Miss Fiona M Watson
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As a registered Operating Department Practitioner (ODP33163) your fitness to practise is impaired by reason of misconduct and/ or health. In that:
- On or around 22 October 2019, you:
a. removed one or more of the medications at Schedule A from drug storage cupboards at Sunderland City Hospital (“the Hospital”):
i. without authority;
ii. for your own personal use;
b. self-administered one or more of the medications at Schedule A:
iii. on Hospital premises iv. while on duty as an Operating Department Practitioner.
2. Your conduct in relation to allegation 1(a) above was dishonest.
3. The matters set out in paragraphs 1 – 2 above constitute misconduct.
4. You have a physical and/ or mental health condition as set out in Schedule B.
5. By reason of your misconduct and/or health your fitness to practise is impaired.
The Allegation referred by the Investigating Committee
1. On 25 January 2022 a panel of the Investigating Committee determined that there was a case to answer in relation to the Allegation that is set out above. It is what is described in the HCPC fitness to practise process as a “dual allegation” because it is alleged that the Registrant’s fitness to practise is impaired by reason of the misconduct set out in Particulars 1 and 2 (hereafter “the misconduct allegation”) and also that her fitness to practise is impaired by reason of the health conditions particularised in Schedule B to the Allegation (hereafter “the health allegation”). The Conduct and Competence Committee has jurisdiction to consider a misconduct allegation, but not a health allegation. Conversely, the Health Committee can consider the latter allegation, but not one based on misconduct. It follows that at the “case to answer” stage, a decision had to be made as to which Committee the Allegation should be referred to, at least initially, to undertake the final hearing. The decision was made to refer the allegation to the Conduct and Competence Committee.
2. Prior to the hearing, the Panel was provided with a copy of an HCPC document called “Approach to dual allegations” that was revised in June 2021. It was also provided with a Skeleton Argument setting out the HCPC’s proposed approach to dealing with the mixed allegations in this case of misconduct and health. The Panel was satisfied that the Presenting Officer’s proposed approach was correct and consistent with the document. Accordingly, the approach of the Panel will be:
• To receive evidence in order to make specific findings about the contentions advanced by particulars 1 and 2 and Schedule A, that the Registrant removed the medication as specified, that her conduct in so doing was dishonest, and that she self-administered the medication whilst on duty.
• If it is decided that one or more of those allegations have been proved by the HCPC, then the Panel will make a specific finding as to whether that conduct amounts to the statutory ground of misconduct and currently impairs the Registrant’s fitness to practise.
• If impairment of fitness to practise is established, the Panel will go on to decide what, if any, sanction that finding requires.
• The Panel should make no specific finding about any element relating to the health allegation.
• It would, however, be appropriate for the Panel to hear evidence relating to the health matters, but only to the extent that it would be relevant to the context of the decisions to be made concerning the misconduct allegations.
• As the Investigating Committee found a case to answer in relation to the health allegation, at some stage some direction will be required in relation to it. However, no decision should be made about what should happen about the health allegation until the misconduct allegation has been fully determined.
Service of the Notice of hearing
3. 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 30 September 2022 to her registered email address; the Panel has seen confirmation that the email was delivered to the Registrant’s email address. The Notice contained the dates and start times of the hearing and the fact that it would be held remotely via video conference.
4. 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 the Registrant has been served with proper notice of this hearing.
Proceeding in the Absence of the Registrant
5. The Presenting Officer, on behalf of the HCPC, applied to proceed with the hearing in the Registrant’s absence. The Presenting Officer provided the Panel with a bundle of documents detailing the HCPC’s attempts to communicate with the Registrant and submitted that it had made significant efforts since the beginning of 2022 to make contact with the Registrant, at both an email address and a postal address. The Presenting Officer told the Panel that the Registrant has not engaged at all with the HCPC, either during this calendar year or previously.
6. The Presenting Officer invited the Panel to proceed, submitting that it would be a “fruitless exercise” to adjourn this scheduled hearing to allow the Registrant’s attendance on a future occasion. In addition to the fact that the HCPC has taken all reasonable steps to serve the Notice of Hearing upon the Registrant as required by the Rules, she said that the allegations are of some age, dating back to 2019; that the HCPC’s five witnesses are scheduled to attend to give live evidence; that the Registrant has not requested an adjournment of the hearing; that she had waived her right to attend; and that it was in the public interest to proceed in the Registrant’s absence.
7. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note 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)  1 AC 1HL and GMC v Adeogba  EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence under Rule 11 is not unfettered and must be exercised with the utmost care and caution, with the fairness of the hearing at the forefront of its mind.
8. The Notice of Hearing informed the Registrant of the dates and details of this Conduct and Competence Committee hearing, and of her right to attend and be represented. She was also advised of the Panel’s power to proceed with the hearing in her absence if she did not attend and of how she could apply for a postponement of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find her fitness to practise to be currently impaired. The Registrant had not requested a postponement or adjournment of today’s hearing; indeed, there has been no communication from the Registrant or any representative at all.
