Mr Derek Strong

Profession: Operating department practitioner

Registration Number: ODP10800

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 29/11/2021 End: 17:00 09/12/2021

Location: Virtual

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Operating Department Practitioner (ODP 10800) your fitness to practise is impaired by reason of misconduct. In that:

 

1. In or around March 2016, you did not report in a timely manner, a controlled drug discrepancy relating to an empty ampoule of Fentanyl, to the pharmacy team or escalate the matter appropriately.

 

2. In or around July 2016, you:

 

a) intentionally left one of the gas supply lines unattached to the anaesthetic machine prior to it being required for use and/or;

 

b) intentionally detached the gas supply to the anaesthetic machine prior to it being required for use.

 

3. In or around June 2016, you did not perform a pre-operation check and/or complete an anaesthetic episode form for two patients.

 

4. On or around 14 July 2016, in the presence of other colleagues, you had an inappropriate discussion with a 17 year old colleague about his sexual activity, namely by:

a) asking the colleague whether he had masturbated recently, or words to that effect;

 

b) using hand actions to demonstrate the act of masturbation 

 

5. Your actions at paragraphs 1 - 4 constitute misconduct.

 

6. By reason of your misconduct your fitness to practise as an Operating Department Practitioner is impaired.

Finding

Preliminary matters
Remote hearing conducted via video-link

In light of the Government’s advice on containing the current COVID-19 pandemic, this hearing was conducted via video-link.
Service of the Notice of hearing

2. The Registrant was not present or represented at the hearing. The Panel was provided with documentary evidence that the Notice of this hearing was sent to the Registrant on 13 October 2021 by email to his registered email address; confirmation of electronic delivery to the Registrant’s registered email address was received. The Notice contained the dates and start times of the hearing and the fact that it would be held remotely via video conference.

3. The Panel accepted the advice of the Legal Assessor in relation to Rules 3(1) and 6 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) and was satisfied that there had been proper service in this case.

Proceeding in the Absence of the Registrant

4. The Presenting Officer, on behalf of the HCPC, applied to proceed with the hearing in the Registrant’s absence. She submitted that the HCPC had made significant efforts, from 2018 to date, to make contact with the Registrant at an email address and his registered postal address.

5. The Presenting Officer provided the Panel with a bundle of documents detailing the correspondence from the Registrant to the HCPC since 2018, consisting of 4 emails. The Presenting Officer told the Panel that the Registrant’s emails of 2018 made clear and reiterated his intention to retire from the ODP profession and that his last email to the HCPC of 13 January 2020 simply made reference to those emails of 2018 and stated, “I will say no more on this matter.” No further correspondence had been received either from or on behalf of the Registrant, despite multiple further emails being sent to him.

6. The Presenting Officer submitted that the Panel should proceed today. She said that the allegations are of some age, one dating back six years; that the HCPC’s seven witnesses are scheduled to attend this week to give live evidence; that the Registrant has not requested an adjournment of the hearing; that he has waived his right to attend; and that it was in the public interest to proceed in the Registrant’s absence.

7. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note of September 2018 on Proceeding in the Absence of the Registrant and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence under Rule 11 is not unfettered and must be exercised with the utmost care and caution, with the fairness of the hearing at the forefront of its mind.

8. The Notice of hearing informed the Registrant of the dates and details of this Conduct and Competence Committee hearing, and of his right to attend and be represented. He was also advised of the Panel’s power to proceed with the hearing in his absence if he did not attend and of how he could apply for a postponement of it. The Registrant was informed of the sanction powers available to the Panel, should it find his fitness to practise to be currently impaired. The Registrant had not requested a postponement or adjournment of today’s hearing, indeed there had been no communication from the Registrant or any representative since 13 January 2020, just short of two years ago. In contrast, the Panel bore in mind that the HCPC had sent 11 emails to the Registrant by way of follow-up, but that there had been no response to those communications.

9. The Panel considered that the Registrant’s written representations in 2018 around his decision to retire from the ODP profession were clear and repeated. In those representations, the Registrant also detailed his frustrations with the regulatory process and the length of time taken by the HCPC to investigate these matters, and the significant impact of these proceedings upon him, both personally and professionally. Taking all the above circumstances into account, the Panel concluded that it was unlikely in all the circumstances that an adjournment would secure the Registrant’s attendance on a future date. The Panel took the view that the Registrant had voluntarily waived his right to attend and that adjourning this hearing would serve no useful purpose.

10. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today, with seven witnesses scheduled to give evidence at the hearing this week. The Panel took account of the public interest in the expeditious resolution of regulatory allegations, the fact that the allegations in this case are more than five years old and the impact of cost and delay caused by an adjournment upon other cases. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

11. The Panel considered that there was some disadvantage to the Registrant in proceeding in his absence as he would not be able to challenge the evidence put forward by the HCPC or give his own evidence. In the Panel’s judgment, however, this could be mitigated. The Panel was mindful that it could explore any inconsistencies in the evidence which it identified, and should ask questions and consider points which might be in the Registrant’s interests and were reasonably apparent from the evidence. Furthermore, the limited disadvantage was the consequence of the Registrant’s decision to absent himself from the hearing, and to waive his right to attend and be represented.

