Mr Mundatta Nundoo

Preliminary Matters

Service

1. The Panel was satisfied that there had been good service of the Notice of Hearing in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). An email was sent to the Registrant’s registered email address, giving notice of today’s hearing, on 07 April 2021.

2. The Notice was sent electronically only because the HCPC has closed its offices in the light of the current Covid-19 pandemic and employees are unable to send Notices by post. The Panel was informed that the email had not bounced back and that delivery of the email had been confirmed.

Proceeding in Absence

3. The Registrant did not attend the hearing today. The Panel had sight of an email dated 23 April 2021 sent to the Registrant relating to the hearing today. The email requested that the Registrant submit any evidence he wished to rely on by 03 May 2021 and sought confirmation by email as to whether he would be attending the hearing and/or whether he had a representative. There had been no response from the Registrant.

4. Ms Sampson, on behalf of the HCPC, applied for the hearing to proceed in the absence of the Registrant. She reminded the Panel that it could proceed to hear the matter in the absence of the Registrant pursuant to Rule 11 of Rules, if satisfied that all reasonable steps had been taken to serve the Notice of Hearing on the Registrant in accordance with the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. A panel must first consider whether notice of the proceedings have been served on the Registrant. The Panel must also have consideration of all the circumstances of the case when taking the decision to proceed in absence, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

5. Ms Sampson reminded the Panel of the need for the HCPC to fulfil its statutory duty of protecting the public and reviewing the Order before its expiry under Article 30 of the Health Professions Order 2001.

6. It was submitted that the Registrant has not made any application to adjourn the hearing and that the Registrant appeared to have voluntarily absented himself from attending the hearing, and hence had deliberately waived his right to attend.

7. Furthermore, she submitted that, as this is a mandatory review of the current Order, it was in both the Registrant’s interest and in the public interest for a review of the statutory Order to take place as scheduled. The consequences of not proceeding would be that the Order would lapse on expiry on 21 June 2021 and the Registrant would be automatically restored to the HCPC Register in circumstances where it had not been determined that he is fit to return to practice.

8. The Panel considered whether it ought to exercise its discretion to continue with this hearing in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor, who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution. The Panel concluded that it was in the public interest to do so, having considered the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and having considered the guidance in R v Jones [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 162, R v Hayward [2001] EWCA Crim 168, GMC v Visvardis [2016] EWCA Civ 162, and Sanusi v GMC [2019] EWCA Civ 1172, for the following reasons:

• The Panel was satisfied that the Registrant had notice of the hearing.
• The Registrant was aware of the hearing today, the Panel having found that the Notice of Hearing was served in accordance with the Rules.
• The Panel was of the view that even if these proceedings were adjourned there was very little likelihood that the Registrant would attend on a subsequent occasion. He had not requested an adjournment. The Panel took account of the fact that the Registrant did not attend the substantive hearing in May 2018, nor did he provide submissions for the second review hearing which took place on the papers on 15 April 2020.
• The Panel concluded that the Registrant had deliberately chosen not to attend this hearing and was hence satisfied that he had voluntarily absented himself.
• The Panel was satisfied that there would not be a significant risk of unfairness to the Registrant if it decided to proceed in his absence. It further recognised that there was a public interest in conducting a mandatory review of the substantive Order currently in place prior to its impending expiry. It therefore decided to proceed in the Registrant’s absence.
Bundle

9. The Panel was provided with a substantive bundle of documents which ran to 40 pages and a service bundle of 7 pages.

Background

10. The Registrant was employed as an Operating Department Practitioner (ODP) in the North East London NHS Treatment Centre (NELTC) from 2011.

11. On 17 June 2016, Patient X was admitted to the NELTC to undergo a left knee Arthroscopy. She had previously undergone a left knee Aspiration in February 2016 at the treatment centre. A general anaesthetic was administered to Patient X and she was transferred to the operating theatre from the anaesthetic room, where second stage safety checks were conducted. At this stage the scrub nurse checked the patient consent form and noticed that it made reference to a knee Aspiration rather than a knee Arthroscopy. This conflicted with the details on the theatre list which correctly indicated that the procedure to be performed was one of Arthroscopy. The scrub nurse alerted the team to this error and, on investigation, it transpired that the consent form in question in fact related to the previous aspiration procedure that Patient X had undergone in February 2016. The surgery therefore had to be abandoned.

12. As the responsible ODP, the Registrant took the lead in completing the Nursing Pre-Operative Checklist on the handover from the ward staff and the World Health Organisation (WHO) Surgical Safety Checklist in the anaesthetic room.

13. The Nursing Pre-Operative Checklist, as part of the patient pathway, required the Registrant to confirm that the consent form was “signed and verified against the theatre list.” The Registrant ticked this despite the existence of the discrepancy between the two forms. The Registrant also, in completing his part of the WHO Surgical Safety Checklist, remarked “patient identity/procedure consent/wristband confirmed.”

