(As amended at Final Hearing):
Whilst registered as an Operating Department Practitioner you:
1. during the course of your employment with Frimley Health NHS Foundation Trust ('the Trust'), misused the anaesthetic breathing circuits by inhaling anaesthetic gases:
a) on or around 28 February 2014;
b) on or around 10 March 2014; and c) on or around 09 June 2014.
2. intentionally did not disclose your full employment history to the Trust in your application forms dated 13 July 2012 and 14 January 2013, namely your employment with:
a) the Hampshire Clinic;
b) Dunedin (Spire Healthcare).
3. The matters set out in paragraph 2 constitute dishonesty.
4. The matters set out in paragraphs 1, 2 and 3 constitute misconduct.
5. By reason of your misconduct your fitness to practise is impaired.
1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, dated 16 February 2016, by First Class post, to the address shown for Mrs Daniels on the HCPC register.
Proceeding in Absence
2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in Mrs Daniels’ absence, as permitted by Rule 11 of the Conduct & Competence Rules. The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPC Practice Note “Proceeding in Absence”.
3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:
a) Mrs Daniels has not engaged with the regulatory process and having been properly served with the Notice of Hearing, the Panel was satisfied that her non-attendance was voluntary and therefore a deliberate waiver of her right to attend.
b) Mrs Daniels has not made an application to adjourn and there is no indication that even if the case were to be adjourned that she would attend on any future date.
c) It was in the interests of the four witnesses who have attended to give evidence that their evidence is given as soon as possible and whilst matters are still relatively fresh in their minds.
d) It was in the public interest that this Final Hearing commences and proceeds expeditiously.
Application to amend the allegation
4. At the outset of the hearing Ms Binding made an application for Particulars 1, 2 and 3 of the Allegation to be amended. The Registrant had been put on notice of the proposed amendments in a letter, dated 5 November 2015, and no objection had been raised at that time or since.
5. The Panel determined that Particulars 1, 2 and 3 should be amended. The Panel was satisfied that the amendments:
• provide helpful clarification;
• avoid ambiguity;
• do not alter the substance or meaning of the Allegation as originally drafted and do not widen the HCPC’s case.
6. The Panel was also satisfied that no injustice would be caused by making these amendments as they accurately reflect the HCPC case. In forming this view the Panel took into account the fact that Mrs Daniels had been put on notice of the HCPC’s application 6 months in advance and had made no representations with regard to the proposed amendments.
Bad Character Application
7. Ms Binding, on behalf of the HCPC, made an application for Mrs Daniels’ previous fitness to practise and disciplinary history to be admitted in evidence. The application was made on the grounds that this additional evidence is important explanatory evidence and demonstrates Mrs Daniels’ propensity to misuse anaesthetic gases. Ms Binding confirmed that Mrs Daniels was put on notice of the application in a letter, dated 21
March 2016, with the relevant documents enclosed, which was followed by a further letter, dated 1 April 2016 and an email, dated 12 April 2016, requesting a response. No responses were received.
8. The Panel accepted the advice of the Legal Assessor and considered the issues of relevance and fairness separately.
9. The Panel was satisfied that Mrs Daniels’ previous fitness to practise history and disciplinary hearing is relevant. The original bundle of witness statements and exhibits, including letters from Mrs Daniels’ to the Trust, makes extensive reference to previous allegations and adverse findings relating to the misuse of anaesthetic gases. The Panel was satisfied that the additional evidence would provide important explanatory evidence and goes to propensity to misuse anaesthetic gases.
10. The Panel went on to consider the issue of fairness. The Panel noted that Rule 10(1)(c) of the Conduct and Competence Rules states:
‘the Committee may hear or receive evidence…if it is satisfied that admission of that evidence is necessary in order to protect members of the public.’