12. In these circumstances, the Panel decided that it was fair to proceed in the absence of the Registrant.

Hearing held partly in private

13. Matters relating to the health, private life and personal circumstances of the Registrant would be referred to in the hearing. Rule 10 enabled all or part of the hearing to be held in private for the protection of the private life of the Registrant or witnesses. The Panel determined that any references to the health or private life of the Registrant or witnesses should be heard in private.

Documents

14. The Panel received a bundle of documents from the HCPC running to 273 pages, comprising a case summary, seven witness statements and numerous exhibits.

15. The Panel was provided with a copy of the limited correspondence from the Registrant to the HCPC, namely 4 emails. In his detailed written representations within an email of 22 January 2018, the Registrant denied the allegations and set out his belief that his manager had fabricated a case against him and that, “I cannot state strongly enough that the whole saga of these recent events have been engineered in order to get rid of me.” He attached a number of documents from his former employer’s investigation in support of his case. In an email dated 18 June 2019, the Registrant told the HCPC that he had worked for 40 years in hospitals throughout the world; that he felt aggrieved at the allegations levelled against him and had “been bullied by BMI.”

Background

16. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP). He was employed by BMI Healthcare (the Employer) and worked at BMI Sarum Road Hospital (the Hospital) between 22 March 2004 and 5 August 2016. At the time of the alleged matters, the Registrant worked as a Senior ODP at the Hospital and was responsible for assisting anaesthetists in the administration of patient care during surgery.

17. In July 2016 the Employer conducted an initial investigation into concerns regarding the Registrant’s handling of anaesthetic machines and record keeping. During this investigation, additional concerns regarding the Registrant’s inappropriate conduct and reporting of controlled drugs were brought to light. Subsequently, the Employer conducted a second separate investigation in August 2016 into the concerns related to the reporting of controlled drugs.

18. On 3 January 2018 the Employer referred its concerns to the HCPC.


The HCPC’s evidence

19. The HCPC called seven witnesses, all of whom were former colleagues of the Registrant. They confirmed and adopted their witness statements as their evidence and were asked a number of supplementary questions by the Presenting Officer, and questions by the Panel and the Legal Assessor.


20. Having read the Registrant’s written representations, and in the interests of fairness and balance, the Presenting Officer and the Legal Assessor asked questions of the HCPC witnesses that the Registrant might have asked if he had attended the hearing.

Application to Amend the Allegation


21. On Day 2 of the hearing, having heard the live evidence of Colleagues NF and HK, the Presenting Officer applied to amend Particulars 1(a) and 2(a) of the Allegation by changing the reference, in both sub-particulars, from a “critical” incident form to a “clinical” incident form. She submitted that the evidence of the witnesses thus far was clear that “the pink form” of the type exhibited in the exhibits bundle should have been filled in by the Registrant and that, according to NF and HK, this was a clinical incident reporting form. The Presenting Officer submitted that the proposed amendment would correct that matter without affecting the nature or substance of the charge. Although the Presenting Officer acknowledged that the Registrant was unaware of this application, she submitted that there would be no prejudice caused to him by making this minor amendment.

22. The Panel heard and accepted the advice of the Legal Assessor. The Legal Assessor advised the Panel that there is no specific Rule governing a power to amend an allegation. The Panel should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendment can be made without injustice. The Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced.

23. The Panel bore in mind that the Registrant was not aware of this proposal, the issue having come to light after hearing the live evidence of the HCPC’s first two witnesses. In the Panel’s judgment, though, the application for the proposed amendment was made on the basis of the evidence adduced at the hearing and considered that it was in the public interest that the wording of the Allegation reflected the evidence that had been heard. The Panel was satisfied that the amendment did not change the substance of the Allegation, would allow accuracy, could be made without injustice to the Registrant and was fair. Accordingly, the Panel acceded to the Presenting Officer’s application to amend the Allegation by simply changing the name of the incident reporting form from “critical” incident form to “clinical” incident form. The amended Allegation is set out above.

Legal Advice on facts

24. The Panel received and accepted the advice of the Legal Assessor. The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that it occurred. The burden of proof was upon the HCPC which brought the allegations; it was not for the Registrant to prove his innocence.

Decision on Facts

25. The Panel considered whether, on the totality of the evidence, the HCPC had discharged the burden of proving the factual particulars on the balance of probabilities and made the following findings:

Particulars 1 and 2 - Found not proved in their entirety

1.On or around 3 March 2016, you did not report in a timely manner, a controlled drug discrepancy relating to an empty ampoule of Fentanyl in that you did not:
a) complete a clinical incident form in a timely manner and/or at all; and/or
b) escalate the matter appropriately to a manager and/or the pharmacy team.

2. On or around 1 December 2015, you did not report in a timely manner or at all, a controlled drug discrepancy relating to an empty ampoule of Fentanyl in that you did not:
a) complete a clinical incident form in a timely manner and/or at all; and/or
b) escalate the matter appropriately to a manager and/or the pharmacy team.

26. In her closing submissions on facts, the Presenting Officer invited the Panel to determine firstly, on the balance of probabilities, whether there was a controlled drug discrepancy on 3 March 2016 and/or 1 December 2015, involving the Registrant, relating to an empty ampoule of Fentanyl. Only if the Panel found this to be the case would it move on to consider what the Registrant did or did not do and what he ought to have done. The Panel agreed with, and accepted, this approach to considering Particulars 1 and 2 of the Allegation. Having read and heard the evidence in relation to these two Particulars, it determined to consider Particular 1 and 2 together.

