Mr Sajjad Ahmed

Profession: Operating department practitioner

Registration Number: ODP36735

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 26/07/2021 End: 17:00 28/07/2021

Location: This hearing will be held virtually via video conference

Panel: Health Committee
Outcome: Suspended

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Allegation

1. On 3 November 2017, you took an unauthorised break and left the theatre suite, to go outside to smoke a cigarette.


2. On 3 September 2018, you attended work whilst unfit to do so (redacted).


3. The matters described at 1 and 2 above constitute misconduct.


4. You have a physical and or/ mental health condition as set out in Schedule A.

Finding

Preliminary Matters


Service


  1. On 4 May 2021 an email was sent to the Registrant informing him of the dates of this hearing and the commencement times of it. He was also informed that it was proposed to hold this Hearing by video conferencing. The Panel is satisfied that under the amended provisions relating to service during the current pandemic, this email constituted good service of the notice of hearing. Accordingly, the Panel had jurisdiction to consider other matters arising in the case.
    Hearing in private
    2. As this is a Hearing of the Health Committee and evidence was to be received about the Registrant’s health, the Panel considered that the powers available to it to direct that evidence should be received in private were engaged. Such a direction would be needed to protect the Registrant’s private life. The Panel acknowledged that the default position is that a hearing is in public and that it had the power to direct that only parts of the hearing should be conducted in private. However, the Panel was satisfied that it would not be possible separate out in a meaningful way any elements of the case (even those relating to particulars 1 and 2 of the referred allegation) that could properly be dealt with in public. The Panel therefore directed that the entire hearing should be conducted in private. This direction has the consequence that this public version of the Panel’s determination has been heavily redacted.
    Proceeding in the absence of the Registrant
    3. The Panel approached the question of whether the Hearing should proceed in the absence of the Registrant by accepting the advice it received that the fact that there had been a valid notice of hearing, although a necessary condition, was not a sufficient reason to decide that it should proceed. Before deciding that the hearing should continue the Panel should be satisfied after considering all the circumstances that it would be fair to so direct. Having carefully considered all the relevant factors, the Panel concluded that this hearing should proceed in the Registrant’s absence. The reasons for that decision were as follows:• The Panel was satisfied that the Registrant knew that the hearing was to take place. The email address to which the notice of hearing was sent was one used by the Registrant to communicate with the HCPTS as recently as 6 April 2021.
    • The Registrant had earlier responded to communications from the HCPC and its Solicitors. On 27 November 2020 he wrote to consent to the HCPC’s application at a Preliminary Hearing that it should be permitted to rely on the evidence of an identified medical practitioner.

    • In his email he wrote in terms that suggested that he wished to return to practise as an Operating Department Practitioner (“ODP”) and considered that he should be allowed to.

• In his email dated 6 April 2021 the Registrant replied to a HCPTS Scheduling Officer who had written on 30 March 2021 explaining that her purpose in writing was to ensure that the final hearing was not listed on a date when he would be unable to attend. He apologised for his delay in replying, explaining that he has experienced a family bereavement, and he stated that he would further reply in the next couple of days. No further communication was in fact made by the Registrant. As recently as 22 July 2021 the Hearings Officer attending this hearing wrote an email to the Registrant introducing herself and asking if it was his intention to participate, explaining the video conferencing arrangements and asking that the Registrant should request her to send to him a link if he wished to participate. That email was not replied to.

• The factors just referred to led the Panel to conclude that the Registrant had made a conscious decision to disengage from these proceedings.

• There was no request for an adjournment and no communication from the Registrant stating that these hearing dates were inconvenient for him. Accordingly, the Panel was unable to conclude that there would be a likelihood of greater engagement on his part if the hearing were to be adjourned and rearranged on another occasion.

• The three witnesses whom the HCPC intended to call to give evidence before the Panel were available and waiting.

• The papers available to the Panel included accounts given by the Registrant to the two investigating officers, to the expert medical witness, to his General Practitioner and in the reflective piece he wrote in about October 2018. These accounts mitigated the disadvantage arising from the absence of the Registrant.

• In all the circumstances, the public interest factors requiring the hearing to proceed outweighed the absence of the Registrant.

