
Jason Jones
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Allegation
As a registered Operating Department Practitioner (ODP26334) your fitness to practise is impaired by reason of misconduct. In that:
- On 14 August 2018: a. you removed an ampoule of Propofol medication from the anaesthetic room drug cupboard of Theatre 4, Gwynedd Hospital for your own use.; and/or b. Administered drugs to yourself whilst at your workplace.
2. Your actions at Particular 1 were dishonest because you knew you were not entitled to take medication for your own use.
3. You did not inform the Health and Care Professions Council in a timely manner that you had been suspended from work by your employer on 14 August 2018.
4.Your conduct in relation to allegation 3 above was dishonest because you knew that you were required to inform the HCPC of your suspension from work in a timely manner.
5. The matters set out in particulars 1 - 4 above constitute misconduct.
6. By reasons of your misconduct your fitness to practise is impaired
Finding
Service
1. On 9 September 2024, an email was sent to the Registrant informing him that this hearing had been scheduled to take place between Monday, 28 October 2024, and Friday, 1 November 2024. It informed him of the times the hearing would commence and of the fact that the hearing would be conducted remotely by the use of Microsoft Teams. The Panel accepted that this email constituted a valid notice of hearing. Accordingly, the Panel had jurisdiction to consider further issues arising in the case.
Application to proceed in the absence of the Registrant
2. After the Panel announced its decision that it was satisfied that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant.
3. In advancing the HCPC’s application that the hearing should proceed in the absence of the Registrant, the Presenting Officer made submissions by reference to the matters identified in the HCPTS Practice Note entitled, “Proceeding in the Absence of the Registrant” as those to be considered. In particular, he submitted that the Registrant had voluntarily waived his right to attend the hearing, and that could be demonstrated by the following matters:
• The Registrant had indicated that he would not attend a Preliminary Hearing that was held on 4 March 2024, when the issue of amendment of the Allegation was to be decided, and he did not in fact attend that hearing.
• On 10 July 2024, a member of the HCPTS Scheduling Team sent an email to the Registrant informing him that the hearing date would shortly be fixed and requesting him to indicate any dates in the period September to November 2024 that would not be convenient. The same day the Registrant replied stating, “I will not be attending any hearing …”.
• In addition to the formal notice of hearing sent on 9 September 2024, two further communications had been made which made refence to the date of the hearing. Earlier in October 2024, the Hearings Officer sent the Registrant an email introducing herself in advance of the present hearing. Furthermore, on Friday, 25 October 2024, an email was sent to the Registrant with a link for him to join the virtual hearing.
• The Registrant did not respond to any of the emails sent to him since his response to the member of the Scheduling Team on 10 July 2024.
• There had been no application by the Registrant for an adjournment of the hearing.
4. When the Panel retired to consider the HCPC’s application that the hearing should proceed in the Registrant’s absence, there was an issue that caused the Panel some concern. It was the fact that there had not been compliance with the Standard Directions with regard to the service on the Registrant of the HCPC’s evidence. The Standard Directions require that HCPC to serve its evidence no later than 42 days before the date of the hearing. Had that provision been complied with, the evidence would have been served no later than Monday, 16 September 2024. In fact, the HCPC did not offer the link to its evidence to the Registrant until Thursday, 10 October 2024, more than three weeks after it should have been served.
5. In the view of the Panel, compliance with the obligation to serve evidence in accordance with the Standard Directions is an important requirement; it is a fundamental requirement of a fair hearing that the Registrant should have the opportunity to receive and have time to consider the evidence that is to be tendered against them. It is entirely possible that a registrant who has earlier stated that they do not wish to attend a hearing might change their decision when they have the opportunity to consider the HCPC’s evidence.
6. However, after careful consideration, there were two matters that resulted in the Panel concluding that there was no realistic likelihood that the Registrant would have changed the decision he communicated on 10 July 2024, had the HCPC complied with the Standard Direction to serve its evidence no later than 42 days before the date of the hearing. One was that with the exception of one statement, (that of Mr PF that could properly be described as “production evidence”, as described in paragraph 21 below), all of the information included in the hearing bundle for the present hearing had been included in the bundle prepared for the Preliminary Hearing held on 4 March 2024, and that bundle had been provided to the Registrant both electronically and in hard copy form. The other matter that reassured the Panel in the view it took on this matter was that in the notice of hearing email sent to the Registrant on 9 September 2024, the following appeared, “The HCPC will email you a bundle of the documents it intends to rely on at the hearing at least 42 days before the hearing, in accordance with the attached Standard Directions. ……… If you have not received the case documents 42 days in advance of the hearing, please contact the HCPC.” The Registrant did not contact the HCPC to state that he had not received the documents within the timescale set out.
7. The Panel therefore decided that the hearing should proceed in the Registrant’s absence on the basis that he had voluntarily waived his right to attend. That being so, coupled with the absence of an application to adjourn the hearing or any suggestion that the Registrant might attend a hearing on a future occasion, the Panel concluded that the public interest required the hearing to proceed. An adjournment would serve no purpose and would further delay the resolution of this already very stale Allegation.
Background
8. The Registrant is registered with the HCPC as an Operating Department Practitioner (“ODP”). At the relevant time he was employed by Betsi Cadwaladr University Health Board (“the Board”), based at Gwynedd Hospital (“the Hospital”). His employment on a full-time and permanent basis commenced on 20 October 2006, and from 24 February 2013 he was a Senior ODP.