11. The Panel was satisfied that it was fair and reasonable to allow the HCPC to present its case based on all of the relevant evidence available in order to protect the public. The Panel was also satisfied that permitting the additional evidence to be adduced would not cause injustice to Mrs Daniels, as she had referred to the history in her own defence during the Trust investigation and had been provided with an opportunity to object, on more than one occasion, to the admission of this material during these proceedings, and had not done so.
12. The Panel determined that the following documents should be admitted into evidence on the basis that this additional evidence is important explanatory evidence and demonstrates Mrs Daniels’ propensity to misuse anaesthetic gases:
• Determination by Conduct and Competence Committee of the HCPC
dated 9-10 March 2011 FTP 02773 (only as to facts).
• Papers pertaining to Mrs Daniels’ disciplinary hearing 2006-2007 at the Royal Berkshire NHS Foundation Trust.
• Papers from Mrs Daniels’ self-referral to the HPC in December 2006 – (DEC0623) in relation to her disciplinary hearing at the Royal Berkshire NHS Foundation Trust.
Further application to amend
13. At the conclusion of the witness evidence, Ms Binding made an application for a further amendment of the Allegation by deleting ‘2014’ in Particular 2 and replacing it with ‘2013’.
14. As Mrs Daniels was neither present nor represented, the Legal Assessor drew to the Panel’s attention, the judgment in PSA v Doree  EWHC 822 (Admin) which stated that to amending an allegation retrospectively, after the evidence has been heard and considered, in order to secure an adverse finding is grossly unfair. Ms Binding submitted that the Doree case can be distinguished from Mrs Daniels’ case, on the basis that the reference to 2014 is a typographical error and the HCPC’s case has not altered in any way. She further submitted there could be no injustice to Mrs Daniels as the Trust investigation, her response and the original allegation refer to application forms completed in 2012 and 2013 only.
15. The Legal Assessor advised the Panel that despite the judgment in
Doree, the Panel may grant the application to amend if it is satisfied that the proposed amendment is to rectify a typographical error and not an attempt to tailor the allegation to the evidence that has already been heard.
16. The Panel determined that Particular 1 should be further amended as proposed by the HCPC. The Panel was satisfied that the purpose of the amendment was to rectify a typographical error and was not an attempt to make the allegation fit the evidence for the following reasons:
• There was no January 2014 application form.
• The Trust investigation made reference to application forms completed in 2012 and 2013 only.
• Mrs Daniels’ responses to the Trust investigation made reference to the application forms completed in 2012 and 2013 only.
• The original allegation made reference to the correct year. The incorrect year first appears in the letter to Mrs Daniels, dated 5
November 2015, which sets out the proposed amended allegation.
17. The Panel was also satisfied that no injustice would be caused by amending the year as there was no change to the HCPC’s case.
18. On 20 June 2014 the HCPC received a referral from the Acting Deputy Theatre Manager at Frimley Park Hospital NHS Trust (‘the Trust’). The referral highlighted concerns in relation to Mrs Daniels, who was employed by the Trust as an Operating Department Practitioner (ODP) from 26 September 2012 to 15 October 2014.
19. On 9 June 2014 concerns were raised by a staff nurse (Witness 4) regarding suspicions that Mrs Daniels was misusing the anaesthetic breathing circuits by inhaling anaesthetic gases. During the Trust investigation the enquiry was widened to include two previous concerns in relation to similar behaviour, and an allegation that Mrs Daniels had failed to disclose her full employment history in her job application forms. The applications were for the Bank ODP Recovery post in July 2012 and the substantive fixed term ODP post in January 2013, which subsequently became a permanent appointment.
20. Mrs Daniels was interviewed by Witness 4 and the Acting Deputy Theatre Manager on 19 June 2014. A disciplinary hearing took place on
15 October 2014. Mrs Daniels provided a statement for that hearing. An appeal hearing took place on 6 March 2015. Mrs Daniels provided a further written statement for the appeal hearing and was notified of the outcome of the appeal on 13 March 2015.