27. The Panel first considered the evidence provided to it in relation to these Particulars. The Panel was provided with a copy of a Clinical Incident Report Form (CIR) completed by the Registrant on 23 March 2016 in relation to a different matter which, the HCPC submitted, was the requisite form for completion in relation to a drug discrepancy and, in fact, had been completed correctly by the Registrant on that occasion. On the information provided to the Panel, no such form had been completed by the Registrant on 3 March 2016 and/or 1 December 2015.

28. The Panel had regard to the evidence of Colleague NF, the Employer’s Investigating Officer into the matter, that her knowledge of these alleged drug discrepancies on 3 March 2016 and 1 December 2015 was based on information provided to her by colleague HK, the Clinical Pharmacy Manager. The Panel had sight of a copy of the notes of the summary of a meeting on 25 August 2016, between Colleague NF and Colleague HK, some 5 months after the alleged discrepancies, which summarised that, “[Colleague] HK stated that there had been…incidents of fentanyl ampoules without any liquid in them. 1 December 2015 and [the Registrant] was involved and it was not reported...3 March 2016 - 1 incident was not reported until 48 hours later by [the Registrant.] In oral evidence, Colleague NF did not recall whether Colleague HK “just referenced the dates or provided documentation.” Colleague NF accepted that when she interviewed the Registrant, she had neither the Controlled Drugs register nor a photocopy of its pages with her and that the Registrant had said that he would not comment on the allegations. She told the Panel that what she considered to be the Registrant’s practice of “pre-filling the sheet was more on my mind at the time.”

29. In oral evidence, Colleague HK stated that she had no recollection as to the dates of the alleged discrepancies, that she thought she remembered receiving incident report forms from the Registrant but that she could not recall any dates. She said that she had a “vague recollection” of taking documentation with her to the meeting with Colleague NF but that she could not remember if such documentation, if any, “was for something different.” When asked specifically in oral evidence whether she was aware that the Registrant was responsible for the two incidents particularised regarding Fentanyl (3 March 2016 and 1 December 2015), Colleague NK replied, “I can’t remember how I was made aware that that was the case, to be honest. I can’t recall how it came to my knowledge.”

30. In his written representations, the Registrant denied these Particulars of the Allegation, contending that in relation to the two incidents of drug discrepancies that he had been involved in (dates not given), he had completed Incident Report forms on both occasions.

31. Mindful that the burden was on the HCPC to prove these facts, the Panel considered that no meaningful evidence had been provided to it in relation to these Particulars and the dates specified. What little evidence that had been provided was vague and unsubstantiated in oral evidence. As such, the Panel could not be satisfied that the HCPC had established that it was more likely than not that the Registrant was involved in controlled drug discrepancies relating to an empty ampoule of Fentanyl on either 3 March 2016 or 1 December 2015; as such, there would have been no requirement of him to complete a clinical incident form as particularised at 1(a) and 2(a), or to escalate the matter to a manager and/or the pharmacy team as particularised at 1(a) and 2(a). Accordingly, the Panel found both of these Particulars of the Allegation not proved.

Particular 3 - Proved
In or around June 2016, you told Colleague B that you had intentionally detached or intentionally left unattached one of the gas supply lines to an anaesthetic machine.

32. This Particular concerns an alleged conversation in theatre between the Registrant and Colleague B, Consultant Anaesthetist, just prior to the start of an afternoon operating list. On the information before the Panel, only Colleague B and the Registrant were present during this alleged incident.

33. Colleague B told the Panel that he remembered the incident very well. Colleague B believed that it was his discovery of the unattached line that prompted the conversation with the Registrant. He explained that he was checking the anaesthetic machines before beginning the operating list, as is his normal practice, and that the Registrant “came along” and “mentioned” either that he had intentionally left a gas line unattached or that he had disconnected it. Colleague B said that he could not recall which of these the Registrant had said, but that the Registrant said that he did it “to see if the anaesthetist was checking the machine before he started.” In answer to a question put to him, Colleague B explained that this “did not sit well with me” and that he said to the Registrant, “this is not right.”

34. Colleague B explained to the Panel that, even if this had been an attempt by the Registrant to boast or joke, this concerned him. He said that an operating theatre is no place to joke about such matters and, although he acknowledged that there was a good deal of “banter” within the theatre department, that banter was not concerned with patient safety. He emphasised to the Panel the importance of trust between ODPs and anaesthetists in the operating theatre and that the ability to work as a team is imperative.

35. Colleague B said that he verbally reported this incident to both Colleague C (Theatre Manager) and Colleague MB (Clinical Auditor), separately, within a week of the incident. He then escalated his concerns in writing to the Executive Director at the Hospital on 13 July 2016. The Panel had this email before it which stated, “A few weeks ago, [the Registrant] told me that he had intentionally left one of the important gas supply lines unattached (or he intentionally detached it - I am not sure), so as [to] check if the anaesthetist picked it up on his machine checks. I tried to reason out with him that it was clearly wrong, professionally unacceptable and he could have put patients at risk - in case he got called away/transferred to a different theatre.”

