Julie Ainley

Profession: Operating department practitioner
Registration Number: ODP040773
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 14/02/2024 End: 17:00 15/02/2024
Location: Virtually via videoconference
Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation Finding Order Notes Hearing History

Allegation

As a registered Operating department practitioner (ODP040773) your fitness to practise is impaired by reason of conviction and/or misconduct. In that:

1. On or around 14 July 2022 you were convicted of “Between February and March 2022 you stole books to a value in excess of £800 belonging to York District Hospital, from York District Hospital. Contrary to section 1(1) and 7 of the Theft Act 1968.”

2. You did not inform the HCPC in a timely manner that you had been convicted of the offence at Allegation 1 above.

3. The matter listed in Particular 2 constitutes misconduct.

4. By reason of your conviction and/or misconduct your fitness to practise is impaired.

Finding

Preliminary Matters
 
Service
 
1. The Panel, after receiving legal advice and taking into account the documents contained within the Service bundle, was satisfied that the Registrant had been properly served with notice of this hearing by email dated 14 December 2023 in accordance with the Health and Care Professions (Conduct and Competence Committee) (Procedure) Rules 2003, as amended. Delivery of the notice was confirmed by email on the same date.
 
Proceeding in absence
 
2. Mr Collins made an application for the Panel to proceed with the hearing in the absence of the Registrant. He informed the Panel that the Registrant had not engaged with the HCPC in these proceedings. He submitted that the Registrant had voluntarily absented herself and waived her right to attend. Mr Collins submitted that the Registrant would be unlikely to attend at a future date and that no useful purpose would be served by an adjournment. He submitted that it was in the public interest to proceed with the hearing without further delay.
 
3. The Panel took into account the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel noted that the Registrant had not engaged with the HCPC in these proceedings. Royal Mail “Track and Trace” indicated that she had taken delivery on 12 July 2023 of a letter from the HCPC informing her of the proposed application to amend the allegation. The Panel therefore concluded that she was aware of, or had the means of being aware of, these proceedings. She had not subsequently notified the HCPC of any change of address. She had not applied for an adjournment or provided any information or evidence as to her inability to attend today’s hearing. 
 
4. In the circumstances, the Panel inferred that the Registrant had voluntarily absented herself from the hearing and waived her right to attend. The Panel considered that an adjournment to another date would be unlikely to secure her attendance. The matters to which the case relates occurred in 2022 and it was in the public interest that the case should be determined without further delay. For all these reasons, the Panel acceded to the application by the HCPC to proceed in the absence of the Registrant. 
 
Application to conduct part of the hearing in private
 
5. Mr Collins made an application for any matters relating to the Registrant’s private life to be heard in private.
 
6. The Panel had regard to the HCPTS Practice Note on “Conducting Hearings in Private” and accepted the advice of the Legal Assessor. The Panel granted the application on the grounds advanced by Mr Collins.
 
Application to amend the allegation 
 
7. Mr Collins applied to amend the allegation as indicated below by striking out proposed deletions and underlining proposed insertions as follows:
 
As a registered Operating department practitioner (ODP040773) your fitness to practise is impaired by reason of conviction and/or misconduct. In that: 
 
1. On or around 14 July 2022 you were convicted of “Between February and March 2022 you stole books to a value in excess of £800 belonging to York District Hospital, from York District Hospital. Contrary to section 1(1) and 7 of the Theft Act 1968.” 
 
2. You did not inform the HCPC as soon as possible in a timely manner that you had been convicted of the offence at Particular Allegation 1 above. 
 
3. The matter listed in Particular 2 constitutes misconduct. 
 
4. By reason of your conviction and/or misconduct your fitness to practise is impaired.
 
8. Mr Collins referred the Panel to the HCPTS Practice Note entitled “Case Management, Directions and Preliminary Hearings”, which confirms that the Panel has a discretion to amend an allegation at any time before it makes findings of fact. The key factor which will determine the exercise of this discretion is whether any unfairness or prejudice to the Registrant will arise if the application to amend the allegation is granted. 
 
9. Mr Collins stated that the Registrant was provided with notice of the HCPC’s intention to make an application to amend the allegation by letter dated 11 July 2023 which was signed for as received by the Registrant on 12 July 2023. No response has been received from the Registrant to the proposed application.
 
10. Mr Collins submitted that the proposed amendments would not change the nature of the case, nor make the case against the Registrant any more serious or raise any additional concerns. For these reasons, he submitted that the proposed amendments could be made without prejudice to the Registrant. 
 
11. The Panel had regard to the Practice Note referred to by Mr Collins and accepted the advice of the Legal Assessor. The Panel decided to grant the application to amend on the grounds submitted by Mr Collins.
 
