Chika Okechukwu Iwuala

Preliminary Matters

Service

1. The Panel was provided with a copy of the Notice sent by email to the Registrant’s registered email address on 9 November 2021, setting out the time, date and venue for this review and the possibility of the Panel proceeding without the Registrant in the event that he did not attend. The Panel was provided with proof of the email being sent by way of a signed declaration by an HCPC employee. However, the email failed to be delivered and it appeared the Registrant had changed his email address but not informed the HCPC of this, as is his duty. The Rules do not require the HCPC to prove that the Registrant received the Notice, only that it was sent to his registered email address. The Panel was thus satisfied with service in this case.

2. As an aside, the Panel noted that consequently a letter was sent to the Registrant, with the same information, on 22 November 2021. It was supported by a signed declaration by an HCPC employee that the letter had been posted to the Registrant’s registered postal address.

Proceeding in the Absence of the Registrant

3. The Registrant did not attend the review hearing.

4. Mr D’Alton, on behalf of the HCPC, made an application to proceed in the Registrant’s absence.

5. When deciding whether to proceed in the absence of the Registrant, the Panel took into account the submissions made by Mr D’Alton and accepted the advice of the Legal Assessor. It bore in mind that, although it had a discretion to proceed in the absence of the Registrant, this discretion should be exercised with the utmost care and caution. The Panel was cognisant of the fact that this was a statutory review and its purpose was to review a Suspension Order before the date it was due to expire. The Registrant did not attend the final hearing or the first review of the Suspension Order, nor did he respond to the Notice of hearing for this review.

6. The Registrant did, however, answer the phone when called by the HCPC Presenting Officer on 25 November 2021. The Registrant confirmed he had received the Notice of hearing and said he would be attending the review. He said he would think about whether he wished to submit any documents. He was asked if he wanted any assistance or to ask any questions and he said he had no questions he wished to ask.

7. On 6 December 2021, the Registrant was called on the phone by a Hearings Officer and he confirmed his intention to attend the hearing. He provided an alternate email address to the Hearings Officer, to which she then sent an email. He did not, however, respond.

8. Notwithstanding his stated intention to attend, in the event the Registrant did not in fact attend the hearing. Given his earlier indication that he would attend, the Hearings Officer tried to call the Registrant the morning of the hearing on the same number he had previously been called on, but he did not respond. On the third attempt the Hearings Officer left a voicemail for the Registrant to get in touch, but he did not return the call.

9. The Panel was satisfied that the HCPC had taken all reasonable steps to both notify the Registrant of this review hearing and also to encourage him to engage with the proceedings. The Panel noted that before the first review the Registrant was contacted and asked whether he would be attending that review, to which he responded that he would think about it. In the event he did not attend that review. The Panel sensed a pattern of limited interest by the Registrant in the proceedings. It was satisfied that he was aware of the hearing and had been given ample opportunity to attend or provide written representations had he wished to do so. However, he had chosen to do neither and the Panel concluded that he had voluntarily absented himself and thereby waived his right to be present. The Panel considered there was a public interest in the matter proceeding and it was also in the Registrant’s own interests that the Order be reviewed.

10. In all the circumstances, the Panel decided to proceed in the absence of the Registrant.

Background

11. The Panel took account of the background of this matter as set out in the original panel’s determination, dated 18 December 2019:
“On 30 January 2017 the Registrant started his career as an Operating Department Practitioner (ODP) at Whipps Cross Hospital as an Orthopaedics Scrub Practitioner.

He left this job on 8 May 2017.

The Registrant was employed with Lewisham and Greenwich NHS Trust (the Trust) as a Band 5 Anaesthetic ODP from 19 June 2017 until 25 August 2017. Upon commencement of employment and subsequent to his induction, concerns were raised about his level of competence following observations from colleagues who had worked with the Registrant in operating theatres. As a result of these concerns being escalated, on the 12 July 2017 the Registrants supernumerary period was extended from four to six weeks and he was given a more experienced mentor to assist his working through his competency workbook.

This mentor also raised significant concerns about the Registrant’s ability to practise autonomously and safety.

In particular, it is alleged that the Registrant did not prepare fluids appropriately nor did he demonstrate the required knowledge of medical equipment. Furthermore, he displayed a lack of skill in theatre by contaminating sterile areas and the surgeon with whom he was working.

Additionally, it is alleged that he displayed a lack of knowledge in how to check the anaesthetic machine and he was unaware of how to pre oxygenate a patient or pass a laryngoscope appropriately. Also, on at least one occasion he did not reconnect the pipeline oxygen supply and did not switch on the gas analyser. It is also alleged that he was unable to practise autonomously.

