Ruth Wangithi Gathungu

Preliminary Matters

Panel Member declaration

1.     At the outset of the hearing, Ms Sarah Amadi, the Registrant Panellist Member declared that she was taught by a witness in this case, namely AT. She stated that AT taught her briefly during the first and second year of her university course which she completed in 2018. Ms Amadi stated this amounted to approximately 10 lectures and that AT was not a mentor or personal tutor to her. Ms Amadi confirmed she has not had contact with the witness since leaving university.

2.     The HCPC and the Registrant’s representative Mr Hussain-Dupré confirmed that they had no issue with Ms Amadi sitting as the Registrant Panellist Member, and neither party requested that she recuse herself due to her connection to the witness. The HCPC and the Registrant’s representative confirmed that neither of them required AT to attend the hearing to give oral evidence as her evidence was agreed.

3.     The Panel accepted the Legal Assessor's advice, which made references to the authorities of Locabail (UK) Ltd v Bayfield Properties [2000] IRLR 96, Porter v Magill [2001] UKHL 67 and Suleman v General Optical Council [2023] EWHC 2110 (Admin).

4.     The Chair and Lay Panellist had regard to all of the circumstances and the nature of Ms Amadi’s declaration. The Chair and Lay Panellist determined that Ms Amadi had no personal or pecuniary interest in the case. The Chair and Lay Panellist considered that a fair-minded observer, having considered the relevant facts, would not conclude that there was a real possibility of bias. On the basis that none of the parties raised any objections to Ms Amadi sitting as the Registrant Panellist, the Chair and Lay Panellist concluded that  Ms Amadi should continue to sit on the case.

Privacy

 

5. Mr Hussain-Dupré applied to conduct any parts of the hearing in private, which relate to the Registrant’s health and family life. He submitted that any reference the Registrant health or family life should be held in private but the remainder of the hearing could be heard in public. Ms Patel on behalf of the HCPC indicated that the HCPC had no objection to the application.

 

6. The Panel heard and accepted the advice of the Legal Assessor who referred to the HCPTS Practice Note 'Conducting Hearings in Private'.

 

7. The Panel acknowledged that there is a strong public interest in ensuring that hearings are conducted in public for transparency. However, the Panel agreed that any matters relating to specific issues about the Registrant’s health and family life should be heard in private to protect his private life in that regard.

 

Application to amend

 

8. The HCPC made an application at the outset of the hearing to amend Particulars 14c and 14d of the allegation to read 14a and 14b in order that the allegation runs in the correct numerical/alphabetical order. The HCPC submitted that this was a minor typographical error and did not change the substance of the allegation.

 

9. Mr Hussain-Dupré on behalf of the Registrant did not object to the application.

 

10. The Panel received legal advice in respective of amendments to allegations and determined in the circumstances it would be appropriate to amend the allegation to change the numbering from 14c and 14d to 14a and 14b in order that the allegation runs in the correct numerical/alphabetical order.

 

11. Whilst deliberating on the facts in this case the Panel noted a further typographical error within the allegation, namely the allegation was drafted with the word hysterectomy in particular 12a however the evidence presented suggested that the procedure was in fact a hysteroscopy.

 

12. The Panel provided both parties the opportunity to address it in respect of the typographical error. Both parties agreed that it was appropriate to amend the allegation and neither party took any issue to the late stage at which the amendment was sought.

 

13. The Panel received legal advice in respect of the amendment including reference to the cases of PSA v HCPC & Doree [2017] EWCA Civ 319 and Ahmedsowida v GMC [2021] EWHC 3466.

 

14. The Panel considered that in all the circumstances there was no prejudice to either party in amending the allegation in order to correct the typographical error and correctly reflect the evidence presented to it. Therefore the Panel replaced the word hysterectomy with the word hysteroscopy.

 

 

Admissions

15. The Registrant through her representative confirmed at the outset of the hearing that she wished to make admissions in respect of particulars 13a and 14a of the allegation.

 

16. In line with the Practise Note on Admissions issued by the HCPTS, the Panel accepted the Registrants’ admissions and therefore found particular 13a and 14a of the allegation proved.

Matters arising during the hearing

17. During the hearing the Registrant produced a competency document which was similar to the one contained within the hearing bundle but included further signatures on it in respect of her competencies in the circulatory role whilst at the Three Shires Hospital being signed off. The HCPC did not object to the admission of this document and the Panel considered that the document was relevant and that it would be fair to admit the document into evidence.

18. Due to the document being produced late the HCPC's witness JD had not been asked questions in respect of it, therefore the Registrant’s representative Mr Hussain-Dupré applied to recall witness JD in order to ask her further questions in respect of the document. The Panel considered the application with care and considered in the circumstances that it was be fair to allow JD to be recalled in order that both parties’ cases in respect of the new documentation could be explored with JD.

 

 

 

Background

19. The Registrant is a registered Operating department practitioner (“ODP”).

20. The Registrant interviewed for an ODP position at Three Shires Hospital (“the Hospital”) in December 2022 and commenced her employment at the Hospital with the Circle Group in March 2023.

21. When the Registrant started she was placed on a probation period which normally lasts three months. During this period, the Registrant was working on a supernumerary basis and was expected to complete her mandatory training and the competencies specific to her role. She was allocated a buddy who could sign off her competencies and allow her to graduate from the supernumerary status. The Registrant had a four-week, eight-week and 12-week meeting as part of her probation.

22. At a probationary review meeting on 30 May 2023, the Registrant’s probation period was extended by three months due to concerns with her performance. On 30 June 2023 the Registrant was formally informed that her probation period was extended to 1 September 2023.

23. In June 2023, it transpired that the Registrant had attended the University of Bedford from 2018 to 2022, not 2019 to 2022 as stated on her CV. This discrepancy was raised at a meeting on 29 June 2023.

24. In August 2023 the Registrant informed the Hospital that she wished to resign, having accepted another job. The Registrant had applied for an operating department practitioner role with Kettering General Hospital NHS Foundation Trust. As part of that application, the Registrant was required to provide an employment reference from the Three Shires Hospital. She provided details of her colleague, who was not her line manager.

25. The Registrant was referred to the HCPC by an employee at the Three Shires Hospital on 6 July 2023. In or around August 2023, the Registrant queried whether she needed to declare the investigation to her prospective employers. It was strongly suggested that she should by the HCPC. On 3 September 2023 the Registrant was made an offer of employment with Kettering General Hospital and commenced her role on 2 October 2023. On or around 9 October 2023, her new employers discovered that the Registrant was under investigation by the HCPC. When this was raised with the Registrant, it is alleged that the Registrant had informed her employers that the HCPC had not advised her to divulge this information to her employers.

26. It is alleged that throughout the Registrant’s employment errors were made as set out in the allegations. These span the period of March to August 2023. It is alleged that similar errors were repeated throughout this period and that the number of errors made by the Registrant was higher than expected of a newly qualified operating department practitioner.

The Hearing

27. The amended allegation was put to the Registrant. The Registrant through her representative made admissions to particulars 13a and 14a of the allegation. The Registrant’s representative submitted that allegations 13b, 14b, 15a and 15b were denied. The Registrant’s position in respect of the remaining particulars was neutral, and the Registrant puts the HCPC to proof on these matters.

 

28. The HCPC had witness statements from the following witnesses:

Witness 1: Theatre practitioner/recovery nurse (JM)

Witness 2: Theatre Manager (ND)

Witness 3: Practice Educator (JD)

Witness 4: Theatre Lead (NP)

Witness 5: Deputy Clinical Services Manager (CS)

Witness 6:Theatre Lead and Supporting Learners in Practice assessor and buddy for Registrant (GB)

Witness 7: ODP (KM)

Witness 8: Matron, Kettering General Hospital NHS Foundation Trust (NR)

Witness 9: Deputy Head of Resourcing, Kettering General Hospital NHS Foundation Trust (RB)

Witness 10: Principal Lecturer & Portfolio Lead for the Allied Health Professional courses, University (AT)

 

29. All of the above witnesses provided oral evidence to the Panel save for Witness 10 (AT) whose evidence was agreed by both parties and read by the Panel.

 

30. After the HCPC witnesses completed their evidence, the Panel heard an application from Mr Hussain-Dupré who set out that his client wished to produce a written statement but did not wish to give evidence under oath or affirmation. He requested that the Registrant be allowed to answer questions in respect of the statement that she had produced only by the Panel and not under oath or affirmation. In support of his application, he relied on Rule 10 (4) (c) which states “at the conclusion of the case against the health professional the Chairman shall invite the health professional or his representative to address the Committee and to adduce evidence as to the health professional’s fitness to practise”. He submitted that the rule does not require the Registrant to be under oath or affirmation to address the parties and unlike 10 (4) (d) does not make specific reference to cross examination. He stated that the Registrant would be happy to address the Panel in respect of any questions which arise from the written statement produced by her. Mr Hussain-Dupré acknowledge that this way of providing evidence did not prevent the HCPC applying for an adverse inference to be drawn from the Registrant’s failure to give evidence under oath.

 

31. Ms Patel on behalf of the HCPC opposed the application and stated that this was an unorthodox approach which was unfair to the HCPC. Ms Patel stated none of the HCPC’s witnesses had been able to give evidence without doing this under oath or affirmation. She submitted that the Registrant should not be allowed to respond to any questions from the Panel in respect of her written statement in the manner requested by the Registrant. Ms Patel acknowledged that the Registrant was entitled to put a written statement before the Panel, and she would address the Panel in due course as to the weight to be attached to the statement. Ms Patel also acknowledged that the HCPC could make an application to apply for an adverse inference to be drawn in this case.

 

32. The Panel received legal advice that there was no power to compel a Registrant to give evidence. The Legal Adviser provided advise on Rule 10(4) (c) and also noted that 10(1) (e) states the Committee “may” require evidence to be given on oath or affirmation and for that purpose may administer oaths or affirmations in an appropriate form. The Legal Adviser noted that the word “may” connoted a discretion on the part of the Panel.

 

33. The Panel considered the application with care and considered the legal advice provided. It noted that 10(1) (e) states the Committee “may” require evidence to be given on oath or affirmation, thereby making it a matter of the Panel’s discretion. The Panel noted that the written statement provided by the Registrant was evidence, which had been provided to it on the agreement of the HCPC. It noted, this evidence was not subject to a declaration of truth.

 

34. The Panel considered that any responses to any questions put by the Panel, in respect of the statement provided by the Registrant, would also be evidence. If permissible this evidence would be given to the Panel not under oath or affirmation. The Panel considered that at a later stage in proceedings it could determine what if any weight to attached to the evidence, given its status.