The allegation referred by the Investigating Committee

4. On 1 May 2020 a panel of the Investigating Committee determined that there was a case to answer in relation to the allegation that is set out above. It is what is described in the HCPC fitness to practise process as a “dual allegation” because it alleged that the Registrant’s fitness to practise is impaired by reason of the misconduct set out in particulars 1 and 2 (hereafter “the misconduct allegation”), and also that his fitness to practise is impaired by reason of the health conditions particularised in Schedule A to the allegation (hereafter “the health allegation”). The Conduct and Competence Committee has jurisdiction to consider a misconduct allegation, but not a health allegation. Conversely, the Health Committee can consider the latter allegation, but not one based on misconduct. It follows that at the “case to answer” stage a decision had to be made as to which Committee the allegation should be referred to undertake (at least initially) the final hearing. The decision was made to refer the decision to the Health Committee. The Panel was provided with a copy of an HCPC document entitled “Approach to dual allegations” that had been revised in June 2021. The Panel was satisfied that the Presenting Officer’s approach was correct and consistent with the document.

Accordingly, the approach of the Panel has been:

• To receive evidence in order to make specific findings about the contention advanced by particular 4 and Schedule A that the Registrant suffers from the health conditions alleged.

• If it is decided that one or more of the alleged health conditions have been proved by the HCPC, then to make a specific finding as to whether those conditions are (or one of them is, if only one is proved) currently impairing the Registrant’s fitness to practise.

• If that impairment of fitness to practise is established, what (if any) sanction that finding requires.

• The Panel should not make specific findings about any element (i.e. facts, ground of misconduct or impairment) relating to the misconduct allegation.


• It would, however, be appropriate for the Panel to hear evidence relating to the factual matters, but only to the extent that it would be relevant to the context of the decisions required to be made concerning the health allegation.

• As the Investigating Committee found a case to answer in relation to the misconduct allegation, at some stage some direction would be required in relation to it. However, no decision should be made about what should happen about the misconduct allegation should be made until the health allegation has been fully determined.


Background


5. At the time complaints were made about his conduct, the Registrant was employed as a Band 5 ODP at the Luton and Dunstable Hospital NHS Foundation Trust (“the Hospital”). He was initially employed there in November 2013 as a Theatre Support Worker, but after successfully completing his ODP training, he qualified as an ODP in May 2016 and was then employed in that capacity. His employment came to an end on 7 February 2019 when he was dismissed following an internal disciplinary process conducted in the later of the two incidents that will be summarised below.


6. The two matters alleged in, respectively, particulars 1 and 2 of the allegation) were:

• On 3 November 2017, the Registrant left the operating theatre to which he was assigned for his shift without obtaining authorisation to do so. The incident came to light because his line manager, a Band 7 ODP, went to speak to him, but could not find him. Unable to find him, his line manager waited outside the changing rooms for approximately 10 minutes, and when he came out the Registrant said that he had gone outside for a cigarette. A few days prior to this incident the Registrant had been on emergency leave. During the disciplinary hearing into the incident the Registrant stated that he had absented himself on 3 November 2017 due to emotional strain. Following the incident, the Registrant had a period of leave that extended for approximately six months. This absence resulted in the disciplinary investigation into the incident being delayed until after he returned from the lengthy period of leave.

• On 3 September 2018, the Registrant was scheduled to work the 07:45 to 18:45 shift. At the commencement of the shift he could not be found, something the Consultant Anaesthetist found surprising because he usually arrived early. When he did arrive, the Consultant Anaesthetist stated that she noticed that the Registrant’s eyes were red, he had stubble on his chin and he was not carrying the equipment he had been asked to gather. It was also noticed that there was a smell, something other people subsequently noticed, that suggested that the Registrant had been drinking. The Registrant was suspended from duty. As has already been noted, the Registrant was subsequently dismissed at the conclusion of the internal disciplinary process.

Decision on Facts

7. The HCPC called three witnesses to give evidence before the Panel. They were:

• Witness 1, at the time the Senior Sister in operating theatres at the Hospital. Witness 1 had no direct personal knowledge of either incident, but she did undertake the internal investigation into the incident on 3 November 2017.

• Witness 2, the Critical Care Matron at the Hospital. Witness 2 had no contemporaneous involvement in either incident, but she undertook the internal investigation into the incident on 3 September 2018.

• A medical expert who was instructed by the HCPC to give an expert opinion on the issue of the health conditions alleged against the Registrant. This witness wrote a full expert report dated 21 September 2020 after interviewing the Registrant four days earlier. Restrictions resulting from the present pandemic meant that the interview was conducted by video call rather than face-to-face. This witness also had access to copies of the records of the Registrant’s General Practitioner for the period between February 2017 and July 2020.

