Angela Mosedale
Profession: Operating department practitioner
Registration Number: ODP12789
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 07/02/2024
End:
17:00 16/02/2024
Location:
Virtually via videoconference
Panel: Conduct and Competence Committee
Outcome: Caution
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Allegation
As a registered Operating Department Practitioner (ODP12789) your fitness to practise is impaired by reason of your misconduct. In that:
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
a. On 29 January 2020, you said to Colleague D that you, “don’t trust them anyway” or words to that effect;
b. On or around February 2020, Colleague X observed you making the following statements regarding your colleagues of Filipino descent;
i. That they “all stick together” or words to that effect;
ii. “Phillipine [Filipinos] are all lazy” or words to that effect;
iii. “Phillipines [Filipinos] get what they want” or words to that effect;
c. On or around February 2020 you commented that you, “need to get Phillipino’s [Filipino’s] out so it will be a better place to work” or words to that effect;
d. As it relates to Colleague H,
i. On or around February 2020, you advised that you did not want Colleague H to learn the Laser as she was, “no good to me” or words to that effect;
ii. On or around February 2020, you encouraged surgeons to raise concerns about Colleague H’s competency.
2. Between 2019 and 2021, your behaviour and/or commuication to your Colleagues at Spire Healthcare was inappropriate in that;
a. On or around January 2020, you told Colleague N, “f**k off andnstop moaning” or words to that effect;
b. On or around 29 September 2020, you said to Colleague A, “you come in whatever time you like and leave whenever you like. Is it because you are Russell's hall lot” or words to that effect;
c. On 05 October 2020, you told Colleague B “how about f**k off dear” or words to that effect;
d. On or around January 2021;
i. When Colleague A asked whether you wanted to lead the team brief, you responded, “you’re in charge check the board” or words to that effect;
ii. Following your comments in Particular 2d(ii), you threw the briefing document at Colleague A;
e. When asked why Colleague C was not present for the afternoon list, your response to Colleague T and/or other colleagues was, “I’ve allowed her to swap because she obviously doesn’t feel comfortable with me and to be honest she was pissing me off anyway” or words
to that effect.
3. On 17 February 2020, you did not assist your colleagues with preparing the Theatre for Service User A’s arrival despite having time to do so.
4. You did not notify the HCPC of your dismissal from Spire Healthcare.
5. The matters set out in Particulars 1 – 4 amount to misconduct.
6. By reason of your misconduct your fitness to practise is impaired
Finding
Preliminary Matters
1. At the outset of the hearing, the Chair confirmed that the Panel had been provided with the following documentation:
i) HCPC hearing bundle consisting of 306 pages;
ii) HCPC case summary consisting of 10 pages;
iii) An index for the Registrant’s bundle consisting of a single page; and
iv) Registrant’s bundle, including a reflective statement, consisting of 104 pages.
Application for parts of the hearing to be heard in private
2. Ms Mills, appearing on behalf of the Registrant, invited the Panel to conduct the parts of the hearing pertaining to the Registrant’s health and family life in private. She submitted that conducting parts of the hearing in private would protect the Registrant’s right to a private life.
3. Ms Collins did not oppose the application for parts of the hearing to be considered in private.
Panel Approach
4. The Panel accepted the Legal Assessor’s advice which had drawn its attention to Rule 10 of the Health and Care Professions Council (Conduct and Competence Committee (Procedure) Rules 2003 (hereafter ‘the Rules’). The Panel also had regard to the HCPTS Practice Note on ‘Conducting Hearings in Private’ and it had regard to the parties’ submissions. The Panel also carefully considered the public interest grounds in the case being heard in public.
Panel decisions in respect of privacy applications
5. Having considered Ms Mills’ application, the Panel was satisfied that the matters pertaining to the Registrant’s health and family life should be heard in private to maintain the Registrant’s right to a private life. The Panel was satisfied, having considered the matter carefully, that the Registrant may suffer disproportionate damage if it did not hear the parts pertaining to her health in private.
6. The Panel therefore ordered that the matters concerning the Registrant’s health be conducted in private.
Application to amend the Allegation
Original Allegation as referred by the Investigating Committee:
‘As a registered Operating Department Practitioner (ODP12789) your fitness to practise is impaired by reason of your misconduct. In that:
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
a. On 29 January 2020, you said to Colleague D that you, “don’t trust them anyway” or words to that effect;
b. On or around February 2020, Colleague X observed you making the following statements regarding your colleagues of Filipino descent;
i. That they “all stick together” or words to that effect;
ii. “Phillipine [Filipinos] are all lazy” or words to that effect;
iii. “Phillipines [Filipinos] get what they want” or words to that effect;
c. On or around February 2020 you commented that you, “need to get Phillipino’s [Filipino’s] out so it will be a better place to work” or words to that effect;
d. As it relates to Colleague COLLEAGUE C,
i. On or around February 2020, you advised that you did not want Colleague COLLEAGUE C to learn the Laser as she was, “no good to me” or words to that effect;
ii. On or around February 2020, you encouraged surgeons to raise concerns about Colleague H’s competency.
2. Between 2019 and 2021, your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
a. On or around January 2020, you told Colleague N, “fuck off and stop moaning” or words to that effect;
b. On or around 29 September 2020, you said to Colleague A, “you come in whatever time you like and leave whenever you like. Is it because you are Russells hall lot” or words to that effect;
c. On 5 October 2020, you told Colleague B “how about fuck off dear” or words to that effect;
d. On or around January 2021;
i. When Colleague A asked whether you wanted to lead the team brief, you responded, “you’re in charge check the board” or words to that effect;
ii. Following your comments in Particular 2d(ii), you threw the briefing document at Colleague A;
e. When asked why Colleague C was not present for the afternoon list, your response to Colleague T and/or other colleagues was, “I’ve allowed her to swap because she obviously doesn’t feel comfortable with me and to be honest she was pissing me off anyway” or words to that effect.
3. On 17 February 2020, you did not assist your colleagues with preparing the Theatre for Service User A’s arrival despite having time to do so.
4. You did not notify the HCPC of your dismissal from Spire Healthcare.
5. The matters set out in Particulars 1 – 4 amount to misconduct.
6. By reason of your misconduct your fitness to practise is impaired.’
7. Ms Collins made an application to amend the Allegation in respect of the following:
i) Stem – removal of the words ‘your fitness to practise is impaired by reason of your misconduct. In that’;
ii) Particular 2 –amendment of the date ‘2021’ and replacement with ‘2022’;
iii) Particular 2(e) – to be deleted;
iv) Particular 3 – to be deleted;
v) Particular 4 to be renumbered to become Particular 3; and
vi) Insertion of a new Particular 4 to read ‘Your comments in particulars 1a and/or 1bi and/or 1bii and/or 1biii and/or 1c and/or 1di and/or 1dii above were racially motivated’.
8. Ms Collins submitted that in respect of Particulars 2(e) and Particular 3 the HCPC offered no evidence because the evidence before the Panel, was insufficient to prove the matters alleged. Ms Collins informed the Panel that the alleged witness to Particular 2(e) had refused to engage in the regulatory proceedings and the HCPC’s view was that there was insufficient evidence to prove the charge.
9. Ms Collins also submitted that the same could be said for Particular 3; as no witness evidence was available from the material before the Panel.
10. In respect of the additional Particular included within the Allegation (Particular 4), Ms Collins submitted that the new Particular 4 had been included to capture the underlying conduct, that being that the Registrant’s conduct was racially motivated. Ms Collins further stated that the inclusion of Particular 4 did not widen the matters to be considered by the Panel, but rather, better particularised the alleged conduct.
11. In relation to the Particular 2, Ms Collins stated that the amendment was required to correct a typographical error to ensure that the date range for the Particular captured the alleged conduct. In respect of the Stem of the Allegation, Ms Collins stated that the removal of the words ‘your fitness to practise is impaired by reason of your misconduct and/or health in that’ was because this wording was already contained within Particulars 5 and 6 and it would prevent the Panel from having to determine fitness to practise prior to considering the Particulars within the Allegation.
12. Ms Collins also submitted that the Panel had an inherent power to make any amendments to the Allegation and she drew the HCPTS practice note titled ‘Case Management Directions and Preliminary Hearings’ to the Panel’s attention.
13. Ms Mills did not object to the proposed amendments to the Allegation.
Panel’s approach
14. The Panel accepted the advice of the Legal Assessor and it had regard to the parties’ submissions and to the documentation provided to it.
Panel decision
15. The Panel concluded, after reviewing each of the proposed amendments to the Allegation, that it would agree to the Stem and Particulars 2 and 3 being amended for the following reasons:
i. the Registrant had not provided any objection to the proposed amendments;
ii. on the whole, the proposed amendments were to provide further clarification and better particularisation of the Allegation; and
iii. the proposed amendments did not heighten the seriousness of the Allegation and the Panel therefore considered that there was no likelihood of injustice to the Registrant.
16. In respect of the application to discontinue Particular 2(e), the Panel considered the evidence before it and noted that the witness to the alleged incident had indicated an unwillingness to engage in the proceedings on the grounds of ill health. The Panel considered whether the HCPC ought to have summonsed the witness by way of witness summons to give evidence before it and determined that this would have been a disproportionate course of action in view of the ongoing health issues of that witness. The Panel also noted that Particular 2(e) was in respect of the Registrant’s alleged engagement with colleagues and, in its view, would not be considered to be at the upper end of the scale of misconduct, had the matter been considered and found proved. Further, the Panel also noted that there remained a number of Particulars before it where it is alleged that the Registrant has conducted herself in a similar manner, to that outlined within Particular 2(e) when engaging with colleagues. The Panel therefore considered that to permit the HCPC to offer no evidence on this Particular would not amount to an undercharging of the matters before it, as the Registrant’s conduct and interactions with colleagues were likely to be scrutinised, by the Panel, as part of its consideration of the wider Allegation before it.
17. In respect of the application to discontinue Particular 3, the Panel noted that the witness who could allegedly attest to the matters outlined, had not responded to the HCPC's attempts to engage with her. The Panel also noted that the witness had also failed to provide a witness statement. In the Panel’s view, having considered the limited evidence before it, the Panel determined that it was unlikely that this matter would be found proved by the Panel upon its consideration of the facts to be determined and the Panel considered that it was therefore appropriate to permit the HCPC to discontinue this Particular. In its consideration of the matter, the Panel also determined, as it had with Particular 2(e), that in light of the matters outlined within the totality of the Allegation, that permitting the HCPC to discontinue this Particular would not amount to an undercharging of the concerns raised.
18. In relation to Ms Collins’ application to add an additional Particular outlining ‘racially motivated’ conduct (Particular 4), the Panel determined that this did not prejudice the Registrant in any way. In forming this view, the Panel noted that Ms Mills had not objected to its inclusion and that she had also accepted that she had prepared the Registrant’s case on the predication that this conduct had been implied within the original wording of the Allegation. The Panel accepted Ms Mills submission on the point. In the Panel’s view, the proposed amendments did not heighten the seriousness of the Allegation as the addition of Particular 4 particularised the underlying implied conduct already outlined within the Allegation. The new amendment made explicit the HCPC’s case, and the Panel therefore considered that there was no likelihood of injustice to the Registrant by allowing the insertion of this new Particular.
19. Consequently, the Panel agreed to all of the proposed amendments to the Allegation and directed that it be amended.
Hearsay application
20. After the Panel had provided the parties with its decision on the application to amend to the Allegation, Ms Collins invited the Panel to consider a hearsay application in respect of the following pieces of HCPC evidence:
i. Particular 1(b) - witness evidence of Colleague X;
ii. Particular 1(c) - witness evidence of Colleague R;
iii. Particulars 1(d)(i) and 1(d)(ii) - witness evidence of Colleague R;
iv. Particular 2(d) – witness evidence of Colleague A; and
v. Particular 3 – witness evidence of SY.
21. Ms Collins submitted that in respect of Particular 1(b), the hearsay evidence was in respect of evidence put forward by Colleague X. Ms Collins stated that whilst she accepted that the evidence in question was the sole and decisive evidence to be placed before the Panel, she submitted that the Panel would hear from another witness, Colleague D, during the course of the proceedings, who could attest to Colleague X’s demeanour and the statements made to her by Colleague X. Ms Collins also informed the Panel that whilst she was not aware of any steps taken by the HCPC to secure the witness’ attendance, nor could she verify what steps, if any, had been taken to make contact with Colleague X, she was not aware of any animosity between the Registrant or Colleague X. She further submitted that it could not be said that Colleague X had a grudge against the Registrant and for this reason the evidence of Colleague X should be admitted into the proceedings to be considered by the Panel.
22. In relation to Particular 1(c) Ms Collins submitted to the Panel that Colleague R was not being called to give evidence by the HCPC as the witness had withdrawn her support for the proceedings. Ms Collins also read, to the Panel, the contents of a telephone attendance note between Colleague R and the HCPC. In which, the witness stated that she could not recall the basis of the conversation that she had with Colleague D and that she was not “comfortable” with the information provided to Colleague D being disclosed or used for the regulatory proceedings. Colleague R also expressed the view, in the telephone attendance note, that she considered the matter to have been handled “very badly” by the Spire Hospital and that the Registrant was “being portrayed in the wrong light”. Ms Collins informed the Panel that again, whilst she noted that this was the sole and decisive evidence before the Panel, questions could be asked of the investigating manager, Colleague D, in due course. Ms Collins also outlined that the HCPC had considered it to be inappropriate to witness summons the witness.
23. In relation to Particular 1(d)(i), Ms Collins told the Panel that Colleague H was not said to be present at the time that the comments were allegedly made by the Registrant, but that Colleague R, was the witness present and that for the above reasons, the witness was not willing to attend to give evidence to the Panel. Ms Collins again accepted that Colleague R’s evidence was the sole and decisive evidence in respect of this Particular, but again stressed to the Panel that questions could be asked of Colleague D in due course. Ms Collins also outlined that the same principles and rationale applied in respect of Particular 1(d)(ii) for the same reasons as provided in respect of Particular 1(d)(i).
24. In relation to Particular 2(d), Ms Collins informed the Panel that Colleague A had originally given a witness statement to the HCPC however upon being asked to sign her witness statement, she had failed to return the document to the HCPC and ceased engaging with the regulator. Ms Collins again accepted that it would be the sole and decisive evidence before the Panel, but stated that questions could be asked of witness SH, the disciplinary manager, when she gave evidence to the Panel in respect of Colleague A’s comments and demeanour. Ms Collins also highlighted to the Panel that the Registrant did not deny making the comments contained within Particular 2, but that she did deny throwing any documentation.
