Graeme Crew

Preliminary Matters

Service

1. The Panel was provided with evidence that the Notice of Proceedings was posted to the Registrant on 22 August 2022 to the Registrant’s postal address. It was also emailed to his registered email address and to his personal email address, on 21 October 2022.

2. The Panel notes that the emails sent to the Registrant’s registered address were not successfully delivered but that there is a delivery receipt in respect of the email sent to the Registrant’s personal email address.

3. The Panel accepted the advice of the Legal Assessor that good service was effected by notifying a registrant of the time and date of the hearing at his registered email address. There is a duty on a registrant to update the register as soon as his address changes.

4. In addition, the Panel notes that the email sent to the Registrant’s personal email address was delivered. In the circumstances, the Panel is satisfied that the Registrant is aware that this hearing is taking place.

5. The Panel has therefore found that good service has been effected.

Proceeding in the absence of the Registrant

6. Ms Constantine applied for the hearing to proceed in the Registrant’s absence. She provided a chronology showing the attempts that the HCPC and Kingsley Napley (KN) had made to contact the Registrant, during the preparation of this case and prior to today’s hearing. She submitted that the Registrant had not engaged with the HCPC or KN.

7. She invited the Panel to exercise its discretion to proceed in the Registrant’s absence on the basis that the Registrant had voluntarily absented himself. The Registrant had not applied for an adjournment, there was no evidence to suggest that if this case was adjourned that the Registrant would attend on a future date. Ms Constantine reminded the Panel that it had a duty to avoid unnecessary delay and that there were three live witnesses waiting to give evidence.

8. The Panel accepted the advice of the Legal Assessor and has had regard to the HCPTS Practice Note “Proceeding in the absence of the Registrant”.

9. In reaching a decision on the application to proceed in the Registrant’s absence, the Panel has weighed up the competing factors and has determined that it should exercise its discretion to proceed in the absence of the Registrant for the following reasons:

• The Panel has found that good service has been effected.

• The Registrant is aware of today’s hearing. This has been established because the Notice of Hearing has been delivered to the Registrant’s personal email address. There have been numerous attempts over a lengthy period of time to contact the Registrant by KN and the HCPC, over the course of the preparation of this case which have been unsuccessful. The Hearings Officer, Mr Bridge attempted to telephone the Registrant last week but could not get through to him. The number was unobtainable. In summary, all attempts to contact the Registrant have failed. The Panel has therefore concluded that the Registrant has voluntarily absented himself. In light of the Registrant’s failure to engage with the HCPC, an adjournment would serve no useful purpose.

• It is in the interests of justice for proceedings to be concluded in a timely manner, so as to avoid unnecessary delay.

• The case has been listed for final hearing and there are three live witnesses who have been warned to attend by video link.

10. The Panel therefore concluded that it would be appropriate to proceed in the absence of the Registrant.

Amendment to the Allegation

11. Ms Constantine applied to amend the Particulars of the Allegations. She submitted that the amendments were minor in nature and necessary for clarification and accuracy, so that the Particulars reflected the HCPC’s case against the Registrant.

12. The Panel accepted the advice of the Legal Assessor.

13. The Panel agreed to the application to amend the Particulars having satisfied itself that the amendment to Particular 1 (a) - (g) reflected the evidence accurately. The deletion of the original Particular 2 was appropriate because the Particular was not accurate. The amendments to the other Particulars were minor in nature and for clarification purposes. The proposed amendments were sent to the Registrant in good time. The amendments have not introduced a new strand to the HCPC’s case and do not prejudice the Registrant. In short, the amendments more accurately reflect the case against the Registrant.

Background

14. The Registrant was employed by East Kent Hospital University Foundation Trust (“The Trust ” or EKHUFT), as a Band 7 Operating Department Practitioner (ODP) in the Channel Day Surgery.

Particulars 1 & 2

15. In 2018 as the Band 7 of the Channel Day Surgery, the Registrant was supervising over 70 members of staff. The Channel Day Surgery initially operated between Monday and Friday. However, due to significant backlogs, surgeries were booked during the weekend to try to reduce waiting lists.

