Mr James Germain

Preliminary Matters

Service and Proceeding in Absence 

1. The Panel has seen the Notice of today’s hearing dated 28 January 2021, which the HCPC sent by email to the Registrant at his registered email address. The Notice of Hearing made clear that this hearing would take place today as a virtual hearing. The Notice informed the Registrant of the time and date of this hearing. The Notice also invited the Registrant to make submissions and to provide any new information as to what may have happened since the last hearing. A copy of the notice was also contained in a letter 29 January 2021, sent by post, to the Registrant at his registered address. 

2. Having seen the relevant documents, and having heard and accepted the advice of the Legal Assessor, the Panel is satisfied that good service of the Notice of Hearing has taken place.

3. The Panel considered whether to proceed in the Registrant’s virtual absence and in the absence of any representation from him. It is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel took account of the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant”. It heard the submissions by Ms Bwoma on behalf of the HCPC. It heard and accepted the advice of the Legal Assessor.

4. The Panel determined to proceed in the absence of the Registrant. Its reasons are as follows:

· It is satisfied that there has been good service of the Notice of this Hearing.

· The Registrant has not applied for an adjournment.

· The Registrant did not attend and was not represented at the substantive hearing in September 2019. The Registrant did not make any submissions to the panel that reviewed the order on 01 April 2020 or seek any adjournment of that hearing.

· The Registrant has not engaged with the HCPC as regards this hearing or responded to any of the relevant communications from the HCPC in respect of this hearing.

· This is a mandatory review and it is in the interests of the Registrant and the public interest that it should proceed.

· In all the circumstances, it is proper to conclude that the Registrant has voluntarily decided not to engage with these proceedings.

Background

5. The Registrant was employed by the Sandwell and West Birmingham NHS Trust (“the Trust”) as an Operating Department Practitioner. The Trust alleged he falsified, between 17 September 2016 and 3 April 2017, staff rostering shift entries retrospectively. They alleged he did so under another person’s electronic username and password, without their consent. This resulted in the payment to the Registrant of 33 shifts, which were not worked, to the value of approximately £9,400.

6. The HCPC conducted an investigation and the Final Hearing took place between 2 - 5 September 2019. That panel (“the Substantive Hearing panel”) found that Particulars (1)(a) - (gg), that the Registrant entered 33 shifts on the e- roster system which he had not worked, were not found proven. It did, however, find that the Registrant had received payment of approximately £9,400 from the Trust for shifts which he had not worked, and that he did not inform his employer that he had been overpaid.

7. The Substantive Hearing panel found this was dishonest. It also found that the Registrant lent his Hospital ID Card to another individual, and failed to report the subsequent loss of that card to his employer. The Substantive Hearing panel determined that these acts amounted to misconduct. The Substantive Hearing panel considered the Registrant had demonstrated some insight and remorse for his actions in his written representations to the HCPC, and had stated during the Trust’s internal investigation process that he was both willing and able to pay the overpayments back in full. The Registrant also admitted all of the factual particulars found proven by the panel. They did not therefore consider his fitness to practise to be impaired on the personal component.

8. On the public component, the Substantive Hearing panel was satisfied this was a serious case, in which the Registrant had, by his dishonest behaviour, retained public money destined for use in the NHS. They therefore made a finding of current impairment in order to uphold proper professional standards and confidence in the profession. The Substantive Hearing panel imposed Suspension Order for a period of six months, and recommended he provide to any future reviewing panel:

a. His attendance, in person or by telephone; and

b. Any character references and testimonials, dealing in particular with his probity and integrity.

Hearing on 1 April 2020

9. At the review hearing conducted on 1 April 2020 the panel found that that the Registrant’s fitness to practise was still impaired and imposed a further suspension for a period of 12 months. The reasons for its findings was couched in the following terms:

“The Panel accepted the advice of the Legal Assessor. The Panel has also had regard to the HCPTS’s Practice Note on Fitness to Practise Impairment. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Simpson. The Panel considered that this required the Registrant to demonstrate both developed insight and remediation of his failings for him to be considered suitable for return to unrestricted practice.

