Mr Simon James Coone

 

1. In light of the Government’s advice on containing the current COVID-19 pandemic, the HCPC has suspended all public hearings to protect the health and safety of its registrants and stakeholders. This hearing was conducted via video-link.

 

 

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 23 August 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 time of the hearing and the fact that it would be held remotely due to the ongoing COVID-19 pandemic. 

 

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.

 

 

4. Matters relating to the health and private life of the Registrant would be referred to in the hearing. Rule 10 enabled the whole or part of the hearing to be held in private for the protection of the private life of the Registrant or witnesses. The Panel agreed that any references to the health or private life of the Registrant should be heard in private.

 

 

5. The Presenting Officer, on behalf of the HCPC, applied to proceed with the hearing in the Registrant’s absence. He provided the Panel with a bundle of documents which, he submitted, demonstrated the HCPC’s significant efforts, from 2019 to date, to make contact with the Registrant at two email addresses, a postal address and by telephone. The Presenting Officer told the Panel that the Registrant’s last engagement with the HCPC was in January 2019 when he informed the HCPC that wished to “withdraw from the HCPC register.” 

 

6. The Presenting Officer further informed the Panel that a final hearing for this matter had originally been scheduled for February 2021, but that that hearing had been adjourned due to an issue around service of the final hearing bundle. The Presenting Officer submitted that the Panel should proceed today; that the Registrant knew about the hearing, had waived his right to attend and that it was in the public interest to proceed in his 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, and with the fairness of the hearing at the forefront of its mind.

 

8. The Notice of Hearing informed the Registrant of the date and details of the 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 the hearing. 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 12 February 2020. 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 purpose. 

 

9. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today. One of the HCPC’s witnesses was present and ready to give evidence. 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 three 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.

 

10. 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, waive his rights to attend and be represented.

 

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

 

 

12. The Presenting Officer applied to amend particular 1 of the Allegation. He told the Panel that the allegations in this case relate to the Registrant’s conduct during his job application process prior to the start of his employment at the Whittington Health Hospital NHS Trust. The Presenting Officer submitted that the evidence was not clear that the date of 1 May 2018 in Particular 1 was accurate and that the proposed amendment, of adding the words “on an unknown date prior to” 1 May 2018, would correct that difficulty without affecting the nature or substance of the charge. Written notice that the HCPC intended to apply to make this amendment was sent to the Registrant on 17 February 2020. 

 

13. On the information before the Panel, the Registrant had not objected to the proposed amendment notified to him on 17 February 2020.

 

14. 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. 

 

15. The Panel considered that the Registrant had been given plenty of notice and ample opportunity to consider the proposal. No issues of prejudice or unfairness had been raised by or on behalf of the Registrant. In the Panel’s judgment, the proposed amendment was made on the basis of the material gathered during the HCPC's investigation and served to clarify it. The Panel was satisfied that the amendment did not change the substance of the Allegation, 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. The amended Allegation is set out above.

 

 

16. The Panel received a bundle of documents from the HCPC, comprising of a case summary, witness statements and a body of documentary exhibits. The Registrant had not submitted any documentation for the Panel’s consideration. 

 

 

17. The Registrant is registered with the HCPC as an Operating Department Practitioner. He has been qualified for around 14 years.

 

18. The Registrant was employed by the Whittington Health Hospital NHS Trust (the Trust) from 8 May 2018 to 17 December 2018 as a Band 7 Resuscitation Officer within the Resuscitation Services department. The Registrant was responsible for peri-arrest and cardiac arrest patients as part of the resuscitation team. 

 

19. The Allegation that has led to the Registrant’s hearing relates to his failure to disclose to the Trust, during his application process, that he had been dismissed by his previous employer, BMI Healthcare.

 

20. On 18 October 2018 Witness 1, the Registrant’s Line Manager at the Trust, raised concerns when the Registrant was absent without leave from his role as a Resuscitation Officer, and was not contactable. When Witness 1 tried to obtain the Registrant’s contact details from his previous employer, BMI Healthcare, it was discovered that the Registrant had been dismissed from his previous role there as a Theatre Manager during his probationary period. 

