Mr Ihab Y A Sharaf
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Whilst registered as an Operating Department Practitioner with the Health and Care Professions Council you:
1. On 24 November 2017 did not completely change the anaesthetic machine circuit before closing the operating theatre.
2. On 27 November 2017, you behaved in an aggressive and/or threatening manner toward Colleague A namely you:
a. Shouted at her and/or physically obstructed her going into a room; and
b. Said words to the effect of: ‘I will not let you pass until you admit that you were wrong.’
3. On 6 December 2017, you acted outside of your scope of practise when you attempted to carry out an arterial cannulation on a patient.
4. On 5 February 2018, you:
a. Did not stock the trolley with adequate Propofol; and
b. Left theatre during a surgical procedure to obtain further Propofol, leaving the Anaesthetist without appropriate support.
5. On 15 February 2018, you:
a. changed the horizontal angle of a patient trolley, without giving support to the patient or warning to your colleagues.
b. Gave the controlled drugs cupboard key to Colleague E who was not qualified to hold them.
6. On 16 February 2018, you:
a. performed venous cannulation on a patient having not received the required training by your employer
b. When asked by manager Colleague G, whether you had cannulated patients, you advised you had not.
7. You behaved in an aggressive and/or threatening manner toward:
a. Colleague E on 16 February 2018 namely by:
i. Saying words to the effect of “if someone asks you what happened in the Anaesthetic room the previous day, then you say you only entered to support the patient. It will be for your sake and mine’.
ii. Grabbing her arm and/or wrist.
b. Colleague C on 16 February 2018 you:
i. Saying words to the effect of ‘email Colleague G and tell him to forget what you had written to him.’
ii. Kissed her on the forehead.
c. Colleagues F and G on 19 February 2018, namely by:
i. throwing a bottle of water at the door;
ii. throwing a small Laryngoscope handle across the room
iii. picking up scissors, pointing them towards your abdomen and saying words to the effect of: ‘Is this what you want?’
8. Your conduct as set out in paragraph 6b amounts to dishonesty.
9. The matters alleged in particulars 1 to 8 constitute misconduct.
10. By reason of your misconduct your fitness to practise is impaired.
Applications to Amend the Allegation
1. At the commencement of the hearing the Presenting Officer, on behalf of the HCPC, applied for amendments to be made to the Allegation to ensure that it more accurately reflected the HCPC’s position. There were four material amendments proposed in that the HCPC, having completed its investigations, intended to offer no evidence in relation to particulars 1, 4(a), 5(a) and 7(a)(i) and remove those particulars of the Allegation. The Presenting Officer explained that the witness evidence obtained in relation to these four particulars was such that, in each case, either the evidence did not meet the threshold to be found proved factually or would not amount to misconduct. The Presenting Officer also applied to correct three typographical errors.
2. The Registrant said that he supported the proposed amendments.
3. The Panel accepted the advice of the Legal Assessor, who advised that the Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced. The Panel should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendments can be made without injustice. It was up to the Panel whether to accept all, none or some of the amendments proposed by the HCPC.
4. In the Panel’s judgment, the proposed material amendments reduced the scope of the Allegation, were made on the basis of the material gathered during the HCPC’s investigation and would not cause injustice to the Registrant. Further, the Panel was of the view that the typographical amendments sought served to clarify the Allegation and again would not cause injustice. Accordingly, the Panel acceded to the Presenting Officer’s application and allowed all of the amendments to be made.
5. At the outset of the second day of the hearing the Presenting Officer made a further application to amend the Allegation. In relation to particular 6(a)(i), he asked the Panel to add the words “or around” to the currently drafted date of the alleged incident of 16 February 2018, in light of the documentary evidence of Colleague B that the alleged single incident took place on 15 February 2018 and 16 February 2018.
6. The Registrant did not oppose the application.
7. The Panel considered that this application was fair and could be made without injustice to the Registrant. It therefore acceded to the request.
8. After lunch on the second day of the hearing, the Presenting Officer applied to amend particular 6(b)(i) to reference Colleague F, as opposed to Colleague G as currently drafted. The Presenting Officer contended that whilst this further amendment was regrettable, it was a simple typographical error and that the evidence in the bundle clearly supported that this should be Colleague F, not Colleague G. The Presenting Officer further submitted that the HCPC’s case, as supported by the evidence, had in no way changed and that the Registrant would be caused no prejudice by the Panel agreeing to the amendment.
9. The Registrant did not oppose the application but noted his concerns around the number of amendments applied for and made to the Allegation so far.
10. The Panel accepted the HCPC’s submission that this was a simple typographical error and that the evidence in the bundle supported that Colleague F should be referenced, rather than Colleague G. It considered that, to ensure that this particular of the Allegation accurately reflected the evidence adduced, it was appropriate to accede to this application.
11. The amended Allegation is as set out above.
Hearing in private
12. There were references to the health and personal circumstances of the Registrant in the evidence. Rule 10 of the HCPC (Conduct and Competence Committee) (Procedure) Rules (the Rules) enabled 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 determined that any references to the health or private life of the Registrant should be heard in private.
13. The Panel received a bundle of documents from the HCPC comprising a case summary, 6 witness statements and Exhibits running to 242 pages. The Presenting Officer also provided a written Timeline to the Panel.
14. The Registrant submitted a number of professional testimonials and feedback assessments; several documents relating to the workplace investigation; and documentation relevant to the Registrant’s health in April 2018.
15. At the outset of the hearing, the Registrant denied all of the particulars of the Allegation.
16. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP). The Registrant was employed by Buckinghamshire Healthcare NHS Trust (the Trust) from 2 October 2017. At the time of the matters which are the subject of these proceedings, he was working as a Band 6, Senior ODP based at Wycombe General Hospital (the Hospital).
17. In November 2017 complaints were made by colleagues about the Registrant’s conduct towards them, as well as clinical concerns in undertaking his role as an ODP and a failure to adhere to Trust policies. Following informal discussions, the decision was taken to suspend the Registrant and formally investigate the alleged conduct.
The HCPC’s Evidence
18. The HCPC called six witnesses, all of whom confirmed and adopted their witness statements as their evidence in chief and were asked a number of supplementary questions by the Presenting Officer. The Registrant cross-examined each witness.
19. Witness SH was employed by the Trust as a Nurse Consultant and undertook the investigation into these matters. SH explained that she had a fair experience of disciplinary investigations. Witness SH said that she only knew the Registrant as part of the investigation and had never met him prior to their first meeting on the 23 March 2018, when she interviewed the Registrant to obtain his views or thoughts on the allegations. Witness SH told the panel that, as outlined in the investigation report, two allegations against the Registrant formed the terms of refence for the investigation. The first allegation concerned a consistent failure by the Registrant to adhere to policy with regards to his practice. The second allegation involved concerns around the Registrant’s behaviour towards his colleagues which could be considered threatening or intimidating and failing to meet the Trust’s CARE values and behaviours.
20. All of the other witnesses called by the HCPC were eyewitnesses to the alleged incidents.
Decision and reasons on application of no case to answer
21. At the close of the HCPC’s case, the Panel considered an application from the Registrant that there was no case to answer in respect of particular 6(b)(ii). The Registrant referred the Panel to the oral evidence of Colleague C that she had in no way considered his behaviour in kissing her forehead to be aggressive or threatening.
22. The Presenting Officer conceded that there was “real merit” in the Registrant’s application.
23. The Panel took account of the brief submissions from the parties and heard and accepted the advice of the Legal Assessor, who referred the Panel to the cases of R v Galbraith (George Charles)  1 WLR 1039 and R v Shippey  Crim LR 767.