Assessment of Witnesses
21. Mrs Daniels suggested in her written submissions to the Trust during its investigation, that there had been some discussion between the witnesses about her previous history, which had contaminated their evidence, either intentionally or unintentionally. The Panel noted the allegation made by Mrs Daniels, in her letter of appeal to the disciplinary appeal panel, that she had been bullied, intimidated and discriminated against. It was unclear to this Panel whether this allegation related solely to the Trust investigation or whether it also included the witnesses’ motivation for raising their concerns.
22. The Panel noted that none of the witnesses stated that they were aware of Mrs Daniels’ previous history prior to the events they described. Witness 2 was the only witness to state that she was aware of the previous allegations of misuse of gases but this was only after she disclosed to a colleague the behaviour she had witnessed on 28 February 2014. The Panel had no reason to suspect that any of the witnesses had tailored their evidence to fit a pre-conceived notion or that their evidence was overstated. The Panel also had no reason to, conclude that any of the witnesses’ observations had been influenced by a knowledge of Mrs Daniels’ previous history or motivated by an intention to bully, intimidate or discriminate against her.
23. The Panel did not find that there was any basis upon which it could conclude that there had been, or might have been, collusion or contamination.
24. The Panel assessed the evidence of each witness as follows: Witness 4 – Staff Nurse at the Trust
25. The Panel found Witness 4 to be a credible and reliable witness. She did her best to assist the Panel and was careful not to overstate her evidence or give evidence outside of her experience or area of expertise. The Panel had no reason to doubt the accuracy of her factual account of the events that took place on 9 June 2014.
Witness 2 – Staff Nurse at the Trust
26. The Panel found the evidence of Witness 2 to be both credible and reliable. She provided the Panel with a clear and consistent account without embellishment. The Panel had no reason to doubt that Witness 2’s evidence was her genuine recollection of the events that took place on 28 February 2014.
Witness 3 – Associate Theatre Practitioner at the Trust
27. Witness 3 was a particularly compelling witness. The Panel found her evidence to be clear, balanced, persuasive and fair. The Panel was greatly assisted in understanding the significance of the events she witnessed on 10 March 2014 by the detailed description of the equipment, the purpose of the equipment, the unusual nature of Mrs Daniels’ behaviour and the reasons she gave for being concerned.
28. Witness 3 was a credible and reliable witness. The Panel had no reason to doubt that her evidence was based on a genuine recollection and a genuine concern for patient safety.
Witness 1 – Human Resources Manager at the Trust
29. Witness 1 relied heavily on her written statement and the documentary evidence. Although Witness 1’s independent recollection of some aspects of the Trust investigation was limited, she did her best to assist the Panel and there was no reason to doubt that she was anything other than a credible and reliable witness.
Decision on facts
30. The Panel was aware that the burden of proving the facts was on the HCPC. Mrs Daniels did not have to prove anything and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.
31. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, and the written and documentary evidence, including the submissions Mrs Daniels made during the Trust investigation. The Panel also took into account the additional documents relating to Mrs Daniels’ previous fitness to practise and disciplinary history as well as the oral submissions of Ms Binding, on behalf of the HCPC.
32. The Panel accepted the advice from the Legal Assessor and on her advice, at the outset of the hearing, redacted the paragraph in the bundle that referred to one of the conclusions drawn by the Trust’s investigation panel. This paragraph was completely disregarded. The Panel was mindful throughout its deliberations that ‘bad character’ alone cannot be the sole basis for finding any of the facts proved.
33. The Panel noted that Mrs Daniels made certain admissions in her written responses during the Trust investigation. However, she had not engaged with the regulatory process and the Panel proceeded on the basis that none of the allegations were admitted.
34. The stem of Particular 1 alleges that ‘during the course of your employment with Frimley Health NHS Foundation Trust (‘the Trust’), misused the anaesthetic breathing circuits by inhaling anaesthetic gases: and the sub-paragraphs allege specific dates. The Panel was satisfied based on the documentary evidence of Witness 1 and the statements of Mrs Daniels prepared for the Trust investigation, that Mrs Daniels was employed by the Trust. The Panel went on to consider whether there had been any misuse of the anaesthetic breathing circuits and took each date in turn.