9. The Panel considered that the HCPC had gone to significant lengths to encourage the Registrant to engage with these proceedings. It was mindful of the previous adjournment in this matter in August 2022, which was granted by the Panel to ensure fairness to the Registrant, but the Registrant had still not engaged at all. Taking all the circumstances into account, the Panel concluded that it was unlikely that another adjournment would secure the Registrant’s attendance on a future date. The Panel took the view that the Registrant had voluntarily waived her right to attend, that adjourning this hearing would serve no useful purpose and that it was in the Registrant’s own interests that the case proceeds today without further delay.
10. The Panel was mindful that it must also consider fairness to the HCPC, whose five witnesses were ready to give evidence at the hearing this week. The Panel took account of the public interest in the expeditious resolution of regulatory allegations, the fact that the allegations in this case are 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.
11. The Panel considered that there was some disadvantage to the Registrant in proceeding in her absence as she would not be able to challenge the evidence put forward by the HCPC or give her own evidence. In the Panel’s judgment, however, this could be mitigated. The Panel was mindful that it should explore any inconsistencies in the evidence which it identified and 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 herself from the hearing, waive her rights to attend and be represented.
12. In conducting the balancing exercise between the Registrant’s interests and the wider public interest, the Panel was satisfied that the balance falls in favour of the hearing proceeding today. It would draw no adverse inference from the Registrant’s absence in its findings of fact.
Conducting the hearing partly in private
13. Matters relating to the health, private life and sensitive personal circumstances of the Registrant would be referred to in the hearing. Rule 10(1)(a) enables all or part of the hearing to be held in private for the protection of the private life of the Registrant, a complainant, a witness or a patient.
14. Having accepted the advice of the Legal Assessor and having had regard to the HCPTS Practice Note on Conducting Hearings in Private, the Panel determined that any references to the Registrant’s health, or to particularly sensitive personal or family matters, should be heard in private and the determination marked accordingly. All other parts of the hearing would be in public session.
15. The Panel received a core bundle of documentation from the HCPC running to 533 pages; and a case summary of 6 pages.
16. The Registrant has not engaged with the HCPC during the course of its investigation, so the Panel had no documents submitted by or on her behalf for the purposes of the hearing.
17. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP). At the time of the incidents giving rise to these allegations, the Registrant was employed by the South Tyneside and Sunderland NHS Foundation Trust (the Trust) as a Band 5 ODP, working at Sunderland City Hospital (the Hospital). The Registrant primarily worked on night duty as an ODP, and her primary responsibilities involved assisting anaesthetists to ensure the safety of patients during anaesthesia and preparing anaesthetic rooms and operating theatres.
18. On 1 November 2019 the HCPC received a referral from Witness DJ, a Matron at the Hospital. In that referral, Witness DJ explained that the Registrant had been suspended due to allegations that now form the basis of the particulars of the Allegation that are before the Panel.
19. The Registrant worked the night shift from 19:45 on 21 October 2019 to 08:15 on 22 October 2019. It is said that the Registrant gave direct patient care whilst on that shift to a patient who had undergone a procedure under local anaesthetic. The Registrant’s role involved patient monitoring, including recording the patient’s blood pressure and oxygen saturation levels during the procedure.
20. Before the Registrant finished her shift in the morning of 22 October 2019, she was noted by colleagues as looking pale and unwell, that she was speaking slowly, and that she had said she had felt sick during her night shift.
21. During the course of the subsequent day shift that followed, several members of staff working within the Theatres area, who had either been working on the same shift as the Registrant or the shift following, found a number of items in toilets on the unit which raised concerns that drugs had been self-administered by someone within the Theatres department. The items included an empty ampoule of Cyclizine, the lid of an ampoule of Diazemule, used dressings and swabs, a used butterfly needle, sterets, and splashes of blood on the floor, found in the toilet on C level opposite theatre 7; an empty Diazepam ampoule, used dressings for intravenous cannulation, needles found in the toilet in the D level theatre suite reception; a used syringe and needle, a venflon used for intravenous cannulation, opened and used Diazepam ampoules, Midazolam ampoules, a blood stained needle and 50ml syringe wrapped in paper towels found in the toilet on the C level theatre suite holding bay; and a vial of Diazemule in the toilet in the C level female changing rooms.
22. Once the items had been recovered, staff at the Hospital checked batch numbers on the drug ampoules, which enabled them to confirm the medication was taken from the Hospital’s stock which had been stored on D level.
23. In light of the above, a decision was made that the Registrant should be suspended. When the Registrant attended on the evening of 22 October 2019 for her next shift, she was asked to speak to Witnesses SB and DJ. SB asked the Registrant if she had taken medication that night as she was slurring her words. The Registrant said that she had taken Tramadol, for which she had a prescription. The Registrant was told she was going to be suspended due to concerns that she had removed medication from the Hospital’s stock for personal use and was asked if she had anything to say. Witness DJ recalls that the Registrant admitted to taking the medications. She said that she used Cyclizine during the shift as she was feeling sick. Following this meeting, the Registrant was sent home in a taxi as Witness DJ was concerned about her ability to drive.
24. An internal investigation at the Trust began on 31 October 2019 and concluded in April 2021. The Registrant did not engage with that investigation. The Registrant has not engaged with the HCPC either during the course of its investigation.
The HCPC’s evidence
25. The HCPC called five 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 and questions by the Panel. The witnesses called by the HCPC were:
• Witness DJ, at the time the Matron for Endoscopy, Intensive Care, Theatres, Pre-Assessment, Day Surgery and Pain Services. She met with the Registrant at the beginning of the Registrant’s night shift on 22 October 2019.