 

35. The Panel therefore considered the central question that it had to answer was whether the Registrant could answer Panel questions in respect of her written statement not under oath. The Panel considered it had discretion to allow this evidence to be given not under oath or affirmation in accordance with rule 10(1) (e). It considered any unfairness to the HCPC could be remedied by their ability not only to make an application to draw an adverse inference but also their ability to address the Panel on the weight to be attached to any answers given, not under oath or affirmation. The Panel considered that the submissions made by the HCPC, in this regard, would be similar, if not identical, to their submissions made in respect of the weight to be attached to the written statement provided by the Registrant, which is not supported by a declaration of truth.

 

36. In all the circumstances, the Panel considered that it had discretion to hear from the Registrant in respect of any questions it had directly relating to the written statement that the Registrant produced, not under oath or affirmation. The Panel determined it would not be appropriate to ask any question that went beyond the content of the statement, as this was not what the application by the Registrant amounted to.

 

37. The Panel determined it had discretion to ask questions in respect of the written statement and hear this evidence not under oath or affirmation. The Panel considered that it could then at a later stage determine the weight to be attached to this evidence and make any decision in respect of any application which may later follow.

 

38. The Panel therefore went on to ask the Registrant questions in respect of the written statement she produced. These questions were confined to the areas addressed by the Registrant in her statement, which were limited to the particulars of the allegation which the Registrant denies. The Registrant was asked about her explanation for writing 2019 on her application, why she approached JM as a referee and what her understanding of the type of reference he was providing was. She was also asked about her email from the HCPC in respect of the investigation and what her understanding of their advice was.

 

39. The Panel heard closing submission from the HCPC addressing the allegation at length. The HCPC applied for an adverse inference to be drawn in respect of the Registrant’s failure to give evidence under oath or affirmation.

 

40. The Panel was provided with written closing submissions by Mr Hussain-Dupré addressing the areas of the allegation which were denied by the Registrant and submitting that to draw an adverse inference in this case would be unfair.

 

41. The Panel were provided with legal advice by the Legal Assessor and are aware that the standard of proof in deciding whether the facts are proved is ‘on the balance of probabilities’. In other words, the Panel must be satisfied that the act or omission alleged is more likely than not to have occurred before it can find it proved. The Panel was advised to look at each particular of the allegation independently and in reaching its decision consider whether the facts set out in the allegation are proved, assess the oral and written evidence, the credibility of the witnesses and attach such weight as they see fit to each piece of evidence.

 

42. The Panel was referred to the following cases Bryne v General Medical Council [2021] EWHC 2237 (Admin), Suddock v NMC [2015] EWHC (Admin) 3612, R(Dutta) v GMC [2020] 1974 (Admin), R (Kuzmin) v General Medical Council [2019] EWHC 2129, Ivey v Genting Casinos [2017] UKSC 67. The Panel were addressed on the weight to be attached to certain evidence and good character. The Panel was also referred to the HCPTS Practice Note on “Evidence” in respect of drawing an adverse inference and ‘Making decisions on a Registrant’s state of mind’ in respect of dishonesty.

 

Decision on Facts

43. Prior to making its decision in respect of each individual allegation the Panel considered the application by the HCPC to draw an adverse inference in respect of the Registrant’s failure to give evidence under oath or affirmation.

44. The Panel took into consideration the legal advice it had been provided, which included the case of R (Kuzmin) v GMC [2019] EWHC 2129 (Admin) (Kuzmin) and reference to the practise note issued by the HCPTS entitled evidence.

45. The Panel considered whether the criteria set out within Kuzmin was met. It reviewed the four criteria set out below in turn;

a. A prima facie case against the registrant has been established by the HCPC. This means that the HCPC has presented sufficient witness and/or documentary evidence to establish the alleged facts which a registrant is invited to respond to;

1. The registrant has been given appropriate notice and an appropriate warning that if they do not give evidence such an inference may be drawn by the panel; an opportunity to explain why it would not be reasonable for the registrant to give evidence and, if it is found that the registrant has no reasonable explanation, an opportunity to give evidence;
2. The registrant has no reasonable explanation for not giving evidence; it is for the panel to determine what is reasonable, but it is likely to be appropriate to take into account contextual, cultural and medical factors of which the panel are aware;
3. The panel must be satisfied that there are no other circumstances in the particular case which would make it unfair to draw such an inference.

46. The Panel considered that a prima facie case against the Registrant has been established by the HCPC. The Registrant has made some admissions to the allegation, and the Panel had been provided with a significant volume of evidence, including written evidence and hearing from nine witnesses on oath.

47. The Panel considered that the Registrant had been given appropriate notice and appropriate warnings that if she does not give evidence, an adverse inference may be drawn. The Panel noted that the notice of hearing sets out this warning clearly and the Registrant is represented and has stated within her submissions that she was aware that it was a possibility that the Panel would draw an adverse inference.

48. The Panel considered that no explanation had been provided by the Registrant as to why she chose not to give evidence under oath or affirmation, there have been no submissions that this was due to any contextual, cultural or medical factors and nothing has been advanced on the Registrant’s behalf as to why she chose to answer questions from the Panel not under oath or affirmation and as a result chose not to be cross examined by the HCPC.

49. The Panel considered that there were no other circumstances in which it would be unfair to draw an adverse inference. While the Registrant did address the Panel in respect of any questions it had relating to her written statement the Panel was only able to ask questions on this narrow basis and none of the answers given to the Panel were given under oath or affirmation. In choosing to address the Panel in this way the HCPC were prevented from cross examining the Registrant and therefore prevented from asking her questions in respect of the disputed allegations some of which relate to dishonesty. The Panel considered given the criteria set out within Kuzmin that it had the discretion to draw an adverse inference and in all the circumstances it was appropriate to draw an adverse inference from the Registrants failure to give evidence under oath or affirmation. The Panel therefore took this determination consideration when deciding whether or not the factual particulars set out below were proved or not.

Particular 1

1. On or around March 2023, during an ENT procedure, you were unable to locate suxamethonium and propofol with the necessary speed in a potential emergency situation.

 

 

50. The Panel had regard to the witness statement of witness NP, dated 4 March 2024. In the witness statement NP confirmed that during an ENT procedure the Registrant was asked by NP to get an ampoule of Suxamenthonium from the fridge and an ampoule of Propofol from the anaesthetic room, due to the patient having breathing difficulties. NP noted that the Registrant should have been very familiar with these drugs as they were taught as part of the Registrant's university course to become an ODP.

 

51. The Panel considered the oral evidence of NP, which the Panel determined was clear and credible. NP confirmed the content of her witness statement and clarified that all the theatres have the same lay out apart from one which is a mirror image. She stated the Registrant indicated that she had understood the instruction she had given as she said yes and then went into the anaesthetic room. In her oral evidence NP also confirmed that a qualified member of staff, should have known that the emergency drug, Suxamenthonium was kept in the fridge.  NP stated that it should only have taken a minute to locate the drugs, and no keys or double checking was required. She confirmed that she felt the Registrant had been away for what felt like 2 or 3 mins. After which time she had to go to retrieve the drugs herself. In cross examination NP confirmed that Propofol is not kept in the refrigerator and agreed that it could be stored in the cupboard, but she stated that there was also an emergency supply on a tray on the side, in the anaesthetic room. She confirmed that the Registrant may not have been aware of where the emergency Propofol was kept.

 

52. The Panel considered the evidence of ND, who confirmed that she had a contemporaneous discussion with NP about this incident, the day after it occurred and confirmed that NP had informed her that the Registrant was unable to locate suxamethonium and propofol with the necessary speed in a potential emergency situation.

 

53. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the Registrant puts the HCPC to proof. The Panel noted in the submissions drafted on behalf of the Registrant, that she submits that there is no evidence to support the allegation that she was in fact looking for Suxomethonium in the cupboard, resulting in delay. Further she submits there was no evidence that she had been shown where other drugs were or had received training or an induction on their location.

 

54. The Panel considered that these submissions did not contradict the issue that the Registrant was unable to locate the suxamethonium and propofol with the necessary speed in a potential emergency situation. It was not advanced by the Registrant that she did not know where the drugs were kept, and the Panel placed weight on the evidence of NP that a qualified member of staff should have known where the emergency drugs were kept.  Further, the Panel noted that NP retrieved the drugs herself having waited for the Registrant for 2-3 minutes, with no explanation provided by the Registrant as to the delay.

 

55. The Panel determined that the HCPC had discharged its burden of proof on the basis of the evidence before it. The Panel considered that the Registrant was unable to locate the two requested medications with the necessary speed in a potential emergency situation, as such the Panel found Particular 1 proved.

 

 

Particular 2a

On or around week commencing 27 March 2023, while in the Minor Operations Theatre, you:

 

1. Were unable to demonstrate knowledge of scrubbing and/or required prompting to meet best practice.

 

56. The Panel considered the evidence of witness GB who provided a witness statement to the Panel dated 28 February 2024. Within the statement GB confirmed that she had concerns about the Registrant’s scrubbing technique which included; not wearing a fresh mask for each case instead of the one worn prior to scrubbing, not using the nail brush for the first scrub, and not moving the hands from wrist to elbows then back again. GB confirmed that she prompted the Registrant to ensure that she was scrubbing correctly to meet best practice and standards utilised within the Hospital. She prompted the Registrant by saying to her "don't forget the scrub technique we discussed" and "remember you are not to go back down the arm only up the arm and then rinse from fingertip to elbow’. GB confirmed that the Registrant's incorrect scrubbing technique created a higher risk of infection to the patient. The evidence of GB was also supported by an undated but likely more contemporaneous statement which GB had exhibited which repeated this concern.

 

 

57. In oral evidence, the Panel considered GB was consistent with the evidence given in her statement. When questioned about any improvements in the Registrant’s ability to scrub over time, GB confirmed that there was improvement, but the Registrant remained inconsistent in her technique. The Panel noted that in the oral evidence of GB she confirmed that scrubbing was a core skill of an ODP.

 

58. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered the evidence of KM and noted that the Registrant’s competency booklet for the circulatory role had been signed off in respect of scrubbing on an unknown date. The Panel noted that KM confirmed in oral evidence that these skills were signed off on an unknown date between June and August 2023, and therefore after March 2023. Further, KM described not feeling comfortable signing off some of the Registrant’s competency skills as she was not confident that the Registrant had in fact met the required standard. In respect of this evidence the Panel therefore considered that limited weight could be attached to the fact that the Registrant’s Competency Booklet had been signed off in the area of scrubbing.

