Allegations (as amended)
In the course of your employment as an Operating Department Practitioner (ODP) with Salisbury NHS Foundation Trust;
1. On or around 21 June 2013, whilst on duty, you:
a) Went missing from 17:15hrs.
b) Left emergency bleeps unattended.
c) Were asleep found collapsed at approximately 18:00hrs.
d) Were asleep found collapsed at approximately at 19:15hrs.
e) Did not recognise you were not fit to work.
g) Were unsteady on your feet.
2. Your actions in 1.a.b.c.d.e f and/or g put patients at risk.
3. On or around 12 July 2013, whilst on duty as the on call ODP, and as the anaesthetic practitioner in the emergency theatre you:
a) Left Dr A on her own on 10 or more occasions.
b) Did not communicate your absence and/or the reasons for their frequency to Dr A.
c) Were unable to carry out your duties and/or respond to emergency calls.
d) Were disoriented.
e) were unfocused.
f) were uncoordinated, dropping your gloves on the floor repeatedly.
g) Were unsteady on your feet.
h) Ignored Dr A when she spoke to you.
4. Your actions in 3.a.b.c.d.e. f and/or g and/or h put patients and/or staff at risk.
5. The matters described in paragraphs 1 - 4 constitute misconduct and/or lack of competence.
6. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired
1. The Panel found that there had been good service of these proceedings, in accordance with rule 3 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 by notice dated 22 January 2015.
2. The HCPC applied at the commencement of the hearing for leave to amend the factual particulars as set out above, to clarify the HCPC’s case in accordance with the evidence. Notice of the proposed amendments was provided to the Registrant on 18 June 2014 and no objection has been raised by him. The amendments serve to focus the factual particulars and more accurately reflect the HCPC’s evidence. The Panel therefore granted the amendment application.
3. The Panel accepted an application for additional documents which formed the Registrant’s evidence to be accepted. The Panel accepted the Legal Assessor’s advice and accepted the documents supplied by the Registrant.
4. The Panel has considered the HCPC Practice Note on Conducting Hearings in Private and determined that this hearing should proceed partly in private, because significant issues arise directly concerning the Registrant’s health.
5. The allegation against the Registrant will be dealt with in three stages. The Panel has considered these stages sequentially, in order to decide:
(1) Whether the facts are proved;
(2) If the proved facts amount to either of the statutory grounds (misconduct or lack of competence) and if they do;
(3) Is the Registrant’s fitness to practise currently impaired?
6. The Panel accepted the advice of the Legal Assessor that the burden of proof is upon the HCPC on the civil ‘balance of probabilities’ in relation to findings of fact. Whether the proved facts amount to the statutory grounds and the question of current impairment are not matters which need to be ‘proved’ but are matters of judgment for the Panel.
7. The Panel also received and accepted advice from the Legal Assessor that hearsay evidence is admissible in these proceedings under Rule 10 (1)(b) and (c) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. However, the Panel has approached any hearsay evidence with caution because it has not been tested by cross-examination. The Panel carefully considered what weight to afford to the hearsay evidence.
8. Mr Kelvin Fletcher (The Registrant) is employed by the Salisbury NHS Foundation Trust (the Trust) as an Operating Department Practitioner (ODP). He has been employed as a Band 5 ODP with the Main Theatre Department at Salisbury District Hospital, since 2006. He is required to assist the anaesthetist with the administration of anaesthetic to patients attending the Hospital for surgery.
9. The Panel heard oral evidence from the following HCPC witnesses: KL (ODP), DS (Clinical Services Manager), LB (ODP), Dr A (Consultant Anaesthetist) and MF (Consultant Nurse in Critical Care). The Panel also considered the written statement of ME (Consultant Urological Surgeon). The Panel heard oral evidence from the Registrant and considered the written evidence supplied by the Registrant, in particular his case statement for the Trust disciplinary hearing and letters from Dr H, Mr D, Mr G, Dr W, Mr F and Dr P.
10. The background to this case includes some evidence suggesting that the Registrant may have been acting under the influence of an anaesthetic agent. However the HCPC has not put this forward as a specific allegation and the Panel has therefore not taken this evidence into account when considering the factual particulars or the statutory grounds. The Panel has also heard that the Trust held a disciplinary hearing in December 2013 which concluded that the Registrant should receive a final written warning for gross misconduct in relation to the matters giving rise to these HCPC proceedings. The Registrant gave evidence at the Trust that he had not abused volatile anesthetics.