36. The Panel noted that the allegation that the Registrant had responded to in his written representations of 22 January 2018 was that he had been “putting faults on the Anaesthetic machines to test the Anaesthetists.” The Registrant vehemently denied that allegation. The Panel bore in mind the actual wording of this factual particular - that the Registrant is alleged to have “told” Colleague B that he had intentionally detached or intentionally left unattached one of the gas supply lines to an anaesthetic machine - and noted that the Registrant had responded in those same representations, “Why would I tell RB and [Colleague B] about this type of activity let alone do it?” The Panel took this to be a denial of Particular 3 by the Registrant. He further contended that a theatre porter, SL, “constantly turned off anaesthetic flow meters and reset monitoring equipment as well as interfere [sic] with equipment she should not have touched…How do I know that she did not do something to the Anaesthetic Machines in order to get me into trouble.”

37. The Panel considered that Colleague B gave clear and balanced oral evidence, which was consistent with the contents of his signed witness statement. The Panel found that Colleague B’s account, and what he was accusing the Registrant of, was not excessive; he did not seek to embellish his account, which tended to strengthen his credibility. The Panel found his evidence persuasive and compelling. It was clear to the Panel that Colleague B had been unsettled, even shaken, by the incident, to the extent that he wrote to the Executive Director of the Hospital.

38. The Panel was satisfied, based on the oral and documentary evidence before it, that it was more likely than not that the Registrant did tell Colleague B that he had intentionally detached or intentionally left one of the gas supply lines unattached to an anaesthetic machine.

39. The Panel therefore found Particular 3 proved.

Particular 4 – Found not proved in relation to 4(a)(i)(ii)(iii) and 4 (b)(ii); found proved in relation to 4(b)(i) and 4(b)(iii)
In respect of pre-surgical checks and/or records:
a. in relation to Patient A on or around 17 June 2016, you did not:
i. perform a complete pre-operative check and/or complete all information required on the pre-operative checklist; and/or
ii. complete all information required on the Anaesthetic Episode form; and/or
iii. complete all information required on the WHO Surgical Safety checklist.
b. in relation to Patient B on or around 14 June 2016, you did not:
i. perform a complete pre-operative check and/or complete all sections required on the pre- operative checklist; and/or
ii. complete all sections required on the Anaesthetic Episode form; and/or
iii. complete all sections required on the WHO Surgical Safety checklist.

40. Particular 4 relates to the pre-surgical checks and/or records that the Registrant is alleged not to have undertaken and/or recorded (either not at all or not fully) in relation to two patients, Patient A and Patient B, on given dates. In her closing submissions on facts, the Presenting Officer again invited the Panel to determine firstly, on the balance of probabilities, whether Patients A and B could be attributed to the Registrant at all and, if they could not, to determine whether it was more likely than not that the forms were the Registrant’s responsibility. Only if the Panel found that Patient A and/or Patient B were indeed attributable to the Registrant and were more likely than not his responsibility on the given day, would it move on to consider what the Registrant did or did not do and what he ought to have done. The Panel agreed with, and accepted, this approach to considering Particular 4 of the Allegation.


Particular 4(a)(i)(ii)(iii)
41. Colleague MB was a Clinical Auditor at the Hospital; her responsibilities included carrying out the clinical auditing for Theatre, the Wards and Outpatient departments. Colleague MB explained that she became aware of the alleged discrepancies in relation to Patient A when she was carrying out a routine audit of the medical records, stating in her signed witness statement, “During my checks, I recall finding that [the Registrant] had failed to complete the required health record for [Patient A]. By ‘health record’, I refer to three sections of theatre documentation, namely, the Theatre Pre- Surgery Checklist, the Anaesthetic Episode and the WHO.” In oral evidence Colleague MB told the Panel that she had “satisfied [herself]” that it was the Registrant who was the ODP with responsibility for Patient A.

42. Exhibited in the bundle provided to the Panel were three forms in relation to Patient A and their treatment at the Hospital on 17 June 2016 - a Theatre Pre-Surgery checklist (with no signature in the “Theatre Signature” box); a WHO Surgical Safety Checklist (signed in the “Sign In Before Induction” section, but with the signature redacted); and an Anaesthetic Episode form (unsigned and blank save for Patient A’s name and identity details (redacted)).

43. The Panel heard evidence from Colleague MB, Colleague ST (also an ODP who worked with the Registrant in the same department) and Colleague B that the relevant ODP would sign the section of the WHO form headed “Sign In Before Induction.”

44. During the course of the hearing, the Presenting Officer obtained an unredacted version of the WHO Surgical Safety Checklist and it was apparent that the signature in that box where an ODP would sign was not the Registrant’s. Colleague ST told the Panel that he did not recognise the signature in the ODP section of the WHO Surgical Safety Checklist, however he was certain that it was not the Registrant’s signature. Colleague ST’s evidence was that there were no student ODP placements at the material time in 2016.

45. Colleague ST and Colleague B, both of whom worked in theatre at the Hospital and provided clear and consistent evidence in relation to working practices in the team, stated that it would be highly unusual for there to be a change in ODP when these pre-operative forms would be signed and that, accordingly, the same ODP who signed the WHO form (i.e. not the Registrant) would have been responsible for completing the other two forms too. Colleague MB’s evidence on this point was equivocal, responding that she “supposed” that it was “possible” that someone else could sign the other forms.

