Mark William Stokes

Preliminary Matters

Service

1. The Registrant was not in attendance and accordingly the Panel had to be satisfied that service of the Notice of Hearing had been sent to him, in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003 (as amended) (“the Rules”), before moving on to consider whether it would be appropriate to proceed in his absence.

2. The Panel heard and accepted the advice of the Legal Assessor. The Panel had sight of an email dated 10 December 2024, sent to the Registrant at his registered email address, giving the requisite notice of today’s hearing. The Panel was provided with notification that the email had been delivered. Mr Carey informed the Panel that the Notice was also sent by post. The Notice of Hearing informed the Registrant of the hearing time, the date and that the hearing would be conducted remotely by video conference. Information was included about how the Registrant could apply for a postponement, should he have wished to do so, and the Panel’s power to proceed in his absence, in the event that he did not attend.

3. The Panel was thus satisfied that service had been complied with in accordance with the Rules.

Proceeding in absence

4. With the Registrant not present, Mr Carey made an application to proceed in his absence.

5. The Panel heard and accepted the legal advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of a Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented.

6. The Registrant did not respond to the Notice of Hearing sent to him on 10 December 2024.

7. On 18 December 2024, the Registrant was sent the bundle to be relied on at the hearing. At the same time he was advised of some proposed amendments to the Allegation and invited to respond to that by 21 January 2025. An email delivery receipt was provided. No response was received.

8. On 20 January 2025, Capsticks solicitors, instructed on behalf of the HCPC, sent an email to the Registrant pointing out that nothing had been heard from him and once again attaching the hearing bundle. The Registrant was asked to indicate whether he would be attending the hearing. An email delivery receipt was provided. No response was received to that email. A follow up email was sent on 6 February 2025, again asking the Registrant to indicate whether he would be attending the hearing. An email delivery receipt was provided. No response was received to that email.

9. Having not responded to the Notice of Hearing and follow up emails, the HCPC sent an email to the Registrant on 17 February 2025, reminding him of his upcoming hearing and asking whether he would be attending. The Registrant did not respond to that email either.

10. The Panel was of the view that the Registrant faced serious allegations and that there was a clear public interest in the matter being dealt with expeditiously. The Panel noted that there were two witnesses in attendance and expecting to give evidence. There had been multiple attempts to engage the Registrant and for him to say whether or not he would be attending. He had not responded to any of those attempts. The Panel considered an adjournment would serve no useful purpose, because it seemed most unlikely that the Registrant would attend on another occasion and he had not requested an adjournment. In light of the Registrant’s complete lack of engagement with these proceedings, the Panel decided that he had voluntarily absented himself and thereby waived his right to be present and his right to be represented at this hearing.

11. The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inference from the Registrant’s non-attendance.

Application to amend

12. At the outset of the hearing, Mr Carey made an application to amend the allegation (as reflected above).

13. Mr Carey informed the Panel that the suggested amendments had been sent to the Registrant in an email on 18 December 2024. He was invited to provide any objections to the proposed amendments by 21 January 2025. No objections were received. Mr Carey submitted that these suggested amendments were minor in nature, more accurately reflected the evidence, and would cause no injustice or prejudice to the Registrant.

14. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel took into account the fact that the Registrant had been put on notice of the application to amend and invited to raise any objections. He had not raised any objections. The Panel agreed that the requested amendments were minor in nature, did not affect the gravamen of the allegation and more accurately reflected the evidence. The Panel could foresee no injustice or prejudice being caused and decided to allow the requested amendments in full.
Application for the hearing to be partly in private

15. Mr Carey made an application that part of the hearing be dealt with in private because reference may be made to matters relating to the health of the Registrant. He submitted that in order to protect the Registrant’s private life, any such references should be dealt with in private.

16. The Panel accepted the Legal Assessor’s advice that, although the general rule is that hearings are to be in public, it is open to a Panel to go into private session when dealing with matters relating to the health of a registrant. It was clear from the papers that reference may be made to the Registrant’s health and accordingly, the Panel decided that when, and if, such matters were raised they would be heard in private in order to protect the private life of the Registrant. The rest of the hearing would be heard in public in the usual way.