16. The Trust’s policy in terms of overtime was contained within the Trust’s 2016 Roster Policy, which set out the need to ensure inter-alia that rosters were arranged in line with the Working Time Directive and that the system for the allocation and approval of overtime was fair.

17. On 27 April 2020, the Trust made a referral to the HCPC. The referral related to concerns that the Registrant had failed to inform the Trust that he had received an overpayment of £2,196.40 through double payments for 7 overtime shifts that he had worked between May and June 2018.

18. At the relevant time staff working within the Trust could use two systems through which they could claim overtime payments; EKHUFT (Healthroster). There was also a system operated by an outside agency, National Health Services Professionals (NHSP), for those staff working for that organisation on an agency basis. Particular 1 (a) - (g) relates to the individual overpayments, which the HCPC allege were paid through both NHSP and Healthroster. Particular 2 related to an allegation that the Registrant failed to inform the HCPC when restrictions were placed on his duties during the Trust’s investigation of this matter on 2 January 2020.

19. As part of the referral to the HCPC on 27 April 2020, the Trust included information about a previous disciplinary matter, that had been resolved by the Trust without referring it to the HCPC. This incident related to a lapse in the Registrant’s registration between November 2009 and October 2010. The allegation was that during a registration check by the Trust, the Registrant was discovered to have been working as an ODP, during a period when his registration with the HCPC had lapsed (Particulars 4 & 5). In relation to Particular 6, it was the HCPC’s case that the Registrant deliberately misled the Registration Department when he applied to re-register by stating that he had last worked as an ODP in September 2009, when this was not the case. Particular 3 related to an allegation that the Registrant failed to inform the HCPC when he was suspended by the Trust, in October 2010.

20. It is the HCPC’s case that the Registrant’s actions in relation to each of the Particulars was dishonest.

The Hearing

21. In reaching a decision on the facts, the Panel considered all of the evidence contained in the HCPC bundle and the oral evidence.

22. The Registrant did not participate in the hearing, nor did he submit any documents.

23. The HCPC called three live witnesses in relation to Particular 1:

• Witness 1, the Disciplinary Investigating Officer for the Trust;

• Witness 2, the Registrant’s Line Manager until December 2018 and the Matron of Theatres and Day and Surgery;

• Witness 3, a Band 6 nurse who had responsibility for entering claims for overtime on Healthroster.

24. Particular 2 was based on documentary evidence only.

25. In relation to Particulars 3, 4, 5 & 6 which related to the Registrant’s registration issue, the only witness to give oral evidence was Witness 2 who was the Registrant’s Line Manager at the relevant time.

26. The Panel received written statements from LE and NB who are both Registration Managers at the HCPC and from EC, a Legal Assistant at KN. The written statements of LE, NB and EC carry the same weight as the oral evidence of the witnesses that were called to give evidence over video-link.

27. At the end of the hearing Ms Constantine provided written submissions. The Panel has taken these into account in reaching its’ decision on the facts.

28. The Panel accepted the advice of the Legal Assessor. In reaching its decision on the facts, the Panel has borne in mind that the burden of proof rests on the HCPC and that it is for the HCPC to prove the case. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities.

29. The Panel has approached the assessment of reliability and credibility carefully and has followed the guidance in R ( Dutta) v GMC [2020] EWHC2020 and Khan v GMC [2021] EWHC374. It notes that it is an error to place over-reliance on the demeanour of a witness and that reliance on the confident demeanour of a witness is a discredited method of judicial decision making

30. The Panel has carefully considered the evidence in the round, giving appropriate weight to the documentary evidence.

31. In approaching the question of dishonesty, which is alleged in relation to each of the Particulars, the Legal Assessor directed the Panel to consider each Particular separately and adopt the test in Ivey v Genting Casinos [2017] UKSC67 [s74].

Decision on Facts

General observations and background information on the Investigation into duplicate payments

32. The Trust commissioned a formal investigation in December 2018 into the management of theatre lists and the amount of overtime being completed by some members of staff working in Channel Day Theatres at the William Harvey Hospital. As part of the wider investigation, the Trust discovered that the Registrant had benefited from duplicate overtime payments over 7 shifts.