Particular 1(a) – Found Not Proved
‘on or around 28 February 2014;’
35. The Panel was satisfied that Mrs Daniels was sitting in Theatre 14, at approximately 6.45am on 28 February 2014, in the dark, holding a green air bag in her hands, as described by Witness 2. Witness 2 told Mrs Daniels “That’s not normal” in reference to her sitting in the dark. She informed the Panel that she thought that Mrs Daniels was testing the green bag but stated that machines cannot be tested in the dark. Although Witness 2 mentioned the incident to a colleague she informed the Panel that this was ‘in passing’ because she thought the fact Mrs Daniels’ was sitting in the dark was strange. It was at that point that Witness 2 was informed by her colleague of Mrs Daniels’ previous history of ‘sniffing gases’.
36. The Panel accepted that although Mrs Daniels’ presence in theatre, at that time, was not out of the ordinary, her behaviour was unusual. However, Witness 2 did not see any tubing connected to the green bag, the bag was not inflated and apart from the unusual behaviour of sitting in the dark, there is no evidence to suggest that Mrs Daniels was inhaling anaesthetic gases on that occasion, save for her previous history and the Panel’s findings of fact in relation to Particulars 1(b) and 1(c) below.
37. The Panel considered to what extent it should rely on Mrs Daniels’ previous history of inhaling gases and the Panels’ findings in this case. The Panel concluded that there was insufficient evidence that Mrs Daniels had inhaled anaesthetic gases that morning. A suspicion only arises as a result of her known history. The Panel concluded that it would not be appropriate to draw an adverse inference when the basis of the allegation that Mrs Daniels inhaled anaesthetic gases was inherently weak.
Particular 1(b) – Found Proved
‘on or around 10 March 2014;’
38. The Panel accepted the evidence of Witness 3 in its entirety. The Panel was satisfied that Witness 3 saw Mrs Daniels standing by the anaesthetic machine, in the anaesthetic room, on 5 separate occasions during the course of the day and that on 4 of those occasions she noticed that Mrs Daniels had the thin green tubing in her hands. Witness 3 explained that there was no reason for Mrs Daniels to have the thin green tubing in her hand in the anaesthetic room because all of the surgical procedures listed that day were for spinal injuries, which are performed under general anaesthetic. She explained that the thin green circuit tubing is only used for sedation cases to deliver oxygen. On each occasion Mrs Daniels was described as being startled when Witness 3 entered the room. On the fourth occasion Witness 3 stated that she saw Mrs Daniels with the thin green circuit tube held a few inches from her mouth/nasal area and that when she came in Mrs Daniels dropped the tubing and hid it.
39. The Panel was satisfied on the basis of the reliable evidence of Witness 3 that, despite Mrs Daniels’ denials, it was reasonable to infer that Mrs Daniels was inhaling anaesthetic gases on 10 March 2014. The Panel reached this conclusion based on the evidence of Witness 3 alone.
Particular 1(c) – Found Proved
‘on or around 9 June 2014;’:
40. The Panel accepted the evidence of Witness 4 that, on 9 June 2014, Mrs Daniels was standing in Theatre 4, in the dark. When Witness 4 switched the lights on, she noticed that Mrs Daniels was holding the anaesthetic circuit in her hand, ‘almost like a microphone’.
41. The Panel noted that Mrs Daniels, in her written statement to the Trust during its investigation, stated that she was sitting down responding to a text message from her husband. However, Witness 4 did not recall seeing Mrs Daniels sitting down or recall seeing her with a mobile phone.