Background

17. The Registrant is an HCPC-registered Operating Department Practitioner (“ODP”).

18. In 2009, he began working as an ODP at The Dudley Group NHS Foundation Trust’s (”the Trust”) Theatres’ Department.

19. The Registrant took numerous unplanned absences during his employment, [redacted]. The Trust managed these absences with HR support, resulting in several 'Stage 3' meetings under the Trust's Sickness/Absence policy. The Trust also conducted multiple risk assessments to support the Registrant.

20. From 26 March 2020, the Registrant took 7 days sick leave, [redacted], which was then extended for another week. He was thus expected to return to work on 11 April 2020.

21. Between 13 April 2020 and 19 April 2020, and again from 3 May 2020, until his dismissal on 24 June 2020, the Registrant was absent without, it was alleged, notifying his employer. This led to unauthorised and unpaid leave from 11 April 2020 to 19 April 2020. After a period of annual leave (20 April to 1 May 2020), the Registrant did not return to work, resulting in further unauthorised and unpaid leave.

22. The Trust held a disciplinary hearing for the Registrant on Wednesday 24 June 2020. The allegations against the Registrant were (1) Failure to follow reasonable management instruction and (2) Repeated unauthorised absence. The Registrant did not attend the hearing, and it was heard in his absence. The allegations were upheld and the Registrant was dismissed the same day.

23. The Trust referred the Registrant to the HCPC on 30 July 2020.

24. The case was initially reviewed by an Investigating Committee Panel on 6 October 2021, and it determined there was a case to answer regarding the Registrant’s fitness to practice, based on misconduct [redacted].

25. [redacted]

26. Subsequently, the misconduct allegations were referred to the Conduct and Competence Committee.

Decision on Facts

27. In reaching its decisions on the facts, the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence provided. The Panel also took into account the submissions made by Mr Carey on behalf of the HCPC. The Registrant was not present and had not provided any written representations for the Panel to consider, nor did he make any relevant comments in the corresponding local investigation into his unauthorised absences. His position was therefore unknown.

28. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case on the balance of probabilities: it was not for the Registrant to disprove the allegations.

29. The HCPC relied on the evidence of the following two witnesses:
• LL - Matron in the Trauma and Orthopaedic Department at the Trust
• TS - Deputy Matron in Theatres at the Trust

Particular 1 - proved
1. Between 22 April 2020 and 1 July 2020, you did not attend work and did not notify your employer of your continued absence.

30. The HCPC relied on the evidence of Ms LL and Ms TS, Matron and Deputy Matron at the Trust, respectively.

31. Ms LL said, “Mark Stokes was employed by the Trust as an Operating Department Practitioner (ODP). He was already working in the theatres department when I joined in 2016. Whilst I never directly worked him, I was aware of Mark Stokes [redacted].

32. With regards to the specific period within Particular 1, Ms LL’s evidence was that the Registrant [redacted] on 26 March 2020 was off work for seven days. On 1 April 2020, he extended this by a further seven days, as he was still feeling unwell. In preparation for his return to work on 11 April 2020, the rostering team attempted to contact the Registrant on 10 April 2020, however they were unable to get hold of him. The Registrant did not attend work for his scheduled shift on 11 April 2020, and the rostering team attempted to contact him again, without any success.

33. Between 10 April 2020 and 30 April 2020, Ms LL said that she and the rostering team repeatedly tried to contact the Registrant by phone, without success. She said that from 11 April 2020, the Registrant commenced a period of unauthorised, unpaid absence. Ms LL said she sent him a letter on 14 April 2020, asking him to contact herself or her deputy, Ms TS, as a matter of urgency with regards to his failure to attend work. Royal Mail ‘Track your Item’ showed this letter was delivered on 15 April 2020 and signed for by “STOKES”. The Registrant did not respond to that letter.

34. Ms LL said that on 15 April 2020, she was notified by the Theatre Manager of a missed call from the Registrant. Ms LL said she attempted to call the Registrant back three times that day, leaving him a voicemail each time, but he never called again. [redacted] the number the Trust had been using to try to contact the Registrant was his correct number.

