​​Mamady Konate​

Preliminary Matters

Service

1.    The Panel was provided with a Service Bundle, from which it noted that Notice of the Hearing dated 05 February 2026 (“the Notice”) was sent to the Registrant. The HCPC provided a Certificate confirming the Registrant’s registered status and registered addresses with the HCPC. It was submitted that proper service of the Notice had been carried out.

2.    The Legal Assessor advised the Panel that Rule 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, as amended (“the Rules”) required that the Notice be served on the Registrant to allow for 28 days’ notice of the hearing. He referred the Panel to the HCPTS’ Practice Note ‘Service of Documents’. 

3.    The Panel noted that the Practice Note sets out that service is the sending of the Notice to the proper address, in accordance with Rule 3. The Panel was satisfied that the Notice had been served on the proper address allowing the required period and giving the Registrant information to allow him to attend. 

4.    The Panel was satisfied that the Notice had been properly served on the Registrant within the Rules. 

Proceeding in Absence

5.    Ms Bass applied to the Panel to proceed in the absence of the Registrant or any representative. The Panel was provided with a separate bundle of documents in support of the application, which Ms Bass referred to. 

6.    Ms Bass submitted that the HCPC’s legal representatives had confirmed the Registrant’s email address and the documents showed that the Registrant had accessed the Case Investigation Report sent to him. The HCPC had disclosed its case to the Registrant on 19 August 2025. A draft bundle had been emailed with follow-ups on 23 February 2026 and 20 April 2026. The Final Bundle, Addendum Case Summary, and Hearsay Application had been emailed to the Registrant on 21 May 2026. There had been no request from the Registrant for an adjournment of the hearing and no details of any representative provided. A final bundle had been posted to the Registrant’s address on 22 May 2026, for ‘same day’ delivery, and had been signed for “Mamady” on 23 May 2026. 

7.    The Legal Assessor referred the Panel to Rule 11 and advised the Panel that, if it was satisfied all reasonable efforts had been made to bring the hearing to the Registrant’s notice, the Panel had a discretion to proceed. He referred the Panel to the HCPTS Practice Note ‘Proceeding in the Absence of the Registrant’ and the cases of R v Jones [2002] UKHL 5 and GMC v Adeogba [2016] EWCA 162. He advised the Panel to apply its consideration to the factors from those cases.

8.    The Panel considered that there was some prejudice to the Registrant if it proceeded in his absence. However, the Panel did have an account of events taken from him in the interview account given to the Trust investigator. The Panel also had copies of text messages which the Registrant had provided to the investigator. The Panel concluded that it did have an awareness of the Registrant’s response at the time to the allegations. 

9.    The Panel was satisfied that all reasonable efforts had been taken to notify the Registrant of the hearing. It took into account that there was no request for adjournment before it. The Panel noted that the Registrant had not engaged with the HCPC in the investigation. The Panel considered that it was not likely that, if adjourned, the Registrant would attend on the next occasion. 

10.    The Panel bore in mind that the HCPC had arranged for the attendance of its witness and that there is a public interest in dealing with matters expeditiously. The Allegation related to matters in 2023 and was now of some age. 

11.    The Panel was satisfied that in all the circumstances, it was fair and appropriate to proceed in the absence of the Registrant. 

Background

12.    The Registrant is a registered Operating Department Practitioner (“ODP”) and worked at Queen’s Hospital (“the Hospital”) within the Barking, Havering and Redbridge University Hospitals NHS Trust (“the Trust”) between August 2021 and November 2023. 

13.    It was alleged that on 30 June 2023, the Registrant engaged in sexual activity with Person A whilst he was on shift. Person A was said to be a colleague in the Hospital who had recently finished her shift. It was also alleged that the alleged activity having occurred in an operating theatre, there had been a significant infection control risk. It was alleged that the incident had occurred in a sterile clinical area.

The Allegation

14.    The Panel requested more information from Ms Bass concerning the Allegation. It was raised by the Panel that the documents provided included a copy of an interview with Person A in which she made allegations concerning a lack of consent to the sexual contact, but this did not appear in the charges. Ms Bass took instructions and provided to the Panel the Second Addendum bundle (5 pages). 

15.    Ms Bass informed the Panel that the interview was ‘hearsay’ evidence. It was not proposed that Person A would be called to give oral evidence. The HCPC intended to rely on the interview to demonstrate that there had been sexual contact between the Registrant and Person A, which was instigated by the Registrant.

16.    Ms Bass told the Panel that the Case Investigation report which had been put before the Investigating Committee Panel (“ICP”) had dealt with the issue of a lack of consent. The ICP had taken into account the report and the documentation. The Allegation referred by the ICP did not make reference to a lack of consent. The Trust had not investigated the question of a lack of consent in its investigation. It appeared from the papers that the Trust had a view that Person A had retracted her point about a lack of consent. The Police had not confirmed that the allegation had been retracted but had confirmed that Person A did not support any prosecution and had not provided a statement to the police.

17.    Ms Bass said that the HCPC would have further submissions on the practicalities if the Panel was not content with the Allegation, bearing in mind the age of the case.

Admission of ‘hearsay’ evidence 

18.    Ms Bass applied to the Panel to admit into evidence two interviews with Person A, which had taken place on 08 September 2023 and 26 September 2023 with the investigator from the employing Trust. It was submitted that, although the evidence was ‘hearsay’ evidence on which the HCPC sought to rely as proof of the facts, the Panel could and should admit it to the hearing. Ms Bass referred the Panel to Rules 10(1)(b) and (c) of the Rules. She also referred to the HCPTS Practice Note ‘Evidence’.