24. In reaching its decision, the Panel made an initial assessment of all of the evidence that had been presented to it at this stage. The Panel was solely considering whether sufficient evidence had been presented, such that it could find the fact alleged at particular 6(b)(ii) proved, and whether the Registrant had a case to answer. The Panel noted that the stem of this particular of the Allegation was worded as, “You behaved in an aggressive and/or threatening manner toward:…” The Panel considered that Colleague C gave clear and consistent evidence in relation to this sub-particular, that she did not feel threatened or that the Registrant was behaving in an aggressive manner when he kissed her on the forehead. In oral evidence Colleague C said that she regarded the kiss on the forehead as the Registrant intimating, “Ok, we’re sorted” and that the issue that had arisen between them was resolved. The Panel was therefore of the view that, based on the evidence presented to it, there was insufficient evidence on which it could properly find this factual sub-particular proved. It therefore acceded to the Registrant’s application and determined that there was no case to answer in relation to sub-particular 6(b)(ii).
25. The Chair announced the Panel’s decision in relation to this application. The Registrant then made a further application of no case to answer in relation to sub-particular 6(a)(i).
26. The Registrant referred the Panel to what he contended was an inconsistency in the HCPC’s witness evidence; namely that Colleague B had changed her evidence around whether the alleged incident concerning Colleague E had taken place on 15 or 16 February 2018. He reminded the Panel that Colleague C had stated that she was working with the Registrant and Colleague E on 15 February 2018 but that Colleague B had also initially said that she was working with the Registrant on that same date, in a different theatre, which could not be possible. The Registrant contended that this inconsistency in evidence meant that the witness evidence put forward by the HCPC from Colleague B could not be relied upon and that the Panel should find no case to answer in relation to this sub-particular.
27. The Presenting Officer opposed this application and submitted that there was sufficient evidence at this stage upon which the Panel could properly come to the conclusion that the fact as alleged is proved. He reminded the Panel of its agreement to amend particular 6(a) to read “…on or around 16 February 2018” and referred the Panel to two specific documents in the HCPC bundle which, he contended, contained clear and direct evidence from Colleague B that the Registrant had grabbed Colleague E’s arm and/or wrist. He submitted that this evidence was sufficient to rebut a submission of no case to answer.
28. The Panel again took account of the parties’ submissions and reminded itself of the Legal Assessor’s advice. The Panel was satisfied that there is some evidence before it presented by the HCPC in relation to this sub-particular and that, pursuant to R v Galbraith, the evidence is not so weak, vague or tenuous that it becomes unsatisfactory such that a reasonably informed panel could not find this sub-particular of the Allegation proved. The Panel determined that it would be wrong to conclude that the evidence, taken at its highest, is not sufficient for a panel, properly mindful of the law and standard of proof, to find this sub-particular proved. On this basis, the Panel rejected the Registrant’s application for no case to answer in relation to sub-particular 6(a)(i).
29. The Panel wishes to emphasise that at this stage, all that it has decided is that the HCPC’s evidence at this stage of the proceedings, in relation to sub-particular 6(a)(i), is sufficient for it to be properly open to the panel to find that charge proved. It has formed no view about what findings it may or may not make at the end of the factual stage of the hearing when the Registrant’s evidence is concluded.
Decision and reasons on the application relating to the admissibility of hearsay evidence
30. The Registrant applied for an email from a Dr 1 to the Registrant, dated 5 September 2021, to be adduced as hearsay evidence. The Registrant said that Dr 1 was one of the anaesthetists in theatre when the Registrant is alleged to have attempted to carry out an arterial cannulation on a patient. The Registrant told the Panel that he had this morning asked Dr 1 to attend the hearing to give evidence, but that Dr 1 had messaged him to say that he was unable to attend due to professional commitments. The Registrant submitted that this was an official email from an NHS doctor from his NHS email address and was therefore “sufficient” and should be accepted into evidence by the Panel. The Registrant said that he did not have Dr 1’s telephone number until two days ago.
31. The Presenting Officer opposed the application. He said that the HCPC objected to this document being admitted into evidence as part of the Registrant’s case because the Registrant wished to adduce the email to prove the facts stated within it. The Presenting Officer submitted that this was an ‘out of court statement’ and that the doctor was not present to give oral evidence. The Presenting Officer noted that the Registrant had made no attempt to contact the doctor until the first day of the hearing, despite having had the HCPC bundle for at least 42 days prior to the hearing beginning. He noted not only a failure in procedure on the part of the Registrant but argued that to admit the document would be unfair to the HCPC. He submitted that, in the brief email, the doctor only “surmises” that he and the Registrant are talking about the same incident some four years ago and that the HCPC would be deprived of asking the doctor what happened in theatre on that day and whether he had a close eye on what the Registrant was doing for the entirety of the procedure. The Presenting Officer reminded the Panel that the doctor states in the email that he has not looked at any of the case notes relevant to this alleged incident and has not even confirmed the date that he is referencing.
32. 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 Bonhoeffer, Thorneycroft and Ogbonna and also referred the Panel to Razzaq v Financial Services Authority  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 each piece of the evidence.
33. The Panel accepted the Legal Assessor’s advice. The Panel considered the submissions from both parties and had the relevant email before it. It conducted a careful balancing exercise, as set out in the case of Thorneycroft. After due consideration the Panel decided that it would not admit the email of Dr 1 into evidence. This was a single, brief email that was not contained in a witness statement supported by a signed statement of truth. The doctor, seemingly doing his best to assist the Registrant by responding to a request from him, stated that he could not remember the exact details regarding the case or even that it was the same case that the Registrant was referencing and that, for any detail, he would need to look up the case notes. He did state that from his memory, he did not recall the Registrant attempting an arterial line.
34. The Panel considered this email to be “neutral” and did not prejudice either the HCPC or the Registrant. The Panel considered, however, that the brief email contained no information that it could properly rely upon, was inconclusive and that for those reasons it had no probative value. As such, the Panel determined that to admit the untested evidence would be unfair and determined not to admit Dr 1’s email into evidence.
The Registrant’s evidence
35. The Registrant represented himself at the hearing. He gave evidence to the Panel and was cross-examined by the Presenting Officer. He also answered questions from the Panel.
36. In his oral evidence, the Registrant told the Panel that he has been an ODP for 35 years, working in Jordan, Saudi Arabia, and the UK. He registered with the HCPC in 2008. The Registrant said that these are the only allegations that he has faced in 35 years of practice and has never received any complaints from patients or staff, or faced any employment issues, prior to his four months of employment at the Hospital. He told the Panel that he received no support from anyone at the Trust during his short time there and had concerns about the fairness of Trust’s investigation, including that Witness SH knew that he was away from work due to illness, yet she still called a final disciplinary hearing. The Registrant asserted that some staff at the Trust colluded or conspired against him in raising some of these complaints and that some of the witnesses had fabricated their evidence.
37. The Registrant then addressed each of the particulars of the Allegation in turn.
Legal Advice on Facts
38. The Panel received and accepted the following advice from the Legal Assessor. The burden of proof was upon the HCPC which brought the allegations. It was not for the Registrant to prove his innocence. 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.
39. Dishonesty was alleged in respect of factual particular 5(b) in this case. In relation to the allegation of dishonesty, the Panel was reminded of the test in respect of dishonesty set out in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent)  UKSC 67, where Lord Hughes, giving judgment, stated as follows:
“…The fact finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
40. The Legal Assessor also referred the Panel to the case of Soni v General Medical Council  EWHC 364 in which the appeal judge opined that, before a panel could infer dishonesty, it would have to consider whether the evidence showed other possible explanations and, if so, whether it could safely conclude that those other explanations were less probable than deliberate dishonesty. In a case about dishonesty, where there is evidence of different explanations for why Mr Sharaf might have done something, the question is which explanation is more likely?
Decision on Facts
41. The Panel considered all the evidence in this case. It heard the submissions made by the Presenting Officer and the Registrant. The Panel had in mind that the burden of proof remained on the HCPC. It gave careful consideration to the context in which these allegations arose.
42. The Panel first considered the overall credibility and reliability of the witnesses it heard from, including the Registrant.