9. On 14 August 2018, the Registrant was due to work in Theatre 4, an operating theatre used for emergency cases. Before the first operation on the morning of that day, an incident occurred in the Theatre 4 anaesthetic room as a result of which the Registrant suffered an injury. After attending the Emergency Department at the Hospital, the Registrant returned to the anaesthetic room, and it is the HCPC’s case that he removed an ampoule of Propofol from the drugs cabinet and subsequently self-administered Propofol. It is contended that the taking of the Propofol was dishonest as the Registrant knew that he was not allowed to take it for his own use.
10. The Registrant was suspended from his employment a short while later on the same day. It is the HCPC’s case that the Registrant was under an obligation to inform the HCPC in a timely manner that he had been suspended, but that he did not do so. It is alleged that his apparent failure to inform the HCPC of his suspension was dishonest on the basis that he knew, as a registered ODP, of the requirement to inform the HCPC that he had been suspended.
Decision on Facts
11. The HCPC initially called four witnesses to give evidence before the Panel. At the relevant time, all were employed by the Board and all worked at the Hospital. Colleague 1 was a Senior ODP, Colleague 2 a Theatre Practitioner Nurse, Colleague 4 a Staff Nurse who always worked in operating theatres at the Hospital, and Colleague 6 was the Operating Theatre Manager.
12. The HCPC also sought to rely on the evidence of three witnesses whom it did not intend to call to give evidence before the Panel. Those witnesses were:
• Ms LE, who is employed by the HCPC as a Registration Manager, whose evidence was directed to Particular 3.
• Ms MB, a Forensic Scientist, whose evidence will be further described below.
• Mr PF, a colleague of Ms MB, whose evidence was confined to the receipt of the samples provided by North Wales Police and subsequently analysed by Ms MB.
13. On 10 October 2024, the HCPC’s Solicitors served on the Registrant a notice to admit facts and the witness statements of the three witnesses identified above. That notice was not valid as it was not served, “no later than 21 days before the date fixed for the hearing of the case”, as required by the Standard Directions. Accordingly, after all of the live evidence had been given, the Presenting Officer applied to introduce the three statements as hearsay evidence.
14. The Panel reviewed the evidence contained in the witness statements and considered whether the evidence could be admitted without unfairness to the Registrant. The Panel acceded to the application in respect of both Ms MB and Mr PF, as their statements were clear and did not give rise to the need for further exploration by the Panel to ensure that the hearing was conducted fairly.
15. However, in relation to Ms LE, the Panel was of the view that the terms of the witness statement did give rise to the need for the evidence to be explored for the reasons that will be explained when the Panel describes her evidence in paragraph 33 below. Furthermore, the Panel noted that the witness statement of Ms LE concluded with an explicit statement that she was prepared to give evidence, and no reason had been advanced by the HCPC as to why she had not been called as a live witness at the hearing. For these reasons the Panel refused the HCPC’s application to introduce the witness statement of Ms LE as hearsay evidence.
16. After the Panel announced its decision in relation to the application to introduce hearsay evidence, the Presenting Officer stated that the HCPC would not seek to rely on the evidence of Ms LE. However, after retiring to consider the matter, and accepting the advice of the Legal Assessor that the process being undertaken by the Panel was not a purely adversarial one and that the Panel had a residual power to require the HCPC to produce evidence, the Panel stated that it wished to make enquiries to see whether Ms LE could be made available to be called to give evidence before the Panel. This decision was based on the fact that a serious allegation of dishonesty was likely to depend upon her evidence being received. In the event, Ms LE was called as a witness before the Panel.
17. The Registrant did not produce any information for the consideration of the Panel. However, the Panel noted that it was stated in the Investigation Report dated 6 December 2018 that was prepared by Mr GS for the Board’s internal disciplinary process, that the Registrant was formally interviewed in the presence of a trades union representative. The Panel considered that fairness to Registrant required it to at least consider whether the record of that interview should be made available to the Panel so that it might understand what the Registrant’s case was when interviewed. Accordingly, at the commencement of the hearing, the Panel asked the Presenting Officer to make enquiries to establish whether the record of the Registrant’s interview might be obtained. The Panel renewed this request at the commencement of the second day of the hearing, but was informed that neither the HCPC’s Solicitors nor the HCPC had this document. Unusually, Mr GS was not included in the witnesses relied upon by the HCPC, so the Panel was unable to ask him directly about the matter. The very limited information concerning the Registrant’s case was included in a letter dated 2 June 2020, that was sent by North Wales Police to the HCPC. It was stated in that letter that when initially interviewed on 11 April 2019, the Registrant denied taking drugs from the drug cupboard. He explained that the wound to his head (to which reference will be made below) was something that had occurred when he rose from a kneeling position and struck his head on a drawer on a trolley that he had left open. During this initial interview he stated that his DNA would not be discovered on any items that had been retained on 14 August 2018. After the forensic evidence to which reference will be made below became available to the Police, the Registrant was again interviewed on 26 July 2019. When asked how it was that his DNA had indeed been identified on retrieved items, the Registrant made a series of “no comment” replies to questions put to him.
18. In reaching its decisions on the facts the Panel has applied the principle that the burden of proving each element of the facts alleged was on the HCPC. The standard of that burden was the balance of probabilities.
19. In reaching the decisions it was required to make in relation to the events of 14 August 2018, the Panel found that each of Colleagues1, 2, 4 and 6 gave evidence that was truthful. The Panel recognised that they were giving evidence about events that had occurred over six years earlier, although it is relevant to add that in addition to the witness statements made for the purposes of these proceedings (with the exception of Colleague 4, these statements had all been made in 2021), they also had the advantage of, variously, documented accounts made shortly after the incidents described or in the context of Mr GS’s internal investigation for the Board, all of which were made in 2018. There was no indication of hostility or malice directed at the Registrant; indeed, quite the contrary, as there were positive comments about him as a colleague, and it is apparent that each of them was genuinely concerned about his welfare as a result of the events of 14 August 2018. In short, the Panel concluded that the evidence of these four witnesses could be relied upon to reach its findings about what happened on 14 August 2018.
