Vuk Cirovic

 

 

1. Ms Bass applied for part of the hearing to be conducted in private in order to protect the private life of the Registrant’s son. Ms Bass submitted that whilst there was no difficulty in referring in public to the fact that the Registrant’s son was undergoing surgery at the material time, if it became necessary during the hearing to go into more detail about the nature of that surgery then those details should be heard in private. Mr Cobb supported the application. 

 

2. The Panel received and accepted legal advice. It was aware that substantive hearings should be conducted in public unless there was a compelling reason to conduct the whole or parts of the hearing in private. The Panel decided that it was appropriate for any detail about the Registrant’s son’s surgery to be heard in private in order to protect his private life. The rest of the hearing would be conducted in public.

 

 

3. The Registrant is registered with the HCPC as an Operating Department Practitioner (“ODP”). He had previously worked for NHS Fife (“the Trust”) as a permanent member of staff until 30 June 2015. After that time, the Registrant was working via an agency, Robinson Medical Recruitment (“RMR”), carrying out agency shifts for the Trust on an ad-hoc basis. The Trust had two hospitals in Fife, Queen Margaret Hospital in Dunfermline (“QMH”) and the Victoria Hospital (“the Hospital”) in Kirkcaldy. 

 

4. On 20 August 2021, the Registrant’s son was on an emergency list in Phase 3 theatres at the Hospital. It is alleged that the Registrant dishonestly gained entry to the restricted operating theatre complex (“theatre complex”) of the Hospital by allowing members of staff to think he was working that day when he was not. It is alleged that the Registrant made false statements about his swipe badge not working and that he was working a shift there, and that he changed into scrubs, hat, and mask. 

 

5. On 23 August 2021, as a result of concerns raised by members of staff about the Registrant’s presence in the theatre complex, the Trust commenced an internal investigation. This concluded on 23 September 2021.

 

6. On 30 August 2021, the HCPC received a referral from the Theatre Manager of the Hospital regarding the alleged incident on 20 August 2021. 

 

7. On 9 February 2023, a panel of the Investigating Committee decided that there was a case for the Registrant to answer and referred an Allegation to this Committee. 

 

 

8. At the conclusion of the HCPC’s case, the Panel raised an issue regarding the wording of Particular 3c in the Allegation as originally drafted, in light of the evidence called and the admission in evidence of a plan of the Hospital’s theatre complex. The parties were given time to consider the matter and to decide whether the Allegation should be amended to reflect the evidence that had been given about the geography of the theatre complex. Ms Bass applied to amend the Allegation so that it better reflected the evidence called, to eliminate repetition, and to clarify the allegation against the Registrant. She submitted that there was no prejudice to the Registrant as the substance of the case against him had not changed and so there would be no unfairness to him if the amendments were made. Mr Cobb did not oppose the application. 

 

9. Before reaching its decision, the Panel received and accepted legal advice. The Panel decided that the proposed amended Allegation did not cause any prejudice to the Registrant. The amended wording did not affect the way his case was presented and did not change the nature of the case against him. The Panel therefore granted the application, having been satisfied that it caused no unfairness to the Registrant. 

 

 

 

10. The Panel heard evidence from six witnesses called by the HCPC. It was provided with a bundle of documents from the HCPC which was 78 pages in total. During the hearing, an agreed map of the Hospital’s theatre complex was adduced in evidence. The 78-page bundle consisted mainly of the written witness statements, together with a limited number of documentary exhibits which included: 

 

• The Hospital ODP rota for August 2021.

• A DATIX entry regarding the alleged incident on 20 August 2021.

• The Trust Investigation Report.

• The referral email sent to the HCPC on 30 August 2021.

 

11. The Panel bore in mind throughout that the burden of proving the Allegation was on the HCPC and that to do so, there must be sufficient evidence to satisfy the civil standard of proof. The Panel considered each of the particulars and sub-particulars of the Allegation separately. 

 

12. With the exception of the third day of the hearing (17 January 2024), the Registrant was present during the hearing. On 15 and 16 January, he was only able to attend via telephone link but on 18 January, when he gave evidence, he was able to join the hearing via videolink. He gave evidence before the Panel. 

 

13. The Panel noted that during the Registrant’s evidence, he made certain admissions to factual matters in the Allegation. The Panel understood that these admissions had not been made at the outset of the hearing on legal advice as his case involved a consideration of the context in which the events of 20 August 2021 evolved. 

 

 

14. The first two witnesses to give evidence did so without the benefit of an agreed plan of the theatre complex. The remaining four witnesses were able to refer to an agreed plan of this area. The Panel was told that the theatre complex is a restricted access area which is accessible from the public areas of the Hospital either via one of two sets of locked double doors by use of a swipe badge, or via the men’s or women’s changing room, which themselves can only be accessed by use of a swipe badge. 

 

15. The Panel was told by the witnesses and could see on the agreed plan that within the theatre complex, there were 11 operating theatres (numbers 1 to 11), each with its own anaesthetic room. The emergency theatre, which was also referred to as the CEPOD theatre, was operating theatre number 9. There were also two recovery rooms (number 1 and 2); a male and female changing room; various storerooms; and offices for members of staff. There was an allocation board in the corridor on a wall next to the exit of the male changing room into the theatre complex. Members of staff would refer to this board to see where within the theatre complex they would be working. The allocation board was a whiteboard on which either names would be written or magnetic nameplates would be placed.

 

16. The Panel heard evidence about NHS Fife swipe badges which members of staff had to gain access to various departments within the Hospital, including the theatre complex. The Panel noted that in the Trust’s investigation report, there were references to the Registrant having had three different NHS Fife swipe badges. The Panel also noted that the information in the investigation report was hearsay evidence obtained from the security department. There was no documentary evidence to support the information in the investigation report. As the Allegation faced by the Registrant did not include an allegation in relation to use of an NHS swipe badge, the Panel concluded that it did not need to resolve any issues regarding whether or not the Registrant had used or tried to use a swipe badge on 20 August 2021 to gain access to the theatre complex. The Panel noted that the Registrant denied using or attempting to use such a swipe badge on that day.

 

17. The Panel also noted that there were references in the evidence to the Registrant having looked at his son’s patient records on Ward 52, where he was transferred to. The HCPC had not called any evidence from any member of staff to say that this had occurred and the information regarding it in the investigation report was hearsay evidence. As the Allegation faced by the Registrant did not include an allegation in relation to breaching patient confidentiality by reading his son’s patient notes, the Panel concluded that it did not need to resolve any issue regarding that matter, which was denied by the Registrant. 

 

 

18. The Panel heard evidence from KH, who is a Perioperative Assistant employed by the Trust. KH told the Panel that she had been working in the theatre complex at the Hospital for about 11 years. She said that in her role, she was based in the anaesthetic rooms or in the operating theatres. She would also carry out administrative duties relating to rotas for the operating theatres and worked on the “Opera” system, which was used for operating theatres and managing scheduling. 

 

19. On 20 August 2021, KH said she was working a half day and was due to end her shift at 13.00. She told the Panel that towards the end of her shift she had been walking to the disposal hold area which was in the theatre complex, with trays and other dirty equipment, when she had noticed the Registrant trying to attract her attention from the other side of the locked doors. She explained that these doors have small glass panels and that entry to the operating theatre area is by use of a swipe badge. She said that members of staff can obtain a swipe badge by completing a form, which must be signed by a manager.

 

20. KH told the Panel that she had opened the double doors and had spoken to the Registrant, who had told her that, “My card is not working. Can you let me in?”. KH said she had replied, “No problem. Is that you working on the backshift?”, to which the Registrant had replied “Yes”. KH said that the Registrant had been wearing “outside clothes”. KH said that the backshift was the shift which started at 12.30 and ended at 21:00. KH said that she had asked this as she had assumed the Registrant was coming in to work that particular shift. 

 

21. KH gave her evidence before the agreed plan was adduced in evidence. KH described the theatre complex as being a secure unit which was laid out in a “U” shape, with locked double doors at each end of the “U” shape. During the Covid-19 pandemic, a one-way system had been implemented and so access to the male changing room was also one-way: one door to enter and the other to exit. KH said that the Registrant had also asked if she could let him into the male changing room. This had involved them both going out of the theatre complex to let him into the male changing room via the “entry” door. KH told the Panel that as they were walking to the male changing room, the Registrant had said to her “I’m on the backshift and my son is probably going to be on the CEPOD board today”. KH said she had replied, “Oh that’s going to be a nightmare for you”. KH said that after letting the Registrant in to the male changing room, she had not seen him again before her shift had ended. 

 

22. KH explained that the CEPOD theatre was the emergency theatre. She told the Panel that the Registrant could work in the CEPOD theatre but not if his son was a patient in that theatre. She said that if family members were patients in an operating theatre where a member of staff was due to work, that member of staff would swap out of that theatre with another member of staff. KH told the Panel that she had not been concerned that the Registrant was working that day whilst his son was in surgery, as she did not know which of the operating theatres he was due to be in or if he had swapped out of the CEPOD theatre. KH said that it had been instilled in staff that they had to declare if family members were being treated and re-arrange where they were working to ensure the welfare of those family members. She said it was also to avoid an awkward situation for the surgeons and anaesthetists if anything were to go wrong. KH also referred to the potential for breaching patient confidentiality and that there could be issues regarding patient dignity. 

 

23. In cross-examination, KH agreed that the Registrant had a fairly strong accent but that she was sure he had said what she had recorded. KH said that the Registrant’s demeanour had seemed fine to her when she let him in. KH did not accept that she had simply assumed the Registrant was at the Hospital to work and did not accept that she had just “heard” him say what she expected him to say, given that the backshift was due to start shortly. KH was referred to the note she had made of the incident on 23 August 2021, but did not think that her memory of events was clearer then than when she made her witness statement in April 2023. She said she still remembered it quite well. KH accepted that in her note on 23 August 2021 she had only referred to there being one reference to the “backshift” whereas in her witness statement, she said that it had been referred to again, this time by the Registrant as they walked to the changing room. This was when he had also mentioned that his son was probably going to be on the CEPOD board. When it was suggested that the Registrant had never said anything about the backshift to her, KH said she disagreed totally. 

 

24. KH said she was not shown the Registrant’s swipe badge, but he had told her it was not working. KH said that if a member of theatre staff had to attend a ward to collect or deliver a patient, they would wear scrubs.

 

 

25. CG is a Senior ODP who is employed by the Trust and based at the Hospital. He told the Panel that he was responsible for working in Anaesthetics. He said he had known the Registrant for 30 years and had worked with him for 25 years, and that they had a good working relationship. CG said he did not see the Registrant outside of work. He was aware that although the Registrant had previously been employed by the Trust, he had been working for an agency at the material time. 