46. The Registrant did not refer to this allegation in his written representations.

47. The Panel accepted the evidence of Colleague ST and B, who gave clear and consistent evidence in relation to when the forms would have been filled in and that, at that critical stage before a patient would be sedated, the same ODP would have filled in all three forms. The Panel found Colleague MB’s evidence on this point to be less compelling; she did not work in theatre and the Panel considered that she was mistaken in her stated belief that it was “possible” that a different ODP could sign each form.

48. The Panel was satisfied, on the basis of the oral and documentary evidence, that the WHO form in relation to Patient A was signed by somebody other than the Registrant and that the Theatre Pre-Surgery checklist and Anaesthetic Episode forms, both unsigned, were attributable to that same person. Accordingly, the Panel determined that it was more likely than not that the Registrant did not have responsibility either for undertaking the pre-surgical checks or completing the three forms in relation to Patient A on this date. The Panel therefore found Particular 4(a) not proved in its entirety.

Particular 4(b)(i)(ii)(iii)
49. Exhibited in the bundle provided to the Panel were three forms in relation to Patient B and their treatment at the Hospital on 14 June 2016 - a Theatre Pre-Surgery checklist (with the initials “DS” in the “Theatre Signature” box); a WHO Surgical Safety Checklist (unsigned in the “Sign In Before Induction” section); and an Anaesthetic Episode form (with the name “STRONG” filled in as the named “Anaesthetic Practitioner”). Colleagues ST and MB confirmed without any hesitancy the Registrant’s handwritten initials on the Theatre Pre-Surgery checklist and the Registrant’s handwritten name on the Anaesthetic Episode form. In light of this and the clear evidence of Colleagues ST and B, accepted by the Panel in relation to Particular 4(a) that a single ODP would have responsibility for a patient, the Panel was satisfied that it was more likely than not that the Registrant was the identified ODP on duty with responsibility for Patient B on this given date, and that it was the Registrant’s responsibility to undertake the relevant checks on this patient and complete the three forms.

50. Colleague ST told the Panel that he had identified discrepancies in the Registrant’s documentation in relation to Patient B and had raised his concerns with the Registrant, who had been “dismissive.”

51. The Panel then moved on to consider each of the forms in turn.

Particular 4(b)(i)
52. The Panel accepted the consistent evidence of Colleagues MB, ST and B that the ODP with responsibility for a patient would be responsible for filling in the Theatre Check section of the Pre-Operative Checklist form.

53. Colleague MB described this form as “a list of important items that need to be considered and ticked off by medical staff in respect of a patient prior to surgery” and that “it is the responsibility of theatre staff, specifically ODPs to undertake a second check of the items maintained on the list prior to the anaesthetic being administered.” Colleague ST gave evidence about the importance of conducting the checks listed on the form while the patient is awake and able to answer questions, prior to being sedated and that, in his view, “everything” was wrong with the Registrant’s part of this form because it was “blank”.

54. The Panel had sight of the Pre-Operative Checklist form in relation to Patient B on 14 June 2016. The Theatre Check section of this form was completely blank.

55. The Registrant did not refer to this allegation in his written representations.

56. The Panel was satisfied that the HCPC had established, on the balance of probabilities, that the Registrant did not complete all sections required on the pre-operative checklist. On the evidence before it, the Panel was also satisfied that it was more likely than not that the Registrant did not perform a complete pre-operative check on Patient B. Accordingly, it found this sub-particular proved.

Particular 4(b)(ii)
57. Colleague MB’s oral evidence was that the Registrant’s completion of this Anaesthetic Episode form was “acceptable”, save for the omission of writing the date of the anaesthetic received by Patient B at the top of the form, although she acknowledged that he had filled in the date of Patient B’s cannulation as 14 June 2016 at the bottom of the form. Mindful of Colleague MB’s role as Clinical Auditor at the Hospital at the relevant time, with the responsibility of ensuring that staff were correctly completing patient records in accordance with the Hospital’s record keeping procedure, the Panel accepted her evidence.

58. On the evidence presented to it the Panel determined that, save for the omission of the date of Patient B’s procedure at the top of the form (but the date was included at the bottom of the form), the Registrant had completed all sections required on the Anaesthetic Episode form. It could not be satisfied that the HCPC has established this factual sub-particular to the required standard and found it not proved.

Particular 4(b)(iii)
59. Colleague MB described the WHO Surgical Safety checklist in the following way: “A ‘WHO’ is a 19 item safety checklist. Every patient who is transferred to theatre is required to have a WHO completed for them. A WHO is a particularly crucial document that ensures the safety of patients as it identifies a number of important points. These include but are not limited to, details of what medication has been administered to the patient, if the patient has any allergies, if they exhibit an appropriate pulse or whether they have suffered any blood loss. A WHO also confirms the identity of a patient.”

60. The Panel accepted the consistent evidence of Colleagues MB and ST that the ODP with responsibility for a patient would be responsible for completing the “Huddle” and “Sign In Before Induction” sections of the WHO Checklist form.

61. The Panel had sight of the WHO form in relation to Patient B on 14 June 2016. Both the “Huddle” and “Sign In Before Induction” sections of this form were not completed.

