Mr Peter Upton

Preliminary Matters

Service

1. The Panel was provided with a copy of a notice of today’s substantive review hearing dated 16 November 2023. The notice of hearing specified the date, time, and purpose of today’s hearing.
2. The Panel was satisfied that the notice of hearing was sent by email to the Registrant on 16 November 2023. The Panel was provided with a copy of the HCPC Certificate of Registration, which confirmed the Registrant’s email address registered with the HCPC dated 16 November 2023.
3. The Panel accepted the advice of the Legal Assessor.
4. The Panel was satisfied that good service of the notice of hearing had been effected in accordance with Rule 13 of the (Health Committee) (Procedure) Rules 2003 as amended (“the Rules”).

Application for the hearing to be conducted in private

5. Ms Sampson, on behalf of the HCPC applied for this matter to be heard in private as it relates to issues surrounding the Registrant’s health. She referred the Panel to Rule 10(1)(a) of the Health and Care Professions Council (Health Committee) (Procedure) Rules 2003) and submitted that whilst most fitness to practice proceedings should be held in public, the Panel has the discretion to exclude the press or the public from all or part of a hearing in appropriate cases, where it’s in the interests of justice to do so; or where it is done to protect the private life of the Registrant or any other relevant party.

6. In addition, she referred the Panel to the HCPTS Practice Note on

7. Conducting Hearings in Private (“Privacy Practice Note”) which reflects the same principles as outlined in the Health Committee Procedure Rules, including the “open justice principle” and the Panels discretion to conduct parts of the hearing in private, in appropriate cases.

8. Ms Sampson submitted that it would not be practical for the hearing to be conducted partly in private and partly in public as the Registrant’s health is central to the matters under review. Therefore, it would be appropriate for the Panel to exercise its discretion and to decide that the entirety of this hearing should be considered in private to protect the Registrant’s private life.

9. The Panel accepted the advice of the Legal Assessor. She referred the Panel to Rule 10 (1) (a) of the Rules and the HCPTS Practice Note on ‘Conducting Hearings in Private’.

10. The Panel was aware that proceedings should be held in public, in accordance with Article 6 of the European Convention on Human Rights (ECHR), unless to do otherwise is necessary in the interests of justice or to protect the private life of the Registrant.

11. The Panel determined that as the material within the bundle is sensitive and is linked to the patient’s health, that the entire hearing be held in private. The Panel concluded that the interests of justice outweighed the general public interest in holding this hearing in public.

Application to proceed in the absence of the Registrant.

12. Ms Sampson submitted that all reasonable steps have been taken to serve the notice of hearing on the Registrant. Therefore, the Panel should exercise its discretion to proceed with the substantive review hearing in the absence of the Registrant. Ms Sampson referred the Panel to the HCPTS Practice Note: Proceeding in the absence of the Registrant.

13. Ms Sampson referred the Panel to page 13 of the redacted HCPC bundle which contains an email from the Registrant, dated 22 November 2023, which is in response to the Notice of Hearing. She submitted that from the contents of the email, the Panel may reasonably conclude that the Registrant is fully aware of the hearing toda

14. Ms Sampson further referred the Panel to pages 15-19 of the bundle, which contains an email from the HCPC Presenting Officer to the Registrant’s registered email address dated 5 December 2023. In this email the Presenting Officer highlighted the date of the review hearing, reminded the Registrant of his Conditions of Practice and invited submissions. The Presenting Officer did not receive a response to that email.

15. Ms Sampson submitted that the HCPC has made reasonable and sufficient efforts to provide the Registrant with the opportunity to participate in these proceedings and, considering the Registrant’s email in response to the Notice of Hearing dated 22 November 2023, the Registrant is aware of the hearing and has chosen not to attend. She stated that there has been no application to adjourn, nor any indication that the Registrant would be willing to attend on an alternative date. Therefore, an adjournment is unlikely to result in the Registrant’s future attendance on an alternative date.

16. In conclusion, Ms Sampson submitted that this is a mandatory review of the current Order and it is respectfully submitted that it is in both the Registrant’s interests and in the public interest for a review of the order to take place as scheduled so that the matter can be heard and concluded expeditiously. She stated that it would be fair and proportionate to hear this matter in the absence of the Registrant and there is an over-riding public interest in proceeding with this matter today.

17. The Panel accepted the advice of the Legal Assessor who referred the Panel to Rule 11 of the Rules, the HCPTS Practice Note: Proceeding in the absence of the Registrant, and the relevant guidance from the cases of R v Jones (Anthony) [2004] 1 AC 1HL and General Medical Council v Adeogba [2016] EWCA Civ 162.

18. The Panel noted that the Registrant was given the required notice of today’s hearing He was informed of the powers available to the Panel at this hearing. He was also informed of his right to attend the hearing and/or be represented. In the circumstances, the Panel was satisfied that all reasonable efforts have been made by the HCPC to inform the Registrant of this hearing.

19. The Panel noted that the Registrant has not sought an adjournment. The Panel was satisfied that the Registrant has waived his right to attend and/or be represented and has voluntarily absented himself from the hearing. Given the Registrant’s lack of engagement with these proceedings, the Panel was further satisfied that an adjournment was unlikely to result in the Registrant’s attendance on a future occasion.

