Mr Paul R Hicks

Preliminary Matters

1. The Panel has been convened to undertake a review of a substantive order of suspension imposed in respect of the registration of Mr Paul Hicks (hereafter “the Registrant”) in the Operating Department Practitioner part of the HCPC Register. The suspension order was imposed on 18 November 2020 by the Panel that conducted the final hearing of the HCPC’s allegation against the Registrant.

Notice of hearing

2. The Panel was shown copies of the notice of hearing sent to Registrant on 20 October 2021. The notice was sent by email, as the amended rules resulting from the current pandemic permitted, and included the day, time of the hearing as well as the information that the hearing was to be conducted remotely. The Panel was also shown documents that demonstrated that the email was sent to an email address that the HCPC holds on the HCPC Register. The Panel concluded that this communication constituted good service in accordance with the rules.

Proceeding in the absence of the Registrant

3. After the Panel announced that it was satisfied that the Registrant had been notified of the hearing in accordance with the rules, the Presenting Officer applied for a direction that the hearing should proceed in the Registrant’s absence. In the context of this application the Presenting Officer produced to the Panel a copy of a Telephone Attendance File Note recording a conversation she had with the Registrant yesterday (18 November 2021) at 12:43pm. During this conversation the Registrant informed the Presenting Officer that he was unaware that the hearing had been scheduled for today. He stated that he had changed his computer and not yet set up his emails or checked them for a while. He thought he would be able to do that on the weekend following this hearing. He said that he could not attend this virtual hearing. When the Presenting Officer asked if she was calling at a convenient time, the Registrant replied that she was not, and when he was asked if there was a time later in the day when he could speak, he said that there was not as it was his son’s birthday. The Telephone Attendance File Note concludes “I asked if it (sic) would make a difference to his attendance if the hearing were on a different day, Mr Hicks did not answer that.”

4. The Panel heeded the advice given to it by the Legal Assessor in relation to proceeding in the absence of a registrant, and it also had regard to the HCPTS Practice Note on the topic. Having given careful consideration to the matter, the Panel concluded that the hearing should proceed notwithstanding the absence of the Registrant from it. The reasons for this decision were as follows:

• The final hearing panel recorded in its determination that there had been no engagement by the Registrant with the HCPC since January 2020.

• There has been no engagement by the Registrant since the final hearing, despite the suggestion by the panel that conducted that hearing that he should.

• The response of the Registrant in the telephone conversation with the Presenting Officer was consistent with that of a person who has decided to disengage from the fitness to practise process.

• There has been no suggestion by the Registrant at any stage (including in the telephone conversation yesterday) that he wished the hearing to be adjourned or that he would participate were it to be scheduled for another date.

• Even if it is the case that the Registrant has checked his incoming emails for some time, he was informed by the final hearing determination under the Order that the suspension order would be reviewed before it expired. That notification was in addition to what was said in paragraph 54 of the body of the determination, which is reproduced in paragraph 15 below.

• In these circumstances the Panel has concluded that there has been a voluntary waiver of the right to attend the hearing.

• Furthermore, there is a pressing public interest in the review being undertaken today because the current order of suspension must be reviewed before 16 December 2021 and it would not now be possible to have a valid notice of hearing for a hearing on or before that date because it is less than 28 days away.

Hearing in private

5. At the commencement of the hearing the Presenting Officer applied for a direction that any mention of the Registrant’s health should be given in private. The Panel agreed that such a direction was required to ensure that the Registrant’s private life is protected.

Background

6. From 16 May 2005 to 4 May 2018 the Registrant was employed as an Operating Department Practitioner (“ODP”) by Spire Healthcare. At the time of the incident that underpinned the HCPC’s allegation against the Registrant, he was working in the Theatre Department at Spire Bushey Hospital.