 

26. CG said that on 20 August 2021, he had been working on the backshift at the Hospital, which runs from 12:20 to 20:50, during which there would be two ODPs on duty to cover the emergency theatre and the emergency obstetrics theatre. CG said he had entered the male changing room to change into scrubs before the start of his shift and had seen the Registrant in there. He said that access to that area was by swipe badge only, and that there was no reason why any member of the public would be there. CG told the Panel that the Registrant was getting changed into scrubs and he had asked the Registrant if he was working. CG said the Registrant had replied “I’m always busy working hard”. CG said that he had understood the Registrant to be saying that he was working with him on that shift.

 

27. CG said when he left the changing room, he had looked at the allocation board to see where he was working that day. He said that he had noticed that the Registrant’s name did not appear on the allocation board and that he had thought this might have been an administrative error. CG said that when the Registrant came out of the changing room, he had stood behind him. CG told the Panel that he had told the Registrant his name was not on the board and this might have been a mistake. The Registrant had replied saying that he was working in recovery and CG said he had then said that the Registrant should head to recovery. CG had found it strange that the Registrant was working in recovery as he had always worked in anaesthetics. 

 

28. CG told the Panel that another Senior ODP (LS) had approached where he and the Registrant were, and he had overheard LS telling the Registrant that his son had just been taken into theatre. The Registrant had then headed down the corridor towards the recovery rooms. 

 

29. CG said he knew that the Registrant had a son who was an adult and that he had asked LS to inform the theatre coordinator for that day that the Registrant was present in the department. CG said he had thought something was wrong as the Registrant’s name was not on the allocation board and because the Registrant never worked in recovery. 

 

30. CG told the Panel that only members of staff have access to the theatre complex, and this is by use of a swipe badge. He explained that if an employee enters the ward or theatre on their day off, this poses a risk to fire safety because all employees who are, for example, in the theatre complex must be logged. CG told the Panel that he was not aware of a situation where a family member of a patient would be permitted to enter a theatre and that any such arrangement would have to be approved by management. CG said that he had been unsure of what had been put in place regarding the Registrant. 

 

31. In cross-examination, CG said it would not surprise him having known the Registrant for 30 years that he might have made a non-committal statement when he had asked him if he was working. CG could not recall if, by the allocation board, the Registrant had said to him that he was “working in recovery” or he was “going to recovery”. He could not recall what had been said. The Registrant had gone in the direction of the recovery rooms after LS had spoken to him. 

 

32. In answer to Panel questions, CG said that a family member would access, for example, the anaesthetic room in the theatre complex if accompanied by a nurse or member of staff. They would have to be escorted because access to the theatre complex was by swipe badge only. 

 

 

33. LS is a Senior ODP employed by the Trust and, at the material time, was based at the Hospital. LS said that he had worked as a Senior ODP for about 21 years. LS said that he knew the Registrant was a retired ODP who still worked shifts at the Hospital through an agency. LS said he had first met the Registrant in 2002 or 2003. The Registrant had previously worked mainly at the Trust’s QMH. LS said that he did not know the Registrant socially. 

 

34. LS told the Panel that on 20 August 2021, he had been working on the early shift in the emergency CEPOD theatre, which was marked as operating theatre number 9 on the plan. In that theatre was a telephone which usually only received calls from internal extension numbers from elsewhere in the Hospital. He said that mid-morning, he had answered a call from an outside line from the Registrant. LS said that he thought it was strange for a call to be received from an outside line. LS said he had said something as a joke to the Registrant to the effect of, “Oh, you’re lucky, it’s the A team on today”. The Registrant had then told him that his son was on the theatre list for that day and LS said he had asked the Registrant if he would like a telephone call back when his son was in recovery and the Registrant had said, “Yes, thank you”. LS said he had thought that was the end of the matter. 

 

35. LS told the Panel that towards the end of his shift, CG had come to take over from him and he had met him in the changing room and told him that the Registrant’s son was on the theatre list. LS said that CG told him that he had just seen the Registrant in scrubs. LS said that he had found this unusual and strange and had made a comment to CG to the effect of “Why didn’t [the Registrant] phone from a hospital phone”. He had thought this as he had seen the Registrant wearing scrubs. LS said he then made enquiries to check that the Registrant was not on the rota and also checked that he was not working in another department, such as recovery. He had also called the other operating theatre at the Hospital, and he said that all departments he had called had confirmed to him that the Registrant was not working that day. LS said that he had spoken to the Senior Charge Nurse (AH) in the management corridor and had left the matter with her. LS confirmed that the Registrant had not entered the operating theatre that day. 

 

36. LS explained that an ODP would not be present in a hospital ward when not on shift, unless they were visiting a relative, and that they would not be present in an operating theatre at all when not on shift. If an ODP wanted to speak to a member of management on their day off, they would do so in the management office and would wear their own clothes. LS explained that the theatre complex was a restricted area so that members of the public could not just walk in from the street and gain access. LS said that paediatric patients were very often accompanied by an adult when entering the theatre complex, but the adult would always be accompanied by a Nurse. He also said that an adult patient may have a family member accompany them if they had “special needs”. 

 

37. LS told the Panel that if an adult patient was to have somebody accompany them into theatre, this would be for a member of management to decide, and they would inform the ODPs. This was not stated in a particular Trust policy, but LS said that it was just something that anyone working in the medical profession would know. LS said that it was not possible for the Registrant to have had permission to enter the theatre complex that day.

 

38. When asked in cross-examination whether the Registrant had called CEPOD twice, LS said he thought there was only one call. He said that the Registrant had sounded normal on the call he had taken. He had thought it was just a father inquiring about his son and he had not found it annoying or irritating. He denied being short with the Registrant and said that he had offered to call him back after the surgery. He had not called him back as by then a colleague had taken over from him. 

 

39. LS said he had not spoken face to face with the Registrant and did not recollect telling the Registrant that his son had been taken into theatre. He said he thought he had escalated his concerns about the Registrant being in the theatre complex of his own accord rather than at the request of CG. LS said he thought he had later seen the Registrant in the recovery room with a group of people, but when asked, he could not say if Dr D was in that group. 

 

 

40. AH is a Senior Charge Nurse and has been employed by the Trust since 1995. At the material time, AH was based at the Hospital and was the Senior Charge Nurse within the theatre complex. In that role, she was responsible for ensuring the Trust’s policies and procedures were adhered to on a daily basis. AH told the Panel that she had first met the Registrant when she had started with the Trust in 1995 when, at that time, the Registrant was a permanent member of the Trust’s staff. AH said that around the time of the incident in August 2021, she would see the Registrant fairly regularly, depending on his agency shifts.

 

41. AH told the Panel that on 20 August 2021, she was the theatre coordinator at the Hospital, which involved ensuring that the theatres were running efficiently without any issues with either patients or staff members. She said that at about 12:15 she was standing next to Senior ODP CG, looking at the allocation board, when the Registrant came out of the male changing room. AH said that the Registrant said, “Good afternoon” to her and she had responded “Good afternoon”, and the Registrant had carried on walking down the corridor, but she did not see where he went as she continued to look at the allocation board. AH said that the Registrant had been dressed in scrubs as if he was ready for a shift. AH said that a person could be let into the theatre complex by, for example, knocking on the door if they had forgotten their swipe badge. Visitor passes were issued on a day basis. 

 

42. AH said that as she was walking down the corridor, Senior ODP LS had passed her and informed her that the Registrant had gone to the recovery room, that the Registrant was not booked to work a shift that day, and that the Registrant’s son was a patient in the emergency theatre. 

 

43. AH said that she had then gone to the recovery room (marked recovery room 2 on the agreed plan) and saw that the Registrant was standing at the far end of the room. She had gestured for him to come over to her and he had done so. AH said she had told the Registrant he was not meant to be there and that, as he was not booked to do a shift, he was not allowed in the theatre complex. AH said she told the Registrant that she knew his son was in theatre and so it was unacceptable for him to be there. She said she had told him to leave immediately. AH said that the Registrant had told her he was worried about his son, and she told him that she understood his anxiety but it was not okay for him to be present in the department, and he should go down to the ward and wait for his son there. The Registrant had then left. AH said that she had later informed the Theatre Manager (CL).

 

44. AH told the Panel that there was no reason for an agency ODP to be in the theatre complex on their day off and that if they had any queries, these should be directed to their agency, who would then raise it with the appropriate manager. AH said that there was no reason for any member of staff to wear scrubs on their day off. She said that if someone who was not on shift entered the theatre complex, this could lead to a breach of confidentiality as that person could have access to patient records or could see a patient’s operation when they do not have authority to do so. AH also referred to fire safety concerns. AH explained that the Trust did not have a particular policy on this, it was just known. AH said that it was a highly serious matter and a breach of the code of conduct. 

 

45. AH told the Panel that if a patient is under the age of 16 or has “special needs”, a family member would be allowed to accompany the patient into the anaesthetic room pre-induction and at the end of their operation, but only after they have been extubated. She said that if a family member did have permission to accompany the patient in this way, they would be escorted by a member of hospital staff and they would not get changed into theatre scrubs. AH said that she understood the Registrant’s son was over the age of 16 and that his surgical procedure was already underway when the Registrant first entered the theatre complex. She said that none of the medical staff who were performing the operation would have asked a patient’s family member to attend the operating theatre mid-way through an operation or surgical procedure. 

 

46. In cross-examination, AH said that if the Registrant was working through an Agency, he had to get a temporary swipe badge. These were issued on a day-by-day basis. AH said she had not been especially surprised when told by a colleague that the Registrant had gone to the recovery room as she had thought he was on duty. She said she had become concerned when she was told that the Registrant’s son was in the theatre complex. AH said that she knew then he was not on duty and that she had to get him to leave the theatre complex as he had no permission to be there. 

 

47. AH said that when she went to the recovery room, the Registrant had been speaking to a female staff nurse. She could not recall if Dr D had been there, but he could have been with patients. When the Registrant had come over to speak to her, he had seemed anxious and concerned.

 

48. In answer to Panel questions, AH said that sometimes the swipe cards did not work, and you would let staff into a department if you were familiar with them. 