20. Based on the evidence of Colleagues 1, 2, 4 and 6, the Panel made the following findings of fact about the events that occurred on 14 August 2018:
• The Registrant was rostered to work in Theatre 4, the operating theatre used for emergency procedures.
• At approximately 08:45 that day, Colleague 4, who was that day the assigned Nurse in charge of the list for Theatre 4, walked into the anaesthetic room and saw the Registrant near the wash basin. There was a large amount of blood on his head, arms and trousers and there was also a large amount of blood on the floor. The Registrant presented as shocked and his speech was slurred.
• Colleague 4 left the anaesthetic room to obtain help. As she left she saw Colleague 2 outside the room about to go in. Colleague 4 told Colleague 2 not to enter the room. Colleague 4 returned to the anaesthetic room with other colleagues who have not been called as witnesses before the Panel. It was apparent to those present that the Registrant had a wound to his head.
• The Registrant was taken to the Emergency Department at the Hospital in a wheelchair.
• After the Registrant left the anaesthetic room in a wheelchair, Colleague 2 entered the room. As a patient was due in Theatre 4 at 09:00, she assisted in the mopping up of the blood on the floor.
• As she continued to clean the anaesthetic room, Colleague 2 noticed a 20ml syringe on the worktop. The syringe appeared to still contain approximately 14ml of a white substance. Colleague 2 informed Colleague 4 of the presence of the syringe.
• By this time, it had been arranged that Colleague 1 would assume the Theatre 4 responsibilities that had been assigned to the Registrant. Colleague 1 was also made aware of the syringe, and at the suggestion of Colleague 4, she put it in a kidney dish for safekeeping.
• At this point Colleague 1 noticed that there was a bloodied tissue in the top of the “sharps” bin, and there appeared to be something inside the tissue. Colleague 1 used forceps to remove the tissue and its contents, and discovered a 10ml syringe and Venflon cannula. To Colleague 1 the pinkish colour suggested that blood had mixed with Propofol, a drug used in anaesthesia. Colleague 1 put these items in a separate kidney dish. She took both kidney dishes to senior members of staff.
• When the Panel describes the conclusions it has reached on the facts it has found, the events described above will be referred to as the “pre-Emergency Department visit incident”.
• After the Registrant went to the Emergency Department, Colleague 1 and Colleague 2 checked the drugs cupboard to establish the number of Propofol ampoules it contained. At that stage there were two unopened boxes, and one open box that contained two ampoules.
• Propofol is a drug used for the induction and maintenance of anaesthesia. It is whiteish in colour. It is not a controlled drug, and therefore did not have to be kept in a locked cabinet and did not have to be “signed in” or “signed out”.
• Some time after going to the Emergency Department, perhaps 30 or 45 minutes later, the Registrant returned to Theatre 4. He spoke to Colleague 4 about the shock he had given her when she had discovered him injured and bloodied.
• It was a surprise to all present that the Registrant had returned to the operating theatre, particularly as he had suffered an injury to his head.
• Shortly after the Registrant returned to Theatre 4, Colleague 1 had to leave in order to obtain an ultrasound machine. Colleague 2 remained, however, and she continued to watch the Registrant as she was concerned about his welfare. She saw the Registrant shuffling around paperwork and empty drugs packaging. In particular she saw him in the area of the drugs cupboard, looking inside that cupboard and touching boxes of medication. When Colleague 1 was absent, the Registrant indicated to Colleague 2 that he was going to the toilet and for her to inform Colleague 1 of that fact. Colleague 2 saw the Registrant leave the area with his hand in his pocket.
• When Colleague 1 returned with the ultrasound machine, Colleague 2 informed her that the Registrant had gone to the toilet. Together they went to the drugs cupboard and checked the quantity of Propofol in it, discovering that the open box then only contained only one ampoule of Propofol.
• Colleague 1, in the presence and hearing of Colleague 2, asked the anaesthetist if he had used any Propofol, and received the reply that he had not.
• Colleague 1 went to Colleague 6 and informed him of what had occurred.
• Colleague 6 went to the male changing rooms, access to which is controlled by the use of a swipe card. He discovered that the Registrant was in a cubicle. Colleague 6 knocked on the cubicle door and asked the Registrant to come out. Initially, the Registrant declined to leave the cubicle. Colleague 6 asked the Registrant if he was alright, to which the Registrant mumbled a reply that he was okay. The Registrant subsequently left the cubicle and Colleague 6 took him to the office of a third party. In the presence of that third party, Colleague 6 suspended the Registrant from his employment.
• A short while later Colleague 6, requesting a Theatre Porter to accompany him, returned to the male changing rooms. Colleague 6 acknowledged that no guard had been placed on the changing rooms in the period between his leaving with the Registrant and returning with the Theatre Porter, and accordingly recognised that another employee might have entered in that short intervening period. Near the two washbasins was a clinical waste bin (which was not a “sharps” bin) and inside it he discovered a paper towel and a cannula with a syringe filled with a white fluid. The paper towel was pink, which Colleague 6 assumed to be blood. He assumed the white fluid to be Propofol. Colleague 6 retrieved the contents of the clinical waste bin for safekeeping.
