had developed sufficient insight into them. That Panel had been encouraged by the Registrant’s reflection when he last communicated with the HCPTS on 24 August 2017 in the following terms “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.”

26. The Panel in 2020 made it clear in their decision that it had considered whether a Striking Off Order was appropriate. However, in the context of the Registrant’s lengthy career, the Panel had decided 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.

27. The Panel attempted to assist the Registrant by including in its determination 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;
  (b) demonstrates his understanding of the impact his conduct may have on patients and public confidence in the profession;
  (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 demonstration that the Registrant is keeping his skill up to date.
• Relevant recent references or testimonials.

Decision

28. This Panel accepted the advice of the legal Assessor and had regard to the HCPTS Practice Note on Article 30 review hearings. The Panel reminded itself that the review process is not a mechanism for appealing against or ‘going behind’ the original finding that the Registrant’s fitness to practise is impaired. The purpose of review is to consider:

• whether the Registrant’s fitness to practice remains impaired; and
• if so, whether the existing order or another order needs to be in place to protect the public.

29. The key issue which the Panel at a review is required to address is what, if anything, has changed since the current order was imposed or last reviewed. The factors to be taken into account include:

•  the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision;
• the degree of insight shown and whether this has changed;
• the steps which the Registrant has taken to maintain or improve his or her professional knowledge and skills;
• whether any other fitness to practise issue have arisen;
• whether the Registrant has complied with the existing order and, if it is a condition of practice order, has practised safely and effectively within the terms of that order.

30. The reviewing Panel’s task “is to consider whether all the concerns raised in the original finding of impairment…[have] been sufficiently addressed”. As the decision in Abraheam indicates, in practical terms this places a “persuasive burden” on the Registrant to demonstrate at a review hearing that he or she has fully acknowledged the deficiencies which led to the original finding and has addressed that impairment sufficiently “through insight, application, education, supervision or other achievement...”

31. The decision reached must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection. The Panel must exercise its own professional judgement to decide whether the Registrant’s fitness to practice remains impaired to the extent that the Panel should impose a further sanction to take effect from the expiry of the current sanction and if so, what the appropriate sanction is. In making this decision the Panel applies the usual considerations as to the test of current impairment and the purpose of sanctions.

32. The Panel was disappointed that the Registrant continues not to engage with the HCPC process. In the absence of any information, the Panel considers that the Registrant’s fitness to practice may be more impaired now than it had been in 2020 because of the time that he has been out of practice.

33. The Panel concluded that as the Registrant has decided not to provide the Panel with any information about his current employment, it had no choice but to conclude that he had failed to discharge the burden on him to show that his current fitness to practice is no longer impaired. This Panel decided that the last Panel had told the Registrant in clear terms what was required of him if he wished to return to unrestricted practice as an ODP, and that he had chosen to ignore this. This caused the Panel to consider if the only appropriate sanction today would be a Striking Off Order.

34. However, the Panel decided that it was appropriate and proportionate to give the Registrant one last chance to try to return to the profession if he wished to. The Panel noted that the Registrant had served the profession without complaint for many years prior to this misconduct. The Panel also noted that the last panel had decided that a Striking Off Order would be unduly punitive because the misconduct was at the lower end of the scale.

35. The Panel makes it clear to the Registrant that if he wishes to return to practice then he must provide the information set out at paragraph 27 above. Those are the steps he must take. The Panel has decided that it would be fair to give the Registrant a further three months to provide that information. If the Registrant continues to fail to engage then he should be aware that the Panel on the next occasion is likely to take the view that the only proportionate sanction will be a Striking Off Order.

36. For the reasons set out above the Panel is satisfied that the Registrant’s current fitness to practice is impaired and that the appropriate sanction is a three month extension to the existing Suspension Order.

ORDER: The Registrar is directed to extend the current Order of Suspension for a period of three months.

The Order imposed will take effect from 24 May 2021.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Mr Prosper Johnson