8. The Panel concluded that it could safely rely on the evidence it was given by the three witnesses who gave evidence at the hearing. Both Witness 1 and Witness 2 gave their evidence in a measured and professional manner. The Panel was satisfied that their respective investigations were conducted thoroughly and fairly. Importantly, the Panel was also satisfied that both Witness 1 and Witness 2 had accurately recorded the replies of the Registrant when he was interviewed by them. In relation to the medical expert, the Panel was satisfied that he had the appropriate expertise to give opinion evidence and that his evidence was given in a measured and fair manner.

9. As stated in the introduction to this determination, the factual issues in respect of which it is necessary that the Panel should come to a conclusion is whether the HCPC has proved that the Registrant suffers from the health conditions particularised in Schedule A. These conditions must be considered separately.

The first health condition particularised in Schedule A.

10. The conclusion of the Panel having considered the evidence given in private was that the HCPC had not proved the health condition alleged in Schedule A to the allegation.
The other health condition particularised in Schedule A.

Finding of facts – summary.

11. The Panel’s finding that it is proven that the Registrant suffers from is also the ground of the health allegation. It follows that the next decision the Panel is required to make is whether this condition is currently impairing the Registrant’s fitness to practise.

Decision on Impairment

12. The Panel heeded the advice it received as to the importance of considering both the personal and public components relevant to impairment of fitness to practise.

13. Having considered all the available information, the Panel concluded that the Registrant’s fitness to practise is impaired in respect of both the personal and public components.

14. It follows from these findings that the health allegation is well founded and the Panel must proceed to consider the issue of sanction in relation to it.

Decision on Sanction

15. After the Panel handed down its written determination explaining that the health allegation is well founded, it allowed the Presenting Officer time to consider it before making his submissions on sanction.

16. The Presenting Officer reminded the Panel of the importance of the HCPC’s Sanctions Policy, and in particular to paragraphs 10 and 20 to 22 of that document that make clear the factors that can justify the imposition of a sanction and the importance of ensuring that any sanction represents a proportionate response to the finding. He also identified matters that he submitted could properly be said in the Registrant’s favour. He drew attention to the insight and remorse that was demonstrated by his reflective piece of October 2018 and the account he had given to the medical expert witness in September 2020. He also referred to the good progress noted by the medical expert witness and the positive comments about the Registrant made by Ms JG, who had worked with the Registrant. The Presenting Officer did not urge the Panel to apply any particular sanction, but he did draw the attention of the Panel to the guidance given in paragraphs 106 and 107 of the Sanctions Policy that might suggest that a conditions of practice order would not be appropriate given the lack of recent engagement in this process on the part of the Registrant.

17. The Panel accepted the advice it received and therefore approached the decision it is required to make on the basis that a sanction should not be imposed to punish. Rather, a sanction should only be imposed to the extent that it is required to protect the public or to maintain a proper degree of confidence in the ODP profession and the regulation of it. The first question to be answered by the Panel is whether any sanction at all is required. If it is, the available sanctions must be considered in an ascending order of seriousness until one that sufficiently addresses the factors just identified. As the issue of sanction is being considered in relation to a finding that a health allegation is well founded, the sanction range terminates with a suspension order.

18. The Panel does not propose to repeat here all that has already been said. It is, however, necessary to repeat some elements of what has already been said in relation to impairment of fitness to practise because they are important to ensure that the correct sanction decision is reached. Whereas a diagnosis of the health condition from which the Panel finds the Registrant is suffering is not a factor that must in all circumstances result in a practitioner being denied the opportunity to practise, that condition, if not managed satisfactorily, gives rise to a significant risk to public safety. Accordingly, notwithstanding the positive features identified by the Presenting Officer and with which the Panel agrees, without cogent evidence that the condition is being managed, there must be a restriction placed on a practitioner’s ability to practise. In the present case there is no evidence that the Registrant’s condition is being managed.

19. The findings just explained have led the Panel to find that a sanction is required. Furthermore, the imposition of a caution order would not afford the required degree of public protection the circumstances of this case require. It is possible to envisage cases in which appropriate conditions of practice could be formulated, but the present case is not one such because of the lack of engagement on the part of the Registrant.