7. On 17 February 2018 the Registrant arrived at work to assist in a theatre deep clean. Two members of staff, KBM, an ODP, and VS, a Scrub Nurse, encountered the Registrant on separate occasions and they were both concerned that he was under the influence of alcohol. They reported their concerns to SM, the Deputy Theatre Manager, who in turn escalated the concerns to LS, the Theatre Manager. The Registrant was sent home. An internal disciplinary process then followed.

8. The final hearing panel received both written and oral evidence from KBM and VS. The oral evidence of KBM included the statement that she did not think the Registrant was unwell, but was acting as if he was drunk and was struggling to stand up and his voice was slurring. In her oral evidence, VS stated that the Registrant definitely smelt of alcohol, she did not believe him to be unwell, but that he was displaying classic signs of being drunk.

9. The final hearing panel also received the written witness statement of VS and other documentary exhibits. Included in the documentary exhibits was a record of an interview of the Registrant conducted by VS on 1 March 2018, that is a fortnight after the incident. During the interview the Registrant said that he had very limited recollection of the events of the morning in question, but he denied being drunk either on that morning or the preceding evening. He said that during the evening of 16 February 2018 he had drunk a glass of wine before going to bed at 10:00pm. He said he “just felt weird” on the morning of 17 February 2018. He added that he had a borderline medical condition.

10. The final hearing panel was also provided with the report dated 16 April 2018 from Jenpen, Occupational Health Services to which further reference will be made below.

11. The Registrant did not attend the final hearing.

12. After considering all of the evidence the final hearing panel found the evidence of the witnesses called by the HCPC to be detailed, truthful and credible. It found the facts advanced by the HCPC in its allegation to be proven, namely that on or around 17 February 2018 the Registrant attended his place of work under the influence of alcohol and that he smelt of alcohol. It was also decided that the proven facts amounted to misconduct.

13. When the final hearing panel turned to consider whether the Registrant’s fitness to practise was impaired at the time of the final hearing in November 2020, it concluded that it was. That panel noted that the Registrant had not engaged with the HCPC with regard to the proceedings since January 2020 and had not produced any evidence of insight into or remorse for his condition on the morning of 17 February 2018. It also found stated that there was no evidence that the Registrant had sought to address or remediate his conduct or any of its underlying causes. In those circumstances, the final hearing panel found that there was a serious risk of repetition. It also concluded that in the circumstances it found, public confidence would be diminished were a finding of impairment of fitness to practise not made. That factor and the need to maintain proper professional standards also required a finding.

14. When the final hearing panel considered the issue of sanction, it was decided that a suspension order for a period of 12 months was the appropriate outcome. In making that decision that panel said this:

“……. It concluded that a Suspension Order for a period of 12 months was the proportionate Order. It took into account that the Registrant’s behaviour was in principle remediable. Applying the principle of proportionality, the Panel concluded that it was right at this stage to give the Registrant a further opportunity to address and remediate his conduct and the underlying causes of that conduct. Moreover, a Suspension Order would protect the public and at the same time enable the Registrant to determine whether he wished to resume his career as an Operating Department Practitioner. A period of 12 months would give the Registrant sufficient time to address these objectives.”

15. Further, in making the suspension order, in paragraph 54 of its determination, the final hearing panel offered this guidance to the Registrant:

This Order will be reviewed before it expires. At such a review the full range of sanctions will be available to the reviewing panel including a Striking Off Order. The Panel considers that a reviewing Panel might be assisted by the following:

• The physical presence [if necessary by video link or telephone] of the Registrant.

• Evidence as to whether the Registrant wishes to resume his career as an Operating Department Practitioner.

• A reflective piece from the Registrant addressing the failings and deficiencies that have been established at this hearing. Also, his insight as to the impact that his conduct may have had on patients and colleagues and on public confidence in the profession of Operating Department Practitioner.

• Evidence as to what the Registrant has been doing both in paid employment and voluntary work since May 2018.