42. The Panel took into account its finding in relation to Particular 1(b) and Mrs Daniels’ previous history of inhaling anaesthetic gases and concluded that she was inhaling anaesthetic gases on 9 June 2014. The Panel reached this conclusion because Mrs Daniels was standing in the dark with the circuit tubing close to her mouth and nasal area. In response to Panel questions, Witness 4 confirmed that the anaesthetic circuit was approximately two inches away from Mrs Daniels’ chin. Mrs Daniels’ explanation that she was testing the machine was rejected by the Panel and there was no credible or reasonable alternative explanation for her standing in the dark at the anaesthetic machine.
43. The stem of Particular 2 alleges that ‘In your application for employment with the Trust dated 13 July 2012 and 14 January 2013 you:..’ and goes on to specify the non-disclosure. The Panel was satisfied based on the evidence of Witness 1, the statements made by Mrs Daniels in her letters to the Trust during its investigation, and the application forms themselves, that Mrs Daniels applied for the Bank post on 13 July 2012 and the substantive post on 14 January 2013. The Panel was also satisfied, based on the documentary evidence, that Mrs Daniels had periods of employment at the Hampshire Clinic and Dunedin Hospital.
Particular 2(a) - Found Proved
‘did not disclose your previous employment with Hampshire Clinic’
44. The Panel noted that in the July 2012 and January 2013 application forms, in the section headed ‘Employment History’, there is no mention of the period Mrs Daniels was employed by the Hampshire Clinic and no mention of it anywhere else on the form. The Panel was satisfied based on the documentary evidence that this employment was not disclosed.
Particular 2(b) - Found Proved
‘did not disclose your previous employment with Dunedin (Spire Healthcare)’
45. The Panel noted that in the July 2012 and January 2013 application forms, in the section headed ‘Employment History’, there is no mention of the period Mrs Daniels was employed at the Dunedin Hospital and no mention of it anywhere else on the form. The Panel was satisfied based on the documentary evidence that this employment was not disclosed.
Particular 3 - (Dishonesty) – Found Proved
46. The Panel noted that it was clear on both application forms that Mrs Daniels was required to disclose her full employment history since leaving school. In the July 2012 form the instruction was printed in bold type and in the January 2013 form the instruction was underlined and printed in bold type. On both forms Mrs Daniels had signed a declaration that the contents were true and complete.
47. The Panel noted that Mrs Daniels resigned from Dunedin Hospital but at the time of her resignation she had been suspended and invited to attend a formal meeting regarding allegations that she withheld relevant information during the recruitment process. In an email to the Trust, dated 26 June 2014, Mrs Daniels admitted that the reason for her dismissal from the Dunedin Hospital was due to non-disclosure of her employment at the Hampshire Hospital which she described as ‘a steep learning curve and one that was never to be repeated.’ Mrs Daniels informed Witness 1 during her interview on 9 June 2014 that she had been “caught” inhaling gases at the Hampshire Clinic and as a result she was dismissed.
48. The Panel was satisfied that Mrs Daniels’ non-disclosure of her employment at the Dunedin Hospital and the Hampshire Clinic was motivated by a desire to enhance the prospects of her application being successful. The Panel was unable to accept the assertion made by Mrs Daniels, in her letters to the Trust, that the non-disclosure of her employment at the Dunedin Hospital and Hampshire Clinic was to protect her confidentiality, to avoid discrimination and because she only worked at each for a brief period.
49. The Panel was satisfied that Mrs Daniels’ non-disclosure of her full employment history was deliberate and cannot be characterised as an innocent mistake particularly as she had committed a similar ‘mistake’ before. The circumstances of the non-disclosure, in deliberately withholding information which would reveal that she had been suspended pending an investigation into misconduct and withholding previous employment history would be regarded as dishonest by the standards of honest and reasonable people. The Panel was also satisfied that Mrs Daniels knew that her omissions were dishonest by those standards.
Decision on grounds
50. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2)  1 AC 311 where it was stated 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.”
