Allegations as amended:
During the course of your employment as an Operating Department Practitioner with BMI Bath Clinic, between March 2008 and April 2015, you:
1. On or around 24 May 2014, when closing down theatre 2:
a) Did not shut and/or lock the anaesthetic drug cupboards and/or fridge.
b) Left a Propofol-filled syringe with intravenous infusion and warming coil in the theatre connected to the infusion pump.
c) Did not ensure that the intubation trolley was adequately tidied and/or stocked.
d) Left drugs on the anaesthetic machine and/or trolley.
2. On 19 December 2014, you:
a) Did not adequately check and/or prepare the anaesthetic machine prior to a patient being anaesthetised.
b) Did not recognise that the reservoir bag had been incorrectly connected to the common gas outlet.
c) Responded inappropriately to a problem with the anaesthetic machine, in that you prepared to swap the anaesthetic machine with another without carrying out the prerequisite checks.
3. The matters set out in paragraphs 1 - 2 constitute misconduct and/or lack of competence.
4. 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 the notice of hearing by a letter dated 16 November 2015.
2. The Panel first considered an issue relating to its registrant member. The Registrant member of the Panel explained that ten years ago he worked for BMI Healthcare and was based in London. He worked for BMI Healthcare for a period of approximately fifteen years. He recognised the name JH who is Witness 2. He recollects that he met JH on a couple of occasions in meetings together with other health professionals. Although he saw JH in meetings, he did not work with her or know her socially.
3. Mr Chalmers on behalf of the HCPC did not object to the Registrant member continuing as a member of the Panel.
4. The Registrant was not present or represented. The Legal Assessor advised that in the absence of the Registrant, it was appropriate for the Panel to consider and decide the issue of the public perception of the possibility of unconscious bias on the basis of the previous connection between the Registrant member of the Panel and the BMI Bath Clinic. The question the Panel should consider was whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The fair minded and informed observer would apply a balanced approach being neither complacent nor unduly sensitive or suspicious.
5. The Panel considered this matter carefully and decided that a fair minded and informed observer would not conclude that there was a real possibility that the tribunal was biased. The Panel noted that the registrant member’s knowledge of BMI Healthcare was historic. He had no connection with the BMI Bath Clinic and there was nothing from the past history which might suggest bias or the appearance of bias. The contact with Witness 2 was minimal. The Panel indicated that they would be open to reconsidering the issue of apparent bias during the course of the hearing if it became necessary.
6. The Panel next considered Mr Chalmers’ application to proceed with the hearing in the absence of the Registrant. Mr Chalmers referred the Panel to an e-mail from the Registrant dated 01 December 2015. In response to an e-mail which attached the response proforma for this hearing, the Registrant requested that a hard copy was sent by post. The hearing officer confirmed that the response proforma was sent by post. There has been no further communication from the Registrant since that time.
7. The Panel considered whether it was appropriate to proceed with the hearing in the Registrant’s absence. The Panel followed the advice of the Legal Assessor and considered this matter with the utmost care and caution. The communication from the Registrant has been minimal. He has not provided documents or a written statement for the Panel. The Panel inferred from the Registrant’s e-mail dated 01 December 2015 that he is aware of today’s hearing. He has not applied for an adjournment of the hearing and he has not suggested that he wishes to be represented at the hearing. In these circumstances the Panel concluded that the Registrant’s absence is voluntary. For the same reasons the Panel decided that an adjournment would be unlikely to secure the Registrant’s attendance.
8. The Panel carefully balanced the interests of the Registrant and the public interest. There may be a disadvantage to the Registrant particularly because he will not be giving evidence either on the facts or on issues relating to his current fitness to practise. In the HCPC bundle there are some statements and interview notes, which mitigate to some extent the disadvantage in relation to the facts. The Panel concluded that there was a disadvantage to the Registrant in proceeding in his absence, but that his interests were outweighed by the public interest. Witnesses are in attendance prepared to give evidence today and there is a public interest in dealing with such matters expeditiously.
9. The Panel took care throughout the hearing to carefully read and consider the Registrant’s statements in the HCPC bundle and to test the evidence of the HCPC witnesses.
10. Mr Chalmers made an application to amend the allegation. The details of the proposed amendment are set out in a letter to the Registrant dated 01 October 2015. The proposed amendments are to ensure that the allegation accurately reflects the evidence.