19.    Ms Bass relied on the Amended Case Summary and submitted that the Panel could admit the evidence if it was relevant evidence and fair to do so. She submitted that the evidence was relevant, as it was an account of one of the two persons present. Ms Bass submitted that the Registrant had the final hearing bundle with the account since August 2025. He had raised no challenge. The Registrant had not attended the hearing, so waiving the opportunity to question the evidence. The Registrant had admitted that he had sexual contact with Person A. The HCPC intended to call the Trust investigator, who could be asked questions about her interactions with the Registrant and Person A in the course of her investigation and interviews of both parties. 

20.    It was submitted that the particular hearsay evidence was not ‘sole or decisive’. Although there was disagreement over who initiated the sexual contact, there was no dispute that sexual contact occurred. Elements of Person A’s account which were disputed by the Registrant suggested that there may be concerns about potential fabrication. However, it was submitted that the Panel might find mitigating factors in its exploration of these subjects. 

21.    It was submitted that, although a serious allegation, fairness was maintained by the Registrant having accepted that there had been sexual activity. The HCPC submitted that efforts had been made to engage Person A in the investigation. It was submitted that Person A’s account could be fairly admitted in the circumstances of the case.

22.    The Legal Assessor advised the Panel that the Rules provide that it may admit evidence which would be admissible before a civil court under Rule 10(1)(b) and may go further and admit evidence which would not be so admissible under Rule 10(1)(c), if satisfied to do so is necessary to protect the public. He advised that, in accordance with the Civil Evidence Act 1995, evidence which is ‘hearsay’ is not rendered inadmissible in a civil court on the sole basis it is hearsay. It may be ruled inadmissible for other reasons, in addition to being hearsay. He advised the Panel to consider whether the evidence was relevant and it was fair to admit. He referred the Panel to the Practice Note ‘Evidence’ and the criteria to apply, taken from NMC v Thorneycroft [2014] EWHC 1565 (Admin). 

23.    The Panel was satisfied that the evidence was relevant and it was in the interests of a full hearing of the issue that the evidence be included. The Panel was satisfied that it was necessary for protecting the public to admit the evidence, provided it was fair to do so. On the matter of fairness, the Panel considered the guidance in the case of Thorneycroft and the HCPTS Practice Note ‘Evidence’ as follows.

(i) whether the statements were the sole or decisive evidence in support of the charges;

24.    The Panel had evidence in the form of the Registrant’s Account of Events and the note of the record of interview of the Registrant by LB. This was also evidence of the sexual activity having taken place. Therefore, Person A’s interview was not the sole and decisive evidence. This favoured admitting the hearsay evidence. 

(ii) the nature and extent of the challenge to the contents of the statements;

25.    The Registrant had not attended to take part in the hearing and was not represented. So far as the evidence went as to his account of events, the Registrant had stated that sexual activity had occurred. His account contradicted Person A’s account that the activity was non-consensual and by whom the relationship had been instigated. The Panel concluded that there was some challenge to the evidence, which could not be tested in Person A’s absence, which was a factor against admission. 

(iii) whether there was any suggestion that the witnesses had reasons to fabricate their allegations;

26.    The Panel considered that there was a possibility that Person A had a reason to fabricate her allegations. The Registrant had suggested during the investigation that Person A was possibly angry with him after they stopped their relationship. On the other hand, the account of Person A given in the interviews did agree that there had been sexual activity. However, Person A had also alleged that she had not consented and had said ‘no’ to the Registrant’s actions. This was not accepted by the Registrant in his interview. 

27.    The Registrant had provided messages which suggested that Person A was still in contact with him after the incident. Person A had accepted that she had continued messaging. However, she had said in interview that the texting was very different in tone to the Registrant’s actions when they were physically present together, because the Registrant wanted to touch her and kiss her. The Panel took into account that it had been submitted on behalf of the HCPC that it did not rely on Person A’s account that she had not consented, which might have some bearing on a suggestion of fabrication. 

(iv) the seriousness of the charge, taking into account the impact which adverse findings might have on the Appellant’s career;

28.    The Panel was of the view that the charge was serious. Adverse findings might have a serious impact on the Registrant’s career. This was a factor against admitting the evidence.

(v) whether there was a good reason for the non-attendance of the witnesses;

29.    The Panel noted that Person A had expressed concerns over the impact on her mental health of giving evidence and risks of her family becoming aware of the incident. There had been similar concerns expressed to the Police by Person A. Person A had also mentioned the lapse of time since the events to the HCPC’s representatives. 

(vi) whether the [relevant Regulator] had taken reasonable steps to secure their attendance; and

30.    The correspondence provided showed that the HCPC’s representatives had made several contacts with Person A in seeking her involvement as a witness and answering questions about how this could be achieved. Despite these attempts, Person A had not provided a witness statement and had not attended the hearing.

31.    The Panel considered that the HCPC had taken reasonable steps to secure attendance. 

(vii) the fact that the Appellant did not have prior notice that the witness statements were to be read.

32.    The Panel understood that the Registrant would have been on notice of the application to admit hearsay when he was sent the Addendum Case Summary in August 2025.

33.    The Panel considered that the Allegation against the Registrant is serious. However, Person A’s evidence was not the sole and decisive evidence on the matter of sexual activity having occurred. Although admitting Person A’s evidence meant including the evidence of a lack of consent, the HCPC had indicated that it did not intend to rely on this matter. The Panel considered that the HCPC had made reasonable efforts to obtain Person A’s witness statement and evidence. There were important public protection considerations which favoured having as much information before the Panel as possible.

