Mr Prosper Johnson

Preliminary Matters
Service and proceeding in the absence of the Registrant
1. The Panel was satisfied that fair and proper notice of today’s hearing had been served on the Registrant. The notice of hearing was sent to the Registrant to his registered email address with the HCPC on 23 June 2021 for the original review hearing date of 22 July 2021, and notice was again sent to his email address on 7 and 16 July 2021 for the rescheduled hearing date of 6 August 2021. A delivery receipt for that email was exhibited. The Registrant was also sent a hard copy of the bundle by post to his registered postal address on 26 July 2021 with a letter setting out the date of the review hearing. Article 3 of the Health and Care Professions Council (Coronavirus)(Amendment) Rules 2021 amends the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, allow for the service of documents via electronic mail.

2. The Panel next considered Ms Sampson’s application to proceed in the Registrant’s absence. She reminded the Panel that the Registrant had been sent an email by the HCPC on 7 July 2021 seeking his submissions and advising him of the date of the re-scheduled review hearing. The bundle had also been posted to him on 26 July 2021 advising him once more of the hearing date of 6 August 2021.

3. The Panel is aware that its discretion to proceed in absence is one which should be exercised with care and it accepted the advice of the Legal Assessor. He referred it to the guidance in GMC v Adeogba [2016] EWCA Civ 162 which makes clear that the first question the Panel should ask is whether all reasonable efforts have been taken to serve the Registrant with notice. If the Panel is satisfied on notice, the discretion whether to proceed must be exercised having regard to all the circumstances of which the Panel is aware with fairness to the Registrant being a prime consideration, but balanced with fairness to the HCPC and the public interest.

4. The Panel was mindful of the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’. The Registrant was clearly put on notice in the notice of hearing that this hearing would take place virtually and he was advised that he was able to attend remotely. He was also advised on 7, 16 and 26 July 2021 of the hearing date. He has not responded and there is no application for an adjournment. This is a mandatory review of the substantive order and there is a public interest in proceeding.

5. The Panel decided to proceed in the Registrant’s absence as it is satisfied that it is fair and in the public interest to do so. All reasonable steps have been taken to serve notice by both post and email. In reaching this decision, the Panel has noted that there has been no engagement by the Registrant, and no request for an adjournment. The Panel concluded that the Registrant has chosen to absent himself, and that it is in his interests, and in the public interest to proceed. The Panel balanced fairness to the Registrant with fairness to the HCPC and the public interest and it took into account that this is a mandatory review. In all these circumstances the Panel is satisfied that it is fair and appropriate to proceed in the Registrant’s absence.

Background
6. 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).

7. At a final hearing on 27 October 2020 the Panel imposed a 6-month Suspension Order having found all the facts proved and it amounted to misconduct. This is the second review of that substantive order. It was first reviewed on 22 April 2021 when the reviewing panel extended the Suspension Order for a further 3 months. The background is as follows.

8. 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.

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

10. 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 department 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.

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

12. 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”.

13. As a result of the complaints the Agency decided not to book the Registrant for any more shifts anywhere. The Registrant was referred to the HCPC in respect of the incidents on 9 June 2017 and 14 August 2017.

14. The Registrant did not participate in the HCPC final hearing in October 2020. He did not attend and did not submit any representations in writing for the panel to consider. The panel at the final hearing found the facts proved. The panel found that the Registrant had also breached HCPC Standards of conduct, performance and ethics.

15. That 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.

16. That panel in October 2020 found that the Registrant’s fitness to practise 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. That Panel 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.

17. That 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. It 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.

18. 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 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

19. That 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.

20. The panel in October 2020 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. That Panel also considered that such an order is required to maintain public confidence in the profession and to uphold professional standards.

21. 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.”

22. The panel in October 2020 made it clear in its 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.

23. That 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.

24. At the first review of the Suspension Order in April 2021, the panel found as follows in respect of impairment and sanction:-
“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.”

Submissions for the HCPC
25. Ms Sampson for the HCPC summarised the background to the case, the previous findings of misconduct, and impairment. She submitted that the Registrant has failed to demonstrate any remediation and that the HCPC is now seeking a Striking Off Order.

26. Ms Sampson advised that there has been no contact with the Registrant since 24 August 2017. She reminded the Panel of its powers and the need to review current fitness to practise and to consider the Registrant’s insight and remediation. Ms Sampson submitted that the Panel is required to consider whether all the concerns expressed in the original findings have been addressed.