35. On 22 April 2020, Ms LL sent a further letter to the Registrant asking him to respond to either her or Ms TS as a matter of urgency. The Royal Mail ‘Track your Item’ showed this letter was delivered on 23 April 2020 and signed for by “STOKES”. The Registrant did not respond to that letter.

36. The Registrant was then put on the roster to be on shift on 3 May 2020. However, he did not attend work that day and neither did he contact the Trust in relation to this absence. Ms LL said, “We tried to contact him via telephone without any success.” Following this, the Registrant was moved onto unauthorised paid leave and Ms TS sent him a letter on 6 May 2020, advising him of this and to inform him that he would receive a letter inviting him to attend a disciplinary meeting in due course. The Royal Mail ‘Track your Item’ showed this letter was delivered on 11 May 2020 and signed for by “STOKES”.

37. Although it is not clear which letter it referred to, there was evidence that one letter was returned to the Trust, with a handwritten note saying “CHECK THE BLOODY POSTCODE!”. The author of the note is not known. The letter had a date stamp of 07-05-20.

38. Ms LL said that, in line with the Trust disciplinary policy, a letter was sent to the Registrant on 16 June 2020, inviting him to attend a disciplinary hearing on 24 June 2020. The Registrant did not respond to that letter either.

39. On 24 June 2020, the disciplinary hearing took place, chaired by Ms LL, who was supported by the HR business partner. The allegations were: failure to follow reasonable management instruction; and repeated unauthorised absence. The Registrant did not attend the hearing, which went ahead in his absence. The allegations were upheld and the outcome was summary dismissal on the grounds of misconduct.

40. Following the disciplinary hearing, a letter was sent to the Registrant, on 1 July 2020, advising him of the outcome of the hearing and detailing his right to appeal within 10 days of the date of the letter. The Registrant did not submit an appeal, or acknowledge the letter.

41. Ms LL’s evidence was that, in line with the Trust’s sickness absence policy, the practitioner is expected to contact either their lead, or one of the band 6s, to inform them why they will not be attending work and how long they anticipate they will be off work. If a practitioner cannot get hold of either of the above, due to it being the middle of the night for example, they should contact someone in theatre. Ms LL said the Registrant was aware of the sickness absence policy, which would have been sent to him following his previous absences between 2017 and 2020.

42. By way of clarification, Ms LL said, “Due to the lack of engagement, Mark Stokes was moved to unpaid leave from 11 April 2020 until 19 April 2020. He was then due a period of annual leave, so he was paid for this with an expectation that he may return to work after his leave. Mark Stokes did not return to work after his leave, so he was moved back to unpaid leave from 3 May 2020 until 26 June 2020.”

43. The Panel, having had regard to the unchallenged evidence provided by Ms LL and Ms TS, together with the employment records from the Trust and supporting documentary evidence, was satisfied that the Registrant did not attend work on dates between 22 April 2020 and 1 July 2020. The Panel was equally satisfied, that the Registrant did not notify his employer of his continued absence.

44. In accordance with the Trust’s Sickness Absence Policy:

“Regular, punctual attendance is an implied term of every employees contract of employment. All employees have a responsibility for achieving and maintaining good attendance to fulfil their contractual hours of work. All employees are required to follow the absence reporting and certification procedures set out in this document, and follow local rules regarding notification of absence where they apply. Where employees fail to follow process and/or fail to produce the appropriate certification and/or do not attend Staff Health and Wellbeing Service appointments, when requested, whether off sick or at work, without an acceptable reason, payment of salary/Trust sick pay will not be made.

All staff should ensure that they are familiar with the departmental rules regarding the reporting of absence.

The individual member of staff should telephone their Manager, or nominated contact.”

45. The Panel was thus satisfied that the Registrant was under a duty to attend work, in accordance with the implied terms of his contract of employment. Furthermore, he had a positive duty to communicate his continued absence to his employer. If not on authorised leave he must expect that he would be rostered and it was incumbent upon him to have contacted his employer, if unsure of his next rostered duty. This he failed to do.