51. The Panel was satisfied that Mrs Daniels’ conduct and behaviour amounts to serious misconduct as described in the Roylance case, and furthermore, taking note of the judgment in Nandi v GMC  EWHC 2317 [Admin], was also conduct that would be regarded as deplorable by fellow practitioners.
52. Mrs Daniels put her own interests above those of the patients that she was employed to serve by dishonestly completing applications forms with a view to gaining employment and by engaging in behaviour in the workplace which had the potential to impact on her professional judgment and undermine patient safety. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that Mrs Daniels’ conduct breached the following standards:
• 1 – You must not do anything…that you have good reason to believe
will put the health, safety or wellbeing of a service user in danger.
• 3 - You must keep high standards of personal conduct.
• 13 – You must behave with honesty and integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.
53. The panel also considered the Standards of Proficiency for ODPs and concluded that Mrs Daniels’ actions breached the following:
• ‘2.1’ - Understand the need to act in the best interest of service users all all times
• ‘2.6’ - Be able to practise in accordance with relevant medical legislation
• ‘3.1’ - Understand the need to maintain high standards of personal and professional conduct
54. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, Mrs Daniels’ conduct and behaviour fell far below the standards expected of a registered practitioner. Mrs Daniels’ conduct was repeated and for these reasons the Panel was satisfied that her dishonest behaviour and her inhalation of anaesthetic gases individually and collectively amount to misconduct.
Decision on impairment
55. Having found misconduct the Panel went on to consider whether Mrs Daniels’ fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.
56. In determining current impairment the Panel had regard to the following aspects of the public interest:
• The ‘personal’ component: the current competence, behaviour etc.
of the individual registrant; and
• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
57. The Panel took the view that the factual findings in relation to the inhalation of the anaesthetic gases and the factual finding of dishonesty are interlinked and that both elements involve a potential risk to patient safety. The misuse of anaesthetic gases by a health professional in the workplace demonstrates a lack of judgment and a disregard for the safety and wellbeing of patients. The dishonest completion of the two application forms was to enhance Mrs Daniels’ prospects of appointment, by denying the Trust the opportunity to make its own assessment of Mrs Daniels’ ability to safely carry out the ODP role. In the Panel’s view, Mrs Daniels’ knew that full disclosure of her employment at the Hampshire Clinic and the Dunedin Hospital would be likely to raise a legitimate cause for concern. Her decision to withhold her full employment history further demonstrated a disregard for patient safety.
58. The Panel considered Mrs Daniels’ current fitness to practise firstly from the personal perspective and then from the wider public perspective.
59. The Panel recognised that Mrs Daniels is capable of demonstrating insight. The Panel noted that, as part of the Trust investigation, she provided written statements in which she accepted some of her previous wrongdoings. These included an acknowledgement that she had not fully disclosed her employment history in her application to the Trust, nor in her application to the Dunedin Hospital and an acknowledgement of her history with regards to previous misuses of anaesthetic gases. The Panel noted that Mrs Daniels had referred herself to the Health Professions Counsel (HPC, as it then was) in 2006 following the instigation of disciplinary proceedings at the Royal Berkshire NHS Foundation Trust. That investigation related to Mrs Daniels’ misuse of anaesthetic gases. The Royal Berkshire NHS Foundation Trust subsequently issued her with a final written warning and the HPC decided to take no action in respect of her registration. The Panel also noted that Mrs Daniels was referred to the HPC by the Hampshire Clinic in 2010 for inhaling Nitrous Oxide at work. Although Mrs Daniels did not attend the 2011 Conduct and Competence hearing she engaged with the regulatory process, admitted her wrong doing and provided a reflective statement and evidence of engagement with relevant services.