34.    Having considered the factors, the Panel concluded that the hearsay evidence was relevant and it was fair to admit it. The Panel would give the evidence careful scrutiny and take fully into account the circumstances around the evidence when assessing its weight. 

35.    Having decided to admit the evidence of Person A’s two interviews by LB as hearsay evidence, the hearing commenced with the HCPC opening its case and calling LB to give evidence.

36.    LB having adopted her witness statement and exhibits, including the interviews with Person A, the Panel was mindful that the evidence in the interview had included that Person A had not consented to the sexual activity. In the interview, Person A had said that she had said “no” several times but the Registrant had continued. 

37.    The Panel was aware that the matter had been reported to the Police, who had spoken to Person A. However, she had declined to support a prosecution and the Police had decided not to proceed with a prosecution of the Registrant. The HCPC provided a copy of the Crime Report, with a decision to take No Further Action.

38.    At this stage, the evidence before the Panel meant that it had to consider whether the case was being sufficiently charged in light of the allegations Person A made about her lack of consent to sexual activity. 

39.    The Panel heard submissions from Ms Bass on behalf of the HCPC. She submitted that the position of the HCPC remained as determined by the ICP. The HCPC submitted that there was no undercharging and the Allegation did not need to be amended. 

40.    The Legal Assessor referred the Panel to the cases of Ruscillo v CHRE and GMC [2004] EWCA Civ 1356, PSA v NMC & X [2018] EWHC 70 (Admin), and PSA v NMC & Jozi [2015] EWHC 764. He advised the Panel that the courts had been clear as to the Panel’s positive obligation to ensure that the full seriousness of a charge was before it. He also referred the Panel to PSA v HCPC & Doree [2017] EWCA Civ 319 and the power of a panel to make amendments to the charge, even at a late stage. 

41.    The Legal Assessor advised the Panel that, particularly since the Registrant was not present to be heard on the matter of amendment, he would not have notice of any proposed amendment. Further, if the charge was to be the subject of an amendment which added to its seriousness, the Panel should carefully consider its next steps in maintaining the fairness of the proceedings.

42.    The Panel took time to consider whether the case was undercharged in light of Person A’s comments in the interview. It considered that the suggestion that Person A had not consented to sexual activity was a serious matter.

43.    The Panel balanced this with a number of factors. The Panel took into account that Person A’s account was hearsay evidence contained in a record of interview. Person A had at no stage provided a formal witness statement on the matter, with a statement of truth attached. The Registrant’s position, which the Panel had to discern from his Account of Events and his interview by LB, was apparently that there was no lack of consent on Person A’s part. 

44.    The information about Person A’s lack of willingness to engage as a witness was also relevant to the issue of amending the charge, as the Panel considered it was unlikely on present information that she would be willing to provide a witness statement or attend as a witness in future. The Panel considered that the Registrant would have to have the opportunity to respond to an amendment increasing the seriousness of the charge.

45.    Further, the Panel was aware that the allegations related to matters which had occurred almost three years previously. The Panel had the evidence (also hearsay) that the Registrant had accepted engaging in sexual activity with Person A. It also had the hearsay evidence of Person A, which confirmed the sexual activity. The Panel was satisfied that there was still a case to be considered as to the Registrant’s fitness to practise without this additional allegation. 

46.    The Panel concluded that, in all the circumstances, it was not a case which should be referred back to the Regulator for consideration of adding a further charge to the Allegation. 
Evidence

47.    The HCPC relied on the evidence of LB, Director of Quality for the Barts Health NHS Trust. LB at the relevant time had been Director for Nursing Quality at the Trust. She had been asked to conduct an investigation into whether the Registrant had engaged in sexual activity with another member of staff, whether this had occurred whilst on duty, whether the other person had been a junior role to the Registrant, and if there had been a breach of the HCPC’s Ethical Framework. 

48.    LB provided her written witness statement and exhibited documents from the Trust investigation. Her statement referred to interviews conducted with the Registrant and Person A. The documents exhibited by LB included records of two interviews with Person A and one with the Registrant. 

49.    LB gave evidence that she had conducted face to face interviews with Person A (referred to as Colleague A) on two occasions. She said that Person A had informed her that the Registrant had been “persistently flirty” towards her. Person A had gone on to describe an incident on 30 June which had started in the anaesthetic room for operating theatre 14 before continuing in the operating theatre itself. She said the encounter stopped when the Registrant’s name had been called over the intercom. 

50.    LB gave evidence that she also interviewed the Registrant on 14 September 2023. She said that an HR business partner had been present. She stated that the Registrant and LB had discussed the alleged sexual activity which had taken place. She stated that the Registrant confirmed that on 30 June 2023, the Registrant and Person A had engaged in consensual sexual activity in operating theatre 14 at Queen’s Hospital. LB stated that the Registrant provided her with evidence of a conversation on Snapchat he had with Person A after the incident. LB exhibited the messages showing dates between 04 July and 09 July, though not showing the year. 

51.    LB had shown Person A the messages in her second interview because, she said, LB did not wish Person A to be taken by surprise at a later stage in the investigation. LB exhibited the notes of the three interviews.

52.    The HCPC also provided the original referral document and the enclosed witness statement, ‘Account of Events’, signed ‘Konate’ and dated 27 July 2023. 

53.    The HCPC provided in its bundle a copy of the Police Crime Report, with the outcome “not in the public interest to proceed. No Further Action”. The report also stated that there was insufficient evidence to proceed and the victim was not willing to support an investigation. 

54.    The Panel noted that, in the narrative of the Crime Report, as provided with redactions, there was no direct reference to Person A stating that there was a lack of consent. The Report did state that Person A had struggled to process what had happened, had never been in a sexual relationship, and was not sure whether what had happened was normal. In the summary of the Registrant’s interview with Police, he described sexual activity but disputed that it had been non-consensual.