• Colleague 6 subsequently contacted North Wales Police and later still handed the contents of the clinical waste bin to them.
21. The Panel also accepted the forensic evidence provided by Mr PF and Ms MB. Mr PF received from North Wales Police, poly bags containing items retrieved on 14 August 2018. Included in the items received was a cannula analysed by Ms MB under the reference BD/03. Ms MB was also provided by the Home Office with a DNA profile attributed to the Registrant. The evidence of Ms MB was in the following terms:
“BD03 1 x empty ‘BD’ syringe with a bloodied needle
This is a cannula rather than a syringe. Blood was present in the syringe and on both ends of the cannula. Blood was sampled from the syringe and one of the areas of the cannula, and the plunger was swabbed to recover any DNA present.
The blood sampled from cannula and the swabs from the plunger were submitted separately for DNA analysis.
A complete DNA profile which matched that of [the Registrant] was obtained from the blood such that the blood could have come from him. To address whether or not the blood originated from [the Registrant] a statistical evaluation was carried out. The following propositions were considered:
• The blood has come from [the Registrant].
• The blood has come from someone other than and unrelated to [the Registrant].
It has been calculated that the DNA profile is at least a billion (1000 million) times more likely if the first proposition were true rather than the second.
An incomplete DNA profile which matched that of [the Registrant] was obtained from the swab from the plunger such that the DNA could have come from him.”
Particular 1 – On 14 August 2018:
a. you removed an ampoule of Propofol medication from the anaesthetic room drug cupboard of Theatre 4 at Gwynedd Hospital for your own use; and/or
b. administered drugs to yourself whilst at your workplace.
22. The allegation in Particular 1(a) is that the Registrant removed “an ampoule”. However, the HCPC’s case has been presented on the basis that the Panel should conclude that it has been proven that the pre-Emergency Department incident resulted from the removal of Propofol and administration of it by the Registrant, as well as being satisfied that, after returning from the Emergency Department, he removed another ampoule of Propofol from the drugs cupboard and self-administered it in the male changing rooms. Accordingly, the Panel will describe its findings in relation to these two separate episodes.
23. With regard to the pre-Emergency Department visit incident, after careful consideration of the evidence that relates to it, the conclusion of the Panel is that the presence of what was found on the worktop and in the “sharps” bin gives rise to a suspicion that the Registrant might have taken and used Propofol, but the evidence is insufficient for the Panel to find on a balance of probabilities that he did either of those things.
24. With regard to the evidence relating to what occurred when the Registrant returned to Theatre 4 after having visited the Emergency Department, the Panel finds that it is proven on a balance of probabilities that the Registrant removed an ampoule of Propofol from the drug cupboard, that his reason for doing so was to use it himself, and that he self-administered the drug in the male changing room area. The Panel is satisfied that this is proven on the basis of the following elements of the evidence:
• The fact that the Registrant returned to Theatre 4. He had suffered a significant head injury, and he can hardly have expected that his presence would have been required. Furthermore, his role had been taken over by Colleague 1 and there was no reason for him to be there.
• The Registrant’s unnecessary presence in the area of the drugs cupboard.
• The fact that, after rummaging around in the drugs cupboard, the Registrant left the anaesthetic room to go to the changing room and did so with his hand in his pocket.
• The discovery by Colleague 6 of the Registrant in the male changing room cubicle, coupled with the discovery made by Colleague 6 of the syringe, bloodied tissues and cannula in the clinical waste bin in the male changing room.
• The fact that during the time the Registrant was present having returned to Theatre 4, the stock of Propofol reduced by one ampoule. This fact was considered in the light of the anaesthetist’s assertion that he had not used that drug.
• The forensic science evidence relating to the Registrant’s DNA.
25. As already noted, the allegation in Particular 1(a) is that a single ampoule was taken. Accordingly, the findings made by the Panel satisfy both limbs of Particular 1, and they are proven.
Particular 2 – Your actions at Particular 1 were dishonest because you knew you were not entitled to take medication for your own use.
26. The Panel accepted the advice as to the proper approach to take when reaching a decision on an allegation of dishonesty. Accordingly, it first decided what the Registrant’s subjective state of mind was when the relevant acts were committed. It then asked itself whether ordinary, decent people would consider that behaviour to be dishonest.
27. It has already been found in relation to Particular 1 that the Registrant took medication for his own use from the drugs cupboard at his place of work. The relevant state of mind to be decided is stated in Particular 2, as it is alleged that the Registrant knew that he was not entitled to take medication for his own use.
28. The view taken by the Panel was that it was clear beyond sensible argument that a Senior ODP would know that he was not entitled take medication for his own use. The Panel considered it to be equally clear that ordinary, decent people would categorise taking medication from work for personal use with that knowledge as dishonest behaviour.
29. It follows that Particular 2 is proven.
Particular 3 – You did not inform the Health and Care Professions Council in a timely manner that you had been suspended from work by your employer on 14 August 2018.
30. In the view of the Panel, for this Particular to be proven, it would be necessary for the three elements to be established, namely:
• That the Registrant had been suspended from work by his employer on 14 August 2018.
• That, having been suspended, he was under an obligation to inform the HCPC in a timely manner of that fact.
• That he did not discharge that obligation.
31. The Panel was satisfied as to the first and second of the elements identified in the immediately preceding paragraph. It was the clear evidence of Colleague 6 that he suspended the Registrant on 14 August 2018. Furthermore, the Panel is satisfied that Standard 9.5 of the HCPC’s Standards of conduct, performance and ethics in force at the relevant time stated, “You must tell us as soon as possible if: ……….. you have ….. been suspended by an employer, ……. because of concerns about your conduct or competence.”