33. There were two ways that staff members could be paid for overtime shifts. The first was through the Trust’s payroll system based on the Healthroster. Healthroster was used to pay all of EKHFT’s employees for all shifts worked, sickness, annual leave and overtime. Overtime paid through the Healthroster system would be added to the member of staff’s salary and paid in arears of at least one month. The other method of payment was through an external company “NHSP”. Witness 3, described this process as:

“NHSP is a private system used by health care professionals within the NHS… I understand that health care professionals can sign up to do overtime at nearby Trusts who advertise that they require staff. It is a system that allows staff to book additional shifts autonomously and receive payment for those shifts directly from NHSP.

It is classed as secondary employment and I understand that staff are paid weekly (as opposed to monthly). The two key differences in the systems are that Healthroster is linked directly to the Trust’s payroll system and pays overtime in arrears. NHSP is a separate system that pays overtime on a weekly basis. A Trust employee can switch between using Healthroster and NHSP.”

34. The allegation was that the Registrant was paid through both systems but failed to declare the duplicate payment and was dishonest in so doing (Particular 7).

The Investigation and the evidence

35. The evidence on the exact procedure for the processing of payments for shifts booked through the two different systems was unclear and there were a number of inconsistencies that arose during the oral evidence as between Witnesses 1, 2 and 3.

36. From the evidence of Witnesses 1, 2 and 3, the Panel understands that when overtime was required, an A3 sheet of paper would be put up on the wall of the theatre so that staff could indicate a willingness to work the shift. They could then mark the hours they had worked on that A3 sheet. It would then be the job of Witness 3 to input the shifts onto the Healthroster system.

37. In her investigation report, written statement and in her oral evidence Witness 1 stated that a staff member who had booked his or her shift through NHSP would need to write “NHSP” or the letter “P” on the A3 piece of paper by the shift, so that it was not placed on Healthroster. However, Witness 3, (whose job it was to put the shifts onto Healthroster, stated that this was not the system. He said that sometimes staff members who booked their shifts through NHSP wouldn’t enter the shift on the sheet at all. Later in his evidence he accepted that some staff members did mark “NHSP” or the letter “P” next to the shift, but not all staff did this. The Panel were of the view that the overtime process was at best confused and it was informed that subsequent to the investigation, the process was changed.

38. As part of her investigation Witness 1 obtained evidence of the duplicate shifts worked from the Information Officer in the form of a schedule which showed that the shifts were paid twice. However, she did not look at the A3 sheets to see if the Registrant had written “NHSP” or “P” by the shifts in Particular 1 (a)-(g). In the Panel’s view, this source material was central to a robust and fair analysis of whether the Registrant was responsible for knowingly claiming twice for work done ( Particular 7 ) rather than overpayments that arose due to an error on the part of someone else or the system. The evidence of Witnesses 2 and 3 was that the overtime sheets were placed in a file and stored once they had been inputted onto the system. The Panel was not provided with these documents and Witness 1 stated that she had not inspected them as part of her investigation.

39. It was agreed that payments through NHSP would arrive before the payments through Healthroster and that the Registrant would have received a number of payments over several months. Neither the Registrant’s salary slips generated by Healthroster (EKHUFT), nor those generated by NHSP were produced for the Panel to inform its decision making. Witness 2 who had responsibility for checking the Registrant’s claims said that she was too busy to cross-reference claims and perhaps “placed too much trust” in her subordinates. This view was supported by Witness 3 who stated, “The system was entirely based on trust and as a Team Leader, I simply actioned what had been signed off in the book.”

40. The Registrant was interviewed by the Trust on 18 July 2019. The Panel was not provided with a full transcript of the interview and the summary produced is unsigned. It does not appear that the Registrant was told at the beginning of the interview that he was under investigation as a result of duplicate payments. The Panel notes that when first asked questions about his own payslips, the Registrant stated that he had not opened a payslip for months. At the end of the first interview the summary reads: “he apologised if he personally had done something wrong but he had never knowingly or intentionally done anything wrong”.

41. The Panel further notes that during his second interview on the 14 August 2019, the Registrant asked the interviewers to check the Healthroster.