Background 
 
12. The Registrant is registered with the HCPC as an Operating Department Practitioner and was employed in that capacity by York and Scarborough Teaching Hospitals NHS Foundation Trust (‘the Trust’) from 7 February 2022. 
 
13. The Trust raised a concern on 26 October 2022 about the Registrant's conviction for theft of library books while working at York Hospital. The Trust advised that a member of the public had raised concerns because they had purchased a book online which had Trust identification stamps inside.
 
14. The Registrant was arrested on 6 July 2022 and appeared at York Magistrates Court on 14 July 2022 where she pleaded guilty to theft of library books and was given a sentence of 50 hours of unpaid work and required to pay a £95 surcharge to fund victim services.
 
15. In addition to the allegation arising from the Registrant’s conviction of a criminal offence, as set out at Particular 1, the HCPC alleges that the Registrant did not inform the HCPC as soon as possible of her conviction, as set out in Particular 2. 
 
16. The HCPC alleges that Particular 2 amounts to misconduct, as alleged in Particular 3 and that the Registrant’s fitness to practise is currently impaired by her conviction and/or misconduct, as alleged in Particular 4.
 
The hearing
 
17. The Panel was provided by the HCPC with a hearing bundle which included witness statements and exhibits of the following:
 
• AM, Registrations Manager at the HCPC;
• ES, a Case Manager at the HCPC;
• HB, who is, and was at the material time, employed by York and Scarborough Teaching Hospitals NHS Trust (‘the Trust’) Library Service (‘the Library’), based at York Hospital; and,
• LT, who is, and was at the material time, employed by the Trust as a Theatre and Post Anaesthetic Care Unit Lead and was nominated as the Investigating Officer to lead the investigation into the Registrant’s theft of books from the Trust’s Library.
 
18. The witness statements of AM and ES were served by the HCPC on the Registrant in advance of the hearing with the expressed intention to rely on them at this hearing as hearsay evidence without the need to call either witness. The Registrant raised no objection to that course.
 
19. HB and LT attended the hearing and gave oral evidence in addition to confirming the contents of their witness statements.
 
20. The Registrant provided no evidence, information or submissions for the purpose of the hearing.
 
The evidence of HB
 
21. HB gave evidence about the theft of books from the Library. She stated that in and around February 2022 she was alerted to the fact that some security tags had been ripped out of books and left under bookshelves and that books had gone missing. In response to these thefts, certain books were removed by staff from the shelves. In addition, for a period of two weeks out of hours access to the library was closed.
 
22. On 24 March 2022 the Library was contacted by a member of the public, advising that he had bought a book online from “World of Books” which bore the Trust’s identification stamp. This information was reported to the police. HB and other library staff produced a list of missing books and provided it to the police. This list was based on those security tags which had been removed and were legible. Of those missing books, it was estimated that the replacement value would be approximately £2,500. 
 
23. The police contacted “World of Books” who returned 21 books bearing the Trust’s identification stamps to the Library. One of these books was recorded as being on loan to the Registrant. The police duly identified the Registrant as having stolen books from the Library, leading to her conviction for theft.
 
24. HB gave evidence as to the impact of the theft of the books. She stated that it was the exam season for many medical students and these were the types of books that would have been needed by students in preparation for their exams. The Library had to request copies from other libraries and ultimately had to replace the missing books at the cost of approximately £2,500.
 
The evidence of LT
 
25. LT gave evidence as to her investigation into the theft of books from the Library by the Registrant. She stated that the Registrant commenced her employment with the Trust as an Operating Department Practitioner on 7 February 2022. The investigation concerned the Registrant’s theft of books from the Library and, in addition, her failure to report the charge of theft to her employer. She stated that the Registrant was not fully engaged with the investigatory process and delayed in responding to several requests to attend an interview. She was eventually interviewed via Microsoft Teams on 26 July 2022. In the course of this interview the Registrant admitted that she had been convicted of theft of the library books and that she had failed to report this to her line manager. She was asked whether she had informed the HCPC. The Registrant confirmed that she had not, but intended to do so.
 
26. LT stated that throughout her investigation the Registrant provided no evidence of reflection or insight although she appeared to be ashamed.
 
27. With regard to the impact of the thefts, LT stated that all the books stolen by the Registrant were high value books relating to medical text and their theft deprived employees of their use. As a teaching hospital, it was important that such books were available to staff members, including those studying for exams or for continued professional development. 
 