32. The evidence as to whether the Registrant had discharged his obligation to inform the HCPC that he had been suspended was, however, far less clear. The HCPC relied on the evidence of Ms LE. Her witness statement dated 7 February 2022 relied to a great extent on the online declaration made by the Registrant on 27 November 2018 when he renewed his HCPC registration in the renewal cycle for ODPs. Ms LE’s witness statement included the following passages:
• In paragraph 7, “As part of this renewal, [the Registrant] had to sign a declaration to confirm that there had been no changes to his health or relating to his good character that he had not advised the HCPC about and which would affect his safe and effective practice of his profession. [The Registrant] did not declare that there had been any changes to his health or relating to his good character which he had not previously advised the HCPC about and which would affect his safe and effective practice of his profession. I exhibit the notes section of [the Registrant’s] account demonstrating that no declaration had been made.”
• In paragraph 8, “The online declaration goes on to say that [the Registrant] must provide the HCPC with information about any health issues, convictions, police cautions and convictions for which he had received a conditional discharge before he renewed. As can be seen by the notes section, [the Registrant] also did not make any such declaration.”
• In paragraph 9, “I can confirm that [the Registrant] did not declare to the HCPC that he was suspended from work by his employer in August 2018 as a result of concerns regarding his fitness to practise.”
• In paragraph 10, “I can confirm that I have reviewed the records of [the Registrant] and I cannot see any contact made by [the Registrant] to the Registrations Department, relating to restrictions on his practice.”
33. The reason why the Panel was not prepared to accept the witness statement of Ms LE as hearsay evidence was because it considered there were other issues that required further consideration. In particular, the Panel wished to explore the following matters:
• Whether a printout of the online declarations actually made by the Registrant on 27 November 2018 could be made available.
• If a printout of the declarations made by the Registrant could not be provided, whether a template version of the online form he used could be provided.
• Whether any question responded to by the Registrant when he effected his online renewal on 27 November 2018, specifically required an answer to a question about suspensions imposed by an employer.
• The concluding words of paragraph 10 of Ms LE’s witness statement stated that she could not see that any contact had been made by the Registrant to the HCPC’s Registrations Department relating to restrictions on his practice, but the Panel wished to know whether an enquiry had been made of other HCPC Departments, and in particular the Fitness to Practise Department to investigate whether there had been any notification to them of his suspension by the Registrant.
34. In her helpful evidence to the Panel, Ms LE explained that the electronic system now used by the Registrations Department is not the system that was being used in 2018. That fact necessarily created difficulties in providing to the Panel the Registrant’s actual online declaration. After she concluded her evidence before the Panel, Ms LE provided a copy of the paper declaration form that was believed to have been in use in 2018. If this document did represent the paper 2018 version of the declaration it would be a proper inference to draw that the electronic version was similarly worded. The paper form required a cross to be inserted in a box next to each declaration that applied. The relevant entry is worded thus: “Since my last registration there has been no change relating to my good character (this includes any conviction or caution, if any, that you are required to disclose), or any change to my health that may affect my ability to practise safely and effectively;”
35. The Panel accepts that when completing the online form, the Registrant indicated acceptance of the “good character” declaration quoted in the immediately preceding paragraph; had he not done so, his re-registration would not have proceeded automatically as it did, and instead further questions would have been asked of him.
36. In relation to the significance of the online renewal effected on 27 November 2018, the question to be answered is whether the suspension imposed on 14 August 2018, made in the circumstances in which it was, was a factor that required the Registrant to accept that it related to his good character. The Registrant had been suspended because of concerns about his conduct and because those concerns were to be investigated on behalf of the Board. The evidence before the Panel is that the investigation did not conclude until 6 December 2018, after the online renewal was effected, and the ensuing disciplinary hearing did not take place until 30 April 2019. In circumstances where the Registrant appears to have been denying the allegations raised against him, the Panel does not accept the argument that the Registrant was required to accept that the suspension was a matter that related to his good character. The Panel therefore does not accept that the HCPC proved that the Registrant did not inform it of the fact of his suspension by the online renewal of registration effected on 27 November 2018.
37. That is, of course, not the end of the matter. The online renewal took place 15 weeks after the suspension was imposed, and the requirement is to inform the HCPC “as soon as possible”. The Panel accepted the evidence of Ms LE that there was no record of the Registrant informing the Registrations Department of his suspension (as she stated in paragraph 10 of her witness statement), but the evidence was far less clear as to whether there could be confidence that he had not informed another department, and in particular, the Fitness to Practise Department. Ms LE’s oral evidence to the Panel was that in 2018 the Registrations Department and Fitness to Practice Department used different electronic systems, and it was not possible for the former to interrogate the system being used by the latter. Ms LE stated that, had the Fitness to Practice Department been informed by the Registrant that he had been suspended, that information might have been passed on to the Registrations Department, but she acknowledged that it might not have been. No evidence from anyone in the Fitness to Practice department was provided to the Panel to confirm whether any correspondence had been received from the Registrant in relation to his suspension.
38. The Presenting Officer submitted that, in the context of the resolution of the decision by the Panel, it was for the Registrant to demonstrate that he had informed the HCPC of the suspension. The Panel rejected that submission. It is clear from the wording of Particular 3 that the HCPC chose to allege a negative. The Panel does not underestimate the difficulties that a party to any litigation will have in proving a negative, but it does not consider that such difficulties could justify a departure from the fundamental principle that the burden of proof lay with the HCPC to demonstrate matters it alleges on a balance of probabilities.