43. The Panel found that each of the six HCPC witnesses provided clear, balanced and consistent evidence. They maintained their accounts under cross-examination and conceded when anomalies were drawn to their attention. The Panel considered that they provided a fair account of their professional relationships with the Registrant, with several colleagues making positive comments about him. The Panel found that their accounts, and what they were accusing the Registrant of, were not excessive; they did not seek to embellish their accounts, which tended to strengthen their credibility. The Panel did not perceive any malice towards the Registrant on their part, or any motive to make false allegations against him. The Panel found them to be credible and truthful witnesses who did their best to assist the Panel. Further, the Panel did not find any credible evidence to support the Registrant’s suggestion of a conspiracy or collusion between them. The Panel further considered that they had no reason to mislead the Panel. Taking all of these aspects into account, the Panel was satisfied that it could place significant reliance and weight upon the HCPC witnesses’ evidence.
44. When considering the Registrant’s evidence, the Panel acknowledged that he was anxious and felt aggrieved at the allegations levelled against him. It was of the view, however, that the Registrant appeared either not to listen to the questions being put to him during the hearing, or that he evaded the specific questions asked and that he gave answers that were not on point. On several occasions during cross-examination or questioning from the Panel, rather than answering the question put to him, he posed his own different question. Further, the Panel found some inconsistencies in his explanations, to the extent of being misleading. An example of this was in relation to questioning from the Presenting Officer and the Panel around the bunch of keys that he gave to Colleague E on 15 February 2018. In his answers the Registrant repeatedly referred to irrelevant matters such as the location of various cupboards and professionals. On the other hand, although he denied all of the allegations at the outset of the hearing, the Panel noted that he apologised to a number of the witnesses for any difficulty or upset he may have caused them and confirmed his respect for them in a professional capacity.
45. 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:
Particular 1 – Proved in its entirety
On 27 November 2017, you behaved in an aggressive and/or threatening manner toward Colleague A namely you:
a. Shouted at her and/or physically obstructed her going into a room; and
b. Said words to the effect of: ‘I will not let you pass until you admit that you were wrong.’
46. Only Colleague A and the Registrant were present during this alleged incident.
47. In oral evidence, Colleague A explained the context to this incident. She said that a number of things had escalated during the day, principally that there had been confusion and a difference in opinion between the Registrant and herself about the correct way to make entries into the controlled drugs book. Colleague A explained that it was the Registrant’s conduct and communication with her following that disagreement that were “unprofessional”, “unduly harsh” and that “it was how [the Registrant] approached me that was the upsetting factor.” Colleague A told the Panel in oral evidence that she was going to get some supplies and clearly remembers the Registrant “obstructing the door in the shape of a star so that it physically caused a barrier into the room” and that, “the Registrant stated that he would not let me pass until I admitted I was at fault in the incident that had occurred earlier in the day.”
48. Colleague A’s evidence was that there was “a definite steely determination” in the Registrant’s demeanour and that the Registrant was adamant that she had made an error earlier in the day and should admit this “before I could progress about my duties.”
49. The Panel also had sight of Colleague A’s local statement which recorded, “I was very intimidated by [the Registrant’s] demeanour and was frankly astounded by his unprofessional conduct.” Colleague A told the Panel that she wrote the local statement either at the end of the day in question or the following day when “matters were completely fresh in my mind.”
50. In his cross-examination of Colleague A, the Registrant agreed that there had been some sort of dispute earlier in the day concerning the controlled drugs book. He said that he did not recall this specific incident as alleged at Particular 1(a) and (b) but asked Colleague A, “Was I laughing or very serious?” The Registrant said that, if it did happen, he was now apologising to Colleague A. In his oral evidence, however, the Registrant denied that the incident took place and contended that Colleague A had a selective memory because she could clearly remember this alleged incident but not the detail about the Index of the controlled drugs book.
51. The Panel preferred and accepted Colleague A’s account, finding that her oral evidence was clear, specific and consistent with her written statements. The Panel accepted her evidence in its entirety. The Panel did not accept the Registrant’s evidence, which it found to be contradictory. The Registrant had been asked what motive he believed Colleague A had for making a false allegation against him and he was not able to give one.
52. On the evidence before it, the Panel was satisfied that the HCPC had established that it was more likely than not that the Registrant did physically obstruct Colleague A from going into a room and that he said words to the effect of those particularised in Particular 1(b).
53. In oral evidence, Colleague A said that she was unhappy about the Registrant’s unprofessional conduct on this occasion, that the Registrant had a “definite steely determination” in his voice, but that “threatened is quite an extreme thing to say.” The Panel noted that in Colleague A’s local statement, written straight after the incident, she described that she “was very intimidated by his demeanour and was frankly astounded by his unprofessional conduct.” On the evidence before it, the Panel was satisfied that the Registrant behaved in a manner that was aggressive, but which fell short of being threatening.
54. The Panel found Particular 1 proved in its entirety, on the balance of probabilities, in relation to behaving in an aggressive manner.
Particular 2 – Proved
On 6 December 2017, you acted outside of your scope of practice when you attempted to carry out an arterial cannulation on a patient.
55. The Panel first considered whether, on the balance of probabilities, the Registrant made an attempt to insert an arterial cannula a patient on 6 December 2017. It was not in dispute that the Registrant and Colleague B were in theatre on that date and were involved in the care of a patient during an emergency, who required arterial cannulation in order to further monitor them.
56. The Panel had regard to the evidence of Colleague B, a Senior ODP at the Trust. In oral evidence Colleague B told the Panel that, during the medical emergency, she saw the Registrant attempting to insert an arterial cannula into the patient’s right wrist and that, before he had successfully done this, a doctor successfully inserted an arterial cannula into the patient’s left wrist. Colleague B said that she challenged the Registrant about it afterwards. Further, Colleague B told the Panel that she wrote a local statement about the incident later that day, after the dialogue between herself and the Registrant, “because I didn’t like the practice I saw from the Registrant and therefore I escalated it.” In cross-examination, when the Registrant asked Colleague B whether she could be sure that it was he who did the cannulation, Colleague B responded, “Absolutely. I saw it with my own eyes. I know exactly what I saw.”
57. The Panel had before it the contemporaneous local statement written by Colleague B in which she recorded that she caught sight of the Registrant “attempting to insert an arterial cannula into the patient’s right radial artery” and set out the conversation between the Registrant and herself when she challenged. Colleague B recorded that she said to the Registrant that she saw him attempting an arterial cannulation and that ODPs do not perform that skill. Colleague B recorded the Registrant’s responses as saying that he “had done loads before” and, “well, the doctors didn’t stop me”.
58. The Panel took into account the notes of the investigatory interview between the Registrant and Witness SH on 23 March 2018, in which it was recorded that the Registrant stated, “I said the patient has a good pulse, can I try? Then felt again and it was not good, so I got the ultrasound. I was preparing for the arterial line and central line. I tried to insert, not inserted it… I tried and then the ultrasound came.”
59. The Registrant denied this allegation. He detailed to the Panel what he had done to assist during this emergency situation, including having raised the alarm in the first place. The Registrant’s oral evidence was that he was extremely busy working to save the patient during this time and would not have had time to attempt to do an arterial line. He reminded the Panel that Colleague B had said that she was “in and out” of the room during the emergency. When the Registrant was asked what motive he believed Colleague B had for making a false allegation against him, he suggested that she might have been jealous of him as a fellow ODP because his work and skills were highly respected among doctors at the Trust.
60. The Panel considered Colleague B’s evidence to be clear, detailed and compelling. The Panel was not persuaded by the Registrant’s version of events and preferred the evidence of Colleague B to the Registrant’s oral evidence. Together with the documentary evidence before it, the Panel was satisfied that, on the balance of probabilities, the Registrant attempted to carry out an arterial cannulation on a patient on 6 December 2017.
61. The Panel next considered whether, by attempting to carry out an arterial cannulation, the Registrant acted outside of his scope of practice. There was consistent evidence presented to the Panel from Colleagues B, G (Principal ODP and Theatre Manager at the Trust) and F (Lead ODP and the Registrant’s line manager) that ODPs at the Trust do not undertake arterial cannulation. Colleague B stated, “The procedure is usually performed by a doctor. I do not know of any ODPs who undertake this procedure and ODPs in our Trust do not do this procedure. There is no additional training available for an ODP to undertake in order to perform arterial cannulations.” The Panel also had regard to an email dated 11 December 2017 to the Registrant from Colleague F that stated, “… it has been suggested that during patient resuscitation you attempted to insert an arterial line…Arterial catheterisation is beyond the bounds of our scope of practice as ODPs, however confident you are in your skills in the technique and the trust would be unlikely to support you in any resulting adverse advent [sic].”