27. Ms Sampson submitted that there is no evidence that the Registrant has developed any insight or remedied his practice. She submitted that the HCPC has made repeated attempts to contact the Registrant by email, post, and by calling his registered telephone number (which was inactive) and leaving mobile telephone messages. He was advised by the HCPC about voluntary removal in a letter (enclosing a self-addressed envelope) and by email in May 2021 and a reminder was sent in July 2021. The Registrant has not replied to any of the communications sent by the HCPC. He has been advised that Striking Off Order is a possibility at review if there is no information from him about remediation.

28. Ms Sampson submitted that the Registrant has not discharged the persuasive burden upon him in this regard. She submitted that conditions of practice were not appropriate given the lack of engagement. She referred the Panel to paragraph 121 of the HCPC Sanctions Policy. She submitted that the Registrant has been given every opportunity to remedy his failings and has not done so. She submitted, with reference to the Sanctions Policy, that it was now not appropriate to impose a further suspension and that striking off was now the appropriate sanction.

29. Ms Sampson said it was disappointing that there was no engagement by the Registrant and he has shown that he is not willing to remedy matters. She submitted that it was safe to assume the Registrant has chosen not to engage and that a Striking Off Order is now appropriate.

Decision
30. The Panel accepted the advice of the Legal Assessor who advised the Panel to consider whether all the concerns raised in the original finding of impairment have been sufficiently addressed. As set out in Abrahaem v GMC [2008] EWHC 183 (Admin), this places a persuasive burden on a Registrant to demonstrate at a review hearing that he has fully acknowledged the deficiencies which led to the original finding and has sufficiently addressed and remedied the impairment found “through insight, application, education, supervision or other achievement...”

31. The Panel must exercise its own professional judgement to decide whether the Registrant’s fitness to practise remains impaired and, if so, what sanction the Panel should impose to take effect from the expiry of the current sanction. The Panel should consider the guidance on impairment of fitness to practise in CHRE v NMC & Grant [2011] EWHC 927 (Admin), and have in mind the Sanctions Policy where relevant. It should remain mindful of the public interest. It is not bound by the decision of the previous reviewing panel and it should act proportionately, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection.

32. The Panel has nothing before it from the Registrant. He has not engaged to any extent in these proceedings. He has provided no information to the Panel, despite considerable efforts and, indeed, encouragement from the HCPC and the previous panels. The Registrant can be in no doubt about what he is required to do and what is expected of him. He carries the persuasive burden to demonstrate to the Panel that he has remediated his conduct, has developed insight and that his fitness to practise is not currently impaired. He has not done so and the Panel has nothing to show that he has remediated his practise and is no longer impaired. The Panel therefore concluded that the Registrant’s fitness to practise remains currently impaired.

33. The Panel considered that the findings are serious but they are remediable. However, there is no evidence that the Registrant is willing or able to resolve or remedy his failings. He has not engaged with the HCPC despite encouragement to do so. He has been given a clear indication from previous panels about the steps he should take and the information he should provide. He has not done so, and that is his choice.

34. The Panel considered that conditions of practice are not appropriate in these circumstances given the complete lack of engagement. The Panel knows nothing of the Registrant’s current circumstances and it is not possible to devise realistic and workable conditions of practice that would serve to protect the public and the wider public interest.

35. The Panel next considered a further Suspension Order. Given the lack of any engagement by the Registrant and the lack of any evidence of insight and remediation it is not clear to the Panel what purpose a further period of suspension would serve. The Registrant has had some 9 months of suspension and he continues not to engage or seek to demonstrate any insight or steps he may have taken to remediate. He has been given every opportunity to do so but he has not engaged. He has also been advised by the HCPC and sent details about the possibility of voluntary removal and he has not responded.

36. The Panel concluded that there is nothing to suggest that any purpose would be served by further extending the current Suspension Order. There is no public interest in keeping a Registrant who is not engaging with his Regulator on the Register indefinitely in the hope that he may in the future decide to engage.

37. The Panel next considered a Striking Off Order. The Registrant has not engaged since August 2017 when he stated, “…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.” However, since then he has provided nothing to demonstrate any insight or any interest in or willingness to resolve matters. In these circumstances the Panel concluded that a Striking Off Order is now the appropriate and proportionate sanction.

The Registrar is directed to strike the name of Mr Prosper Johnson from the Register on the expiry of the Suspension Order.

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