Submissions

55.    Ms Bass referred the Panel to the Addendum Case Summary and the matrix of evidence provided. She submitted that the Panel had evidence of the Registrant’s admission in his interview with LB and his Account of Events. She submitted that the evidence of the interviews with Person A corroborated the evidence in the Registrant’s interview. 

56.    Ms Bass submitted that the evidence was clear that the sexual activity had occurred in an operating theatre. In addition, she submitted that the Panel had the exhibited evidence of the staff rota, together with the evidence in the interviews. Ms Bass submitted that, although the Registrant had been on a break at the time of the sexual activity, he was still at work and being paid by the Trust.

57.    Ms Bass submitted that the Panel should find the facts proved. 

Legal Advice

58.    The Legal Assessor advised the Panel that the burden of proving the facts lay on the HCPC. The Registrant did not have to prove anything. He advised that the HCPC had to prove the facts ‘on the balance of probabilities’ that it was more likely than not that the facts occurred as alleged. The assessment of the evidence was for the Panel. Although the Panel had agreed to admit some evidence which was hearsay evidence, it still had to decide what weight to attach to that evidence in all the circumstances, along with assessing all the evidence. 

59.    The Legal Assessor referred the Panel to the case of Haris v GMC [2021] EWCA Civ 763 to the effect that some behaviour is overtly sexual and does not require a definition.

Decision on Facts

Particular 1(a)

60.    The Panel bore in mind that the burden of proof lay on the HCPC to prove the facts on the balance of probabilities. The Panel took into account the written statement which was headed ‘Account of Events’ and signed ‘Konate’, dated 27 July 2023. The Panel referred to the record of interview of the Registrant by LB on 14 September 2023, which was exhibited by LB. 

61.    In the Account of Events, it was stated that the Registrant on 30 June 2023 had engaged in certain acts which the Panel considered to be of an obviously sexual nature with ‘Colleague A’ in theatre 14. This had included oral sex and digital penetration of Colleague A’s vagina. The Registrant’s account was that the activity had occurred over a 30 to 40 minute period. 

62.    The Panel noted that the record of interview was not signed by the Registrant to confirm accuracy. LB could not assist the Panel as to whether the Registrant had been asked to sign the record. However, the notes recorded an interview carried out a few months after the events and so reasonably close in time. The interview had been carried out as part of a formal investigation, with an HR business partner present. LB exhibited a letter notifying the Registrant of the allegations which were being investigated and invited him to attend a meeting in August 2023, although LB stated she could not recall if the latter took place. 

63.    The Panel took into account LB’s experience and position as a Director of Quality and a registered nurse. It noted her responsible position as the appointed Trust investigator. The Panel found her to be a credible and reliable witness. It accepted that her investigation had been properly carried out and the documents were reliable. 

64.    In the interview the Registrant was recorded as giving a detailed account of activity between himself and ‘Colleague A’ which was of an obviously sexual nature, which related similar acts as in the Account of Events, although in a different order. 

65.    The Panel took into account that the Registrant had not given oral evidence nor provided a formal witness statement with a statement of truth. However, the Account of Events and the responses to interview had been given as part of the Trust’s processes. 

66.    The Registrant had been provided with copies of the evidence which the HCPC relied on in advance of the hearing in around August 2025, but the Panel was not provided with any objections from him to the evidence. The statements amounted to confessions by the Registrant as to having engaged in sexual activity. The Panel concluded that both these accounts were reliable and should be afforded weight as part of the evidence. The Panel considered that the Registrant’s confession as to these acts could be relied on.

67.    In addition, the Panel had admitted into evidence the note of interviews with Person A on 08 September 2023 and 26 September 2023. Again, these interviews had been conducted as part of the formal Trust investigation. In the first interview, Person A confirmed that activity had occurred between her and the Registrant in the operating theatre on 30 June 2023. She referred to the same sexual activity as the Registrant, although she said that she had been saying ‘no’ and the Registrant carried on.

68.    The Panel took into account that it had been told that the HCPC did not rely on Person A’s allegation of a lack of consent but did for the purposes of confirming that the sexual activity took place and that it had been initiated by the Registrant. 

69.    The Panel concluded that this had some effect on the weight it could attach to Person A’s account. However, both the evidence of the Registrant’s statements and Person A’s interviews confirmed that obviously sexual activity had occurred between them on 30 June 2023. The Panel also noted that there had been a report to Police, who had spoken to Person A. In the Crime Report provided, Person A was recorded as having stated that acts had occurred in theatre 14 on 30 June 2023 which were similar to those in the other evidence. The Panel also took into account the Police record of their interview with the Registrant on 18 July 2023, in which the Registrant also described having sexual activity with Person A on 30 June 2023 in operating theatre 14, but he denied that this was non-consensual.

70.    The Panel took into account that in the Account of Events the Registrant had stated that “on the 30thJune I was working in theatre”. The written statement continued that the Registrant had finished one case and was waiting for another patient to arrive. LB exhibited the shift records which had an entry for the Registrant dated 30 June 2023 and ‘Actual Work Shift’ recorded as “12.00 LD (LD)”. 

71.    LB referred in her witness statement to enquiries she undertook with colleagues which had established that both the Registrant and Person A had worked on the same shift on 29 June 2023. She referred to her interview with the Registrant, in which he had stated that the incident had occurred on 30 June 2023, after Person A had finished her shift.