 

21. On 10 January 2019 the Trust referred the Registrant to the HCPC. 

 

 

22. The Panel heard live evidence from one factual witness called by the HCPC, Witness 1. The Panel considered his evidence to be helpful, credible and persuasive. The Panel found him to be a fair and reliable witness.

 

 

23. The Presenting Officer told the Panel that Witness 2, Executive Director at Blackheath Hospital (part of BMI Healthcare), would not be attending the hearing but had provided a signed witness statement, supported by a statement of truth, which the HCPC intended to rely upon. The Presenting Officer said that Witness 2 had attended the originally scheduled final hearing in February 2021 but that, when this was adjourned, she had made her position clear that she would not attend on a future occasion. He told the Panel that Witness 2 did not seek to resile from the evidence contained in her signed witness, rather that she had no recollection of events over and above that detailed in her statement. 

 

24. The Presenting Officer addressed the nature of the evidence and drew the Panel’s attention to Rule 10 of the Rules and the following caselaw around the principles of hearsay evidence: Ogbonna v NMC [2010] EWCA Civ 1216, Thorneycroft v NMC [2014] EWHC 1565 (Admin) and El Karout v NMC [2019] EWHC 28 (Admin). He made submissions that Witness 2’s evidence was not sole and decisive, was corroborated and should be admitted into evidence. It would be a matter for the Panel as to the weight to be afforded to it. The Presenting Officer told the Panel the HCPC had, until very recently, hoped that Witness 2 would change her mind and attend; as such, and in light of the Registrant’s continued non-engagement with the proceedings, the HCPC had not told the Registrant that it would be seeking to rely upon her written statement at this hearing. 

 

25. The Panel accepted the advice of the Legal Assessor. She reminded the Panel that the Civil Evidence Rules govern the admissibility of evidence in these proceedings; therefore, a piece of evidence should not be excluded solely on the ground that it is hearsay. The Legal Assessor endorsed the hearsay principles as referenced by the Presenting Officer in relation to Thorneycroft and Ogbonna and referred the Panel to R(Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) and Razzaq v Financial Services Authority [2014] EWCA Civ 770. She advised that the relevant principles articulated by the above cases are as follows:

 

a) The Panel is entitled to receive hearsay evidence but the decision to admit hearsay evidence is not to be regarded as a routine matter. The Panel must specifically consider the issue of ‘fairness’ before admitting the evidence. Considerations of what weight can be attributed to the evidence once it has been admitted is not relevant to the question of whether it would be fair for the evidence to be admitted in the first place.

b) The existence of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason will not automatically result in the exclusion of the evidence.

c) The courts have been reluctant to uphold decisions to admit hearsay evidence where i) the evidence was not admitted, and ii) the hearsay evidence in question was the sole or decisive evidence in relation to an allegation. The courts have been far less reluctant to uphold such decisions where i) the hearsay evidence is ancillary to other evidence in the case, and ii) it is not challenged.

d) The Panel should balance the probative value and prejudicial effect of admitting the evidence.

 

26. The Panel accepted the Legal Assessor’s advice and had regard to Rule 10(1)(b) and (c). It also had in mind the guidance from caselaw that reliance should not be placed on hearsay evidence that was based solely or to a decisive extent on the statement of a witness whom the Registrant has had no chance of cross-examining. The Panel noted that the content of the Witness 2’s statement was not sole and decisive and was corroborated by the live evidence of Witness 1, from whom it had heard, and by substantial documentary evidence placed before the Panel. Further, on the information provided to the Panel thus far, the Registrant had not challenged Witness 2’s evidence as contained in her statement. 

 

27. Having applied the principles set out in the cases referred to by the Legal Assessor, the Panel decided that it would not be unfair to the Registrant to allow the evidence of Witness 2 to be admitted as hearsay. In deciding that the evidence should be admitted, the Panel was clear that the hearsay nature of the evidence would necessitate careful consideration of what weight could properly be attributed to it when making its decisions.