On 31 July 2017, at the Registrant’s first Formal Capability meeting, he disclosed that he had previously worked at Whipps Cross Hospital.

On 7 August 2017 at an investigation meeting with AB, the Registrant openly admitted that he had failed to mention this previous job in his application for employment with the Trust. He provided reasons for this failure to AB, which were recorded as:

· He worked as a scrub nurse there for two months;

· He did not enjoy his time whilst working at Whipps Cross and that is why he left;

· The role he applied for at Lewisham was an anaesthetic role; therefore he felt that a scrub role at Whipps Cross did not need to be included in the application;

· He made the assumption that he would not be able to get a reference from Whipps Cross because he had only worked there for 2 months.

Throughout he has always maintained that there was no question of dishonesty on his part in omitting this detail from his application form.

On 25 August 2017 the Registrant resigned from the Trust.”

12. The Panel further noted that the original panel had found all the Particulars proved, with the exception of Particulars 1(c)(i) and 3, and that it had gone on to find that the facts found proved amounted to both a lack of competence and also misconduct, which grounds are, usually, mutually exclusive and pleaded as alternatives. The Panel noted the following paragraphs from the original panel’s determination in relation to the issue of Grounds:

“44.  With these submissions in mind and with consideration of all of the  evidence in this case, the Panel’s judgement is as follows:

· The Registrant’s lack of competence was well below the standard expected of a Band 5 ODP, even one with limited experience.

· The proved shortcomings of the Registrant had the potential to put patient safety at risk - for instance, his contamination of sterile areas, his unawareness of how to pre oxygenate a patient, his failure to switch on a gas analyser and his ignorance of what to do with the fresh gas flow switch on the anaesthetic machine.

· The fact that the Registrant was unable to practise autonomously resulted in almost constant supervision which had the effect of managers and colleagues having to be taken off other more important work.

1. The Panel found that the Registrant fell short of the following ‘Standards of conduct, performance and ethics’:

Standard 3 work within the limits of your knowledge and skills

Standard 6 manage risk

46. The Panel also found that the Registrant fell short of the following ‘Standards of proficiency for ODPs’:

Standard 1 be able to practise safely and effectively within their scope of practice

Standard 2 be able to practise within the legal and ethical boundaries of their profession

Standard 3 be able to maintain fitness to practise

Standard 13 understand the key concepts of the knowledge base relevant to their profession

Standard 14 be able to draw on appropriate knowledge and skills to inform practice

Standard 15.8 understand the nature and purpose of sterile fields, and the practitioner’s individual role and responsibility for maintaining them

47. In the judgement of the Panel, the facts proved under Particular 1, which represent a fair sample of the Registrant’s work, amount to a lack of competence. It is plain to the Panel that the Registrant was incapable throughout his time at the Trust of being able to demonstrate many of the basic techniques expected of a Band 5 ODP. Thus the Panel is satisfied that the cumulative shortcomings of the Registrant were such as also to amount to misconduct.”

13. The Panel echoed the comment made by the first reviewing panel in December 2020, that it found the rationale of the original panel’s decision somewhat difficult to follow and ambiguous. The Panel was aware that it could not go behind that panel’s findings, but it noted that the original panel appeared to be particularly concerned with the Registrant’s lack of competence, rather than with his misconduct. It appeared to this Panel that, although misconduct was pleaded in the alternative in relation to Particular 1, the issues raised therein seemed to be more concerned with issues of competence rather than misconduct. The Panel is supported in this view by the original panel’s observations in paragraph 53 of its determination, which states:

"53. In reaching its determination, the Panel considered the personal component. There is no evidence that he has shown any insight into his shortcomings. This, and other factors, including the lack of evidence of remediation, have persuaded the Panel that there exists a real risk of repetition of misconduct if the Registrant were permitted to return to unrestricted practice. The Panel has borne in mind the evidence of the Registrant’s senior mentor. She was quite shocked by his lack of competency which, to her mind, put him on the level of a first year student, 6 months into training. Equally the Panel was taken by the opinion of DR SE that “his lack of knowledge was extraordinary”. Dr AM  in his evidence said that the Registrant “did not know what he was doing”.

14. As with the first reviewing panel, this Panel also observed that, although the original panel found Particular 2 (in respect of which only misconduct was alleged) proved, that panel made no subsequent specific reference to that finding, so this Panel found it difficult to ascertain whether Particular 2 had been taken into account when the previous panel reached its conclusions regarding misconduct as a whole.

15. Accordingly, although it was aware that it could not go behind the original panel’s findings, this Panel considered that, where if there was any ambiguity in the original panel’s determination, it should be resolved in favour of the Registrant.