46. Accordingly, the Panel found Particular 1 proved.

Particular 2(a) - proved
2. Between 22 April 2020 and 1 July 2020, you did not cooperate with an investigation carried out by The Dudley Group NHS Foundation Trust, in that:
a. You did not respond to one or more attempts to contact you by telephone and letter in relation to your unauthorised absence from work;

47. On 6 May 2020, Ms TS was appointed by Ms LL to investigate the allegations of: 1) failure to follow reasonable management instruction; and 2) repeated unauthorised absence, - against the Registrant.

48. Ms TS detailed the repeated attempts made to contact the Registrant and said the only contact from him being the returned letter stating “CHECK THE BLOODY POSTCODE!”, referred to above and the missed phone call on 15 April 2020. In fact, it cannot be known if it was actually the Registrant who returned the letter.

49. Ms TS detailed how the Registrant’s unauthorised absence breached the Trust’s sickness and absence policy, which she produced for the Panel. The policy outlines that a practitioner has an obligation to keep in touch with their line manager to report if they will be off duty for any reason. Ms TS said the Registrant failed to do this for a considerable number of days and on a considerable number of occasions.

50. Ms TS told the Panel that, as a senior practitioner, and previous Band 6, the Registrant was aware of the expectation to inform his line manager or theatre manager if he would not be attending work. She said that the Registrant had previous absences which had been escalated through the stages a few times. On those occasions he had always informed the Trust when he was not going to be attending work and was thus clearly aware of the policy. However, Ms TS added, with reference to this most recent significant absence, there had been no communication from him.

51. The Panel was satisfied that the Registrant, as an employee of the Trust, was duty bound to cooperate with an investigation into his alleged misconduct. If that were not the case then a registrant would be able to frustrate any such investigation by simply not engaging with the investigation. The Panel was satisfied that there was an implied duty for an employee to follow a reasonable management instruction. Furthermore, the HCPC’s Standards of Conduct, Performance and Ethics, paragraph 9.6, states:
“You must co-operate with any investigation into your conduct or competence …”

52. The Panel was provided with cogent, clear and unchallenged evidence of the number of times the Registrant failed to respond to attempts by the Trust to get in touch with him between 22 April 2020 and 1 July 2020. Without the Registrant present, and without him having provided any written representations, the Panel could not know why he had chosen not to cooperate with the Trust’s investigation. The Panel was satisfied, however, that his failure to respond to any of the communications by way of letters and voicemails left on his phone, between 22 April 2020 and 1 July 2020, meant that he had not cooperated with the Trust’s investigation into his absences from work.

53. Accordingly, the Panel found Particular 2(a) proved.

Particular 2(b) - not proved
2. Between 22 April 2020 and 1 July 2020, you did not cooperate with an investigation carried out by The Dudley Group NHS Foundation Trust, in that:
12
b. On 24 June 2020, you did not attend the disciplinary hearing which was arranged to address your unauthorised absence from work.

54. The Panel considered the evidence of Ms LL and Ms TS and had regard to the documentation in the hearing bundle. The Panel accepted that on 16 June 2020 a recorded delivery letter was sent by the Trust to the Registrant, inviting him to attend a disciplinary hearing scheduled to take place on 24 June 2020. The Panel was satisfied that this letter was received and signed for, on 15 April 2020 by ‘STOKES.

55. In her oral evidence, Ms LL said that attendance at the disciplinary hearing was not optional and that the Registrant was obligated to attend. The Panel was taken to the Disciplinary Policy which stated that “witnesses are required to comply with the investigation”. Ms LL suggested that included the Registrant. Ms LL said the Registrant had disengaged from the Trust process and Policy, which, she said, is gross misconduct as detailed in the Policy.

56. The Panel accepted the evidence that the Registrant did not attend the disciplinary hearing, arranged to address his unauthorised absence from work. The Panel was not, however, satisfied, on the balance of probabilities, that the Registrant was duty bound to attend the disciplinary hearing and that by not attending that amounted to not cooperating with the investigation. There was nothing in the policy about an obligation to attend such a hearing. The Panel thought Ms LL’s suggestion that the Registrant was included within the term ‘witnesses’ to be tenuous, but in any event the policy did not go so far as to say an employee must attend their disciplinary hearing.