14. On noticing the discrepancy, the Registrant should have escalated matters immediately to the Consultant Surgeon or others within the operating department team. This was so that proper enquiries could be made before the patient was anaesthetised. This did not happen. The surgery had to be abandoned and the result was a delay to the treatment of the patient, who had to endure ongoing knee pain until the appropriate procedure was conducted about a week later.

Substantive hearing: 23-25 May 2018

15. The Registrant was referred to the HCPC and a substantive hearing took place between 23 -25 May 2018. At that hearing, the Registrant was neither present nor represented. At that time, he had not engaged in the regulatory process at all from the very outset.

16. The substantive hearing panel found the facts of the Allegation proven. The Registrant, it appeared from the documents relating to the NELTC disciplinary process, did not deny the existence of the discrepancy, nor did he deny the fact that he failed to confirm or raise the discrepancy with his colleagues. He stated instead that the patient was unsure of the procedure, but as the consent form had been signed he gave precedence to this and ignored dealing with the discrepancy.

17. The substantive hearing panel also found that the Registrant had been responsible for failing to conduct safety checks and failing to inform the operating team that the patient did not have a valid written consent form for the procedure she was to undergo. This, it concluded, was a basic and central part of his duty, and the Registrant failed to abide by it. The result was that the operation was abandoned after the patient was anaesthetised. The patient had to receive a second general anaesthetic unnecessarily, and the patient remained in pain for another week. The substantive hearing panel concluded this was a serious failing, in that the Registrant wholly failed to engage with mandatory patient safety procedures.

18. The substantive hearing panel also found the Registrant’s fitness to practise was impaired. He had not fully recognised his failings, nor the danger his misconduct posed. He had not provided evidence of remediation and, consequently, the substantive hearing panel concluded that there was a risk of repetition of such shortcomings.

19. The substantive hearing panel considered that this was an isolated incident, and that the Registrant was generally a valuable and conscientious staff member. However, the misconduct caused unnecessary pain to the patient, and resulted in her undergoing a second general anaesthetic. The Registrant had also sought to deflect the blame elsewhere. It therefore considered that anything less than a Conditions of Practice Order would not provide the appropriate level of public protection or uphold the public interest.

20. The Registrant’s lack of engagement with the process, as well as the seriousness of the misconduct, meant that a Conditions of Practice Order was considered inappropriate. The substantive hearing panel therefore imposed a Suspension Order for a period of 12 months, to allow the Registrant to reflect on the findings and consider how he might remediate his failings.

First Substantive Review Hearing: 21 May 2019

21. The Suspension Order was first reviewed on 21 May 2019. At this hearing, the Registrant attended via telephone and represented himself, but did not provide any documentation. The Registrant gave evidence, but the reviewing panel had some reservations about it. For example, he told the reviewing panel that he accepted responsibility at the disciplinary hearing, but the substantive hearing panel found it was only during the appeal process that the Registrant began to show an element of insight into his shortcomings. The Registrant told the reviewing panel about the significant impact of the Suspension Order on himself and his employment. Although he apologised, the reviewing panel was not persuaded he had demonstrated remorse. He had not focussed fully on the nature and gravity of the substantive hearing panel’s finding of misconduct.

22. He had, however, in the reviewing panel’s judgment, begun to reflect on the decision and develop some limited insight. He spoke about the impact on the patient, her family and the public, and his profession. He acknowledged that the patient suffered harm because she was subject to a secondary unnecessary anaesthetic. He described, however, the events as a “mistake” which, in the reviewing panel’s view, did not properly reflect the nature or gravity of the Registrant’s misconduct.

23. Although this was an isolated incident in a long career, the reviewing panel was concerned that there was no persuasive evidence that the Registrant would act differently in the future, so that a similar incident would not be repeated. When asked what he would do differently, the Registrant said he would ask another member of staff to check his documentation. The reviewing panel considered this was unrealistic and impracticable. The Registrant is an autonomous practitioner and is expected to take personal responsibility for the accurate completion of his work.

24. The reviewing panel remained concerned at the limited level of insight demonstrated by the Registrant and concluded that there remained a risk of repetition of his failings. It therefore found that the Registrant’s fitness to practise remained impaired. It imposed a further 12 months’ Suspension Order to enable the Registrant to further reflect on its decision and develop his level of insight. It considered that a future reviewing panel would be assisted by:

• A reflective piece in writing, demonstrating his understanding of the nature and gravity of the misconduct and its wider impact on various parties; and

• Details of what steps he had taken to facilitate his returning to practice.