The HCPC investigation

42. The failures to obtain key primary documentation identified above was not remedied by KN or the HCPC in the preparation of this case. This is regrettable both in terms of ensuring a fair hearing but also in terms of providing the Panel with important primary evidence which went to Particular 7.

Particular 1 (a) - (g) proved

You did not inform your employer that you had received an overpayment for hours worked on a total of 7 occasions, those dates being:

a. 12 May 2018
b. 26 May 2018
c. 27 May 2018
d. 09 June 2018
e. 10 June 2018
f. 23 June 2018
g. 24 June 2018

43. The Panel accepts the oral and written evidence of Witness 1 that during the investigation she obtained a schedule of the overpayments from the Information Officer. She exhibited these to her witness statement as well as the email trail between herself and the Information Officer. The Computer Log shows that the Registrant received duplicate payments from both the EKHUFT Healthroster system and through NHSP, in respect of the Registrant’s overtime shifts on the dates set out in Particular 1 (a) –(g).

44. The Panel also accepts that the Registrant did not inform the Trust that he had received these payments. The Panel accepted on the balance of probabilities that the explanation that the Registrant gave at the Disciplinary Investigation interview on 14 August 2019, that he had not opened a payslip in months, was plausible. Witness 1 stated that the Registrant was surprised when first confronted about the duplicate payments. This is reflected in the interview summary. Moreover, the total overpayment of £2,194.40 would have appeared across a number of his EKHUFT payslips and on a number of the payslips generated by NHSP. The Panel has therefore reached the conclusion that the overpayment might not have been obvious from the Registrant’s bank statement and in the context of the Registrant’s overall pay.

Particular 2 - not proved

You did not inform the HCPC that restrictions had been placed on your duties by your employer on 02 January 2020.

45. The evidence in relation to this Particular 2 was contained in a letter from the Trust to the Registrant, dated 2 January 2020. The letter makes it clear that the Registrant was being relocated within the Trust and downgraded pending the outcome of Trust’s investigation. There was no suggestion that restrictions had been placed on the Registrant’s clinical practise or that the Registrant was no longer working as an ODP. The letter states:

“Temporary relocation and downgrading does not constitute disciplinary action but is a holding measure, pending the outcome of the hearing”.

Particular 3 - proved

You did not inform the HCPC that you had been suspended by your employer on 21 October 2010.

46. The evidence in support of this Particular was contained in the letters from the Trust, dated 21 October 2010 and 2 November 2010. The Registrant was suspended from work at 3.00 pm on the 21 October 2010. The details of the suspension were set out in the letter from the Trust, dated 2 November 2010. It is clear from this second letter that the Registrant was placed on unpaid suspension for one day, the 22 October 2010.

47. The Registrant was allowed to take the 25 – 29 October 2010 and 1 November 2010 as paid annual leave and told that he could return to work as a Band 7 Theatre Co-ordinator at 8.00 am, on 2 November 2010.

48. The Registrant ought to have informed the HCPC that he had been suspended by his employer. However, the Panel’s view was that this was effectively a one day suspension pending an internal investigation and it has some understanding that the Registrant may have misunderstood the need to inform the HCPC in circumstances whereby he had been suspended as an interim measure. Neither did the Trust refer this breach to the HCPC at the time, or following the disciplinary meeting. The Panel viewed it was minimised at the time.

Particular 4 - proved

Between 10 November 2009 to 30 October 2010, you practised as an Operating Department Practitioner whilst unregistered with the HCPC

49. The Panel finds this Particular proved from the written statements of LE, NB and Witness 2 and from the oral evidence of Witness 2, as well as from the exhibits contained in the bundle.

50. Further, it is clear that the Registrant admitted that he was working without registration and that his registration had lapsed with effect from November 2009 when he was confronted with the results of the HP registration check in October 2010. Witness 2, who was the Registrant’s Line Manager was present at the meeting when the Registrant was questioned about his lapsed registration and when he admitted to it. The letters, dated 21 October and 2 November 2010 set out in clear terms that the Registrant was found to be working without registration.

51. The Panel has also attached weight to the witness statements and the documents exhibited by LE and NB who are both Registration Managers at the HCPC.

