Mr Derek Strong

Preliminary Matters

1. The Panel has been convened to undertake the review of a substantive suspension order that was imposed at the conclusion of the substantive hearing of the HCPC’s allegations against the Registrant, Mr Derek Strong, Operating Department Practitioner (‘ODP’).

Service

2. On 5 August 2022 the Registrant was sent an email to the email address held on the HCPC Register informing him that this hearing was to be held. The email informed him of the date and time of the hearing and that it was intended that the hearing would be conducted by video conference. The Panel was satisfied that this email constituted good service of the notice of hearing.

Proceeding in the Registrant’s absence

3. After the Panel announced its decision that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the Registrant’s absence.

4. The Panel carefully considered the application, and in doing so it heeded the advice it received as to the caution that should be exercised before directing that any hearing should proceed in the absence of the registrant concerned. The Panel also considered the factors identified in the relevant HCPTS Practice Note. The conclusion of the Panel was that the hearing should proceed for the following reasons:

• In addition to the notice of hearing sent on 5 August 2022, on 10 August 2022, the Presenting Officer sent an email to the Registrant and, apart from reminding him of the date scheduled for the review, included helpful information. She sent a copy of the substantive hearing determination and reminded him of the matters that the panel that had conducted that hearing suggested might assist the reviewing panel. She also extended an offer to discuss matters or send further information if requested. Neither email was either acknowledged or replied to by the Registrant.

• The Registrant did not attend the substantive hearing held between 29 November 2021 and 8 December 2021. At that hearing the Presenting Officer produced four emails that had been sent by the Registrant. Those sent in 2018 made clear and reiterated his intention to retire from the ODP profession. His last email sent to the HCPC was on 13 January 2020, and simply made reference to the emails he had sent in 2018 and stated, “I will say no more on this matter.” No communication has been made by the Registrant since 13 January 2020.

• The Panel concluded that the Registrant had voluntarily waived the right he has to attend this hearing.

• The absence of engagement on the part of the Registrant has the consequence that there is no information on which the present Panel could conclude that he would participate in a review hearing on a future occasion if it did not proceed today.

• There is a mandatory requirement that the suspension order currently in place must be reviewed before it expires on 5 October 2022, and

• In the judgment of the Panel, any disadvantage to the Registrant arising from his absence does not result in the hearing being unfair, as the decision not to participate is one he has himself made.
• In the circumstances described above, the Panel was satisfied that the public interest requires the hearing to proceed.

Background

5. At the time relevant to the findings made against him, the Registrant was employed as a Senior ODP by BMI Healthcare, and was working at Sarum Road Hospital. His role meant that he was responsible for assisting anaesthetists in the administration of patient care during surgery.

6. On 3 January 2018, BMI Healthcare referred to the HCPC concerns relating to the Registrant.

7. The substantive hearing of the HCPC’s Allegation commenced on 29 November 2021 before a panel of the Conduct and Competence Committee (hereafter ‘the initial panel’) and concluded on 8 December 2021. In relation to the matters found proven (as set out above):

• With regard to particular 3 and the gas supply line that was not connected, the initial panel heard from Colleague B, a Consultant Anaesthetist. That panel found that the only two people present when the conversation took place were the Registrant and Colleague B. Colleague B remembered the incident very well. It was his recollection that he found the unattached line, and it was that fact that prompted the conversation he had with the Registrant. Colleague B could not recall whether the Registrant had stated that he intentionally left a gas line unattached or whether he said that he had disconnected it. He recalled that in answer to a question, the Registrant stated that he had done it to see if the Anaesthetist was checking the machine before he stated. Colleague B stated that what the Registrant stated concerned him even if was intended as a boast or a joke.

• With regard to particular 4(b)(i) & (iii), the initial panel heard from witnesses, who gave clear and consistent evidence. On the basis of that evidence, it was found that the Registrant had not completed all sections required on the pre-operative checklist, and that on a balance of probabilities he had not performed a complete pre-operative check on Patient B. In relation to the WHO form, the initial panel found that the Registrant had not completed the “Huddle” and “Sign In Before Induction” sections of the form.

• With regard to particular 5, the initial panel heard evidence from Colleague A, who at the relevant time was 17 years of age and working as a theatre porter. Colleague A had worked with the Registrant for approximately a year by the time the relevant conversation took place. The Registrant had been sitting with colleagues in the theatre department coffee room. Colleague A had been checking his telephone and had accordingly not been concentrating on the conversation going on around him, which apparently concerned a television programme involving sexual content that had been shown the previous night. The previous panel accepted the evidence of Colleague A that each element of particular 5 was spoken or acted by the Registrant. Colleague A accepted that there was often banter, but that nevertheless he thought the Registrant went a bit too far. Another colleague remonstrated with the Registrant and subsequently the Registrant apologised to Colleague A in the presence of that same colleague.

8. The initial panel determined that the matters it found to be proven constituted misconduct, finding that the following standards of the HCPC’s Standards of Conduct, Performance and Ethics were breached, namely: 2.6, 6.2, 9.1 and 10.1. The initial panel also found those breaches to be serious.