• Witness SB, at the time a Theatre Manager at the Hospital, who met with the Registrant at the beginning of the Registrant’s night shift on 22 October 2019 along with Witness DJ.
• Witness DS, at the time the Team leader for Theatres, who came on shift in the morning of 22 October 2019, when the Registrant was finishing her shift.
• Witness LA, at the time a Band 5 staff nurse at the Hospital, who was on duty on the same night shift as the Registrant on 21-22 October 2019.
• Witness CG, at the time the Matron in the Rehabilitation and Elderly Medicine department at the Hospital. CG had no direct personal knowledge of the alleged incidents but led the investigation at the Trust.
26. In the interests of fairness and balance, the Legal Assessor asked questions of the HCPC witnesses that the Registrant might have asked if she had attended the hearing.
Application to adduce the evidence of Witness DT as hearsay evidence
27. The Presenting Officer applied for the evidence of Witness DT to be adduced as hearsay evidence. Witness DT was, at the time of these allegations, a domestic cleaner at the Hospital. She reports having found a needle in the sink in the D level patient toilet, which she states that she did not touch and that she reported it immediately to Witness SB, Theatres Manager. The Presenting Officer told the Panel that Witness DT has provided a signed witness statement during the course of the HCPC’s investigation; but she has since informed the HCPC, via Witness DJ, that she does feel able to participate in the hearing because this would be “too much for her”. The Presenting Officer said that despite Witness DJ exploring additional support measures with her, Witness DT remained resolute that she would not be able to participate in the hearing.
28. The Presenting Officer drew the Panel’s attention to Rule 10 and to the principles of hearsay evidence from the case of Thorneycroft v NMC  EWHC 1565 (Admin). She submitted that Witness DT has provided a good and cogent reason for her non-attendance, that her evidence (contained in the signed witness statement and one supporting exhibit) was neither sole nor decisive in relation to the allegations and that it would be fair for the Panel to admit the evidence.
29. The Registrant had not responded in any way to this proposal.
30. 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 stressed to the Panel that all cases are fact-sensitive, and the test is the requirement of fairness. She referred the Panel to the hearsay principles articulated by the cases of R (Bonhoeffer) v GMC  EWHC 1585, Thorneycroft and NMC v Ogbonna  EWCA Civ 1216 and Razzaq v Financial Services Authority  EWCA Civ 770 as follows:
• 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.
• 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.
• 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.
• The Panel should balance the probative value and prejudicial effect of admitting each piece of the evidence.
31. The Panel had regard to Rule 10(1)(b) and (c) and conducted a careful balancing exercise, as set out in the case of Thorneycroft, in coming to its decision. Firstly, the Panel considered that Witness DT, who had provided a signed witness statement, had given a cogent reason for her non-attendance. Secondly, the Panel 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 accused has had no chance of cross-examining. The Panel was of the view that Witness DT’s evidence was not sole and decisive in relation to the allegations and that it was corroborated in part by Witness SB, to whom she had reported what she had found and whom the Panel had been able to ask questions of. The Panel concluded that Witness DT’s statement contained relevant evidence upon which it could properly rely, that it had probative value and that, on balance, it was fair to admit the statement into evidence as hearsay evidence. The Panel would decide in due course what weight could properly be attributed to it, once the Panel had heard and evaluated all the evidence before it.
Legal Advice on facts
32. The Panel received and accepted the advice of the Legal Assessor. The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that it occurred. The burden of proof was upon the HCPC which brought the allegations; it was not for the Registrant to prove her innocence.
33. Dishonesty was alleged in respect of factual particular 2 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.”
34. 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 the Registrant might have done something, the question is which explanation is more likely?
Decision on Facts
35. The Panel considered all of the evidence in this case and heard the submissions of the Presenting Officer. 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.
36. The Registrant’s absence from the hearing necessarily resulted in there being no opportunity for the Panel to assess her account of events. Further, the information before the Panel is that the Registrant did not engage in any meaningful way with the Trust’s investigation and has not engaged at all with the HCPC’s investigation. The fact of her absence and total lack of engagement at any stage did, of course, mean that there was no evidence from her which was capable of contradicting, undermining, or explaining the evidence presented by the HCPC witnesses, but the Panel did not treat the Registrant's absence from the hearing and, accordingly, her failure to give evidence, as any support for the HCPC's case.
37. The Panel made the following findings:
Allegation 1 - Found proved in its entirety
1. On or around 22 October 2019, you:
a) removed one or more of the medications at Schedule A from drug storage cupboards at Sunderland City Hospital (“the Hospital”):
i. without authority;
ii. for your own personal use;
38. The starting point for the Panel in relation to its consideration of the factual allegation at 1(a) was that there is no suggestion that any of the witnesses saw the Registrant remove the medications from drug storage cupboards at the Hospital.
39. The Panel first considered the stem of factual particular 1(a) and whether it was satisfied, on the balance of probabilities, that the medications listed at Schedule A were from drug storage cupboards at the Hospital and whether it was the Registrant who had removed them on 22 October 2019.
40. The Panel was satisfied, on the basis of all the evidence provided to it, that the Registrant was on duty as an ODP at the Hospital on the night shift of 21/22 October 2019, assigned to the emergency theatre which was on C level.