 

 

49. LDS is a Senior Charge Nurse employed by the Trust. LDS has been a nurse since 2004. On 20 August 2021, she was based in Ward 52 of the Hospital. She had been based on that ward for about five months at the time. LDS told the Panel that she had left Ward 52 at about lunchtime to go downstairs. As she left, she had seen a man, who she later learnt was the Registrant, sitting on a chair outside the ward, dressed in scrubs. LDS said she had never met or worked with the Registrant before 20 August 2021. When she had returned from lunch, LDS said she was told by one of the Staff Nurses that the Registrant, who was a relative of one of the ward’s patients, had entered the theatres and been asked to leave. LDS told the Panel that she had understood that theatre staff had told the Staff Nurse of this. LDS said she had then asked the Staff Nurse how the Registrant had got into the ward, and she was told that, “He had entered Ward 52 when his son came through the lifts”. 

 

50. LDS explained that as she had concerns about what she had been told she had phoned her boss, the Clinical Nurse Manager, asking her to attend the ward. LDS said she had then gone on to the ward and into the bay where the Registrant’s son was. She said she had asked the Registrant’s son whether the Registrant was his next of kin, to which he had replied that the Registrant was his father. She said that this had reassured her, and she was less suspicious than she had been. However, the fact that he was wearing scrubs still gave cause for concern because it was not normal for a relative to wear them.

 

51. LDS said she had then asked the Registrant if he was working that day and the Registrant had replied that he was on a day off but that he did do work in theatres. LDS said she had been surprised that the Registrant was wearing scrubs when he was not working that day. She said that she had thought it was not right that the Registrant had entered the ward with the trolley carrying his son wearing scrubs and a cap. AH said that she had to clarify that the Registrant was who he said he was. 

 

52. LDS said she had asked the Registrant to provide his mobile number for Covid-19 track and trace purposes and asked him if he had a staff badge. LDS said the Registrant had told her he was an ODP, to which she had responded that she was not sure what an ODP was. The Registrant had then shown her a staff badge, which stated “SODP” (Senior ODP) and had his name and picture on it. 

 

53. LDS said that the Registrant was dressed in green theatre scrubs and a blue theatre cap. She said that the Registrant remained by his son’s bed and that he was concerned about his son and how long he was going to be in hospital for. LDS said that the Registrant’s concern had seemed sincere and genuine. 

 

54. LDS told the Panel that when the Clinical Nurse Manager arrived on the ward, she had told her what had happened. The Clinical Nurse Manager had then informed her manager, the Head of Nursing, who had attended the ward together with the Theatre Manager. LDS said she thought the Registrant was spoken to by the Head of Nursing and the Theatre Manager on the ward before moving to speak to him in a side room used by relatives.

 

55. LDS said that the Registrant’s son was discharged from Hospital the next morning and that the Registrant did not return to the ward after speaking to the Head of Nursing and the Theatre Manager. 

 

56. LDS told the Panel that although she had never worked in surgical theatres, to her knowledge, an ODP would not be in a surgical theatre or ward on their day off, and that it was against their code of conduct and professional duty to identify themselves as someone who is on duty when they are not. LDS said that to do so would raise issues relating to patient confidentiality if someone not on shift were to enter a theatre and gave, by way of example, a female patient who might be exposed before entering theatre or during surgery. LDS also referred to theatres as being sterile environments. LDS said that by entering either the theatre or ward dressed in scrubs, there was a risk that the Registrant could have obtained confidential information about his son which his son did not want to be divulged to him. LDS gave, as a worst-case scenario, that the Registrant could have tampered with the patient charts which were at the bottom of the patient beds. LDS said that it was also a breach of conduct as the Registrant was on a day off. 

 

57. In cross-examination, LDS agreed that if the Registrant had been on duty at the time, his wearing scrubs might have made sense. LDS said that she had asked about how the Registrant had entered the theatre complex when she had first been told he was on the ward, because she had not known that he worked there. LDS said she could not remember if the swipe badge which the Registrant had shown her was an NHS Fife swipe badge but that it had looked like her own swipe badge. She said that the Registrant had been forthcoming and cooperative and had made no attempt to suggest to her that he had been on duty. He had said that he was on his day off. 

 

58. In answer to Panel questions, LDS said that she had not had any further conversation with the Registrant’s son regarding patient confidentiality but could not say if others did. LDS confirmed that agency staff were used on her ward, but their identity badges differed from those of permanent staff. Their badges would show the relevant Agency. She believed that the badge shown to her by the Registrant was like her own badge.

 

 

59. CL was employed by the Trust as the Theatre Manager at the time of the alleged incident on 20 August 2021. In that role, she has overall operational responsibility for three theatre suites, which have over 300 staff across three different sites. She has worked for NHS Fife for 19 years. CL said she had first met the Registrant in 2010 when she had started her training as an ODP. At that time the Registrant had been a permanent member of staff at the QMH.

 

60. CL explained that when she arrived at the Hospital there had been no induction packs for new staff and no exit packs for staff leaving the Trust. In relation to swipe badges, CL explained that when a member of staff now left the Trust, their line manager would inform security staff, who would then deactivate the swipe badge. Alternatively, the member of staff could inform security themselves. For Agency staff to obtain a swipe badge, they would have to speak to the nurse in charge and be issued with a temporary swipe badge, which should be returned to security at the end of the day. CL said that as she had made changes regarding this after the Registrant had left the Trust, he would not know about the new procedures. 

 

61. CL told the Panel that the Registrant had previously worked for the Trust as an ODP but had left in 2015. Thereafter, he had worked on an ad hoc basis through RMR, covering shifts at both the Hospital and at QMH. CL told the Panel that the last shift prior to 20 August 2021 carried out by the Registrant at the Hospital had been on 21 July 2021. 

 

62. CL said that around lunchtime on 20 August 2021, she had been in her office in the theatre complex when she had received a telephone call from the Clinical Nurse Manager, who had informed her that during the morning, the Registrant had appeared on the ward dressed in scrubs and the ward sister had assumed he was a member of staff. The Clinical Nurse Manager also told her that she understood the Registrant had been down in the theatre complex. CL was also told that it was believed that the Registrant’s son was an inpatient on Ward 52, that he had just returned there from theatre, and that the Registrant was at his bedside, still dressed in scrubs. 

 

63. CL told the Panel that she had gone to Ward 52 and had found the Registrant on the ward dressed in scrubs, despite the fact that he was not working a shift that day. CL said she had asked to speak to the Registrant, who she was not sure had recognised her, and that she and the Clinical Nurse Manager had spoken to the Registrant in a quiet room where she had asked him what he was doing there and why was he dressed in scrubs. CL explained that she was concerned because she had been informed that the Registrant had been in the theatre complex, and now he was on the ward dressed in scrubs when he was not supposed to be on duty that day. 

 

64. CL said that the Registrant had responded to her question by saying that he had thought it “the safest option” to get changed into scrubs. At the time, Covid-19 was still around. CL said that she had told the Registrant that he knew that no one else who was accompanying a patient to theatre would get changed into scrubs, but the Registrant had felt quite strongly that he was in the right. CL said that the Hospital had not adopted any policy that scrubs should be worn because of Covid-19. CL said that when she had asked the Registrant if he had gone into theatre, he had said that relatives sometimes went into theatre with patients. CL said she had explained to the Registrant that there was a procedure in place for relatives who wished to accompany a patient, which he should be aware of, and she told him that he could not just walk in of his own accord. CL said that she could tell that the Registrant was not happy. 

 

65. CL told the Panel that she had also been concerned as to how the Registrant had entered the theatre complex because a swipe badge was required. When asked, the Registrant had told her that he had not used a swipe badge. CL said that the Registrant had made out that it did not matter as he would never be returning to the Hospital and would not carry out any more shifts there. CL explained that her concern about the swipe badge was from a security perspective. She also said that she could see that the Registrant was visibly stressed, as he would be when a relative was in hospital. 

 

66. CL told the Panel that her concerns about the Registrant’s conduct on 20 August 2021 had included the health, safety, and fire perspective, and patient confidentiality as the theatre complex housed 11 operating theatres and so there were a high number of patients in that area. 

 

67. CL produced in evidence a DATIX report which she had completed on 23 August 2021 in relation to the incident due to her concerns regarding health, safety, and security. She also told the Panel that she had informed RMR of the incident on 24 August 2021. 

 

68. CL said that the Trust had subsequently investigated the incident due to the breach of security, and because there were witnesses from whom information could be gathered and because the Registrant had not thought it was an issue. CL produced her investigation report, which was concluded in September 2021. She confirmed that the security concerns raised by the incident had resulted in the Trust deactivating the swipe badges across the organisation, so that only staff who actually still worked at the Hospital could request that their badges be reactivated. 

 

69. CL said she had contacted the Registrant and asked him to return any NHS Fife security badges and it was arranged that he should do so at QMH. CL said she had referred the matter to the HCPC on 30 August 2021.

 

70. In cross-examination, CL explained that she had understood the Registrant had not thought it was an issue because he had not looked happy when she spoke to him, and he had raised his voice at her and told her he would not do any further shifts at the Hospital. CL accepted that the Registrant was obviously upset about his son as well. CL said that the Registrant had been a permanent member of staff and had carried out agency shifts and that he knew the rules. CL said the Registrant knew that he had no access to the theatre complex during an operation on a relative. 

 

71. Regarding swipe badges, CL said she had asked the Registrant if he had used or attempted to use a swipe badge that day, but he had said no. With regard to the Registrant’s suggestion that he had changed into scrubs as this was the safest option, CL did not agree with his reason for doing that. She said scrubs were not sterile, but they were laundered and returned in bags for reasons of health and safety and infection control. She said there had been no patient consent to his being there and there was a very clear process. A person could not just enter of their own accord and could not do so in scrubs.

 

72. Asked about why, in informing the RMR Agency of the events of 20 August 2021, CL had used the word “impersonating” when describing what the Registrant had done that day, CL said she stood by that word because the Registrant had chosen to change into scrubs and had made no effort to communicate with someone in charge to say why he was there. 

 

73. In answer to Panel questions, CL said she had not spoken to the Registrant’s son about a potential breach of patient confidentiality. CL said that when the Registrant had returned to do agency work, he would have been paid at a Band 6 level but would not have had any Band 6 leadership responsibilities in that role. 

 

 

74. The Registrant gave evidence. He told the Panel that he was now 75 years old and had been registered as an ODP “from day one”, which he thought was in 1976 when registration had been introduced. As an ODP he had worked in anaesthetics. He had been a trained nurse in the former Yugoslavia before coming to the United Kingdom. The Registrant said that he had worked all over Scotland as an ODP and had worked for the Trust for about 35 years in both QMH and the Hospital in Kirkcaldy, where he was mostly employed to cover staff absences. After his retirement in 2015, the Registrant said he had worked at the Hospital through an agency but most of his agency work had been at QMH. 