62. The Panel was satisfied that it was not Trust policy that ODPs insert cannulae and, on the balance of probabilities, found that the Registrant acted outside of his scope of practice.
63. Accordingly, the Panel found Particular 2 proved.
Particular 3 – Proved
On 5 February 2018, left theatre during a surgical procedure to obtain further Propofol, leaving the Anaesthetist without appropriate support.
64. The Registrant denied this factual particular at the outset of the hearing. He appeared to accept, however, in his cross examination of Colleague G and in his own oral evidence, that he had left the theatre because the anaesthetist had said that they needed more Propofol. In oral evidence, the Registrant stated, “I’m not denying I left him.”
65. The Registrant’s evidence was that, prior to his leaving theatre, he had bleeped another ODP twice for assistance but had received no answer. He therefore told the anaesthetist that he would run to find more Propofol and be back in five minutes. In oral evidence, the Registrant said, “I did it because I had to do it. The anaesthetist gave me the green light and told me to go. I collected the medication and came back to him.” The Registrant contended that they finished the medical case “without any complaint.”
66. Colleague G stated that he had spoken to the anaesthetist who had confirmed both that he had needed more Propofol and that the Registrant did leave the theatre to obtain the vials.
67. The Panel was satisfied, on the clear and undisputed evidence presented to it, that the Registrant did leave theatre during a surgical procedure to obtain further Propofol.
68. The Panel next considered whether the Registrant left the anaesthetist “without appropriate support” when he left theatre during the surgical procedure. Colleague G’s evidence was that, even if he were given permission by an anaesthetist to leave theatre, personally he would not, due to patient safety issues. He contended that that there is always the potential for something to go wrong with a patient under anaesthetic and that an anaesthetist needs the help of a skilled ODP or an anaesthetic nurse in case something goes wrong. He said that other options would have been to bleep another ODP, ask a porter or the theatre desk receptionist.
69. The Registrant denied that he left the anaesthetist without appropriate support on the basis that, “I didn’t leave him alone.” There was no evidence presented to the Panel that a skilled member of staff, such as an ODP, remained in theatre with the anaesthetist. The Panel bore in mind the Registrant’s oral evidence during the hearing, in relation to Particular 2 about the crucial role that an ODP plays during surgery. The Panel also took into account that the patient concerned was undergoing major bowel surgery.
70. The Panel was satisfied, on the balance of probabilities, that by leaving theatre during the surgical procedure, the Registrant left the anaesthetist without appropriate support, albeit with a good intention of sourcing the requisite medication.
71. The Panel therefore found Particular 3 proved.
Particular 4– Proved
On 15 February 2018 you gave the controlled drugs cupboard key to Colleague E who was not qualified to hold them.
72. Colleague C’s evidence was that on 15 February 2018, the Registrant gave the keys to the controlled drugs cupboard to an employee, Colleague E, “a Band 4 Nursing Assistant Practitioner who was not qualified to hold the keys” and that this contravened Trust policy. Colleague C was clear that she not only witnessed the Registrant give the keys to Colleague E, but that he did so in her presence. Colleague C recalled that when she challenged him, the Registrant said that he only gave the keys to Colleague E to lock away the local anaesthetics and then return the keys to him. Following the alleged incident, Colleague C wrote an email of concern to her line manager, Colleague F, on the same day, which was before the Panel. Colleague C recorded in the email that, “I told [the Registrant] [Colleague E] cannot have the keys and he said it’s only to lock the cupboard doors. I said that it didn’t matter because the CD keys were on the same bunch. I had to get quite assertive with him because he was not listening.”
73. The Registrant denied this factual particular at the outset of the hearing on the basis that he gave Colleague E the key to “the cupboard”, but that Colleague E was returning local anaesthetic drugs not controlled drugs, which “was totally different.” He appeared to accept, however, in cross examination, that he handed over the entire bunch of keys, which held keys to both the local anaesthetic cupboard and to the controlled drugs cupboard. The Registrant’s evidence was that he held the correct key out when he handed the bunch of keys to Colleague E, so she knew which key to use. When asked by the Presenting Officer, the Registrant did not maintain that Colleague C was lying in this scenario and did not suggest that she was part of the corruption at the Trust that he alleged.
74. The Panel considered the evidence of Colleague C to be clear, consistent and compelling. In contrast, the Panel considered that the Registrant, by repeatedly stating that Colleague E was not returning controlled drug medication to the cupboard, sought to evade the obvious and specific issue around handing over the full bunch of keys to Colleague E.
75. Accordingly, on the balance of probabilities, the Panel found Particular 4 proved.
Particular 5– Proved in its entirety
On 16 February 2018, you:
a. Performed venous cannulation on a patient having not received the required training by your employer
b. When asked by manager Colleague G whether you had cannulated patients, you advised you had not.
76. Although the Registrant denied particular 5(a) at the outset of the hearing, he admitted this factual allegation during his oral evidence. He recalled that a patient became agitated and uncontrolled and that the anaesthetist asked him to cannulate the patient and give her Midazolam for pain relief. The Registrant told the Panel that he performed venous cannulation on 16 February 2018 for the benefit of the patient, that he did it in less than a minute and that the patient became stable as a result.
77. Colleague G’s evidence was that he was informed by another member of staff that they had seen the Registrant “inserting cannulae that morning” and that “the concern with the venous cannulation was that the Registrant had actually cannulated a patient and a practitioner should be properly qualified in order to do so.” Colleague G told the Panel that the Trust runs a venous cannulation course for doctors but that, in his 30 years as an ODP, he had never inserted a cannula. The Panel had sight of the Registrant’s training records at the Trust which confirmed that he had not undertaken any specific cannulation training with his employer. The Panel further took into account the documentary evidence before it of Minutes of an ODP meeting on 11 January 2018 (only a month before this alleged incident) which set out that, “Clarification from [Colleague G] was given to [the Registrant] that non-trust cannulation training is not transferable. Cannulation should only be undertaken when trust training has been undertaken and authorisation from the anaesthetist has been obtained.”
78. On the basis of the Registrant’s admission and the evidence of Colleagues G and F, together with the supporting documentary evidence, the Panel found this sub-particular 5(a) proved.
79. In oral evidence Colleague G recalled that, whilst in a meeting with the Registrant on 16 February 2018, Colleague G had received a text from one of the Lead ODPs to say that the Registrant had been cannulating patients on the pain list that morning in one of the theatre suites. Colleague G said that he immediately asked the Registrant whether he had been cannulating that morning and that the Registrant said that he had not. In oral evidence, Colleague G told the panel that he was as sure as he could be that the Registrant had denied cannulating that morning. Further, the Panel had sight of the notes of a Trust investigation meeting on 10 April 2018 during which it was recorded that Colleague G stated that, “I asked [the Registrant] [if he had been cannulating] and he said categorically “no”.”
80. Colleague G said that during the evening of 16 February 2018 the Theatre Matron contacted him to say that the Registrant had come back to speak to Colleague F and the Theatre Matron and told them that he had cannulated in the morning, despite telling Colleague G that he had not. Colleague F’s oral evidence to the Panel supported this.
81. In oral evidence, the Registrant contended that there were many issues being dealt with at the meeting with Colleague G on 16 February 2018 and that Colleague G “asked me about a lot of things.” Although the Registrant denied this allegation, his oral evidence was that he thought that Colleague G was asking him about arterial cannulation, “so I said, clearly, I hadn’t done it” and that this was “a simple misunderstanding between us” which had only become clear to the Registrant over the last few days, at this hearing.
82. The Panel was satisfied that on a factual basis, when asked by Colleague G whether he had cannulated patients, the Registrant advised that he had not. Accordingly, it found this sub-particular proved on the balance of probabilities.