52. LE, produced a print-out showing that the Registrant was deregistered on 10 November 2009 because he failed to renew his registration. She also referred to two payment rejection notices which were sent to the Registrant on 5 and 26 October 2009 following the failed direct debit payment.

53. The Panel has also attached weight to the witness statement of NB. She stated that the Registrant sent an incomplete Re- registration Form to the Registration Department in July 2010. Whilst the incomplete Re- registration Form was not exhibited to her statement, a letter from the Registration Department to the Registrant, dated 28 July 2010 referenced the fact that the Registrant’s Re-registration Form was incomplete and that key documents were missing.

Particular 5 - proved

You did not inform your employer that you were not on the HCPC register from 10 November 2009 to 30 October 2010 while working for them in the capacity of an Operating Department Practitioner.

54. The Panel finds this Particular proved from the written and oral evidence of Witness 2, from the letters dated 21 October and 2 November 2010, as well as from the Trust Disciplinary Meeting, held on 25 January 2011.

55. Witness 2 told the Panel that the Trust first found out that the Registrant had allowed his registration to lapse, following the check on registrations by the Trust. The letter dated 21 October 2010, corroborates Witness 2’s evidence on this point, in that it is clear from the contents of the letter that the Trust was not aware that the Registrant was working as an ODP without being registered until the registrations check exposed it and that he admitted it when he was confronted about it.

56. It follows that the Panel can safely infer that the Registrant did not tell his employer that his registration had lapsed, whilst working for them between 10 November 2009 and 30 October 2010. The Panel’s full reasoning is based on the facts as set out in Paragraph 46-50 above.

Particular 6 – proved

You stated in your readmission form to the HCPC that the last date you practised as an Operating Department Practitioner was 1 September 2009 when this was not the case.

57. This Particular is found proved from the Re-registration Form which is contained within bundle.

58. The form requires a Registrant to answer the question:- “When did you last practice your profession”. The Registrant wrote 1 September 2009.

59. The Panel finds that this statement was incorrect. The Registrant was suspended from work on 21 October 2010 because it was discovered that his registration had lapsed and because he was working as an ODP at the time.

Particular 7- proved in relation to Particular 4,5 & 6 not proved in relation to Particulars 1 2 & 3

Your conduct in relation to allegations 1, 2, 3, 4, 5, & 6 was dishonest.

60. In approaching the question of dishonesty, the Panel has considered each Particular found proved separately and adopted the test in Ivey v Genting Casinos [2017] UKSC67 [§74], asking itself:

• What was the Registrant’s actual knowledge or genuinely held belief as to the facts? and;

• Given his actual knowledge or genuinely held belief as to the facts, was his conduct dishonest by the standards of ordinary decent people.

Particular 1(a) - (g)

61. In relation to Particular 1(a) - (g), the Panel is not satisfied that the Registrant genuinely believed that he had acted dishonestly. In support of this finding, the Panel has taken into account the oral evidence of Witness 1 who stated that when first questioned by her about the duplicate payments, that the Registrant appeared genuinely surprised.

62. Further, the Registrant has always denied that he knew at the time that he had been paid twice for the same shifts. When questioned about the duplicate payments on 8 July 2019, he expressed surprise, stating he had not opened a payslip in months. At the end of the interview “he apologised if he personally had done something wrong but he had never knowingly or intentionally done anything wrong”. The Panel therefore finds that the HCPC has not established on the evidence produced that the Registrant knew he had been overpaid.

63. The Panel notes that the payments would have appeared on a number of different payslips both through NHSP and on the Registrant’s ordinary payslips generated by the Trust’s payroll based on Healthroster. Some of the payments would have taken more than a month to come through. The amounts paid through each system would have differed and in the context of the Registrant’s own pay this was a relatively small amount of money during a period when the Registrant was doing significant overtime. The Panel finds that there is a real likelihood that the Registrant did not identify the overpayment from his bank balance.

64. Moving to the second limb of the test, the Panel is not satisfied that the Registrant’s conduct was dishonest by the standards of ordinary decent people. The Panel has reached this decision because there were significant gaps in the documentary evidence produced and the oral evidence was contradictory in places. The Panel finds that the ordinary person looking at the Registrant’s actions would only be able to conclude that there were duplicate payments but not that the Registrant had acted dishonestly.