 

75. The Registrant confirmed that he knew the layout of the Hospital well and that he also knew 90 to 95% of the staff in the theatre complex. He confirmed that he knew all of the HCPC witnesses with the exception of the new Manager. 

 

76. The Registrant told the Panel that he had been issued with a swipe badge which had a code on it. He said he had used this badge until it did not work. He said he had one coded swipe badge for QMH and one for the Hospital. He also had an Agency card which had the name of the agency, his name, and his photograph. The Registrant said that the Agency card would not give him access to the theatre complex and he needed someone to let him in. He told the Panel that on 20 August 2021, he had not tried to access the theatre complex by using a swipe badge. 

 

77. The Registrant confirmed that the last date he had worked at the Hospital prior to 20 August 2021 was on 21 July 2021. 

 

78. The Registrant said that he had two adult sons and one daughter, and grandchildren. Neither of his sons lived with him. On 19 August 2021, the Registrant said he had been concerned about the health of one of his sons, who he learned in a telephone call had been unwell for 3 days. He said that having visited his son he had then taken him to his GP, who had advised that he be taken to hospital. The Registrant said that he had driven his son to the Accident and Emergency department at the Hospital, where his son had been admitted to a ward as his condition had worsened. The Registrant explained that he was told his son would have an operation the next morning, but he was not told at that time the nature of the operation. Sometime later, the Registrant learned the nature of the operation, but he had not known this on either 19 August 2021 or when going to the Hospital on 20 August 2021. The Registrant said that he had been quite worried overnight in case his son’s condition had further deteriorated. He explained that after he had left his son in hospital on 19 August 2021, he had been unable to contact the Hospital. 

 

79. The Registrant said that he had phoned the CEPOD emergency theatre the following morning, 20 August 2021, as he had the number and had thought that it was appropriate to call it as he had not known who was on duty and because he thought that he would be able to get information about his son and who was performing the operation. He said he had been very uptight at that time and worried. He had been due to go away the next day to Croatia and there had also been a lot of family issues. He also mentioned that Covid-19 problems were also around at that time. He described it as a “horrendous time”. His call to the CEPOD phone had been answered by LS and he had thought that LS “was being funny” when they spoke. He also said that now he could see that perhaps LS was irritated when he had called about his son. The Registrant said he had been told by LS that his son would soon be out of theatre. The Registrant thought the call may have been around 10.30 am and that he had immediately driven to the Hospital. The journey had taken about 20 minutes. 

 

80. The Registrant said that when he arrived, he had decided to go to the recovery room because members of the public were allowed to go in, and he said he did not class himself as any different to members of the public. He said he felt he should be there as a father. He said he was uptight and did not think of contacting anyone because he did not think it was necessary to do so as everyone in the theatre complex knew him so well. He said he had seen it happen before and no questions were asked. The Registrant said he thought he would be able to get in some way because he would be recognised, and someone would help him out. He said that he had been stood by the front door to the theatre complex and he was let in by a nurse who he had worked with before. This was KH. The Registrant said that he had not tried to use his NHS Fife swipe badge as it did not work. The Registrant accepted that KH had asked him why he had not used his swipe badge and that he had told her it was not working. The Registrant said that by that he had meant that the swipe badge did not have a code on it. 

 

81. The Registrant explained that as it was a time when Covid-19 was still around, he had decided to protect the environment and himself and change into clean scrubs, a hat, and a mask and then go straight to the recovery room. He confirmed that the male changing room was the orange area marked 2 on the plan and he had been let in by KH. He said he could not remember much of his conversation with KH but that he may have told her that his son was having an operation. The Registrant said he could not recall if KH had asked him about the backshift. He said he was under pressure at the time and did not remember much, but would not have said that he was working on the backshift. He said why would he say he was working if he was not working, that it made no sense to him. He did not think it was possible that he could have said it to KH without thinking. 

 

82. The Registrant said that in the male changing room, CG had come in and had asked him something about whether he worked, to which he had replied that he does work and works hard. The Registrant explained that by this he had meant that work is often thought to be too much for old people. He was not saying that he was there to work that day, just confirming that he still worked. 

 

83. The Registrant said that when he had been booked to do a shift at the Hospital on 21 July 2021, his normal routine would be that he would change, then look at the allocation board to see where he was due to work, and then go and get prepared. He would change into scrubs because that was the procedure, and you could not be in the theatre complex without a clean uniform. 

 

84. On 20 August 2021, the Registrant said that CG had left the male changing room before he had and was looking at the allocation board when he had come out of the changing room. CG had said to him that he had not seen the Registrant’s name on the board and the Registrant said he had told CG that he was going to the recovery room, and thought he had also said that his son was having an operation. The Registrant said that he had not told CG that he was working in the recovery room. The Registrant also said that he had seen LS pass by, and that LS had commented on his appearance. The Registrant said he had not responded to LS because he knew that LS did not appreciate him being there. He thought that both CG and LS had been in the corridor at the same time as he was and that he had just carried on walking to the recovery room marked 2 on the plan. He said he had gone there as he knew that patients from the emergency theatre usually went there. He remembered there being some patients already in the room but did not think his son was there when he entered. 

 

85. The Registrant said that he had noticed that Dr D was in the recovery room, and he had gone to speak to him. He had told Dr D that his son was having an operation and that he was there to collect him and take him to the ward. The Registrant explained that Dr D was covering five directorships at the Hospital and so was one of the most senior people there. The Registrant said that one of the staff, AH, who he knew well, had come to the recovery room, interrupting his conversation with Dr D. 

 

86. The Registrant said he had told AH that he was there because of his son and AH had told him that he should not be there and had asked him to leave. The Registrant said he had been very shocked by this as they had worked together at QMH. He said there was no need for her attitude, and he had walked out and gone towards the ward, following the hospital signage. He said that when he had got to the ward, he had waited outside for his son to be brought in. He said that when his son was brought into the ward, he had spoken to a nurse and said why he was there. He was not sure of the nurse’s name but agreed that it could have been LDS. He said that one of the nurses had given him permission to sit and talk to his son. 

 

87. The Registrant said that on the ward he had not looked at his son’s medical notes. He had just asked him how he was feeling. CL had come to speak to him, although he had not known her name at that time. CL was with another person, and they spoke to him in a quiet space. The Registrant told the Panel that they had asked him why he had been in the recovery room. He said that he was very upset, and he had not believed that this was happening to someone who had worked there for so many years and knew 90% of the staff. He said he had answered the questions but could not now recall what he had said. He said he did not think he had done anything wrong. The Registrant confirmed that he had probably told CL that he had thought changing into scrubs was the safest option because that is what he had thought. He also agreed that he had probably said that relatives sometimes went into theatre with patients because that had been his experience at every hospital where he had worked in Scotland. Relatives had been allowed into the anaesthetic rooms and to the recovery rooms which were more open, with nurses to take the patient back to the ward. The Registrant said that in these situations the relatives would wear sterile gowns over their clothing but not scrubs which were for theatre staff. The Registrant said that on 20 August 2021, if he had had a gown, he would have worn that.

 

88. The Registrant said that if he had been seen in scrubs, people might possibly have thought he was working that day because he was often there at the Hospital, but he had not intended to make anyone think that he was working that day. The only contact he had had was in the changing room and maybe it had been silly of him to do it. The Registrant said that once it became apparent that staff members were challenging him, this had never crossed his mind and he had never thought he would be questioned. He had thought he would be supported. He said he understood that the management had a job to do. The Registrant said he felt very disappointed in how he was treated by his colleagues because he had not expected it or dreamt that it could have happened. The Registrant agreed that he had not been happy when he was being questioned by CL but denied raising his voice. He agreed that he had insisted that he had done nothing wrong. The Registrant said that they had made him feel like a criminal. He said he had always helped out at the Hospital if asked. 

 

89. The Registrant said it was possible that he had been asked about swipe badges, but he could not remember. He said that he had not had a swipe badge with a code. CL had called him two days later and asked him about swipe badges. He said he had one NHS Fife swipe badge and one Agency card. He had used the NHS Fife swipe badge, which he had used on 21 July 2021, as an identity card on 20 August 2021, to show who he was, and he had later returned it. The Registrant was unclear when asked about three specific NHS Fife swipe badges in his name and said they were all old.

 

90. The Registrant told the Panel that he was familiar with the Code of Conduct and with Standards. He said he did not think he had done anything wrong which would have resulted in these proceedings. The Registrant said that what he had done had not caused any problems. From the time he had entered the theatre complex until the time he had left Ward 52, the Registrant said he had not been trying to conceal himself. He said that he had not been intending to make people believe that he was there to work.

 

91. In cross-examination, the Registrant agreed that he was a very experienced ODP. He confirmed that when he had been a permanent member of staff at the Hospital, he had had a swipe badge. He thought that he might have had three old NHS Fife swipe badges because they get lost or were replaced. He said that after he had retired from the Trust, he had had a single NHS Fife swipe badge for the Hospital which he had used as an ID card without it having a code, and that he had not had a swipe badge with a code to let him in to the theatre area after he had retired in 2015. 

 

92. The Registrant confirmed that he was not working at the Hospital on 20 August 2021. He agreed that KH had let him into the theatre complex and said that KH had asked him why he did not use his own card and he had told her that it was not working. He said that he may not have been clear that what he had meant was that the badge did not have a code. 

 

93. The Registrant did not remember KH asking him about the backshift, and said he would not have replied “yes” if she had asked him about it because he had not been working that shift. He thought that maybe she had said this later when she had been questioned about what had happened that day to cover herself. When asked if he had said it because he knew that he would not be let in unless he was working, the Registrant disagreed and said that KH knew him and so she would not deny him entry. He said that if he had been aware that he would not be allowed into the theatre complex, he would not have gone there. 

 

94. The Registrant confirmed that in the male changing room, he had changed into scrubs, a hat, and a mask, but this had not been to make people think he was working or to allow him to move freely about without being challenged. He confirmed that CG had been in the male changing room and that they had spoken. The Registrant denied telling CG that he was working in recovery and said, “why should I”, and that he had never worked in recovery. He could not imagine why CG might think that. He said CG would know that recovery is not a working place for ODPs. Recovery has its own staff. The Registrant said that perhaps, as he was wearing scrubs, CG had misunderstood what he had said to him. 

 

95. The Registrant could not recall seeing AH by the allocation board or their saying “Good afternoon” to each other, but said it may have happened. He remembered CG saying to him that his name was not on the allocation board as he was on his way to the recovery room. The Registrant said he had gone to the recovery room and was no different to an ordinary member of the public. He agreed that there was a protocol for members of the public to be in recovery, which would require obtaining permission and being chaperoned. When asked why the protocol did not apply to him, the Registrant said that he had thought that as he had been a member of staff for so long and 90% of the staff knew him, there was nothing to obstruct him collecting his son from the recovery room. In his view, wearing scrubs protected the environment and himself and he had had Covid-19 in mind. He said that he might not have worn scrubs if there had been no Covid-19. He had thought of himself as a member of staff and did not realise that he was classed differently. 