20. It follows that the Panel has arrived at the sanction of suspension. This is not a conclusion reached by the Panel reluctantly because of the inappropriateness of all other options; in the judgment of the Panel it is the sanction that is required to provide the necessary degree of public protection. The Panel has concluded that the appropriate length of this suspension order is 12 months.

21. There are two further matters the Panel considers it appropriate to inform the Registrant:

• Although the Panel does not have the power to make a striking off order at present, if repeated suspension orders are made the power to make a striking off order will arise.

• The suspension order made today will, in common with all suspension orders, be reviewed before it expires. When that review is undertaken the reviewing panel will have all the sanction powers that were available to the Panel today, including that of a further period of suspension. The decision that will be made when that review takes place will be a matter for the panel conducting it, and the present Panel does not intend to trespass on the discretion that the future panel will have. However, the Registrant would be well advised to consider that if he wishes to avoid a further period of suspension being made on the review he should take a more active role in these proceedings than he has taken of late. What he might wish to do is, of course, a matter for him, but as a minimum he might consider that the following would assist:

o Attendance at the review hearing.

o Independent evidence that his condition is (it should be noted that the Registrant will be responsible for meeting the cost of providing any such evidence).

o Evidence in relation to any support mechanisms he has in place in relation to his health condition.

The misconduct element of the dual allegation.

22. The nature of the dual allegation that emerged from the decision of the Investigating Committee made on 1 May 2020 was explained in paragraph 4 above. Also, the HCPC’s guidance document revised in June 2021 was referred to in that paragraph. The guidance includes the statement that when announcing its decision on sanction, the Panel should also provide its view on the secondary allegation (in this case the misconduct allegation) and invite submissions from the parties present.

23. The view the Panel expresses in relation to the secondary misconduct allegation is that it could properly be discontinued. The reason for that view is that the Panel considers that (i) the Registrant’s health lies at the heart of that secondary allegation; (ii) the health issues have been fully explored and decided by the decision on the health allegation; and, (iii) the sanction of suspension that is imposed in relation to the health allegation provides the necessary but sufficient public protection that is required in the wider circumstances. In short, the Panel is of the view that no useful purpose would be served by the misconduct allegation being resolved at a future final hearing. The Panel is also of the opinion that this is not a case in which a decision on the misconduct allegation is required to allow for the possibility of the greater sanction powers being exercised. The Panel invites the submissions of the HCPC in relation to these tentative views.

Applications made by the HCPC following the announcement of sanction.

24. After the Panel handed down its written determination that a suspension order should be imposed, the Panel allowed the Presenting Officer time to consider the decision. When the Panel reconvened in the virtual hearing room the Presenting Officer made two applications, namely:

• For an interim suspension order covering the appeal period. In respect of this application the Presenting Officer submitted that the Registrant had been put on notice by the email of 4 May 2021 that the issue might be considered, that it was appropriate to consider the application in the Registrant’s absence. On the question of whether an interim order should be made, the Presenting Officer drew attention to the Panel’s substantive decisions as to the risks presented by the Registrant and submitted that the need to protect the public requires a restriction on his ability to practise while his appeal rights remain outstanding.

• That the Panel should reconstitute itself as a Panel of the Conduct and Competence Committee, and in that capacity agree to the HCPC’s application that the secondary allegation should be discontinued. In relation to this application the Presenting Officer submitted that the particulars of misconduct alleged were impacted by the health conditions that were considered by the Panel in reaching the decision that the health allegation is well founded. Furthermore, he submitted that from the HCPC’s perspective the sanction of suspension ordered in relation to the health allegation afforded a proper degree of public protection.

Interim Order decision

25. The Panel first considered whether it had jurisdiction to consider the matter. The Panel was satisfied that in the notice of hearing email sent to the Registrant on 4 May 2021, the Registrant was put on notice that in the event of a substantive suspension order being made, the making of an interim order was a possibility. This notification afforded the Registrant an opportunity to make representations on the issue of whether an interim order should be made, and that opportunity meant that the Panel had jurisdiction to consider the application.

26. The Panel next considered whether it was appropriate to deal with the application in the absence of the Registrant. There had been no indication by the Registrant that in the event of a substantive sanction being imposed he would wish to be heard on the application for an interim order. Furthermore, it is in the very nature of an interim order that if it is determined to be required, there is a degree of urgency that would be frustrated by not dealing with it immediately after the imposition of the sanction. For these reasons the Panel concluded that it was appropriate to consider the issue in the absence of the Registrant.