20. The Panel was mindful that there would be some disadvantage to the Registrant if the review hearing proceeds in his absence, however, this must be balanced against the public interest in proceeding with this mandatory, statutory review of an existing Conditions of Practice Order.

21. The Panel therefore decided that it was fair and in the public interest to proceed with this substantive review hearing in the absence of the Registrant.

Decision

22. The Panel received and accepted the advice of the Legal

23. The Panel was mindful of its powers upon a review of a Suspension Order under Article 30(1) of the Health Professions Order 2001 and had regard to the guidance contained in the HCPTS Practice Note: Review of Article 30 Sanctions Orders, the HCPTS Practice Note: Impairment and the HCPC Sanctions Policy

24. The Panel noted that its task is to conduct a comprehensive review of the current order on the basis of the information available today. It must not seek to go behind the findings of the previous panels.

25. The Panel must first decide whether it finds the Registrant’s fitness to practise to be currently impaired by reason of lack of health.

25. The Panel noted that in accordance with the guidance in the case of Abrahaem v General Medical Council [2008] EWHC 183 (Admin), the persuasive burden to satisfy the Panel of fitness to practise at a review hearing is upon the Registrant.

27. The Panel further noted that if it found the Registrant’s fitness to practise to be currently impaired, then it should consider what steps to take in respect of the current order in accordance with its powers under Article 30(1) of the Health Professions

28. In reaching its decision, the Panel carefully considered all of the documents provided to it in the substantive review hearing bundle and the submissions made on behalf of the HCPC by Ms Sampson. The Panel noted that no submissions or evidence had been provided by, or on behalf of, the The Panel further noted that the last contact from the Registrant appears to be his email dated 22 November 2023, which is at page 13 of the bundle in which the Registrant states that he doesn’t intend to “reregister at any point”.

29. This was followed by an email from the Registrant dated 6 December 2023, which the Panel has received as an addendum, in which the Registrant states that he doesn’t feel able to return to his previous role at this time. However, he’s in the process of considering his options for the future.

30. The Panel first considered whether the Registrant’s fitness to practise remains currently impaired.

31. The Panel carefully considered the reasoning set out in the written determinations of the substantive hearing panel. The Panel noted the Registrant’s non-engagement with these proceedings today. The Panel also noted that the Registrant has not complied with the Conditions of Practice Order which was imposed by consent on 16 January 2023. He has not provided any information to this Panel in relation to his current circumstances and has not confirmed that he still wishes to pursue a career as an HCPC registered Operating Department Practitioner.

32. The Panel determined that there is no evidence before it today to demonstrate that he is not currently impaired. There is no information before the Panel to demonstrate a willingness or ability to engage with any necessary steps to allow him to prove that he is no longer impaired.

33. The Panel was satisfied that in all of these circumstances, the public remains at risk of harm from the Registrant’s continued impairment of fitness to practise. The Panel was therefore satisfied that the Registrant’s fitness to practise remains currently impaired in respect of the personal component of impairment.

34. The Panel next considered the public component of impairment. Having regard to the lack of information before the Panel from the Registrant, this Panel concluded that a finding of current impairment was required to maintain public confidence in the profession.

35. Having found that the Registrant’s fitness to practise remains currently impaired by reason of his health, the Panel next considered its powers as set out in Article 30(1) of the Health Professions Order.

36. The Panel considered the available sanctions in ascending order of restrictiveness.

37. The Panel was satisfied that to take no action or to impose a Caution Order would not provide the necessary level of public protection. The Panel was further satisfied that neither course of action would meet the wider public interest considerations.

38. The Panel next considered whether it would be appropriate to continue the Conditions of Practice Order. However, the Panel concluded that such an order would not be appropriate where there has been no engagement from the Registrant and no indication of his willingness to comply with conditions of practice.

39. The Panel therefore considered whether a Suspension Order would be appropriate. The Panel noted that period of suspension would allow the Registrant an opportunity to engage in this process and begin to demonstrate that he has addressed the issues relating to his health. The Panel therefore concluded that a period of suspension was adequate to fully protect the public and to maintain the public’s trust and confidence in the profession.

40. The Panel decided that in all of the circumstances, the proportionate and appropriate sanction was to impose a Suspension Order from the date when the current Order expires. The Panel concluded that 12 months is the appropriate period. This will allow the Registrant a further opportunity to address the issues relating to his Health and to re-engage with the HCPC The Panel strongly urges the Registrant to do so.

41. This Panel considered the information which is likely to assist a future review Panel remains the same as recommended by the original Panel, namely:

• Written confirmation that the Registrant still wishes to pursue a career as a HCPC registered Operating Department Practitioner.
• Certificates evidencing any relevant Continuing Professional Development;
• An update from his medical practitioner regarding his current health status
• An update regarding what steps he has taken to address issues surrounding his health.

Order: That the Registrar is directed to annotate the register entry of Mr Upton with a Suspension Order for a period of 12 months from the date this Order comes into effect.

The Order imposed today will apply from 16 January 2024.

Right of Appeal

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

History of Hearings for Mr Peter Upton