62. The Registrant did not refer to this allegation in his written representations.

63. The Panel was satisfied that the HCPC had established, on the balance of probabilities, that the Registrant did not complete all sections required on the WHO Surgical Safety checklist for Patient B on 14 June 2016. Accordingly, it found this sub-particular proved.

Particular 5 - Proved in its entirety
On or around 14 July 2016, in the presence of other colleagues, you had an inappropriate discussion with a 17 year old colleague (Colleague A), in that you:
a) asked him about his sexual activity; and/or
b) asked Colleague A whether he had masturbated recently, or words to that effect;
c) used hand actions to demonstrate the act of masturbation when speaking with Colleague A.


64. Sub-particulars 5(a), (b) and (c) all relate to the same alleged incident. The Panel approached Particular 5 by first determining, on the evidence presented to it, whether it was more likely than not that the Registrant spoke to Colleague A in the way alleged at 5(a) and (b) and, when speaking with him, made hand gestures to demonstrate the act of masturbation, as alleged at 5(c). If the Panel found any of sub-particulars 5(a), (b) or (c) proved, the Panel would then move on to consider the stem of Particular 5 and determine, on the balance of probabilities, whether the Registrant had an “inappropriate discussion” with Colleague A who was the Registrant’s “17 year old colleague” at the date of the alleged incident.

65. In oral evidence, Colleague A told the Panel that this incident took place when he was 17 years old and working as a Theatre Porter at the Hospital, and that he had worked with the Registrant for approximately a year at that time.

66. Colleague A provided the context to the incident and told the Panel that he was sitting with a number of colleagues around the table in the theatre department coffee room, that he had been checking his phone and, as such, not concentrating on the conversation that was happening around him, which apparently concerned a television programme involving sexual content that had been shown the previous night. Colleague A recalled that the Registrant began a conversation with him, in front of his colleagues, asking him questions of a sexual nature, including whether he had ever had sex or was a virgin, and whether he had masturbated recently. Colleague A thought that he recalled the Registrant making hand gestures too, namely “giving me the ‘wanker’ sign.” Colleague A said that he felt embarrassed and that he considered the conversation to be “quite inappropriate”; although he acknowledged that there was often banter within the team, he said that “[the Registrant] went a bit too far.”

67. Colleague A’s evidence was that although he did not respond to the Registrant, his colleague, PK, spoke up and told the Registrant that the conversation was inappropriate. Colleague A could not recall whether the conversation came to an end when PK spoke to the Registrant but that, in any event, Colleague A, PK and another colleague, MP, left the coffee room and that all three went immediately to the Theatre Manager to report the incident.

68. Colleague A recalled that the Registrant later apologised to him, in front of PK and MP.

69. Colleague A confirmed that PK and MP, both Recovery Nurses, provided statements about the incident to the Hospital and that the matter was escalated to the Executive Director. Colleague A said that he was neither asked for a statement by the Employer, nor interviewed, as part of the Employer’s investigation.

70. In addition to receiving Colleague A’s live testimony, the Panel was provided with Colleague A’s signed witness statement which stated, “I remember that [the Registrant] then began directly asking me a number of inappropriate questions. The questions he asked me were of a sexual nature and included questions as to whether I have had sexual intercourse or whether I was a virgin. He also asked me if I had just had ‘a wank’. The manner in which he asked me these questions was rather loud and direct. In response to [the Registrant’s] questions, I recall that a number of my colleagues who were present at the time expressed to him that the questions he was asking me were inappropriate.”

71. The Panel also had before it local signed statements provided by colleagues PK and MP in relation to this alleged incident, both written contemporaneously. These signed statements were detailed, setting out the context to the alleged conversation and reporting that the Registrant had asked Colleague A whether he had masturbated during a certain television programme the night before, “using hand gestures as well”, whether he had had sex, and with whom.

72. In his written representations, the Registrant denied this Particular, contending that the allegation that he made “lewd comments within the department” was “completely untrue” and that, in fact, it was Colleague A who was prone to behaving inappropriately. The Registrant stated that PK, who made the allegation, was a friend of Colleague B’s and that PK and MP, members of the same recovery department, had colluded in their evidence. The Registrant questioned why he had not been summoned by the Theatre Manager immediately, having been made aware of this allegation, contending that, “Nothing was said to me because it never happened.” He further contended that, “There was an acceptable level of banter amongst all staff that we all took as humour. This is reflected in the semi pornographic pictures displayed on the male changing room wall.” The Panel had sight of two pages of illustrations of what the Registrant said was displayed in the in the theatre department male changing room.

73. The Panel considered the context of this allegation and the evidence presented. The Panel did not perceive any malice towards the Registrant on Colleague A’s part, or any motive to make false allegations against him. It considered Colleague A to be a compelling witness in relation to this incident and accepted his account which was consistent with, and supported by, the local statements of his colleagues PK and MP, both registered nurses, who were eyewitnesses to the alleged events. Although the Panel acknowledged that their local statements constituted hearsay evidence, the Panel was of the view that it could place significant weight upon them in light of their clarity, detail and their contemporaneous nature.

74. On the basis of the evidence of Colleague A, together with the supporting documentary evidence, the Panel found sub-particulars 5(a), (b) and (c) proved.