39. Having very carefully considered the matter, the conclusion of the Panel was that the HCPC has failed to discharge the burden of proving that the Registrant did not inform the HCPC of the suspension. It is important that the Panel’s decision on this issue is properly understood. The Panel does not make a positive finding that the Registrant did inform the HCPC. Indeed, it is entirely possible that he did not. The finding is simply that in this case the HCPC has not discharged the burden of proving that he did not.
40. Particular 3 is not proven.
Particular 4 – Your conduct in relation to particular 3 was dishonest because you knew that you were required to inform the HCPC of your suspension from work in a timely manner.
41. A finding of dishonesty under this Particular would require a finding that Particular 3 had been proven. As the finding of the Panel in relation to Particular 3 is that it is not proven, it necessarily follows that Particular 4 is not proven.
Decision on Misconduct
42. Having found Particulars 1 and 2 to be proven, the Panel considered whether those proven facts amounted to misconduct.
43. The Panel first considered the HCPC’s Standards of Conduct, Performance and Ethics in force at the relevant time. The conclusion reached by the Panel was that the Registrant’s behaviour breached two of those standards, namely:
• Standard 6, which requires registrants to manage risk. When he self-administered Propofol, the Registrant was at work and was rostered to work. His actions put both patients and colleagues at potential risk of harm.
• Standard 9 and, in particular, Standard 9.1, which requires registrants to make sure that their conduct justifies the public’s trust and confidence in both themselves and their profession. The Registrant’s actions on 14 August 2018, would undoubtedly diminish the trust the public should expect to be able to place in him, and it had the potential to shake public confidence in the profession of ODPs generally.
44. The Panel acknowledged that a finding that standards had been breached does not automatically result in a finding of misconduct; it is necessary for the Panel to assess the seriousness of the matters found proven.
45. In the view of the Panel the Registrant’s behaviour was serious, involving potential risk to patients and colleagues and involving dishonesty in terms of taking drugs from the drugs cupboard at work and using them for oneself while on duty. Such behaviour fell far below the standards expected of a registered health professional. Furthermore, fellow ODPs would consider his behaviour to have been deplorable. The consequence of these findings is that the facts found proven should properly be described as misconduct.
Decision on Impairment
46. Having found misconduct, the Panel next considered whether the misconduct is currently impairing the Registrant’s fitness to practise. In reaching its decision on this issue the Panel had regard to the guidance contained in the HCPTS Practice Note entitled, “Fitness to Practise Impairment”. That document stresses the importance of considering both the personal and public components of fitness to practise.
47. The Panel accepted that the issue was not whether the misconduct was impairing the Registrant’s fitness to practise at the time of the relevant events, but rather, whether his fitness to practise is impaired at the present time. In order to answer this question, it is necessary to have regard not only to what happened on 14 August 2018, but also to any relevant information relating to the intervening period.
48. In fact, the lack of substantive engagement by the Registrant in this fitness to practise process has resulted in the Panel having no worthwhile information to take into account. In the email the Registrant sent to the member of the HCPTS Scheduling Team on 10 July 2024, he wrote that he would not be attending any hearing because he believed his skills as an ODP had diminished since he last practised as an ODP six years previously. However, this is not a case concerning professional skills, but rather one which creates a significant issue as to the Registrant’s ability and willingness to observe the ordinary requirements of professional registration, and as to those issues he has been silent. There has been no comment made by him as to whether he accepts that he breached professional standards, whether he understands that what he did was wrong and whether he has any insight as to why it was unacceptable. Nor is there any information before the Panel from the Registrant as to whether he regrets his behaviour or apologises for it. These are issues on which only the Registrant could provide information. In the absence of any relevant information, the Panel is driven to conclude that were the Registrant able to return to unrestricted practice, there would be a significant risk that he would repeat the behaviour of the sort mentioned. For that reason, the Panel has concluded that upon consideration of the personal component of fitness to practise, the Registrant is currently impaired.
49. Even if the risk of repetition, with the consequential risk of harm, were not present, in the Panel’s judgement this is a case in which it would be necessary to make a finding of current impairment of fitness to practise in relation to the public component. That is because it is necessary to mark the seriousness of the Registrant’s behaviour to in order to reassure the public that there is robust regulation of ODPs. Furthermore, if the Panel did not make a finding of current impairment of fitness to practise, it would be failing in its responsibility to declare and uphold proper professional standards, an important matter, not least to send a signal to other registrants that they cannot breach proper professional standards with impunity.
50. It follows from these findings that the Panel finds that the Registrant’s fitness to practise is currently impaired in respect of both the personal and public components, and the consequence of that finding is that the allegation is well founded.
Decision on Sanction
51. After the Panel handed down its written determination explaining its reasons for the findings made in relation to the Allegation, it allowed the Presenting Officer time to consider the document before receiving his submissions on sanction.
52. In his submissions on sanction, the Presenting Officer made reference to various elements of the Panel’s decision on the Allegation. In particular, he submitted that Particulars 1(a) and (b) were incredibly serious, that the Panel’s decision that the Registrant’s behaviour had fallen far below the required standard was a material factor, as was the significant risk of repetition identified by the Panel. The Presenting Officer submitted that in addition to the dishonesty established by the Panel’s finding, a breach of trust was also demonstrated because the Registrant had been able to take the Propofol from the drugs cupboard because of his status as an ODP. The Presenting Officer also referred to the danger to service users the Registrant would present were he to repeat behaviour of the sort found proven against him. It was submitted that his behaviour was incompatible with being registered with a regulator of healthcare professionals. It being submitted that there was no insight and no remediation, together the absence of personal mitigation that necessarily followed from the Registrant’s non-involvement in this process, the case was one at what the Presenting Offer referred to as at the “top end”. He submitted that the sanction decision was straight forward; a Suspension Order would not be appropriate and a Striking Off Order would be a proportionate response.