 

 

28. The Panel 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 the alleged event occurred. The burden of proof was upon the HCPC which brought the allegation, it was not for the Registrant to prove his innocence. 

 

29. The Allegation contains a charge that the Registrant was dishonest. In considering that charge the Panel applied the test for dishonesty set out by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 that it should first ascertain the actual state of the Registrant’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by applying the objective standards of ordinary decent people. 

 

30. The Panel has considered each particular of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. The Panel made the following findings:

 

 

During the application process for your appointment to the Whittington Health NHS Trust as a Resuscitation Officer, on an unknown date prior to 1 May 2018, you: 

a) Did not disclose that you had been dismissed by your previous employer 

 

31. The Panel needed to determine whether, on the evidence before it, it was satisfied that it was more likely than not that the Registrant had been dismissed from BMI Healthcare and, if so, whether he had failed to disclose the fact that he had been dismissed during his application to the Trust.

 

32. Although the Panel had not heard from the Registrant as to whether he had been dismissed from BMI Healthcare, it noted his apparent position as recorded in the Trust’s Probationary Report that, “[the Registrant] had not enjoyed working at BMI and that after a meeting with the head of nursing and hospital director it was a mutual agreement that he leave,” that the hospital director had “assured him of a glowing reference” and that he had not received any formal documentation from BMI regarding the end of his employment.

 

33. Witness 2, however, stated that the Registrant’s employment was terminated during his probationary period with immediate effect on 23 March 2018, with payment of one month’s notice. She recalled that, during the probationary review meeting with the Registrant on 23 March 2018, “I explained the concerns that I had in relation to his failure to ensure the theatre was appropriately staffed…I cannot remember if I said to [the Registrant] in this meeting that he was dismissed from his post. I can confirm, however,…that the letter confirming the outcome of the meeting clearly states dismissed.” She further stated, “I can confirm that it was not a mutual decision for [the Registrant] to resign from his role; he was dismissed” and that she had not offered any sort of glowing reference as this would have been against BMI policy.

 

34. The Panel considered Witness 2’s account of events to be consistent with the documentary evidence before it - specifically an email of 23 March 2018 from the Registrant to Witness 2 stating, “thank you for the opportunity sorry I didn’t make the grade, wish you all the best for the future,” and a letter of 28 March 2018 sent by Witness 2 to the Registrant confirming BMI’s decision to dismiss the Registrant with immediate effect “in connection with [the Registrant’s] performance” and his right to appeal the dismissal. The Panel was satisfied, on the evidence presented to it, that the Registrant had been dismissed from his previous role at BMI Healthcare.

 

35. The Panel considered whether the Registrant had failed to disclose the fact that he had been dismissed from BMI during his application to the Trust. Witness 1 told the Panel that the Registrant submitted an online application form to the Trust in which stated that his reason for leaving BMI Healthcare was “travel” and that when he had discussed this point with the Registrant during the job interview, in a conversational way, the Registrant had confirmed that he had left his BMI role “because he went travelling.” Witness 1 said that he knew the Registrant lived on a boat and had previously been in the Navy, “so it seemed a plausible reason for leaving.” 

 

36. Witness 1 was clear in his evidence that there was a “declaration of truth” on the application form that must have been ticked before the Registrant submitted the application; Witness 1 said he knew this because he had both checked the form himself and confirmed the position with the Trust’s recruitment team. He stated, “The application cannot be submitted unless that box is ticked.” Witness 1 said that the Registrant should have been open and honest about the reason why he had left BMI Healthcare and was also of the view that, had such a disclosure be made, it would not necessarily have precluded him from being invited to interview.

 

37. The Panel had regard to the Application From submitted by the Registrant, which corroborated Witness 1’s evidence. In a section headed “Reason for leaving”, the Registrant had written “Travel”. There was no mention on the Application Form of the Registrant having been dismissed by BMI Healthcare.