57. The Panel was thus not satisfied on the evidence that, between 14 April 2020 and 1 July 2020, the Registrant did not cooperate with an investigation carried out by the Trust, by virtue of his non-attendance at the disciplinary hearing.

58. Accordingly, the Panel found Particular 2(b) not proved.

Decision on Grounds

59. The Panel next considered whether the facts found proved amounted to misconduct. In so doing, it took into account all the evidence and the submissions made by Mr Carey. The Panel accepted the advice of the Legal Assessor.

60. The Panel found there to be a breach of the 2016 Standards of Conduct, Performance and Ethics applicable to all HCPC registrants, namely:

2.6 You must work in partnership with colleagues…
2.8 You must treat your colleagues in a professional manner showing them respect and consideration.
9.1 You must make sure that your conduct justifies the publics trust and confidence in you and your profession.
9.6 You must co-operate with any investigation into your conduct or competence …

61. The Panel considered the impact of the Registrant’s failures to attend work and not notifying his employer. Ms LL said:
“By Mark Stokes not informing the Trust of his absence, this makes it more difficult to cover his shift. If a practitioner informs you that they will be absent, you can make provisions to get bank, agency or your own staff to cover the extra workload. The potential consequence of an ODP not informing us of their absence is that an operating list cant go ahead, as they are integral to the running of the list, because they are the support to the anaesthetist.”

62. Ms TS told the Panel about the impact of the Registrant’s absence, as follows:
“Mark Stokes is a very experienced and competent practitioner. He was quite heavily relied upon for his skills, knowledge and experience. At the time of Mark Stokesabsence, we were at the beginning of the Covid pandemic. Our SURGE plans involved all members of the operating theatres to be combined with the critical care staff. The idea was to combine their skills to undertake the care of the ventilated patients that we were expecting to get in the operating theatres. All of our resources were vital and necessary, for us to ensure the safety of those patients. Mark Stokes unauthorised and prolonged absence had a big impact and created a gap in both the critical care and anaesthetic and recovery teams. Regardless of the pandemic, Mark Stokes absence would have had the same level of impact. If someone who is employed habitually does not show up to work, that leaves a significant gap in our service, and the patients inevitably suffer.”

63. Ms TS added:
“As a result of Mark Stokes not showing up to work, we had to employ agency and bank at a high cost to cover his shifts, and those who covered were not always familiar with the area. Being an experienced member of the team, Mark Stokesabsence affected the morale of the department, as well as having an impact operationally and financially.”

64. In her Management Statement of Case, Ms TS wrote:
“During Marks absence this role has been covered intermittently by Bank/Agency staff possibly unfamiliar with the area. On occasion shifts are not filled at all which may have a negative effect on patient care provision and team morale …
In particular we have had additional pressure within theatres as we have created a second Intensive Care Unit to manage the COVID pandemic within the theatre footprint. We have been heavily reliant on experienced staff and in particular ODPs to support both this area and the Critical Care Units external to the department.
Marks absence has therefore had a further impact on workload in terms of supporting critically unwell patients and also patients requiring urgent/emergency operative procedures possibly increasing pressure on colleagues where gaps left by his absence have been unable to be covered.
Use of Bank/Agency staff has resulted in a cost pressure to the departmental budget.”

65. In her oral evidence, when asked about the impact of the Registrant being absent, Ms TS said that his skill and knowledge was missed. She added, “with him not being there that impacted on our ability to provide provision for critical patients, we were one man down in a much needed time.”

66. The Panel acknowledged that between April and July 2020, the country and indeed the World was just entering into a completely unprecedented and frightening lockdown, following the declaration of the global COVID-19 pandemic. This was an extremely worrying time for all, but particularly those working in the healthcare sector who were expected to continue to work in full PPE, in the most challenging of circumstances. [redacted] It was unfortunate, however, that the Registrant had not engaged with thisprocess, leaving the Panel unaware of the reasons behind his non-attendance at work and lack of contact with his employer.