There is no evidence or information before the Panel today that could satisfy it that the Registrant’s fitness to practise is no longer impaired. The Registrant did not fully engage with the Final Hearing nor has he engaged in the review process. There is no indication to suggest that the Registrant has started the remediation process including whether he has reflected on his past failings or by taking any of the steps suggested by the previous panel. Indeed, the Panel noted that there was evidence before it that the Registrant had continued to practise as an Operating Department Practitioner despite a Suspension Order being in place. He was only prevented from working as an Operating Department Practitioner when his employer was alerted by the HCPC of his suspension. In the circumstances, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the personal component of impairment.

The Panel concluded that there was no information before it that could lead it to conclude that there was not an ongoing need for a restriction on the Registrant’s practice. In those circumstances, it concluded that public confidence in the profession and in the regulatory process would be undermined if the Registrant were able to practise without restriction.

In the light of all of the above, the Panel determined that the Registrant’s fitness to practise also remains impaired on the public component.

The Panel then went on to consider what the appropriate and proportionate sanction should be, starting with the least restrictive. It bore in mind that the purpose of a sanction was not to be punitive, although a sanction may have that effect.

The Panel also bore in mind that its over-arching objective is:

 
• to protect, promote and maintain the health, safety and wellbeing of the public;

• to promote and maintain public confidence in the operating department practitioner profession; and

• to promote and maintain proper professional standards and conduct for members of the profession. 

It had regard to the paragraphs 56 and 57 of the Sanctions Policy issued by the HCPC, noting the categorisation of matters of dishonesty as serious cases.

The Panel first considered taking no action but was satisfied that the Registrant’s failings were so serious that the public interest considerations could not be met by such an outcome. The Panel was not satisfied that there would be no risk to the public, or to public confidence in the profession by taking no action.

Given the Panel’s findings, it was also not satisfied that mediation was an appropriate sanction given that the particular circumstances of this case make such an outcome irrelevant.

The Panel next considered whether to impose a Caution Order in light of paragraph 101 of the Sanctions Policy. However it concluded such an order would not be sufficient to protect the public, nor would be in the public interest given that the Registrant’s failings were neither isolated, minor, nor limited in nature. Neither outcome restricted the Registrant’s practice and would therefore not adequately protect the public or safeguard the public interest.

The Panel next considered whether to impose a Conditions of Practice Order. It had regard to paragraph 106 of the Sanctions Policy but concluded that it would neither be appropriate nor proportionate given the nature of the misconduct found proved relating as it did to dishonesty, and not to matters of competence. In the circumstances, it concluded that it could not formulate appropriate conditions to address the Registrant’s dishonest behaviour, particularly given the Registrant’s lack of engagement and lack of demonstrable insight. The information before the Panel is such that the Panel cannot be satisfied that the Registrant is willing or able to comply with any conditions that may be imposed. Not only has the Registrant not engaged with these proceedings, but there was also evidence that the Registrant had failed to comply with the current restriction on his practice by working when subject to a Suspension Order.

The Panel next considered extending the existing Suspension Order. In doing so, it has had regard to paragraph 121 of the Sanctions Policy. The Panel noted that the Registrant has not engaged in the regulatory process to date, and has not availed himself, throughout that process, of the opportunity of demonstrating that he wished to return to practice. Similarly, there was no evidence before the Panel to demonstrate that that the Registrant had developed insight or taken steps to address his failings such that the Panel can be satisfied that it was appropriate for the Registrant to return to unrestricted practice.

However, the Panel was also mindful of the particular circumstances in which this hearing on the papers was taking place and the submissions made in that regard on behalf of the HCPC, particularly in relation to whether to impose a Striking Off Order at this stage. In all the circumstances, notwithstanding the Registrant’s non-engagement, the Panel nevertheless concluded that the appropriate and proportionate outcome, at this point in time, was to extend the Suspension Order for a further 12 months. This was considered an appropriate period of time given the current government restrictions on movement, noting that the HCPC propose applying for an early review once the restrictions have been lifted. However, that is not to say that the position will remain the same at the end of this further period of suspension if there is a continuing lack of engagement by the Registrant and an inability or unwillingness on his part to address his shortcomings. This, the Panel hoped, would be a sufficient period of time to allow for the matter to be relisted for an oral hearing once the current COVID-19 pandemic no longer prevented such a hearing taking place.”