41. The Panel heard and accepted what it considered to be clear evidence that the drugs listed at Schedule A were Hospital stock. In particular, Witness DS’s evidence was that the lid of the used Diazepam vial that she found matched the vials contained in the drugs cupboard on D level and that several Diazepam vials were missing from boxes. Witness DS also confirmed that the vial of Cyclizine came from Hospital stock, because the serial numbers on the vial matched the vials of Cyclizine in the storage cupboards. She referred to the branding and barcodes also being identical. In addition, Witness SB confirmed that the Cyclizine, Diazepam and Midazolam were all identified as having come from theatre stock.
42. The Panel accepted the evidence from all of the witnesses that only one operation in theatre took place during the night shift of 22 October 2019 - a procedure under local anaesthetic in the emergency theatre on C level. Witness LA gave clear evidence that his procedure did not require any medication except for a local “anaesthetic jelly”, which would have been administered by the urology doctor. The Panel accepted the evidence of Witness SB (supported by the primary evidence in the bundle of the ID Badge Access Report documentation) that, despite no medications being required for the only operation to be performed that night, the Registrant had accessed the cabinet in the Team Leader’s office on D level at 12.18am which was during her night shift, and that this cabinet contained the keys for all of the drugs cupboards on D level. The Panel further accepted the evidence that it was drugs from the D level cabinets that were subsequently discovered by Witness DS.
43. Witness DJ gave consistent evidence, which the Panel considered to be clear and balanced, that the Registrant had made admissions to removing the medications when she met with DJ and SB on the evening of 22 October 2019. In her written and oral evidence, Witness DJ said that she specified to the Registrant that the allegations were that she had removed ampoules of three named medications - Cyclizine, Midazolam and Diazepam - from theatres and had self-injected. Witness DJ said, “I asked [the Registrant] if she had anything to say about the allegations. [The Registrant] responded that she wanted to be honest with us and that she had taken the drugs for personal use to self-medicate. The Registrant said that she felt very sick which is why she took cyclizine.” The Panel noted that this admission by the Registrant was set out in the suspension letter that was issued to her on 23 October 2019 and Witness CG, the Trust’s investigating officer, confirmed to the Panel that the Registrant did not at any stage seek to challenge the accuracy of the record of the admissions that she made.
44. The Panel was therefore satisfied that it was more likely than not that the Registrant removed one or more of the medications set out in Schedule A from drug storage cupboards at the Hospital whilst on shift on 22 October 2019. It next considered whether she had done so without authority (as alleged at particular 1(a)(i)) and/or for her own personal use (as alleged at 1(a)(ii)).
45. The Panel noted the clear and consistent evidence of each of the five witnesses that the only purpose for which medications could be removed from the drug storage cupboards at the Hospital was for the purposes of administering drugs to patients in theatre procedures. It also accepted Witness SB’s evidence that “ODPs have access to the key cupboard but are only permitted to get the key for their designated theatre when a case has come in… there were no cases on D level that night and, as such, there was no reason for [the Registrant] to have accessed the cupboard.” The Panel was satisfied that the HCPC had established, on the balance of probabilities, that the Registrant did not, in the particular circumstances of her night shift on 22 October 2019, have any legitimate reason or authority to remove the medications from drug storage cupboards at the Hospital.
46. Finally, the Panel considered whether the Registrant had removed the medications for her own personal use. In addition to the particular circumstances of the night shift of 21/22 October 2019 – specifically that no operations took place that required medications to be removed from the storage cupboards - the Panel took into account the Registrant’s admissions at local level to Witnesses DJ and SB that she had taken the drugs to self-medicate. In particular, the Registrant stated that she self-administered the Cyclizine because she had felt sick.
47. For all of the reasons set out above, the Panel was satisfied that the HCPC had established to the required standard that the Registrant removed one of more of the medications Cyclizine, Diazepam, Diazemule and/or Midazolam from drug storage cupboards at the Hospital without authority and for her own use. Accordingly, the Panel found Particular 1(a)(i) and (ii) proved.
Allegation 1(b) – Found proved in its entirety
1. On or around 22 October 2019, you:
b) self-administered one or more of medications at Schedule A:
i. on Hospital premises
ii. while on duty as an Operating Department Practitioner.
48. Similarly to 1(a), the starting point for the Panel in relation to its consideration of the factual allegation at 1(b) was that there is no suggestion that any of the witnesses saw the Registrant self-administer the medications on Hospital premises. In consideration of the stem of the charge, the Panel, however, relied upon the Registrant’s admissions at local level in that she is recorded as having said that she had “taken the drugs for personal use to self-medicate” and that she had taken Cyclizine because she felt very sick whilst on shift.
49. The Panel was also of the view that it could properly rely upon the consistent evidence provided to it that drugs had been administered at various locations on Hospital premises that night. Various members of hospital staff had found empty/broken drug vials/ampoules (of Cyclizine, Diazepam, Diazemule and Midazolam) and associated drugs paraphernalia (including used needles, syringes and dressings) in four different locations in the theatre suites, on both C and D levels, along with splashes of blood on the walls or floor of some of those locations, that was described as being “fresh” when it was discovered. These items were found immediately after the Registrant’s night shift and this evidence was documented clearly by Witness CG in the Trust’s investigation report which was provided to the Panel.
