Jamie S Broadbent

: Operating department practitioner

: ODP35560

Interim Order: Imposed on 06 May 2016

: Final Hearing

Date and Time of hearing:10:00 28/11/2016 End: 17:00 28/11/2016

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as an Operating Department Practitioner you were

convicted on 29 January 2016 at Teeside Magistrates Court of:

 

1. On 28 August 2015 at Stockton-On-Tees had in your possession a quantity of cocaine a controlled drug of Class A in contravention of section 5(1) of the Misuse of Drugs Act 1971 contrary to section 5(2) of and schedule to the Misuse of Drugs Act 1971.

 

2. That between 8 September 2014 and 28 August 2015 at Stockton-On-Tees you stole midazolam, diazepam, ketamine and associated medical equipment, of a value unknown belonging to North Tees Hospital contrary to Section 1(1) and 7 of the Theft Act 1968.

 

By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary matters

 

Service

 

1.             The Registrant has been given Notice of today’s hearing, by letter dated 31 August 2016 sent to the registered address of the Registrant, in accordance with Rule 3 of the Procedure Rules 2003, which state: In these Rules a reference to the sending of a notice or other document to any person is a reference to it being sent—… (b) in the case of a health professional, to his address as it appears in the register…(2) All communications to be sent for the purposes of these Rules may be sent by post and any such communication shall be treated as having been sent on the day on which it was posted.

 

Proceeding in absence

 

2.             The Panel next considered whether to proceed with the hearing in the absence of the Registrant. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled “Proceeding in the Absence of the Registrant” (dated September 2016) and followed that advice. The Panel carefully considered the HCPC bundle of documents and the email response from the Registrant (dated 7 November 2016) stating that he does not intend to appear at the hearing due to financial difficulty.

 

3.             The Presenting Officer submitted that the Registrant had chosen not to attend the hearing today and had asked for his written submissions to be taken into account. The hearing should proceed in the Registrant’s absence today, because there is nothing in the papers to indicate that he would be likely to attend if this matter were to be adjourned, and it is in the public interest to proceed with this hearing today.

 

4.             The Presenting Officer told the Panel, in response to their enquiries, that no application had been made by the Registrant for financial assistance to enable him to attend the hearing today and the notice of hearing does state that: “If you have any particular requirements regarding the hearing, please notify us in advance and, where possible and practicable, we will try to accommodate them”.

 

5.             The Panel concluded that the Registrant is aware of the hearing today and has waived his right to attend this hearing. He has provided written representations relevant to the proceedings. The Panel is satisfied that a fair hearing can take place in the absence of the Registrant today, and that it is in the public interest for this hearing to proceed, given the serious offences of which the Registrant has been convicted.

 

6.             However, the Panel wishes to register disappointment that the HCPC had failed to reply to the Registrant’s email dated 7 November 2016, with specific information concerning the circumstances in which the HCPC might fund travel costs, or arrange for a Registrant to attend a hearing by telephone.

 

Conviction and caution allegations

 

7.             Article 22(1)(a)(iii) of the Health and Social Work Professions Order 2001 provides that one of the grounds upon which an allegation may be made is that a Registrant’s fitness to practise is impaired by reason of: “(iii) a conviction or caution in the United Kingdom for a criminal offence…”

 

8.             Conviction and caution allegations are not about punishing a registrant twice. The Panel was advised by the Legal Assessor to consider the guidance in the HCPC Practice Note entitled Conviction and Caution Allegations and followed that advice. The Practice Note states: A conviction or caution should only lead to further action being taken against a registrant if, as a consequence of that conviction or caution, the registrant’s fitness to practise is found to be impaired. …

 

 

Background

 

9.             The Registrant is an HCPC registered Operating Department Practitioner (ODP). He was employed as an ODP at North Tees Hospital. He was arrested on 28 August 2015 at the hospital, his locker was searched and a quantity of cocaine was found. His home address was then searched and empty drug ampoules were found which had been taken from the Hospital and would have contained Diazepam, Midazolam and Ketamine. A drug ampoule which would have contained Diazepam was also recovered from the Registrant’s brother’s home. The Registrant admitted taking partly-used ampoules of sedatives from the Hospital for his own use, and that he was a cocaine user. The drugs Diazepam, Midazolam and Ketamine are used in the Hospital operating theatre during operations.