Particular 3

65. In relation to Particular 3 the Panel is not satisfied based on the evidence before it, that the Registrant knew that he needed to inform the HCPC that he had been suspended on an interim basis. The Panel is satisfied that the ordinary person looking at this objectively would not have thought that the Registrant’s behaviour was dishonest based on the manner in which the Trust approached this at the time.

Particular 4

66. In relation to Particular 4, the Panel finds dishonesty proved on both limbs of the test for dishonesty. There was no direct evidence on the Registrant’s state of mind, however the Panel has inferred from the chronology that the Registrant knew his registration had lapsed. In particular, it notes from the statement of NB, that the Registrant tried to renew his registration in July 2010. This was some three months before the HP checking system identified that he was working without registration. The Witness NB’s statement stated that the Re-Registration Form that he submitted to the Registration Department was incomplete. The letter dated 28 July 2010 shows that the Registrant did not provide a number of key documents. The Panel has inferred from this and from the manner in which the lapsed registration was discovered that the Registrant knew his registration had lapsed and chose to continue to work rather than approach a manager and explain himself.

67. In relation to the second limb of the test the Panel is satisfied that an ordinary person viewing the facts as found proved would find that working for an 11 month period without registration was dishonest.

Particular 5

68. The Panel finds dishonesty in respect of Particular 5, for the reasons set out in paragraphs 62 & 63 above.

Particular 6

69. In relation to Particular 6, the Panel finds that the Registrant deliberately wrote the date 1 September 2009 on his form for readmission onto the Register to hide the fact he had been working whilst he was unregistered.

70. The Panel finds that the ordinary person viewing this answer would find that it was dishonest. There was a clear motive for the Registrant to put a date on the form that predated the expiry of his registration. It would enable his application for re-registration to be approved without question because he would not appear to have breached his obligation to his regulator to remain registered as an ODP, whilst he was working as one.

Decision on Grounds

71. In approaching the question of misconduct, the Panel has considered each Particular separately as well as the cumulative effect of the findings found to be proved.

72. The Panel accepted the advice of the Legal Assessor.

73. In relation to Particular 1, the Panel has found that there had been seven duplicate payments and that the Registrant did not bring these to the Trust’s attention. The Panel is not satisfied that the Registrant was aware of the overpayments, nor is it satisfied on the evidence produced by the HCPC, that the Registrant was responsible for generating them in the first place. In the circumstances, the Panel does not find the threshold for the ground of misconduct has been reached, in relation to Particular 1.

74. In relation to Particular 3, as the period of suspension was so short and minimised by the Trust at the time, the Panel does not find the threshold for the ground of misconduct has been reached, in relation to Particular 3. The Panel has also considered Particulars 1 and 3 taken together, but does not find that they cumulatively meet the threshold so as to amount to the statutory ground of misconduct.

75. In relation to Particulars 4, 5 & 6, the Panel finds that the Registrant’s behaviour was so serious as to amount to misconduct. The Panel has made findings of dishonesty in relation to each of these Particulars and any finding of dishonesty automatically amounts to the statutory ground of misconduct.

76. In placing this dishonesty, the Panel has taken into account the age of these Particulars and the fact that the Trust did not refer the Registrant to the HCPC.

77. The dishonesty found in Particulars 4 & 5 was an act of omission. The Panel has also noted the evidence of Witness 2, that lapses in registration were not uncommon in 2010. However, this Registrant was a senior member of staff, who worked without registration for 11 months which is a very long time.

78. In relation to Particular 6, the dishonesty in question involved completing the Re-Registration Form with an untruth. This untrue statement was designed to mislead the Registration Department concerning his practising without registration.

79. The dishonesty in each of the Particulars taken separately and looked at cumulatively amounted to dishonesty.

80. Moreover, in respect of Particulars 4 & 5 and 6, the Panel has also found that the Registrant breached fundamental tenets of his profession. The following standards of the HCPC Standards of Conduct, Performance and Ethics were breached:

HCPC Standards of Conduct, Performance and Ethics (July 2008)

• Standard 4: You must provide (to us and any other relevant regulators) any important information about your conduct and competence. You must tell us and any other regulators if you have important information about your conduct or competence or about other registrants and health care professionals you work with.