50. Further, a number of witnesses spoke about seeing the Registrant coming out of the patient holding bays on C level and going into the changing rooms. The Panel accepted Witness LA’s evidence that she saw the Registrant going into the toilet opposite theatre seven on C level. The Panel noted that the written and oral evidence around where the Registrant was seen on the morning of October 2022 aligned with the evidence of where the physical evidence of drugs paraphernalia was recorded as being found.
51. In addition, the Panel accepted the evidence of another member of staff, contained in a written statement that was provided for the Trust’s own investigation, that a car key was discovered inside the toilet brush holder in the female changing rooms. It was detailed in the suspension letter issued to the Registrant that the Registrant had confirmed that the key was hers and that it was returned to her by Witnesses DJ and SB. This was never challenged by the Registrant.
52. On the basis of all of the evidence provided to it, the Panel was satisfied that it was more likely than not that the Registrant had self-administered one of more of the medications as set out at Schedule A on Hospital premises and, accordingly, it found particular 1(b)(i) proved.
53. The Panel was in no doubt that the Registrant was on duty as an ODP on the nightshift of 21/22 October 2019 and was therefore satisfied that the HCPC had established, to the required standard, that the Registrant self-administered one or more of the medications while she was on duty. It also found particular 1(b)(ii) proved.
Allegation 2 – Found proved
2. Your conduct in relation to allegation 1(a) above was dishonest.
54. The Panel considered whether the Registrant’s conduct in respect of factual particular 1(a) (removing the medications from drug storage at the Hospital without authority and for her own personal use) was dishonest. It accepted the Legal Assessor’s advice on the correct application and interpretation of the decision in Ivey v Genting Casinos . The Panel was mindful that an allegation of dishonesty is serious and that it should look for cogent evidence before being satisfied on the balance of probabilities.
55. The Panel first considered the first limb of the Ivey test, namely what the Registrant knew or believed about the permissibility of her actions when she removed the medications from Hospital stock for her personal use. The Panel accepted the evidence of the five live witnesses that that there were no circumstances when it was permissible for a member of staff to take medication from the drugs storage cupboards at the Trust for their own use. Witnesses SB and DJ confirmed that this was widely known and understood within the theatres department. The Panel determined that the Registrant would have also known this. In the Panel’s view, the fact that the Registrant accessed the drugs storage cupboard on D level (as opposed to the drugs storage cupboard on C level, where she was working) was indicative that she wanted to conceal her actions.
56. The Panel also took into account the evidence of Witnesses DJ and SB in relation to the Registrant’s reaction when confronted by them about taking the medication. DJ and SB both recalled that the Registrant immediately became very upset and asked whether she would lose her job and be reported to her regulator. [Redacted]
57. The Panel was satisfied that the only explanation was that the Registrant took the medication for her own use, knowing that she was not permitted to do so. This was dishonest and she knew it.
58. Having established the Registrant’s knowledge or belief as to the facts at the time of this incident, the Panel moved on to decide whether her conduct was dishonest when viewed objectively by an ordinary, decent person. It was in no doubt that, applying these standards, the Registrant’s conduct was dishonest.
59. The Panel therefore finds the allegation of dishonesty proved on the balance of probabilities.
Decision on the Statutory Ground of Misconduct
60. 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 her 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.
61. The Panel took into account the Presenting Officer’s submissions. The Registrant had not provided any written representations in relation to the statutory ground of misconduct or impairment as alleged by the HCPC.
62. The Legal Assessor referred to the Panel to the guidance on misconduct in Roylance v GMC (No 2)  1 AC 311, that misconduct “is a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” The Panel accepted the Legal Assessor’s advice that misconduct is qualified by the word “serious”; it is not just any professional misconduct that will qualify. The Legal Assessor reminded the Panel that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards, would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved.
63. In reaching its decision on misconduct, the Panel also had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) which set out the standards that an ODP must continue to meet throughout their professional career. It concluded that in acting in the way found proved in particulars 1 and 2, the following standards were engaged in this case and were breached by the Registrant:
6. Manage risk
Identify and minimise risk
6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2 You must not do anything, or allow someone else to do anything, which could put the health and safety of a service user, carer or colleague at unacceptable risk.
9. Be honest and trustworthy
Personal and professional behaviour
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
64. 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. The Panel was in no doubt, however, that each of the Registrant’s actions fell significantly short of the conduct that would be expected of an ODP and were sufficiently serious to reach the threshold of misconduct.
65. Focusing firstly on the actions found proved in particular 1, the Panel determined that the Registrant was required, pursuant to her role as an ODP and her contract of employment, to act in accordance with Trust policies and indeed HCPC Standards. Contrary to those requirements, instead of taking steps to identify and minimise the risk of harm to patients and colleagues, the Registrant’s actions actually gave rise to a risk of harm. The Panel accepted the evidence of Witnesses DJ and CG, both senior Matrons within the Trust, that the Registrant’s self-administering of the drugs in question could have had serious implications for patient care, placing patients at risk of harm by self-administering one of more of the medications whilst on duty as an ODP. In particular, the Panel was concerned that the Registrant’s ability to respond to an emergency risked being compromised. The Panel also determined that the Registrant placed her colleagues and potentially members of the public at risk of harm by leaving blood spatters on the walls and floors of the toilet cubicles, and by leaving sharp items, such as needles and broken glass vials, in various locations in the Hospital. The Panel was mindful of Witness CG’s evidence that there is a clear Trust policy in place for the disposal of sharp items in the theatres department, specifically that all needles and butterflies must be disposed of in sharps boxes and be disposed of in theatre waste. In the Panel’s view, the Registrant would, in her role as an ODP, have been aware of this; yet she chose not to dispose of these items safely and left the paraphernalia that she had used to self-administer drugs in such a way that would cause a risk of harm.