72.    The Panel acknowledged that there were some inconsistencies in the evidence about the date. However, both Person A and the Registrant had been recorded as having stated that the incident had occurred on 30 June 2023, in the evening around 6.00pm. 

73.    The Panel concluded that, on the balance of probabilities, the incident had occurred on 30 June 2023.

74.    The Panel was satisfied, on the balance of probabilities, that the Registrant had engaged in sexual activity with Person A in an Operating Theatre of Queens Hospital in Romford on 30 June 2023. 

75.    The Panel also accepted that the incident had occurred in a sterile area, as the Registrant had accepted in the interview. The Panel also accepted LB’s evidence, taking into account her experience, that a risk had been created thereby to infection prevention and control. 

76.    The Panel found Particular 1(a) of the Allegation proved. 

Particular 1(b)

77.    Having considered the shift records with the Registrant’s Account of Events and the recorded responses in the internal investigation interviews and a summary of the Police interview with the Registrant, the Panel accepted that the Registrant had been on a break between patients on 30 June 2023. Nevertheless, the Panel was satisfied that the Registrant had been on shift at the Hospital at the time. The Panel found that the incident had occurred “during working hours”.

78.    The Panel found Particular 1(b) proved. 

Grounds and Impairment

79.    The Panel, having found the Facts in the Allegation proved, next heard submissions and considered whether the Registrant’s fitness to practise as an Operating Department Practitioner is currently impaired.

80.    Ms Bass submitted that the facts found proved established that the Registrant had acted in a way which fell far short of what would be proper and what the public would expect. 

81.    Ms Bass referred the Panel to the HCPC’s Standards of Conduct, Performance and Ethics (2016) (“the Standards”) and submitted that the Registrant had breached the following:

“Identify and minimise risk

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

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.”

82.    On the issue of misconduct, Ms Bass referred the Panel to the definition in Roylance v GMC (no. 2) [2000] 1 AC 311 that this was a “word of general effect, involving some act or omission which falls short of what would be proper in the circumstances”. 

83.    Ms Bass submitted that the Panel should also note Lord Clyde’s opinion that “the standard of propriety may often by found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

84.    Ms Bass referred to the evidence of LB that a theatre area is meant to be sterile. The operating theatre is a key area and could have been required for immediate use. LB had described a process of cleaning down the area to keep safe from infection. The sexual activity risked harm to patients who might have open wounds or be having procedures such as the insertion of medical devices. 

85.    Ms Bass submitted that the Registrant’s actions had been sufficiently serious to amount to misconduct, the statutory ground. 

86.    If the Panel found misconduct, Ms Bass submitted, it should next consider impairment, guided by the HCPTS Practice Note ‘Fitness to Practise Impairment’. Ms Bass referred to Dame Janet Smith’s formulation of impairment from the 5th Shipman Report. Ms Bass submitted that the Registrant had, by his misconduct, put patients at risk of harm, breached fundamental tenets of the profession, and brought the profession into disrepute.

87.    Ms Bass referred to the Practice Note ‘Fitness to Practise Impairment’. She referred to the factors taken from GMC v Cohen, i.e. to consider: is the misconduct remediable; has it been remedied; is it highly unlikely to be repeated.

88.    In fairness to the Registrant, Ms Bass referred to the documentation in which the Registrant had expressed remorse for his actions. However, she submitted, there was no information on whether he might act similarly in the future. Ms Bass relied on the evidence of the interview of Person A. In that interview, Ms Bass submitted, Person A had suggested that the Registrant had pursued her. Ms Bass submitted that there had been pre-planning on the part of the Registrant. Although, Ms Bass acknowledged that the Registrant, in his interview, had suggested that Person A had pursued him. Ms Bass submitted that there had been no demonstration of steps by the Registrant to avoid repetition.

89.    Ms Bass warned the Panel against placing too much reliance on the exhibited social media messages. She submitted that it was unknown how the messages had been saved, the dates of those messages, and whether there had been other messages sent by the Registrant. 

90.    Ms Bass submitted that this was a case of an individual instigating sexual contact at work. A risk of repetition remained. There had also been a risk of persons walking into the operating theatre and witnessing the sexual activity. Ms Bass submitted that there would be prejudice to public confidence in the profession unless there was a finding of impairment. 

Legal advice

91.    The Legal Assessor referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’. He advised the Panel that first it had to decide whether the facts found proved amounted to misconduct as a statutory ground. He referred to the further words of Lord Clyde in the Roylance case, that the misconduct must be serious professional misconduct. He advised that the same characterisation still applied to the statutory ground: the Panel had to be satisfied that there had been serious professional misconduct.

92.    The Legal Assessor advised that this was a matter for the Panel’s judgement, not involving a burden of proof. Although the courts had described seriousness in various ways, it was a decision for the Panel whether the facts amounted to serious professional misconduct. He advised that misconduct may be of two kinds: it may be conduct in the course of professional practice and it may also be conduct outside of practice of a morally culpable kind which brings disgrace on the professional and on the profession. 

93.    The Legal Assessor advised the Panel that if it was satisfied there was misconduct, it had to next consider whether, again in its judgement, the Registrant’s fitness to practise is currently impaired. He reminded the Panel of the HCPC’s overarching objective and its three strands. He advised the Panel that the Practice Note guides the Panel to consider impairment in terms of the risk of repetition, i.e. the ‘personal’ component, and also the wider public concerns, the ‘public component. 

94.    The Legal Assessor advised the Panel to consider whether there was current impairment. However, to inform that decision, the Panel had to consider the Registrant’s past conduct. He advised the Panel to consider whether the Registrant’s conduct was remediable, whether it had been remedied, and whether it was highly unlikely to be repeated.