25. Ms Collins further submitted, in respect of Particular 3, that the HCPC was not intending to call witness SY as he was an HCPC employee who gave evidence to the fact that the Registrant did not notify the HCPC of her dismissal from her employment and therefore on the basis that the Registrant intended to admit this particular, she did not consider the evidence to be contentious between the parties.
26. In closing her application to admit the aforementioned hearsay evidence, Ms Collins reminded the Panel that it should first consider whether to admit the hearsay evidence and should it determine to do so, the Panel could then consider what weight, if any, to apply to the evidence before it when considering the facts to be determined.
27. Ms Mills opposed the HCPC’s application to adduce the hearsay evidence and drew the Panel’s attention to the principles outlined within Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565. Ms Mills outlined that in respect of a number of the Particulars, Ms Collins had accepted, on behalf of the HCPC, that the evidence was the sole and decisive evidence. She also submitted that a number of aspects of the Allegation before the Panel were contested by the Registrant and, should the Panel adduce the evidence, the Registrant would not be afforded with an opportunity to cross-examine the absent witnesses on their evidence.
28. Further, Ms Mills also stated that Ms Collins had suggested that there was no good reason for the witness to fabricate their evidence to the Panel however, she submitted there was no authoritative evidence of this submission, by Ms Collins, before the Panel. Ms Mills also drew the seriousness of the charge to the Panel’s attention and she reminded the Panel that the Allegation faced by the Registrant was a serious one and could, if found proved, have a significant impact on the Registrant’s career in terms of reputational damage, earning capacity and a risk of deskilling.
29. Ms Mills also submitted that the HCPC had not submitted a good reason for the absence of some of the witnesses and further highlighted that Ms Collins had been unable to explain to the Panel what steps, if any, had been taken by the HCPC to secure the attendance of the absent witnesses. Ms Mills also submitted that the HCPC had failed to provide any ‘good’ reason as to why the witnesses had not been compelled to attend the hearing.
30. Ms Mills also stressed to the Panel that in her view, the meeting notes provided by Colleague D, did not prove the facts in question and on Colleague D’s own evidence, the statements put forward are a summary of conversations between herself and the other witnesses and it is not clear if the notes were typed contemporaneously or not.
31. Ms Mills, in inviting the Panel to refuse the HCPC application to adduce hearsay evidence reminded the Panel that the HCPC bears the persuasive burden and that in determining whether to admit the evidence, the Panel ought to consider fairness to the Registrant.
Panel Approach
32. The Panel accepted the advice of the Legal Assessor which had drawn its attention to: Rule 10(c) of the Rules; White v Nursing and Midwifery Council: Turner v Nursing and Midwifery Council [2014] EWHC 520 (Admin) [2014] MED LR 205; Ayettry v Nursing and Midwifery Council [2016] EWHC 604 (Admin) Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565; El Colleague Drout v Nursing and Midwifery Council [2019] EWHC 28 (Admin); R v (Bonhoffer) v General Medical Council [2011] EWHC 1585 (Admin); 5th Shipman Inquiry (Dame Janet Smith); HCPTS practice notes titled ‘Competence and compellability of witnesses’ and “Witness and production orders’. The Panel also had regard to the parties’ submissions and the material before it.
Panel Decision
33. The Panel considered the HCPC application to adduce hearsay evidence in respect of three of the Registrant’s colleagues (colleagues X, R and A) with care. The Panel applied the caselaw drawn to its attention and in particular, the Panel noted that it should consider the admissibility of the hearsay evidence prior to determining what weight, if any, to apply to it.
34. The Panel considered each of the factors outlined in Thorneycroft v NMC [2014] EWHC 1565. The Panel was cognisant that the matters outlined in the Thorneycroft case were not an exhaustive list of matters to be considered and that each case should be considered on its own facts.
35. In respect of the hearsay evidence, the Panel noted that Ms Collins had submitted that the hearsay evidence was the sole and decisive HCPC evidence in respect of the Particulars it related to: Particulars 1(b)(i), 1(b)(ii), 1(b)(iii), 1(c), 1(d)(i), 1(d)(ii), 2(d)(i), 2(d)(ii) and 3. Whilst the Panel considered this assertion to be correct, the Panel also observed, having carefully studied the Registrant’s reflective statement and bundle, that not all of the Particulars were denied by the Registrant. For example, the Panel noted that, in respect of Particulars 1(b)(i), 1(d)(i), 2(d)(i) and 3, the Registrant admitted the actions alleged and had provided context and mitigation for her actions and behaviours in her reflective statement. The Panel therefore concluded that where the HCPC sought to rely upon the hearsay evidence to prove Particulars 1(b)(i), 1(d)(i), 2(d)(i) and 3, each of these particulars would be unlikely to be challenged by the Registrant because it was satisfied, having read her reflective piece, that the Registrant either partially or fully admitted her conduct in respect of Particulars outlined above.
36. Notwithstanding this however, the Panel also noted that in respect of Particulars 1(b)(ii), 1(b)(iii), 1(c), 1(d)(ii), 2(d)(ii) the Registrant denies the conduct alleged and the HCPC sought to rely upon the hearsay evidence to prove the Particulars (1(b)(ii), 1(b)(iii), 1(c), 1(d)(ii), 2(d)(ii)).
37. The Panel considered that it was a finely balanced decision. On the one hand, the Panel noted that in respect of the matters denied, the only HCPC evidence available to it at this time, amounted to hearsay evidence which, if the Panel chose to admit, the Registrant would not be afforded with an opportunity to challenge via questioning. However, the Panel also noted that this case did not relate to a sole complainant, there were documents which the Panel could scrutinise and the disciplinary investigation manager (Colleague D), who adduced the hearsay evidence, was due to give evidence to the Panel. The Panel considered that Colleague D would be able provide an account of how the three colleagues had interacted with her after they had made their complaints to her and that she may also be able to provide helpful contextual background information to the Panel in respect of the evidence before it. The Panel also noted that Colleague D’s evidence, which included notes relating to her engagement with the individuals concerned, would be subjected to critical scrutiny and challenge by Ms Mills and the Panel would then be able to determine what weight, if any, to attach to the hearsay evidence thereafter.
38. Whilst the Panel noted Ms Mills’ submissions to it on whether or not the witnesses would have had reason to fabricate their allegations, the Panel considered that Colleague D would be able to answer questions on this point and enable the Panel to determine, what weight, if any to place on the evidence before it.
39. In respect of the HCPC’s contact with witnesses and attempts to secure witnesses attendance, the Panel noted that the HCPC had taken a statement from (Colleague A) and that she had failed to return the statement to it. In the Panel’s view whilst it could not be said that the HCPC had exhausted all measures to secure her attendance, it considered that it had taken some steps to try and secure her attendance. In relation to (Colleague R), the Panel noted that it had a telephone attendance note between her and the HCPC whereby (Colleague R) had expressed her own views about the investigation conducted by Colleague D and how she believed the Registrant had been mis-portrayed during the Hospital’s investigation. In respect of this piece of evidence, the Panel considered that it may support the Registrant’s case that this material be admitted and be put to Colleague D. In respect of (Colleague X), whilst the Panel noted that Ms Collins was not able to confirm what steps had been taken by the HCPC to secure her engagement or attendance at the hearing, the Panel balanced this against its duty to safeguard the public and fairness to the Registrant.
40. The Panel noted that a number of witnesses had reportedly been reluctant to engage in proceedings. It also noted the seriousness of the Allegation before it. The Panel considered that it included behaviour which, if found proven, may be considered to be racist and inappropriate towards the Registrant’s colleagues at the Hospital.
41. The Panel had regard to public protection and maintaining confidence in the ODP profession. Balancing the protection of the public and the potentially serious concerns of racially motivated comments and inappropriate conduct and/or behaviour, together with the suggestion in the evidence of a partial and an improper investigation process, the Panel determined that there was a need for it to perform its inquisitorial role to establish the context and facts surrounding the Allegation and to be able to question Colleague D about all of the witnesses to whom she had spoken.
42. In determining to admit the hearsay, the Panel noted that it could, once it had heard from Colleague D, consider what weight if any to attach to the evidence before it. Conversely, not to admit the hearsay evidence could potentially lead to particulars contained within the Allegation, which the Panel noted were serious in nature, falling away when the Panel had not had an opportunity to test the evidence or determine the credibility of any witnesses.
43. Therefore, the Panel determined to admit the hearsay evidence to permit it to perform its inquisitorial role and allow it to explore all of the evidence presented as well as allowing Colleague D to be cross-examined upon it.
Admissions
44. After the Allegation was read into the record, the Registrant stated that she partially admitted Particulars: 1(a), 1(b)(i), 1(d)(i), 2(c) which Ms Mills sought to clarify in oral submissions to the Panel and that she fully admitted Particulars: 2(a), 2(b), 2(d)(i) and 3.
Background
45. The Registrant is an Operating Department Practitioner (‘ODP’) (registration number 12789) who was employed by Spire Healthcare (‘hereafter ‘the Hospital’) before being dismissed following a disciplinary hearing on 3 March 2021.
46. The Registrant was subject to two disciplinary hearings during her employment at the Hospital.
47. On 1 April 2020, the Registrant attended a disciplinary hearing in respect of concerns raised that she (i) acted in an unprofessional manner which affected her colleagues, including unpleasant communication towards others which caused feelings of intimidation and bullying; and (ii) she demonstrated behaviour which involved racist comments towards Filipino members of staff. The Registrant attended the hearing and made submissions in response. The outcome of the disciplinary hearing was that the Registrant would receive a final written warning which would be on her file for a period of 12 months.
48. On 02 March 2021, the Registrant attended a second disciplinary hearing in respect of concerns that she (i) breached the company's prevention of bullying and harassment policy; and (ii) failed to follow the HCPC Code of Conduct. The Registrant was still subject to a final written warning (issued on 1 April 2020) from the first disciplinary hearing and she attended the second disciplinary hearing with a representative from her union and made submissions in response. The outcome of the second disciplinary hearing was that the matters were found proved and the Registrant was dismissed on the grounds of serious misconduct. The Registrant appealed this decision.
49. On 13 April 2021, an appeal meeting was held with the Registrant attending being represented by a person from her union. The outcome of the appeal was that the dismissal was upheld.
50. On 14 May 2021, the HCPC received a referral from the Theatre Manager from Spire Healthcare relating to the Registrant.
Summary of evidence
51. The HCPC relied upon the evidence of seven witnesses. The witnesses were as follows:
i. SH – Business Development Director at Spire Healthcare;
ii. EI – Hospital Director at Spire Healthcare;
iii. Colleague B – Student ODP at Spire Hospital;
iv. PW – Clinical Governance Manager at Spire Hospital;
v. Colleague C – Assistant Practitioner at Spire Hospital;
vi. Colleague N – Perioperative Practitioner at Spire Hospital; and
vii. Colleague D – Theatre Manager at Spire Hospital.
52. The HCPC also relied upon the evidence contained within its bundle. In addition to the following further documents:
i. A two-page email, dated 18 September 2023, exhibiting a telephone attendance note between the HCPC’s instructed solicitors (Blake Morgan LLP) and (Colleague R), dated 3 April 2023;
ii. An HCPC ‘Anonymised Schedule’;
iii. A two-page document identifying the hearsay evidence to be adduced by Ms Collins as part of the HCPC’s hearsay application;
iv. An unredacted Appeal Meeting Outcome Letter, consisting of four pages, dated 19 April 2021; and
v. An unredacted copy of the Investigation report for the Registrant’s grievance.
53. The Registrant also gave evidence to the Panel and relied upon the documentation contained with her bundle, in addition to a seventy-six-page document, entitled ‘combined emails between the Registrant and Colleague C’, in addition to a single page plan of the Theatre in the Hospital, which was also included within the same bundle of documents.
54. The accounts provided below are a summary of the evidence of each of the witnesses to the Panel and are not a verbatim account of the evidence provided.
Witness SH
55. Witness SH informed the Panel that she is the Business Development Director at Spire Hospital and that she had been in this role since February 2022. SH also told the Panel that prior to this role, she was the Business Manager for Spire, Little Aston Hospital (‘the Hospital’), and in that role, she knew of the Registrant but had not communicated with her prior to her involvement in the Registrant’s disciplinary hearing in March 2021.
56. SH gave evidence to the Panel that an investigation report was prepared, by Colleague D, into allegations against the Registrant relating to misconduct whilst working as an Operating Department Practitioner (‘ODP’) at the Hospital. The recommendation from the report prepared by Colleague D, was that there was a case to answer and the matter should progress to a disciplinary meeting, which the Registrant was required to attend on 2 March 2021.
57. SH told the Panel that she led the disciplinary meeting and made the final decision to dismiss the Registrant from her employment. SH also told the Panel that at the time of her dismissal the Registrant was subject to a live final written warning issued on 1 April 2020 as a result of previous misconduct which had also led to an internal investigation and disciplinary meeting. SH told the Panel that when considering whether to dismiss the Registrant from the Hospital, she had all of the documentation relating to the final warning previously issued to the Registrant, at her disposal.
58. SH also produced for the Panel to consider, the minutes of the disciplinary meeting which was attended by her, a member of the Hospital’s human resources (‘HR’) team, the Registrant and the Registrant’s Unison representative. SH also told the Panel that in addition to the meeting with the Registrant, she also interviewed two witnesses to assist with her decision making; Colleague C and Colleague A. SH told the Panel that at the time she interviewed both of the witnesses, they were both in tears when recounting the Registrant’s behaviour towards them.
59. SH also told the Panel that following on from her decision to dismiss the Registrant, the Registrant appealed her decision and the matter was then passed on to witness EI, who was the Director of the Hospital.
60. SH told the Panel that during the course of her interviews with witnesses Colleague C and Colleague A, that she typed up her notes of the interviews with the witnesses there and then and both witnesses confirmed that they were content with the contents outlined therein. However, SH also confirmed during questioning that she had not asked each witness to sign a copy of her notes at each of their interviews conducted by her.
61. Further, in response to questioning from Ms Collins, SH told the Panel that she thought the “how about fuck off dear” comment was made to a “gentleman”, and towards someone else who was in theatre, but not made directly to Colleague C. SH also later accepted, during cross-examination from Ms Mills, that she had not interviewed any other individuals during the course of her investigation and she had not interviewed Colleague B, notwithstanding the fact that she had known that the comment “how about fuck off dear” was alleged to have been directed towards Colleague B and he was the only other person present who could attest to what he saw and heard on the day in question.
62. SH also told the Panel that she could not explain why the wording of the interview note, which she claimed to have prepared as part of her interview with Colleague A, was the identical wording to that outlined within another note, contained within Colleague D’s investigation report.