11. The Panel was advised by the Legal Assessor that it has discretion to amend the allegation provided it is satisfied that there is no prejudice to the Registrant. The Panel considered carefully whether the Registrant is prejudiced by the proposed amendments. The amendments are minor and the Registrant has had ample notice of the proposal to amend. The Panel decided to allow the amendments as set out in the letter dated 01 October 2015.
12. The Registrant commenced employment with the BMI Bath Clinic (“the Clinic”) as a Theatre Practitioner in Anaesthetics in September 2004. He became a Senior Theatre Practitioner some years later. He worked in operating theatres with patients undergoing surgery on a daily basis.
13. On Saturday 24 May 2014 the Registrant was working at the Clinic and was responsible for “closing down” the theatre once the patient list was complete. His shift was due to end at 14.00.
14. On 27 May 2014, the next working day, a health care assistant RF reported that when he walked into the theatre he found that it had not been correctly shut down. RF brought this to the attention of MS, Principal Operating Department Practitioner (ODP) at the Clinic. MS notified CT, Theatre Manager at the Clinic. CT took photographs of the theatre. CT was appointed as investigator and took statements from a number of people including the Registrant.
15. There was a further incident on 19 December 2014. The Registrant was working in theatre with an anaesthetist, Dr M. Dr M replaced another anaesthetist who was responsible for the previous patient. The team for the procedure in question included HC, Lead Theatre Practitioner. Dr M was unable to manually ventilate the patient and communicated this to the Registrant. The patient was successfully intubated and ventilated automatically. Dr M was not happy to continue to use a machine that did not enable him to manually ventilate the patient. The Registrant planned to switch the patient to a different anaesthetic machine. HC looked at the machine and immediately identified that the reservoir bag had been incorrectly connected to the common gas outlet. The problem was then resolved and the operation continued.
16. CT began an investigation into the incident. The Registrant was absent due to ill health until early March 2015. The Registrant was interviewed by CT on 02 March 2015. CT handed the investigation to JH, Operating Theatre Manager at the BMI Chaucer Hospital. JH was unable to make contact with and interview the Registrant during her investigation due to his sickness absence.
Decision on facts
17. The Panel heard evidence from CT, JH, MS and HC and found that the witnesses were credible. Their accounts were internally consistent and consistent with each other and the photographic evidence. The witnesses had genuine concerns about the problems that had occurred.
18. The Panel carefully considered statements of the Registrant produced at various stages during the internal investigations and notes of meetings with him. The Registrant’s statements are consistent and he broadly agrees that the events occurred as described by the HCPC witnesses.
19. The Panel found that particulars 1(a), 1(b), 1(c) and 1(d) are proved by the evidence of MS, CT and the photographic evidence. The Registrant does not dispute that the state of the theatre left by him on 24 May 2014 was as shown in the photographs. He was responsible for ensuring that the theatre was appropriately closed down and restocked.
20. The photographs show that the anaesthetic drugs cupboards, which contained prescription-only medication, were not shut or locked. The photographs show a syringe and a warming coil connected to the infusion pump. The evidence of MS confirms that the syringe contained propofol, a prescription-only drug, and that the machine was left switched on. A photograph shows the intubation trolley which was not adequately stocked and had not been tidied. It was missing essential airway maintenance equipment. The photograph of the anaesthetic machine shows that drugs were left on top of the machine. The evidence of MS confirms that this was a drug, atropine.
21. There was a gap in time between the Registrant leaving the theatre on 24 May 2014 and the time the theatre was seen by MS and CT on 27 May 2014 and the photographs were taken. During this time the theatre was closed for the bank holiday and was not used. The theatre was therefore in the same condition as it was left by the Registrant on 24 May 2014.
22. The Registrant states that he carried out a visual check of the anaesthetic machine on 19 December 2014 at the same time as he cleaned and prepared the machine ready for the patient to be anaesthetised by Dr M. The Panel accepted that the Registrant did carry out some form of visual check, but that it was not adequate. It was inadequate because it did not identify that the anaesthetic tube was connected to the common gas outlet instead of the correct outlet.