Second Substantive Review Hearing: 15 April 2020

25. The second substantive review hearing took place on the papers due to the Covid-19 pandemic. The Registrant did not attend. In the absence of any contact from the Registrant in the previous 12 months, the HCPC submitted that the Registrant’s fitness to practice remained impaired. It was further submitted that had the hearing been an ‘oral’ one, the HCPC may well have required that a Striking Off Order be made in light of the Registrant’s disengagement from the regulatory process. However, given the Covid-19 pandemic restrictions, a further 12-month Suspension Order was submitted to be the appropriate and proportionate sanction.

26. The reviewing panel, noting the absence of any new evidence, concluded that the Registrant’s fitness to practice remained impaired, having considered both the personal and public component. He had not fully engaged with either the substantive hearing or the review process and there was no indication that he had developed the remediation process, including whether he had further reflected on his past failings or by taking the steps suggested by the first reviewing panel. In addition, the reviewing panel concluded that there was no information before it that could lead it to conclude 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.

27. The reviewing panel imposed a further Suspension Order for 12 months. The reviewing panel noted that the Registrant had not fully engaged in the regulatory process to date and had not availed himself of the opportunity of demonstrating that he wished to return to practice, notwithstanding his participation at the first review hearing. Similarly, there was no evidence to demonstrate that the Registrant had developed insight or taken steps to address his failings such that the reviewing panel could be satisfied it was appropriate for the Registrant to return to unrestricted practice.

28. However, the reviewing panel was also mindful of the particular circumstances in which the hearing on the papers took place and the submissions made on behalf of the HCPC, particularly in relation to whether to impose a Striking Off Order at that stage. In all the circumstances, notwithstanding the Registrant’s non-engagement with this hearing, the reviewing panel nevertheless concluded that the appropriate and proportionate outcome was to extend the Suspension Order for a further 12-month period. That was considered an appropriate period of time given the then-current government restrictions on movement. However, it was noted this position might not be the same at the end of this further period of suspension if there was a continuing lack of engagement by the Registrant and an inability or unwillingness on his part to address his shortcomings. This, the reviewing panel hoped, would also give the Registrant a sufficient period of time to demonstrate his suitability to return to unrestricted practice.

29. The second reviewing panel suggested that a subsequent reviewing panel might be assisted by the following:

• His attendance at the next review hearing;

• A reflective piece in writing, demonstrating his understanding of the nature and gravity of the misconduct and its wider impact on various parties; and

• Details of what steps he had taken to facilitate his returning to practice, including any Continuing Professional Development (CPD) he had undertaken.
 
Decision

HCPC Submissions

30. Ms Sampson submitted that the Panel’s role is to review the matter on the basis of the evidence available today, and to decide whether the Registrant’s fitness to practise remains impaired, and if so, to decide what the appropriate sanction should be.

31. She reminded the Panel that under Article 30(1) of the Health Professions Order 2001, the Panel may:

• Extend the Suspension Order;

• Make any order it could have made at the time of the original Order being imposed;

• Or replace the Suspension with a Conditions of Practice Order, with which the Registrant must comply if he resumes practice.

32. As this is a case based on a finding of misconduct, she submitted that all sanctions were available to the Panel, up to and including a Striking Off Order.

33. Given that there had been no contact from the Registrant since his attendance at the last review hearing a year ago, the HCPC submitted that the Registrant’s fitness to practise remains impaired. Ms Sampson submitted that the Registrant has not discharged the persuasive burden placed on him by the case of Abrahaem v GMC [2008] EWHC 183 (Admin). It remains the case that:

• The Registrant has not demonstrated any further level of insight;

• The Registrant has not provided any evidence of steps taken to remediate his misconduct;

• There must therefore remain a risk of repetition of similar misconduct.

34. Ms Sampson further submitted that in light of the Registrant’s lack of engagement, the length of time he has been suspended for, and fact he has not undertaken any of the steps suggested by the previous reviewing panels, that the appropriate sanction was a Striking Off Order. The Panel was specifically referred to paragraph 131 of the HCPC Sanctions Policy.

Registrant’s Submissions

35. No submissions were provided either by or on behalf of the Registrant.

Legal Advice

36. In undertaking this review today, the Panel reminded itself of the following matters, having accepted the advice from the Legal Assessor:

• A proper exercise of the review process must involve a comprehensive re-consideration of the initial Order in the light of all the circumstances which were before the Panel today. However, it is not the Panel’s role to go behind the previous panels’ findings.
• The Panel’s role is to exercise its own judgement in determining whether the Registrant’s current fitness to practise remains impaired, and if so, what the least restrictive sanction is to meet the level of public protection which the Panel identifies as being required.
• The Panel, in its deliberations, applied the principle of proportionality and balanced the rights of the Registrant with the rights of the public.
• The Panel has, under Article 30(1) of the Health Professions Order 2001, the power to:

o With effect from the date on which the order would, but for this provision, have expired, extend or further extend the period for which the order has effect;
o With effect from the expiry of the order, make an order which it could have made at the time it made the order being reviewed;
o With effect from the expiry of a Suspension Order, make a Conditions of Practice Order with which the practitioner must comply if he resumes the practice of his registered profession after the end of his period of suspension.