16. The Panel further noted that, when considering sanction, the original panel stated:

“58. The Panel took into account the following mitigating and aggravating factors:

· The mitigating factors include the previous unblemished record of the Registrant and the fact that he has never sought to deny any of the factual Particulars that the Panel has found proved. The Registrant was described by Dr SE in her evidence as being “very nice and in no way rude or offensive”.

· The aggravating factors are the many examples of lack of competency [this Panel’s emphasis] in the Registrant’s role as an ODP at the Trust, encapsulated in the comment from Dr SE that “he did not seem to know what was going on and was not familiar with what was required of him”. These many shortcomings have the potential to compromise patient safety and also to call into question the reputation of his profession. Furthermore, as has been noted above, the Panel has not been provided with any evidence of insight, remediation or feelings of remorse by the Registrant…

1. In considering whether the case could be concluded with a Conditions of Practice Order, the Panel had regard to the advice of the Legal Assessor that conditions must be appropriate, measurable and verifiable. The picture that has been painted by the witnesses in this case is of a man whose incompetence is wide-ranging. [This Panel’s emphasis] In coupling this view with the silence of the Registrant as to what he has been doing over the last two years and four months, the Panel has determined that it could not formulate any appropriate conditions to meet the justice of this case. Such a course would also fail adequately to reflect the seriousness of the Registrant’s misconduct.

62. Accordingly, the Panel has considered that a Suspension Order for a period of 12 months is necessary and proportionate in this case. This is designed to protect the public interest and, in the view of the Panel, such an order would send out the appropriate signal to the profession. It will also provide the Registrant with an opportunity to remedy his failings.

63. Any future Panel, on reviewing this order, may be assisted by evidence from the Registrant that he has in the meantime done his best to learn from his errors. A reflective statement from the Registrant and evidence that he is keeping his Continuing Professional Development up to date would also be of help as would evidence as to what he has been doing since August 2017.

64. In the circumstances of this case, the Panel considered that a Striking Off Order would be disproportionate.”

17. This Suspension Order was first reviewed on 20 December 2020. That reviewing panel concluded that the Registrant’s fitness to practise remained impaired, stating:

“The Panel first considered whether the Registrant’s fitness to practise remained impaired. It concluded unhesitatingly that it was. In respect of the personal component, it noted that the Registrant had not engaged with the previous panel nor had he engaged with the HCPC subsequently or with this Panel. There was no information before this   Panel to suggest that he had remediated his failings and consequently there remained a significant risk of repetition. The Panel therefore concluded that, as there was no apparent change in the Registrant’s situation since December 2019, he remained impaired in relation to the personal component. In respect of the public component, the Panel considered that a finding of impairment was necessary in the public interest; public confidence in the profession and the regulator would be undermined were a finding of impairment not made in these  circumstances.”

18. When deciding the appropriate sanction the first reviewing panel considered the sanctions in order of seriousness, before concluding that a further period of suspension was the appropriate and proportionate sanction. In reaching this decision it said:

“Once again, the Panel took account of the lack of engagement by the Registrant and decided that the principles of paragraph 107 were determinative of this issue and that therefore a Conditions of Practice Order was inappropriate in this case.

This left the Panel with the sanctions of suspension (for a maximum of a further year) or of a Striking Off Order. The Panel decided that it was appropriate to consider these sanctions together. It noted that:

“121. A Suspension Order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice Order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

The Panel pauses there to comment that not all the listed criteria justifying a Suspension Order apply to this Registrant’s case; for instance, there is no evidence before it of any insight; it cannot be said that the issues are unlikely to be repeated; and there is no evidence before the Panel that the Registrant is likely to be able to resolve/remedy his failings.

The Panel further notes:

“130. A Striking Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive):

• dishonesty (see paragraphs 56–58);

• failure to raise concerns (see paragraphs 59–60);

• failure to work in partnership (see paragraphs 61–62);

• discrimination (see paragraphs 63–66);

• abuse of professional position, including vulnerability (see paragraphs 67–75);

• sexual misconduct (see paragraphs 76–77);

• sexual abuse of children or indecent images of children11 (see paragraphs 78–79 and 87–89);

• criminal convictions for serious offences (see paragraphs 80– 92); and

• violence (see paragraph 93).

A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.  In particular where the registrant:

• lacks insight;

• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or

• is unwilling to resolve matters.”

The Panel would comment that, although it is fair to say that none of the factors listed in paragraph 130 apply to the Registrant, it is arguable that most of the negative factors in paragraph 131 do apply.

In reaching its decision the Panel reminded itself that, as there has been a finding by the previous panel that all the facts found proved amount to misconduct, it would be entitled to conclude this matter by striking off the Registrant since the two year limitation referred to in the second bullet point of paragraph 131 of the Sanctions Policy does not apply to the ground of misconduct. Moreover, it is arguable that, given the Registrant’s lack of engagement and apparent disinterest in these proceedings, it would be futile to deal with the matter by a further period of suspension.