• Standard 13: You must behave with honesty and integrity and make sure your behaviour does not damage public confidence in you or your profession

HCPC Standards of Conduct Performance and Ethics (January 2016)

• Standard 9: Be honest and trustworthy.

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

Decision on Impairment

81. The Panel went on to decide whether, as a result of the Registrant’s misconduct, his fitness to practise is currently impaired. The Panel has approached its’ decision on impairment looking at the situation as it is today.

82. The Panel accepted the advice of the Legal Assessor. She referred the Panel to the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

83. The Panel has taken into account that the purpose of fitness to practice hearings is not to punish Registrants for past wrongdoings but to protect the public and the regulator. In this regard, it has taken into account the judgement of Mrs Justice Cox in Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).

84. In reaching a decision on impairment, the Panel has considered all of the evidence and the written submissions prepared by Ms Constantine and has exercised its’ own judgment on impairment.

85. The Panel has had at the forefront of its mind the fact that Operating Department Practitioners are expected to act with openness, honesty and integrity at all times.

86. Whilst the Panel is satisfied that the conduct found proved is remediable, the concerns are serious because they centre around dishonesty and breaches of fundamental tenets of the Registrant’s profession. These are attitudinal failings and the Panel had no information as to the Registrant’s current circumstances nor of his insight and understanding into the reasons why he failed to renew his registration and acted in the manner that he did.

87. The misconduct found proved dates back to 2010, it has not been repeated which is an important factor because a significant amount of time has now passed. The records obtained from the Registration Department show that the Registrant has kept his registration up to date since then.

88. In addition, there is no suggestion that the Registrant poses a risk to Service Users. Witness 2 said in her statement that the Registrant was “amenable and worked hard. He was very much liked by the team and has great ability as an ODP and a huge amount of knowledge”.

89. In summary, whilst the actual failing appears to have been remedied, this was an attitudinal failing and insight in relation to integrity and honesty are important issues. The Panel therefore finds that the Registrant is still impaired on the personal component, even though the risk of this conduct being repeated is low.

90. In terms of the public component, the Panel has taken into account its overarching responsibility to promote and maintain professional standards, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the profession of Operating Department Practitioner and in the regulator. This was misconduct involving a breach of fundamental tenets of the profession and of dishonesty. Honesty and integrity are cornerstones of the profession. The regulatory objectives of maintaining confidence in the regulator and declaring and upholding proper standards would therefore be undermined if the Panel failed to make a finding on the public interest ground.

91. The Panel has therefore concluded that the Registrant remains impaired on both the personal and public component.

Sanction

92. The Panel heard submissions from Ms Constantine. In reaching a decision on sanction it has taken these submissions into account.

93. The Panel accepted the advice of the Legal Assessor and has reached its decision on sanction by following the guidance in the HCPC Sanctions Policy.

94. The Panel has had regard to all the evidence presented. It reminded itself that a sanction is not intended to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality and that a sanction must be reasonable and the least restrictive possible.

95. The primary function of any sanction is to address public safety from the perspective of the risk which the Registrant may pose to those who use or need his services and to the wider public interest; namely the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

96. The Panel began its deliberations on sanction by considering by identifying the mitigating and aggravating factors.

97. The Panel identified the following mitigating factors:

(i) The Particulars found to amount to misconduct are historic, having arisen between 2009 and 2010.

(ii) They were all part of the same incident.

(iii) The Registrant successfully managed the Registration requirement prior to this incident and has done since.

(iv) The Registrant continued to work for 10 years for the Trust. He has been reported as being hard working, possessing considerable knowledge and expertise and respected by his colleagues and those he managed

98. The Panel identified the following aggravating factors:

(i) The misconduct involved dishonesty towards both his employer and his regulator.

(ii) The misconduct involved fundamental breaches, a core tenet of his profession.

(iii) There was no evidence of remorse, insight or remediation.

99. The Panel considered the sanctions in ascending order of gravity to identify which sanction is proportionate in the circumstances of the case. It considered that it should impose the least restrictive sanction necessary to protect the public.