• Evidence, including evidence from his GP, to demonstrate that he has addressed the problems identified in the report from Jenpen dated 16 April 2018 and has followed the advice which is there summarised.

Submissions

16. In her submissions the Presenting Officer summarised the findings of the final hearing panel. In relation to the outcome of the present review, she submitted that a further sanction was required when the present order expires. She stated that the HCPC’s view was that there should either be a further suspension for a period of 6 months or a striking off order.

17. There were no submissions from or on behalf of the Registrant.

Decision

18. The Panel accepted the advice it received that the task it was required to undertake was to accept the finding on the facts made by the final hearing panel in November 2020, and also the finding that those facts constituted misconduct. Having accepted those findings, the Panel is required to decide if the Registrant’s fitness to practise remains impaired, and, if it is, what sanction is required to be imposed when the current suspension order expires. In reaching its decisions on both impairment and sanction, the Panel has applied the ordinary considerations that apply to those decisions, and it had regard to the terms or the HCPTS Practice Note on the former and the HCPC’s Sanctions Policy in relation to the latter.

19. A factor relevant to the Panel’s decision arose from the terms of the report from Jenpen Occupational Health Services dated 16 April 2018. That document reported the view of the Registrant’s GP. The contents of the Jenpen report and reported comments of the GP are confidential matters and are not included in this public determination.

20. In circumstance where the Registrant has chosen not to engage in the process and produce information from which the Panel could be satisfied that he is at least minded to address matters, the Panel can only conclude that the problems that were disclosed by the Jenpen report remain.

21. The absence of evidence of remorse, insight or that the identified issues are being addressed, the Panel has concluded that there would be a significant risk of repetition were the Registrant to be permitted to return to practise without restriction. Furthermore, there would be an understandable loss of public confidence in his profession were that to occur. For these reasons, the Panel concluded that the Registrant’s fitness to practise is still impaired upon consideration of both the personal and the public components.

22. When the Panel considered whether its finding on impairment of fitness to practise required the imposition of a sanction when the present period of suspension ends, it concluded that it did because of the risk of repetition and the consequential risk of patient harm. Not only would it be inappropriate to take no further action, but also a caution order would not provide appropriate protection from that risk of future patient harm.

23. The Panel then considered whether conditions of practice would be appropriate. It concluded, that they would not for two reasons. One is that there are no conditions that could satisfactorily address matters. The other reason is that the Registrant’s lack of engagement would not provide the required confidence that conditions of practice would be adhered to even if they could be formulated.

24. The Panel next considered a further period of suspension should be made, and in this regard considered paragraph 121 of the Sanctions Policy. The present circumstances of this case do not meet the circumstances suggested in that paragraph as being appropriate for a suspension order: the Registrant does not have insight; there is a real possibility of repetition and there is no evidence, despite the fact that it is now over three years since the incident, and despite the guidance given by the final hearing panel, to suggest that the Registrant is likely to be able to resolve or remedy his failings. In short, a further suspension order would be inappropriate because, although it would protect the public while it was in force, it would achieve no useful purpose because there are no grounds for the Panel to believe that the position at the end of it would be any different to the present position.

25. The Panel then considered the ultimate sanction of a striking off order. The Panel considered paragraph 131 of the Sanctions Policy and was satisfied that the present circumstances in this case meets the circumstance there envisaged because the Registrant lacks insight and has demonstrated an unwillingness to resolve matters. The Panel would wish to stress that it is not of the view that behaviour of the type found in relation to 17 February 2018 must inevitably result in striking off. What makes that the only appropriate sanction now is the continuing risk of repetition coupled with an unwillingness to demonstrate any steps taken to reduce that risk. For these reasons, the Panel is satisfied that a striking off order is not only necessary but a proportionate response.

ORDER: The Registrar is directed to strike the name of Paul R Hicks from the Register from the expiry of the current suspension order, namely from 16 December 2021.

No notes available

History of Hearings for Mr Paul R Hicks