Decision on Facts:
11. Particular 1a: it is alleged that on 21 June 2013 whilst on duty the Registrant went missing from 17.15. This particular is denied by the Registrant. The Panel finds that at approximately 17.15 he was in the canteen. Then at approximately 17.55 he was seen collapsed in a toilet cubicle by two members of staff who then went off shift. Ms S, who was unaware of the collapse, commenced a search for him at 18.00. It has not been proved that he went missing from 17.15 as no one was looking for him between 17.15 and 18.00. Although at 18.00 a search for him was initiated many people knew his whereabouts at that time. Particular 1a is therefore not proved.
12. Particular 1b: it is alleged that on 21 June 2013 whilst on duty the Registrant left emergency bleeps unattended. This particular is denied by the Registrant. The Panel finds that he came on duty at about 08.00 and his shift was scheduled to end at 21.00. He did leave the bleeps unattended. In oral evidence he admitted that he was in possession of them during the day and they were not taken by another practitioner by 18.00 when they were found to be unattended. Particular 1b is therefore proved.
13. Particular 1c: it is alleged that on 21 June 2013 whilst on duty the Registrant was found collapsed at approximately 18.00. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 1c is therefore proved.
14. Particular 1d: it is alleged that on 21 June 2013 whilst on duty the Registrant was found collapsed at approximately 19.15. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 1d is therefore proved.
15. Particular 1e: it is alleged that on 21 June 2013 whilst on duty the Registrant did not recognise that he was not fit to work. This particular is denied by the Registrant but he accepted in oral evidence that with hindsight he was unfit to continue working at 19.00. The Panel agrees that having collapsed twice and being for periods incoherent and unsteady on his feet he should have recognised that he was not fit to work and should not have attempted to remain at work Particular 1e is therefore proved.
16. Particular 1f: it is alleged that on 21 June 2013 whilst on duty the Registrant was incoherent. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 1f is therefore proved.
17. Particular 1g: it is alleged that on 21 June 2013 whilst on duty the Registrant was unsteady on his feet. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 1g is therefore proved.
18. Particular 2 it is alleged that the Registrants actions in respect of particulars 1a to 1g inclusive put patients at risk. This particular is denied by the Registrant. The Panel finds that the Registrant’s actions in respect of the proved particulars 1b to 1g inclusive did put patients at risk. His behaviour compromised the standards of his work and he now admits in oral evidence that with hindsight there was a risk to patients. The emergency bleeps could not be responded to if they were left unattended and the Registrant failed to recognise that he was unfit to work and to remove himself from duty. This particular is therefore proved.
19. Particular 3a it is alleged that on 12 July 2013 whilst on duty the Registrant left Dr A alone on 10 or more occasions. This particular is admitted by the Registrant. His behaviour fell below the required standards in that he did not communicate effectively with Dr A and caused her to feel exposed and at risk, as stated in her oral evidence particularly given the nature of the work included Pediatric cases Particular 3a is therefore proved.
20. Particular 3b: it is alleged that on 12 July 2013 whilst on duty the Registrant did not communicate his absence or the reasons for the frequency his absences. This particular is admitted by the Registrant and supported by the oral evidence of Dr A. Particular 3b is therefore proved.
21. Particular 3c: it is alleged that on 12 July 2013 whilst on duty the Registrant was unable to carry out his duties and/or respond to emergency calls. This particular is denied by the Registrant. The Panel finds that he was not carrying out his duties to the appropriate standard in that he failed to support Dr A and was frequently absent without telling her of his whereabouts. His repeated absences threw the workload onto Dr A who felt she was “doing two jobs”. The Panel do not accept that the Registrant could be focused on a patient while suffering pain from a medical condition. Particular 3c is therefore proved.
22. Particular 3d it is alleged that on 12 July 2013 whilst on duty the Registrant was disoriented. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 3d is therefore proved.
23. Particular 3e: it is alleged that on 12 July 2013 whilst on duty the Registrant was unfocused. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 3e is therefore proved.
24. Particular 3f: it is alleged that on 12 July 2013 whilst on duty the Registrant was uncoordinated, dropping his gloves on the floor repeatedly. This particular is denied by the Registrant. The Registrant says he was not uncoordinated and was able to carry out tasks which required some dexterity in keeping with his normal duties. Dr A could not remember how many times he had dropped his gloves and there was not sufficient evidence before the Panel to find this particular proved. Particular 3f is therefore not proved.