 

59. The Panel considered that the evidence of GB was clear and consistent and demonstrated that on or around week commencing 27 March 2023 the Registrant was unable to demonstrate knowledge of scrubbing and required prompting to meet best practice. As such the Panel found particular 2a proved.

 

Particular 2b

On or around week commencing 27 March 2023, while in the Minor Operations Theatre, you:

 

1. Incorrectly prepared the patient in that you worked from the outer area of the surgical site and moved to the centre of prepared area.

 

60. The Panel considered the witness statement of GB in which she confirmed that the Registrant started to prep the patient working from the site outward in a circular motion. The Registrant then went to go back into the middle of the prepped GB stated that this was ineffective practice as the area was already prepped. GB stated that she had to intervene as the area was prepped and did not require further prepping.

 

61. The Panel noted that GB was clear in her oral evidence about what she had seen and the fact that the Registrant should have been familiar with the prepping techniques as they would have been taught throughout her studies and should have been embedded as part of a core training. GB further confirmed in her oral evidence that she would expect a newly qualified ODP to be comfortable in prepping a patient.  

 

62. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of GB was clear and consistent and demonstrated that the Registrant incorrectly prepared the patient, in that she worked from the outer area of the surgical site and moved to the center of the prepared area, before an intervention by GB. As such the Panel found particular 2b proved.

 

 

Particular 2c

1. Infected the sterile area by touching the non-sterile

 

63. The Panel considered the witness statement of GB dated 28 February 2024, in which she stated that there was an incident involving the Registrant in the minor operations department, when GB stated the Registrant infected the sterile area by touching the non-sterile areas without any situational awareness. She further stated this meant that the Registrant needed to change her gloves multiple times and areas needed to be re-sterilised.
64. The Panel further considered an undated witness statement of GB which was likely to have been made more contemporaneously to the incident. In the undated statement which discusses the same incident GB states “the Registrant draped the patient using an aperture drape and op sheet drape, this was done without compromising the aseptic field.”
65. On the basis that there are clear inconsistencies between the two statements produced by GB and these inconsistencies were not satisfactorily explained during her oral evidence the Panel considered that the HCPC had not satisfied its burden in respect of the Registrant infecting the sterile area by touching the non-sterile area. As such the Panel found that Particular 2c was not proved.

 

Particular 2d

1. Required prompting to complete the perioperative pages of care pathway for minor operations.

 

66. The Panel considered the written statement of GB dated 28 February 2024 in which she stated that the Registrant was struggling with the pace of minor operations and learning the paperwork that she needed to complete following each GB stated it took the Registrant some time to adjust to the paperwork and she was unable to retain the knowledge required to complete the paperwork. GB noted that the Registrant repeatedly asked, 'what do I write in this section?' after every procedure even though the paperwork was the same for each operation.
67. The Panel considered the oral evidence of GB and considered that there was insufficient detail provided by GB as to the requirement to prompt the Registrant to complete the perioperative pages of care pathway for minor operations.
68. The Panel noted the undated statement of GB, which was also inconsistent with her written statement, in that it stated it took the Registrant sometime to adjust to the paperwork and the amount of information that was needed to ensure accurate documentation was written within the notes. However, it stated the Registrant did learn the paperwork and at the week 4 meeting they discussed the pace of Minor Operations and that the pace in Theatres would be much easier helping her gain more confidence with paperwork.
69. The Panel considered that on the evidence before it there was insufficient evidence that the Registrant required prompting to complete pages of the care pathway. The Panel noted the unexplained inconsistencies in GB’s two statements and as a result considered the HCPC had not discharged its burden of proof. The Panel therefore found particular 2d not proved.

 

Particular 3

 

3. On an unknown date, during an open hernia case, you were unable to demonstrate knowledge of instruments

 

70. The Panel considered the evidence of witness CS who provided a witness statement dated 3 March 2024. CS confirmed on 18 May 2023, she worked with the Registrant on an all-day hernia list and helped the Registrant to set up and then assisted her with the cases. CS confirmed the Registrant seemed to struggle with the steps of the case, but she put this down to a lack of confidence and had the Registrant scrub for every other case hoping this would increase her confidence. CS stated in her statement that she hoped that if the Registrant scrubbed for every other case, it would help her anticipate the process and allow her to be a step ahead instead of having to be asked for every item. She hoped this would assist the Registrant in knowing what specific instruments are required for a procedure, how to lay up the trolley with the required instruments and the steps that are carried out generally. For example, prep, drape, blade, diathermy, forceps and scissors.

 

71. CS stated that having such knowledge allows an ODP to anticipate the surgeons next step in the operation and means that they can be prepared. CS confirmed that by the end of this list, the Registrant had begun to anticipate what the next step in the operation was and was able to be ready with the next instrument before the surgeon had to ask for it, however a few days later when they had a hernia case together, CS stated the Registrant did not appear to have retained what she had learnt on the full day hernia list that they did together. CS confirmed that the Registrant needed prompting through the entire process again and struggled to set up the trolley.

 

72. The Panel considered that CS gave clear and reliable evidence and informed the Panel that she would expect an ODP to be able to scrub for an open hernia procedure at approximately four weeks into their role.

 

73. The Panel noted the undated statement of GB in which she confirmed that she had a discussion with CS about this case, supporting CS’s evidence in this regard.

 

74. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel noted the representations from the Registrant’s representative, that given that this allegation relates to an unknown date, the Panel should consider the Competency Booklet, as contemporaneous documentary evidence which confirms that by 19 July 2023 the Registrant could recognise and identify the instruments.

 

75. The Panel considered its previous conclusions in respect of the weight to be attached to the Competency Booklet, particularly given the evidence of KM. The Panel considered that the evidence of CS was clear and consistent and demonstrated that the Registrant was unable to demonstrate knowledge of instruments during the open hernia case. The Panel therefore finds allegation 3 proved.

 

Particular 4a

On 1 May 2023, you:

1. Incorrectly prepared the patient in that you worked from the outer area of the surgical site and moved to the centre of prepared area.

 

76. The Panel considered the witness statement of JD dated 6 February 2024, she confirmed that when she observed the Registrant preparing the patient the Registrant was not following the correct technique for preparing the surgical site. She stated the Registrant was cleaning the surgical site from the outer area and then the Registrant went back into the centre with the swab, which increased the risk of infection. The Panel noted the evidence of JD that this was a red flag for her because she considered it was one of the things that an ODP would have learned during their university course and was a repeated process that she would have done a number of times through her training.

 

77. The Panel considered that JD’s oral evidence was consistent with her written statement, she was able to view the Registrant’s practise and was clear that the way in which the Registrant had prepared the patient was incorrect.

 

78. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent and demonstrated that the Registrant had incorrectly prepared the patient by working from the outer area of the surgical site and moving to the centre of the prepared area. The Panel therefore finds allegation 4a proved.

 

Particular 4b

1. Required prompting on how to drape a

 

79. The Panel considered the witness statement of JD she confirmed that draping was an area of concern for the Registrant. She confirmed that the Registrant was looking to her colleague CS for advice when draping as she was not confident to do the process herself and CS had to explain what to do. JD stated the Registrant was then advised by the surgeon on how to drape. JD confirmed that the Registrant had done the exact procedure before, so she was unsure what was affecting her confidence in the draping procedure. She confirmed that the Registrant's confidence in respective draping was very limited, however, this was something that ought to have been covered on her university course. JD confirmed that she was concerned because the Registrant had been at the hospital for 8 weeks and was still unable to drape a patient properly.
80. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent and demonstrated that the Registrant required prompting on how to drape the patient. The Panel therefore find particular 4b proved.
    1. Were unable to demonstrate knowledge of

 

81. The Panel considered the witness statement of JD she confirmed that she had concerns with the Registrant’s knowledge of surgical instruments. JD stated within her statement that during a minor op’s procedure, the instruments used are basic and she would expect every scrub practitioner who has completed their degree to know the instruments used. JD noted that there were approximately 10 instruments contained within a surgical set and when beginning a scrub procedure, the practitioner should always check the instruments that are on the tray.

 

82. JD stated as a scrub practitioner the Registrant had to know the names of the instruments; however, she stated the Registrant did not know the names. JD stated that the Registrant was pointing at the instruments, however they were the wrong instruments, so she had to point out the correct instruments.

 

83. In oral evidence JD confirmed that each scissor on the tray has a different job, and the Registrant was not able to identify the correct scissors to be used. She explained there are scissor that is designed to cutting sutures, and these pairs of scissors should not be used to cut patient tissue. She stated these are incorrectly given to the surgeon, it could cause unnecessary damage to the patient.

 

84. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent and demonstrated that the Registrant was not able to demonstrate knowledge of instruments during the procedure. The Panel therefore find particular 4c proved.

 

Particular 4d

1. Required prompting to complete

 

85. The Panel considered the witness statement of JD she confirmed that the Registrant was responsible for completing paperwork during the procedures. She confirmed that the Registrant did not record important information on the paperwork, including the date and time of the procedure, and the signatures where it was required on the documentation. JD confirmed that she noted that the Registrant had omitted this information and had to prompt her to complete the paperwork correctly.

 

86. In oral evidence JD confirmed that she had to prompt the Registrant to fill in the gaps in the paperwork and she herself identified the gaps. She confirmed it was common practice to ensure paperwork was correctly completed because it's a legal document.

 

87. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent and demonstrated that the Registrant required prompting to complete paperwork. The Panel therefore find particular 4d proved.

 

 

Particular 5a

On 2 May 2023, at your week 8 probation meeting, you were:

 

1. Not fully competent to scrub for minor operations without support and/or without compromising aseptic field.

 

88. The Panel consider the written statements of both JD and GB who both confirmed that they had a lengthy meeting with the Registrant eight-weeks into her probation period and expressed concerns about the Registrant’s ability to retain information and transfer the skills that she had learned during her university course into practice. The Registrant acknowledge these concerns within the meeting.

 

89. The Panel considered the contemporaneous meeting minutes of the meeting produced by JD. Within the minutes of the meeting under the heading “areas of improvement” the following was recorded “Still not fully competent to scrub for minors needing support for all cases, noted that aseptic field has been compromised not always aware of full surroundings and potential for de-sterilising herself, trolley or the sterile field.”