66. In relation to particular 2, the Panel has found dishonesty proved, which occurred on shift in the course of the Registrant’s employment. This was, without doubt, serious misconduct committed by the Registrant who was in a position of trust and allowed access to the drugs cupboard in order to source medication for patients undergoing procedures at the Hospital.
67. In the Panel’s view, fellow registrants would consider the Registrant’s behaviour, both in causing risk and acting dishonestly while on shift as an ODP, to be nothing short of deplorable. The Panel was also in no doubt that the Registrant's actions had the clear potential to undermine public confidence in the profession and it found that to characterise them 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.
Decision on impairment
68. The Panel, having determined that the facts found proved amounted to misconduct, went on to consider whether, as a result of that misconduct, the Registrant’s fitness to practise is currently impaired.
69. The Panel heard submissions from the Presenting Officer that there is no evidence of remediation in this case, that the Registrant has not addressed her conduct and that the risk of repetition of similar conduct is high. Specifically, the Presenting Officer submitted that the Panel might have very real concerns that the conduct would be repeated, given that, having self-administered the drugs on Hospital premises on the nightshift of 21 October 2019, the Registrant then turned up for her shift the following evening in what is described by Witnesses DJ and SB as an unfit state. The Presenting Officer submitted that the Registrant’s fitness to practise was and remains impaired.
70. 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  EWHC 927 (Admin). She reminded the Panel that it should consider the Registrant’s level of insight, any 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.
71. 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  EWHC 297 Admin. In particular, the Panel considered whether its findings of fact showed that the Registrant’s fitness to practise is impaired in the sense that he:
‘a. Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.’
72. The Panel’s duty is not only to protect service users but to maintain public confidence in the ODP profession and the regulatory process, which includes the declaring and upholding of proper standards of conduct and behaviour. ODPs occupy a position of privilege and trust in society and are expected at all times to act professionally and with integrity.
73. The Panel first considered its findings in light of the factors indicating that an ODP’s fitness to practise might be impaired as set out by Dame Janet Smith in the Grant case, as set out above. The Panel quickly determined that all four factors set out by Dame Janet Smith - limbs (a), (b), (c) and (d) - were engaged in this case. It was satisfied that the Registrant’s conduct on shift placed patients (and indeed her colleagues and members of the public) at risk of harm; that her conduct breached the fundamental tenets of professionalism and integrity and that she abused her position of trust in accessing and taking medication that was not for her; that her conduct brought the ODP profession into disrepute; and that she acted dishonestly.
74. The Panel carefully considered the personal component of impairment and considered the Registrant's level of insight, whether her misconduct was capable of remediation, whether it had been remedied and the risk of repetition.
75. In respect of the level of insight that the Registrant has shown into her misconduct, its seriousness, and its consequences, the Panel was of the view that the Registrant has thus far shown no insight or remorse. The information before the Panel is that the Registrant did not engage with the Trust’s investigation or in a meaningful way with Occupational Health at the Trust, despite significant and repeated efforts to support her; she has also not engaged at all with the HCPC. Although the Registrant appeared to accept immediately that her actions were wrong when confronted by Witnesses DJ and SB on the evening of 22 October 2019, and she expressed concern about the repercussions for her in terms of her job and whether the HCPC would be informed, the Panel has not been provided with any evidence of reflection on the Registrant’s part or any evidence that demonstrates the Registrant’s understanding of how her actions could have impacted on patient safety, on her colleagues, on the wider public, and on public confidence in her profession. The Panel was mindful that there is a spectrum of dishonest behaviour and considered that taking medications from Hospital drug storage cupboards for one’s own personal use, whilst on shift as an ODP and responsible for the care of patients, lies on the serious end of that spectrum.
76. The Panel considered that, in theory, such misconduct is capable of remediation through meaningful reflection. However, the Panel has not been presented with any evidence that the Registrant has remedied her misconduct or attempted to do so. Given the absence of this evidence, the Panel could not therefore have confidence, at this stage, that her misconduct would not be repeated. Accordingly, the Panel found the Registrant’s fitness to practise to be currently impaired on the personal component.
77. 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.”
78. Turning to the public interest component of impairment, the Panel was satisfied that the Registrant's misconduct would substantially undermine the trust and confidence the public could have in the profession. It was of the view that a well-informed and reasonable member of the public would rightly be concerned were an ODP who had been found to have been dishonest, be in a position to practise on an unrestricted basis. 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.
Decision on Sanction
79. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of the Presenting Officer.