53. The Panel accepted the advice it received in relation to the sanction decision it was required to make. A sanction should not be imposed to punish the registrant. A sanction should only be imposed if required to protect the public, to maintain a proper degree of public confidence in the ODP profession and the regulation of it, and to declare and uphold proper professional standards. To ensure that these principles are applied, it is necessary for a panel first to decide if the finding it has made on the allegation requires the imposition of any sanction. If it is decided that a sanction is required, then the available sanctions must be considered in an ascending order of gravity until one that satisfies the legitimate sanction aims is reached. In reaching its decision the Panel is required to have regard to the HCPC’s Sanctions Policy. As the Allegation determined to be well founded is one based on misconduct, the entire sanction range up to, and including, striking off is available. The Panel confirms that it has followed this approach in reaching the decision it has.
54. At the outset of its deliberations, the Panel identified matters that weighed both against and in favour of the Registrant.
55. In the judgement of the Panel, it was necessary to have regard to the following factors in reaching a decision on sanction:
• The Panel has found the Registrant to have behaved dishonestly. That finding necessarily made the case a serious one.
• The Panel accepted the Presenting Officer’s submission that the Registrant’s behaviour amounted to a breach of trust. It was only because of his status as a registered ODP and employee of the Board that he was able to access the drugs he dishonestly took and self-administered.
• The Registrant’s past behaviour on 14 August 2018 gave rise to the risk of tangible harm to both service users and colleagues. It was apparent to the Panel from the evidence of his former colleagues that they were seriously disturbed by his actions.
• The Registrant has demonstrated no insight into his behaviour, as to why it was unacceptable, or of the consequences of it. Furthermore, he has offered no apology and there is no indication that he has even attempted to remediate his behaviour, still less achieve remediation.
• There being no insight, apology or remediation, there is a significant risk of repetition, with the consequential risk of future harm to service users and colleagues.
56. Against these factors, the Panel kept in mind the following:
• Without in any way resiling from the view that any dishonesty on the part of a health professional is a serious matter, it is necessary to accept that the dishonesty in the present case was a single act that occurred on a single day.
• When giving evidence, Colleague 6 referred to the fact that at some stage before the relevant incident, the Registrant had experienced distressing events in his personal life.
• The Registrant had been an ODP for 12 years and had advanced to become a Senior ODP over five years before the relevant events.
• It was apparent from the evidence given by the witnesses who were employed by the Board at the relevant time that the Registrant was held in high regard. He was well-liked on a personal level, and respected on a professional level.
The Panel should state, however, that matters such as those listed above are likely to be of limited significance when making a decision on sanction, particularly when there is present (as there is in this case) a risk of future harm to service users and colleagues.
57. When the Panel considered whether its finding on the Allegation required the imposition of a sanction, the clear answer to that question was that it did. The finding is serious and needs to be marked by a sanction.
58. Proceeding to consider the available sanctions, it would not be appropriate to impose a Caution Order. The Panel had regard to paragraph 101 of the Sanctions Policy. The issue is very far from being minor in nature, there is a significant risk of repetition, the Registrant has not shown any insight, and he has not undertaken appropriate remediation. Furthermore, in the circumstances of this case, a Caution Order would not provide any protection against the risk of future harm.
59. The Panel then considered whether a Conditions of Practice Order would be appropriate. It is open to doubt whether a shortcoming that is attitudinal in nature could conceptually be satisfactorily addressed by the imposition of conditions of practice. But even if it could, the absence of insight on the part of the Registrant, coupled with his lack of engagement with the HCPC means that there could be no confidence that he would comply with any conditions imposed. For these reasons a Conditions of Practice Order would not be appropriate in this case.
60. The rejection of a Conditions of Practice Order as an appropriate disposal meant that the Panel next considered whether a Suspension Order should be made. In that regard, the Panel applied the factors earlier identified to those suggested as likely to be appropriate in paragraph 121 of the Sanctions Policy. That paragraph is in these terms:
“A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. The types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated;
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
61. Applying these factors to the present case:
• the concerns do indeed represent a serious breach of the Standards of conduct, performance and ethics;
• the Registrant does not have insight;
• it cannot be said that the issues are unlikely to be repeated; and,
• there is no evidence to suggest that the Registrant is likely to be able (or willing) to resolve or remedy his failings.
62. In the view of the Panel the present case is not one that fits the suggested features in the Sanctions Policy. It is possible to imagine circumstances in which a Suspension Order could be considered appropriate for a case in which the breaches were as serious as those in this case. However, for a Suspension Order to be a sensible outcome it would be necessary to have grounds for believing that the period of suspension would result in some positive change, for example, by a registrant continuing to remediate his or her serious shortcomings. In the present case there are no grounds upon which the Panel could conclude that the situation after even the maximum period of suspension would be any different.
63. Having rejected a Suspension Order as an appropriate sanction, the Panel necessarily considered whether a Striking Off Order should be made. This is a case in which dishonesty has been found, and so it is included in the types of case described in paragraph 130 of the Sanctions Policy which might result in a Striking Off Order. Furthermore, the Panel was satisfied that the making of a Striking Off Order in the present case would be consistent with the guidance contained in paragraph 131 of the Sanctions Policy. That paragraph is in these terms:
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
• lacks insight;
• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
• is unwilling to resolve matters.”