 

96. The Registrant denied leaving the recovery room when asked to do so by AH because he had known he should not be there. He had been surprised by her request but had left only because she had asked him to. He explained that he had remained wearing scrubs when he went to Ward 52 to protect the environment and himself, and those on the ward. The Registrant denied that he had continued to wear scrubs to give the impression that he worked at the hospital. He accepted that this might be the impression that it gave, but for him it was because of Covid-19 and protecting the environment. He denied ever looking at any patient notes. 

 

97. The Registrant accepted that members of the public might think that he worked at the Hospital because he was wearing scrubs, but not members of staff as they all knew him. The Registrant accepted that hospital staff outside of the theatre complex might not know him. He said that if challenged, he would reassure them. 

 

98. The Registrant said that he might have been asked by CL if he had a swipe badge and he might have replied “no”, but he could not remember. He said he had an ID card but not a pass card. He said he did not have a current swipe badge. 

 

99. In re-examination, the Registrant explained that it was only because of these proceedings that he had realised that he had not been a member of staff on 20 August 2021. He reiterated that it had not been his intention to give the impression to the staff on Ward 52 that he was working in theatre that day. 

 

100. In answer to Panel questions, the Registrant said that as far as he could recall, all staff were wearing masks that day because of Covid-19. His scrubs were green, and his hat was blue. He said that everyone in theatre wore the same colour scrubs, and staff in different areas wore different coloured scrubs. He did not think that his being present in the Hospital as a member of the public created an additional risk of infection because he had been covered and worn clean scrubs and had had no contact with the public. 

 

101. The Registrant confirmed that 90 to 95% of theatre staff knew him. He said that although he knew of the procedure for relatives of patients in that area, he had thought that he would be treated differently and that no one would question him because he had taken precautions by putting on scrubs and he had not interfered with anything. The Registrant said that it was quite often that adult patients were accompanied by relatives in recovery if, for example, they were scared or their relatives were worried. The Registrant accepted that relative support for adult patients was normally on the ward but that problems arose where there was an emergency operation involved. He said that perhaps he should have contacted the ward staff, but did not know if that would have made a difference. 

 

102. The Registrant said he had shown LDS his old NHS Fife badge rather than his Agency badge because the NHS Fife badge had the name of the Hospital with his picture and number on it, and everyone knew him. When asked if it might be misleading to show that badge to staff who did not know him, the Registrant said that he did not see anything wrong because he had worked there for so long and could not see why they would be concerned. The Registrant said that if it was misleading, he had still been working at the Hospital very close to the day of the incident. He did not see a difference because he used the badge as evidence of who he was, and he had not hidden that. 

 

103. The Registrant confirmed that all those he spoke to that day had been wearing masks. He also confirmed that he had only previously worked in recovery if help was needed, such as taking a patient there or if they were short staffed. 

 

 

Particular 1 – You entered Victoria Hospital, allowing staff to think you were working that day, when this was not the case, in that :

 

104. The Panel approached Particular 1 by looking at the first part of the stem and was satisfied that on 20 August 2021, the Registrant entered Victoria Hospital. The Panel heard evidence from all six witnesses that they had seen the Registrant inside the Hospital on that date and the Registrant himself gave evidence that he had gone to and entered the Hospital that day. 

 

105. The Panel then considered whether any or all of Particulars 1a and 1b were proved before considering the rest of the stem of Particular 1 which alleges that the matters set out in those sub-particulars were said or done by the Registrant to allow staff to think he was working at the Hospital on that day when this was not the case.

 

Particular 1a i was found not proved – 1(a) you accessed the theatre complex after falsely telling staff members that: i. your swipe badge was not working;

 

106. The Panel approached Particular 1a i by first deciding if the Registrant had made the alleged statement and then, if so, whether that statement was false.

 

107. The Panel accepted the evidence of KH that she had let the Registrant into the theatre complex as she had seen him through the locked doors trying to get her attention, and that the Registrant had told her that his card was not working and had asked to be let in. The Panel understood that the reference of the Registrant to a “card” was a reference to a swipe badge. The Panel noted that KH had referred to this conversation in the statement she had provided for the Trust’s internal investigation two days after the event. 

 

108. The Panel accepted the Registrant’s evidence that he had with him one NHS Fife swipe badge which had been issued to him when he had been a full-time employee of the Trust. The Panel accepted that the Registrant had been very concerned about his son and considered that he may have taken one of his old NHS Fife swipe badges with him believing that it would work. The Panel also accepted the Registrant’s evidence that he had been asked by KH why he had not used his swipe badge to get in and that he had told her that it was not working. The Panel therefore found on the balance of probabilities that the Registrant had made the statement as alleged in Particular 1a i. 

 

109. However, while the Panel was satisfied that it is more likely than not that the Registrant did tell KH that his swipe badge did not work, it was not satisfied that the statement was false. The evidence suggested that the swipe badge he had with him on 20 August 2021 did not have an active code and therefore it would not have worked. Therefore, when the Registrant told KH that his swipe badge did not work, he was, in fact, making a true statement and not a false one. In these circumstances, the Panel found that the HCPC had not discharged the burden of proving that the statement was false.

 

110. Accordingly, the Panel found Particular 1a i not proved.

 

Particular 1a ii was found proved - 1(a) you accessed the theatre complex after falsely telling staff members that: ii. you were working that day.

 

111. The Panel then considered Particular 1a ii by first deciding if the Registrant had made the alleged statement and then, if so, whether that statement was false. The Panel noted that the only two witnesses from the theatre complex who had referred to the Registrant making statements to them about work were KH and CG. The Panel concluded that the allegation in Particular 1a ii was intended to relate to false statements allegedly made by the Registrant in order to access the theatre complex. 

 

112. The Panel concluded that in deciding whether the Registrant had stated that he was working, as alleged in Particular 1a ii, it could and should consider the implication of the statement alleged in Particular 1a iii, as the two allegations in effect amounted to the same alleged false representation, namely that the Registrant was working that day. The Panel decided that if it found Particular 1a iii proved, then this was a statement by the Registrant that implied he was working that day. 

 

113. The Panel accepted the evidence of KH that as she and the Registrant were walking towards the male changing room just as or just after she had let him into the theatre complex, she had asked the Registrant if he was working the backshift, to which he had replied “yes”. As the Panel had noted, this was the specific false statement alleged in Particular 1a iii. The Panel noted that apart from KH asking about the backshift, to which the Registrant had responded, KH did not say in her evidence that the Registrant had ever used the words that he was “working that day”. 

 

114. The Panel considered whether KH had any reason to misrepresent her recollection of her conversation with the Registrant concerning the backshift. It had detected no malice whatsoever in KH’s account of the events of 20 August 2021 and it rejected the suggestion that she might have made up the conversation about the Registrant working the backshift in order to cover her own back as she had let him into a restricted area when she should not have done. The Panel preferred KH’s recollection of that conversation to that of the Registrant. 

 

115. The Panel was therefore satisfied, on the balance of probabilities, that the Registrant had responded “yes” when KH had asked if he was working the backshift (as alleged in Particular 1a iii). The Panel decided that this finding led it to conclude that it was more likely than not that in making the statement to KH, the Registrant had impliedly stated that he was “working that day”. 

 

116. The Panel then looked to see whether there was any other witness to whom the Registrant had stated that he was “working that day” in order to gain access to the theatre complex. It appeared to the Panel that the only witness to whom the Registrant had made any statement in order to gain access to the theatre complex was KH. The statements that he had made to other members of staff about working were not specifically made by him to gain access to the theatre complex, as he was already there, and the Panel decided that, in any event, it could not rely on them. 

 

117. The Panel accepted the evidence of CG that when he was in the male changing room, he had a conversation with the Registrant about work. This was after the Registrant had already entered the theatre complex and so any conversation about work at that point was not directly in order to gain access to that area. The Panel considered that there was clear room for misunderstanding between what CG recalled of the conversation and how the Registrant had interpreted his question. In CG’s handwritten statement of the incident dated 23 August 2021, he had said that he had asked the Registrant “if he was working today”, to which the Registrant had responded to the effect that he was very busy with work at the moment. The Panel noted that in his witness statement dated 29 April 2023, CG had recorded the conversation slightly differently. The Panel accepted that the Registrant may have understood CG’s question as not relating to working that day but to working in general. In these circumstances, the Panel decided that it could not rely on CG’s evidence as any proof of Particular 1a ii. 

 

118. The Panel accepted CG’s evidence that when he had been at the allocation board, he had told the Registrant that his name was not on the board and that it must have been a mistake. The Registrant had also recalled that CG had told him his name was not on the board. The Panel found that it could not accept CG’s evidence that the Registrant had then told him that he was “working in recovery”. The Panel noted that in the handwritten statement made by CG on 23 August 2021, he had recorded that the Registrant had told him he “was in recovery”. CG had not recorded at that time, two days after the conversation, that the Registrant had said that he was “working in recovery”. The Panel also noted that the Registrant’s evidence was that he had not said he was “working in recovery”, only that he was “going to recovery”. Again, the Panel decided, because there was room for misunderstanding as between CG and the Registrant, that it could not rely on CG’s evidence on this point as proof of Particular 1a ii. 

 

119. In the circumstances, although the Panel found that CG was a witness of truth, it decided that it could not rely on CG’s evidence regarding conversations with the Registrant about working that day in relation to Particular 1a ii. 

 

120. In relation to whether the Registrant was or was not working at the Hospital on 20 August 2021, the Panel saw from the documentary exhibits that the Registrant’s name did not appear on the Hospital rota for ODPs for the month of August 2021. The Panel accepted the evidence of the HCPC witnesses and that of the Registrant himself that he was not due to work on 20 August 2021. The Panel therefore concluded that when the Registrant had replied to KH in the affirmative when she asked if he was working the backshift, this was a false statement. He was not working that day and knew that he was not working that day. The Panel considered that the Registrant responded as he did in order to mislead KH as to why he wanted to gain access to the theatre complex. 

 

121. The Panel therefore found Particular 1a ii proved.

 

Particular 1a iii was found proved - 1(a) you accessed the theatre complex after falsely telling staff members that: iii. When asked if you were working the backshift, replied “yes”.