60. However, there has been no engagement by Mrs Daniels with the HCPC in these proceedings and as a consequence the panel has received no new information from Mrs Daniels. The Panel has relied on the documentary evidence provided by the HCPC which includes the submissions Mrs Daniels made as part of the Trust’s disciplinary procedure. The Panel noted that within her written statements to the Trust, during its investigation, there are assertions which strongly indicate a lack of insight. For example, Mrs Daniels stated ‘…I would like to formally dispute the fact that my lack of full employment disclosure may have had made a material difference to the employment decision.’ Given the Panel’s view regarding Mrs Daniels’ motive for omitting her full employment history it does not accept this assertion. The Panel considers that this statement indicates that Mrs Daniels has no appreciation of the importance of signing declarations of truth and acting with integrity.
61. The Panel considers the misconduct relating to the inhalation of anaesthetic gases to be capable of remediation. For example, Mrs Daniels could have sought treatment or counselling to address any underlying issues that may have contributed to her behaviour. However, there is no evidence before the Panel that Mrs Daniels fully appreciates the gravity of her misconduct, there is no explanation as to how she would behave differently in the future and no assurance that such serious misconduct would not be repeated. In the absence of any information with regards to Mrs Daniels’ current insight and any steps she has taken towards remediation since the events of 2014, the Panel concluded that there is a real risk of repetition. The Panel was particularly concerned by the pattern of behaviour over an extended period of time and the two previous referrals to her regulatory body. As a consequence the Panel has determined that there is a current and ongoing risk to members of the public.
62. The Panel recognised that demonstrating remediation in a case involving dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. The Panel noted that Mrs Daniels’ dishonest conduct relates to a discrete set of circumstances, which has the potential to be remediated, provided that there is evidence of sincere and meaningful reflection that demonstrates that the dishonesty is firmly in the past and is not a deep seated attitudinal trait. However, Mrs Daniels has provided no information that would assist the Panel in this regard. Her dishonest conduct demonstrates a conscious and deliberate decision to mislead the Trust, which was repeated, even though it was for this very reason that she was suspended by the Dunedin Hospital in 2010, prior to her resignation. As a consequence of Mrs Daniels’ pattern of behaviour the Panel took the view that the risk of repetition is high.
63. The Panel concluded that for these reasons Mrs Daniels’ fitness to
practise is currently impaired based on the personal component.
64. In considering the public component the Panel had regard to the critically important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
65. In the Panel’s view the inhalation of anaesthetic gases and the dishonest omissions in the application forms are equally serious. Members of the public would be extremely concerned to learn that an ODP had inhaled anaesthetic gases whilst at work, as this clearly has the potential to compromise patient safety. Members of the public would be equally concerned by the prospect of patients being cared for by an employee whose employment history had not been properly assessed. It is critically important that recruitment processes have integrity so that only those who meet the required standards are employed. Full and accurate application forms are a vital part of that process. Members of the public would be concerned that Mrs Daniels, as an ODP, dishonestly completed application forms without regard to the risks involved to patients, based on her history of misusing anaesthetic gases, and without regard to fairness to any other applicants.
66. A significant aspect of the public component is upholding proper standards of behaviour. Mrs Daniels’ conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is not acceptable for ODP’s to dishonestly withhold information on application forms and misuse anaesthetic agents intended for patients. The Panel takes the view that Mrs Daniels posed a risk to patient safety, has brought the profession into disrepute, has breached a fundamental tenet of the profession by putting her own interests above those of the public and has repeatedly demonstrated a lack of integrity. There is a high risk that all of these features are likely to be repeated in the future.
67. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.
68. The Panel concludes that Mrs Daniels’ current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.
Decision on sanction
69. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish Mrs Daniels, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing Mrs Daniels’ interests with the public interest and by considering each available sanction in ascending order of severity.
70. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Ms Binding, on behalf of the HCPC.