23. The Panel considered the possibility that the incorrect connection might have occurred after the Registrant carried out his visual check. The Panel decided that it was more likely that the incorrect connection took place prior to the Registrant’s visual check. This is because of the Registrant’s statement on 02 March 2015 that he was “aware that something seemed wrong with the machine but persuaded himself that there couldn’t be as it was fine for the previous patient”. This indicates that the Registrant himself noticed something was wrong, but did not take the time to check the machine in detail. This is not adequate checking. The Panel therefore found that particular 2 (a) is proved.
24. The Panel found that particular 2(b) is proved by the evidence of HC. She immediately saw that the anaesthetic tube was connected to the common gas outlet instead of the correct outlet and said that the cause of the problem was “glaringly obvious”. The Registrant confirms in his statement that this was the cause of the problem with the machine. The Registrant had not identified this problem himself.
25. The Panel found that particular 2(c) is proved by the evidence of HC and CT. HC was aware that the Registrant planned to swap to a different anaesthetic machine. She heard the Registrant tell Dr M that he would fetch another machine. The Registrant left the theatre in order to bring in another machine. In his statement and interview the Registrant confirmed that this was his plan. This was not an appropriate response to the problem with the machine. The patient had been safely intubated and was being automatically ventilated from the machine. There was sufficient time for the Registrant to carry out a thorough check of the machine. This would involve tracing the tubing from the patient to the machine to check that all the tubes were clear and correctly attached. If the Registrant had carried out these checks and followed the tubing to the machine he would have seen the incorrect attachment to the common gas outlet. The switching to a new machine would involve potential risks because the machine might not work correctly, particularly noting that the Registrant said he intended to bypass the safety checks so he could use the machine immediately. HC’s view was that the switching of machines should only have been considered as a last resort if the problem with the machine could not be resolved.
Decision on grounds
26. The Panel noted that there is no definition of misconduct, but there is guidance in the case of Roylance v GMC that 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 medical practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the standards that are expected.
27. In the Panel’s judgment particular 1 involves tasks which are basic for an ODP. The task of closing and locking the drugs’ cupboards and correctly closing down the theatre is routine. It requires attention and concentration, but it does not require specialist skills. There was ample time for the Registrant to complete the work as there were no time pressures on this day. There appears to be no explanation for the Registrant’s conduct, other than a lack of concentration.
28. It is important that theatres are left in a secure and tidy state to avoid potential risk to the public. It is particularly important that prescription- only medication is kept secure and that such medication is not left in a syringe where it could be accessed. The theatre was not kept locked and could be accessed by cleaners and porters. Members of the public might also enter the theatre by accident. It is also important that the theatre is tidied and restocked ready for the next operation. If there is a failure to do so this may delay scheduled operations and it could also delay an emergency operation if a patient on the ward needed to return to the theatre for further surgery.
29. Particular 2 also involves basic tasks for an ODP. The Registrant was familiar with the anaesthetic machine, had undergone training on how to use it, and had been using it for a number of years. He had considerable experience as an ODP. He completed his ODP training in September 2004 and was working as a Senior ODP. The problem with the machine was immediately obvious to HC, another anaesthetic practitioner. The reason the Registrant was not able to identify the problem with the machine is not clear. Again, the most likely explanation appears to be a lack of concentration.
30. The Panel found that the Registrant’s conduct in respect of particulars 1 and 2 was not deliberate, but it did fall well below the standards that are expected.
31. The Registrant’s conduct was also a breach of the HCPC Standards of Conduct, Performance and Ethics in particular standard 1 “you must act in the best interests of service users” and the HCPC Standards of Proficiency for Operating Department Practitioners in particular standards 1, 2, 4, 11 and 15. A breach of the standards is not determinative, but the Panel took the breaches into account in the exercise of its judgment.
32. The Panel concluded that particulars 1 and 2 constitute misconduct. Each particular is sufficiently serious, considered alone, that it constitutes misconduct.
33. The Panel did not find that particulars 1 or 2 constitute a lack of competence. The Registrant is an experienced ODP. There is no pattern of incidents which demonstrates a lack of skill or knowledge. Particular 1 includes basic tasks such as shutting and locking cupboards that do not require specialist skills. Particular 2, taken on its own, is a single incident. There is no suggestion that the Registrant did not understand the basic operation of the anaesthetic machine, which he used regularly as part of his role.
Decision on impairment
34. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.