 

122. The Panel considered Particular 1 a iii by first deciding if the Registrant had made the alleged statement and then, if so, whether that statement was false. The Panel had already accepted the clear evidence of KH that, when letting the Registrant into the theatre complex, she had asked if he was working the backshift. The Panel accepted evidence that the backshift was due to begin around the time that the Registrant had arrived seeking access to the theatre complex. It seemed to the Panel that it was entirely probable that KH would have used the word “backshift” at that time and entirely probable that she would have expected, if the Registrant was trying to gain access to the theatre complex at that time, that this was to work that particular shift. The Panel also accepted KH’s evidence that she had not known that the Registrant’s son was due to be operated on that day until the Registrant told her as they walked to the male changing room. This had been after she had first asked him if he was working the backshift and he had replied “yes”. 

 

123. The Panel noted that in her statement made on 23 August 2021 KH had made only one reference to the backshift, whereas in her more detailed witness statement dated 27 April 2023, she had referred to the backshift being referred to on two occasions in her conversation with the Registrant on 20 August 2021. The Panel concluded that on 23 August 2021, KH was making a report to specifically address the focus of the DATIX report, which was the issue of security. It was therefore probable that KH would have recalled the conversation that she had had with the Registrant as she let him into the theatre complex. The Panel accepted that KH had asked the Registrant then if he was working the backshift and that she would have remembered his answer to her question. The Panel preferred KH’s account of that conversation to that of the Registrant, who had denied that there had been any conversation about the backshift.

 

124. The Panel had no difficulty in deciding that the statement was false as there was clear evidence, which was accepted by the Registrant, that he was not working the backshift or indeed any shift that day. 

 

125. Accordingly, the Panel found Particular 1a iii proved. 

 

Particular 1b i was found proved – 1b you accessed the changing rooms and: i. changed into scrubs.

 

126. The Panel accepted the evidence of CG that he had seen the Registrant in the male changing room change into scrubs. These consisted of green trousers and a green top. The Panel also accepted the Registrant’s evidence that he had changed into scrubs. All the other HCPC witnesses said that they had seen the Registrant dressed in scrubs. The Panel accepted their evidence about this. The Panel therefore found Particular 1b i proved.

 

Particular 1b ii was found proved - 1b you accessed the changing rooms and: ii. put on a hat and mask.

 

127. The Panel accepted the evidence of AH that the Registrant had been wearing a hat as well as scrubs when she had seen him in the theatre complex, and that she thought mask wearing was still compulsory because of Covid-19 in August 2021. The Panel considered that AH was implying that the Registrant had been wearing a mask.

 

128. The Panel also accepted the evidence of LDS that she had seen the Registrant wearing scrubs and a hat when she had seen him outside Ward 52, and later inside Ward 52. The Panel also accepted the Registrant’s evidence that when he had changed into scrubs in the male changing room, he had also put on a blue hat and a mask. It accepted his evidence that all staff were wearing masks that day because of Covid-19. The Panel therefore found Particular 1b ii proved.

 

 

129. Finally, the Panel considered whether the Registrant’s actions as found in Particular 1a ii and iii and 1b i and ii were to allow staff to think that he was working that day when this was not the case. 

 

130. The Panel already found that the Registrant was not working that day i.e., 20 August 2021. It was satisfied that it was more likely than not that the Registrant’s actions in saying what it has found he did, and in donning scrubs, hat, and mask, were intended by him to allow staff to think that he was working that day when this was not the case. The Registrant knew he was not working that day. The Panel also considered that the Registrant knew he would not be allowed into the theatre complex unless he was there to carry out a shift. He was a very experienced ODP and he knew that family members were not permitted to enter the theatre complex unaccompanied. The Panel concluded that the Registrant had put on scrubs, a hat, and mask in order for it to appear to anyone who saw him that he was on duty. 

 

Particular 2 was found proved (in relation to Particular 1a ii, 1a iii, 1bi, 1bii)

 

131. In relation to the issue of dishonesty, the Panel received and accepted legal advice as to how it should approach this allegation. The Panel considered Particular 1 and applied the test for dishonesty as set out in the case of Ivey v. Genting Casinos [2017] UKSC 67 (at para 74) (“the Ivey test”). In applying the Ivey test, the Panel first decided the Registrant's knowledge or belief as to the factual circumstances of his conduct as set out in Particular 1a ii, 1a iii, 1b I, and 1b ii of the Allegation. The Panel understood that the Registrant’s belief did not have to be reasonable so long as it was genuinely held. The Panel then considered whether, based on the factual circumstances as it had found the Registrant believed them to be, his conduct was dishonest by the (objective) standards of ordinary decent people. The Panel understood there was no requirement that the Registrant must have appreciated that what he did was, by those standards, dishonest. 

 

132. In relation to Particular 1a ii and iii, and 1b i and ii: the Panel had already found that the Registrant had made the false statements in Particular 1a ii and 1a iii, intending to deceive by allowing members of staff to think that he was working that day when he was not. It had also decided that by putting on scrubs, a hat, and mask, the Registrant also allowed members of staff to think he was working that day when he was not. The Panel concluded, on a balance of probabilities, that in addition to those findings, the Registrant’s state of knowledge and belief as to the circumstances to have been these: 

 

• he had called the Hospital in the morning to enquire about his son knowing he was to undergo an operation;

 

• he had taken a deliberate decision to go to the Hospital and had been able to drive himself there, a journey that took at least 20 minutes, during which he had time to think about what he was going to do when he got to the Hospital;

 

• as an experienced ODP of some 30 years, he knew that there were procedures in place for relatives accompanying patients in the theatre complex and he had made a deliberate decision to ignore these as he was focussed on entering the theatre complex to see how his son was;

 

• although he may have had in mind that putting on scrubs, a hat, and mask might have provided some measure of protection due to Covid-19, his primary motivation for doing this had been to be able to move freely and unchallenged in the theatre complex to see his son;

 

• that he knew what he was doing was wrong and his actions had been premeditated and not spontaneous. 

 

133. The Panel accepted that the Registrant would have been stressed and worried about his son and that, at the time, he had family worries and an imminent trip to Croatia. But it concluded that the Registrant’s overriding motivation that day had been to access the theatre complex by whatever means necessary as he knew he would have been denied access if the staff there had known he was not working, and nor had he obtained prior permission to accompany his son in that area. 

 

134. In these circumstances, and applying the Ivey test, the Panel decided that the Registrant was dishonest when he allowed members of staff at the Hospital to think he was working that day when he was not by making false statements and by changing into scrubs, a hat, and mask so that it looked like he was working, and it was satisfied that an ordinary, decent person would judge the Registrant’s conduct to have been dishonest.

 

 

 

135. The Registrant was recalled and gave further evidence in relation to misconduct and impairment. He told the Panel that he was aware that relatives of patients could go to the Recovery rooms and that there was a procedure concerning this which involved asking for permission to be there. The Registrant said that he had never before found himself in the situation he was in on 20 August 2021. He said he did not think that while he was driving to the hospital, he had thought permission to enter the theatre complex would be refused. 

 

136. The Registrant confirmed that he was a very experienced ODP with over 40 years of experience, including agency work. He had never been involved in a regulatory issue before. He agreed that when he looked back to 2021 he could see that, as a professional, he had let himself down. The Registrant said that he could see where he had gone wrong and that if the situation arose again, he would have gone to Ward 52 and taken it from there. The Registrant said that he had not gone anywhere else in the theatre complex other than to the changing room and to Recovery room 2.

 

137. The Registrant accepted that while 90% of the theatre complex staff would have known him, staff such as LDS might possibly have thought he was working due to his being dressed in scrubs, a hat, and mask. The Registrant said that he had learned a lesson from this and was disappointed that he had allowed himself to get into the situation he had. He put this down to his assessment of the situation turning out to be so wrong. 

 

138. The Registrant told the Panel that if the situation arose again, he would not act in the same way. He said he would not have acted as he did if he had had any clue of what would happen. The Registrant said he felt very sad because he had made a silly mistake which had nothing to do with his professional work. He would remember it for the rest of his life. 

 

139. The Registrant said that he was not working because his registration had been removed. He said that if he returned to work, he would not work at the Hospital again. It was something he would have to think about.

 

140. In cross-examination, Ms Bass asked the Registrant whether he thought that what he had described as a “silly mistake” was serious. The Registrant said that he had not been aware at the time of how serious it was. He said he would do things differently now. He would go to ask how to get in and would not be on his own. He said it hurt him that he had been found to be dishonest. 

 

141. When asked about the impact of his dishonesty on colleagues and patients, the Registrant said that it would make patients wary of ODPs. 

 

142. In answer to Panel questions, the Registrant said that he was still registered with an agency and had last practised as an ODP in April 2022. He said he liked his profession and wanted to get back to practise. He said he had kept his skills and knowledge up to date until April 2022. After that he had been out of the United Kingdom, so he had not done any Continuing Professional Development (“CPD”) since then. 

 

143. The Registrant said that staff who were off duty should not go to a restricted hospital area as there were rules which should be obeyed. The Registrant said that people should be told about the rules because if they were not followed, they could be punished. 

 

144. In re-examination, the Registrant said that he had not yet looked at what he would need to do to start work again because he was not sure what the outcome of these proceedings would be. He accepted that he would need re-accreditation.

 

 

145. In reaching its decision on the statutory ground of misconduct, the Panel took account of the Registrant’s evidence and the submissions of both parties. The Panel received and accepted legal advice. 

 

 

146. Ms Bass referred the Panel to the cases of Roylance v GMC (No.2) [2001] AC 311 and Remedy UK Ltd v. GMC [2010] EWHC 1245 (Admin). She submitted that the matters found proved by the Panel were sufficiently serious and impacted on the Registrant’s fitness to practise. The Registrant had been dishonest and his colleagues had had real concerns about patient confidentiality, including that of his son, and about security around track and trace requirements due to Covid-19 and fire safety. 

 

147. Ms Bass referred the Panel to a number of the HCPC Standards of Conduct, Performance, and Ethics (“the HCPC Standards”) which she submitted that the Registrant had breached: Standards, 1.1, 6.1, 9.1, and 9.4. She also submitted that Standards 7, 7.1, and 9 of the HCPC’s Standards of Proficiency for ODPs (“the Proficiency Standards”) had also been breached. Ms Bass submitted that the Registrant had not followed the correct procedure or acted in an honest way. She submitted that ODPs held a position of trust, and that the public was entitled to expect healthcare professionals to act with integrity and to be trustworthy, open, and honest. Ms Bass submitted that it was clear the Registrant’s behaviour was a serious departure from the standards expected of a professional practitioner. 