Particular 6 – Proved in relation to 6(a)(i) and 6(c)(i)(ii)(iii)
You behaved in an aggressive and/or threatening manner toward:
a. Colleague E on or around 16 February 2018 namely by:
i. Grabbing her arm and/or wrist
b. Colleague C on 16 February 2018, namely by:
i. saying words to the effect of, ‘email Colleague F and tell him to forget what you had written to him.’
c. Colleagues F and G on 19 February 2018, namely by:
i. throwing a bottle of water at the door;
ii. throwing a small Laryngoscope handle across the room
iii. picking up scissors, pointing them towards your abdomen and saying words to the effect of: ‘Is this what you want?’
83. Colleague E declined to attend this hearing to give evidence, but the Panel had her signed statement of events before it, dated 28 February 2018, around two weeks after the alleged incident. She recorded that the Registrant started to approach her and that she felt intimidated. Colleague E recalled that Colleague B then entered the room and, as Colleague E was heading back into theatre, the Registrant grabbed her arm.
84. Colleague B’s oral evidence to the Panel was that she saw the Registrant “grab Colleague E’s wrist” as she was about to return to theatre. Colleague B recalled that Colleague E “seemed quite upset” and that, when the Registrant tried to continue the conversation, Colleague E looked “stressed and upset”. It was Colleague B’s evidence that the Registrant was “abrupt and aggressive” towards Colleague E.
85. The Registrant said that he strongly denied this allegation and that it was an impossible scenario from the documentary evidence before the Panel. He referred to what he understood to be a discrepancy in the dates of 15 and 16 February 2018 and questioned, “How can I be in one place in two separate scenarios?”
86. The Panel preferred the evidence of Colleague B – in her witness statement and her oral evidence – which was clear and compelling and was supported by Colleague E’s local statement. It was satisfied that it was more likely than not that the Registrant did grab Colleague E’s wrist or arm on that occasion. The Panel took account of Colleague E’s description of feeling intimidated, as set out in her statement. It was satisfied, on the balance of probabilities, that the Registrant’s actions in grabbing her wrist or arm were aggressive but not necessarily threatening. Accordingly, it found this sub-particular proved on the balance of probabilities.
87. The evidence of Colleague C was that the Registrant approached her when she was sitting in the coffee room of the main theatre. Colleague C explained that he walked over to where she was sitting at the table and stood over her whilst she was sitting down. She said that nobody else was present in the room at the time. Colleague C stated that, “[The Registrant] told me to retract my statement. I told [the Registrant] that I was not going to retract what I had said to Colleague F as I felt justified about what I had said as it had been a really bad day and he had made my life difficult. Initially I was shocked and concerned as to how the Registrant came over and spoke to me.”
88. The Registrant denied this allegation and said that he simply approached Colleague C to clarify matters, following a conversation that he had had with Colleague G. He said that he wasn’t telling Colleague C to change her report, he was simply asking her to confirm to Colleague F that the issue between them had been resolved.
89. The Panel preferred the evidence of Colleague C in this regard. It noted that, when the Registrant challenged Colleague C’s recollection of the incident during cross-examination, Colleague C was clear and steadfast, stating, “No, what you actually said to me was that I’d made a mistake and I needed to take back my statement, you said it a couple of times.”
90. The Panel next considered whether, by saying words to the effect of, ‘email Colleague F and tell him to forget what you had written to him’, the Registrant behaved in an aggressive and/or threatening manner towards Colleague C. It noted Colleague C’s evidence in her witness statement that she believed that the Registrant “intended to be intimidating rather than threatening.” Whilst the Panel considered that the Registrant’s words were both unprofessional and inappropriate, it did not consider the words to be aggressive or threatening. Accordingly, although the Panel was in no doubt that the Registrant told Colleague C to retract the email, it did not find this sub-particular proved because it did not find, on the balance of probabilities, that the Registrant behaved in an aggressive or threatening manner towards her by saying those words.
91. Particulars 6(c)(i)(ii) and (iii) all relate to the same alleged incident. Colleagues G and F recalled a follow up meeting on 19 February 2018 with the Registrant that Colleague G had called. The meeting was held in Colleague F’s office. Colleague G explained to the Panel, “I place a lot of trust in my ODPs so I wanted to clarify if [the Registrant] had lied and, if so, why.” Both Colleague G and Colleague F stated that, at this meeting, the Registrant denied that he had said to Colleague G on 16 February 2018 that he had not cannulated patients that morning.
92. Colleague G recalled the Registrant becoming angry, asking if Colleague G wanted to sack him and stating that the allegations levelled against him were racist. Colleague G’s evidence was that, when he suggested that the Registrant took the rest of the week off as paid leave while Colleague G spoke to Human Resources, the Registrant acted as alleged in Particular 6. Colleague G’s evidence was that the Registrant was becoming more and more angry during this interaction and shouted, “You are not God; I will see you in court.”
93. Colleague F recalled that the tone of the meeting changed when Colleague G told the Registrant that Colleague H had also been present when the Registrant had admitted, on 16 February 2018, that he had undertaken cannulation. Colleague F recalled the Registrant’s demeanour changing from having been “pleasant and denying” to becoming much more defensive and irate, which Colleague F said she found disturbing and made her feel very uncomfortable.
94. The Registrant denied these factual particulars at the outset of the hearing and, in oral evidence, said that he was denying “exactly how it happened” but also that “this scenario was made up by Wycombe [Hospital] in the investigation.” He detailed in oral evidence the context of the alleged incident, explaining that there was altercation between him and Colleague G, that Colleague G started screaming at him that he kept lying and that he was not trusted. The Registrant explained that, having heard this from Colleague G, he felt as if his dignity was broken and that he was not respected. He contended that he would not have had the strength to do each of these alleged actions, one after the next.
95. The Panel considered each of the sub-particulars in turn:
96. Colleague G stated that the Registrant first picked up a water bottle, started shouting and threw the bottle towards the door.
97. Colleague F’s evidence was that “the first real bit of aggression was a proper throw of a water bottle onto the floor,” that the cap flew off and the water “made a lot of mess on my floor.”
98. In oral evidence, the Registrant contended that he “dropped” a small water bottle due to his nerves in the angry interaction with Colleague G. The Registrant was adamant that he did not throw the bottle. The Panel noted that in the Registrant’s interview with Witness SH during the Trust’s investigation, the Registrant did not deny at that stage that he had thrown a water bottle and in answer to the Investigating Officer’s question, “Why did you throw the bottle at the door?”, he replied, “[Colleague G] said he would call the Police. I was feeling upset and nervous.” In his oral evidence, however, the Registrant contended that he had not focused on the word “throw” at that time and contended that “throw is the same as fall.”.
99. The Panel considered the context of this allegation and the evidence presented. The evidence of each of Colleagues F, G and the Registrant was that the water bottle incident occurred in the context of a heated altercation, during which the Registrant’s integrity was questioned. The Panel preferred the evidence of the Colleague G and Colleague F, which it found clear, plausible and persuasive. It was satisfied on the evidence that it was more likely than not that the Registrant threw a bottle of water at the door.
100. The Panel was in no doubt that the Registrant was upset during this volatile interaction and, on the balance of probabilities, was satisfied that he was behaving in an aggressive and/or threatening manner.
101. Colleague G’s evidence was that the Registrant then picked up a Laryngoscope handle, which Colleague G described as a heavy cylindrical device, and threw this towards the door of the office.
102. Colleague F stated that the Registrant next picked up a Laryngoscope handle, which she described as being metal, “two fists long” with batteries in it, and threw it towards the windows “with anger.” She said that she found this incredibly intimidating and threatening.
103. In oral evidence, the Registrant’s case in relation to the Laryngoscope handle was a blanket denial, refuting that he had picked up a Laryngoscope handle. The Panel noted that in the Registrant’s interview with Witness SH during the Trust’s investigation, the Registrant did not comment specifically following the Investigating Officer’s assertion that, “then you threw a laryngoscope at the door.” The Registrant was asked by the Presenting Officer what motive he believed Colleagues G and F had for making a false allegation against him and he was not able to give one.