 

90. The Panel noted the oral evidence of both GB and JD who both confirmed that the Registrant was not fully competent to scrub for minor operations without support and/or without compromising the aseptic field eight weeks into her probation period. The Panel noted the evidence of JD who stated that she would have expected a newly qualified ODP to scrub unassisted in minor cases by week 8.

 

91. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD, GB and the contemporaneous meeting minutes demonstrate that the Registrant was not fully competent to scrub for minor operations without support and without compromising the aseptic field. The Panel therefore found particular 5a proved.

Particular 5b

On 2 May 2023, at your week 8 probation meeting, you were:

b. Unable to demonstrate knowledge of instruments.

92. The Panel considered the contemporaneous meeting minutes of the meeting produced by JD. Within the minutes of the meeting under the heading “areas of improvement” the following was recorded “Not sure of all instrument names still needing some additional guidance.”

93. The Panel noted the written and oral evidence of both JD and GB who confirmed that the Registrant was unable to demonstrate knowledge of instruments eight weeks into her probationary period.

94. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD, GB and the contemporaneous meeting minutes demonstrate that the Registrant was unable to demonstrate knowledge of instruments. The Panel therefore found particular 5b proved.

 

Particular 6a

6) On or around 18 May 2023, you:

 

1. Were unable to demonstrate knowledge of scrubbing.

 

 

95. The Panel considered the witness statement of CS dated 3 March 2024. CS confirmed on 18 May 2023 that she worked with the Registrant for the first time. CS explained that scrubbing is a terms used to describe the entire process and technique used for washing and the setting up of the surgical trolley. CS explain that this was taught throughout the training course via both theory and practical experience, and she was surprised by the Registrant’s lack of basic scrub knowledge. CS confirmed that the Registrant told her that within her previous job she had not had much in the way of support and help, which had a major impact on her confidence to scrub. CS confirmed that she accepted this explanation as a reason for the Registrant’s lack of basic scrub knowledge.

 

96. In oral evidence CS confirmed that she could tell that there was a problem with scrubbing for the Registrant, but she was unable to identify what was causing this problem, as this skill would have been taught during the registrant’s ODP course.

 

97. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered the Competency Booklet produced by the Registrant but noted its previous conclusions as to the weight to be attached to this evidence. The Panel considered that the evidence of CS demonstrated that the Registrant was unable to demonstrate knowledge of scrubbing. The Panel therefore found particular 6a proved.

 

Particular 6b

 

1. Were unable to demonstrate knowledge of instruments

 

98. The Panel considered the witness statement of CS. CS confirmed that the Registrant did not know what some of the basic instruments were called when she went through the instrument checks with her, she confirmed that she would have expected the Registrant to have been familiar with some of the more regularly used instruments. CS explained the difference between the Mayo and the McIndoe Scissor. She explained that this was something that the Registrant would have been taught on her ODP training and she was surprised that the Registrant didn't know the difference between these instruments.

 

99. In oral evidence CS confirmed the usage of the different scissors and the Registrant’s lack of knowledge in this regard. She acknowledged that some equipment had more than one name but explained that the Registrant had a lack of knowledge of basic equipment including names and equipment’s purpose when used in theatre.

 

100.   The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of CS was clear, balanced and consistent with her written statement, and it demonstrated that the Registrant was unable to demonstrate knowledge of instruments.  The Panel therefore found particular 6b proved.

 

Particular 7

 

 

7) On or around 22 and 23 May 2023, were unable to demonstrate knowledge of the instruments within the laparoscopic set.

 

101. The Panel considered the witness statement of CS. CS confirmed that the Registrant while working with her was unable to demonstrate knowledge of the instruments within the laparoscopic set. She explained that on 22 May 2023 she worked with the Registrant and spent time going through the laparoscopic set to ensure that the Registrant knew the operating instruments confidently and could identify them correctly.

 

102. CS noted that when she came to review this set with the Registrant the next day, the Registrant was not able to identify any of the instruments that they had discussed the day previously. CS explained the main instruments used from the Laparoscopy sets include the Johanns grasper and the Petelin. She noted that she had been through these with the Registrant the previous day, but the Registrant was unable to identify the Petelin to her when asked.

 

103.   CS’s oral evidence was consistent with her statement. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of CS was clear and consistent. The Panel therefore found particular 7 proved.

 

Particular 8a

 

8) On 25 May 2023, while completing while completing a theatre checklist, you:

 

1. Required prompting to apply the brakes on the operating table

 

104. The Panel considered the witness statement of JD dated 6 February 2024, in which she stated on 25 May 2023 she met with the Registrant and did basic checks for the theatre. She confirmed that there was a new member of the nursing staff that day and she had asked the Registrant to show them how to check a theatre at the start of the day, however it became clear that the Registrant lacked the knowledge.

 

105. JD confirmed that one of the checks involved checking the mechanical functioning of the operating table, and she confirmed that the Registrant had to check certain positions on the table for emergency reasons. JD confirmed the Registrant moved the operating table and she had to remind the Registrant to put the brakes on. JD stated that this was a concern because a patient could fall off the table if the brakes were not on.

 

106.   JD’s oral evidence was consistent with her statement. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof.

 

107.   The Panel considered that the oral evidence of JD was clear and was consistent with her written statement. The Panel therefore found particular 8a proved.

 

 

Particular 8b

1. Were unable to demonstrate knowledge of the trendelburg position.

 

108. The Panel considered the witness statement of JD in which she set out the purpose of the trendelburg position. JD explained that this positioning is taught during the first module of ODP university training. JD confirmed that the Registrant stated that she knew the position, but when JD prompted her she stated it was clear that the Registrant did not know the position.

 

109. The Panel considered that the oral evidence of JD was consistent with her witness statement. She confirmed in evidence that the Registrant was also not initially able to say the name of the position.

 

110. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent that the Registrant was unable to demonstrate knowledge of the trendelburg position.

 

Particular 8c

 

1. Did not know how to check the flowtron machine and/or why the flowtron machine is used.

 

111. The Panel considered the evidence contained in JD’s witness statement in which she stated that the Registrant had to check the flowtron machine, which prevents deep vein thrombosis. She asked the Registrant why they used this machine and what it prevents, but JD stated the Registrant did not know and lacked any knowledge of the machine.

 

112. The Panel noted that JD did not expand upon this particular of the allegation in her oral evidence to the Panel and there was no further evidence from other witnesses in the case in respect of this particular.

 

113. The Panel considered that it could not be satisfied on the balance of probabilities that the Registrant did not know how to check the flowtron machine as there was no direct evidence of this.

 

114. Further, the Panel considered that the evidence of JD in respect of the Registrant knowing why the machine was used was limited in that it did not explain why JD thought this was the case or what if anything was said by the Registrant that demonstrated that she did not know what the machine was used for. On the basis of the lack of evidence in respect of both matters the Panel considered that the HCPC had not discharged its burden of proof and therefore the Panel found particular 8c not proved.

 

Particular 8d

 

1. Were unable to demonstrate knowledge of basic anatomy of veins and/or arteries.

 

115. The Panel considered the evidence contained in JD's witness statement in which she stated that she had a discussion with the Registrant about the anatomy of veins and arteries. She explained that the Registrant did not know the basic anatomy and differences between the veins and arteries. JD stated that the Registrant did not know why veins get thrombosis and why arteries do not.

 

116. The Panel considered that JD in oral evidence was consistent with her witness statement in respect of the fact that the Registrant was unable to demonstrate knowledge of the basic anatomy of veins and arteries.

 

117. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent that the Registrant was unable to demonstrate knowledge of the anatomy of veins and arteries. The Panel therefore found particular 8d proved.

 

Particular 8e

1. e. Did not check the diathermy machine.
2. The Panel considered the evidence contained in JD's witness statement. JD stated that she spoke with the registrant about the diathermy machine which is used to cauterise vessels that are bleeding. JD stated that the Registrant had told her that she did not know how to check the machine because it was a new machine. However, JD stated the machine only worked in one way and even if it was a new machine the Registrant would be do the same thing to check it and therefore should have had the knowledge to be able to check it. JD further stated that the Registrant refused to check the machine.

 

119. In oral evidence JD was consistent in that she stated the Registrant had refused to check the diathermy machine.

 

120. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent that the Registrant did not check the diathermy machine. The Panel therefore found particular 8e proved.

 

Particular 8f

1. were unable to demonstrate knowledge of instruments.

 

121. The Panel considered the evidence contained in JD's witness statement. JD stated that she had asked the Registrant to go through the instrument set with the new member of staff. JD stated the Registrant should have been able to come out and recall the names of the instruments easily, however, the Registrant lacked knowledge of the instruments, and it appeared as though she had not been shown the instruments before.

 

122. In oral evidence JD was consistent in that she stated the Registrant was unable to demonstrate sufficient knowledge of the instruments.

 

123. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of JD was clear and consistent that the Registrant was unable to demonstrate sufficient knowledge of the instruments. The Panel therefore found particular 8f proved.

 

Particular 9a

On 6 June 2023, during a minor hysteroscopy case, you:

 

1. Took an extended amount of time and/or required prompting to prepare the trolley.

 

124. The Panel considered the witness statement of GB who confirmed that on 6 June 2023 she supervised the Registrant during a hysteroscopy case. She stated that there are only two small trays, therefore minimal instrumentation for this She stated the Registrant took a long time to prepare her trolley seeking advice on the placement of instruments.

 

125. In oral evidence GB was unable to confirm how long the Registrant took, but stated it was longer than expected. GB confirmed that the set up should take approximately 15 minutes for two trays, but she was unable to say the length of time it took the Registrant to set up with any certainty. GB did not provide evidence of any prompting required for the Registrant to complete the task, rather her evidence related to the Registrant seeking advice.

 

126. The Panel considered that there was insufficient evidence to establish that the Registrant took an extended amount of time to prepare the trolley, on the basis that GB was unable to say the length of time that it took the Registrant to prepare the trolley. Further, the Panel considered that there was insufficient evidence that the Registrant required prompting to prepare the trolley and the Panel considered that all that was advanced by GB was that the Registrant was seeking advice on the placement of instruments. On this basis the Panel therefore found particular 9a not proved.

 

Particular 9b

 

1. Required prompting on how to drape a patient.

 

127. The Panel considered the witness statement of GB. GB confirmed that the Registrant needed verbal prompts on how to put the drapes on and where to place The Registrant was reminded of her surgical field as on one occasion she moved her right hand very close to the stack system. GB stated that if she had touched this, it would have desterilised her and compromised the surgical field increasing risk of infection.

 

128. The Panel considered that the oral evidence of GB was consistent with her witness’s statement. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of GB was clear and consistent that the Registrant required prompting on how to drape the patient and as such the Panel found particular 9b proved.