95.    The Legal Assessor referred the Panel to the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) and the references to Yeong v GMC [2009] EWHC 1923 (Admin) and to Dame Janet Smith’s formulation for impairment. He advised the Panel to consider whether the misconduct showed impaired fitness to practise in the sense that the Registrant:

a.    has in the past and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b.    has in the past and/or is liable in the future to bring the profession into disrepute; and/or

c.    has in the past and/or is liable in the future to breach one of the fundamental tenets of the profession.

96.    The Legal Assessor further advised that the Panel also had to consider whether the misconduct was so serious that a finding of impairment was required to protect the public and in the wider public interests.

Panel Decision

97.    The Panel considered its findings of fact and the submissions received. It accepted the legal advice and referred to the HCPTS Practice Note ‘Fitness to Practice Impairment’.

98.    The Panel considered that the Registrant’s conduct breached the following professional standards:

“1.7 You must keep your relationships with service users and carers professional.

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

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

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

99.    The Panel accepted LB’s evidence that the Registrant’s conduct, in engaging in sexual activity with Person A in operating theatre 14 at the Hospital, had prejudiced the sterile area by risking the introduction of sweat or other bodily fluids. The Panel noted the evidence that part of the sexual activity had occurred on the operating table.

100.    The Panel concluded that there had been a failure to maintain the sterile area of the operating theatre and a consequent risk of cross-infection to patients. The Panel accepted that patients might be brought to the theatre with open wounds or for procedures which involved surgical incisions to their bodies. 

101.    The Panel noted that the Registrant was recorded as having shown some insight into this, when he stated in his interview with LB, “I’m completely unhappy about what I’ve done in a clean environment, I should have known better and distanced myself from those activities within the department”.

102.    In addition, the Panel considered that there was evidence that the Registrant’s colleagues had been present in the vicinity at the time, as the Registrant described in interview dressing and undressing when people had approached. The Panel considered that colleagues and patients would have been shocked to come across the Registrant engaging in sexual activity in the operating theatre. 

103.    The Panel was clear that it was completely inappropriate for the Registrant, as a registered professional, to have engaged in sexual activity at work and in a sterile area with a colleague. It noted that Person A was not in a registered role and was significantly younger than the Registrant. 

104.    The Panel was satisfied that the Registrant’s conduct found proved in Particulars 1(a) and 1(b) amounted to significant breaches of the HCPC Standards cited. It was satisfied that the conduct had fallen far below the expected standards and was serious professional misconduct. 

105.    The Panel, having found that the statutory ground of misconduct was made out, next considered whether, in its judgement, the Registrant’s fitness to practise is currently impaired. The Panel was mindful that not every finding of misconduct will automatically result in a finding of impairment.

106.    The Panel first considered the risk of the Registrant repeating his misconduct. It took into account that the Registrant had created a risk of harm to patients. He had risked prejudice to public confidence in the profession by actions which were for his own personal gratification. 

107.    The Panel considered that the Registrant’s actions were capable of remedy, by the development and demonstration of appropriate insight and learning. Although the Registrant had demonstrated some apology and recognition of the impact of his actions, in his interview with LB, the Panel decided that this was a very minor recognition and constituted limited insight.

108.    The Panel did not hold the Registrant’s lack of attendance at the hearing against him. However, the Registrant’s failure to engage with the Regulator and to take the opportunity to provide any evidence of remediation had the consequence that the Panel could not be satisfied that any remediation had taken place. The Panel had nothing from the Registrant to show that he had appropriately reflected, developed insight, or demonstrated any appropriate education or learning into the risks of harm created for patients, or the damage to public confidence in the wider profession. The Panel had no information on the Registrant’s current practice, what work, if any he is doing, or how he is performing. 

109.    The Panel concluded that in these circumstances there was a high risk of repetition of the past misconduct by the Registrant. 

110.    Taking into account that risk of repetition, the need for public protection was engaged. In addition, the Panel concluded that the Registrant had in the past risked bringing the profession into disrepute. He had breached fundamental tenets of the profession, those being the requirements to keep professional boundaries and not to put patients at risk of harm. The Panel had decided that there was a high risk of repetition of the misconduct.

111.    The Panel concluded that there was a need for a finding of impairment also on the ‘public’ component of impairment, because of the need to maintain public confidence in the profession and the need to declare and uphold proper professional standards. 

112.    The Panel determined that the Registrant’s fitness to practise is currently impaired. 

Sanction

113.    The Panel having determined that the Registrant’s fitness to practise is impaired, next considered, in accordance with Article 29(3) of the Order, the matter of sanction and its powers pursuant to Articles 29(4) and (5).

Submissions

114.    The Panel heard submissions from Ms Bass and received the legal advice of the Legal Assessor. No further evidence was received at this stage.

115.    Ms Bass submitted to the Panel that the HCPC made no positive submission as to any particular sanction. She submitted that the matter of sanction was for the Panel’s own judgement. Ms Bass referred the Panel to the HCPC Sanctions Policy (March 2026). She drew the Panel’s attention to various parts of the policy. 

116.    Ms Bass submitted that there had been aggravating factors in the case in terms of the potential for harm to patients and the lack of demonstrable insight. She submitted that, as to mitigating factors, the Panel had acknowledged some evidence of remorse and limited insight expressed by the Registrant in his interview by LB.

117.    Ms Bass referred the Panel to the HCPTS Practice Note ‘Professional Boundaries’. She submitted that the Panel may consider there had been an impact on teamworking from the misconduct. Ms Bass reminded the Panel that it had not been asked to consider any charge relating to non-consensual sexual activity, and the Panel should bear this in mind when considering the guidance on sexual misconduct cases in the Sanctions Policy.