63. In response to Panel questions, SH stated that there was a policy for who conducts internal investigations within the Hospital and she did not conduct the investigation. SH told the Panel that her role was to undertake the disciplinary hearing and that within that, she had a choice as to who to interview. SH also told the Panel that the Hospital policy, which was not before the Panel as an exhibit, also outlined who conducts and leads an investigation and also outlines who interviews witnesses. SH stated that this could be the same person as the one who determines the outcome of the investigation and grievance.
64. SH also informed the Panel, in response to its questions, that it was very “very distressing” for her to see both Colleague A and Colleague C crying during her interviews with them and that as a consequence of them crying she had formed the view that there was “no possibility” that their accounts “were made up or exaggerated”. SH also told the Panel that she could “see that they were speaking the truth” and that you could look and tell and reach conclusions about the genuineness of an account by the demeanour of the witness.
Witness EI
65. Witness EI informed the Panel that he is the Director at the Hospital and that he has held this position since January 2020.
66. EI also told the Panel that, prior to his involvement in the Registrant’s appeal against the decision to dismiss her, he did know the Registrant in a professional capacity. However, EI also told the Panel that he was never the Registrant’s manager, nor had he ever worked in the same team as her.
67. EI gave evidence to the Panel that the Registrant exercised her right to appeal against the decision of witness SH to dismiss her on 2 March 2021 and that the Registrant provided her grounds of appeal, which EI exhibited to the Panel. EI told the Panel that he was appointed as the appeal hearing lead as it was considered appropriate for him to do so as he was not involved with the investigation and because he held a senior status within the hospital.
68. In response to questions from Ms Collins, EI told the Panel that his role, as appeal hearing lead, was to ensure several items. Namely: 1) that the proper HR process was followed; 2) that an appropriate investigator was appointed; 3) that the investigation looked properly at all of the evidence available to them in making their decision; 4) that the investigator appropriately applied the balance of probabilities to any considerations that they had made; and 5) to consider whether there was any new evidence that the Registrant wished for him to review.
69. EI told the Panel that the minutes of the appeal meeting were prepared and he produced a copy of the minutes of the meeting for the Panel’s consideration. EI told the Panel that the appeal meeting was undertaken on 13 April 2021 and that the minutes of the meeting represented what was discussed by him and the Registrant, in the presence of the Registrant’s representative.
70. EI told the Panel that after considering the matter, he upheld SH’s decision to dismiss the Registrant and that the reasons for his decision were communicated to the Registrant by letter, on 19 April 2021.
71. In response to matters put to him during cross-examination, EI told the Panel that, with regard to ‘listening meetings’ held with all of the witnesses as part of the investigation, he accepted that there was a risk of confirmation bias, if witnesses were all interviewed together in the same room and that he would also expect any communications pertaining to the investigations to have been disclosed to the Registrant as a matter of fairness.
72. EI also stated, during cross examination, that he could not recall JB having been spoken to and that he also accepted that failing to speak to an alleged victim of a verbal assault, would not have been best practice and that upon reflection, a statement from JB should have been taken.
73. EI also accepted that he had been unable to ascertain, with any certainty, whether the Registrant had thrown briefing documents at a colleague, as alleged, and he informed the Panel that he had outlined this fact within the appeal letter outcome to the Registrant.
Witness PW
74. Witness PW told the Panel that her current job title is Clinical Governance Manager for the Hospital and that she has been in this post since September 2022. PW also told the Panel that she was involved in an internal investigation relating to the Registrant raising a grievance with the Hospital’s theatre department in February 2021. PW stated that at the time of her investigation she was the X-ray Team Leader and that she was in that post since April 2019. PW also stated that she was an HCPC registered Radiographer.
75. PW informed the Panel that she knew the Registrant professionally as she had worked as a Radiographer within the Hospital. PW explained that as a Radiographer she would go into theatre to support surgeons with cases which required imaging and the Registrant was often present at the time.
76. PW stated that she was appointed as the grievance lead, by EI. PW explained to the Panel that the process was that a grievance is submitted to HR, who then passes it onto an HR advisor, who in turn brings it to the attention of the Hospital Director (EI). EI would then allocate a grievance investigating officer.
77. PW gave evidence to the Panel that she was not aware of the Registrant’s disciplinary proceedings or subsequent dismissal from the Hospital at the time she was asked to conduct the grievance investigation.
78. PW produced, as an exhibit, her grievance investigation report for the Panel to consider. PW explained that before compiling the report, she had interviewed a number of hospital staff in order to obtain further information from them. PW also told the Panel that she investigated nine points of reference within the Registrant’s submitted grievance and she produced a report which she sent to the Registrant with a summary of her findings and actions to be taken forward.
Colleague B
79. Colleague B told the Panel that he was employed to work at the Hospital as a student ODP. Colleague B told the Panel that prior to this, he had worked at Russells Hall hospital between 2007 and 2020 as a clinical support worker. Colleague B gave evidence to the Panel that there were a few colleagues, at the Hospital, whom he knew prior to joining the Hospital because they had worked together at Russells Hall.
80. Colleague B told the Panel that he started working at the Hospital in June of 2020 as a support worker and in September 2021, he started an apprenticeship at the Hospital and his duties included: assisting in the operating theatre; assisting the surgeons and senior staff in preparing theatres; ensuring that the equipment required was ready for any operations; and assisting patient recovery after their operation.
81. Colleague B told the Panel that he became aware of the Registrant when he started working at the Hospital in June 2020. Colleague B also told the Panel that he worked alongside the Registrant a few times, but that working together was “rare” because he worked in a different speciality from the Registrant.
82. Colleague B also told the Panel that on 5 October 2020, he was busy setting up the theatre for the day when his colleague, Colleague C, and the Registrant walked into the theatre room. Colleague B told the Panel that he greeted them both with “oh hello dear” or words to that effect and then stated that the Registrant looked at him and said “how about fuck off dear”. Colleague B informed the Panel that he was shocked and upset by the response from the Registrant and he informed her that her response was “not very nice and that would be the last time he said good morning to her”.
83. Colleague B told the Panel that he did not say anything else to the Registrant, nor did he say anything to her about being late. Colleague B informed the Panel that he would not have done so because he had only recently joined the hospital and the Registrant was more senior than him and so he would not have considered it appropriate for him to do so.
84. Colleague B told the Panel that the interaction had upset him and made the environment that he found himself working within very awkward and uncomfortable for the remainder of the day.
85. Colleague B gave evidence to the Panel that after the incident, he reported the matter to his manager, COLLEAGUE D, and she asked him to place his concerns in writing, which he duly did. Colleague B exhibited a copy of for the Panel’s consideration.
86. In response to cross-examination from Ms Mills, Colleague B accepted that his first impression of the Registrant had been informed by “Chinese whispers” and that the Registrant had never treated him differently because he had originated from Russells Hall, prior to joining the Hospital.
87. Colleague B also accepted that when the Registrant entered the room where he was working, on 5 October 2020, the Registrant “looked stressed” and he also accepted that in using the language “hello dear” to a senior colleague, he himself had not acted in the most professional manner.
88. Colleague B also told the Panel, in response to questions from Ms Mills, that after he reported the incident to his manager (COLLEAGUE D), he was never asked to provide a formal statement as part of the Hospital’s investigation into the Registrant’s conduct. He stated that he was only asked to send an email to confirm his interaction with the Registrant.
89. In response to Panel questions, Colleague B also told the Panel that he could not recall if he sent an email with his concerns outlined therein, or if he had typed them in a Word document and attached that document to an email to his manager.
Colleague C
90. Colleague C told the Panel that she was employed by the Hospital as an Assistant Practitioner and that this is not an HCPC registered role.
91. Colleague C stated that the Registrant was her colleague whilst working at the Hospital and that the Registrant worked as an ODP, “in Theatres”.
92. Colleague C also informed the Panel that on 5 October 2020, she was working “on shift” with Colleague B and that they were in the room setting up the Theatre ready for the day. Colleague C stated that the Registrant walked in, late, and Colleague B turned to her and said cheerfully “good morning” and the Registrant turned, “with a face of thunder” and said “how about fuck off”. Colleague C stated that at this point, Colleague B did not respond to the Registrant, but instead turned to her and gave her a “shocked look”. Colleague C also told the Panel that as a result of this interaction, the working atmosphere, in the room, was strained for the remainder of the day. Colleague C stated, the Registrant did not speak to either her, or Colleague B, unless she needed something, for the remainder of the day.
93. Colleague C also gave evidence to the Panel that on 5 February 2020, she had cause to go and speak to her manager, witness COLLEAGUE D, about the manner in which the Registrant had spoken to her. Colleague C told the Panel that on that day, she was working alongside the Registrant and another colleague and that she considered that the Registrant had purposefully excluded her from all conversations and as a result, she stood with her back to them both and “had tears streaming down her face”. Colleague C told the Panel that she walked out of the room and Colleague R had seen her and asked her what was “going on” because she could see that Colleague C was upset.
94. Colleague C also gave evidence to the Panel regarding another incident on 29 September 2020 whereby she stated that she overheard the Registrant say to witness Colleague A “you come in whatever time you like and leave whenever you like. Is it because you are Russells Hall lot?”. In respect of this comment, Colleague C also told the Panel that there was a perception of favouritism within the department of those that had come from Russells Hall.
95. Colleague C also expressed the opinion that the Registrant is a “very nasty person and [a] difficult colleague”. Colleague C told the Panel that on days when she knew she was working with the Registrant she would get “very down” and that it was a “relief” when she knew they were not working together.
96. Colleague C also stated, when asked whether the Registrant’s conduct was directed at particular individuals within the department, and in particular Colleague H, that it “was just general nastiness” and was not directed at Colleague H “personally”.
97. In response to cross-examination from Ms Mills, Colleague C stated that she did, at times feel comfortable swearing at the Registrant and she accepted that she had done so during WhatsApp exchanged with the Registrant. Colleague C also accepted, when it was put to her by Ms Mills, that she and the Registrant would often, as part of a friendly exchange, swear at each other.
98. Colleague C also accepted that her relationship with the Registrant further broke down, after Colleague C sent a picture message to the Registrant’s phone, which the Registrant’s child opened, containing a picture of a nude man, and that as a result of this, the Registrant complained to witness Colleague D and Colleague C was spoken to about her conduct. Colleague C accepted that after this, she had blocked the Registrant on all of her social media accounts.
99. Additionally, in response to questions from the Legal Assessor, Colleague C also told the Panel that she could have missed a momentary glance, from Colleague B at the clock, when the Registrant walked into the theatre on 05 February 2020 as she was busy setting up the machines in the theatre. Colleague C also accepted that different comments, even if said in a “jokey manner’ may not be well received by another individual depending on the mood of the recipient on any given day.
100. In response to questions from the Panel, Colleague C also told it that her life had “been made hell” by the Registrant for the first six months of her working at the Hospital, commencing from January 2020 until approximately June 2020.
Colleague N
101. Colleague N told the Panel that she is registered with the Nursing and Midwifery Council (‘NMC’) as a Perioperative Practitioner and that she had been working in that role, at the Hospital, since May 2016.
102. Colleague N told the Panel that she was aware, and knew of, the Registrant prior to them both joining the Hospital as they had worked together at another hospital previously.
103. Colleague N told the Panel that sometime in January 2020, she was working with the Registrant in theatre. She stated that the consultant due to operate that day worked very quickly and so “you had to work very quickly”. She stated that another colleague (Colleague T) was the one leading the team that day and she had asked Colleague N if she wanted to ‘scrub in’ for the next case. Colleague N stated that she had confirmed that she did and Colleague T had told her she would unpack the necessary equipment. At this point, Colleague N told the Panel that the Registrant walked into the room and was visibly annoyed. Colleague N asked her if there was an issue and the Registrant replied with “you’re so lazy you can’t even open your own stuff”. Colleague N told the Panel that she was taken aback by this comment because Colleague T had told her she would do it. Colleague N told the Panel that when she conveyed this to the Registrant, the Registrant said “oh fuck off and stop moaning”.
104. Colleague N also told the Panel that the Registrant was a “very good scrub nurse, however I feel that her attitude really let me down when we were working as a team”.
105. In response to questions from Ms Mills, Colleague N told the Panel that she would often hear things said about the Registrant from other colleagues.
106. Colleague N also confirmed that she had not been asked to formalise her complaints into written statements as part of the investigations undertaken by Colleague D and SH.
Colleague D
107. Colleague D told the Panel that she was employed by the Hospital as a Theatre Manager and had been in that role since January 2017.
108. Colleague D also told the Panel that she was informed, on 29 January 2020, that the Registrant had made racially offensive comments in relation to Filipino colleagues in the department and that as a consequence, she arranged to speak with the Registrant. Colleague D exhibited minutes of her meeting with the Registrant, to her witness statement, which she adduced as her evidence in chief. Colleague D told the Panel that the minutes were not a verbatim account of the meeting, but rather, were a summary of what was discussed. Colleague D however told the Panel that the Registrant did say “Yes I did [say that]. I am not racist. I just don’t like them. I don’t trust them and I don’t think they should work here.” Colleague D told the Panel that she was taken aback by the Registrant’s words, as she thought the Registrant might seek to deny using this language but she had confirmed what she had said. Colleague D told the Panel that she was appalled, especially given that the Registrant was the subject of a live written warning. Colleague D informed the Panel that at this point, she told the Registrant that she would have to investigate the matter further.
109. Colleague D also told the Panel that on 5 February 2020, colleague X told her that the Registrant had made other inappropriate comments regarding Filipino colleagues and that she had said things like “Filipino’s are all lazy” and “Filipino’s get what they want” and “Filipino’s all stick together”. Colleague D also stated that on the same day Colleague C came to speak to her and reported that the Registrant had acted unprofessionally and that she (Colleague C) did not want to work in theatres with her anymore.
110. Colleague D also told the Panel that on the same day Colleague R relayed comments that the Registrant had made, to her, regarding Colleague H, who was of Filipino origin, such as “she is no good to me”.
111. Colleague D told the Panel that on 24 February 2020, following the aforementioned complaints made to her, she informed the Registrant that her conduct would need to be investigated as part of a disciplinary action against her and she produced minutes of this meeting between herself and the Registrant, exhibited to her witness statement.
112. Colleague D told the Panel that, in her opinion, the staff she managed were very hesitant to bring forward complaints against the Registrant owing to a fear of reprisal from the Registrant. Colleague D told the Panel that she had to continually assure staff members that they were protected if they reported conduct and that matters would be dealt with confidentially. Colleague D also told the Panel that it was not only Filipino staff that the Registrant “targeted” but she, in her opinion, chose people who would “not fight back”.