25. Particular 3g it is alleged that on 12 July 2013 whilst on duty the Registrant was unsteady on his feet. This particular is admitted by the Registrant and the admission is supported by evidence in the bundle. Particular 3g is therefore proved.
26. Particular 4 it is alleged that the Registrants actions in respect of 3a to 3f put patients and/or staff at risk. This particular is denied by the Registrant. The Panel finds that the Registrant did put patients at risk. His admission that he was unfocused, disorientated and unsteady on his feet in an environment where emergencies can arise must mean he was less able to perform his duties and that patients were at risk. His absence from the operating theatre without informing the anaesthetist of his whereabouts must imply that, in an emergency, patients would be more at risk. Particular 4 is therefore proved in respect of particulars 3a to 3e inclusive and 3g.
Decision on Grounds
27. Misconduct is a word of general effect, involving some serious 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.
28. A lack of competence connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of work.
29. The Panel accepts the submission of Mr Walters that the Registrant knew what to do and how to do it and his failings, giving rise to the proved factual particulars, do not arise from a lack of competence. He is an experienced ODP, has demonstrated he is a competent practitioner and has been in practice since 2003.
30. The Panel finds the Registrant is in breach of the following HCPC Standards of Conduct, Performance and Ethics:
(1)You must act in the best interests of service users.
(7) You must communicate properly and effectively with service users and other practitioners.
(12) You must limit your work or stop practising if your performance or judgment is affected by your health.
31. The Panel finds that the allegation of misconduct, arising from the proved factual particulars, is well founded because his conduct fell below the standards to be expected of an ODP in that he left the emergency bleeps unattended and his behaviour was inappropriate and unacceptable. In relation to particulars 1c and 1d his behaviour in response to having collapsed was misconduct, in that he failed to recognise he was not fit to continue working. In relation to 1f and 1g his actions in response to his condition amounted to misconduct, because he failed to recognise he was not fit to continue working. In respect of particular 2 he put patients at risk which was unacceptable and amounts to misconduct. In relation to 3d, 3e and 3g he also failed to recognise he was not fit to continue working.
Decision on Impairment:
32. The Panel considered the HCPC Practice Note on Finding that Fitness to Practice is Impaired and accepted the advice of the Legal Assessor.
33. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components:
1. the ‘personal’ component: the current competence, behaviour etc. of the
individual registrant; and
2. the ‘public’ component: the need to protect service users, declare and
uphold proper standards of behaviour and maintain public confidence in the profession.
34. The Panel is cognisant of the evidence in the bundle that the Registrant has been abusing volatile anaesthetic agents and Panel notes the strong and consistent denial of this by the Registrant in his written and oral evidence. The Panel also notes the findings of a previous investigation by the Registrant’s employer into this possibility which found there was no case to answer. The Panel has also noted the outcome of the more recent disciplinary investigation referred to in the background section above. The Panel has noted that the HCPC has not brought this matter as an allegation and accepts the Registrant’s evidence that he was not abusing anaesthetic agents.
35. With regard to the personal component, the Panel has noted that the Registrant has been working as an ODP for 17 months since his disciplinary hearing in December 2013, without any untoward issues. He was a credible witness and is undergoing medical treatment for his health problems as indicated by written medical evidence. In his oral evidence he acknowledged that his behaviour was inappropriate and did put patients at risk. He told the Panel that he has now developed strategies to identify when his health problems might put his fitness to practise at risk and to respond to this in a professionally responsible manner. There is evidence in the bundle from Dr A stating that the Registrant has been a valued and respected member of the ODP team.
36. However, the Panel was not completely convinced that having lived with one of his medical problems for a large part of his life without successfully managing the issue in a work context, he would now be able in all circumstances to manage the issue appropriately. The Panel was also concerned that in his oral evidence the Registrant stated that he might continue to work even when his medical condition was adversely affecting his performance. This was in his oral evidence responding to questions from the Panel.
37. The Panel therefore was of the view that there was a risk of repetition of the inappropriate behaviours but assesses this risk as low.