75. The Panel next considered the specific wording in the stem of Particular 5, alleging that the Registrant had an “inappropriate discussion with a 17 year old colleague (Colleague A)” by asking the questions and using hand actions to demonstrate the act of masturbation when speaking with Colleague A. The Panel bore in mind the evidence of Colleague A, PK and MP that they each found the conversation inappropriate. PK stated that “…this is not an appropriate conversation for an adult male to be having with a minor. I intervened by stating to [the Registrant] that this conversation is inappropriate as he is 17 years of age… I am happy to talk openly but in an appropriate place and at an appropriate time with the appropriate age group.” The Panel was in no doubt that the conversation that the Registrant had with Colleague A was inappropriate, particularly so because the Registrant was in a position of seniority and Colleague A was 17 years old. The Panel determined that that, by speaking/acting in the manner set out at 5(a)-(c), the Registrant had an inappropriate conversation with Colleague A and was satisfied that the HCPC had established factual Particular 5 to the required standard. Accordingly, the Panel found Particular 5 proved in its entirety.

Decision on Grounds
76. The Panel went on to consider, on the basis of the facts found proved, whether the ground of misconduct was established. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.

77. The Panel took into account the Presenting Officer’s submissions. The Registrant had not provided any written representations in relation to the statutory ground of misconduct as alleged by the HCPC.

78. The Legal Assessor referred to the Panel to the guidance on misconduct in Roylance v GMC (No 2) [2001] 1 AC 311, that misconduct “is a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” The Panel accepted the Legal Assessor’s advice that misconduct is qualified by the word “serious”; it is not just any professional misconduct that will qualify. The Legal Assessor reminded the Panel that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards, would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved.

79. In reaching its decision on misconduct, the Panel also had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) which set out the standards that an ODP must continue to meet throughout their professional career. It concluded that the following standards were engaged in this case and were breached:

2. Communicate appropriately and effectively
Work with colleagues

2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

6. Manage risk

6.2 You must not do anything, or allow someone else to do anything, which could put the health and safety of a service user, carer or colleague at unacceptable risk.

9. Be honest and trustworthy
Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

10. Keep records of your work

10.1 You must keep full, clear and accurate records for everyone you care for, treat, or provide other services to.

 

80. In relation to Particular 3, the Panel was mindful that it was part of the Registrant’s role, as ODP, to set up and test the anaesthetic machines in theatre. It bore in mind Colleague B’s evidence that trust between the Anaesthetist and ODP is very important and that it is crucial to work as a team; it further took into account the evidence that such conduct could have had serious implications for patient care, placing patients at risk of harm by creating a sense of panic at a critical time in the operating theatre if it was thought that the anaesthetic machine was not attached as it should be. The Panel agreed with the Presenting Officer’s submissions that by telling Colleague B that he had intentionally detached, or intentionally left unattached, one of the gas supply lines to an anaesthetic machine, the Registrant would have instantly destroyed the professional trust between them. The Panel was in no doubt that the Registrant’s conduct, even by saying that he had done such a thing, was deliberate, deeply offensive to Colleague B, corrosive and would be regarded as deplorable by fellow practitioners. In the Panel’s view, the Registrant’s conduct on this occasion was sufficiently serious as to amount to misconduct.

81. In relation to Particular 4b(i) and (iii), the Panel took into account Colleague MB’s evidence, which it accepted, that “It is important to emphasise that these documents are essential to ensure the safety of patients during the surgical procedure. The very nature of these forms is to confirm crucial medical information, such as the patient’s identity, what drugs have been administered to the patient as well as their current health status etc. As previously expressed, every item on each form should be filled in; nothing should be left blank.” The Panel noted that the Theatre Pre-Surgery checklist and WHO Surgical Safety checklist were forms that would travel with a patient through their journey at the Hospital and considered that by not completing the requisite pre-theatre checks, or filling in the forms, the Registrant demonstrated a fundamental lack of patient-centred care and placed the patient at risk of harm. In the Panel’s view, the Registrant’s conduct fell seriously short of what would be proper in the circumstances and amounted to misconduct.

82. In relation to Particular 5, the Panel bore in mind that the Registrant was challenged at the time of the incident by Colleagues PK and MP, who both stated that they considered the Registrant’s conduct to be inappropriate; in fact, Colleague MP described it as “completely unacceptable.” The Panel was in no doubt, especially mindful of the difference in ages between the Registrant and Colleague A and the Registrant’s level of seniority at the Hospital, that this was conduct that fell seriously short of what was proper in the circumstances, that it would be considered deplorable by fellow practitioners and was sufficiently serious as to reach the threshold of misconduct.

83. The Panel was of the view that the Registrant’s actions and inactions found proved in each of Particulars 3, 4(b)(i), 4(b)(iii) and 5 were serious, fell far below the standards expected of him and amounted to the statutory ground of misconduct.

Decision on impairment

84. The Panel, having determined that the facts found proved amounted to misconduct, went on to consider whether, as a result of that misconduct, the Registrant’s fitness to practise is currently impaired.