Legal advice

118.    The Legal Assessor referred the Panel to the HCPC Sanctions Policy (March 2026). He reminded the Panel of its powers under Articles 29(4) and (5) and advised the Panel that it had to consider taking a step which was proportionate to its findings. The Panel had to balance the interests of the Registrant with the public interest. 

119.    The Legal Assessor advised the Panel to be guided by the Sanctions Policy. The Panel should take into account all relevant factors, including the failure to comply with the Standards, principles of proportionality, and any relevant guidance on serious cases. The Panel was required to make an assessment of the seriousness of the case and take into account any mitigating or aggravating factors. In order to be proportionate, the Panel should consider sanctions starting with the least serious and, moving upward, impose the minimum action required to protect the public, maintain public confidence, and uphold professional standards.

Panel Decision

120.    The Panel considered its findings of fact, misconduct, and impairment. It took into account the HCPC’s submissions and accepted the advice of the Legal Assessor. The Panel paid careful attention to the guidance of the Sanctions Policy.

121.    The Panel turned its mind to the seriousness of the case and whether there were any particular mitigating or aggravating factors. The Panel bore in mind that it had found that the Registrant’s conduct had demonstrated significant breaches of the Standards, in particular as to breaching professional boundaries and putting service users/patients at risk of harm. 

122.    The Panel considered that there was some mitigation in the Registrant having expressed his remorse to LB. During his interview he had expressed some recognition of the risk of harm created. However, it decided that this was of limited weight, in view of the lack of demonstrated development of insight and remediation since the events. 

123.    The Panel considered that the Registrant’s explanations to LB in interview were suggestive of some deflection of responsibility to Person A and missed the point that, as the registered professional ODP, he had a responsibility to ensure the safety of patients in the operating theatre. The Registrant also showed no recognition of the potential impact on the reputation of the wider profession as a result of his behaviour.

124.    In terms of aggravating factors, the Panel had found that the Registrant lacked insight in that, although expressing limited recognition of the risks in interview, he had not provided the Regulator with any demonstration of his development of appropriate insight. The Sanctions Policy stated that a lack of insight may pose a higher risk to service users. 

125.    The Panel had already noted that the Registrant had not provided any evidence of having remediated his misconduct. Referring to the Sanctions Policy, the Panel was not aware of any limitations to the Registrant being able to undertake remediation. The lack of engagement led the Panel to conclude that it could not be satisfied any remediation had occurred. 

126.    The Panel had already stated that the Registrant, by his actions, prejudiced the sterile area of the operating theatre. It had accepted that this created a risk of harm to patients, although there was no evidence of actual harm having occurred. 

127.    The Panel concluded that having created a risk of harm and having not taken the opportunity since the events to demonstrate the development of insight, nor a willingness to undertake remediation, increased the seriousness of the case.

128.    The Panel had determined that there had been a breach of the Standards relating to professional boundaries as a result of the Registrant’s sexual activity with a colleague. It took into account paragraph 105 of the Sanctions Policy, which states:

“105. Within healthcare, effective team working is vital for the health and safety of service users and their carers. As well as causing or risking harm to the team members affected, breaches of professional boundaries between colleagues can undermine effective team working, risking harm to the people that the team exists to serve.”

129.    The Panel considered the HCPTS Practice Note ‘Professional Boundaries’. This Practice Note sets out a number of factors in assessing the seriousness of the breach of boundaries.

130.    The Panel recognised and took into account that it had not been asked to deal with any charge relating to a potential lack of consent on the part of Person A. Therefore, the Panel did not consider that the predatory issues referred to were engaged. However, the Panel did consider that there were relevant risks from the Registrant’s breach, in terms of paragraphs 7 and 8 of the Practice Note. These set out that breaches of professional boundaries are prejudicial to the trust and confidence that members of the public place in professionals and also that such breaches are prejudicial to the teamworking which is vital for the health and safety of service users. 

131.    The Panel also noted the sections on sexual misconduct in the Sanctions Policy, starting from paragraph 117, which states that “sexual misconduct or sexually motivated misconduct is a very serious matter that has a significant impact on the public and public confidence in the profession”.

132.    The Panel was again mindful that it did not have before it any charge relating to a lack of consent by Person A, and therefore the guidance of the Sanctions Policy on predatory aspects was not engaged in the case. However, the Panel was of the view that engaging in sexual activity in the workplace at all was a serious matter and was compounded by the prejudice to the safety of the sterile operating theatre. 

133.    The Panel concluded that the case was one of serious misconduct on the part of the Registrant. 

134.    The Panel turned to the available sanctions. It bore in mind that its purpose is not to punish the Registrant, but to protect the public from persons whose fitness to practise is impaired. The Panel approached the sanctions starting with the least serious. It balanced the Registrant’s interests with the public interest. 

135.    The Panel considered that mediation failed to be on par with the seriousness of the misconduct. It was of the view that there were no exceptional features about the case which would justify taking no action. Taking no action exposed the public to the potential return of the Registrant to unrestricted practice when the Panel had found a high risk of repetition of misconduct. 

136.    The Panel considered that imposing a caution order was insufficient to protect the public. Although this would provide a marker on the Register for up to five years, the Panel concluded that this failed to protect the public adequately in a case where it had found a risk of harm to service users from past misconduct and a high risk of repetition. The Panel had decided that the Registrant had demonstrated limited insight into his misconduct since the investigation of the incident. 

137.    The Panel next considered a conditions of practice order. However, it noted paragraph 154 of the Sanctions Policy, which states:

“154. Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent concerns.”