• The Panel also had regard to the HCPC Sanctions Policy.

37. The Panel comprehensively reviewed all of the documentary evidence before it relating to the period since the imposition of the original Suspension Order.

Fitness to Practise

38. The Panel noted that the Registrant has failed to engage in the review process and has not submitted the piece of reflective writing, nor evidence of CPD or any other steps taken to prepare to return to practice, as suggested by the previous reviewing panels.

39. The Panel noted, with some sadness, that the original incident took place on 17 June 2016. It was a single incident in the context of a long career. The substantive hearing did not take place until 23 May 2018, giving the Registrant a period of almost two years to take steps to reflect upon and remediate his misconduct. The Panel was of the view that had the Registrant engaged with the regulator at that point, and attended the substantive hearing, the likelihood is that with the support of his employer a sanction short of a Suspension Order was entirely feasible.

40. However, the Registrant’s lack of engagement to date, aside from his attendance at the 2019 review hearing, has resulted in there being no evidence upon which the Panel could conclude that the Registrant has adequately or sufficiently remediated his misconduct or reflected on his behaviour, nor developed any further insight over and above that noted by the first reviewing panel in 2019. The Panel could not be satisfied that there would not be a repetition of the Registrant’s proven misconduct.

41. In the circumstances, the Panel concluded that the Registrant’s current fitness to practise remains impaired, having regard to the personal component of impairment.

42. The Panel was also satisfied that Registrant’s current fitness to practice remained impaired having regard to the public component of impairment. In light of the Registrant’s non-engagement and, hence, lack of any up-to-date information, there is the potential to undermine public confidence in the profession of Operating Department Practitioner, and the regulatory process, if the Registrant were permitted to return to practice without restriction.

Sanction

43. The Panel carefully considered what type of order should be imposed, starting with the least restrictive order. It took into account the principle of proportionality and balanced the rights of the public and the rights of the Registrant to practice in his chosen profession. It concluded that it would not be appropriate to take no action or to impose a Caution Order in light of the serious concerns that led to the substantive hearing panel making findings of misconduct.

44. The Panel went on to consider whether to impose a Conditions of Practice Order but concluded that this was not practicable or workable given the lack of engagement by the Registrant and the nature of his proven misconduct. In addition, the Panel saw no evidence as to the Registrant’s current employment. He has now been out of practice for a period of almost three years and there is no evidence he has developed adequate insight into his failings.

45. The Panel next considered whether to impose a further Suspension Order for 12 months and concluded that this was no longer a sufficient or proportionate sanction, having regard to public interest considerations. The two previous reviewing panels concluded that the Registrant’s misconduct was capable of being remedied and gave him adequate opportunity, during two further extensions to the Suspension Order, to demonstrate that he was safe to return to unrestricted practice by engaging with the HCPC process.

46. However, the Registrant’s lack of engagement, aside from his attendance at the first review in 2019, and the fact he has now been suspended for a period of three years without any evidence that he has developed insight into his misconduct or has sought to remediate his previous failings, means that the Panel is driven to the conclusion that the Registrant is unwilling or is unable to remedy his proven misconduct. The Registrant has not taken any of the steps identified as likely to be of assistance by the previous reviewing panels, such that the Panel could consider a further Suspension Order. A further period of suspension, on the evidence of the last two years, is unlikely to result in any additional engagement by the Registrant or any action being taken by him to remediate his misconduct or to develop further insight.

47. The Panel next considered a Striking Off Order and concluded that this was the only appropriate and proportionate sanction. The Panel had regard to the HCPC Sanctions Policy. Paragraph 131 states that a Striking Off Order is likely to be the appropriate order when 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. This includes cases where a registrant lacks insight or is unwilling to resolve matters.

48. The Panel concluded, in all the circumstances, that despite originally being capable of remediation, the Registrant’s persistent lack of engagement means that a Striking Off Order is now appropriate. The Registrant has not demonstrated any, or any adequate, insight and appears unwilling to engage with his regulator or to take steps to resolve matters. In addition, given his unwillingness to engage with the regulatory process, any lesser sanction would undermine public confidence in the profession and in the regulatory process.

That the Registrar is directed to strike the name of Mr Mundatta Nundoo from the Register on the expiry of the existing order.

No notes available

History of Hearings for Mr Mundatta Nundoo