104. The Panel again considered the context of this allegation and the evidence presented. The evidence of each of Colleagues F and G was that the laryngoscope handle incident occurred during the heated altercation. The Panel preferred the evidence of the Colleague G and Colleague F, which it found clear, plausible and persuasive. It was satisfied on the evidence that it was more likely than not that the Registrant threw a laryngoscope handle at the door.
105. The Panel was in no doubt that throwing a metal object in a small room could cause serious damage and that the registrant behaved in an aggressive and threatening manner during what was clearly a volatile interaction.
106. Accordingly, the Panel found this sub-particular proved on the balance of probabilities.
107. Colleague G’s evidence was that the Registrant then picked up a pair of scissors, lifted his shirt and asked, “Is this what you want me to do?”
108. Colleague F recalled that the Registrant then looked around, saw some scissors, lifted up his “theatre blues” and moved the scissors towards the direction of his bare skin. She stated, “It was quite terrifying to be honest” and that she felt threatened and scared, such that she asked a colleague to call security.
109. In oral evidence, the Registrant’s case in relation to the scissors was again a blanket denial, refuting that there was a pair of scissors in the office to pick up. The Registrant was asked by the Presenting Officer what motive he believed Colleagues G and F had for making a false allegation against him and he was not able to give one.
110. The Panel again considered the context of this allegation and the evidence presented. The Panel preferred the evidence of the Colleague G and Colleague F, which it found clear, plausible and persuasive. It was of the view that the Registrant had changed his account at this hearing. It was satisfied on the evidence before it that it was more likely than not that the Registrant did pick up a pair of scissors, pointed them towards his abdomen and said words to the effect of: ‘Is this what you want?’
111. There was no suggestion that the Registrant was threatening Colleague G or Colleague F with the scissors. The Panel was in no doubt, however, that the Registrant’s words and actions and were both aggressive and threatening and, on the balance of probabilities, found this sub-particular proved.
Particular 7 – Not proved
Your conduct as set out in particular 5b amounts to dishonesty.
112. The Panel considered whether the Registrant’s conduct in respect of the factual particular it had found proved was dishonest, which the Registrant denied. The Panel considered the test in the Ivey case (see above). The Panel was also mindful that an allegation of dishonesty is serious and that it should look for cogent evidence before being satisfied on the balance of probabilities.
113. The Panel had before it the notes of a meeting held on 19 February 2018, at which Colleague G, Colleague F and the Registrant were present. Colleague G said that he reconvened a meeting because he was concerned that he and other members of the ODP team had been lied to by the Registrant. Colleague G said that he told the Registrant that he had received information indicating that the Registrant had cannulated patients on the morning of 16 February 2018 and, at that point, the Registrant denied that he had told Colleague G that he hadn’t cannulated that Friday morning.
114. It bore in mind the Registrant’s stated belief, now, that he and Colleague G were talking at cross-purposes, in that the Registrant said that he was answering Colleague G’s question in the belief that it related to arterial cannulation rather than intravenous cannulation. The Registrant said that it was only now, having heard Colleague G’s evidence at this hearing, that he understood that Colleague G had been asking about intravenous cannulation.
115. The Panel gave careful consideration to the Registrant’s actual state of mind at the time that he told Colleague G on 16 February 2018 that he had not cannulated patients that morning. On that occasion, the Registrant had gone into the meeting with Colleague G, having received what was said to be a formal warning letter. The Registrant has described to the Panel how unsettling it was for him to realise that matters that he had thought were closed were still active.
116. Taking into consideration the particularly challenging circumstances of the meeting with Colleague G and, given what the Panel has observed during this hearing, the Panel has concluded that the Registrant’s state of mind, when that question was put to him, would have been compromised. Subsequently, on the same day, the Registrant went to speak to Colleague F and told her that he had cannulated patients that morning. In the Panel’s view, those do not seem to be the actions of someone who had deliberately lied in the morning to Colleague G. As such, the Panel accepted the Registrant’s explanation that he was talking at cross-purposes with Colleague G and thought that the question asked of him was in relation to arterial cannulation. It was of the view that it was more likely than not that the Registrant genuinely believed that Colleague G had been asking about arterial cannulation.
117. In light of the Panel’s conclusions as to the Registrant’s actual state of mind as to knowledge or belief as to facts in particular 5(b), the Panel went on to consider whether the Registrant’s conduct was dishonest by applying the standards of ordinary decent people. The Panel determined that ordinary decent people would not find it dishonest to tell Colleague G that he had not performed arterial cannulation that morning because he had not. The Panel therefore determined that the Registrant’s actions were not dishonest, applying the objective standards of ordinary decent people.
118. Accordingly, the Panel found Particular 7 not proved on the balance of probabilities.
Decision on Grounds
119. Having determined the facts and found some of the factual particulars proved, the Panel was required to judge whether the facts found proved amounted to the statutory ground of misconduct, as advanced by the HCPC and, if so, whether the Registrant’s fitness to practise is currently impaired. The Panel considered these issues in two separate stages.
120. The Registrant gave evidence to the Panel at this stage of the proceedings. He told the Panel that he respected its decisions in relation to the factual findings and, having reflected upon the Panel’s decisions and reasoning, recognised that he needed to “look in the mirror” at himself. He said that he learned a great deal from his experiences at the Trust and, having reflected on that time and having “realised that something had to change,” had identified five particular areas for his own improvement: adhering to employer policies; respecting colleagues; communication; risk management; and if something untoward happens, he needs to deal with it, accept that he is wrong and apologise. He told the Panel that, “I am changed already…because I wanted to be better” and has used this reflection in his work to the benefit of service users, colleagues and patients. He told the Panel that, to his mind, these matters have offered him a positive opportunity in that he had recognised the need to change his behaviour and communication and that it was his responsibility to work within the HCPC Code of Practice. The Registrant stated that he has undergone “a 360 degree change” and now confirmed with consultants and nurses what their expectations are of him and how he can improve. He assured the Panel that there would be no repetition of the types of behaviour found proved.
121. In relation to the aggressive and threatening behaviour found proved, the Registrant spoke of the importance of stepping back, taking a moment and not reacting to a tense situation. In relation to the importance of working within his scope of practice and adhering to employer policies the Registrant said that, going forward, he would need to “clarify the road map” of, and familiarise himself with, the place in which he is working and that, when he has undertaken agency work, he would ask the Lead what he could or could not do. He told the Panel that he has had to find a mentor in each place of work and has discussed matters at length with them, but that he has not worked as an ODP since January 2021.
Applications to adjourn the hearing
122. There was a break in the Registrant giving evidence in order for him to find further documentary evidence of professional assessments that he had undertaken that he wished to provide to the Panel for its consideration. At 17.20 on Day 5 of the hearing, the Registrant told the Panel that he would not be able to attend the hearing the following morning.
123. The Presenting Officer opposed the adjournment request on the basis that there was no cogent reason presented to the Panel for his absence.
124. The Panel accepted the advice of the Legal Assessor in relation to the matters it should consider in this adjournment application. It noted its power under Rule 10(1)(f) of the HCPC Rules to “adjourn proceedings from time to time as it thinks fit” and, in coming to its decision, bore in mind the factors derived from the judgment in CPS v Picton  EWHC 1108.
125. The Panel bore in mind that the Registrant had not finished giving evidence to the Panel. It determined that, in these particular circumstances, to continue with the case may well put the Registrant at a serious disadvantage, particularly in terms of demonstrating insight. Out of fairness to the Registrant in being able to properly and sufficiently present his case, and in the interests of justice, the Panel decided to adjourn the hearing until noon the following day. The Chair directed that, should the Registrant wish to apply for a further adjournment at that stage by telephone, he would be required to submit verification evidence.
126. When the hearing resumed at 12.30 on Day 6 (a Friday), the Registrant appeared to be in a hospital setting, wearing a face mask. He told the Panel to “please get this over with in around 45 minutes”.
127. The Legal Assessor noted her concern to the Panel that the Registrant appeared to be visibly and audibly distressed and was not in a position to give his best evidence to the Panel under these circumstances.