The evidence of AM
 
28. AM in his witness statement gave evidence that the HCPC requires that, where a registrant has received a criminal conviction, he or she must inform the HCPC as soon as possible and provide all relevant information concerning the conviction. In his witness statement, AM stated that the Registrant registered with the HCPC as an Operating Department Practitioner on 6 May 2022. She did not renew her registration when the renewal window ran from September to November 2022. He confirmed in his witness statement that the Registration Department did not receive any correspondence from the Registrant about her criminal conviction, as evidenced by the records which he exhibited.
 
The evidence of ES
 
29. ES in her witness statement confirmed that HCPC registrants must let the HCPC know as soon as possible (i.e. make a self-referral) if their conduct is listed in Standard 9.5 of the HCPC’s Standards of conduct, performance and ethics, including if “you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence”. ES, in her witness statement, stated that she had checked the system used by the fitness to practise team and there was no record of a self-referral from the Registrant in respect of a conviction.
 
Decision on the facts 
 
30. The Panel accepted the advice of the Legal Assessor. It was mindful that the burden of proof in relation to the facts is on the HCPC and the standard of proof is on the balance of probabilities. 
 
Particular 1 – Proved
 
On or around 14 July 2022 you were convicted of “Between February and March 2022 you stole books to a value in excess of £800 belonging to York District Hospital, from York District Hospital. Contrary to section 1(1) and 7 of the Theft Act 1968.
 
31. Particular 1 was proved by the certificate of conviction dated 10 July 2023, setting out the details of the conviction referred to in Particular 1. The Registrant has not challenged the authenticity of this document or that it refers to her. The circumstances surrounding the Registrant’s theft of the library books are set out in the evidence of HB l referred to above. The investigation by the Trust into the Registrant’s thefts and her response thereto is set out in the evidence of LT.
 
Particular 2 – Proved
 
You did not inform the HCPC as soon as possible that you had been convicted of the offence at Particular 1 above.
 
32. The evidence of AM and ES referred to above, which was not challenged by the Registrant, proved Particular 2. The Panel accepted their evidence that the Registrant did not inform the HCPC of her conviction as soon as possible, or at all.
 
Decision on grounds 
 
33. The Panel had regard to the submissions of Mr Collins and accepted the advice of the Legal Assessor. The Panel received no submissions from, or on behalf of, the Registrant.
 
34. Particular 1 is constituted by the statutory ground that the Registrant has been convicted of a criminal offence.
 
35. The Panel went on to consider whether the facts found proved in Particular 2 of the allegation amounted to misconduct as alleged in Particular 3.
 
36. The Panel was mindful that this is a matter for the Panel’s professional judgment, there being no standard or burden of proof.
 
37. Misconduct was defined in Roylance v GMC (No 2) [2000] 1 A.C. 311 as:
 
“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 medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the conduct 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 …”
 
38. In the case of Nandi v GMC [2004] EWHC 2317 (Admin), the court stated that:
 
“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”.
 
39. The Panel found the Registrant to have been in breach of the following standards of HCPC Standards of Conduct, Performance and Ethics (2016):
 
• Standard 9.1: You must make sure that your conduct justifies the public’s trust in you and your profession. 
• Standard 9.5: You must tell us as soon as possible if you accept a caution from the police or have been charged with, or found guilty of, a criminal offence.
 
40. In respect of Particular 2 the Panel considered that the Registrant’s failure to report her conviction for theft of books from the Trust’s library for monetary gain was conduct that fell seriously below the standards expected of her as an Operating Department Practitioner. Her theft of professional books belonging, in effect, to her employer deprived other employees of reading material required for professional development and examination purposes and caused financial loss to the Trust. The Registrant also caused reputational damage to her profession by her breach of Standards 9.1 and 9.5 as set out above.
 
41. In the Panel’s judgement, the Registrant’s conduct would be regarded as deplorable by fellow practitioners and constituted serious professional misconduct.
 
Decision on Impairment
 
42. The Panel carefully considered the submissions by Mr Collins. The Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment” and accepted the advice of the Legal Assessor.
 
43. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the personal and public components of impairment of fitness to practise. The personal component relates to the Registrant’s own practice as an Operating Department Practitioner, including any evidence of insight and remorse and efforts towards remediation. The public component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the HCPC as its Regulator.
 
44. The Panel found that the Registrant’s fitness to practise was and remains impaired having regard to the personal component. The Registrant has not engaged with the HCPC in these proceedings. In the Panel’s judgement, the Registrant’s conviction which involved dishonesty, and subsequent failure to report, was attitudinal. There is therefore a significant risk of repetition, especially as she has provided no evidence of remorse, insight, reflection or remediation either during the investigation by the Trust or subsequently.
 