85. The Panel heard submissions from the Presenting Officer that there was no evidence of remediation in this case or even an acknowledgement from the Registrant that his conduct was unacceptable. The Presenting Officer submitted that the Registrant has tried to deflect blame in his written representations and that the risk of repetition of similar conduct is high. She further submitted that the Registrant’s fitness to practise was and remains impaired and, referencing the judgment in the Court of Appeal case of General Optical Council v Clarke [2018] EWCA Civ 1463, submitted that the Registrant’s stated decision to retire from the ODP profession should have no bearing on the Panel’s finding in relation to current impairment. At paragraph 31 of that judgment Newey LJ stated that, “the fact that Mr Clarke was not intending to resume practice could be of little or no consequence.”

86. On the issue of impairment of fitness to practise, the Legal Assessor referred the Panel to the HCPTS Practice Note on ‘Finding Fitness to Practise is Impaired’, and to the guidance on the assessment of impairment and consideration of the public interest, in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin). She reminded the Panel that it should consider the Registrant’s insight, his remorse, any steps to remediate, and the risk of repetition of the behaviour leading to the facts found proved. The Panel should at all times keep in the forefront of its mind the central importance of the need to protect the public and the wider public interest. The Panel accepted the advice of the Legal Assessor.

87. The Panel recognised that there is no burden or standard of proof and that this is a matter for the Panel’s independent judgment. Whilst there is no statutory definition of impairment, the Panel was assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report, as adopted by the High Court in CHRE v NMC and Paula Grant [2011] EWHC 297 Admin. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in the sense that he:
‘a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.’

88. The Panel’s duty is not only to protect service users but to maintain public confidence in the ODP profession and the regulatory process, which includes the declaring and upholding of proper standards of conduct and behaviour. ODPs occupy a position of privilege and trust in society and are expected at all times to act professionally and with integrity.

89. The Panel first considered its findings in light of the factors indicating that an ODP’s fitness to practise might be impaired as set out by Dame Janet Smith in the Grant case, as set out above. The Panel quickly determined that limb (d), involving dishonest conduct, was not relevant in this case. The Panel was satisfied, however, that the remaining three factors set out by Dame Janet Smith - limbs (a), (b) and (c) - were engaged in this case in relation to past, and future possible conduct. It was satisfied that the Registrant’s conduct in relation to Particulars 3 and 4(b)(i) and (iii) placed patients at risk of harm, although there was no evidence that any actual harm was caused; his conduct as set out at Particulars 3 and 5 breached the fundamental tenets of professionalism and integrity, by eroding trust and confidence with his colleagues; and that his conduct in Particulars 3, 4(b)(i) and (iii) and 5 brought the ODP profession into disrepute.

90. The Panel carefully considered the personal component of impairment and considered the Registrant's level of insight, whether his misconduct was capable of remediation, whether it had been remedied and the risk of repetition.

91. In respect of the level of insight that the Registrant has shown into his misconduct, its seriousness, and its consequences, the Panel was of the view that the Registrant has thus far shown no insight or remorse for his misconduct. The Panel appreciated that this might have been difficult for him to do in light of his denials of any wrongdoing and it was clear to the Panel that the Registrant sees himself as the victim in this case. On the information before it, the Registrant has not explained why he acted as he did, and the Panel has not been provided with any evidence of reflection on the Registrant’s part or that demonstrates the Registrant’s understanding of how his actions could have impacted on patient safety, his relationships with colleagues and on public confidence in his profession.

92. The Panel considered that, in theory, such misconduct was capable of remediation through meaningful reflection. However, the Panel has not been presented with any evidence that the Registrant has remedied his misconduct or attempted to do so. Given the absence of this evidence, the Panel could not therefore have confidence that his misconduct would not be repeated. Accordingly, the Panel found the Registrant’s fitness to practise to be currently impaired on the personal component.

93. The Panel next reminded itself of the public component in Cohen v General Medical Council [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”

94. Turning to the public interest component of impairment, the Panel was satisfied that the Registrant's misconduct would substantially undermine the trust and confidence the public is entitled to have in the profession. Given the nature of its findings and their seriousness, the Panel was satisfied that the need to promote and maintain public confidence in the ODP profession and the need to promote and maintain proper professional standards and conduct for members of the profession would be seriously undermined if a finding of impairment were not made in this case.

95. The Registrant’s fitness to practise is therefore impaired on both the personal and public components.

 

Order

ORDER: The Registrar is directed to suspend the name of Mr Derek Strong for a period of 9 months from the date that this Order takes effect (the Operative Date).

Notes

Determination on Interim Order


The Panel heard an application from the Presenting Officer to cover the appeal period by imposing an 18-month interim suspension order on the Registrant’s registration. She submitted that such an order is necessary to protect the public and is otherwise in the public interest.

The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the Sanctions Policy and to Paragraph 7 of the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.

The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Suspension Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the misconduct in this case, the identified risk of repetition and the consequential ongoing risk to patient safety.

The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. The Panel was satisfied that an interim suspension order is required both to protect the public and in the public interest to maintain confidence in the ODP profession and this regulatory process. The Panel has had regard to the nature and gravity of the conduct it has found proved, and the full reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. In the circumstances, it considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice as an ODP during the appeal period.

The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.

If no appeal is made, then the interim order will be replaced by the Suspension Order 28 days after the Registrant is sent the decision of this hearing in writing.

That concludes this determination.

Hearing History

History of Hearings for Mr Derek Strong

Date Panel Hearing type Outcomes / Status
29/11/2021 Conduct and Competence Committee Final Hearing Suspended