128. The Presenting Officer agreed and said that the Registrant was “in no fit state to conduct his case.”
129. The Panel considered the particularly challenging circumstances faced by the Registrant and determined to adjourn the hearing until 09.30 the following Monday (Day 7).
130. The hearing resumed at 09.30 on Day 7. The Registrant thanked the Panel for what he considered to be its “compassion” in granting the adjournment. He provided a final bundle of documents for the Panel’s consideration with a further two character references and one patient feedback form incorporated. In sworn evidence and in answer to a question from the Panel, the Registrant sated that only one of the providers of the refences was aware of his HCPC proceedings.
Submissions on Grounds and Impairment
131. The Presenting Officer made submissions regarding the issue of misconduct and referred the Panel to relevant caselaw including Roylance v GMC (No.2)  1 AC 311 and Nandi v GMC  EWHC 2317 (Admin). He referred to the HCPC Standards of Conduct, Performance and Ethics (2016), particularly paragraphs 2, 3, 6 and 8. The Presenting Officer submitted that the Registrant’s conduct was serious, involving poor professional conduct and unprofessional interaction with colleagues (for example, he said, by touching a fellow professional in an aggressive way by grabbing her arm and/or wrist (Particular 6(a)(i)), and fell to an unacceptable level.
132. In relation to current impairment, the Presenting Officer submitted that, in relation to the personal component, the Registrant’s level of insight demonstrated in these proceedings would be central to the Panel’s determination. In relation to the public component, the Presenting Officer reminded the Panel of the judgment of Mrs Justice Cox in the case of CHRE v NMC and Grant  EWHC 927. In paragraph 74 she said,
‘In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.’
133. The Presenting Officer invited the Panel to make a finding of current impairment on both the personal and public components.
134. The Registrant reiterated his point that mistakes can happen at any time. He drew the Panel’s attention to the words commonly used by those who had given character references on his behalf: “a team player, confident, a skilled ODP who treated patients well.” He submitted to the Panel that, when working under the responsibility of a registrar or a consultant, “we can’t move away from that.” He submitted that, during the two and a half years that he has been under interim conditions of practice, he has given his full commitment to the HCPC proceedings; that these are the first allegations that he has faced in his career; that he has learnt from his mistakes; that no harm was caused to any patient and that, in fact, his actions had been to a patient’s benefit. He submitted, “If something has happened once, it doesn’t mean it will happen again.”
135. In reaching its conclusion, the Panel considered all the evidence and information before it, together with the submissions of the Presenting Officer and the Registrant.
Panel’s Decision on Misconduct
136. The Panel first considered whether any of the matters it had found proved amounted to misconduct. It accepted the advice of the Legal Assessor. 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. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It was also aware that the statutory ground of misconduct is qualified by the word “serious.” It is not just any professional misconduct that will qualify. The Panel was also aware 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 that it could be properly described as misconduct in this context. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved.
137. Considering whether the grounds of misconduct was made out, the Panel reviewed each of its individual findings of fact against the Registrant.
138. The Panel concluded that the Registrant’s actions breached the following paragraphs of the HCPC Standards of Conduct, Performance and Ethics (2016):
a. 3 - Work within the limits of your knowledge and skills (Particulars 2 and 5(a))
b. 4 – Delegate appropriately (Particular 4)
c. 6 - Manage risk (Particulars 2 and 3)
139. The Panel also concluded that the Registrant breached the following Standards of Proficiency for ODPs (2014):
a. 3 - be able to maintain fitness to practise
3.1 - understand the need to maintain high standards of personal and professional conduct (Particulars 1(a)(b), 6(a)(i), 6(c)(i), (ii) and (iii))
b. 4 - be able to practise as an autonomous professional, exercising their own professional judgement
4.4 – recognise that they are personally responsible for and must be able to justify their decisions (Particular 3)
140. Particulars 1 and 6 concerned conduct that the Panel has found to be either aggressive (Particulars 1(a) and (b), 6(a)(i)), or aggressive and threatening (Particular 6(c)(i), (ii) and (iii)). The Panel was of the view that no colleague should face aggressive or threatening behaviour in the workplace by another’s actions or words. Exercising its own professional judgement, the Panel concluded that the conduct found proved in each sub-particular fell seriously short of what would be appropriate in the circumstances and amounted to misconduct. It indicated a pattern of inappropriate behaviour towards the Registrant’s colleagues that was wholly unacceptable
141. In relation to Particular 2 - the Registrant acting outside of his scope of practice when attempting to carry out an arterial cannulation - the Panel considered that there was the clear potential for harm to be caused to the patient and that the level of risk posed by the Registrant’s actions was unacceptable. The Panel was in no doubt that the Registrant’s actions in this case were serious and reached the threshold required to be properly considered misconduct.
142. In relation to Particular 3 - the Registrant leaving the anaesthetist in theatre, without appropriate support, to obtain further Propofol - the Panel considered that the Registrant’s actions in leaving a patient in a compromised position without adequate support placed the patient at significant risk. It was of the view that the Registrant’s reasoning that the anaesthetist had asked him to obtain more Propofol and that, “we work under the responsibility of the anaesthetist consultant and follow their orders”, was not appropriate and that, as an autonomous professional, the Registrant had not displayed the required level of responsibility or accountability. The Panel considered that the Registrant’s actions fell seriously short of the standards expected of an ODP, placed the patient at risk of harm and amounted to misconduct.
143. In relation to Particular 4 – the Registrant giving the controlled drugs cupboard key to Colleague E who was not qualified to hold them - the Panel considered that the public would expect the handling of drugs to be carried out correctly and policies and procedure adhered to. The Panel considered that, whilst this incident of itself would not amount to misconduct, it was indicative of a pattern of not following his employer’s policies or procedures, which raised serious concerns about the Registrant’s adherence to the required standards.
144. In relation to Particular 5(a) the Panel considered the particular context of the Registrant performing venous cannulation on the patient. It accepted the Registrant’s case that he knew he was acting outside of Trust policy but did it in the interests of the patient, to relieve their pain, when the consultant anaesthetist asked him to, as he (the anaesthetist) could not perform the cannulation at that time. The Panel was of the view that this action did not cause significant risk to the patient and, in these circumstances, could not be properly described as serious misconduct. In relation to Particular 5(b), the Panel reminded itself of its findings in relation to the circumstances of the Registrant being asked the question by Colleague G and the apparent confusion of a number of matters being discussed. The Panel also bore in mind that the Registrant spoke to colleagues that same day to say that he had performed venous cannulation. In light of the confusion that the Panel had accepted the Registrant felt, the Panel did not find that the Registrant’s response to Colleague G amounted to misconduct.
145. The Panel found that the Registrant’s conduct, as a whole, demonstrated behaviour that fell far below the standards expected of a registered ODP. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.
146. In these circumstances, the Panel determined that the ground of misconduct was well founded.
Decision on Impairment
147. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. It was mindful that a finding of impairment does not automatically follow a finding on misconduct.
148. The Panel accepted the Legal Assessor’s advice that the Panel had to consider whether, looking forward, the Registrant’s past misconduct leads to his fitness to practise being impaired now. There are two component parts of the test for impairment. First there is what may be termed the personal component of this decision. The Panel should consider the established past misconduct, together with all the other evidence that the Panel has in respect of the Registrant (for example, insight, any evidence of the remedying of the deficiencies, the risk of repetition and the risk to the public presented by any repetition of the misconduct). Secondly, the Panel must also consider what may be termed the public component, namely what would be the effect of not finding impairment on the wider public interest. That wider public interest includes the maintenance of public confidence in the profession and its regulator and the declaring upholding of proper standards of conduct. The Legal Assessor also referred the Panel to the guidance in the Fifth Shipman Report and CHRE v NMC and Grant. She reminded the Panel that it should consider the issues of insight, remediation and risk of repetition when assessing impairment and that the Panel should exercise its own professional judgment on these issues.
149. In reaching its decision on impairment, the Panel considered the submissions of both parties and had regard to the Registrant’s oral evidence, and to the HCPTS Practice Note “Fitness to Practise Impairment” of December 2019. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. In reaching its decision, the Panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct.