27. In relation to the decision whether an interim order should be made, the Panel accepted the advice it received from the Legal Assessor that the default position established by the legislation governing these proceedings is that when a substantive sanction is imposed there should be no restriction on the registrant’s ability to practise unless and until that registrant’s appeal rights are exhausted. It follows that positive reasons are required to justify departure from this default position. Those reasons are to be measured against the grounds that can justify the imposition of an interim order, namely that it is (i) necessary for protection of members of the public, (ii) otherwise in the public interest, or (iii) in the interests of the registrant himself or herself.

28. The Panel determined that an interim order is required, the same being necessary for protection of members of the public and being otherwise in the public interest. The reasons for this decision were:

• For the reasons explained in the substantive private decision, the Panel has found that there is a risk and that risk has significant implications for public safety. The public should be protected against the risk of repetition that would exist if the ability of the Registrant to practise during the appeal period is not restricted.

• In view of the risk to public safety, serious damage would be done to the reputation of the ODP profession and the regulation of it were there to be no restriction on the Registrant’s ability to practise while his appeal rights remain extant.

29. The Panel acknowledged that in health cases interim orders are not infrequently made on the ground that the order is in the registrant’s own interests. The Panel considered whether that ground was satisfied in the present case but concluded that the absence of evidence as to the Registrant’s current condition meant that it could not be included as a ground justifying an interim order.

30. An interim order being necessary, the Panel next considered whether the factors requiring it could be satisfactorily addressed by the imposition of interim conditions of practice. The conclusion of the Panel was that they could not. The reason for this decision is the same reason why substantive conditions of practice are not appropriate.

31. For these reasons an Interim Suspension Order is required.

32. As to the duration of the Interim Suspension Order, the Panel determined that it should be for the maximum period of 18 months. If the Registrant does not appeal against the substantive decision and Order there will be no prejudice to him because the Interim Suspension Order will simply fall away when the suspension order takes effect. However, if the Registrant does appeal within the 28 day period he has to take that step, the final determination of that appeal could well take 18 months, and for the reasons already expressed, his ability to practise should be restricted pending that final determination

Decision on the HCPC’s application to discontinue the secondary allegation that the Registrant’s fitness to practise is impaired by reason of misconduct.

33. For the purposes of this decision the Panel reconstituted itself as the Conduct and Competence Committee. The Panel was satisfied that it was not necessary for the Registrant to be informed of this purely procedural step as he could not be prejudiced by it; the worst that could happen from the Registrant’s point of view is that the Panel could refuse to agree to the discontinuance in which case he would be in no worse position that he currently is. Alternatively, if the Panel agrees to the discontinuance, he will be advantaged by no longer facing the misconduct allegation.

34. The Panel expressed its tentative view on discontinuance in paragraph 30 above. In deciding whether the HCPC’s positive application for discontinuance should be acceded to, the Panel heeded the advice it received which was consistent with the terms of the HCPTS Practice Note entitled, “Discontinuance of proceedings”. The Panel should be satisfied that the public interest would not be disadvantaged by permitting discontinuance. The reasons for this decision are as follows:

• The misconduct allegation cannot be viewed as wholly distinct from the health allegation that has been fully examined and decided. As acknowledged by the Presenting Officer in applying for discontinuance, the same health issues that have been considered were closely connected to the misconduct alleged.

• The Panel is satisfied that the sanction of suspension imposed in respect of the health allegation represents a proper degree of public protection.

• There would be a significant waste of public funds in the misconduct allegation being advanced to a final hearing. It would be necessary to recall the witnesses who have given evidence (or at the very least some of them), and to the extent that the Registrant is concerned to follow the progress of these fitness to practise proceedings, it would be oppressive for him if the misconduct allegation was to be progressed to a final hearing.

35. Accordingly, the Panel agrees to discontinuance of the secondary, misconduct allegation, and the Panel Chair will sign the appropriate notice.

Order

ORDER:
The Registrar is directed to suspend the registration of Sajjad Ahmed for a period of 12 months from the date this order comes into effect.

Notes

A  Final Hearing was  held virtually from Monday 26 July- Wednesday 28 July 2021.

The Panel made 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.

Hearing History

History of Hearings for Mr Sajjad Ahmed

Date Panel Hearing type Outcomes / Status
26/07/2021 Health Committee Final Hearing Suspended