 

Particular 9c

1. Required prompting on what instrument to give the surgeon and / or where to place swabs.

 

129. The Panel considered the witness statement of GB. GB stated within the statement as follows “the Registrant was given prompts throughout the case as to what instrument to give the surgeon next and where to place the swabs”

 

130. In the oral evidence of GB there was no clarification provided as to which instruments that the Registrant required prompting in respect of, nor was there any clarity as to what prompting occurred in respect of swab placement.

 

131. The Panel considered that there was insufficient evidence to establish that the Registrant required prompting on what instrument to give the surgeon and / or where to place swabs, based on the lack of detailed provided. On this basis the Panel therefore found particular 9c not proved.

 

Particular 10a

10) Between May and August 2023, while working in a circulating practitioner role, you required prompting with:

 

1. Setting up theatre.

 

132. The Panel considered the witness statement of CS dated 3 March 2024 in which she stated she was aware that the Registrant had been put in a runner/ circulator role, and even in this role, the Registrant did not make any improvements and still needed prompting when setting up the theatre. CS stated the Registrant required prompting with the setup of theatre, to include the relevant checks on the required equipment, and was reminded to follow the written check list, which is available in each theatre, to support staff, with a list of what the necessary checks are.

 

133. The Panel considered that this evidence was corroborated by contemporaneous meeting minutes of a meeting which took place between the Registrant, ND and GB on 27 July 2023. Within the minutes of the meeting the Registrant acknowledged that there were issues with setting up the theatre, she stated that she had forgotten to look at the folder for set up and a few other things had not gone correctly.

 

134. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of CS and the acknowledgement by the Registrant in the contemporaneous meeting minutes, that the set-up was incorrect, were sufficient to prove the particular of the allegation to the requisite standard. The Panel therefore found particular 10a proved.

 

 

Particular 10b

1. The relevant checks on the required equipment.
2. The Panel considered the witness statement of CS dated 3 March 2024 which stated that the Registrant required prompting with the setup of theatre, to include the relevant checks on the required equipment.

 

136. There was no other evidence before the Panel in respect of the circumstances in which the Registrant is said not to have completed the relevant checks on the required equipment. The Panel noted that within the contemporaneous meeting minutes of a meeting which took place between the Registrant, NP and GB on 27 July 2023, equipment checks were not raised.

 

137. This issue was not expanded upon by CS’s in her oral evidence. The Panel considered that therefore that there was insufficient evidence to establish that the Registrant required prompting on the relevant checks in the required equipment. On this basis the Panel therefore found particular 9b not proved.

 

Particular 10c

1. preparing patients

 

 

138. The Panel considered the witness statement of CS dated 3 March 2024, which states that the Registrant required prompting for the preparation of the patient.

 

139. The Panel noted that CS did not expand on this concern in her written or oral evidence and did not provide any further detail as to the level of prompting, the nature of the prompting or what exactly about the patient preparation process the Registrant required prompting in respect of.

 

 

140. The Panel considered that there was insufficient evidence to establish that the Registrant required prompting to prepare a patient correctly, based on the lack of detailed provided. On this basis the Panel therefore found particular 10b not proved.

 

Particular 10d

1. The diathermy pad placement.

 

 

141. The Panel considered the witness statement of CS dated 3 March 2024, which stated that the Registrant required prompting for diathermy pad placement. CS explained the purpose of the application of a diathermy pad. She noted that they were items used in a variety of surgeries and although they are not always required, depending on the type of surgery and the specific patients’ requirements, they are all discussed and taught during the ODP training.

 

142. The Panel had sight of a more contemporaneous statement of CS which was dated 30 August 2023, this repeated the concern in respect of the diathermy pad placement and the requirement for the Registrant to be prompted. The Panel considered that the two statements were consistent. The Panel also heard oral evidence from CS who further confirmed that the Registrant required prompting to apply diathermy pads.

 

143. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of CS was sufficient to prove the particular of the allegation to the requisite standard. The Panel therefore found particular 10d proved.

 

 

Particular 10e

1. The requirement for DVT pressure devices and/or warming devices.

 

144. The Panel considered the witness statement from CS dated 3 March 2024, which stated that the Registrant required prompting on the requirement for DVT pressure devices and/or warming devices. CS explained the purpose of the devices and noted that they would have been discussed and taught during the ODP training.

 

145. The Panel had sight of a more contemporaneous statement from CS which was dated 30 August 2023. This repeated the concern in respect of prompting in respect of DVT pressure devices and/or warming devices. The Panel considered that the two statements were consistent.

 

 

146. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of CS was sufficient to prove the particular of the allegation to the requisite standard. The Panel therefore found particular 10e proved.

 

Particular 11

 

11. By 27 July 2023, when a review meeting took place with Nichola Dykes and Jodi Dunkley, you were only able to perform a limited number of procedures without supervision and/or assistance which was below the standard expected of a registered ODP who had completed their probationary period.

 

147. The Panel considered the witness statements of JD and ND both confirmed that the Registrant was only able to perform a limited number of procedures without supervision and/or assistance at the point of the Registrants review meeting on 27 July 2023.

 

148. In oral evidence both witnesses confirmed that they would have expected the Registrant to be performing to a higher standard as the Registrant was below the standard expected of a registered ODP who had completed their probationary period.

 

149. The Panel note the contemporaneous meeting minutes of the meeting in which the Registrant accepted “I think it will take longer for me to be able to scrub more.”

 

150. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The panel considered that the evidence of JD and ND and the acknowledgement made by the Registrant in the contemporaneous meeting minutes, were sufficient to prove the particular of the allegation to the requisite standard. The Panel therefore found particular 11 proved.

 

 

Particular 12a

12) On 16 August 2023,

1. You were unable to check the anaesthetic machine without assistance.

 

151. The Panel considered the witness statement of KM, dated 27 August 2024, in which she stated that in anaesthetics, the ODPs check the anaesthetic machines to make sure that they are safe to use. KM stated that on 16 August 2023, the list started slightly later than it was expected. The Registrant was responsible for setting up the area for the list and KM asked the Registrant to check the anaesthetic machine and that it is working. KM stated that a registered ODP, should be competent to check the machine and ensure that it was working correctly. KM stated she asked the Registrant to check the machine, and she said that “you don’t check the machines when you’re on scrub” she replied, “I do if everything else I need to do is done”. The Registrant then said, “I’m employed only on the scrub not anaesthetics”. KM stated she asked if the Registrant was a qualified ODP. The Registrant replied yes so, she said, “you should be able to check it, it gives you instructions with diagrams on what to do.”

 

152. The Panel noted that KM’s evidence was supported by a contemporaneous email sent by KM on 16 August 2023 in which she stated, “She has been primarily on scrub side but today I asked her to check an anaesthetic machine, which has a diagrams and instructions on what to do, she struggled.”

 

153. In oral evidence KM confirmed the content of her witness statement and explained that the machine has a screen on it which shows you diagrams of the machine and tells you what you need to do and how to check it. She stated it was self-explanatory and took you through the process of the checks. KM confirmed that bank staff were not shown how to check the machines but when the machines were first purchased, staff were shown how to use them by a sales rep. KM confirmed that she would expect a competent ODP should be able to check the machine.

 

154. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of KM was clear and was supported by a contemporaneous email. The Panel determined that had the Registrant been able to check the anaesthetic machine without assistance, she would have done so, when asked to do so by KM. On this basis the Panel therefore found particular 12a proved.

 

 

Particular 12b

12) On 16 August 2023,

1. During a hysteroscopy procedure, you required prompting to hand the suction tube with the green end out.

 

155. The Panel considered the witness statement of KM, she stated during the hysteroscopy procedure, the Registrant was acting as a scrub nurse and was responsible for taking the case. The Registrant was in charge of her trolley and setting up the sterile side of the equipment. KM confirmed a stack system is use during a hysteroscopy procedure, and this includes tubing for fluid to be delivered and the suction tubing to drain it away.KM explained that the scrub nurse is responsible for handing out the tubing/wires that need to be connected to the stack system without desterilizing the parts of the instrumentation that will be used on the patient. KM stated that during the procedure, the Registrant was responsible for handing the suction tube to the surgeon. KM stated the Registrant had to hand the suction tube with the green end out and was continually reminded by her and other colleagues to hand the suction tube with the green end out. KM stated the Registrant had taken hysteroscopies with this particular surgeon more than 10 times but still needed someone to instruct her on what to do.

 

156. KM confirmed in oral evidence the content of her statement and noted that the surgeon had become frustrated with the Registrant.

 

157. The Panel is aware that the Registrant does not advance a positive defence in respect of this allegation and notes that the HCPC is put to proof. The Panel considered that the evidence of KM was clear and the Registrant required prompting to hand the suction tube with the green end out. On this basis the Panel therefore found particular 12b proved.

 

 

 

Particular 13b

2022. Your actions at Particular 13a were dishonest in that you knew or ought to have known that your university course started in 2018 and finished in 2022.

 

158. The Panel noted that the Registrant admits that she incorrectly stated on her CV that she had started her university course in 2019 and that she had completed a three-year university course.

 

159. The Panel considered the oral evidence of the HCPC witnesses and the written evidence and took into account the legal test of dishonesty as set out within case law and the HCPTS Practice Note. The Panel first considered what the actual state of the Registrant’s knowledge or belief was as to the facts in which the alleged dishonesty arose. The Panel then went on to consider the question of whether the conduct was honest or dishonest by applying the objective standards of ordinary decent people with full knowledge of the facts of the case. In making its decision the Panel considered its previous decision in respect of drawing an adverse inference from the fact that the Registrant chose not to give evidence under oath or affirmation.

 

160. The Panel noted that the Registrant within her representation explained that she made a typographic error when incorrectly stated on her CV that she had started her university course in 2019 and that she had also stated that she enrolled on the course in 2018. The Registrant explained that to her enrolled in 2018 meant she started the course on that date. When answering questions from the Panel she also stated due to COVID, her course took four years. There was no evidence before the Panel to support the fact that COVID extended the course. Further, the Panel considered it could attach limited weight to the answers given by the Registrant to the Panel, as they were not given under oath or affirmation.

 

161. The Panel considered that there were conflicting versions presented by the Registrant of what happened and why she incorrectly stated on her CV that she had started her university course in 2019. The Panel considered that the Registrant knew the date she started her course, and she knew that it took four years to complete as opposed to three years due to an extension. The Registrant was aware of the importance of her CV being accurate and despite this she wrote 2019 in two separate places on the application.

