Hamid Khan

Preliminary Matters
Service
1. The Panel was provided with documentation which proved that the Notice of Hearing was sent by email on 30 January 2023 to the Registrant’s registered email address. In those circumstances the Panel was satisfied that Service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).
Proceeding in absence
2. Mr Foxsmith submitted that the Registrant had voluntarily absented himself, or at the very least had made no application to adjourn the hearing, and in all the circumstances it was in the public interest to proceed with the hearing in his absence.
3. The Panel was provided with an email chain of correspondence between the HCPC and Mr Khan in which:
- the HCPC had emailed the Registrant, on 3 May 2023 and 9 May 2023, to ask whether he would be attending the hearing;
- the Registrant had replied, on 9 May 2023, stating:
“Apologies for the late reply. I am unfortunately not going to attend due to long standing family illness. I could potentially attend one day but not the full hearing. So I am unfortunately having to decline the opportunity to attend the hearing”;
- the HCPC had emailed back, on 10 May 2023, encouraging his attendance and warning that an application would be made to proceed in his absence if he did not attend;
- the Registrant had responded, on 12 May 2023, stating:
“Thank you for your reply and continued advice and support, I appreciate immensely. While this is a difficult and challenging time, I cannot justify rescheduling this hearing. This has taken time and effort to organise individual schedules and timetables to facilitate this.
I have complete faith in the transparency and judgement of the HCPC panel. I feel they will conclude to a fair decision, and considerate [sic] that I have made an error in judgement, and have actively and continually try to correct that. The error will not define my practice as I will respect the decision and focus my energy to maintain the HCPC code of conduct”;
- the HCPC had emailed, on 12 May 2023, providing guidance on how the Registrant could attend, either for one single day if this was his choice, or for the entirety of the hearing, and repeating the warning that an application would be made to proceed in his absence if he did not attend.
4. The Panel accepted the advice of the Legal Assessor, which included reference to guidance given in the cases of Jones (2003) 1 AC 1 and GMC – v Adeogba [2016] EWCA Civ 162.
5. The Panel concluded that the Registrant had decided to absent himself from the hearing. He had not requested an adjournment and there was nothing to suggest that he would attend if the hearing were to be adjourned to a later date. The HCPC had arranged for three witnesses to attend the hearing. In all the circumstances the Panel concluded that it was in the public interest to proceed in the absence of the Registrant.
Application to amend the Allegation
6. At the commencement of the hearing, Mr Foxsmith applied to amend the Allegation in the manner set out at the beginning of this written determination. He submitted that the Registrant had been given notice of the proposed amendments, which were grammatical or minor in nature.
7. The Panel accepted the advice of the Legal Assessor.
8. The Panel decided to allow the entirety of the proposed amendments on the basis that they did not alter the substance of the allegation and caused no prejudice to the Registrant.
9. Accordingly, the Panel allowed the application.
Witnesses
10. The Panel heard live evidence from:
• GM – Senior Lecturer and Course Leader of the BSc (Hons) in Operating Department Practice at University of Central Lancashire (“the University”) at the material time
• BJ – Head of School (Sport and Health Sciences) at the University at the material time
• AD – Assistant Divisional Director of Nursing for the Surgical and Anaesthetic Division within East Lancashire Healthcare Trust (“the Trust”) at the material time.
Background
11. Prior to the time of the Allegation, the Registrant had been employed by the Trust as an Operating Department Practitioner (ODP). He was dismissed for gross misconduct on 16 April 2021, following an internal disciplinary hearing conducted by the Trust.
12. In March 2021, the Registrant applied for a role at the University via an application form on the University website.
13. It is alleged that following his completion of the application form in March 2021, and over the remainder of the application process, which stretched from an interview on 19 April 2021 through to 4 June 2021, in which time there was email and telephone correspondence, the Registrant omitted to disclose the fact that he had been dismissed by the Trust. Rather, he suggested that his decision to move was based on personal reasons connected with his own well-being.