80. In answer to a question from the Legal Assessor around the Registrant’s personal circumstances at the time of the allegations and, in particular, any contextual evidence regarding the Registrant’s health at that time, the Presenting Officer confirmed to the Panel that there was no evidence that the Registrant was subject to an Occupational Heath referral in or around October 2019. In fact, the Occupational Health report following this incident stated that there did not appear to be an underlying medical condition that would impact upon the Registrant’s performance at work.
81. The absence of and lack of engagement by the Registrant meant that there were no submissions on sanction, or any references/testimonials, provided by her or on her behalf.
82. The Panel has accepted the advice of the Legal Assessor who referenced the cases of Raschid and Fatnani v GMC  1WLR 1460; Lusinga v NMC  EWHC 1458 (Admin); Watters v NMC  EWHC (Admin) 1888; Parkinson v NMC  EWHC 1898 (Admin); and Atkinson v GMC  EWHC 3636 (Admin). The Panel was reminded that a sanction is not to be punitive, although it may have a punitive effect, and bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be. The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public and the wider public interest. As the finding is one of misconduct, the entire sanction range, up to and including, a striking off order is available.
83. The Panel took into account the HCPC Sanctions Policy (SP) and was mindful of its over-arching duty (a) to protect, promote and maintain the health, safety and wellbeing of the public; (b) to promote and maintain public confidence in the professions regulated by the HCPC; and (c) to promote and maintain proper professional standards and conduct for members of those professions.
84. The Panel accepted the submission of the Presenting Officer that at the time of the incident in 2019 there was no evidence that the Registrant’s health was impacting on her work.
85. The Panel first identified any factors that could be said to be in favour of the Registrant. It considered the following to be the only mitigating feature in this case:
• The incidents occurred when the Registrant was facing challenging personal circumstances, telling Witnesses DJ and SB on the night of the shift in question (but only when she was confronted) that she could not cope.
86. The Panel considered the aggravating factors in this case to be:
• the misconduct was a breach of trust towards her employer and an abuse of the Registrant’s professional position in the course of her employment;
• patients were put at risk of harm;
• the Registrant has shown no insight or remorse in respect of the gravity of her actions and its possible consequences to patients in her care, to her colleagues, to members of the public, and to her profession;
• there is no evidence of any remediation and, as such, there is an ongoing and significant risk of repetition;
• the Registrant did not engage in the Trust investigation and has not engaged at all with the HCPC.
87. It was clear to the Panel that the aggravating features of the case far outweighed the mitigating features. The Panel had regard to the section on Dishonesty in the SP, particularly paragraphs 56 to 58. Paragraph 57 states: “Dishonesty, both in and outside the workplace, can have a significant impact on the trust placed in those who have been dishonest, and potentially on public safety. It is likely to lead to more serious sanctions. The following are illustrations of such dishonesty: … using medicines meant for service users…” Paragraph 58 goes on to provide that panels should bear in mind that “there are different forms and different degrees of dishonesty, that need to be considered in an appropriately nuanced way.” One of the factors set out was whether the Registrant took a passive or active role in the dishonesty and whether she had made an early admission in relation to that dishonesty. In this case, the Registrant’s role was wholly active and, although she appears to have admitted to Witnesses DJ and SB at the outset that she had taken the medication, there was no suggestion that she admitted that this was dishonest behaviour on her part.
88. With these factors in mind, the Panel first considered whether its findings required the imposition of any sanction. The conclusion of the Panel was that a sanction is required not only because of the risk of repetition with the attendant risk of future harm to patients, but also because not to impose a sanction would diminish public confidence in the ODP profession and regulation of it.
89. The Panel then considered a Caution Order. The SP identifies that a Caution Order may be an appropriate sanction for cases where the issue is isolated, limited or relatively minor in nature; there is a low risk of recurrence; the registrant has shown good insight and undertaken appropriate remediation; meaningful practice restrictions cannot be imposed; and suspension from practice would be disproportionate. The Registrant’s misconduct in this case was not minor in nature. The Panel considered the conduct to be very serious and there had been no appreciable insight or any remediation by the Registrant. The Panel noted that, in light of the severity of the conduct and there being a risk of repetition of the behaviour, a Caution Order would not be appropriate or sufficient to address either public protection concerns, or the public interest.
90. The Panel next considered a Conditions of Practice Order. Such an order will be appropriate where a Panel is confident a registrant will adhere to the conditions, “is genuinely committed to resolving the concerns raised and the panel is confident they will do so.” The SP indicates that conditions of practice are less likely to be suitable in cases of dishonesty. The Panel was satisfied that, in light of the dishonesty found proved, there are no conditions of practice that would address the identified misconduct in this case. The Panel further concluded that such an order is not appropriate because the history of the Registrant’s total lack of engagement in this fitness to practise process did not give the Panel the necessary degree of confidence that, even if conditions of practice could be formulated, they would be complied with.