 

38. In light of all of the evidence before it, the Panel was satisfied that the Registrant was dismissed from BMI Healthcare and that he did not make any mention of his dismissal either on his Application Form to the Trust or during the interview with Witness 1. As such, the Panel found that that the Registrant did not tell the Trust, during his application process, that he had been dismissed by BMI Healthcare and found this particular of the Allegation proved.

 

 

The matter set out in paragraph 1 was dishonest 

 

39. The Panel noted and accepted the Legal Assessor’s advice on the correct application and interpretation of the decision in Ivey v Genting Casinos [2017]. It also bore in mind the HCPTS guidance note called ‘Making decisions on a registrant’s state of mind’ of September 2021. 

 

40. The Panel considered the evidence of both Witness 1 and Witness 2, which was corroborated by the documentary evidence as detailed above; the Panel considered the evidence to be clear, consistent and persuasive. 

 

41. The Panel has found that the Registrant submitted the Application Form to the Trust and that he did not mention his dismissal during the interview with Witness 2. The Panel considered that the context in which the Registrant filled in the Application Form and then attended the Trust interview was important. The Panel accepted Witness 2’s evidence, corroborated by the documentary evidence, that she sent the dismissal outcome letter to the Registrant on 28 March 2018, to the email address that the Registrant had emailed her from on 23 March 2018 in which he apologised for not having ‘made the grade.’ The dismissal outcome letter was headed “Outcome of probation performance review meeting – dismissal”, in bold type which, in the Panel’s view, could not have been clearer. The Panel determined that the Registrant would have been aware that he had been dismissed and that he knew this when he applied for the role at the Trust. 

 

42. The Panel also determined that, by filling in the Application Form and recording “Travel” as his reason for leaving BMI, and maintaining this reasoning during interview, the Registrant had intentionally omitted to disclose his previous professional disciplinary history. In the Panel’s view, it was a reasonable expectation for the Registrant to be open and honest in his application form and at interview. The Panel was satisfied that the only explanation was that the Registrant knowingly and deliberately did not disclose his dismissal. This was dishonest and he knew it at the time. 

 

43. Having established the Registrant’s knowledge or belief as to the facts at the time of his application process, the Panel moved on to decide whether his conduct was dishonest by applying the objective standards of ordinary decent people. It was in no doubt that, applying these standards, the Registrant’s conduct was dishonest. 

 

44. The Panel therefore found the allegation of dishonesty proved. 

 

 

45. The Panel went on to consider, on the basis of the facts found proved, whether the ground of misconduct was established and if so, whether the Registrant’s fitness to practise is currently impaired. In reaching its decision, the Panel adopted a two-stage approach, first in considering whether the facts found proved constituted misconduct, then whether those findings led to the conclusion that his fitness to practise is currently impaired. 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. 

 

46. The Presenting Officer submitted that the Registrant had been untruthful in his application to the Trust, that dishonesty is a serious falling short of what would be proper in the circumstances and that the Panel could readily conclude that his actions amounted to misconduct. The Presenting Officer referred to the Standards of Conduct, Performance and Ethics (2016) and submitted that the Registrant’s conduct had breached Standard 9, namely the expectation that the public have that Operating Department Practitioners (ODPs) will act with honesty and integrity.

 

47. 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 probably 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.

 

48. In reaching its decision on misconduct, the Panel has also had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) which sets 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:

 

9 - Be honest and trustworthy.

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

9.5 – You must tell us as soon as possible if: you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence. 

 

49. The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards, would be sufficiently serious that it could properly be described as misconduct. However, the Panel exercising its own professional judgement, was in no doubt that his dishonest behaviour amounted to the statutory ground of misconduct. It considered that was incumbent upon the Registrant to be open and honest in any job application that he makes. It is a reasonable expectation of any employer that applicants are open and honest when applying for jobs. In the context of a regulated professional, failure to be open and honest when applying for any role is a serious matter – society expects professionals to be held to a higher standard. The Registrant had an obligation to be honest and act with integrity and that this is a key principle set out in the Standards. The Panel was in no doubt that the Registrant’s dishonest conduct, which was deliberate and intentional, fell seriously short of what would be proper in the circumstances and would be considered deplorable by fellow practitioners. 