14. After the Registrant secured the role at the University he was approached for references from previous employers. He provided referees who were unsuitable in that one was on long term sick leave, and the other was unavailable. When references from more appropriate referees were requested, the Registrant still did not provide details of his substantive manager at the Trust. The University was then informed of the Registrant’s disciplinary history and as a result of this, withdrew its offer.
Evidence
15. AD, employed by the Trust, confirmed that she had chaired the Trust’s internal disciplinary hearing on 16 April 2021 where the decision had been made to dismiss the Registrant for gross misconduct. She did not provide any detail regarding the allegation or reasons for his dismissal. However she did confirm that the Registrant had been present when the decision was announced and that he had been sent a letter, on 19 April 2021, confirming his dismissal.
16. GM and BJ, employed by the University, informed the Panel that in February 2021 the University had decided to recruit for a work based tutor to join the Apprenticeship Programme for ODPs. The Registrant had applied for the role in March 2021 by means of the University website. The application form had not contained any question requesting the applicant to disclose any previous or current employment issues. In light of this, it was specifically accepted by BJ that no criticism should attach to the fact that the Registrant made no mention of his dismissal on the application form.
17. However on 19 April 2021 the Registrant was interviewed for the role by GM and BJ. It was their evidence that whilst the Registrant was not specifically questioned about the reason for his departure from the Trust, he was provided with ample opportunity to do so, and yet did not disclose anything that was a cause for concern. BJ informed the Registrant that day by telephone that his application had been successful.
18. On 23 April 2023 the Registrant sent an email accepting the offer. He explained that he had since left the Trust and was working as a Temporary Lead ODP at a private hospital. He explained that he had changed jobs after he had applied to the University and that his circumstances were not yet common knowledge. He said that he “needed to change for myself and for my well-being”. BJ said that this was the first time that the Registrant had provided a reason for leaving the Trust. GM said that he had never questioned the reason for the Registrant’s departure from the Trust due to previous correspondence in which the Registrant had explained that he had had a troubled year due to his ill-health and was contemplating a different path.
19. Following the Registrant’s acceptance of the offer of employment with the University, BJ became aware from the University’s Human Resources department that they were having difficulties contacting the Registrant’s referees. The Registrant had provided the contact details of two individuals who were either no longer in the post or were on long-term sick leave. BJ stated that he attempted to address this issue by telephoning the Registrant, but the Registrant did not respond to his calls.
20. On 12 May 2021 GM phoned the Registrant and alerted him to the fact that the University was experiencing difficulty in contacting the Registrant’s named referees. The Registrant said that he would contact BJ. The Registrant did not disclose any issues regarding his employment with the Trust in the course of this telephone call.
21. BJ then received an email from the Registrant on 14 May 2021 providing contact details for an alternative referee, namely an Orthopaedic Consultant at the Trust.
22. On 27 May 2021 GM was informed through a contact at the Trust that the Registrant had been dismissed. GM informed BJ of this who then emailed the Registrant to explain that it was standard policy to provide the contact details for the Theatre Manager or Matron at the Trust. The Registrant did not provide these details but instead emailed back to confirm the roles of the referees he had already provided.
23. On 1 June 2021 the University received confirmation from AD that the Registrant had been dismissed from the Trust for gross misconduct. On 3 June 2021 BJ notified the Registrant that, in light of the information received, the University was rescinding its offer.
24. In evidence both GM and BJ expressed their view that the Registrant had been under a duty to disclose his dismissal, in line with his position as a registered ODP.
Submissions
25. Mr Foxsmith confirmed that the Registrant has no criminal or regulatory adverse findings against his name; he submitted that the Registrant should be treated as a man of good character.
26. Mr Foxsmith submitted that Allegation 1 should be found proved on the basis that the Registrant did not disclose his dismissal at any point during interview or in later telephone and email communication.