113. Colleague D told the Panel that the Registrant was given a final written warning on 01 April 2020 following a disciplinary hearing and that further to the Registrant’s subsequent conduct and behaviour she was dismissed from the Hospital on 3 March 2021. Colleague D provided a summary copy of her investigation report to the Panel and notes of a meeting that she had with the Registrant on 11 February 2021.
114. Colleague D was the subject of extensive cross-examination from Ms Mills. In response to matters put to her, Colleague D stated that she had assumed, during her meeting with the Registrant on 29 January 2020, that the Registrant was referring to Filipinos in general when she used the term ‘them’ as opposed to clarifying the word, because “this is what people had told her”. Colleague D also confirmed that the Registrant had informed her that Colleague G had bullied her at a previous hospital and that the Registrant had raised concerns regarding Colleague H’s competency to be able to perform some tasks in theatres. Colleague D also accepted that the minutes of the meeting on 29 January 2020, were “possibly” her interpretation of what was discussed, as they were not a verbatim account.
115. Colleague D also confirmed that in respect of the disciplinary investigation which resulted in the Registrant being dismissed, she had relied upon the outcome of the first investigation, which resulted in the Registrant receiving a written warning and had “forwarded that information on” to witness SH.
116. Colleague D also confirmed that as part of her investigations, she did not take any formal witness statements from those involved or from those who were complaining about the Registrant’s conduct, because she indicated that this would have been “the next part of the process” which she was not involved in. Colleague D stated that she thought that witness statements would be taken as part of SH’s investigation into the matters raised. Colleague D also confirmed that she had not asked those who had been to see her to sign the copies of the meeting notes that she had with them, to confirm that her notes were an accurate record of the matters complained of. She also did not send them to the Registrant, for the Registrant to comment upon as part of her investigation. Colleague D also accepted that this “maybe” was an unfair approach to the Registrant.
117. Colleague D also accepted, when it was put to her, that a number of hospital staff (Colleagues C, B and N) had all complained about the manner in which they claimed the Registrant had treated them and none of them were of Filipino origin. Colleague D also accepted that the Registrant’s comments regarding Colleague H, regarding her practice were not because of Colleague H’s Filipino origin, but the Registrant’s concerns regarding her clinical competence to perform tasks in urology.
118. Colleague D also accepted during cross examination that there was not a thorough investigation into the Registrant allegedly encouraging surgeons to make complaints about Colleague H. Colleague D stated that she had taken the matter forward, because she had not wanted to call the person who had made the comment to her “a liar”.
119. Colleague D also accepted that she had told the Registrant, during their various interactions, to be more ‘direct’ with colleagues in her communications, but stated that she also advised her to consider her communication approach and style as she may be “misperceived” as “rude and intimidating”.
120. Colleague D also confirmed that she was aware that the Registrant had raised a grievance against her, but stated that she was not aware of the outcome of that grievance.
121. Colleague D also told the Panel, when it was put to her by the Legal Assessor, that she could not recall whether Colleague B had raised his complaint to her directly, and she had made a note of it subsequent to a meeting with him, or whether it had been raised and sent to her, further to ‘listening sessions’, which were sessions where colleagues could raise concerns. However, she was unclear on whether those sessions were held individually or were open group sessions.
The Registrant
122. The Registrant tendered a fourteen-page statement to the Panel as her evidence in chief. In it, she told the Panel that she qualified as an ODP in October 1992 and had worked at the same hospital for 24 years prior to moving to the Hospital in 2016.
123. In respect of each Particular of the Allegation, the Registrant stated the following:
i. Particulars 1(a)-(c); she accepted Particular 1 in part; in that it was in reference to two colleagues who had bullied her in her employment in the NHS. AG had admitted, just prior to him leaving that he had told lies about the Registrant and his presence at the Hospital made her feel very uncomfortable and that she did not hide the fact that she did not want him at the Hospital;
ii. She partially accepted Particular 1(b)i) – it was not intended to be a derogatory remark it was simply a statement about Filipino friends and colleagues that she had known that rarely socialise outside of their own social circles;
iii. She denied Particular 1(b)ii-iii) as these comments were made by another colleague (TH);
iv. She denied Particular 1(c) as this was a conversation which took place in response to a racial outburst by another Filipino colleague (CB) and she was not even on shift when this took place. CB had expressed himself in a ‘morning huddle’ saying ‘you look after your white people and I will look after mine’. CB subsequently expressed his regret and apologised to members of staff individually and collectively. The Registrant also stated that there was a general culture of poor behaviour and conduct amongst some staff members and that different colleagues were treated differently by management and there was inequality in how they were treated and respectively managed;
v. Particular 1(d) – she admitted making this comment regarding Colleague H, but stated that her choice of words was ‘wrong’. The Registrant stated that she denied the implication that it was racist saying that a comment related solely to her competence and skills as a practitioner in respect of being able to perform some key skills required. The Registrant also stated that she had raised these competence issues with her line manager, Colleague D. The Registrant also stated that she was tasked with determining which colleagues attended a urology training course, which was limited in terms of available places and that the ‘she is no good to me’ comment was made in respect of Colleague H having been allocated to attend the course, when the Registrant knew that Colleague H did not like undertaking urology cases and rarely worked in that speciality;
vi. Particular 1(d)ii)- the Registrant denied encouraging surgeons to make complaints about Colleague H. The Registrant informed the Panel that a surgeon had complained to her regarding Colleague H and she had told him that he should raise the matter directly with Colleague D. The Registrant stated that after this, she subsequently went to Colleague D herself to see if the surgeon had been to talk to her directly, but in no way did this constitute asking surgeons to complain about Colleague H;
vii. Particulars 2(d)(i) and 2(d)(ii) – the Registrant told the Panel that she did accept making the comment to Colleague A, but she denied throwing the forms at her. The Registrant explained that Colleague A was down ‘on the board’ as leading the team on that particular date. However, Colleague A had a history of attending theatres late. On the date in question, Colleague A entered the room, with other staff present, and told the Registrant to take the meeting and passed her the list. The Registrant accepted that at this point she passed it back and told Colleague A to do it herself as she was listed as being in charge for the day and had stated, in front of others, to ‘you’re in charge, check the board’. The Registrant denied throwing the briefing document at Colleague A;
viii. Particular 2(a) – the Registrant told the Panel that she did say this in part, however she did not say the words maliciously but out of frustration towards Colleague N as Colleague N had complained that she had not been told about the cases and did not want to be there. The Registrant informed the Panel that it was a busy day, with a quick surgeon and she had just snapped at her as she was “annoyed” and then walked away. The Registrant stated that she accepted she could have behaved differently, upon reflection, and that she should have remained calm and informed her manager;
ix. Particular 2(b) – the Registrant stated that she partially accepted saying this to Colleague A, but that she had intended her words to be construed as a joke and that she had subsequently apologised to Colleague A for making the remark;
x. Particular 2(c) – the Registrant admitted saying this. She clarified for the Panel that on the day in question she was working with Colleague B, but had arrived into theatre 15 minutes late. She stated that she was shocked by Colleague B’s comment, which she claimed was “Oh hello dear, what fucking time do you call this” and she accepted that she had responded in the same tone and using similar language, but recognised now that this was unacceptable;
xi. Particular 3 – the Registrant admitted her conduct in respect of this Particular and admitted her failure to notify the HCPC of her dismissal. She stated that she had been advised by her Union and her recruitment agency not to do so, but now recognised that this was a breach of standards 9.5 and 9.6 of the code of conduct; and
xii. Particular 4 – the Registrant denied that any of her comments were racially motivated in any way.
124. The Registrant told the Panel that there was a very “negative” atmosphere at the Hospital which made her constantly feel “on edge” and that this, along with a lack of trust in colleagues, made for a very difficult working environment. The Registrant also stated that instead of being supported, she felt like a failure, with cruel jibes being made against her. The Registrant informed the Panel that she spent most of her time, exhausted. The Registrant now accepted that she responded to colleagues in the same manner in which she was spoken to, and she didn’t want to converse with colleagues, but rather just wanted to be left alone to ‘get on with her job’.
125. The Registrant also told the Panel that looking back over her time, she was “filled with disappointment’ in allowing herself to be consumed with such “toxicity” and that she regretted deeply being unable to rise above it all. She takes full responsibility for her actions.
126. During the course of extensive cross-examination by Ms Collins, the Registrant told the Panel that she was aware that witness Colleague D had lied during an ongoing personal injury litigation concerning one of the hearsay Colleague F and the Hospital and she stated that she knew that Colleague D had been dishonest when making a witness statement during the course of those proceedings.
Application to recall Colleague D
127. In light of the Registrant’s comments regarding witness Colleague D, Ms Collins and Ms Mills made a joint application to recall Colleague D.
128. Ms Collins submitted that the Registrant had called into question Colleague D’s credibility by asserting that she had made a false statement during the course of legal proceedings and that if this assertion was going to be relied upon by Ms Mills, then the witness had a right to have the matter put to her to comment upon.
129. Ms Mills submitted to the Panel that it was necessary to recall Colleague D as the Registrant’s assertion went to the credibility of the central HCPC witness and therefore she ought to be recalled to have matters put to her.
130. The Panel accepted the Legal Assessor’s advice to it and it determined to grant the parties’ joint application to recall Colleague D. In the Panel’s view, the Registrant’s assertion went directly to Colleague D’s credibility as a witness and the witness had not had these matters put to her, nor had she been afforded with an opportunity to rebut the suggestion that she had been dishonest in earlier legal proceedings. In the Panel’s view, given that Colleague D adduced much of the HCPC’s hearsay evidence, it was important and in the interests of justice that the witness be recalled to enable the Panel to assess her credibility.
131. Having determined that the witness ought to be recalled, the Panel adjourned the hearing to enable this to occur.
Reconvened hearing 7 February 2024
Application to adduce further evidence
132. Prior to the commencement of the hearing, Ms Mills served an additional bundle of documents consisting of 18 pages. As part of that bundle, there was a ‘file note’ consisting of 3 pages, which related to a telephone attendance note between Ms Mills and Colleague F.
133. Ms Mills made an application for the document to be admitted into evidence, stating that she accepted the document amounted to hearsay evidence. Ms Mills highlighted the Thorneycroft provisions to the Panel and stated that:
i. it would be entirely fair to admit the document as the document amounted to a business document and would therefore be admissible in law;
ii. the Panel has the power to order that the witness be called to give evidence to it however it should not do so in the interests of justice. As outlined in the document, the witness is fearful of reprisals from Colleague D;
iii. the HCPC had chosen not to call the witness and some of her evidence was already before the Panel, presented by the HCPC;
iv. the Panel had already admitted HCPC hearsay evidence;
v. the witness has no reason to fabricate the matters outlined within the document and had ‘no stake’ in the ongoing proceedings;
vi. if the charges are found proved, they had serious ramifications for the Registrant;
vii. there was a very good reason for the witness’s non-attendance. Namely, that she was fearful of reprisals; and
viii. the HCPC had been provided with notice of the intended reliance on the document and the application to be made.
134. Ms Collins opposed the admission of the hearsay evidence. She submitted to the Panel that it should not be admitted on the basis that it was not relevant or fair. Ms Collins highlighted that the document did not amount to a witness statement and did not have a signature attached to it to confirm its accuracy or content. Further, Ms Collins also outlined that it was prejudicial in nature, towards Colleague D, given that it called her character into question. Additionally, Ms Collins submitted that the document was not made contemporaneously to the events outlined therein and so the Panel could place little weight upon it.
135. The Panel accepted the Legal Assessor’s legal advice, which had again drawn its attention to White v Nursing and Midwifery Council: Turner v Nursing and Midwifery Council [2014] EWHC 520 (Admin) [2014] MED LR 205; Ayettry v Nursing and Midwifery Council [2016] EWHC 604 (Admin) Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565; El Colleague Drout v Nursing and Midwifery Council [2019] EWHC 28 (Admin); R v (Bonhoffer) v General Medical Council [2011] EWHC 1585 (Admin); 5th Shipman Inquiry (Dame Janet Smith).
136. The Panel first considered the points raised Thorneycroft. In deciding to admit the evidence, the Panel determined the following:
i. the evidence outlined within the document was not the sole or decisive evidence faced by the Registrant;
ii. in respect of the contents of the statements made by Colleague F, regarding Colleague D, these could be put to Colleague D, when she was recalled to give evidence to the Panel for the Panel to consider and give weight to in due course;
iii. the Panel considered that the witness had no reason to fabricate the comments as both the Registrant and Colleague D had left the Hospital. Further, the Panel considered that the witness had more to ‘lose’ in terms of possible reprisals against her, in making the statements, than in not coming forward;
iv. the contents of the document appeared to the Panel to be highly relevant to the matters it was yet to determine because it concerned the credibility of Colleague D and gave contextual background surrounding the culture and treatment by the management of staff at the Hospital; and
v. having regard to all of the above, the Panel considered it was fair and in the interests of justice to admit the documentation contained within pages 1-3 of the Registrant’s additional bundle, in addition to the remainder of the bundle.
137. Having received the Panel’s decision regarding admitting the document into proceedings, the parties agreed on a redacted form of the document, contained within pages 1-3 of the Registrant’s additional bundle, to be put to Colleague D when recalled.
Colleague D
138. Colleague D was recalled to give evidence to the Panel.
139. In response to questions from Ms Collins, which had been agreed in advance by Ms Mills, the witness told the Panel that she first started working for the Hospital in June or July of 2016 and that she knew Colleague F from working there.
140. Colleague D also confirmed that she was aware of a fall suffered by Colleague F, during her employment with the Hospital and that she did not recall making any statements in respect of these proceedings nor was she aware of the outcome of the proceedings. Colleague D confirmed, when it was put to her, that she had never been dishonest in legal proceedings and reaffirmed that she did not recall making a statement as part of the legal proceedings concerning Colleague F’s fall.
141. When the additional admitted document was put to Colleague D, in its redacted form, Colleague D stated that she did not agree with its contents that members of staff felt reluctant to raise matters with her.
142. In response to questions from Ms Mills, Colleague D told the Panel that a “lady from the legal team” at the Hospital, had contacted her regarding ongoing litigation and Colleague F, but all she had done was relay the message that members of staff needed to speak with the legal team. She told the Panel that she had not personally spoken to staff about the fall, nor had she herself taken statements regarding the matter.
143. Colleague D also told the Panel that she was not “even aware that there were legal proceedings”.
144. Colleague D also confirmed that after she left the Hospital in 2023, Colleague C had followed her to her new hospital, as had her step-son and that Colleague B may intend to follow her.