 

162. The Panel considered that the ordinary decent person would consider the actions of the Registrant to be dishonest. The Panel considered that the Registrant wrote 2019 in two separate areas on the application. The Panel did not accept the Registrant explanation that this was a typographical error and considered that the ordinary decent person would consider that this was an attempt by the Regsitrant to conceal the fact that her course took four years to complete as opposed to three.

 

163. The Panel therefore found Particular 13b proved.

 

 

Particular 14b

164. The Panel noted that the Registrant admits that when applying to Kettering General Hospital and asked for an employment reference, she failed to provide details of anyone at Three Shires Hospital in her original application form and provided details for JM (Colleague A) when he was not her line manager.

 

165. The Panel considered the oral evidence of the HCPC witnesses and the written evidence and took into account the legal test of dishonesty as set out within case law and the HCPTS Practice Note. In making its decision the Panel considered its previous decision in respect of drawing an adverse inference from the fact that the Registrant chose not to give evidence under oath or affirmation.

 

166. The Panel noted that the Registrant within her representation explained that she did not have the original application, which was submitted online, in front of her when providing her referee and did not recall the instructions contained on the form. The Registrant stated she recollects that she knew that there were different types of references and that she thought JM would only provide a character reference. She stated that she did not see the reference provided by JM.

 

167. The Panel considered it could attach limited weight to the Registrants statement and the answers given by the Registrant to the Panel in this regard, as they were not given under oath or affirmation.

 

168. The Panel noted that the Registrant knew that JM was not her line manager and that the instruction within the form for the application were clear in respect of the type of reference to be provided. The application stated that referees should be provided covering the last three years of employment training or other activities, and only in exceptional circumstances should character reference be provided. Further, the Registrant was provided a copy of the reference by JM, which is evidence within the exhibits, contrary to her recollection that she did not see the reference.

 

169. The Panel considered that the ordinary decent person would consider the actions of the Registrant to be dishonest. The Panel considered that the application form was clear, and it did not accept the Registrant’s explanation that she did not have the original application in front of her and did not recall the instructions contained in it. The Panel considered that the ordinary decent person would consider that the Regsitrant was deliberately trying to withhold the information because she may not receive a favorable reference. It noted that the Registrant was provided with a copy of the reference and despite this chose not to make a correction or clear up any confusion in this regard.

 

170. The Panel therefore found Particular 14b proved.

 

Particular 15a

15.a You informed Person B that the HCPC had not advised you to divulge information regarding your HCPC referral to your employer.

 

171. The Panel considered the evidence of RB who produced an email between the Registrant and the HCPC, dated 22 August 2023 which stated as follows;

 

“Although you are not compelled to inform new or prospective employers that you are under investigation by the HCPC, I would strongly suggest that you do for the sake of transparency. The concern which has been raised against you is in relation to your professional competency.”

 

172. NR (Person B) provided a witness statement dated 23 August 2024 and confirmed in oral evidence that she found out that the Registrant was the subject of HCPC proceedings and contacted her immediately, due to her line manager being absent that day. NR stated that the Registrant had told her that the HCPC had told her she could continue with employment and that no instructions were given about letting her employer know about the referral.

 

173. The Panel noted that it is the Registrant’s case advanced through her representative is that she used words to the effect that she had not been told that she had to disclose the fitness to practise case, and the email of 22 August 2023 is open to interpretation and as there is no statutory obligation to disclose a regulatory concern.

 

174. The Panel considered the content of the email and noted that the HCPC provided advise in the strongest terms possible that for the sake of transparency, the Registrant should inform new or prospective employers that she is under investigation.

 

175. The Panel considered that the evidence of NR was clear and taken together with the email sent by the HCPC, the Panel found on the balance of probabilities that it was more likely that the Registrant informed NR that the HCPC had not advised her to divulge information regarding her HCPC referral to her employer.

 

Particular 15b

1. Your actions at Particular 15a were dishonest in that you knew or ought to have known that the HCPC had advised you on 22 August 2023 to inform new or prospective employers that you were under investigation by the HCPC.

 

176. The Panel noted its finding in respect of particular 15a. The Panel considered the evidence of the HCPC witnesses and the HCPC email and took into account the legal test of dishonesty as set out within case law and the HCPTS Practice Note. In making its decision the Panel considered its previous decision in respect of drawing an adverse inference from the fact that the Registrant chose not to give evidence under oath or affirmation.

 

177. The Panel noted that the Registrant through her representative stated the interim order hearing took place on 6 October, at which point she would have been in post for less than a week. The Registrant confirmed during that time she had not met her manager and was scared to speak to anyone else for fear of miscommunication. She confirmed that her line manager had been absent and was returning to work on 10 October 2025. She noted she expressly required her to notify her employer by 16:00 on 10 October 2025.

 

178. The Panel considered it could attach limited weight to the Registrants statement and the answers given by the Registrant to the Panel in this regard, as they were not given under oath or affirmation.

 

179. The Panel noted that the Registrant knew that the HCPC had told her in the strongest possible terms that for the sake of transparency she should inform her new or prospective employers that she is under investigation. The Panel noted that the Registrant had originally been informed that the date for the HCPC hearing would be 2 October 2023. This was changed to 6 October 2023. The Panel considered that it was not until she was confronted on 9 October 2023 that she provided details in respect of matters and told NR that the HCPC had given no instructions about letting her employer know about the referral.

 

180. The Panel considered that the ordinary decent person would consider the actions of the Registrant to be dishonest. The Panel considered that the HCPC informed the Registrant in the strongest possible terms that she ought to disclose to her new employer that she was under investigation, and although she could not be compelled to inform her employer it was misleading to inform NR that she had not been advised to divulge information regarding the HCPC investigation.

 

181. The Panel therefore found Particular 15b proved.

 

Decision on Grounds

182. The Registrant did not give any further evidence and relied on the documentation presented to the panel to date

HCPC submissions on misconduct and impairment

183. Ms Patel relying on her submissions made in her case summary, she referred to the case of Calhaem v GMC and Holton v GMC, Ms Patel submitted that the Panel have a fair sample of the Registrant’s work by which to assess her level of competence. She submitted that the Registrant’s work fell below the standards expected of a reasonably competent ODP. Further, she submitted that the Registrant’s standard of work was unacceptably low when measured against the standards of a reasonably competent ODP.

 

184. Ms Patel referred the panel to the evidence of the HCPC witnesses and noted the evidence they gave in respect of their expectation of a competent ODP and the fact that the Registrant despite being given significant support by her employers was operating at a level clearly below what is expected.

 

185. Ms Patel submitted that there was a fair sample of work before the Panel in the evidence. She noted that the particulars of the allegation relate to a period of time over several months in which the Registrant was given extensions to her probation period.

 

186. In respect of Misconduct Ms Patel referred the Panel to the cases of Roylance v GMC (No.2) [2001] AC 311 and Nandi v GMC [2004] EWHC 2317 (Admin).She submitted that the Panel had found three allegations of dishonesty proved and as such the Registrant had acted in such a way which fell far short of what would be proper in the circumstances and what the public would expect of a HCPC registered ODP.

 

187. Ms Patel invited the Panel to consider the standards that the Registrant was expected to meet, she invited the Panel to conclude that the Registrant had breached the following standards;
188. Standards 2.6, 7.6, 8.1, 8.3, 9.1, 9.2, 9.3, 9.4, and 10.1, of the HCPC Standards of Conduct, Performance and Ethics and Standards January 2016

 

1. Standards 1.1, 2.2, 3.1, 4.1, 4.2, 4.4, 8.1, and 10.1 of the HCPC Standards of Proficiency for Operating Department Practitioners June 2014.
2. In relation to impairment, Ms Patel referred to the test set out by Dame Janet Smith in the fifth shipman report; she submitted that all four limbs were engaged. In respect of the ‘personal component’ of impairment, Ms Patel submitted that the Registrant lacked insight into the failings. She noted the evidence of HCPC witnesses in respect of her attitude towards the concerns about her practice and the offers of additional training. Ms Patel noted that there was lack of information that has been forthcoming from the registrant in terms of acceptance of the allegations and understanding of why this happened and what steps have been taken to prevent such a thing from happening again. She submitted as a result there was a high risk of repetition in this case.

 

189. In relation to the ‘public component’ of impairment, Ms Patel submitted that the Registrant’s fitness to practise was also impaired on the public component.Ms Patel noted that the Registrant was unable to attain the standards required of her as a qualified ODP and had also committed 3 incidences or dishonest conduct. Ms Patel submitted that a reasonable member of the public with knowledge of the facts would be concerned if there were no finding of impairment. She submitted a failure to find impairment may gravely diminish public confidence in the profession.

Registrant’s submissions on misconduct and impairment

190. Mr Hussain-Dupré referred the Panel to the practise note on impairment. He made reference to the case of Sawati v GMC [2022] EWHC 283(admin) and submitted that the Registrant was entitled to produce a robust defence of the allegations, and this should not be held against her. He acknowledged that the decision on lack of competence, misconduct and impairment were matters of judgment for the Panel.

 

191. Mr Hussain-Dupré referred to the Registrant’s current Band 3 role and noted through her overall performance in that role she has addressed the concerns. He submitted there are a number of areas which crossover between the Band 3 role with the role of an ODP.

 

192. Mr Hussain-Dupré noted that the Registrant was able to have all of her competences in the circulatory role signed off with positive feedback within one month of starting the Band 3 role. He submitted the panel has evidence before it which shows that the Registrant was able to get her competencies signed off within the time period deemed relevant by the HCPC witnesses. He noted that there was no patient harm as the Registrant was newly qualified and acting in a supernumerary role. He submitted that the Registrant’s risk of repetition in respect of lack of competence was very low.

 

193. Mr Hussain-Dupré submitted that public interest grounds were not engaged in respect of the competency allegations on the basis that members of the public would acknowledge that the Registrant was to all intents and purposes, still newly qualified and was acting under supervision, as part of a probationary programme at all times. He submitted that there was positive evidence of her competencies being signed off. He therefore submitted that the risk of repetition in respect of those offences was low. He asked that the panel considered the lack of competence and the dishonesty allegations separately in respect of any finding in relation to public interest.

Decision on lack of competence/misconduct

194. On the basis of the facts found proved, the Panel went on to consider whether the Registrant’s conduct amounted to lack of competence and/or misconduct. It took into account all the evidence, including the documentation received which included testimonials, together with the submissions made by Ms Patel on behalf of the HCPC and those made by Mr Hussain-Dupré on behalf of the Registrant.