67. That said, the Registrant was duty bound to attend work and, in the event that he was not well enough to do so, he was duty bound to have informed his employer. His failure to do so put patients at risk, resulted in an extra burden for his colleagues and left the managers scrabbling around trying to find cover. Furthermore, and crucially, the Registrant played a key role in theatre and without an ODP present it was not possible to carry out theatre lists and this may well have resulted in cancelled operations. This behaviour was exacerbated by his failure to cooperate into the investigation into his conduct by the Trust.

68. The Panel was satisfied that the Registrant’s conduct, as reflected in the facts found proved, fell far short of the standard expected of an ODP and would be considered deplorable by fellow members of the profession and the public alike. He was in breach of a number of important parts of the Standards of Conduct, Performance and Ethics to be followed by all HCPC registrants. His failure to attend work and communicate over a prolonged period put patients at risk of harm. It also impacted upon his work colleagues at a time of heightened anxiety due to the COVID-19 Pandemic, requiring ODPs to be deployed across whole critical care areas within the hospital. The Panel was satisfied the facts found proved were sufficiently serious to amount to misconduct.

Decision on Impairment

69. Having found the statutory ground of misconduct to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise is impaired as a result of that misconduct. In doing so, it took into account the submissions made by Mr Carey, the HCPTS Practice Note, ‘Fitness to Practise Impairment; and accepted the advice of the Legal Assessor.

70. The Panel considered the Registrant’s conduct to be eminently remediable, but only if he chose to engage with this process. Having not done so, there was no evidence before the Panel of insight, remorse or remediation. In such circumstances there was inevitably a high risk of the behaviour being repeated.

71. The Panel considered the case of the case of The Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), which referred to the approach in determining the issues of impairment as follows:

(a) has the registrant in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
(b) Has the registrant in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
(c) Has the registrant in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

72. The Panel considered all these limbs of the Grant test to be engaged in this case. By not attending work and not notifying his employer that he would not be attending work, patients were put at unwarranted risk of harm for the reasons already referred to when the Panel considered the question of misconduct above. In the absence of any evidence of insight, remorse or remediation that risk continues today. Behaving in this way and not cooperating into the investigation into his conduct brings the profession into disrepute and, with the risk of repetition, is likely to do so in the future. Furthermore, putting patents at risk of harm is not putting patient welfare first and represents a breach of this fundamental tenet of the profession, which is likely to be repeated.

73. Having found there to be a risk of harm to patients and a risk that the behaviour would be repeated, the Panel concluded that the Registrant’s current fitness to practice is impaired on public protection grounds.

74. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator and in order to uphold proper professional standards. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made, given the nature and seriousness of the Registrant’s misconduct.

75. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection and public interest grounds and that the allegation of impairment is well founded.

Decision on Sanction

76. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Carey, together with all the evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the HCPC, in its Sanctions Policy (“SP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

77. The Panel considered the aggravating factors in this case to be:

• potential harm to service users;
• a repeated failure to communicate with his employer over a prolonged period of time;
• detrimental effect on work colleagues and the department;
• an absence of insight and/or remorse;
• an absence of remediation;
• a lack of engagement with both his employer and his Regulator.

78. The Panel considered the following mitigating factors:

• no previous disciplinary history before the HCPC;
• no evidence of actual harm to any patients;
• a well regarded, experienced practitioner - considered to be an asset to the operating team;
• [redacted];
• failures occurred during the most extenuating of circumstances, being the first wave of the COVID-19 Pandemic, resulting in very stressful and extremely challenging working conditions for all those in healthcare.

79. In the absence of the Registrant, or any written representations from the Registrant, the Panel had no evidence before it of any other mitigating factors.

80. In light of the seriousness of the conduct, the Panel did not consider this was an appropriate case to take no further action or consider mediation, since neither would protect the public from the risks identified by the Panel or reflect the seriousness of the misconduct.

81. The Panel then considered whether to caution the Registrant. However, the Panel was of the view that such a sanction would not mitigate the risk of harm to patients it had identified. The Panel was also of the view that public confidence in the profession, and the HCPC as its Regulator, would be undermined if such behaviour were dealt with by way of a caution.

82. The Panel next considered whether to place conditions of practice on the Registrant’s registration. The SP states that before imposing conditions a Panel should be satisfied that:

• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.