 

 

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

 

51. The Presenting Officer submitted that there was no evidence of insight or any remediation and that the Registrant’s fitness to practise was and remains impaired. 

 

52. 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.

 

53. 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 medical 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 medical profession; and/or 

d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.’ 

 

54. The Panel’s duty is not only to protect patients/service users but to maintain public confidence in the 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, with honesty and integrity. 

 

55. 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. Notwithstanding that Witnesses 1 and 2  made references to the fact that the Registrant had been absent from his professional responsibilities without permission at the Trust, and that there were issues with his performance at BMI Healthcare leading to his dismissal, the Panel has not received any specific evidence to suggest that the Registrant has or is liable in the future to pose a clinical risk to patients. Nevertheless, the Panel was satisfied that the remaining three factors set out by Dame Janet Smith are engaged in this case. It was satisfied that the Registrant’s dishonesty brought the profession into disrepute, that the Registrant had breached one of the fundamental tenets of the profession and had acted dishonestly.

 

56. 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. 

 

57. 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. The Registrant has not explained why he acted as he did, and the Panel has not been provided with any evidence of reflection that demonstrates the Registrant’s understanding of how his actions could have impacted on public confidence in his profession. 

 

58. The Panel considered that although dishonesty is often said to be difficult to remedy, 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 dishonest misconduct or attempted to do so. Given the absence of this evidence, the Panel was satisfied that there remains a real risk that his misconduct might be repeated. 

 

59. Turning to the public interest component of impairment, 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.” The Panel was mindful of its finding of dishonesty and was satisfied that the Registrant's misconduct would substantially undermine the trust and confidence the public could 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 undermined if a finding of impairment were not made in this case. 

 

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

 

 

61. The Presenting Officer referred the Panel to the HCPC Sanctions Policy of March 2019, including the section on “Serious cases” involving dishonesty. 

 

62. The Panel heard and accepted the advice of the Legal Assessor who reminded it that the purpose of sanction was not to be punitive. Rather, the primary function of a sanction is to address public safety issues although there will also be secondary considerations in the form of a deterrent effect on other professionals and in maintaining the reputation of the profession and public confidence in the regulatory process. She advised the Panel to firstly consider whether any sanction was necessary and, if it was, to consider sanctions in ascending order, settling with the least restrictive that met the Panel’s concerns. The Legal Assessor advised the Panel to bear in mind the principle of proportionality, at all times balancing the Registrant’s interests with the public interest.

 

63. No submissions in relation to sanction or any references or testimonials had been submitted by the Registrant.

 

64. The starting point for the Panel was that the Registrant’s dishonest conduct was serious and had not, on the information before the Panel, been addressed; as such the Panel concluded that the Registrant continued to pose a current risk to the wider public interest.

 

65. The Panel considered that there were no specific mitigating factors in this case.

 

66. The Panel identified the following aggravating factors:

 

• the dishonest conduct involved an abuse of his prospective employer’s trust;

• the misconduct found proved in this case was deliberate, self-serving, repeated and spanned a 6-month period (April to November 2018); 

• the Registrant had an opportunity to admit his dishonest conduct during his job interview and when confronted by Witness 1 in the formal meeting on 13 November 2018, but did not do so;

• the Registrant has not evidenced any steps taken by him to address his conduct, even when he engaged briefly with the HCPC in 2019, stating only that he wished to be “removed from the Register”;

• the Registrant has provided no evidence of any reflection and lacks insight, especially in relation to the impact of his actions on his employers and the wider public. 

 

67. The Panel considered what sanction, if any, should be applied, and considered its powers in ascending order of seriousness. The Panel had in mind the HCPC Sanctions Policy and the principle of proportionality when considering sanctions.