64. The second bullet point in paragraph 131 is not reflected in the circumstances of this case, but otherwise, that paragraph encapsulates why the Panel considers that a Striking Off Order is required in the present case.
65. Before confirming that a Striking Off Order should be made, the Panel considered whether such an Order would be a proportionate response to the finding on the Allegation it had already made. It is not the Panel’s view that a Striking Off Order is the only possible sanction that could be imposed when misconduct of the type found in this case is established. It is possible to imagine circumstances in which, notwithstanding the very serious nature of that misconduct, if a registrant had demonstrated genuine insight and made strenuous efforts to remedy their failings, a lesser sanction than striking off might be considered. What makes striking off a proportionate response in the present case is that the failings are very serious and there is an absence of remediation, insight, apology and remorse. This means that there is a real risk of repetition and that risk of repetition gives rise to a risk of future harm. Furthermore, there are no grounds for believing that the risk of repetition and harm will diminish with the passing of time.
Order
ORDER: The Registrar is directed to strike the name of Jason Jones from the Register on the date this Order comes into effect.
Notes
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
Interim Order
Application
66. After the Panel announced its decision that the substantive sanction would be that of a Striking Off Order, the Presenting Officer applied for an Interim Suspension Order for a period of 18 months to cover the appeal period. He submitted that an Interim Order is necessary for protection of members of the public and that it is otherwise in the public interest. In support of his contention that those grounds are satisfied, he relied on the Panel’s decision made in relation to the substantive issues. In submitting that the Order should be made for the maximum period of 18 months, he submitted that, were the Registrant to appeal, an appeal could take as long as 18 months to be finally disposed of.
Decision
67. The Panel accepted the advice it received in relation to the application. Accordingly, it decided the following issues in the following order:
• First, whether it had jurisdiction to consider the application.
• Secondly, if there is jurisdiction to consider the issue, whether it would be appropriate to proceed to decide the application in the absence of the Registrant.
• Thirdly, if satisfied that it had jurisdiction and that it was appropriate to consider the application in the Registrant’s absence, the Panel should decide whether there were risks that satisfied one or more of the three grounds that could justify the making of an Interim Order. Those grounds are, (i) that an interim order is necessary for protection of members of the public, (ii) that it is otherwise in the public interest, and (iii) that it is in the interests of the registrant concerned. In reaching its decision on whether an Interim Order is required, it is necessary to remember that the default position established by the legislation governing this process is that when a substantive sanction is imposed, there will be no restriction on a registrant’s ability to practise while their appeal rights remain extant. Accordingly, something more than the mere fact that a substantive sanction has been imposed is required to justify the making of an Interim Order.
• Fourthly, if one or more of those grounds is made out, then, notwithstanding the fact that substantive Conditions of practice have been rejected as an appropriate sanction, the Panel is required to consider whether Interim Conditions of Practice Order would sufficiently address the reasons why an Interim Order is necessary. The Interim Suspension Order applied for by the HCPC should only be made if the Panel decides that an Interim Order is required, and also decides that it would not be appropriate for that Interim Order to be one of Interim Conditions of Practice.
• Finally, if an Interim Order is made, the Panel must determine the appropriate length of it. An Order should not be made for the maximum period of 18 months simply because the Panel has the power to make an order of that length.
The Panel confirms that it has followed this approach.
68. The notice of hearing email sent to the Registrant on 9 September 2024, contained the following paragraph: “Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied that this communication afforded the Registrant an opportunity of being heard on the HCPC’s application for an Interim Order, and that fact gave the Panel jurisdiction to consider the matter.
69. The Panel decided that it was fair and necessary to decide the application in the absence of the Registrant. There is necessarily a degree of urgency in reaching a decision on an application for an Interim Order, and, for that reason, it would be undesirable to adjourn the application to allow the Registrant to attend or make representations in relation to the matter. Furthermore, the Registrant’s lack of engagement in the fitness to practise process meant that there was no realistic prospect that he would in fact participate to a greater extent were the application to be adjourned to allow him to do so. For these reasons, the public interest in deciding the application outweighed any disadvantage to the Registrant arising from his absence.
70. Whilst acknowledging the default position that there is no restriction on a registrant’s restriction while their appeal rights remain outstanding, the Panel concluded that in the present case, an Interim Order is required as positive reasons beyond the mere imposition of a sanction are present. An Interim Order is necessary for protection of members of the public and it is otherwise in the public interest for the same reasons explained by the Panel for its substantive sanction decision.
71. The Panel considered whether Interim Conditions of Practice Order would be a sufficient restriction during the appeal period, but concluded that, for the same reasons that the substantive conditions of practice were decided by the Panel not to be appropriate, Interim Conditions of Practice would not provide sufficient protection during the appeal period.
72. The Panel therefore concluded that an Interim Suspension Order should be made.
73. The Panel decided that the Interim Suspension Order should be for the maximum period of 18 months. An Order of that length is necessary because if the Registrant appeals the Panel’s decision and Order, the final resolution of that appeal could well take 18 months. In the event that the Registrant does not appeal the decision and Order, there will be no disadvantage to him as the Interim Suspension Order will simply fall away when the time within which he could have commenced an appeal passes.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
Hearing History
History of Hearings for Jason Jones
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
28/10/2024 | Conduct and Competence Committee | Final Hearing | Struck off |
24/06/2024 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
20/12/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
19/09/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
26/06/2023 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
26/06/2023 | Conduct and Competence Committee | Interim Order Review | Other |
02/12/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
02/09/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
08/06/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |
21/01/2022 | Conduct and Competence Committee | Interim Order Review | Interim Suspension |