27. Mr Foxsmith submitted that the Registrant’s omission was deliberate and dishonest.
Decision on Facts
28. The Panel accepted the advice of the Legal Assessor, who advised on the burden and standard of proof, the appropriate approach to the Registrant’s good character, and the definition of dishonesty as established in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, namely:
“When dishonesty is in question 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.”
29. Throughout its deliberation the Panel took account of the Registrant’s good character, concluding that this made it less likely than might otherwise be the case that the Registrant had acted in the manner alleged.
30. The Registrant had not provided any submissions or documentation for the Panel other than the email of 12 May 2023 referred to in Paragraph 3 of this determination, in which he alluded to the fact that he had “made an error in judgement" which he would “actively and continually try to correct”. The Panel regarded this as ambiguous and attached no weight to it.
31. The Panel took into account the evidence of GM, BJ and AD, together with the documentation provided by them. The Panel found all three witnesses to be credible and reliable. Their oral evidence was consistent with their written statements and with the documentary evidence they provided.
32. On the basis of the evidence of AD, it was clear that as of 16 April 2021 the Registrant was aware that he had been dismissed for gross misconduct. This was because he had attended Trust’s Disciplinary Hearing on that date and heard the decision as it was announced. Further he had been sent a letter of dismissal on 19 April 2021.
33. The Panel concluded that Allegation 1 could not be proved by means of the application form itself because the form had not included any specific question asking the Registrant to disclose any previous employment issues, and had been completed in March 2021, prior to the Registrant’s dismissal on 16 April 2021.
34. However it was clear that the Registrant had been provided with ample opportunity, between the date of his dismissal on 19 April 2021 and the date when his offer of employment with the University was rescinded on 4 June 2021, to disclose the fact that he had been dismissed from the University for gross misconduct. In that time he had attended an interview with the University and had communicated with the University by means of emails and telephone conversations. He had not disclosed his dismissal at any stage.
35. On that basis the Panel found Allegation 1 proved.
36. In considering Allegation 2, the Panel concluded that the Registrant must have known that it would have been proper to disclose his dismissal for gross misconduct at some stage, be it in the course of his interview of 19 April 2021 or in the course of later correspondence. The Registrant was applying for a position which required HCPC registration and thus was subject to a professional duty of candour to be open and honest. Instead he had failed to disclose and had informed the University, in his email to GM of 23 April 2021, that he had left the Trust because he “needed to change for myself and for my well-being”. The Panel concluded from this that he had deliberately withheld the fact of his dismissal for fear that he would lose his new offer of employment if he were to make this disclosure.
37. In considering the issue of dishonesty, in line with the decision in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017], the Panel concluded that, in accordance with his duty as a registered ODP to act honestly at all times, the Registrant must have known that he should have made disclosure in the course of an interview process that was connected with his registration. His omission to disclose could not be explained away by reason of innocent or negligent mistakes. Rather, the Panel concluded that the Registrant had deliberately failed to disclose for fear of losing his new job with the University. His state of mind was further evidenced by his submission of two unsuitable referees, one of whom was on long term sick leave, and the other who was unavailable.
38. The Panel concluded that this behaviour was clearly dishonest by the standards of ordinary decent people.
39. Accordingly the Panel found Allegation 2 proved.
Decision on Grounds
40. Mr Foxsmith submitted that the allegation of dishonesty was serious, was a breach of Standards 9.1 and 9.2 of the HCPC Standards of Conduct, Performance and Ethics 2016, and amounted to misconduct.
41. The Panel accepted the advice of the Legal Assessor who provided guidance which included reference to the cases of Roylance v General Medical Council No 2 [2001] 1 AC p311, Cohen v GMC [2008] EWHC 581 and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927.
42. The Panel found that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics 2016:
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
9.2 You must be honest about your experience, qualifications and skills.
43. The Panel concluded that the Registrant’s dishonesty amounted to a serious departure from the standards of conduct that could properly be expected of an ODP. He had deliberately withheld information from a prospective employer for personal gain in the form of future employment at a time when he had been dismissed from his earlier job for gross misconduct.