145. In response to questions from the Panel, Colleague D also confirmed that she was aware that Colleague F had suffered a number of “falls” whilst working for the Hospital and that she was aware that one pertained to a “wire” where she had “tripped” and that the other related to “a slip on some water”. Colleague D told the Panel that the ‘wire’ fall, was before she had started working at the Hospital and so she could not comment upon it. Colleague D told the Panel that in respect of the ‘water fall’ she reminded Colleague F that it was her responsibility to ensure that all water was cleaned up and/or that appropriate signs were placed where the water was to ensure other colleagues did not fall.
146. Colleague D also confirmed to the Panel, in response to re-examination from Ms Collins, that she did not provide a false statement in respect of any legal proceedings.
Decision on Facts
147. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual Particulars of the Allegation could only be found proved if the Panel was satisfied on the balance of probabilities.
149. In reaching its decision, the Panel took into account all of the documentary evidence contained within the hearing bundles and it had regard to each of the witnesses’ evidence, as well as the parties’ submissions to it.
150. The Panel also accepted the advice of the Legal Adviser. The Panel also considered the guidance provided in Lambert-Simpson v HCPC [2023] EWHC 481 (Admin) when considering Particular 4.
Stem
As a registered Operating Department Practitioner (ODP12789):
151. The Panel had regard to the evidence presented to it. The Panel noted, in particular, that the Registrant had submitted within her reflective statement, that she was a qualified ODP who had been practising since 1992. The Panel also noted that other HCPC witnesses had confirmed that the Registrant was working as a qualified ODP for the Hospital.
152. On the basis of the information presented to it, the Panel was satisfied that the stem of the Allegation was made out and proved by the HCPC.
Particular 1(a) – Found Not Proved
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
a. On 29 January 2020, you said to Colleague D that you, “don’t trust them anyway” or words to that effect;
153. The Panel examined the evidence presented to it with great care. The Panel noted that Colleague D had told the Panel, both in her written statement and in her oral evidence that, on 29 January 2020, she was informed by a member of theatre staff that the Registrant had made “racially offensive comments”, on 29 January 2020, in relation to “Filipino Colleagues in the department”. Further, Colleague D also told the Panel that she arranged to speak with the Registrant as a result of these concerns being raised with her and that when she put these comments to the Registrant, the Registrant stated “Yes I did [say that]. I am not racist. I just don’t like them. I don’t trust them and I don’t think they should work here.”
154. The Panel noted that Colleague D had exhibited to her witness statement a document, which she informed the Panel was a record of the minutes of the meeting, between her and the Registrant, but the Panel also noted that she also accepted that the minutes were “not a verbatim record” of the conversations which took place between her and the Registrant.
155. The Panel noted that Colleague D stated in relation to her exhibited minutes, that she could not recall the minutes ever having been shown to the Registrant or agreed by her, either at the time, or subsequent to the meeting on 29 January 2020. The Panel also noted that the document had not been signed by the Registrant to confirm that it was an accurate record of matters discussed. Having regard to this, the Panel considered that the minutes should be treated with a degree of caution because they were not agreed at the time, nor were they a verbatim account of all matters discussed between the parties.
156. Further, the Panel also noted that outlined within the undated minutes document, another member of human resources staff, had been present during the meeting and she had not provided a statement to confirm the accuracy of the meeting minutes, nor had she provided an account of the Registrant’s responses during the course of the meeting. In this regard, the Panel considered that an independent witness had not been called to give evidence before it.
157. The Panel next considered the Registrant’s reflective statement and noted that the Registrant stated:
‘Allegation 1(a) is in reference to two ex-colleagues, [Colleague G], who bullied me in my employment within the NHS. He told repeated lies about me which he admitted to shortly before he was asked to leave. His presence within the department made me very uncomfortable and I did not hide the fact I did not want him near me. He would chat to his friend and colleague JG is [sic] Filipino, both having full conversations in clinical areas and the coffee room despite being told by Management that this was unacceptable. Because this was a staff member [I] did not have a healthy working relationship with, I became paranoid about what was being said.’
158. The Panel also considered notes of a disciplinary hearing on 1 April 2020 where the Registrant explained that “the ‘them’ was Colleague G and Colleague V constantly chatting away in their own language”. The Registrant also confirmed that she felt bullied by Colleague G at her previous hospital and had moved to the Hospital because of this.
159. Having regard to all of the evidence before it, the Panel was satisfied that the Registrant, on the balance of probabilities, did say to Colleague D, “don’t trust them anyway” or words to that effect during the meeting on 29 January 2020. The Panel was also satisfied that the Registrant used these words in respect of two particular colleagues, Colleague G and JE, whom the Registrant accepted, in her own oral evidence, were of Filipino origin.
160. The Panel next considered whether these words which the Registrant had used, regarding her colleagues, were inappropriate.
161. The Panel first considered whether the Registrant’s words, in using the term ‘them’, was referring to Colleague G and JE’s race. After considering the evidence before it, the Panel determined that the Registrant was not. In forming this view, the Panel noted that there was considerable and consistent evidence before it, both from the Registrant herself and other witnesses called to give evidence to it, that the Registrant had a significant and acrimonious history with Colleague G, with them both having worked together at a previous hospital, prior to Colleague G moving to work at the Hospital alongside the Registrant. The Registrant had also told the Panel that she had found out, on 29 January 2020, that Colleague G had lied to her about becoming a permanent member of staff, as he had told her he intended to continue working as ‘bank staff’, but that it later transpired that this was not the case. The Panel accepted the Registrant’s explanation and evidence that the reason she had referred to Colleague G and JE as ‘them’ was not because of their race, but because she had significant history with them as individuals and that their race had nothing to do with her behaviour towards them. The Panel considered that the Registrant had been candid with it, when she had stated she had just not liked or trusted Colleague G or JE as individuals.
162. The Panel noted that when witness Colleague D was questioned by Ms Collins, she had suggested to the Panel that Colleague R and Colleague X had stated to her, that they thought the Registrant’s comments were racially motivated. However, when the Panel scrutinised this evidence further, the Panel noted that Colleague X had withdrawn from the proceedings and had stated that she considered that the Hospital investigation had not been dealt with ‘appropriately’ and that the Panel had determined that Colleague X’s evidence amounted to unreliable hearsay evidence.
163. The Panel also noted witness Colleague D’ s exchange with Ms Collins, during her oral evidence before the Panel and noted that it went as follows:
‘Ms Collins: How did she say it?
COLLEAGUE D: Just quite frank, not aggressive or anything, just quite a frank comment. She went, ‘Yeah, I did say that, but I’m not a racist – I’m not racist, but I just don’t like them’.
Ms Collins: What was your reaction?
COLLEAGUE D: I was surprised and I suppose I appreciated her honesty really, that she didn’t try and say that she didn’t say it.
Ms Collins: Did you think it was racist?
COLLEAGUE D: Yeah, I did.
Ms Collins: Why?
COLLEAGUE D: Because she was referring to people, to colleagues, based on their race rather than their work ethic. I feel like saying ‘I just don’t like them’ is grouping those people together because of their race…’
164. Having considered this exchange, the Panel noted that Colleague D, in her exchange with the Registrant, had made an assumption in respect of the Registrant’s use of the term ‘them’. In the Panel’s view, Colleague D had not sought to clarify the Registrant’s use of the term ‘them’ during their interaction and had immediately and incorrectly assumed that the Registrant’s use of the term ‘them’ was racist, rather than considering the possibility that the Registrant had used the term ‘them’ simply to refer to more than one person.
165. Having determined that the Registrant’s comments about her colleagues were not made as a result of their race, the Panel went on to consider whether the comments were, nevertheless, inappropriate.
166. The Panel noted that in the Registrant’s oral evidence to it the Registrant had stated “I regret confiding in her. So, yes, I regret the comment”. The Panel considered that the Registrant, in giving this evidence to it, had expressed her regret in confiding in Colleague D about her concerns regarding these two colleagues. In the Panel’s view, the words used to describe colleagues were blunt in terms of her delivery and could be considered to be unprofessional.
167. However, the Panel went on to consider the context of the comments. They were made to Colleague D, her manager, confiding in her about the reasons why she did not trust those particular colleagues and explaining to Colleague D that her concerns arose as a result of her history with one of her Colleague G. No other staff members apart from Colleague D and a member of the HR team were present. Although the words and delivery were very blunt, in this context, the Panel did not consider the comments to be inappropriate as the Registrant was expressing privately to her manager why she had said what she said and the reasons for her voicing her concerns. Therefore, the Panel found that this particular is not proved.
Particulars 1(b)(i)(ii)(iii) – Found Not Proved
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
b. On or around February 2020, Colleague X observed you making the following statements regarding your colleagues of Filipino descent;
i. That they “all stick together” or words to that effect;
ii. “Phillipine [Filipinos] are all lazy” or words to that effect;
iii. “Phillipines [Filipinos] get what they want” or words to that effect;
168. The Panel noted that witness Colleague D stated that, on 5 February 2020, Colleague X had told her that the Registrant had made inappropriate comments to her regarding Filipino colleagues and that the comments reported to her were: ‘[Filipino’s] all stick together’, ‘Filipino’s are all lazy’ and ‘Filipino’s get what they want’. The Panel noted that witness Colleague D also informed it that on the same day the concerns were raised to her, by Colleague X, she had produced minutes of the meeting, which she exhibited to her witness statement.
169. The Panel considered the evidence provided by Colleague D, in this regard, amounted to hearsay evidence and noted that whilst it had admitted the evidence into proceedings at the commencement of the hearing, the Panel now needed to consider what weight, if any, which could be applied to the evidence before it. In doing so, the Panel noted that Colleague D had accepted that she had not personally witnessed the comments being made by the Registrant, but that she was relaying what Colleague X had told her. Additionally, the Panel also noted that Ms Collins had been unable to confirm what steps, if any, had been taken to secure Colleague X’s attendance at the hearing.
170. The Panel considered the minutes from the meeting prepared by Colleague D. The Panel noted that Colleague D had stated in her witness statement that the meeting between her and Colleague X had taken place on 5 February 2020 and that she had made the minutes of the meeting “at the time and straight after the meeting”. The Panel also noted that during her oral evidence to it, Colleague D stated, when asked by Ms Collins if the comments had been said to Colleague X on the same day (5 February 2020) “No, I think she’d – I think, if I remember rightly, her words were these were the things that she’d heard her say before. I don’t think it was on that particular day.”
171. When subjecting the minutes to further scrutiny, the Panel also noted that whilst the minutes were headed with the date of 5 February 2020, they made no reference to the date upon which the words were alleged to have been said by the Registrant, nor did they make direct or indirect reference to the Registrant by name. The Panel also noted that the minutes had not been signed by Colleague X to attest to the truth of their contents, nor did they provide any contextual background as to where the words were alleged to have been said to Colleague X or, whether other people were present at the time or may have witnessed the words allegedly being used by the Registrant. Further, the Panel also noted that Colleague X’s statement was prepared for the regulatory proceedings on 20 February 2023 and consequently, it had been compiled almost 3 years after the meeting between her and Colleague X was said to have taken place. In this regard, the Panel considered that there was a significant lapse of time between Colleague D making the minutes of the meeting and being asked to confirm the contents of her discussions with Colleague X in her written statement.
172. The Panel also noted that as part of the evidence adduced by the HCPC, Ms Collins had sought to rely on Colleague C’s oral evidence to it that she too had witnessed the Registrant stating the words ‘Filipino’s are all lazy’. However, the Panel also noted that Colleague C had not provided this evidence within her written witness statement nor, when pressed on the point, could she provide any dates, times or other specifics to qualify her assertion that she had heard the Registrant state these words. The Panel considered that it could place no weight on Colleague C’s evidence in this regard as it was very vague and unspecific.
173. The Panel next considered the Registrant’s evidence to it. Having done so, the Panel noted that, in respect of Particular 1(b)(i) (“they all stick together”), the Registrant’s evidence was somewhat confused and inconsistent. The Panel noted that in her reflective statement the Registrant appeared to accept using the term ‘they all stick together’ in respect of Filipino colleagues, but later, when giving her oral evidence before the Panel, she stated that she had used this term to refer to management at the Hospital. The Panel also noted however, that the Registrant had remained consistent in: 1) her denial of the use of the words outlined within Particulars 1(b)(ii) (‘[Filipino’s] are all lazy’) and 1(b)(iii) ([Filipino’s] get what they want’); and 2) in her assertion that these words were used by another Colleague E. The Panel further noted that during the disciplinary hearing, conducted by the Hospital on 2 March 2021, the comments allegedly made by the Registrant to Colleague X, were not put to the Registrant to comment upon.
174. After meticulously reviewing all of the evidence presented to it, the Panel considered that it could place no weight on the hearsay evidence adduced by Colleague D or the minutes of the meeting. In forming this view, the Panel observed that the minutes of the meeting did not specifically reference the Registrant by name, nor had they been signed by the person who was said to have witnessed the Registrant using these words (Colleague X). Further, Colleague D was unable to specify, within her evidence to the Panel, when Colleague X was said to have witnessed the Registrant’s use of the words alleged and so the Panel considered the evidence presented was unspecific, unverified, and consequently unreliable.
175. Whilst the Panel had regard to the Registrant’s inconsistent statements to it, the Panel reminded itself that the burden of proof lay with the HCPC to prove the Particulars before it and the Panel was not satisfied that the HCPC had discharged that burden. In arriving at this conclusion, the Panel noted that the HCPC could not account for any steps taken to secure Colleague X, nor had it sought to call any other potential witnesses named by the Registrant (Colleague E) to rebut her evidence that it was Colleague E who had used those words.
176. Given that the Panel was unable to place any weight upon the evidence presented by the HCPC, Particulars 1(b)(i), 1(b)(ii) and 1(b)(iii) were not proved.
Particular 1(c) – Found Not Proved
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
c. On or around February 2020 you commented that you, “need to get Phillipino’s [Filipino’s] out so it will be a better place to work” or words to that effect;
177. The Panel noted that, again, the evidence in respect of this Particular derived from witness Colleague D, in the form of hearsay evidence. Colleague D told the Panel that Colleague R had informed her, on 5 February 2020, that the Registrant was making inappropriate comments about colleagues and in particular Filipino colleagues. Colleague D told the Panel that Colleague R had stated to her, that the Registrant had said “need to get Phillipino’s out so it will be a better place to work”. The Panel noted that Colleague D again appended a document to her statement which she indicated was a minute from a meeting that she had with Colleague R on 5 February 2020.