However, the Panel is concerned about the ambiguous nature of the previous Panel’s findings as expressed in its determination of December 2019. It appears to the present Panel that a significant amount of emphasis was made in that determination specifically about the Registrant’s lack of competence compared with the very general comments about his misconduct. If, as appears to this Panel to be the case, the previous panel was more concerned with the Registrant’s lack of competence, this Panel considers that it would be inappropriate and unfair for it to exercise the ultimate sanction of Striking Off when the Registrant has only been suspended for one year. The Panel therefore concluded that the appropriate, fair and proportionate sanction in this particular case would be one of a further Suspension Order for a period of one year. This is the maximum period of suspension that could be imposed upon him, but it has the advantage of giving the Registrant sufficient time to remedy his failings, especially given that he may be hampered in doing so by the effects of the current pandemic.”

Decision
 
19. The Panel considered with care the submissions made by Mr D’Alton and took into account all the documentation provided. The Panel accepted the advice of the Legal Assessor and in reaching its decisions referred to the HCPTS’s Practice Note on ‘Finding Fitness to Practise is Impaired’. The Panel carried out a comprehensive review of the current order in light of the circumstances as they existed today.

20. The Panel first considered the issue of current impairment. The Panel took account of the principle set out in Abrahaem v GMC [2008] EWHC 183 (Admin) that there is, in practical terms, a persuasive burden at a review hearing for the Registrant to demonstrate that he has “fully acknowledged why past performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”

21. The panel at the first review hearing found the Registrant’s fitness to practise impaired on both public protection and public interest grounds for the reasons stated above. That panel found the Registrant to have demonstrated no insight into his actions and in suspending the Registrant further indicated the next reviewing panel would be assisted by a reflective piece, which would indicate that he has gained insight into his failings, together with evidence of ongoing CPD. The last reviewing panel also said that if the Registrant wished to preserve his registration, it would assist the Registrant and the future reviewing panel if he engaged with the process and attended the hearing. If he did not do so then the next reviewing panel “might deem it inevitable that it exercises the sanction of last resort”, namely a Striking Off Order.

22. The Registrant did not avail himself of these suggestions, he has provided no reflective piece or evidence of continuing CPD, nor has he chosen to engage with the HCPC in any meaningful way, or to attend this hearing.

23. In the absence of such reflection, and in view of his non-attendance at this review hearing, the Panel could not be satisfied that he had developed insight into his behaviour, or in any way remediated his failings. The Registrant exhibited a significant, ongoing and worrying lack of competence and there therefore remained a real concern that the conduct would be repeated. Accordingly, the Panel decided that the Registrant’s fitness to practise remained impaired on public protection grounds.

24. The Panel went on to consider whether a finding of impairment on public interest grounds were needed in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made, given the nature and seriousness of the Registrant’s identified failings and his lack of insight and remediation.

25. Accordingly, the Panel found the Registrant’s fitness to practise remained impaired on public interest grounds also.

26. The Panel then considered what sanction was both appropriate and proportionate in all the circumstances and in doing so considered the HCPC Sanctions Policy. The Panel noted that the Registrant had not provided the necessary reflective piece and, therefore, had not been able to demonstrate that he had developed insight into his behaviour. Accordingly, there was no indication that he was committed to resolving his failings. In such circumstances to take no action or make a Caution Order would not be appropriate. It was also apparent that a Conditions of Practice Order would not be appropriate or workable because there was no evidence that the Registrant would be committed to complying with such an order.

27. The Panel considered it had little choice but either to once again suspend the Registrant, or to remove him from the Register. The only purpose of further suspending the Registrant would be to allow him more time to reflect, show insight and demonstrate remediation. He had already had almost two years in which to do that. The Panel considered it was not sensible to continue the review process where it appeared that the Registrant was unwilling or unable to remediate his failings, which were wide-ranging and serious. In the absence of appropriate remediation or insight, or any evidence that the Registrant was prepared to engage in a meaningful way with his Regulator, the Panel decided the only appropriate and proportionate sanction at this stage was to make a Striking Off Order.

28. The Panel took into account the impact this may have on the Registrant, however this was outweighed by the need to protect the public. There was also a public interest in appropriately dealing with cases where a Registrant had chosen not to engage with their Regulator. Thus, whilst this may have been a disproportionate sanction at the time of the final hearing, the Panel did not consider it to be so now.

Order: The Registrar is directed to strike the name of Mr Chika Okechukwu Iwuala from the register on the date this Order comes into effect.

This Order will take effect on 15 January 2022.

History of Hearings for Chika Okechukwu Iwuala