 

195. The Panel heard and accepted the advice of the Legal Assessor which is a matter of record.

 

196. In considering this matter, the Panel exercised its own judgement. The Panel also took into account the public interest, which includes protection of the public, maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

 

197. When considering if the facts found proved amounted to lack of competence the Panel were aware that this requires a professional standard that is unacceptably low and which has been demonstrated by reference to a fair sample of the Registrant’s work. 

 

198. When considering whether the facts found proved amounted to misconduct, the Panel noted that not all breaches of the HCPC’s “Standards of Performance, Conduct and Ethics” need amount to a finding of misconduct.

 

199. The Panel was made aware of the case ofRoylance v General Medical Council (No 2) [2000] 1 A.C. 311, in which it was said:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

200. In Nandi v GMC [2004] EWHC 2317 (Admin)the Court referred to Roylance where the Court described misconduct as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious” such that it would be “regarded as deplorable by fellow practitioners”.

 

201. The Panel adopted a two-step process in its consideration. Firstly, the Panel considered whether the facts found proved amounted to a lack of competence and/or misconduct. Secondly, and only if the facts proved were found to amount to a lack of competence and/or misconduct, the Panel would go on to consider whether the Registrant’s fitness to practise is currently impaired as a result of that lack of competence and/or misconduct.

 

202. The matters that the Panel have found proved relate to a number of different areas of concern, over a significant period of time and which are repetitive in nature. The Panel was satisfied that given the period of time concerned and the numerous examples of the Registrant’s work that a fair sample of the Registrant’s work had been presented.

 

203. The Panel first considered the Standards of Proficiency forOperating Department Practitioners (June 2014). It considered that the following standards were breached by the Registrant;

1.1, know the limits of their practice and when to seek advice or refer to another professional

2.2, understand what is required of them by the Health and Care Professions Council

3.1, understand the need to maintain high standards of personal and professional conduct

4.1, be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

4.2, be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately

4.4, recognise that they are personally responsible for and must be able to justify their decisions

8.1, be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.

204. The Panel next considered the Standards of Conduct, Performance and Ethics and Standards (January 2016). It considered that the following standards were breached by the Registrant;

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

7.6, You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.

9.1, You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

9.2 You must be honest about your experience, qualifications and skills.

10.1 You must keep full, clear and accurate records for everyone you care for, treat, or provide other services to.

205. The Panel bore in mind that not every instance of falling short of what would be proper in the circumstances, and not every breach of the code, would be sufficiently serious that it could properly be regarded a lack of competence and/or misconduct and careful regard must be had to the context and circumstances of the matters found proved. 

 

206. In respect of particulars found proved with particulars 1-12 of the allegation (namely 1, 2a, 2b, 3, 4a, 4b, 4c, 4d, 5a, 5b, 6a, 6b, 6c, 7, 8a, 8b, 8d, 8e, 9b, 10a, 10d, 10e, 11, 12a) the Panel noted the evidence of the HCPC witness in respect of the expectation of a newly qualified ODP, and the support put in place to assist the Registrant, including multiple extensions of her probationary period. The Panel considered that the Registrant made mistakes in a number of different areas of her practice and despite training and assistance these mistakes continued to occur. The Panel noted the Registrant's inability to hold onto information she had been specifically taught and considered the example of when she was taken through the various instruments in a case and one day later was not able to demonstrate that she had retained that information. The Panel considered in respect of Particular 1 of the allegation that the Registrant’s conduct posed a significant risk to a service user, even though there was no evidence of actual harm having been caused. The Registrant has not provided a significant explanation for the multiple mistakes in her practice, bar the fact that covid impacted her studies, and she felt unsupported. The Panel considered the evidence of the HCPC witnesses and noted that the trust went to great lengths in order to assist the Registrant in strengthening her practice and the Panel considered that the Registrant initially rejected the offer of additional training.

 

207. The panel considered that particulars found proved in particulars 1-12 of the allegation, demonstrated a pattern of behaviour which showed that the Registrant’s standard of work was unacceptably low when measured against the standards of a reasonably competent ODP. The Panel noted its determination that there was a fair sample of the Registrants work, and the panel determined in respect of particulars 1, 2a, 2b, 3, 4a, 4b, 4c, 4d, 5a, 5b, 6a, 6b, 6c, 7, 8a, 8b, 8d, 8e, 9b, 10a, 10d, 10e, 11 and 12a the Registrant demonstrated a lack of competence.

 

208. The Panel went on to considered whether the Registrant’s conduct in particulars 13-15 of the allegation was conduct that fell short of that expected of a registered ODP. In this regard the Panel had to assess whether the Registrant’s conduct was not just misconduct but would be considered as amounting to serious misconduct.

 

209. The panel considered that healthcare professionals are expected and trusted to be honest in both their professional and their personal lives. The Panel considered that fellow ODP’s and other healthcare professionals would find the Registrant’s conduct, which involved the Registrant’s failure to disclose matters either in respect of her education, previous employment or the advice given as part of the HCPC’s investigation to be deplorable. The Panel considered that the Registrant breached a fundamental tenet of the professions namely the professional duty of candour.

 

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

 

211. In reaching its decision on misconduct, the Panel also had in mind the HCPC Standards of Conduct, Performance and Ethics, and Standard of Proficiency identified above that the panel had determined the Registrant had been breached.

 

212. Accordingly, the Panel found misconduct in this case in respect of particulars 13-15 of the allegation.

 

Decision on Impairment

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

 

214. In relation to the personal component, the Panel first considered whether the Registrant’s lack of competence and/or misconduct had put patients at unwarranted risk of harm. The Panel noted its above findings in respect of Particular 1 of the allegation, that the Registrant’s failure to obtain the drugs in an appropriate time scale put the patient at a risk of harm. Further, the Panel considered in respect of all of the areas in which the Registrant’s professional standards fell unacceptably low there was a potential risk of harm to patients, given the Registrant’s role within the operating department.

 

215. The Panel then considered whether the Registrant’s misconduct had brought the ODP profession into disrepute. The Panel was satisfied that three allegations in respect of dishonesty relating to her educational background, employment background and an investigation from her regulator could only bring the ODP profession into disrepute. 

 

216. The Panel was also satisfied that by her misconduct the Registrant had breached one of the fundamental tenets of the ODP profession, which requires practitioners to be honest and trustworthy in their personal and professional behaviour.

 

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

 

218. The Panel considered that the Registrant’s lack of competence and/or misconduct was difficult but not impossible to remediate. The Panel acknowledged that cases involving dishonesty are inevitably more difficult to remediate. However, the Panel have heard limited evidence to suggest that the Registrant has fully reflected on her lack of competence and misconduct and shown remorse. Whilst there has been no repetition of the behaviour the Panel noted that the Registrant has not been in a ODP role for a significant period of time, and while the Band 3 role crosses over in some aspect, it was not the same level in respect of the technical aspects of an ODP role, and does not require the same level of skill in the areas where the Registrant significantly struggled.

 

219. The Panel noted the submissions advanced in respect of the case of Sawati v General Medical Council [2022] EWHC 283. The Panel considered that this was not a case in which a primary fact of dishonesty was disputed and Registrant did not at any stage seek to assert there was bad faith by the HCPC witnesses, such that that the Panel considered that it would not be fair to take into account the Registrant’s denial of the allegation in determining the level of the Registrant’s insight.

 

220. However, the Panel considered that the Registrant had demonstrated limited insight into her lack of competence and misconduct on the basis of limited information before it. There has been no indication by the Registrant that she accepts that her behaviour fell below professional standards or that she understands the consequences for those affected. There is limited information before the Panel that the Registrant has sought to remedy the issues to avoid or mitigate against any future repetition. The panel has not seen any evidence of any courses undertaken by the Registrant in order to strengthen her practice and there has been no reflection produced by the Registrant on the impact of her actions on patients, and the wider profession, particularly in regard to the dishonesty allegations.

 

221. Accordingly, the Panel concluded that was a high risk of repetition. In these circumstances, the Panel concluded that the Registrant’s fitness to practise is impaired on the personal component. 

 

222. In relation to the public component the Panel was satisfied that, given the findings of lack of competence on a wide scale and dishonesty, public confidence in the ODP profession and its regulatory body would be undermined if there were no finding of impairment in this case.

 

223. The Panel was also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case. It considered that a reasonable and informed member of the public would be very concerned if there was no finding of impairment in a case where a registrant has demonstrated a lack of competence on a wide scale and has been found to have committed three allegations of dishonesty, with limited insight and remediation.

 

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

 

225. Accordingly, the Panel found, on both the personal and public component, that the Registrant’s fitness to practise is impaired. 

Sanction

226. Ms Patel reminded the Panel of the general principles of sanction, addressed the question of mitigating and aggravating factors, and referred the Panel to the HCPC Sanctions Policy (2019).

 

227. Ms Patel took the Panel through the available sanction options and noted that the HCPC’s position was that the sanction to be imposed was a matter entirely for the Panel’s own judgement.

 

228. Mr Hussain-Dupré provided the Panel with oral submissions. He noted that the Registrant was subject to an interim order however it was not until the review on the last occasions, when the Registrant was legally represented, that the conditions were varied, as they were previously unworkable. He submitted that following the varying of the conditions the Registrant has not sought alternative employment as an ODP as she is awaiting the outcome of this hearing.

 

229. In respect of the journey of being able to demonstrate insight particularly in relation to the lack of competence allegations, Mr Hussain-Dupré stated that the Registrant’s competencies had been signed off in a number of areas, and this did form part of her remediation. He stated that the Registrant was committed to working in the theatre environment, as demonstrated by her current Band 3 role and she has engaged and sought legal advice in order to seek to remain within the profession.

 

230. Mr Hussain-Dupré stated that the Registrant had complied with previous conditions and was willing to undertake training. In respect of the allegations, he noted the panel's decision that there was potential for harm but submitted that there was no actual harm caused in this particular case. He submitted that the Registrant was working on a supernumerary basis at the Trust at the time of the allegations.

 

231. Mr Hussain-Dupré addressed the panel on the fact that the Registrant had not given evidence which went to the issues of lack of insight and remorse. He stated that the Registrant had been through a difficult journey of almost two years of being on the conditions of practise order, which effectively suspended her practise because it was not workable and that she had a very difficult time when working as an ODP. He stated it was very difficult for the Registrant to suddenly have a damoclesian conversion in light of the panel's findings and it would be unrealistic for her to accept those findings wholeheartedly given the length of time. He stated she therefore has not been able to demonstrate a level of insight that the panel would need.