178. The Panel had regard to its earlier decision to admit this document and Colleague D’s evidence as hearsay evidence. The Panel again noted its obligation to consider what weight, if any, that could be attached to the document and its contents. In its consideration of the point, the Panel noted that similarly, the minutes of this meeting, were again not signed by Colleague R to confirm that they were an accurate reflection of the conversation held between her and Colleague D. The Panel also noted, as it had with the previous hearsay evidence, that the contents of the minutes were unspecific in respect of when Colleague R was said to have witnessed the Registrant saying the words ‘need to get Phillipino’s [Filipino’s] out so it will be a better place to work’. Further, these minutes also did not provide any contextual background for where it was alleged that the words were uttered by the Registrant, albeit the Panel considered these minutes were more specific, than those previously considered, as they recorded the Registrant’s initials ‘AM’.
179. The Panel also noted, as it had previously, that Colleague D’s witness statement was prepared nearly three years after the meeting was said to have occurred and in this regard the Panel considered that witness Colleague D’s evidence could not be said to have been provided to the HCPC in a timely manner. Further, the Panel also noted that witness Colleague D, within her witness statement, made no specific reference to the words purportedly used by the Registrant and that this was only raised in oral evidence before the Panel, which was almost four years after the meeting was said to have occurred.
180. The Panel next considered the minutes of the disciplinary hearing dated 1 April 2020, exhibited by witness SH, and it noted that the concerns relating to this Particular were put to the Registrant for comment, and she denied saying this. The Panel also reviewed the Registrant’s oral evidence and reflective statement and noted that the Registrant was consistent in her denial of using the terminology alleged.
181. Having regard to its function, the Panel considered whether it was satisfied on the evidence put forward by the HCPC and to the requisite standard, that the Registrant had used the words ‘need to get Phillipino’s [Filipino’s] out so it will be a better place to work’ and determined that it was not. In the Panel’s view, it could not place any weight on the hearsay evidence provided by Colleague D. Colleague D accepted that she had not seen the Registrant use these words herself and that she was reliant on Colleague R’s evidence in this regard. On the documents placed before the Panel, it was not clear when the alleged words were said to have taken place, or if the minutes relied upon as hearsay evidence by the HCPC, were an accurate record of the conversations which took place between Colleague D and Colleague R, as Colleague R had not co-signed them. Whilst Colleague D claimed that they were, the Panel noted that Colleague D had been asked to recall her account approximately three years after the event and in the Panel’s view, this left open the possibility that her evidence may be tainted by the passage of time. In forming this view, whilst perfectly understandable, witness Colleague D had, during the course of her evidence, stated on a number of occasions that she could not recall matters put to her and in this regard the Panel could not be satisfied that her evidence was, of itself, entirely reliable. Furthermore, the Panel considered that Colleague R’s email to the HCPC’s solicitors saying she felt the Registrant had been portrayed in the wrong light and the Hospital investigation was handled badly, hence she was withdrawing from participating in proceedings.
182. Consequently, having regard to the aforementioned, the Panel considered that the HCPC had not discharged its burden of proving that the Registrant had used the words ‘need to get Phillipino’s [Filipino’s] out so it will be a better place to work’ in February 2020, or at all.
183. Therefore, Particular 1(c) is not proved.
Particular 1(d)(i) – Found Not Proved
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
d. As it relates to Colleague C,
i. On or around February 2020, you advised that you did not want Colleague C to learn the Laser as she was, “no good to me” or words to that effect;
184. The Panel noted that this Particular also centred around the same hearsay evidence put forward by Colleague D as in respect of Particular 1(c) and that the HCPC, again, sought to rely upon the minutes of the meeting, dated 5 February 2020, between Colleague D and Colleague R as proof of the comments made by the Registrant.
185. The Panel considered its findings in respect of Particular 1(c) and in particular whether there was a distinction between the weight that could be placed on the evidence before it in respect of Particular 1(c) and Particular 1(d)(i). Having done so, the Panel concluded that there was additional corroborative evidence before it, in the form of the Registrant’s own admission, which it could have regard to when considering the matters alleged.
186. In particular, the Panel noted that the Registrant, in her reflective statement to the Panel, stated:
‘I accept 1(d)(i). I did make this comment, and that my choice of words was wrong’.
The Panel also had regard to the considerable and consistent explanation provided by the Registrant, during her oral evidence to it, for her use of these words.
187. Having regard to the totality of the evidence before it, the Panel was satisfied, on the balance of probabilities, that the Registrant did use the words ‘no good to me’, in February 2020, when referring to Colleague H. However, the Panel found that the Registrant had said these words in respect of having to allocate colleagues onto limited places for a laser training course. The Panel had heard from the Registrant that Colleague H mainly worked in the gynaecology theatre and was less interested in working in urology where the laser equipment was mainly used. Therefore, in that context, the Registrant told the Panel that it was better for her to allocate other colleagues who were regularly working in urology onto that training course. Whilst the Panel considered that the words the Registrant used were clumsy, it did not consider the words to be inappropriate in this particular circumstance where she was prioritising who would receive specialist training to achieve the most effective clinical skill mix. Therefore, the Panel was satisfied, on the balance of probabilities, that the Registrant did use the words ‘no good to me’, in February 2020, when referring to Colleague H, but that her words and were not inappropriate when doing so.
188. Consequently, the Panel found Particular 1(d)(i) not proved.
Particular 1(d)(ii) – Found Not Proved
1. Between 2019 and 2020, your comments towards Filipino members of staff at Spire Healthcare was inappropriate in that;
d. As it relates to Colleague H,
ii. On or around February 2020, you encouraged surgeons to raise concerns about Colleague H’s competency.
189. The Panel again noted that, in respect of Particular 1(d)(ii), the HCPC relied upon hearsay evidence to prove its case.
190. The Panel also noted that in respect of this Particular, Colleague D stated, within her witness statement and oral evidence, that Colleague R had complained to her that the Registrant had ‘encouraged surgeons to raise concerns about [Colleague H’s] competency’. The Panel noted that it was not disputed between the parties that Colleague H was of Filipino origin.
191. As it had previously, the Panel considered what weight it could attach to the hearsay evidence adduced by Colleague D. The Panel noted that the HCPC again sought to rely upon the minutes of the meeting, dated 5 February 2020, and convened between witness SH and Colleague R as evidence of what Colleague R had heard the Registrant say and do.
192. Having regard to its earlier findings in respect of the weight which could be attached to the minutes of this meeting, and for the same reasons as outlined above, the Panel again considered that no weight could be attached to the minutes of the meeting document.
193. As hitherto, the Panel next considered whether there was any other evidence before it to support this Particular being found proved. The Panel noted that the HCPC had adduced, again as hearsay evidence, a document, titled ‘statement’ which was purportedly made by Colleague T. In the ‘statement’, the Panel noted that the following wording was used:
‘I have personally witnessed her encouraging surgeons to make complaints against her to management purely because [Colleague H] wasn’t completely ‘slick’ on a procedure in urology which was no one’s fault other than the surgeon himself not making a full disclosure of item requests at team brief.’
194. In its consideration of the ‘statement’, the Panel noted that the document had no name attached to it so it was not clear to the Panel who the author of the document was. Further, it had no date attached to it, so it was not clear to the Panel when the ‘statement’ was created, nor was it clear to the Panel why it had been crafted. The Panel noted that the ‘statement’ also had no section pertaining to a statement of truth attached to it, to confirm it was accurate.
195. Given that the document had no author attributed to it, the Panel considered that it could not determine the authors motivations, if any, when making it. Further, the Panel also noted that the author of the document had not been the subject of any questioning in respect of its contents and in its consideration of the document, the Panel also noted inconsistencies within it relating to the use of the words ‘surgeon’ (singular) and ‘surgeons’ (plural). The Panel considered this to be highly relevant and pertinent to the matters before it, given that the Particular wording alleged that the Registrant had encouraged ‘surgeons’ (plural) to complain about Colleague H.
196. Additionally, the Panel also noted an email exchange between the purported author of the ‘statement’ (Colleague T) and the HCPC’s solicitors, Blake Morgan, dated 31 March 2023, in which Colleague T stated the following:
‘I have received my statement and after talking to both yourself and your colleague and giving it much thought – I wish for my statement not to be used – I feel due to the timeframe the points abbreviated I cannot recall totally and don’t feel comfortable with some points used in evidence especially after I had a good working relationship with her to interact with her socially out of work thereafter – I feel some aspects I’m asked to comment on knowing some personal insight into the pressures she faced at that time were somewhat unfair and I tried to convey that on the telephone discussions and that the corporate response to issues at the time could have been handled more appropriately. My initial response to get in touch was over the fact I thought an investigation was being centred around myself because my manager had not asked or warned me that my comments surrounding these few issues would be submitted in this manner. I feel would make me feel unable to give evidence as is stated at the bottom of the statement and my relationship with Angela at the point she left that employment is also a conflict of interest to allow me to feel comfortable to go forward…’
197. The Panel noted that it had not been shown a witness statement from Colleague T to confirm if the ‘statement’, relied upon by the HCPC, was the same document which Colleague T was referring to in the email outlined above. The Panel considered that one interpretation of the information before it was that Colleague T was referring to the ‘statement’ but was, in the email between herself and Blake Morgan, seeking to distance herself from the evidence outlined within the ‘statement’. Or, alternatively, another reading of the information before the Panel was that it was not conclusive that she was referring to the ‘statement’ before the Panel and because she had not attended or been questioned about it during the hearing, the Panel was left doubting that she was indeed the author of the ‘statement’ is. However, the Panel considered that by either assessment and in having regard to the other factors outlined above in respect of the inconsistencies within the ‘statement’, the Panel concluded that the ‘statement’ should be afforded no weight.
198. The Panel noted that the Registrant had consistently denied encouraging surgeons to complain about Colleague H, but had accepted during her oral evidence that she had referred one surgeon to witness Colleague D, after he had sought her out to complain to her about Colleague H. Without any direct evidence, which could be relied upon by the Panel to contradict the Registrant’s account, the Panel preferred the Registrant’s account in this regard. The Panel also considered the Registrant’s actions to be appropriate where a member of a team raises a concern about another. In the Panel’s view, the Registrant acted entirely appropriately in directing the surgeon to speak directly to witness Colleague D as she was the senior member of the team in charge of the theatres department.
199. Accordingly, the Panel found Particular 1(d)(ii) not proved.
Particular 2(a) – Found Proved
2. Between 2019 and 2022 your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
a. On or around January 2020, you told Colleague N, “fuck off and stop moaning” or words to that effect;
200. The Panel had regard to the evidence of Colleague N. The Panel noted that Colleague N had stated to it, both in her written witness statement and in oral evidence, that in January 2020, the Registrant, when speaking directly to her, had said ‘oh fuck off and stop moaning’.
201. The Panel noted that the Registrant admitted this Particular and that she had also accepted in her reflective statement and in her oral evidence to it, that she had used these words toward Colleague N, but explained that she had done so out of frustration towards Colleague N and had not done so maliciously.
202. Having regard to the evidence before it, the Panel was satisfied that in January 2020 the Registrant told Colleague N to ‘fuck off and stop moaning’. Notwithstanding the culture of swearing which was on some of the witnesses’ accounts, prevalent at the Hospital, the Panel considered that the Registrant’s communication towards Colleague N, in this regard, was inappropriate.
203. Consequently, the Panel found Particular 2(a) proved.
Particular 2(b) – Found Proved
2. Between 2019 and 2022 your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
b. On or around 29 September 2020, you said to Colleague A, “you come in whatever time you like and leave whenever you like. Is it because you are Russells hall lot” or words to that effect;
204. When considering this Particular the Panel noted that the HCPC sought to rely upon hearsay evidence, which it asserted was from Colleague A, and which was contained within documentation presented by witness SH, relating to the Registrant’s ‘live written warning’ issued by the Trust.
205. The Panel noted that the document relied upon, titled ‘appendix 2’, was not signed nor was it clear who the author of the document was. When considering the document the Panel noted however, that the document used the term ‘Angela M’, and the Panel concluded that it could infer, from the material before it, that this related to the Registrant. The document also stated:
‘…Angela then said “you come in whatever time you like and leave whenever you like. Is it because you are Russells hall lot?? “I just walked away. I found it quite upsetting as I was actually Agency staff for around 5 and half years before joining spire. I am spire staff now and I behave accordingly.’
206. The Panel determined that if this document had been the only evidence placed before it by the HCPC, that it would have placed limited weight upon it, for similar reasons as outlined when considering the earlier hearsay evidence in this case. However, the Panel also noted, when considering this Particular, that there was additional evidence to support what was contained within the document, before it.
207. In considering the other evidence presented to it, the Panel had regard to the evidence of Colleague C. The Panel noted, in particular, that Colleague C had stated in both her written statement and oral evidence, that she had witnessed the Registrant say to Colleague A, “you come in whatever time you like and leave whatever time you like. Is it because you are Russells Hall lot?”.
208. The Panel also considered the Registrant’s evidence to it. In doing so, the Panel noted that the Registrant accepted, in both her reflective statement and her oral evidence, that she had said the words ‘you come in whatever time you like and leave whatever time you like. Is it because you are Russells Hall lot?’ to Colleague A, but qualified her words that she had meant them as a ‘joke’.
209. Having regard to the totality of the evidence before it, the Panel was satisfied to the required evidential standard, that the Registrant had, on 29 September 2020, used the words ‘you come in whatever time you like and leave whatever time you like. Is it because you are Russells Hall lot’ and that she had been inappropriate in doing so. In forming the view that the Registrant had been inappropriate with her communication with Colleague A, the Panel noted that the ‘Appendix 2’ document stated that the author, who the Panel inferred from the other evidence before it was, Colleague A had been left upset and crying. Additionally, the Registrant had also further confirmed, in her evidence to the Panel, that she had apologised to Colleague A for her comments.
210. In the Panel’s view, the Registrant’s actions, in apologising to Colleague A, cemented its view that the Registrant’s comments had been inappropriate as they had caused upset to a colleague.
211. Consequently, the Panel found Particular 2(b) proved.
Particular 2(c) – Found Proved
2. Between 2019 and 2022 your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
c. On 5 October 2020, you told Colleague B “how about fuck off dear” or words to that effect;
212. The Panel first considered the evidence of Colleague B. In doing so, the Panel noted that he had been consistent, in both his witness statement and in his oral testimony to the Panel, that he had been busy setting up the theatre room when the Registrant had walked in, late for the start of the day. Colleague B told the Panel that he said to the Registrant “oh hello dear” and the Registrant responded with “how about fuck off dear”.