38. With regard to the public element, the Registrant’s behaviour was a serious departure from the standards expected of an ODP and standards must be clearly stated and maintained. The public would expect an ODP to be fully able to assist the anesthetist as necessary and to be on hand to do so when required. If this failure to maintain appropriate standards was condoned this would not maintain public confidence in the profession or the regulatory process. The Registrant’s fitness to practise is therefore currently impaired.
Decision on Sanction
39. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. The Panel has considered the HCPC Indicative Sanctions Policy (October 2014) which states: “It is important for Panels to remember that a sanction may only be imposed in relation to the facts which a Panel has found to be true or which are admitted by the registrant. Equally, it is important that any sanction addresses all of the relevant facts which have led to a finding of impairment.”
40. The Panel considers that the Registrant poses a low risk to service users but he has not demonstrated adequate insight to this Panel, in respect of the adverse impact of his misconduct upon public confidence and the reputation of the profession. In deciding what, if any, sanction to impose under Article 29 of the Health and Social Work Professions Order 2001, the Panel had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.
41. The Panel has heard submissions from Mr Walters and Mr Roberts-Harry in relation to mitigating or aggravating factors before considering (in ascending order) what, if any, sanction to impose.
42. The mitigating factors are that this case arises from 3 incidents of misconduct on 2 different dates, during an otherwise unblemished career. The Registrant has resumed his practice without further problems since December 2013 and has resumed Saturday and overtime working. He has remediated his misconduct by receiving medical treatment in respect of the health problems which contributed to his misconduct and has put strategies in place for the future management of his health problems. He has produced references as to his good character and current professional performance. He made a significant number of admissions in respect of the factual particulars found proved and he has been subject to a managed return to practice following the Trust hearing in December 2013 and the final written warning issued to him by the Trust remains effective until December 2015. He gave evidence to the Panel that he will continue to work and try to overcome any pain caused by his medical conditions while in his workplace. However in the Panel’s view this is not the right approach to the self-regulation of his fitness to practice.
43. The aggravating features are the Registrant’s failure to demonstrate full insight into the various risks to patients and colleagues arising from the 3 incidents of misconduct. The Panel finds there is a low risk of repetition but the Registrant fell below the Standards of Conduct to be expected of an ODP. There are concerns in respect of his future management of his health conditions and his ability to cease working if his ability to practise safely and effectively is compromised at any time.
44. The Panel finds there is a low risk of repetition and the Registrant’s current impairment arises mainly under the public policy component, consequent upon his breach of a fundamental tenet of the profession. It is necessary to mark the adverse impact of the Registrant’s misconduct upon public confidence and the reputation of the profession, and to uphold the HCPC professional standards.
45. The Panel has decided that it would not be appropriate to impose no sanction in this case as this will not reflect the seriousness of the Registrant’s misconduct. Mediation is not appropriate as there is no ongoing dispute. The Panel next considered imposing a Caution Order. Cautions appear on the register but do not restrict a Registrant’s ability to practise. However, a caution may be taken into account if a further allegation is made against the Registrant concerned. The Panel has decided that a caution is the appropriate sanction in this case because these lapses are isolated, in the context of an otherwise unblemished 12 year professional career. Also there is a low risk of recurrence because the Registrant has shown some insight and taken some remedial action.
46. A “bench mark” Caution Order for 3 years is appropriate and proportionate in this case.
47. Before reaching a final conclusion the Panel also considered whether imposing Conditions of Practise or a Suspension Order was necessary , to mark the breach of a fundamental tenet of the ODP profession by the Registrant; but decided that this was unnecessary and disproportionate in view of the low risk of recurrence and remediation. Conditions of practice are not appropriate because the Registrant is aware of the need to stop work if his health condition recurs. A suspension order would be disproportionate on the facts of this case which arises from isolated incidents which are unlikely to be repeated.
That the Registrar is directed to annotate the register entry of Mr Kelvin Fletcher with a Caution Order which is to remain on the register for a period of three years from the date this order comes into effect.
The Caution Order will take effect on 28 May 2015 once the appeal period has closed.
This is a public version of the decision. The private version is only available between the HCPC and the Registrant, in order to protect the private life of the Registrant.
History of Hearings for Kelvin Fletcher
|Date||Panel||Hearing type||Outcomes / Status|
|17/10/2017||Conduct and Competence Committee||Interim Order Review||Interim Suspension|
|03/01/2017||Investigating committee||Interim Order Application||Interim Conditions of Practice|
|27/04/2015||Conduct and Competence Committee||Final Hearing||Caution|