 

232. Mr Hussain-Dupré submitted that in relation to the issues regarding lack of competency, the Panel should consider whether or not the dishonesty or part of the dishonesty concerns could be remediated,  by giving the Registrant a further opportunity to remediate the lack of competence concerns. He stated by allowing her to address lack of competence concerns she would be able to address the dishonesty and move forward as a competent practitioner in all areas of practise. Mr Hussain-Dupré  suggested that a Conditions of Practise order would mark the seriousness of the finding of the panel and allow the Registrant to go on to fully remediate the competency issues and then the misconduct. He stated that the Panel have regard to paragraph 105 the Sanction Policy and consider whether a training requirement should be imposed. He submitted that this would allow for a period of review in which the Registrant could demonstrate she has reflected on the lack of competence and dishonesty concerns. He submitted that such an order unlike a suspension order it would allow the Registrant to start remediating straight away. He submitted that a strike off order was disproportionate in the circumstances.

 

233. The Panel took into account the HCPC Sanctions Policy and accepted the advice of the Legal Assessor.

 

234. The Panel bore in mind that sanction is a matter for its own independent judgement and that the purpose of a sanction is not to punish the Registrant but to uphold the public interest. Further, any sanction must be proportionate, so that any order it makes is the least restrictive order that would uphold the public interest.

 

235. The Panel bore in mind that the HCPC’s overriding objective is to protect the public. A panel must consider the risk the Registrant may pose in the future and decide what degree of public protection is required. The Panel must also give appropriate weight to the public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

 

236. The Panel took into account the Registrant’s testimonials and the statement placed before it.

 

237. The Panel considered its previous finding in respect of the Registrant’s insight and remediation and its determinations that there was a high risk of repetition in this case. The Panel noted its previous conclusions in respect of the risk of harm to patients by the Registrant’s lack of competence

 

238. The Panel noted that dishonesty in the misconduct allegation involved the Registrant being dishonest in respect of the length of time it took to qualify, her employment reference and what she had been advised by the HCPC in relation to its investigation. The Panel was of the view that multiple incidents of dishonesty are more serious. The Panel also took into account that the Registrant took an active rather than a passive role in her dishonesty, and she continued to conceal her dishonesty while working at the Trust, until the matters came to light through the discovery by her employers. There was no admission of the dishonesty allegations at any stage.

 

239. The Panel referred to the guidance in the HCPTS Sanctions Policy concerning serious cases. The Panel concluded that the Registrant’s conduct involved dishonesty. The Panel’s conclusion, applying the Sanctions Policy, was that the Registrant’s case clearly fell into the category of serious cases.

 

240. The Panel considered that the Registrant has not expressed genuine remorse or demonstrated any insight into her failings. The Registrant has not sought to reflect on her behaviour or speak about the potential impact her behaviour could have had on patients, her colleagues, or the reputation of the profession.

 

241. The Panel therefore concluded that there was no insight or expression of remorse from the Registrant, nor was there evidence of remediation.

 

242. The Panel considered that the following aggravating factors were present;

• Potential harm to service users;
• The Registrant has very limited insight as described in the Panel’s decision on impairment;
• The Registrant has provided limited evidence of remediation;

 

• There have been multiple allegations of dishonesty found proved suggesting a repetition of dishonest conduct
• The dishonesty was committed to enable the Registrant to derive a personal benefit (enabling her to create a false impression about the time it took her to qualify, to avoid a poor employment reference and to mislead her employer about the advice provided by the HCPC)
• The Registrant failed to fully engage with support provided by the Trust (for example the Registrant initially turned down the offer of further training).

 

243. The Panel considered that the following mitigating factors were present:

• The Registrant was newly qualified at the time of the competency concerns;
• There are positive testimonials provided in respect of the Registrant;
• Since the incident no further concerns have been raised;
• The Registrant made admissions in respect of two of the allegations.

244. The Panel concluded it could give limited weight to the mitigating factors on the basis that they did not mitigate the multiple incidents of dishonesty in this case. The Panel was mindful that the mitigation set out above is of considerably less significance in regulatory proceedings where protection of the public is the overarching consideration.

 

245. The Panel were able to give little weight to the testimonials provided by the Registrant because the individuals providing the references had not stated that they were aware of the dishonesty allegations. Although the Registrant made admissions to some of the factual particulars, she did not demonstrate to the Panel that she has taken personal responsibility for that conduct and addressed the issues which underlie the admitted facts. The Panel also gave little weight to the training completed by the Registrant, as this was mandatory training as part of her role and did not demonstrate an attempt by the Registrant to strengthen her practise.

 

246. The Panel concluded that the gravity of the aggravating factors in this case far outweighed the mitigating factors.

 

247. The Panel considered the sanctions in ascending level of severity in order to ensure that its approach was proportionate.

 

248. The Panel decided that neither mediation nor taking no action would be appropriate. The Panel decided that due to the gravity of its findings in this case a sanction was necessary.

 

249. The Panel considered the factors in the Sanctions Policy in relation to a Caution Order. It concluded that the issues in this case were not minor in nature. There was very limited insight, and the Panel had concluded that there remained a risk of repetition and a risk of harm to service users. The Panel concluded that a Caution Order was not therefore sufficient or appropriate in the circumstances.

 

250. The Panel next considered a Conditions of Practice Order. The most serious matter in this case is the Panel’s finding that the Registrant acted dishonestly, and the Panel was unable to formulate conditions of practice which could address the risk that she would repeat dishonest conduct, particularly in light of the multiple findings of dishonesty.

 

251. The Panel was also of the view that conditions of practice would not reflect the gravity of its findings in this case, nor would such an order address the concerns regarding the wider public interest.

 

252. The Panel referred to paragraph 109 of the Sanctions Policy. It was not satisfied that the Registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. These factors indicated that a conditions of practice order was not appropriate in this case.

 

253. The Panel carefully considered whether an order of suspension would be sufficient to protect the public and address the public interest concerns in this case.

 

254. The Panel referred to paragraph 121 of the Sanctions Policy. The concerns represent serious breaches of the HCPC’s Standards of Conduct, Performance and Ethics. The Panel has found that the Registrant has demonstrated very limited insight and that there is a risk of repetition. The Panel considered that there was no evidence before it to suggest that the Registrant was likely to be willing or able to resolve or remedy the misconduct (dishonesty). While the Panel noted that the lack of competence allegations were remedial with further training and insight, the Panel considered that there was no evidence before it of any insight or remediation in respect of the multiple allegations of dishonesty.

 

255. The Panel also had regard to the aggravating features and considered that a Suspension Order would be insufficient to uphold and maintain professional standards and to maintain confidence in the profession.

 

256. The Panel concluded that a Suspension Order would not be sufficient to protect the public and the wider public interest.

 

257. The Panel concluded that the only appropriate and proportionate sanction in this case was a Striking Off Order. The Panel had regard to paragraphs 56-58 of the Sanctions Policy. The Panel reminded itself that dishonesty undermines public confidence in the profession, that it can impact public safety, and had the potential to do so in this case, and that it can have a significant impact on the trust placed in the Registrant.

 

258. The Panel also considered paragraph 130 of the Sanctions Policy. A striking off order is the sanction of last resort for serious, persistent, deliberate or reckless acts and this may involve dishonesty.

 

259. The Panel also considered 131 of the Sanctions Policy. This was a case where the Registrant had demonstrated very limited insight. Although the Registrant has shown that the lack of competence allegations are potentially remediable, there was nothing before the Panel to indicate she is willing to engage in the difficult task of remedying her dishonesty.

 

260. Given the gravity of the Registrant’s misconduct together with the very limited insight, the Panel considered that the Registrant’s dishonesty was fundamentally incompatible with registration as a health professional on the HCPC register.

 

261. The Panel bore in mind the requirement that the sanction it imposes must be proportionate. The Registrant is currently working within a Band 3 role and as a result of the Panel’s decision she will not be able to apply for roles as an ODP, which is likely to have a financial impact on her. However, the Panel concluded that any lesser sanction would be insufficient to uphold and maintain public confidence in the profession and the regulatory process. The Panel therefore decided that the public interest outweighed the Registrant’s interests.

 

262. The Panel considered that it would be proportionate to impose a Striking Off Order in this case given that the Registrant showed limited insight into multiple allegations of dishonesty.

 

263. The Panel concluded that the appropriate and proportionate order was a Striking Off Order.

ORDER: That the Registrar is directed to strike the name of Ruth Wangithi Gathungu from the Register on the date this order comes into effect

Interim Order

 

Application

 

1. Ms Patel made an application for an Interim Suspension Order for 18 months to cover the appeal period and allow for any appeal to be disposed of. Ms Patel confirmed that the Registrant had been notified of the ability of the Panel to make an Interim Order after imposing a sanction.

2. Ms Patel submitted that an Interim Order was necessary for the protection of the public and was otherwise in the public interest. In support of her submissions that those grounds are satisfied, she relied on the Panel’s decision made in relation to the substantive issue.

3.Mr Hussain-Dupré on behalf of the Registrant, noted that the Registrant is not currently working in a registered role and would not be able to secure a role in the 28 days period. He stated that he had nothing further to add as to the appropriateness of such an order. 

 

Decision

 

4. The Panel heard and accepted the advice of the Legal Assessor who referred the Panel to the HCPTS Practice Note on Interim Orders dated September 2024. She advised that the Panel may impose an Interim Order if it is necessary for the protection of the public, is otherwise in the public interest, or is in the interests of the Registrant. 

 

5. Having regard to the Interim Orders Practice Note, the Panel noted its decision on impairment in which it decided that there is a high risk of repetition. Consequently, the Panel concluded that an Interim Order is necessary for protection of members of the public. An Interim Order is also otherwise in the public interest for the same reasons explained by the Panel for its substantive sanction decision.

 

6. The Panel considered whether Interim Conditions of Practice would be a sufficient restriction during the appeal period but concluded that they would not provide sufficient protection for the public for the same reasons as set out in the substantive decision.

 

7.The Panel therefore concluded that an Interim Suspension Order should be made to cover the appeal period and allow for any appeal to be disposed of.

 

8. 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 Striking Off Order, the Interim Suspension Order will fall away when the time within which she could have commenced an appeal expires.

 

9. 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.

 

10. 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 Ruth Wangithi Gathungu

Date	Panel	Hearing type	Outcomes / Status
01/09/2025	Conduct and Competence Committee	Final Hearing	Struck off