 

148. Mr Cobb invited the Panel to view its findings of fact “in the round” when considering misconduct. He conceded that the finding of dishonesty was, on any view, serious. The Registrant had accepted that underlying his dishonesty was a major error of judgement in the context of his son being ill. Mr Cobb submitted that the Registrant’s conduct was misguided and a thoughtless silly mistake. There was no malice in what the Registrant had done, for example, in changing into scrubs, as he had wanted to protect the environment and himself. 

 

149. Mr Cobb also referred the Panel to the cases of Roylance (ibid), Meadows [2006] EWCA 1319 (Civ), and Reo v GMC [2002] UKPC 65. He submitted that the case of Reo v GMC was authority for the proposition that in a borderline case which was based, as here, on a single incident, more than negligence was needed to prove misconduct. He invited the Panel to consider whether what the Registrant did had crossed the threshold of serious professional misconduct.

 

150. Mr Cobb referred the Panel to the various HCPC Standards which had been relied on by Ms Bass. In relation to Standard 6.1 of the HCPC’s Standards, which relates to minimising risk, Mr Cobb submitted that this standard had not been breached as the Registrant had donned scrubs to reduce the risk of harm. 

 

151. In relation to Standard 9.4 of the HCPC Standards, which relates to declaring any conflicts of interest and making sure that they do not influence your judgement, Mr Cobb submitted that the Registrant had made it clear to witnesses why he was in the theatre complex. Mr Cobb also submitted that the Registrant had no interest in breaching the confidentiality of any patients. He said the Registrant’s focus had “blinded” him to the potential that patient confidentiality could be breached. 

 

152. In relation to Standard 9 of the Proficiency Standards, which relates to being able to work appropriately with others, Mr Cobb submitted that the Registrant had known approximately 90% of the staff in the theatre complex and that he had assumed too much from that working relationship in how he acted on 20 August 2021.

 

 

153. The Panel was satisfied that in relation to all the facts found proved in Particulars 1 and 2, the Registrant’s conduct fell far below the standards to be expected of an ODP and that it amounted to misconduct. 

 

154. In relation to Particulars 1 and 2, the Panel took the view that healthcare professionals are expected and trusted to be honest in both their professional and their personal lives. The Panel considered that fellow ODPs and other healthcare professionals would find the Registrant’s conduct, which involved him deliberately and dishonestly deceiving colleagues as to his real reason for entering the theatre complex on his day off, to be ‘deplorable’.

 

155. The Panel noted that the Registrant was a very experienced ODP, and it concluded that he knew at the time that he should not be present in the theatre complex without permission when a relative was undergoing an operation. The Panel accepted the evidence of all the professional witnesses that it was a well-known practice, which had been drilled into them, that a healthcare professional should not be present in the theatre complex when a relative was undergoing an operation without express permission. One of the reasons for this practice was that it was potentially unfair on the surgeons to have a relative present during an operation. By his presence in the theatre complex, the Registrant had put patient confidentiality at risk. His presence, when not on a work rota and not on a list of accompanied members of the public to that restricted area of the hospital, had also impacted on fire safety. 

 

156. The Panel took the view that the Registrant’s dishonest conduct had the potential to impact adversely on the wider public interest in: (i) upholding proper standards of conduct and behaviour; and (ii) maintaining public confidence in the ODP profession and in the HCPC as its regulator. 

 

 

157. In reaching its decision on misconduct, the Panel also had in mind the HCPC Standards of Conduct, Performance and Ethics, and was satisfied that the following Standards were engaged and had been breached:

 

 

158. The Panel considered that by accessing the theatre complex and going to recovery room 2 when he did not have permission to be there, the Registrant was not respecting the privacy and dignity of the other patients who were in that area. 

 

 

159. The Panel was satisfied that in accessing the theatre complex without permission at a time during the Covid-19 pandemic, the Registrant had not identified and minimised the risk to patients and colleagues in that area despite the fact that he had donned scrubs, a hat, and a mask. Any unauthorised entry to a theatre complex gives rise to risks not only of potential contamination, but also to the safety of others in the event of, e.g. a fire. 

 

 

160. The Panel concluded that the public expects ODPs and other healthcare professionals to be trustworthy in their personal and professional behaviour. The Registrant did not make sure that his conduct justified the public’s trust and confidence in him or in his profession when he dishonestly gained access to the theatre complex by deceiving his colleagues (Standard 9.1). 

 

161. The Panel also concluded that in not seeking permission to be in the theatre complex to be with his son, the Registrant had not declared what was a clear conflict of interest and that he had allowed the conflict of interest to influence his judgement on that day (Standard 9.4).

 

 

162. In reaching its decision on misconduct, the Panel also had in mind the HCPC Standards of Proficiency for ODPs (2014), and was satisfied that the following Standard was engaged and had been breached:

 

Standard 7 understand the importance of and be able to maintain confidentiality

7.1 be aware of the limits of the concept of confidentiality

 

163. The Panel took the view that in accessing the theatre complex without permission, the Registrant showed that he had not understood or been aware of the importance of patient confidentiality. 

 

164. Accordingly, the Panel found misconduct in this case.

 

 

165. In reaching its decision on impairment, the Panel considered the submissions of both parties. It had regard to the HCPTS Practice Note on “Fitness to Practise Impairment”, and it received and accepted legal advice. The Panel bore in mind that the purpose of the hearing was not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

 

 

166. Ms Bass submitted that the Registrant’s fitness to practise is impaired on both the personal and public components. 

 

167. Ms Bass submitted that while there was some evidence that the Registrant had “taken on board” the views of other people as to the impact of what was a premeditated act on his part on 20 August 2021, his journey towards achieving full insight and understanding through proper reflection was only in the very early stages. Ms Bass submitted that as the Registrant had not yet fully remedied his misconduct, there was therefore a risk of repetition. 

 

168. In relation to the public component, Ms Bass submitted that public confidence in the ODP profession and the HCPC as the regulatory body would be significantly undermined if there was no finding of impairment in this case. She submitted that by his misconduct, the Registrant had brought the ODP profession into disrepute. The Registrant had shown a serious lapse in judgement and a disregard for the HCPC Standards (1.1, 6.1, 9.1, and 9.4). He had also breached Standards 7, 7.1, and 9 of the HCPC’s Standards of Proficiency for his profession. Ms Bass submitted that a finding of impairment was necessary in this case in order to uphold standards of behaviour and conduct in the profession. 

 

169. Mr Cobb submitted that the Registrant’s fitness to practise was not impaired, as he had learnt a salutary lesson from his misconduct and the risk of recurrence was not made out. Mr Cobb referred to the four factors derived from the case of Grant v NMC [2011] EWHC 927 (Admin). He submitted that there was no evidence of any harm being caused to any patients. Mr Cobb accepted that the Registrant’s conduct had brought his profession into disrepute but submitted that, as the circumstances which caused him to act as he did were fairly unlikely to arise again, there was no risk that he would repeat his misconduct in the future. 

 

170. Mr Cobb also accepted that the Registrant had breached a fundamental tenet of his profession in accessing the theatre complex without authority or an escort, which was a major breach of procedure. He submitted that the Registrant was not liable to act in the same way in the future. In relation to the finding of dishonesty, Mr Cobb submitted that the Registrant did not have a propensity for dishonesty and so would not repeat his dishonest conduct in the future. 

 

171. Mr Cobb submitted that the Registrant had been out of the United Kingdom for some time since he had, as he referred to in his evidence, “been suspended”. He submitted that the Registrant’s remediation had progressed more than the Registrant had suggested in his evidence. The Registrant was willing to take further steps.

 

172. At the conclusion of the submissions, Ms Bass clarified that the Registrant had not been suspended by the HCPC and that he had a current active HCPC registration.

 

 

 

173. In relation to the personal component, the Panel first considered whether the Registrant’s misconduct had put patients at unwarranted risk of harm. The Panel noted that no patients had been caused any harm by the Registrant’s misconduct. The Panel decided that there had been a potential risk of harm as the misconduct took place during the Covid-19 pandemic, and the presence of any unauthorised persons in restricted areas of a hospital had the potential to spread Covid-19. It also had fire safety implications and was potentially unfair on the surgeons performing the operation on his son. However, the Panel noted that there was no evidence of any concerns at the time as to the Registrant’s clinical competence. It also noted that the Registrant had been very stressed at the relevant time due not only to his son undergoing an operation but also to other family matters. 

 

174. The Panel then considered whether the Registrant’s misconduct had brought the ODP profession into disrepute. The Panel was satisfied that dishonestly accessing a restricted area of a hospital by deceiving colleagues to gain admittance could only bring the ODP profession into disrepute. 

 

175. The Panel was also satisfied that by his misconduct the Registrant had breached one of the fundamental tenets of the ODP profession, which requires practitioners to be honest and trustworthy in their personal and professional behaviour. The Panel found the Registrant to have been dishonest in his conduct in accessing the theatre complex. However, the Panel also noted that the Registrant had not hidden the fact that his son was in one of the operating theatres.

 

176. The Panel also considered whether, looking forward, the Registrant was liable in the future to put patients at unwarranted risk of harm, bring the ODP profession into disrepute, breach one of its fundamental tenets, or act dishonestly. In reaching its conclusion on these matters, the Panel considered evidence of insight, remorse, reflection, and the likelihood of repetition of the misconduct involved in this case. 

 

177. The Panel considered that the Registrant’s misconduct was capable of being remedied and recognised that it was difficult but not impossible to demonstrate remediation in cases involving dishonesty. The passage of time coupled with insight, reflection, and the fact that there had been no repetition in the period since the misconduct could, in some cases, amount to remediation. The Panel, having heard his evidence, concluded that there was some evidence the Registrant had reflected on his misconduct and shown remorse. It accepted the Registrant’s evidence that if he were in the same situation again, he would act differently and seek the relevant permissions to accompany his son. 

 

178. The Panel also considered that the Registrant had begun to develop insight into his misconduct, but it felt that it was not yet at the stage of full insight. Accordingly, the Panel concluded that there remained a risk of repetition, although this was not a high risk. In these circumstances, the Panel concluded that the Registrant’s fitness to practise is impaired on the personal component. 

 

 

179. In relation to the public component the Panel was satisfied that, given the findings of dishonesty, public confidence in the ODP profession and its regulatory body would be undermined if there were no finding of impairment in this case. The Panel was also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case. It considered that a reasonable and informed member of the public would be very concerned if there was no finding of impairment in a case where a registrant’s misconduct involved dishonestly deceiving colleagues to gain access to a restricted area and persisting in that deception over a period of time on 20 August 2021.

 

180. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on the public component. 