71. The Panel identified the following aggravating factors:
• Both types of misconduct (misuse of anaesthetic gases and dishonest completion of application forms) were repeated
• Both types of misconduct were repeated during separate periods of employment
• There was, and there continues to be, a potential risk of harm to patients
• The absence of insight and remorse
• There have been two previous referrals to the HCPC (and its predecessor)
72. Mrs Daniels stated in 2006, when she referred herself to the HPC, and in her written submission to the 2011 Conduct and Competence Committee, that there had been mitigating circumstances which had some impact on her behaviour at that time. However, no mitigation has been provided to this Panel. Therefore, the Panel was unable to assess whether the previous mitigating circumstances have any relevance to the current matters or whether there are any new extenuating circumstances relevant to Mrs Daniels’ misconduct and current impairment.
73. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of Mrs Daniels’ repeated misconduct and dishonest behaviour and in the absence of exceptional circumstances, to take no action on her registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.
74. The Panel then considered a Caution Order. The Panel noted paragraph 22 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”
75. In view of the Panel’s findings that Mrs Daniels has demonstrated no insight into her misconduct, has provided no evidence of remediation, or any steps taken towards remediation and is likely to repeat her behaviour, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.
76. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states
"conditions of practice are unlikely to be suitable in situations where problems cannot be overcome, such as serious overall failings, lack of insight, denial or matters involving dishonesty or the abuse of service users”.
Neither the dishonesty with regards to the employment application forms, nor the misuse of anaesthetic gases are amenable to conditions, as the basis for both types of misconduct is an attitudinal failing. The Panel concluded that it would not be possible to formulate conditions which would be workable, measurable or proportionate. Furthermore, conditions would not adequately address the serious nature of the misconduct and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.
77. The Panel next considered a Suspension Order. There has been no engagement, no development of insight, no evidence of remediation or a willingness to remediate and no reflection and as a consequence Mrs Daniels continues to pose a risk to patients. A Suspension Order would provide a measure of public protection because it would address the identified risk by preventing Mrs Daniels from practising during the suspension period.
78. However, in the Panel’s view the nature and seriousness of Mrs Daniels’ repeated dishonesty and repeated misuse of anaesthetic gases has the potential to seriously undermine public confidence. Mrs Daniel’s has been referred to the regulator on two previous occasions. The current matter is as a result of her third referral and on this occasion it is aggravated by repeated dishonesty. In these circumstances a Suspension Order would not be sufficient to maintain public confidence in the profession and the regulatory process and would not have a deterrent effect on other registrants.
79. Having determined that a Suspension Order does not meet the public interest the Panel determined that Mrs Daniels’ name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those cases where there is no other means of protecting the public or the wider public interest. The Panel decided that Mrs Daniels’ case falls into this category because of the nature and gravity of her misconduct, her lack of insight and the high risk of repetition. With regard to Mrs Daniel’s non-engagement with the regulatory process the Panel noted the judgment in NMC v Parkinson  EWHC 1898:
“A [practitioner] who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct [A Striking Off Order].”
80. The Panel was also satisfied that any lesser sanction would undermine public confidence in the profession. The Panel had regard to the impact a Striking Off Order would have on Mrs Daniels, but concluded that her interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.
81. The Panel decided that the appropriate and proportionate order is a
Striking Off Order.
Order: That the Registrar is directed to strike the name of Mrs Caroline Daniels from the Register on the date this order comes into effect.
The order imposed today will apply from 9 June 2016 (the operative date).
Right of appeal:
You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the High Court in England and Wales.
Under Articles 29 and 38 of the Health and Social Work Professions Order
2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. The order made against you will not take effect until that appeal period has expired or, if you appeal during that period, until that appeal is disposed of or withdrawn.
European alert mechanism
In accordance with Regulation 67 of the European Union (Recognition of
Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practice has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public because of the risk to patient safety that has been identified. It is also otherwise in the public interest as an Interim Suspension Order will give effect to the Panel’s determination that a Striking Off Order is necessary to maintain public confidence in the profession and the regulatory process and uphold proper standards of conduct and behaviour. 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 Caroline Daniels
|Date||Panel||Hearing type||Outcomes / Status|
|09/05/2016||Conduct and Competence Committee||Final Hearing||Struck off|