45. With regard to the public component of impairment, the Panel considered that, given the risk of repetition, a finding of current impairment is necessary to protect the public. In addition, the Panel was mindful of the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour on the part of registrants. The Panel considered that the Registrant’s misconduct and conviction for an offence of dishonesty represented a serious departure from the standards to be expected of a member of her profession. In the Panel’s judgement, public confidence in the profession and in the HCPC as its Regulator would be undermined if there were no finding of impairment. 
 
46. Accordingly, the Panel found the Registrant’s fitness to practise to be currently impaired having regard to both the personal and public components.
 
Decision on Sanction
 
47. The Panel considered the submissions of Mr Collins. The Panel received no evidence, submissions or information by way of mitigation from the Registrant.
 
48. The Panel took into account the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by upholding proper standards of conduct and behaviour on the part of registrants and maintaining public confidence in the profession and the HCPC as its Regulator.
 
49. The Panel considered the available sanctions in ascending order of seriousness and applied the principle of proportionality, balancing the respective interests of the Registrant and the public.
 
50. In the Panel’s judgement, the aggravating factors in this case are the following:
 
• The Registrant stole books from the Trust Library for financial gain;
• Her thefts involved an element of pre-meditation and planning in that she removed security tags from the books and secreted them from the Library, after which she sold them on the internet;
• Her thefts involved a large number of books and continued over a period of time;
• Her thefts deprived other users of the library, including those preparing for exams and other Trust employees undertaking continuing professional development, of essential reading matter;
• Her thefts caused the Trust, as her employer, significant financial loss in having to replace the books which were stolen; and, 
• She has provided the Panel with no evidence of remorse, insight, reflection or remediation, nor has she engaged in these proceedings, with the result that the Panel concluded that there is a significant risk of repetition.
 
51. By way of mitigation, the Registrant pleaded guilty to the offence of theft.
 
52. The Panel considered the various options by way of disposal in ascending order of seriousness.
 
53. The case is too serious for the Panel to take no action, as it involves a conviction for an offence of dishonesty.
 
54. Mediation is not relevant.
 
55. A Caution Order is not appropriate because of the serious nature of the Registrant’s conviction and misconduct. 
 
56. A Conditions of Practice Order is not appropriate because the case does not relate to the Registrant’s competence as an Operating Department Practitioner but rather to her dishonesty and her suitability to be a member of the profession. The Panel was not satisfied that workable conditions could be formulated to address such concerns. 
 
57. The Panel considered the criteria for imposing a Suspension Order but concluded that the Registrant’s conviction and misconduct were so serious as to be fundamentally incompatible with her remaining on the Register. The Panel concluded that the Registrant by the serious nature of her dishonesty has demonstrated that she is not trustworthy.
 
58. The Sanctions Policy provides the following guidance in relation to Striking Off Orders:
 
A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• Lacks insight
• Continues to repeat the misconduct 
• Is unwilling to resolve matters.
 
59. The Panel was mindful that a Striking Off Order is a sanction of last resort. In the Panel’s judgment, the nature and seriousness of the Registrant’s conviction and misconduct is such that she is not fit to be a member of the profession. Public confidence in both the profession and the Regulator would be undermined if she were allowed to continue in practice. In the Panel’s judgement, the Registrant has demonstrated both that she lacks insight and is unwilling to resolve matters. The Panel has also concluded that there is a significant risk of repetition, given the attitudinal nature of her dishonesty. In these circumstances, the Panel concluded that the appropriate sanction is a Striking Off Order. 

 

Order

Order:
That the Registrar is directed to strike the name of Ms Julie Ainley from the Register on the date this order comes into effect.

Notes

Right of Appeal:

You may appeal to the appropriate court against the decision of the Panel and the Order it has made against you. In this case the appropriate court is the High Court in England and Wales.
Under Articles 29 and 38 of the Health Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. The Order made against you will not take effect until that appeal period has expired or, if you appeal during that period, until that appeal is disposed of or withdrawn.

Interim Order

1. Mr Collins made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.
2. The Panel was satisfied that it was appropriate to hear the application in the absence of the Registrant, given that the notice of hearing informed her that the Panel could consider such an application and the Registrant’s total lack of engagement in the proceedings.
3. The Panel noted Mr Collins’s submissions and accepted the advice of the Legal Assessor.
4. Given the Panel’s findings that the Registrant’s actions are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.
5. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.
6. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal. This Interim Suspension Order is made for the maximum period of 18 months.

 

Hearing History

History of Hearings for Julie Ainley

Date Panel Hearing type Outcomes / Status
14/02/2024 Conduct and Competence Committee Final Hearing Struck off
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