9. The initial panel found that the failings it had identified were capable of being remedied, but that there was no evidence that the Registrant had in fact remedied them. It accordingly, decided that the absence of evidence of remediation led it to conclude that there could be no confidence that misconduct would not be repeated. The consequence of that finding was that the initial panel found the Registrant’s fitness to practise was impaired on the personal component. It was also found that his fitness to practise was impaired on the public component, the need to promote and maintain confidence in the profession and proper professional standards requiring that finding.

10. When it considered the issue of sanction, the initial panel determined that no lesser sanction than suspension would be appropriate, stating that that decision was “finely balanced”. That panel decided that an order of 9 months duration was the proportionate period because, expressing the hope that the Registrant would be able to demonstrate his understanding of the severity of the misconduct, would have reflected upon it and be in a position to provide evidence of his remediation of it. In imposing a suspension order, the initial panel offered guidance to the Registrant as to what a reviewing panel such as the present Panel would be likely to be assisted by. The guidance was set out in paragraph 110 of the determination and was as follows:

• his participation in the review hearing, either in person or remotely;

• a reflective piece from him, concentrating on what had led to his misconduct and how his actions impacted, or could have impacted on, patients, his colleagues, his employer and his profession;

• information about any employment, paid or unpaid, since these events;
• an updated indication as to his future plans, and whether he wishes to remain in the ODP profession.

• up-to-date testimonials from colleagues and/or persons (who are aware of these proceedings) in relation to his attitude to work, his communication skills and work practices.

The Registrant was reminded of these suggestions in the letter recently sent to him by the Presenting Officer on 10 August 2022.

11. The substantive period of suspension was imposed on 8 December 2022, but because it did not come into force until the expiry of the appeal period, it did not come into effect until 5 January 2022. It was of nine months duration and so is due to expire on 5 October 2022.

Submissions at the present hearing

12. On behalf of the HCPC, the Presenting Officer outlined the approach which it was submitted the Panel should adopt in reaching its decision on this review. She stated that the HCPC’s position on the outcome was one of neutrality.

13. No submissions were received by or on behalf of the Registrant.

Decision

14. The Panel has approached the decision it is required to make on the basis that it is required to accept the findings made by the initial panel on the facts, and that the proven facts constituted misconduct, as settled. The decisions the Panel is required to make are:

• Whether the misconduct based upon those proven facts is still impairing the Registrant’s fitness to practise. In making this decision, ordinary considerations relating to impairment of fitness to practise are to be considered.

• If the conclusion of the Panel is that the Registrant’s fitness to practise is impaired, whether that finding requires the imposition of a further sanction upon the expiry of the present period of suspension, and, if it does, what that sanction should be. Again, ordinary sanction principles apply to this decision. The present Panel has the sanction powers that were available to the initial panel, and as the finding was one of misconduct, the entire sanction range, up to and including striking off, is available at the present time.

15. It has already been stated that the initial panel found that the absence of evidence of remediation resulted in it being forced to the conclusion that there had been no remediation undertaken by the Registrant with the consequential risk of repetition. In the judgement of the present Panel, the same applies now, some nine months later. There is no evidence of insight and slight evidence of apology (namely that extended to Colleague A after the events reflected in particular 5 occurred). Accordingly, the Panel considers that there remains a significant risk of repetition. Furthermore, for the same reasons given by the initial panel, the present Panel considers that it is necessary to reach a finding of current impairment of fitness to practise in relation to the public component.

16. Having decided that the Registrant’s fitness to practise remains impaired, the Panel then considered whether a further sanction is required when the present period of suspension ends. The conclusion of the Panel was not only that a further sanction is required, but also that the sanction to be imposed should be one that should protect the public from the significant risk of further misconduct occurring. That need has the consequence that a sanction ensuring that the Registrant is not permitted to return to unrestricted practice is required.

17. A conditions of practice order is not appropriate because there is no up-to-date evidence available to the Panel as to the Registrant’s current activities or future intentions. The Panel then considered whether a further period of suspension should be imposed. Whereas the Panel would agree that such an outcome might be appropriate if there existed a realistic prospect that the Registrant might wish to address his shortcomings, in circumstances where that opportunity has been extended by the initial Panel’s decision, but not taken by the Registrant, it is not appropriate. In short, a further period of suspension would achieve nothing positive, and it would not fit with the circumstances suggested in paragraph 121 of the Sanctions Policy because this Registrant does not have insight and there is no evidence to suggest that he is likely to be able to resolve or remedy his failings. Indeed, the Panel considers that the imposition of a further period of suspension would itself be likely to diminish confidence in the robustness of the regulation of ODP’s and would not sufficiently serve to declare and uphold proper professional standards.

18. The consequence of the rejection of a further period of suspension has led the Panel to decide that a striking off order should be made. At the present time, in circumstances where the Registrant is not engaging in the process so as to suggest that he has developed insight and either has remediated, or that he wishes to remediate, his failings, the Panel is satisfied that this is a proportionate outcome.

That the Registrar is directed to strike the name of Mr Derek Strong from the Register on the expiry of the present period of suspension, that is with effect from 5 October 2022.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Mr Derek Strong