10. The panel gave guidance as to what might assist a further reviewing panel. That advice was couched in the following terms:

The Panel repeats the suggestions of the Substantive Hearing panel that a reviewing panel might be assisted by the following:

• The Registrant’s attendance at the review hearing (even if by telephone);

• Any character references or testimonials, dealing in particular with his probity and integrity.

Today’s Review Hearing

Submissions made to this Panel on behalf of the HCPC

11. Ms Bwoma on behalf of the HCPC submitted:

• that the Registrant’s fitness to practise remains impaired on both the personal and the public component. She submitted that there had been no change in the essential facts since the review hearing in April 2020. The Registrant had not engaged with the HCPC or complied with any of the suggestions as to what would assist a reviewing panel.

• As to sanction, she reminded the Panel that all the sanctions were available to it. She submitted that in this case, the essential choice lay between a further six months extension of the existing Suspension Order or a Striking Off Order.

Registrant’s submissions

12. No submissions have been provided either by, or on behalf of the Registrant.

Legal advice

13. The Legal Assessor reminded the Panel that its function was to conduct a comprehensive review in order to determine whether the Registrant is fit to return to unrestricted practice. He advised that in carrying out this assessment, and if relevant, in determining the appropriate sanction to impose, the Panel must apply the principle of proportionality. He reminded the Panel that in this case all the sanctions were available to the Panel and should be considered in ascending order of restriction. He advised that the Panel should consider the document entitled “Sanctions Policy” [SP] published by the HCPC in March 2019 and he drew specific attention to the paragraph in that document which sets out the criteria for a striking off order.

Panel’s decision

14. The Panel accepted the advice of the Legal Assessor. The Panel has had regard to the HCPTS’s Practice Note on Fitness to Practise Impairment and to the SP.

15. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it and the submissions of Ms Bwoma. The Panel has concluded that the Registrant’s fitness to practise remains impaired, on both the personal and the public component.  Its reasons are essentially the same as those identified by the panel that reviewed the order on 01 April 2020. These reasons include the following: there has been no material change in the underlying facts since the hearing in April 2020. The Registrant has not engaged with the HCPC in any way. He has not responded to the suggestions made by the panel in April 2020. He has not participated in this Hearing - though doing so by telephone was an option available to him. He has provided no references or testimonials. He has not informed the HCPC as to his current work situation. There is no evidence of remediation or the development of any insight.

16. The Panel also kept in mind, as did the panel in April 2020, that in breach of the suspension order imposed in September 2020, the Registrant worked a number of shifts as an ODP. A well informed member of the public would not understand, if given all the matters set out above, if this Panel was to conclude that the Registrant’s fitness to practise is no longer impaired. The Panel has therefore concluded that the only tenable view is that the Registrant’s fitness to practise remains impaired on both the personal and the public components.

17. Having concluded that the Registrant’s fitness to practise remains impaired, the Panel considered what sanction would be appropriate and proportionate in order to address the risks that it has identified.  In doing so, it considered the guidance given in the SP. It has concluded that the necessary and proportionate order is a Striking Off Order. Its reasons are as follows:

• To take no action or to impose a Caution Order would not impose a restriction on the Registrant’s ability to practise. Such an outcome would not protect the public or address the public interest and would be wholly inappropriate.

• A Conditions of Practice Order would not be appropriate. The misconduct found proved includes dishonesty. It is not possible, in this case, to formulate appropriate conditions to address such an attitudinal failure. Moreover, the Registrant had breached the Suspension Order imposed on 5 September 2019, by working shifts as an ODP whilst suspended. This breach together with the Registrant’s continued failure to engage with the HCPC, indicates an unwillingness on his part, to comply with any conditions. Moreover, the Panel has not been given any information as to what the Registrant is now doing or wishes to do in the future.

• A Suspension order is no longer appropriate. The Registrant has not engaged with the HCPC. He has not complied with the suggestions made by the two previous panels as to what might assist a reviewing panel. The Panel could not be confident that the Registrant has developed an appropriate level insight or that the conduct found proved was unlikely to be repeated. In all the circumstances, the Panel concluded that, only a Striking Off Order would address the public interest and protect the public.

Order: The Registrar is directed to strike the name of Mr James Germain from the Register on the date this Order comes into effect.

The Order imposed today will apply from 3 April 2021.

History of Hearings for Mr James Germain