150. The Panel first considered the personal component of impairment and adopted the approach formulated by Dame Janet Smith in her Fifth Report of the Shipman Inquiry by asking itself the following questions:
Do our findings of fact in respect of the Registrant’s misconduct show that his 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 patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Operating Department Practitioner 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 and/or is liable in the future to act dishonestly?
151. The Panel determined that limbs (a) to (c) were engaged in this case. It considered that the Registrant had, in the past, placed patients at unwarranted risk of harm by acting outside of his scope of practice and leaving theatre during a surgical procedure; and that the Registrant had, in the past, brought his profession into disrepute and breached fundamental tenets of the ODP profession by acting unprofessionally towards colleagues, and by not properly managing risk. In considering whether he would be liable in the future to act so as to put patients at unwarranted risk of harm, or to bring the profession into disrepute or to breach fundamental tenets of the profession, 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. The Panel considered that, in theory, the misconduct was capable of remediation through meaningful reflection into the failings and re-training on the fundamental importance of adherence to the principles set out in the Standards detailed above.
152. The Panel took the view that something went seriously wrong for this Registrant over a four-month period at the Trust. The Panel was mindful that the Registrant qualified as an ODP 35 years ago with, on the information before the Panel, no previous concerns regarding the Registrant’s practice. The Registrant has told the Panel that he has found it difficult to secure work as an ODP since the referral to the HCPC.
153. The Panel first considered whether the Registrant had displayed any remorse for his misconduct. It noted that the Registrant had apologised directly to several of the HCPC witnesses in the hearing, which the Panel considered to be much to his credit.
154. The Panel next considered the Registrant’s level of insight. It took into account the HCPTS guidance around insight, particularly that “Insight is a registrant’s genuine understanding and acceptance of the concerns, which have been raised in relation to their conduct,” and was of the view that the Registrant had presented a rather ‘mixed’, not entirely straightforward picture. In oral evidence, the Registrant had spoken about the importance of looking at himself in the mirror and recognising that he needed to change. He had told the Panel that he discussed the matters with his wife and that he accepted that he needed to improve in a number of areas. The Panel had found this evidence compelling and considered that the Registrant had shown understanding and a degree of humility which, again, were to his credit. In his submissions, however, the Registrant had said that he did not regard grabbing Colleague E by the arm or wrist to be aggressive behaviour and that, although local policies and procedures were to be followed, he worked under the “responsibility” of registrars and consultants and “we can’t move away from that.”
155. The Panel had some concerns about the Registrant’s professional judgment and considered that, on the information before it, the Registrant had not fully understood or accepted the severity of his conduct and had not yet properly reflected on these errors to the extent necessary to demonstrate to this Panel that he has developed full insight into his misconduct since leaving the Trust. It further noted that he had not completed any re-training on the fundamental importance of adherence to the principles set out in the Standards detailed above and his responsibilities to patients, colleagues, his employer and the profession. The Panel was of the view that it had no evidence of deep reflection on the Registrant’s part.
156. The Panel did not consider the Registrant was incapable either of properly reflecting on his misconduct or that he could not achieve full insight into his shortcomings should he choose to do so in the future. However, at this stage, in the Panel’s view the Registrant had shown only partially developed insight into his misconduct; his level of insight was not fully developed.
157. The Panel next considered any evidence of the Registrant’s remediation of the misconduct. The Registrant has told the Panel, in oral evidence, that he had received no further complaints and that he had spoken regularly to the theatre teams he worked with about his practice. The Panel noted, however, that most of the character references provided by the Registrant pre-date the incidents at the Hospital and that only one reference-provider was aware of the HCPC allegations faced by the Registrant. In light of all the information before it, the Panel found insufficient evidence of remediation by the Registrant of his misconduct and, as such, the Panel could not exclude the risk of repetition of such misconduct by the Registrant.
158. In these circumstances, the Panel has concluded that the Registrant’s fitness to practise is impaired on the personal component.
159. The Panel next reminded itself of the public component in Cohen v General Medical Council  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 satisfied that, given the nature of the matters and their potential seriousness - namely managing risk and placing patients at unwarranted risk of harm; personal and professional accountability; and aggressive and, in some cases, threatening behaviour towards colleagues - public confidence in the ODP profession would be undermined if there were no finding of impairment in this case. The Panel was also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in the ODP profession if it did not find impairment in this case. ODPs should be in no doubt that this sort of behaviour is unacceptable.
160. The Panel therefore found, on the public component, that the Registrant’s fitness to practise is impaired.
161. The decision of the Panel that the Registrant’s fitness to practise is impaired, on both personal and public components, has the consequence that the Panel must consider the issue of sanction.
ORDER: The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date that this Order comes into effect (“the Operative Date”), you, Ihab Sharaf, must comply with the following Conditions of Practice:
1. You must provide the HCPC with certificates or other confirmation of any professional development undertaken in relation to risk management, effective communication and the management of conflict in the workplace.
2. You must produce a reflective piece setting out what you have learned from the incidents that gave rise to the HCPC hearing.
3. When working as an ODP, you must identify a named person (the "Named Person") who is a team leader or manager within the department at your place of work. The Named Person should monitor your behaviour and adherence to your employer's policies and procedures. For the avoidance of doubt, your practice does not require constant oversight.
4. The Named Person should confirm your adherence to policies and procedures, conflict management and communication with colleagues. This confirmation of adherence to policies, good communication with colleagues and appropriate management of conflict must be submitted to the HCPC no later than 5 working days before a Review hearing.
5. You must provide a copy of these Conditions of Practice to your Named Person.
6. You must inform the HCPC within 5 days whenever you take up any employment in the role of a registered ODP .
7. You must immediately inform the HCPC of any disciplinary proceedings or complaints identified by your employer.
8. You must inform the following parties that your registration is subject to these Conditions of Practice:
a) any organisation or person employing or contracting with you to undertake professional work;
b) any agency you are registered with or apply to be registered with (at the time of application); and
c) any prospective employer (at the time of your application).”
1. The Panel heard an application from the Presenting Officer for the Panel to impose an Interim Conditions of Practice Order on the Registrant’s registration for a period of 18 months to cover the appeal period. He submitted that the Interim Conditions of Practice Order should be in the same terms as the substantive Conditions of Practice Order that the Panel has imposed today.
2. The Registrant expressed his dissatisfaction with the Panel’s substantive decision. He said that he would not appeal the Panel’s decision due to financial constraints but that, “I feel like I am talking to myself” and, “This is not justice.” The Registrant made no specific comment in relation to the HCPC’s application at this final stage of the hearing.
3. The Panel heard and accepted the advice of the Legal Assessor. It had regard to paragraphs 133-135 of the Sanctions Policy and to the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.
4. The Panel recognised that its power to impose an Interim Order was discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Conditions of Practice 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 that the Registrant had engaged in behaviour towards colleagues that was aggressive and/or threatening: that he had not managed risk appropriately and had worked outside of his scope of practice; that the Registrant’s insight was not fully developed; and that there remained a risk of repetition of the misconduct.
5. The Panel decided to impose an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001 in the same terms as the substantive order, being satisfied that it was necessary for the protection of the public and was otherwise in the public interest to maintain confidence in this regulatory process. In reaching its decision to impose an Interim Order, the Panel had regard to the misconduct found proved, the resulting public protection concerns and the risk of repetition, as well as the full reasons set out in its decision for the substantive order. In the circumstances, the Panel was also satisfied that the risks were sufficient that a fair-minded and informed member of the public would expect such a restriction, and that public confidence in the profession and the regulatory process would be undermined were the Registrant allowed to practise unrestricted during the appeal period.
6. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.
7. If no appeal is made, then the Interim Conditions of Practice Order will be replaced by the Conditions of Practice Order 28 days after the decision is served on the Registrant.
History of Hearings for Mr Ihab Y A Sharaf
|Outcomes / Status
|Conduct and Competence Committee
|Interim Conditions of Practice
|Conduct and Competence Committee
|Conditions of Practice
|Conduct and Competence Committee
|Conditions of Practice