213. The Panel also noted that Colleague C also confirmed, in both her oral and written evidence to the Panel, that she had been working alongside Colleague B, in the theatre room, when the Registrant had walked in and Colleague B had greeted the Registrant with a term along the lines of “good morning” followed by a term of endearment which she could not specifically recall and that the Registrant followed Colleague B’s greeting with “how about fuck off”.
214. The Panel considered the Registrant’s reflective statement and noted that she admitted using the words outlined within the Particular. The Panel also had regard to the fact that the Registrant sought to qualify these words as a reaction response to Colleague B as he said “what fucking time do you call this” when she first walked into the room. The Panel also noted that some discrepancy developed in respect of the Registrant’s admission as the hearing progressed and that the Registrant, via Ms Mills, stated that she accepted saying something to Colleague B, but that she did not recall swearing at him. The Panel also noted that during cross-examination by Ms Collins, the Registrant accepted that she may have sworn at Colleague B. The Panel considered the Registrant’s accounts to be somewhat inconsistent in nature.
215. Having regard to these inconsistencies and have weighed the HCPC evidence, the Panel determined, based on the evidence presented that the Registrant did use the words ‘how about fuck off dear’ when she spoke to Colleague B. Both witnesses described being shocked by her response and in the Panel’s view, although there was some discrepancy in the witnesses account regarding where Colleague C had been standing at the time and whether Colleague C had entered the room when the Registrant did, the Panel considered that any discrepancy was explained by the passage of time since the incident and did not undermine the totality of their evidence when both witnesses confirmed that the Registrant had used the term “how about fuck off”. The Panel considered that this type of communication with a colleague was inappropriate and consequently, the Panel found Particular 2(c) proved.
Particular 2(d)(i) – Found Proved
2. Between 2019 and 2022 your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
d. On or around January 2021;
i. When Colleague A asked whether you wanted to lead the team brief, you responded, “you’re in charge check the board” or words to that effect;
216. The Panel first considered the evidence presented by the HCPC and noted that it amounted to hearsay evidence provided by witness SH. Witness SH told the Panel that she had a meeting with (Colleague A) and she also told the Panel that during the course of their meeting she (witness SH), had made contemporaneous notes which she exhibited to her witness statement. SH also told the Panel that she asked Colleague A to sign the minutes document at the time and the Panel noted that Colleague A was cited at the bottom of the minutes.
217. The Panel also noted that the Registrant admitted this Particular at the outset of the hearing and during the course of her oral evidence to it.
218. Having regard to all of the evidence before it the Panel determined that, on the balance of probabilities, the Registrant did say to Colleague A ‘you’re in charge, check the board’.
219. The Panel next considered whether this was inappropriate communication and determined that it was. In forming this view, the Panel noted that whilst the words themselves may not be considered to be overtly unprofessional, the Panel noted that the evidence before it tended to suggest that the Registrant had made the comments in the morning team briefing and had done so in front of other members of staff. The Panel considered that speaking to colleagues in the manner outlined within the Particular, was belittling and potentially undermining of Colleague A in her role as team lead and consequently amounted to inappropriate communication on the Registrant’s part.
220. The Panel therefore found Particular 2(d)(i) proved.
Particular 2(d)(ii) – Found Not Proved
2. Between 2019 and 2022 your behaviour and/or communication to your Colleagues at Spire Healthcare was inappropriate in that;
d. On or around January 2021;
ii. Following your comments in Particular 2d(ii), you threw the briefing document at Colleague A;
221. The Panel noted that in seeking to prove this Particular, the HCPC relied upon the same hearsay evidence as outlined within Particular 2(d)(ii). Namely, the minutes of witness SH’s meeting with Colleague A.
222. In respect of this Particular, the Panel also noted that the Registrant denied throwing a briefing document at Colleague A during the course of the disciplinary meeting held by the Hospital on 2 March 2021 and also in her appeal response letter, dated 8 March 2021. The Panel also noted that the Registrant, in the same appeal letter, named two colleagues who she claimed were present during the incident and whom, she claimed, had witnessed the entire event.
223. The Panel had regard to witness EI’s oral evidence to it and noted that when was questioned, witness EI confirmed that he had, after receiving the Registrant’s appeal letter, spoken to two witnesses (Colleague E and Colleague F) and as a result of his conversations with the two witnesses, that he had been unable to conclude that the document had been thrown by the Registrant. Witness EI also told the Panel that consequently, in his letter dated 19 April 2021, he informed the Registrant of the following:
‘I have reviewed the original witness statement, which stated amongst other things “…then proceeded to throw the document towards the member of staff”.
Having spoken with both additional witnesses provided I am unable to ascertain if you did or did not throw the document towards the member of staff. What I am able to understand is that there was a clear verbal altercation that day involving you and another staff member. The two additional witnesses you provided stated in their perception you did not throw the briefing form directly at another staff member. One stated that your behaviour was embarrassing and unprofessional. One stated that it then did not make for a pleasant working environment. Both did state that this incident was not purely one sided however and the other person involved was also unprofessional.
Ultimately in my opinion I believe on the balance of probability this incident was a verbal altercation between two colleagues who both did not act professionally…’
224. With the Legal Assessor’s legal advice in mind, regarding the case of Enemuwe v Nursing and Midwifery Council (NMC) [2015] EWHC 2081 (Admin) and being careful not to simply adopt the conclusions of others, the Panel considered that the HCPC had failed to produce sufficient evidence to satisfy it that the Registrant threw the briefing document at Colleague A during the course of the morning team briefing.
225. In forming this view, the Panel noted that there were, at least, two other members of staff present during the morning briefing at the time the alleged incident took place and that those witnesses had not attended to give evidence to the Panel. The Panel noted that the only evidence placed before it by the HCPC, amounted to hearsay evidence which the Panel considered it could only place limited weight on.
226. Colleague A gave a statement to the HCPC but then ceased to engage with it so the Panel did not have a chance to hear her evidence tested by way of cross examination. The ‘statement’ is not signed as a true and accurate reflection of what was said, nor is it written in the words of Colleague A but more as SH’s summary of what was heard. Although SH said that Colleague A had shown her how the document had been thrown at her, the Panel found SH’s memory of events to be unreliable as there were several inconsistencies in her evidence, discrepancies in her notes and the investigation that she undertook seemed to lack robustness and was not sufficiently thorough to be reliable. Key witnesses who could have interviewed to rebut or corroborate a particular version of events were not interviewed, and assumptions appeared to have been made based on the demeanour of the witness rather than the evidence.
227. Accordingly, having regard to the evidence before it, the Panel determined that this Particular amounted to the word of Colleague A, in the form of hearsay evidence, versus the Registrant’s word, given as both documentary and oral evidence to the Panel.
228. The Panel again reminded itself that the burden to prove a Particular lay with the HCPC and having reminded itself of this test, the Panel determined that there was insufficient evidence presented to it for the Panel to conclude, on the balance of probabilities that the Registrant did throw the briefing document at Colleague A. In forming this view, the Panel had regard to witness EI’s oral evidence that he had been unable to determine, after speaking to other parties present at the time, whether the document was thrown or not, and similarly this evidence also left the Panel unable to conclude the same. In the Panel’s view, there was insufficient evidence provided by the HCPC to demonstrate that the Registrant did throw the briefing document at Colleague A.
229. Consequently, the Panel found Particular 2(d)(ii) not proved.
Particular 3 – Found Proved
3. You did not notify the HCPC of your dismissal from Spire Healthcare.
230. The Panel had regard to the evidence of witness SY, a Registration manager for the HCPC. It noted that witness SY’s witness statement was not disputed by the Registrant nor was he called to give evidence. SY, in his witness statement, indicated to the Panel that the Registrant was dismissed from her employment at the Hospital on 3 March 2021 and that under the HCPC’s Standard 9.5, the Registrant was under an obligation to notify the HCPC that her employer had taken action against her and that it had dismissed her and she had not done so.
231. The Panel also noted the Registrant’s full admission in respect of this Particular.
232. Consequently, based on the evidence presented by the HCPC and having regard to the Registrant’s admission, the Panel determined that the Registrant did not notify the HCPC of her dismissal from the Hospital and therefore found Particular 3 proved.
Particular 4 – Found Not Proved
4. Your comments in particulars 1(a) and/or 1(b)(i) and/or 1(b)(ii) and/or 1(b)(iii) and/or 1(c) and/or 1(d)(i) and/or 1(d)(ii) above were racially motivated.
233. The Panel did not go on to consider Particular 4 given that it had found Particulars 1(a), 1(b)(i), 1(b)(ii),1(b)(iii), 1(c), 1(d)(i) and 1(d)(ii) were not proved.
Decision on Grounds
234. Having found Particulars 2(a), 2(b), 2(c) 2(d)(i) and 3 proved, the Panel went on to consider whether the Registrant’s conduct amounted to the statutory ground of misconduct.
235. The Panel took the following into account: the Registrant’s oral evidence; the parties’ documentation (including the Registrant’s original documentation and the additional documentation served); and the oral submissions of the parties.
236. The Panel also accepted the advice of the Legal Assessor which had drawn its attention to the following case law and the principles outlined therein: Roylance v GMC (No.2) [2000] 1 AC 311; Nandi v GMC [2004] EWHC 2317; Calhaem v GMC [2007] EWHC 2606 (Admin); Khan v Bar Standards Board [2018] EWHC 2184 (Admin); Bar Standards Board v Howd [2017] EWHC 210.
237. In considering the issue of misconduct, the Panel bore in mind the principles outlined in the aforementioned cases but in particular, the Panel noted the explanation of the term ‘misconduct’ given by the Privy Council in the case of Roylance where it was stated:
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”
238. The Panel also took into account the comment of Justice Collins in Nandi v GMC [2004] EWHC 2317 (Admin) where he stated:
“the adjective ‘serious’ must be given its proper weight and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners”.
239. Further, the Panel also had regard to the guidance provided by Justice Warby in the case of Khan, where he stated:
“…the authorities make plain that a person is not to be regarded as guilty of professional misconduct if they engage in behaviour which is trivial, or inconsequential or a mere temporary lapse, or something that is otherwise excusable, or forgivable. There is, as Justice Lang put it in Howd a “high threshold”. Only serious misconduct can qualify’.
240. The Panel considered each of the individual Particulars found proved in turn and then it went on to consider whether the Registrant’s actions when taken together, could amount to misconduct.
241. On performing its review of the Particulars found proved, the Panel noted that a number of the Particulars originally included in the Allegation, including Particulars relating to racially motivated conduct, had not been found proved and therefore did not need to be considered.
242. In reviewing the remaining proved matters, the Panel noted that Particulars 2(a), 2(b), 2(c) and 2(d)(i) related to the Registrant’s communication towards her colleagues and that Particular 3 related to the Registrant’s failure to notify the HCPC of her dismissal from the Hospital.
243. In determining whether a statutory ground had been made out, the Panel also considered the HCPC Standards of Conduct, Performance and Ethics. Having done so, the Panel was satisfied that the Registrant’s conduct, in respect of the facts found proved in relation to Particulars 2(a), 2(b), 2(c) and 2(d)(i) and 3, did breach the following standards of conduct performance and ethics:
• 2 – Communicate appropriately and effectively;
• 2.5 – You must work in partnership with colleagues, sharing your
skills, knowledge and experience where appropriate, for the benefit of service users and carers; and
• 9.5 – You must tell us as soon as possible if:
- …
- …
- You have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.
244. Notwithstanding that it had determined that the Registrant’s conduct amounted to a breach of the standards, the Panel reminded itself that a breach of the standards alone does not necessarily equate to conduct which must be considered as sufficiently serious so as to amount to misconduct. Additionally, whilst the Panel also noted that the Registrant had stated, when questioned by Ms Collins during her oral evidence, that she considered that her conduct in respect of each Particular amounted to misconduct, the Panel also reminded itself that a determination on misconduct was not a matter for the Registrant to resolve, by rather, was a decision for the Panel alone, using its own independent judgement.
245. The Panel had regard to the evidence before it in respect of Particulars 2(a), 2(b), 2(c) and 2(d)(i). The Panel noted that each of these Particulars related to inappropriate comments made by the Registrant towards colleagues, on four different occasions.
246. In respect of Particulars 2(a) and 2(d)(i) the Panel noted that the Registrant was found to have sworn at colleagues, by telling one to “fuck off and stop moaning” and the other “how about fuck off dear”. The Panel considered that this type of language towards colleagues was unprofessional and undoubtedly amounted to a breach of standards 2 and 2.5, as outlined above. However, when the Panel considered whether the Registrant’s conduct amounted to that which fellow practitioners would consider to be ‘serious’ or ‘deplorable’, the Panel concluded that colleagues would not. In forming this view, the Panel also had regard to the culture at the Hospital, which a number of witnesses had described as an entrenched environment of swearing between colleagues. Whilst this did not justify the Registrant’s use of this type of language when addressing colleagues, the Panel considered it to be a relevant factor when considering the seriousness of the conduct before it.
247. When considering Particulars 2(a) and 2(c), the Panel also noted that the Registrant’s use of bad language occurred 8 months apart (January 2020 and October 2020) and again, whilst this did not justify the Registrant’s behaviour, it was a matter the Panel considered to be relevant because, in the Panel’s view, it could not be said that the Registrant’s language was being repeated frequently. It had occurred on two separate occasions, which spanned many months in time, and in respect of two separate colleagues.
248. In view of the aforementioned, the Panel determined that a fellow practitioner would not consider the comments made by the Registrant to amount to deplorable conduct amounting to misconduct.
249. The Panel next considered Particular 2(b). The Panel accepted the Registrant’s account of the events as they occurred. Namely, that this Particular related to an ill-advised attempt at humour towards a colleague. Again, whilst the Panel noted that the comment had resulted in Colleague A being upset by it, the Panel concluded that this was a poor attempt, by the Registrant, to defuse some of the tension which had developed within the Theatres team, regarding team members originating from Russells Hall Hospital. The Panel noted that the Registrant had apologised for the comment almost immediately, and the Panel also noted that this type of comment had not been repeated to any other colleagues. In this regard, the Panel considered that the Registrant’s comment to her colleague was ill-advised, but that it did not amount to conduct which could be described as ‘serious’ or ‘deplorable’. In the Panel’s view, as described by Justice Warby in Khan, the comment was ‘forgivable’.
250. The Panel next considered Particular 2(d)(i) and it noted that this Particular related to the Registrant saying “you’re in charge check the board”. The Panel determined that whilst the words themselves were not offensive or derogatory towards Colleague A, the impact of the Registrant’s words, which were said in front of other colleagues, including junior members of staff and other practitioners such as anaesthetists and surgeons, did have an undermining effect on Colleague A in front of the wider team.