83. The Panel could not be satisfied of all of the above and also noted from the SP that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:

• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings.

84. This case is characterised by the Registrant’s persistent failure to engage, first with his employer and then with his Regulator. Whilst it is possible that his failings could be remedied, that can only happen when he chooses to engage with his Regulator, shows he has insight and demonstrates steps taken to remediate his misconduct. Without any contact from the Registrant it cannot be known if he would be committed to resolve the issues any conditions would seek to address, or could be trusted to make a determined effort to do so.

85. Accordingly, although it might be thought that conditions of practice might have been an appropriate sanction in this case, without his engagement the Panel had to move on to consider whether to make a Suspension Order. The Panel reminded itself of its earlier findings of a complete absence of insight, remorse or remediation and the real risk of repetition. Furthermore, there is no evidence at the moment to suggest the Registrant is likely to be able to resolve or remedy his failings.

86. The Panel considered a Suspension Order would provide protection to the public for its duration and would be sufficient to maintain public confidence in the profession and the regulatory process, by sending a clear message that a registrant has to communicate with their employer and has to cooperate with an investigation into their conduct. A Suspension Order would also provide the Registrant with an opportunity to re-engage with his Regulator, to demonstrate that he has insight and to identify steps that can be taken to facilitate his return to safe practice as an ODP. Certainly, witnesses described him as a skilled and experienced ODP and it would be most unfortunate, and not in the public interest, if he were lost to the profession completely, as a result of his lack of engagement.

87. Before deciding on the sanction of a Suspension Order, the Panel considered whether a Striking-Off Order was justified in this case and concluded that it was not. A Striking-Off Order is the sanction of last resort and reserved for the most serious cases, where a registrant’s behaviour is fundamentally incompatible with continued registration. That was not the case here. It was important the misconduct was seen in context and the sanction imposed proportional. Had the Registrant engaged with this process then it may well have been possible to formulate conditions of practice. As already mentioned, his failings are remediable, provided he decides to re-engage. His behaviour is not necessarily fundamentally incompatible with continued registration and a Striking-Off Order would, in the Panel’s view, be disproportionate.

88. The Panel thus decided to impose a Suspension Order for a period of four months. This would mark the seriousness of the behaviour, whilst allowing the Registrant a period of time to reflect and hopefully re-engage with the process. The Panel took into account the possible impact this would have upon the Registrant, but concluded that the need to protect the public outweighed his interests and that no other sanction would adequately protect the public or the public interest, until he chose to re-engage with his Regulator.

89. This Order will be reviewed shortly before its expiry. A reviewing panel will be assisted by:

• the Registrant’s engagement with the HCPC and attendance at the review hearing;
• a reflective piece, explaining the Registrant’s behaviour and demonstrating the Registrant’s awareness of the impact of his conduct on patients, colleagues, the profession, the HCPC as Regulator and the general public;
• [redacted];
• evidence of Continuing Professional Development;
• references and testimonials from any paid or unpaid work in any field.

ORDER: The Registrar is directed to suspend the registration of the Mr Mark William Stokes for a period of four months from the date this order comes into effect.

Interim Order
Application

1. The Panel heard submissions from Mr Carey on proceeding to hear an application for an Interim Order in the absence of the Registrant and also on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress.

2. In accordance with the HCPTS Practice Note, the Panel had first to decide whether to proceed to consider the Interim Order application in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor.

Decision

3. The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion the Panel took into account the contents of the Notice of Hearing sent to the Registrant on 10 December 2024, where it is stated: “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 this meant the Registrant was on notice that this was a possible outcome at this hearing.

4. The Panel remained satisfied that the Registrant had waived his right to be present at the hearing for the same reasons given for proceeding with the hearing in his absence, as detailed above. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to participate on a later date because there was no indication that he would do so on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it was clearly in the public interest to consider the Interim Order application today, even if that meant it was conducted in the absence of the Registrant.

5. The Panel made 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. The Panel considered 18 months was appropriate and proportionate taking into account the likely length of any appeal in the event that one is made.

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.

History of Hearings for Mark William Stokes