35. The Panel has no information on the Registrant’s current position. There is no evidence from him of any remediation or rehabilitative steps.
36. The Panel noted from the witness evidence that the Registrant had some health issues in 2014-2015. In particular it appears that there was a pattern that the Registrant was absent from work due to ill health after an issue at work was raised with him. There was also a suggestion made by HC in her oral evidence that health issues may have been relevant to the level of the Registrant’s concentration at work. The Panel has not been able to make findings about these matters in relation either to the allegation, or the Registrant’s current fitness to practise, because of the extremely limited evidence. The Registrant has not suggested that health issues are relevant. There is no medical evidence, no evidence from the Registrant and no evidence about the dates the Registrant was absent from work due to ill health.
37. The Panel first considered the level of the Registrant’s insight. The HCPC witnesses, particularly TC and HC explained that the Registrant’s initial response to issues raised with him was that he was apologetic. However, he then became defensive and verbally aggressive. An example of his response is the notes of the interview with TC on 03 June 2014. The Registrant said that he felt like he had been picked on that and that he was “being persecuted” and that he felt as if he was being constantly watched. HC told the Panel that she had previously experienced the Registrant shouting at her when she raised an issue with him and she was therefore concerned about raising the issue on 19 December 2014.
38. The Panel considered the Registrant’s statements and interviews carefully and found that he has not reflected on the incidents, their possible consequences or the potential risk to members of the public. The Registrant has not explained how the incidents occurred, nor has he fully acknowledged the seriousness of the incidents and the importance of eliminating similar errors. The Panel was also concerned that there appeared to be an unexplained pattern of ill health that followed an incident being raised with the Registrant.
39. In an appraisal in November 2014 the Registrant stated to MS that he was “on top of his game”. The Panel’s view is that this statement indicates a level of over-confidence, given the incident in May 2014 and the fact that a further incident occurred in December 2014.
40. Although the Registrant has demonstrated some insight by admitting the facts and by acknowledging his responsibility to some extent, his insight is limited. Misconduct relating to clinical work, as occurred in this case, is potentially remediable. However, there is no evidence of remediation in this case. Given the lack of remediation and the lack of insight, the Panel found that there is a risk of repetition of misconduct.
41. If misconduct was repeated there is a potential risk to service users. If there was a repeat of the failure to secure the theatre there is a danger that prescription-only drugs could be accessed and this could cause harm to members of the public. There is also a potential risk due to delays in either routine or emergency surgery if a theatre is not ready for use. If there was a repeat of the failure to correctly check or identify a fault with an anaesthetic machine there are potential risks of harm to a patient.
42. The Panel therefore concluded that the Registrant’s current fitness to practise is impaired on the basis of the personal component.
43. The Panel also considered the critically important public policy considerations which were highlighted in the case of Cohen. This includes the need to protect the public and to maintain confidence in the profession and the regulatory process. Members of the public would be concerned that the Registrant fell well below the required standards on two occasions within a short period of time. They would also be very concerned that there is a risk of repetition and that this creates a potential risk to members of the public. The public trust and confidence in the standards of the ODP profession is particularly important because members of the public are not able to see and monitor for themselves the vast majority of the work carried out by ODPs. For these reasons the Panel concluded that the Registrant’s fitness to practise is impaired on the basis of the public component.
Decision on sanction
44. The Panel applied the guidance in the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor. The purpose of a sanction is not to punish the Registrant, but to protect the public and the wider public interest. This includes maintaining confidence in the profession and the wider regulatory process. The Panel applied the principle of proportionality and balanced the interests of the Registrant and the public interest.
45. The Panel identified the following aggravating factors:
• the potential for harm to the Registrant’s colleagues and service users;
• the potential for delay to patient care;
• the repetition of a lapse in concentration;
• the Registrant’s limited insight
• the Registrant’s reluctance to engage in training and education.
46. The Panel identified the following mitigating factors:
• no evidence of actual harm;
• the Registrant’s admissions and apology;
• no evidence of a history of similar incidents;
47. The Panel considered the sanctions in ascending order of severity, bearing in mind that the sanction should be the least restrictive that is sufficient to protect the public and the wider public interest.
48. The Panel first considered the option of not imposing a sanction. The Panel decided that this was not sufficient because of the nature of the misconduct and the potential risk to the public. The Panel decided that mediation is not appropriate in this case.