91. The Panel next considered a Suspension Order, acknowledging that it would provide public protection for the duration of the period of suspension. It noted, on the basis of the SP, 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 starting point for the Panel is that the matters found proved are very serious. This was a breach of trust and active deception on the Registrant’s part in the course of her employment, involving her removing medication from Hospital stock and self-administering it in three different places in the Hospital; causing a risk of patient harm and, further, a risk of harm to colleagues and members of the public, as already explained. The Panel has found that, in the absence of any evidence from the Registrant of insight, remorse and remediation, there is a risk of repetition of similar conduct by her. The Panel has concluded that the HCPC and its external lawyers, Capsticks LLP, have gone above and beyond in their numerous communications with the Registrant over an extended period, trying to encourage her participation in these proceedings. The Panel was of the view that a suspension order might be thought to be appropriate for a case such as this, were there to be substantial grounds for believing that the Registrant would engage in the process and be offered an opportunity to demonstrate full insight and remediation in respect of her past misconduct and dishonesty. The Panel, however, having given careful thought to the combination of the severity of the Registrant’s misconduct, the numerous aggravating features it had identified, and the fact of her total lack of engagement, decided that the imposition of a suspension order was neither appropriate nor proportionate. The public interest would not be served, and public confidence would not be advanced, by the making of a suspension order that would have no positive effect.
92. Having rejected a suspension order, the Panel arrived at the conclusion that a Striking off Order should be imposed. It noted the SP guidance that a striking off order is a sanction of last resort for, amongst other matters, serious and deliberate acts involving dishonesty, or abuse of a registrant’s professional position, and is likely to be appropriate where the registrant lacks insight or is unwilling to resolve matters. Each of those issues identified is prevalent in this case. The shortcomings identified are very serious, are liable to be repeated with an ongoing risk of harm and, in the absence of any desire by the Registrant to address them in the future, the Panel had no confidence that the risks would be diminished. The Panel was therefore satisfied that a Striking off Order is appropriate and proportionate in this case.
93. 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. However, the Panel determined that the protection of the public and the wider public interest outweigh those of the Registrant in this regard.
94. The Presenting Officer confirmed to the Panel that as it has made a Striking Off Order in this case in respect of the primary allegation of misconduct, the secondary allegation around the Registrant's health will now fall away (unless the Registrant successfully appeals this substantive order). The Presenting Officer referred the Panel to the HCPC Skeleton Argument of 25 August 2022 that was sent to the Registrant, which explained this position.
95. This concludes this determination.
Order: The Registrar is directed to strike the name of Miss Fiona Watson from the Register from the date this Order comes into effect.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Reasons for making the interim order:
1. The Panel heard an application from the Presenting Officer to cover the appeal period by imposing an 18-month interim suspension order on the Registrant’s registration. She submitted that such an order is necessary to protect the public and is otherwise in the public interest.
2. The panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the SP and to Paragraphs 3.3 and 3.4 of the HCPTS Practice Note on Interim Orders (June 2022), which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.
3. The Panel first considered whether it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant.
4. The Panel concluded that it was appropriate to consider the application in the absence of the Registrant for the following reasons:
• The Registrant was informed by the notice of hearing letter dated 30 September 2022 that, in the event of the Panel imposing a sanction that restricts her right to practise (which would include making a striking off order), it may also impose an interim order which would suspend or otherwise restrict her right to practise with immediate effect.
• The Panel concluded that the information contained in the letter dated 30 September 2022 afforded the Registrant an opportunity of appearing and being heard on the issue whether an interim order should be made. Accordingly, Article 31(15) of the Health Professions Order 2001 was satisfied and, subject to concluding that the matter was appropriate to be considered in the Registrant’s absence, the Panel had jurisdiction to consider the matter.
• As has been noted in the body of this determination, the Registrant has not responded to any communications from the HCPC.
• In these circumstances the Panel concluded that the clear public interest in permitting the HCPC to make an application for an interim order outweighed the absence of the Registrant, with the effect that the substance of the matter should be considered at the present time.
5. The Panel approached the application by acknowledging that the default position provided for by the relevant legislation is that there will be no restriction on a Registrant’s ability to practise while their appeal rights against the making of a substantive sanction remain outstanding. It follows that positive reasons are required to justify the making of an interim order.
6. The Panel decided to impose an interim order under Article 31(2) of the Health Professions Order 2001. It has had regard to the nature and gravity of the conduct it has found proved. In the judgment of the Panel, the risk of repetition identified in the substantive decision and the associated risk of harm that could result from repetition mean that an interim order is necessary to protect members of the public. It is also required in the wider public interest. The Panel was in no doubt 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.
7. The Panel considered whether there were conditions of practice that could be imposed on an interim basis that would sufficiently address the identified public protection and public interest considerations. The conclusion of the Panel was that interim conditions of practice would be neither appropriate nor workable for the same reasons as set out in the substantive determination.
8. The Panel determined that an interim suspension order is required with immediate effect. 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.
History of Hearings for Miss Fiona M Watson
|Date||Panel||Hearing type||Outcomes / Status|
|11/11/2022||Conduct and Competence Committee||Final Hearing||Struck off|
|17/08/2022||Conduct and Competence Committee||Interim Order Review||Interim Suspension|
|19/05/2022||Conduct and Competence Committee||Interim Order Review||Interim Suspension|
|22/02/2022||Investigating Committee||Interim Order Review||Interim Suspension|
|23/08/2021||Investigating Committee||Interim Order Review||Interim Suspension|
|28/05/2021||Investigating Committee||Interim Order Review||Interim Suspension|
|05/03/2021||Investigating Committee||Interim Order Review||Interim Suspension|
|16/11/2020||Investigating Committee||Interim Order Review||Interim Suspension|
|22/05/2020||Investigating Committee||Interim Order Application||Interim Suspension|