44. The Panel determined that this dishonesty amounted to misconduct.
Decision on Impairment
45. Mr Foxsmith submitted that the Registrant’s fitness to practise is currently impaired on both the personal and public components. He emphasised the fact that the Registrant had provided no evidence of remediation or insight.
46. The Panel accepted the advice of the Legal Assessor, who provided guidance on the meaning of impairment, including reference to the cases of Council for Healthcare Regulatory Excellence v (1) NMC (2) Grant [2011] EWHC 927 and Cohen v GMC [2008] EWHC 581. The Panel also took note of the HPTS Practice Note, entitled ‘Finding that Fitness to Practise is “Impaired”’.
47. The Panel asked itself whether the misconduct was easily remediable, whether it had been remedied and whether it was highly unlikely to be repeated. It also considered whether the Registrant had, or was liable in the future to, present a risk of harm to the public; whether he had, or was liable in the future to, bring the profession into disrepute; whether he had, or was liable in the future to, breach one of the fundamental tenets of the profession; and whether he had, or was liable in the future to, act dishonestly.
48. The Panel concluded that dishonesty is by its nature difficult to remediate. Further the Panel had been provided with no evidence to suggest that the Registrant had attempted to remediate his dishonesty. He had provided no evidence to show that he had developed insight into his misconduct. The only submissions provided by the Registrant were those contained in his email of 12 May 2023 referred to in Paragraph 3 above, in which he had submitted that he had:
“made an error in judgement, and have actively and continually try to correct that. The error will not define my practice as I will respect the decision and focus my energy to maintain the HCPC code of conduct”.
The Panel concluded that this did not demonstrate insight into the dishonesty that had been found proved.
49. In those circumstances the Panel concluded that there is a risk that the Registrant will repeat his misconduct if permitted to practise unrestricted. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired on the personal component.
50. The Panel also concluded that the Registrant’s dishonesty demands a finding of impairment to uphold proper professional standards and maintain public confidence in the profession and its regulator. Accordingly, the Panel concluded that the Registrant’s fitness to practise is also currently impaired on public component.
Submissions on Sanction
51. Mr Foxsmith was asked at this stage to inform the Panel about the reason for the Registrant’s dismissal for gross misconduct, as the Panel had now reached its decision on the facts and impairment, meaning that any potential prejudice arising from knowledge of those details was no longer of concern, whereas the information was of potential relevance to the Panel’s choice of sanction.
52. Mr Foxsmith agreed to do this and informed the Panel that the Registrant’s dismissal had involved a workplace interaction on 24 December 2020, and had taken place in the context of a Christmas party for various members of the Trust. The incident had not involved dishonesty, had not taken place in a clinical setting and had not reached the criminal threshold; there was no criminal culpability and no report had been filed to the police.
53. In his submissions on Sanction, Mr Foxsmith took the Panel to the HCPC Sanctions Policy. He submitted that whilst there were no aggravating factors this was relatively serious dishonesty in that there had been numerous occasions when the Registrant could have disclosed the relevant information but did not do so. Mr Foxsmith submitted that on a realistic basis there were only two suitable options available to the Panel, namely suspension or a striking off order.
Decision on Sanction
54. The Panel accepted the advice of the Legal Assessor, and took into account the current Sanctions Policy published by the HCPC. The Panel kept in mind that the purpose of sanction is not to be punitive but is to protect the public and the wider public interest. The Panel understood that it should apply the principle of proportionality, by weighing the Registrant’s interests against the need to protect the public and the wider public interest, with a view to applying the least restrictive sanction available to meet those needs.
55. The Panel concluded that there were no aggravating factors in this case.
56. The Panel concluded that the Registrant’s misconduct was mitigated by the fact that he had no previous adverse criminal or regulatory findings against his name.