 

68. The Panel paid careful attention to the section in the Sanctions Policy called “Serious cases”, specifically the sub-section on cases involving dishonesty. It bore in mind that the Registrant’s dishonest behaviour occurred on three occasions over a six-month period and determined that it was the Registrant alone who instigated the dishonest conduct. It noted that there was no admission of dishonesty by the Registrant during the Trust’s internal review, indeed at this time he embellished his story by stating he had left BMI Healthcare by mutual agreement and had been promised a glowing reference.

 

69. The Panel concluded that the misconduct in this case was too serious to refer for mediation or to take no action. There is a risk of repetition and taking no action would fail to meet the public interest in declaring and upholding proper professional standards and maintaining confidence in the profession and the regulatory process.

 

70. The Panel next considered whether to make a Caution Order. A Caution Order is appropriate in cases where the failing is isolated, limited, relatively minor in nature, or where the Registrant has undertaken appropriate remediation. This was not an isolated lapse, nor minor in nature, as the proved Allegation involved dishonesty in the context of his professional career. The Panel considered the conduct to be serious and there had been no demonstrated insight or any remediation. In light of there being a risk of repetition of the misconduct found proved, a Caution Order would not be appropriate or sufficient to protect the public in its broadest sense.

 

71. The Panel next considered a Conditions of Practice Order. The Panel noted the guidance in the Sanctions Policy that Conditions “will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.” The Sanctions Policy also provides that Conditions are “less likely to be appropriate in more serious cases, for example those involving dishonesty.” In this case there has been very limited engagement from the Registrant and no demonstrated insight; the Panel has minimal information about the Registrant’s current circumstances, save for the fact that in 2019 and 2020 information was provided to the HCPC that he was suffering ill health and was not working. Accordingly, the Panel concluded that even if appropriate conditions could be formulated to address the misconduct and the ongoing risk presented by the Registrant, in the absence of further information from him, it could not be satisfied that those conditions would be workable, or that the Registrant would comply with them. It was clear to the Panel that Conditions of Practice were therefore not an appropriate or sufficient sanction to protect the public or the public interest.

 

72. The Panel next considered a Suspension Order. The Panel has found that the Registrant’s actions were serious and deliberate, involving an abuse of trust and serious breaches of professional standards. In addition, the dishonesty found proved requires a sanction on the upper end of the scale as a matter of principle. It noted the guidance at paragraph 121 of the Sanctions Policy that such an order may be appropriate where “the concerns represent a serious breach of the Standards of conduct, performance and ethics; the registrant has insight; the issues are unlikely to be repeated; and there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.” The Panel has found that the Registrant has shown no insight and no evidence of remediation. The Panel took into account the scant information before it regarding the Registrant’s poor health in 2019 onwards, but was of the view that this would not have prevented him from demonstrating some insight and remediation, had he wished to do so. The Panel was mindful that sanction is primarily about public safety, that the public interest is important and that suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight. Given its findings as to the repeated nature and gravity of the misconduct in this case, coupled with the Registrant’s lack of insight and understanding of its seriousness, together with the lack of evidence as to any remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate. Suspension would fail to adequately address the public interest, uphold standards and the need to send an appropriate deterrent message to the profession.

 

73. The Panel considered paragraph 130 of the Sanctions Policy in relation to a Striking off Order and noted that this is “a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive): dishonesty…” The Panel determined that any lesser sanction than a striking off order would fail to reflect the nature and gravity of the misconduct, would lack the necessary deterrent effect on the profession and would not provide the necessary protection for the public in its broadest sense. The Panel accordingly determined to impose a Striking off Order.

 

74. The Panel was mindful of the significant impact that such an order may have on the Registrant in terms of financial, personal and professional hardship. In any event, the Panel determined that the protection of the public and the wider public interest outweigh the Registrant’s interests in this regard.

 

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

 

 

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. He 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 Striking Off 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 and the identified risk of repetition. 

 

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 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, namely dishonest conduct in applying for a registered ODP role, 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 Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.