49. The Panel next considered a Caution Order. The guidance in the Indicative Sanctions Policy is that this may be the appropriate sanction where the Registrant has demonstrated insight and there is a low risk of recurrence. A Caution Order allows the Registrant to continue to practise without further monitoring. In this case the Panel has concluded that there is a risk of repetition of misconduct and therefore there are public protection issues. In the Panel’s judgment a Caution Order is therefore not sufficient because it would not provide a sufficient level of public protection. A Caution Order would not maintain public confidence in the profession or the regulatory process.
50. The Panel considered a Conditions of Practice Order. A Conditions of Practice Order is only appropriate and sufficient where the Panel has confidence that the Registrant has a sufficient level of insight to understand the need for conditions of practice and their importance, and confidence that the Registrant will comply with the conditions. In this case the Registrant’s insight is limited and the Panel does not have the necessary confidence. The Panel is particularly concerned about the evidence from the HCPC witnesses that the Registrant has in the past not always responded positively or constructively to issues raised with him about his practice. Conditions of practice must also be practicable and workable. In this case the Panel has no information about the Registrant’s current position and the Panel is not able to formulate conditions that would be workable, but not so onerous that they amount to a suspension. The Panel concluded that a Conditions of Practice Order would not be sufficient to protect the public.
51. The Panel next considered a Suspension Order. A Suspension Order prevents the Registrant from working as an ODP and it therefore provides a high degree of protection for the public. A Suspension Order would give the Registrant time to reflect and to consider whether he wishes to engage with the HCPC process. A Suspension Order would provide the Registrant with an opportunity to take remedial and rehabilitative steps. A Suspension Order is less draconian than a Striking Off Order because it gives the Registrant the opportunity to demonstrate to a future reviewing Panel that it is safe for him to return to practice after a period of suspension.
52. The Panel’s view is that in this case a Suspension Order appropriately balances the public interest and the Registrant’s interest. A Suspension Order takes into account the mitigating factors. This case does not involve dishonesty or a breach of a fundamental tenet of the profession. There are uncertainties in this case, including whether the Registrant’s health might have been a contributing factor. The Registrant is an experienced professional and it is in the public interest that experienced health professionals should have an opportunity to remedy past misconduct where such conduct is potentially remediable. For these reasons the Panel decided that the ultimate sanction of a Striking Off Order is not appropriate.
53. The Panel decided that the wider public interest considerations were satisfied by a Suspension Order. Members of the public would expect the Panel to strike an appropriate balance between the public interest and the Registrant’s own interests and would recognise that in this case there is a chance for the Registrant to rehabilitate himself to provide a safe environment for the public.
54. The Panel decided that the appropriate length of the Suspension Order is twelve months. This is the maximum period of time for a Suspension Order. It gives the Registrant sufficient time to reflect, to take remedial action and to provide evidence for a reviewing Panel. It is open to the Registrant to make an application for an early review if appropriate.
55. The Suspension Order will be reviewed before it expires. The review Panel may be assisted by:
(a) a reflective statement from the Registrant covering both incidents and the response he made at the time the incidents were raised with him;
(b) if health issues are relevant, evidence from the Registrant and/or his GP and/or treating health professional about his health and treatment both at the time of the incidents and currently;
(c) information about his thoughts and plans for his future career;
(d) any remedial or rehabilitative steps the Registrant has taken;
(e) evidence that he has maintained his CPD.
(f). if the Registrant has been working in the healthcare field a reference or testimonial from his employer
The order will be reviewed before its expiry.
An Interim Suspension Order was imposed to cover the appeal period.
History of Hearings for Justin Williams
|Date||Panel||Hearing type||Outcomes / Status|
|07/12/2017||Conduct and Competence Committee||Review Hearing||Struck off|
|14/08/2017||Conduct and Competence Committee||Review Hearing||Suspended|
|15/02/2017||Conduct and Competence Committee||Final Hearing||Hearing has not yet been held|
|15/02/2017||Conduct and Competence Committee||Review Hearing||Suspended|
|16/02/2016||Conduct and Competence Committee||Final Hearing||Suspended|
|28/01/2016||Conduct and Competence Committee||Interim Order Review||Interim Suspension|
|05/08/2015||Conduct and Competence Committee||Interim Order Application||Interim Suspension|