251. The Panel considered that this was the most serious of all of the comments made by the Registrant as it had been said in front of the wider Theatre team. However, the Panel also took into account that again this was the only time that the Registrant had been found proved to have engaged in this type of communication towards a colleague and whilst the Panel considered that a single comment could, in some circumstances, amount to conduct which would be considered as deplorable or serious, in the Panel’s view this comment did not reach that threshold.
252. Whilst the Panel considered that the Registrant’s use of language, towards Colleague A, was overly direct and blunt, the Panel again did not consider it to amount to conduct which fellow practitioners would regard as deplorable. In drawing this conclusion, the Panel again considered the circumstances in which this comment was said to have taken place. Namely, that Colleague A had been late for work, she had arrived with a coffee in hand and other members of the team had been left to undertake her role prior to her arrival. No apology had been offered by Colleague A for being late.
253. The Panel did not condone the manner in which the Registrant conducted herself at this time and considered the correct way to address any frustrations with Colleague A would have been to raise concerns privately with Colleague A after the meeting. The Registrant herself stated in her evidence to the Panel that in hindsight, this would have been the correct course of action. The Panel accepted the Registrant’s account that her actions amounted to a momentary lapse in judgment. Having regard to all of the aforementioned, the Panel concluded that this conduct could not be considered to be ‘deplorable’.
254. Having found that Particulars 2(a), 2(b), 2(c) and 2(d)(i) did not individually amount to misconduct, the Panel next considered whether the Registrant’s comments, found proved in respect of Particulars 2(a), 2(b), 2(c) and 2(d)(i), could be said, collectively, to amount to misconduct. The Panel concluded that they could not. In the Panel’s view, whilst it accepted that the Registrant’s comments all related to her communication with colleagues, the Panel also had regard to the contextual background and circumstances which the Registrant found herself encountering at the time. In this regard, the Panel had heard evidence from witnesses that, not only did colleagues swear at one another but also that the environment within the Hospital was at times, negative, gossipy and cliquey. Additionally, the Panel had heard evidence from the Registrant, which it accepted, that she had been advised to be more ‘direct’ in her communication style when engaging with colleagues, by Colleague D, her manager at the time. Furthermore, the Panel also noted that when each of the comments had been said by the Registrant, there were no patients or service users within the vicinity. It also noted that there was no evidence before the Panel to suggest that patient care or safety had been compromised in any way as a result of her comments towards colleagues.
255. The Panel also noted the Registrant’s account that she had sought appropriate management support which had not been forthcoming. The Panel accepted the Registrant’s evidence that she was stressed, frustrated and emotionally exhausted at this time and that she “just wanted to get on with her job” and that she “chose to isolate herself from others”. The Panel also considered the evidence from the Registrant’s colleagues that she was excellent at her job and the Panel formed the view that the Registrant sought to apply the ‘gold standard’ in terms of her own practice and became easily and quickly frustrated when colleagues did not attain the same high standards as her.
256. In considering the Particulars before it, the Panel also considered the timeframe in respect of each of the comments made by the Registrant and noted that they spanned a period of approximately twelve months and, save for Particular 2(b) and Particular 2(c) which occurred within weeks of each other, were said to have occurred many months apart. In the Panel’s view therefore, the communication adopted by the Registrant, in respect of the Particulars 2(a), 2(b), 2(c) and 2(d)(i), could not be said to amount to a pattern of adopted communication style. The comments spanned a significant period of time and were not all alike in nature. Whilst the Panel considered that the Registrant’s use of the language described in these Particulars could be considered to be unprofessional and at times rude or blunt, the Panel did not consider that Registrant’s conduct had crossed the threshold to be considered ‘so serious’ and therefore her actions, although inappropriate, unprofessional and below the standards expected were not far enough below the standards as to amount to misconduct.
257. The Panel next considered the Registrant’s conduct in respect of its earlier finding that the Registrant had not notified the HCPC of her dismissal from the Hospital (Particular 3).
258. The Panel considered the Registrant’s actions in this regard to be very serious. In the Panel’s view, the Fitness to Practise regulatory process is underpinned by a Registrant’s obligation to notify their regulator when any investigation or action is taken against them by an employer or other body. This notification process enables the HCPC, as the regulator for healthcare professionals, to perform its statutory functions: namely scrutinising any potential wrongdoing; ensuring public safety; declaring and upholding regulatory standards; and maintaining public confidence in the relevant professions and the HCPC as their regulator.
259. The Panel considered the Registrant’s explanation that she had not been clear that she had been dismissed from her employer to be implausible. In forming this view, the Panel had regard to the Hospital’s letter to the Registrant, dated 3 March 2021, in which the letter stated ‘I write to confirm your dismissal with notice with effect from 2nd March 2021 on the grounds of serious misconduct…’.
260. Whilst the Panel had regard to the Registrant’s evidence to it that she had been unclear whether her ‘termination’ had amounted to a dismissal owing to the payment of two months’ notice, in the Panel’s view the letter from the Hospital was very clear that she had been ‘dismissed with notice’.
261. In considering the plausibility of the Registrant’s explanation, the Panel also noted that as part of the Registrant’s registration renewal process, she would have been made aware of her duty to disclose this type of information to the HCPC, every two years when she renewed her HCPC registration.
262. Additionally, in the Panel’s view, Standard 9.5 was also very clear regarding the HCPC’s expectations around disclosing such matters to it and the Registrant, in not disclosing her dismissal to the HCPC, had, in its view, breached Standard 9.5.
263. The Panel also considered that had the Registrant been unclear about her notification obligations to the HCPC, she should have sought to clarify matters directly with the HCPC, rather than approaching her Union and employment agency, and it noted that she did not. The Panel also noted that the Registrant did not provide any corroborating evidence, from either her Union or her employment agency, to support her assertions to the Panel.
264. In the Panel’s view, by failing to disclose a matter as serious as her dismissal from the Hospital to the HCPC, the Registrant thwarted and undermined the HCPC’s ability to undertake its statutory functions. In this regard, the Panel considered that members of the Registrant’s profession would consider her actions to be very serious and that her actions amounted to conduct which would be regarded as ‘deplorable’. Accordingly, the Panel concluded that the Registrant’s conduct in respect of Particular 3 amounted to the statutory ground of misconduct.
Decision on Impairment
265. Having found misconduct in respect of Particular 3, the Panel went on to consider whether, as a result of that misconduct, the Registrant's current fitness to practise is impaired. The Panel again weighed up all of the evidence, including the testimonials provided to it, and it also had regard to the submissions of the parties.
266. The Panel also took into account the HCPTS Practice Note: “Fitness to Practise Impairment” and it accepted the advice of the Legal Assessor that in determining current impairment the Panel should have regard to the following aspects of the public interest:
i) The ‘personal’ component: the current behaviour of the individual Registrant; and
ii) The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
267. The Panel concluded that the Registrant had been candid, credible and genuine when giving her oral evidence to the Panel and it found the Registrant’s responses to questions to be informative and insightful. The Panel also found that the Registrant’s conduct is remediable and the Panel accepted the Registrant’s evidence to it that she had learnt a genuine lesson from her failure to disclose her dismissal to the HCPC. The Panel also accepted the Registrant’s evidence to it, that the regulatory process had been a salutary one for her and determined that the Registrant had demonstrated insight into her conduct and the role of the HCPC, as a result of engaging in this process.
268. The Panel also noted the Registrant’s remorse and it considered the remorse expressed to it, to be genuine in nature and heartfelt. Whilst the Panel noted that the Registrant had sought to explain how stressors were impacting her at the time, during her oral evidence, in the Panel’s view, the Registrant had also distinguished her previous actions by accepting her conduct completely and by explaining the matters which were impacting her thinking and actions at the time without seeking to justify or qualify them. The Panel therefore also concluded, as a result of the Registrant’s oral evidence to it, that if the same situation were to ever present itself again, the Registrant’s conduct was highly unlikely to be repeated. In the Panel’s view, importantly, the Registrant now acknowledged and understood how her actions and behaviour fell below the professional standards expected of her.
269. In addition, the Panel also noted that the Registrant had an otherwise unblemished career of nearly 30 years of practice and that the Registrant had provided a number of positive testimonials from both senior and junior current colleagues attesting to her good practice and conduct in respect of her current practice.
270. Taking all of the factors into account the Panel was of the view that the Registrant is not impaired on the personal component.
271. The Panel next considered whether the Registrant is impaired on the public component. The Panel reminded itself that part of its role is to maintain professional standards and uphold confidence in the ODP profession and in the HCPC as the regulator for healthcare professionals.
272. In the Panel’s view, a member of the public, fully appraised of all of the circumstances of the case, would be dismayed if no action were taken in respect of the Registrant’s conduct of not informing the HCPC of her dismissal from the Hospital. In forming this view, the Panel noted that it had determined that the Registrant’s conduct had breached Standard 9.5 and amounted to misconduct and that the Registrant’s actions had also potentially undermined the HCPC’s ability to perform its statutory functions. The Panel noted that when the HCPC first receives a referral, it has a duty to investigate those concerns and determine whether fitness to practise proceedings should be instigated. If the HCPC is not notified of such concerns, a Registrant with potentially unreported serious allegations against them could be allowed to continue to practise unrestricted. This, in turn, could have a potentially serious impact on service users, colleagues and the public.
273. The Panel noted that in this case the Registrant had gone on to work in two other hospitals since her dismissal from the Hospital (March 2021) and the HCPC was only notified by her employer two months after her dismissal (May 2021). Whilst the Panel noted there was no actual harm caused to service users in this case, the Panel considered that the original concerns about the Registrant gave rise to the potential for harm which under its statutory duty, required early investigation by the HCPC. This investigation was delayed by the Registrant’s failure to inform it.
274. Consequently, although the Panel recognised that a decision to mark a Registrant’s conduct on public interest grounds alone was a rare occurrence, the Panel considered that a finding of current impairment on public interest grounds was necessary and appropriate in this case in order to: uphold standards in the ODP profession; uphold public confidence in the regulatory process and the HCPC as its regulator. The Panel also determined that such a finding was also required to send a clear message to other professionals that such conduct would not be tolerated.
275. Accordingly, the Panel found the Registrant’s current fitness to practise is impaired in respect of the public component.
Decision on Sanction
276. In reaching its decision on sanction, the Panel took into account the submissions made by Ms Collins and Ms Mills and again had regard to the documentation before it. The Panel also referred to the ‘Sanctions Policy’, dated March 2019, issued by the HCPC.
277. The Panel had in mind that the purpose of a sanction was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and uphold proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate.
278. The Panel accepted the advice of the Legal Assessor.
279. The Panel considered that an aggravating feature in this case was that the HCPC was not notified of the Registrant’s dismissal from the Hospital, until May 2021, two months after her dismissal and that it was the Hospital and not the Registrant who had notified the HCPC of the dismissal at that time.
280. The Panel considered the following to be mitigating factors in the case:
i. the Registrant had a long and unblemished ODP career, prior to this case, with no previous disciplinary record;
ii. the Registrant had provided numerous character references, all of whom spoke highly of the Registrant. The Panel noted that the references had been provided by current managers and senior and junior colleagues alike;
iii. the Registrant had acknowledged at an early stage that her conduct had been inappropriate;
iv. the Registrant had demonstrated insight and remorse and had taken a number of steps to learn and develop herself as a practitioner;
v. the Registrant was encountering some difficult personal circumstances at that time;
vi. there was no identified patient harm; and
vii. no further complaints had been made against the Registrant.
281. In light of its earlier findings regarding misconduct, the Panel did not consider that this was a case where it would be appropriate to take no further action, nor one which would be suitable for mediation, as neither sanction would address the public interest concerns identified by the Panel.
282. The Panel had regard to paragraph 101 of the Sanctions Policy, which states:
‘101. A caution order is likely to be an appropriate sanction for cases in which:
i. the issue is isolated, limited, or relatively minor in nature;
ii. there is a low risk of repetition;
iii. the Registrant has shown good insight; and
iv. the Registrant has undertaken appropriate remediation.’
283. The Panel also had regard to paragraph 102, which provides:
‘102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate…’.
284. Having considered these paragraphs of the Sanctions Policy, the Panel concluded that in the circumstances of this case, a Caution Order was the appropriate and proportionate sanction to impose to meet the public interest concerns. In drawing this conclusion, the Panel noted the following:
i. this was an isolated incident in an otherwise lengthy and unblemished career;
ii. there was a very low risk of repetition;
iii. the Registrant has demonstrated insight into her conduct; and
iv. the Registrant has taken the appropriate remedial action which was available to her, in this case.
285. The Panel considered that in all the circumstances of this case, public confidence in the profession and regulatory process would be maintained by the imposition of a Caution Order.
286. In considering the length of the Caution Order, the Panel again had regard to the Sanctions Policy and concluded that the Order should be imposed for a period of one year. In concluding that one year was the appropriate duration for a Caution Order the Panel had regard to the Registrant’s evidence to it that she had learnt a salutary lesson from the fitness to practise process. The Panel also considered that a one year Caution Order effectively balanced the seriousness of the misconduct with the Registrant’s interests and met the overarching need to maintain public confidence in the profession and the regulatory process. In addition, the Panel also considered that imposing a Caution Order against the Registrant would send a clear message to other HCPC registered professionals, and the public, that such conduct would not be tolerated.
287. Having concluded that a Caution Order was the appropriate sanction to impose, the Panel considered whether the next available sanction, a Conditions of Practice Order, was appropriate. The Panel concluded, given that the Panel’s finding was made on public interest grounds alone, a Conditions of Practice Order which focuses on the need to remedy practice deficiencies, would not be appropriate.
288. Given that a Conditions of Practice Order was inappropriate, the Panel next considered whether to impose the sanction of Suspension. Having done so, the Panel concluded that such a sanction, which would prevent the Registrant from practising for a period of up to 12 months, would be disproportionate and unduly punitive. The Panel did not consider that the public interest required that the public and the profession be deprived of an otherwise competent ODP who had recognised and addressed her isolated failing and who had continued to practise safely, without further concerns being raised in respect of her practice.
289. The Panel accordingly determined to impose a Caution Order for a period of one year.
Order
The Registrar is directed to annotate the Register entry of Ms Angela Mosedale with a caution which is to remain on the Register for a period of 12 months from the date this Order comes into effect.
Notes
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 Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Hearing History
History of Hearings for Angela Mosedale
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 07/02/2024 | Conduct and Competence Committee | Final Hearing | Caution |