100. The Practice Note makes it clear that where there are issues of dishonesty these are “so serious, that activities intended to remediate the concern cannot sufficiently reduce the risk to the public or public confidence to the profession” and that “given the seriousness of dishonesty, cases are likely to result in more serious sanctions”.

101. The Panel consider that mediation is not suitable under these circumstances. Similarly, it has found that it is not appropriate to make No Order because of the serious nature of the incident.

102. A Caution Order is also not appropriate. The Panel have found the matter is serious in nature, not singular and there is no evidence of insight or remediation from the Registrant. Such an order would not serve to protect the public from repetition of the misconduct.

103. The Panel next considered a Conditions of Practice Order. It considered that the failure in this case was capable of being remedied but that there was a lack of evidence of insight, remorse and remediation. The Panel did not have any evidence that the Registrant was committed to resolving the concerns. The Practice Note clearly outlines that “…conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process…”. Additionally, the practice note also highlights that “Conditions are less likely to be appropriate in more serious cases, for example those including…dishonesty…”

104. The Panel has found dishonesty and serious breaches of a core tenet of the Registrant’s profession. Accordingly, it has determined that the Registrant’s misconduct was too serious for a Conditions of Practice Order to be appropriate, nor would conditions be workable in this circumstance.

105. The Panel next considered a Suspension Order. The Panel carefully considered the guidance in the Practice Note which states that suspension is sometimes an appropriate sanction in cases of dishonesty “… 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”.

106. Although the Panel finds that dishonesty of any kind is serious, this case was unusual in terms of its historic nature and the specific circumstances. The Panel was very conscious of the issue of dishonesty and non-engagement, but after careful deliberation has found the Registrant’s failings to be potentially remediable. In particular, It notes that the Registrant worked for 10 years after this incident within the Trust and maintained his registration during this time.

107. The Panel was of the view that the acts found proved arose from the Registrant’s failure to ensure that his registration was up to date on one occasion. Whilst the acts led to serious breaches of the Standards of Conduct, Performance and Ethics, there was no evidence that the Registrant has repeated the breaches. The evidence was that the Registrant was a valuable and hardworking practitioner and although the Panel was not provided with character evidence or testimonials by the Registrant, Witness 2, his manager confirmed that she “had a good working relationship with the Registrant. He was amenable and worked hard. He was very much liked by his team and had great ability as an ODP and a huge amount of knowledge”.

108. The Panel has determined that a 12 month Suspension Order is the appropriate and proportionate sanction in this case. A lengthy Suspension Order will mark the seriousness of the misconduct. This will also provide the Registrant with a period of time to properly reflect on his actions and demonstrate a commitment to returning to practise in a profession that reportedly he is competent and experienced in.

109. A future panel is likely to be assisted by evidence of reflection, meaningful insight into the conduct and consequences thereof, remedial action and supporting character references. Most importantly, the Registrant should fully engage with the regulatory process to show that he has fully appreciated the seriousness of this behaviour and so that a future panel can be assured that the behaviour will not jeopardise public protection by being repeated in the future.

ORDER: The Registrar is directed to suspend the registration of Mr Graeme Crew for a period of 12 months from the date this Order comes into effect.

Interim Order

Proceeding in the absence of the Registrant

1. Ms Constantine indicated that she intended to apply for an Interim Order to cover the appeal period in light of the decision of the Panel to impose a 12 month Suspension Order.

2. She invited the Panel to proceed to hear the application for an interim order in the Registrant’s absence. She relied on the submissions she made at the beginning of the hearing.

3. The Panel accepted the advice of the Legal Assessor.

4. The Panel determined that the Registrant had voluntarily absented himself. It had an overriding duty to protect the public and the wider public interest and it was therefore in the interests of justice to proceed to consider the application for an interim order.

Interim Order application

5. Ms Constantine applied for an interim order for 18 months to cover the appeal period. She submitted that an order was necessary and proportionate due to the risk posed by the Registrant to the public and in the wider public interest.

Decision

6. The Panel accepted the advice of the Legal Assessor.

7. 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.

8. 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.

History of Hearings for Graeme Crew