57. The Panel accepted that the misconduct found proved had not involved any patient harm. The Panel was satisfied that the risk that the Registrant would repeat his misconduct did not involve any public protection concerns; there was no suggestion that any members of the public would be placed at risk of harm.
58. The Panel concluded that in view of the seriousness of the misconduct, namely dishonesty, to take no further action, to order mediation or to impose a caution order would be insufficient to protect the public interest. It could not be said that the misconduct was minor, and the Registrant had shown no evidence of remediation or insight.
59. The Panel considered a Conditions of Practice Order, but concluded that this would not be workable in light of the nature of the misconduct, namely dishonesty, for which conditions could not be formulated.
60. The Panel next considered a Suspension Order.
61. In considering the Sanctions Guidance, the Panel concluded that the concerns represented a serious breach of the Standards of conduct, performance and ethics, and accepted that the remaining factors set out in Paragraph 121 of the Sanctions Guidance, indicative of the appropriateness of suspension, were missing from this case, in that:
• the Registrant had not demonstrated insight;
• there is a risk that the Registrant will repeat his behaviour;
• there was no evidence before the Panel suggesting that the Registrant is likely to be able to resolve or remedy his failings.
62. The Panel also considered Paragraph 58 of the Sanctions Guidance, dealing with the different levels of seriousness of dishonesty, and concluded that:
• Whilst the Registrant’s failure to disclose could not be described as an isolated event, in that it had occurred on more than one occasion, it had been concerned with protecting one sole piece of information, namely his dismissal;
• The Registrant had taken a mainly passive role, in that his behaviour amounted to omissions, with the caveat that he had sent the email of 23 April 2021;
• The Registrant had made no early admission;
• The Registrant was of good character.
63. The Registrant had been dishonest in seeking employment as a registered ODP. He had failed to disclose the fact that he had been dismissed from his previous place of employment for gross misconduct, despite having had opportunities in which to do so in his interview and later communication by email and phone. He had not provided any evidence of remediation or insight and there was a risk that he would repeat his dishonesty.

Order: That the Registrar is directed to suspend the registration of Mr Hamid Khan for a period of 12 months from the date this order comes into effect.

The order will apply on the expiry of the appeal period.

Interim Order
69. Mr Foxsmith applied for an Interim Suspension Order to cover the appeal period on the ground that it is in the public interest to do so.
70. The Panel was satisfied that it was appropriate to consider this application in the absence of the Registrant because he had been warned, in the Notice of Hearing, that such an application might be made at this stage.
71. The Legal Assessor advised the Panel that it may impose an Interim Order when to do so is necessary to protect the public or is otherwise in the public interest, or is in the interests of the Registrant himself. The Legal Assessor also reminded the Panel that its decision regarding the imposition of any interim order should not conflict with its substantive decision, which rested on public interest considerations alone.
72. The Panel was satisfied that the Registrant does not pose a risk of harm to the public, and that an interim order is not required to protect the public.
73. The Panel was also satisfied that an interim order is not in the Registrant’s own interests.
74. However, the Panel was satisfied that an interim order is otherwise in the public interest. The Panel based this decision on the existing risk that the Registrant will repeat his dishonesty, together with the absence of any evidence of remediation or insight. Those factors led the Panel to conclude that public confidence in the profession would be seriously harmed if the Registrant were to be allowed to remain in unrestricted practice pending any appeal. The Panel was of the view that a member of the public, in possession of all the facts, would be shocked or troubled to hear that the Registrant had been permitted to practise during the appeal period following the Panel’s findings on misconduct, impairment and sanction, in light of the nature of the misconduct, the risk of repetition and the lack of insight or remediation.
75. The Panel considered that an interim conditions of practice Order would not be workable in light of the nature of the misconduct, namely dishonesty.
76. Accordingly, the Panel decided to impose an Interim Suspension Order for a period of 18 months to cover the appeal period should the Registrant decide to appeal, failing which it will expire at the conclusion of the appeal period of 28 days from today.

History of Hearings for Hamid Khan