 

181. Accordingly, the Panel found, on both the personal and public component, that the Registrant’s fitness to practise is impaired and the Allegation is well-founded. 

 

 

182. In considering the appropriate and proportionate sanction, the Panel was referred to, and took account of, the HCPC’s Sanctions Policy. The Panel received and accepted legal advice. The Panel was aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but to protect the public, to maintain confidence in the ODP profession, and to uphold its standards of conduct and behaviour. The Panel also had in mind that any sanction it imposes must be appropriate and proportionate, bearing in mind the nature and circumstances of the misconduct involved.

 

 

183. Ms Bass set out the relevant principles regarding the imposition of a sanction but, as is the HCPC’s usual approach at the sanction stage, did not advance any particular sanction.

 

184. Mr Cobb told the Panel that the Registrant was out of the country and would not be attending the reconvened hearing. Mr Cobb indicated that the Registrant was content for the proceedings to proceed in his absence with Mr Cobb representing him. The Registrant had provided him with a statement, parts of which Mr Cobb read to the Panel. In his statement, the Registrant indicated that, in retrospect, he recognised he had made an error of judgement in his actions on 20 August 2021. He referred to his many years of employment as an ODP; 35 years in the NHS in the UK, preceded by 10 years in Montenegro and, following his retirement from the NHS in 2015, through agency work. The Registrant said he had been staggered when he heard of the HCPC’s investigation. He said that what he had done was not done with any malicious motive. The Registrant stated that, in retrospect, if he had been asked, he would have said he was there to meet his son in recovery. He said that all staff had been on high alert not to get Covid-19. He had just wanted to see his son and so he had put on scrubs in order to protect his son and others from getting Covid-19, almost as if on autopilot. The Registrant referred to being shocked when challenged by staff as he had thought then that he was doing nothing different from other relatives. The Registrant said that he did not consider himself to have a disposition to lie or to be deceitful. He suggested that he had not received any training to clarify who was allowed to accompany patients in the theatre complex. The Registrant said he had considered himself to be part of the Hospital team when working there as an agency ODP. He did not consider that a reasonable person would consider that what he had done amounted to misconduct. He explained that he had overreacted to the Covid-19 threat by putting on scrubs. He said he had expected his colleagues to support him but appreciated that they had to report him. The Registrant referred to the drawn-out nature of the HCPC proceedings and said that he had had a lifetime of working for the NHS and that this had been his vocation. 

 

185. Mr Cobb submitted that the dishonesty in this case was an isolated incident which was out of character. He submitted that the Registrant had not been thinking straight due to the considerable anxiety he had been under at that time. He reminded the Panel of the Registrant’s otherwise unblemished and lengthy career as an ODP. Mr Cobb submitted that there was no malice in the Registrant’s dishonesty on 20 August 2021 and he invited the Panel to characterise it as having been “reckless” and to set it against the background of his son undergoing an operation. Mr Cobb submitted that the Registrant now recognised that what he did had not been a “silly mistake” and that he should not have acted as he did. Mr Cobb submitted that this indicated there would be no risk of the Registrant repeating his misconduct. 

 

186. Mr Cobb submitted that the Registrant’s dishonesty had been “time-limited” and therefore was only on “one occasion”, a series of actions on a single day. Mr Cobb referred to the Panel’s findings that the misconduct was capable of being remedied and its acceptance that the Registrant would now act differently in similar circumstances. He also referred to the Panel’s finding that the Registrant had shown some reflection and that he was remorseful. 

 

187. Mr Cobb submitted that a Caution Order would mark the Registrant’s dishonesty. There were no issues with the Registrant’s clinical competence as an ODP and the Registrant clearly loved his job. Mr Cobb submitted that such an Order would underline the serious nature of the dishonesty and the “blemish” of the finding of impairment would remain. He submitted that the Registrant had fully and painfully learned his lesson, and this could be reinforced by such a sanction. 

 

188. Mr Cobb submitted that if a more severe sanction was required, a Conditions of Practice Order could be imposed so that the Registrant could safely return to work with appropriate supervision. Mr Cobb submitted that such a sanction would uphold the standards of the ODP profession. Mr Cobb submitted that a Suspension Order or a Striking Off Order would be disproportionate and were usually imposed in cases where the dishonesty was at the higher end of the scale of dishonest acts. 

 

 

189. The Panel first considered mitigating and aggravating factors relating to the Registrant’s misconduct. The Panel found the following to be mitigating factors: 

 

• the Registrant’s previous long and unblemished career as an ODP in this country and in Montenegro.

 

• that the Registrant had developed, since the start of the proceedings, some insight into his misconduct, shown some reflection into it, and had expressed remorse.

 

• that the dishonesty was not for financial gain, nor was it motivated by any malice, and the Registrant did not seek to blame anyone else for what happened. 

 

190. The Panel considered whether there was anything in the documents regarding the Registrant’s private life at the relevant time (August 2021) which might provide any personal mitigation in this case. The Panel considered that there were relevant matters of personal mitigation. The Panel considered that the stress and anxiety referred to by the Registrant regarding his son’s condition and the operation he was undergoing, as well as other family issues, did constitute personal mitigation in this case which it could consider in determining what sanction to impose. 

 

191. The Panel considered the following to be an aggravating factor:

 

• that while the dishonesty was relatively short-lived, it was a deliberate and reckless act of dishonesty. 

 

192. The Panel was satisfied that although the dishonesty in this case was deliberate and reckless, it had persisted for only a relatively short period of time on 20 August 2021. It had not been pre-meditated over a period of time. It was essentially a single isolated incident which arose at a time of anxiety and stress for the Registrant, and he had not been motivated by any financial or professional gain at the time. The Panel concluded that the Registrant’s dishonesty was at the lower end of the scale of dishonest conduct. 

 

193. The Panel considered the available sanctions in ascending order of seriousness. It decided that to take no action or impose a Caution Order would not be appropriate or proportionate. The Panel did not consider that the dishonest misconduct could be described as “relatively minor in nature”. The Panel was not able to conclude that there was a low risk of repetition because although the Registrant had some insight into his misconduct, this was yet to be fully developed, in particular how it impacted on his colleagues, his profession, and the wider public. The Panel was satisfied that to ensure public confidence in the profession was not undermined, it must consider a more severe sanction. 

 

194. The Panel then considered a Conditions of Practice Order and in particular the matters set out in paragraph 106 of the Sanctions Policy, which states:

 

 

 

195. The Panel also had in mind paragraphs 107 and 108, which state:

 

 

 

196. The Panel considered paragraph 109, which states in relation to serious cases and the imposition of a Conditions of Practice Order:

 

 

197. The Panel concluded that the Registrant’s misconduct was capable of being remedied, albeit that this was more difficult given the findings of dishonesty. It was satisfied that due to his not having developed full insight into his misconduct, the Registrant had not yet taken all the steps needed to remedy it. Expressions of remorse were a step in the right direction, but this had to be accompanied by good insight and proper reflection on the impact of the misconduct on patients, colleagues, his profession, and the wider public interest. The Panel was unable to exclude the risk of repetition based on the Registrant’s lack of full insight. The Panel therefore decided that the Registrant’s conduct was neither “minor” or “unlikely to be repeated”. 

 

198. The Panel also concluded that it was not possible to devise appropriate, proportionate, realistic, and verifiable conditions which would address the concerns regarding the Registrant’s dishonest conduct in this case. The Panel was of the view that given the nature of the misconduct, the imposition of a Conditions of Practice Order was not sufficient to maintain public confidence in the ODP profession and in the regulatory process. 

 

199. The Panel next considered whether to impose a Suspension Order. It had in mind the following guidance from the HCPC’s Sanctions Policy: 

 

 

 

200. The Panel had already found that the Registrant’s misconduct “represent[s] a serious breach of the Standards of conduct, performance and ethics”. The Panel considered whether the Registrant’s level of insight into his misconduct and the level of the risk of it being repeated ruled this sanction out. The Panel, having already expressed its view that the misconduct was capable of being remedied, considered whether there was evidence that this Registrant was capable of remedying his misconduct. 

 

201. The Panel concluded that there was nothing to suggest that the Registrant was either unwilling or incapable of remedying his misconduct. This was not a case where the Registrant has attitudinal issues that might make it unlikely he could remedy his misconduct. The Panel concluded that the Registrant was capable of developing proper insight. It noted that during the course of these proceedings, the Registrant had already shown that he had started to develop insight. The Registrant had also shown that he was capable of proper reflection, although he had yet to properly reflect on the impact of his misconduct on patients, his colleagues, his profession, and the wider public interest. 

 

202. Finally, before concluding that a Suspension Order was the appropriate sanction in this case, the Panel considered whether it should make an order striking the Registrant off the Register. It bore in mind paragraph 130 of the Sanctions Policy, which states that such a sanction is one of “last resort for serious, persistent, deliberate or reckless acts involving … e.g., dishonesty”. 

 

203. The Panel took the view the although the dishonesty in this case was serious, it was at the lower end of the scale of dishonesty. It also took the view that the dishonesty was not persistent in the sense that it had been repeated on multiple occasions. The dishonesty was essentially a deliberate and reckless error of judgement reached by the Registrant at a time of particular stress and anxiety. 

 

204. The Panel considered paragraph 131 of the Sanctions Policy: 

 

 

 

205. The Panel did not consider that this was a case where a sanction of “last resort” was required. This was not a registrant who was unwilling to resolve matters or incapable of doing so. The Panel considered that the Registrant was capable of remedying his misconduct. The Registrant has developing insight and he has not continued to repeat the misconduct. The Panel was satisfied that the wider public interest would be appropriately and sufficiently addressed by a Suspension Order. The Panel therefore decided that a Striking Off Order in this case would be too harsh and disproportionate a sanction. 

 

206. The Panel therefore concluded that a Suspension Order for six months was the appropriate and proportionate sanction in this case. The period of six months would allow the Registrant sufficient time in which to properly reflect on his misconduct and achieve proper insight. The Panel was satisfied that such an Order would adequately protect the public from the risk of repetition in this case. The Panel was also satisfied that a six-month Suspension Order would be sufficient to protect public confidence in the ODP profession and its regulatory body, while at the same time sending out a clear message to the profession that such behaviour will not be condoned.

 

207. The Suspension Order will be reviewed before it expires, and the Panel considered that a reviewing panel may be assisted by the following: 

 

• a reflective piece addressing the deficiencies in the Registrant’s insight in relation to his misconduct, in particular its impact on patients, colleagues, his profession, and the wider public interest.

 

• the Registrant’s attendance in person or remotely at the review hearing to assist the reviewing panel in relation to his insight.