138.    The Panel had been provided with no indication from the Registrant of a commitment to resolving the concerns in the case. Apart from the limited recognition expressed to LB in his investigation interview, the Registrant had since then not demonstrated the development of any insight or remediation. The Registrant has not engaged with the regulatory process and the Panel had found a high risk of repetition of misconduct. 

139.    The Panel therefore moved on to consider whether it could end the case by suspending the Registrant’s registration. It took into account that this would remove the Registrant from practice for up to one year and thus protect the public. 

140.    The Panel took into account paragraph 170 of the Sanctions Policy, which states:

“170. Where a panel is considering suspension orders, it should first consider whether the conduct found proven indicates behaviour which is fundamentally incompatible with continued registration. Examples of such cases are given in paragraph 179. It may still be necessary to impose a striking off order if public protection and/or the wider public interest considerations require it. If that is the case, the panel should not impose a suspension order, even where some or all of the factors listed below are present (this list is non-exhaustive): 

•     the registrant has insight; 

•     the issues are unlikely to be repeated; or

•     there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings, particularly in cases where the registrant has demonstrated they have begun to do so or given a credible explanation for how they will do so”

141.    The Panel noted that the guidance asked it first to address the question of whether the Registrant’s conduct indicated behaviour which was fundamentally incompatible with continued registration. The Sanctions Policy gave examples in paragraph 179 which included serious breaches of professional boundaries and “conduct which is sexual in nature”. The Panel’s findings were that both of these kinds of behaviour were present in this case. 

142.    Moreover, the Panel found that the factors which indicated that suspension might be suitable were not present. The Panel did not find that the Registrant had insight. It had found that there was a high risk of repetition of misconduct. There was no evidence that the Registrant was likely to be able to resolve or remedy his past failings. 

143.    The Panel considered paragraph 180 of the Sanctions Policy, which states:

“180. A striking off order is likely to be appropriate, whether or not the conduct is included in the examples of such conduct in the list above, where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. Some examples of such conduct include (this list is not exhaustive), where the registrant: 

• lacks insight; 

• continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence (for example, due to not attempting to engage with any remediation); or 

• is unwilling to resolve matters.”

144.    The Panel had found that there was a lack of insight on the part of the Registrant, in his lack of engagement with the Regulator and since the limited recognition expressed in his interview by LB. It had found a risk of repetition and there had been no engagement or expression of willingness to resolve matters. 

145.    The Panel concluded that the Registrant’s behaviour and lack of remediation was incompatible with continued registration and no lesser sanction than striking off the Registrant from the Register served to protect the public from the Registrant, who it had found had committed serious misconduct and failed to engage to demonstrate the development of insight or remediation.

146.    The Panel recognised that making a striking off order may well have an impact in professional reputational and/or financial terms for the Registrant. However, in light of its findings set out above, it decided that the public interest outweighed the Registrant’s interests and its sanction was appropriate and proportionate. 

147.    The Panel decided to impose a Striking Off Order.

The Registrar is directed to strike the name of Mr Mamady Konate from the Register on the date this Order comes into effect.

Application for an Interim Order

1.    The Panel having decided to impose a Striking Off Order, Ms Bass applied to the Panel to impose an Interim Suspension Order pursuant to Article 31 of the Order.

2.    Ms Bass submitted that the Panel should proceed to hear the application notwithstanding the absence of the Registrant. Ms Bass submitted that the Registrant had been warned of the possibility of such an interim order in the Notice of Hearing letter. 

3.    Ms Bass submitted, with regard to the application for an interim order, that since the Panel’s substantive order would not come into effect for 28 days, there would be nothing in place to protect the public during this period. She submitted that this would be inconsistent with the Panel’s decision to impose a Striking Off Order. Therefore, Ms Bass applied for an Interim Suspension Order for 18 months to cover the appeal period.

4.    The Legal Assessor advised the Panel that it had to be satisfied that the Registrant had been given the opportunity to attend and make representations on the interim order and that it was appropriate to proceed in the Registrant’s absence, pursuant to Rule 11. This was a separate decision to the earlier decision to proceed with the substantive hearing. 

5.    The Legal Assessor advised the Panel that it could make an interim order, pursuant to Article 31(2) of the Order, if satisfied to do so was necessary to protect the public or that it was otherwise in the public interest or in the Registrant’s own interests. He advised that the Panel should take into account its findings in the substantive case. The Panel had to decide the form of the interim order, if imposing one, and the duration. The Panel should consider interim conditions of practice before considering interim suspension. 

6.    The Panel was satisfied that the Registrant had notice of the possibility of an interim order being granted and that it was appropriate in all the circumstances to proceed with the application for similar reasons in its decision to proceed with the substantive hearing in his absence.

7.    The Panel took into account that it had found that the Registrant had in the past put patients at risk of harm. It had found that there was a high risk of repetition of misconduct. That meant there was a need to protect the public with an interim order for the period of any appeal. The Panel was satisfied that the maintenance of public confidence in the profession also made an interim order otherwise in the public interest.

8.    The Panel decided that interim conditions of practice would not be sufficient, since it had found a need to protect the public by removal of the Registrant’s registration. The Panel therefore concluded that the interim order must be an Interim Suspension Order because nothing less would sufficiently protect the public or the wider public interest. 

9.    Since any appeal may take time to be decided, the Panel decided to grant the Interim Suspension Order for 18 months to allow sufficient time.

10.    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.

11.    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 ​​Mamady Konate​

Date	Panel	Hearing type	Outcomes / Status
26/05/2026	Conduct and Competence Committee	Final Hearing	Struck off