 

10.           The Hospital manager had stated that the Registrant’s behaviour had the potential to compromise patient safety. The drugs stolen should only be used in specialised areas by trained professionals and use outside the hospital environment by an untrained person could have serious consequences. The Judge who sentenced the Registrant stated that the Registrant was addicted to drugs and that this was a very hazardous addiction for an ODP, as was his use of cocaine. The theft offence was described by the Judge as “a gross breach of trust”. The mitigating circumstances were the guilty pleas, the drug treatment participation, and employment record of the Registrant.

 

11.           He was convicted of offences of possession of a Class A controlled drug and theft on 29 January 2016 following pleas of guilty. He was sentenced on 25 February 2016 at Teesside Crown Court to imprisonment for 8 months, suspended for 24 months, with a rehabilitation activity requirement to carry out unpaid work for 120 hours. He was ordered to pay a victim surcharge of £100 and prosecution costs of £100.

 

 

Decision on Facts and Grounds

 

12.           The HCPC relied on the certificate of conviction to prove the facts and statutory ground of the conviction and sentence.

 

 

Decision on Impairment

 

13.           The Panel considered the HCPC Practice Note on “Finding that Fitness to Practice is Impaired”. 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.

               

14.           The Panel finds that the Registrant failed to comply with the following HCPC Standards of Conduct Performance and Ethics, namely:

 

6.3           You must make changes to how you practise, or stop practising, if your physical or mental health may affect your performance or judgement, or put others at risk for any other reason

 

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

 

15.           The Registrant has engaged with the HCPC. He accepted that he has an addiction and has taken steps to deal with it, and this has been confirmed by evidence from January 2016 that he had then abstained for a period of five months. He has gained insight from a Drug Treatment course and the Court process. He made full admissions in interview with the police, the pre-sentence report concluded that there was a low risk of the Registrant re-offending and he was given unconditional bail. He has provided testimonials as to his previous good character and charity work as a St John’s Ambulance volunteer. He has no previous convictions.

 

16.           However, it is not clear to the Panel today that, although the Registrant recognises his failings, he fully accepts that his addiction could have caused his work performance to be affected. Nor is it clear that he fully accepts that his theft potentially enabled unauthorised persons to have access to controlled drugs, with potentially harmful results. There is no up-to-date independent evidence to corroborate the progress the Registrant says he has made and that he remains drug free. The Panel has taken into account the Registrant’s email of 7 November 2016 and all his earlier representations. There currently appears to be a low risk of repetition, but the serious risk posed by his behaviour, both to patients and to other members of the public who could have gained access to the drugs he had removed, is serious. As well as stealing from his employer, the Registrant was also in possession of a Class A controlled drug and has admitted an offence of dishonesty, which was a serious breach of trust, as the sentencing Judge made clear.

 

17.           In considering impairment, there is no definition to be relied upon and it is a matter for the judgment of the Panel; there is no burden or standard of proof to be applied at this stage. It is important to note that the test of impairment is expressed in the present tense: that fitness to practise is impaired at the current date.

 

18.           In considering this stage of the process, the Panel has taken into account the “critically important public policy issues” identified by the High Court in the case of Cohen v GMC, namely “the need to protect the individual [service user] and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect… and that public interest includes amongst other things the protection of [service users] and maintenance of public confidence in the profession”.

 

19.           The Panel’s role is to protect the public and maintain the high standards and reputation of the profession concerned. In considering the nature, circumstances and gravity of the offence, panels need to take account of public protection in its broadest sense, including whether a registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession. In doing so, panels are entitled to adopt a 'retrospective' approach and consider the conviction as if a registrant was applying for registration with the HCPC. In considering any sentence imposed, panels need to give careful consideration to the terms of any sentence but, generally, in accordance with the case of CRHP v GDC and Fleischman [2005] EWHC 87 Admin, should regard it as inappropriate to allow a registrant to remain in or return to unrestricted practice whilst they are subject to a sentence.

 

20.           In addition to the factors cited above, the Panel notes that the Registrant’s suspended sentence does not expire until February 2018.

 

21.           Accordingly, the Panel finds that the Registrant’s fitness to practise is currently impaired on both the personal and public policy grounds.

 

 

Decision on Sanction

 

22.           The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. The Panel has followed the advice of the Legal Assessor to consider the HCPC “Indicative Sanctions Policy”.

 

23.           The Panel has considered the mitigating and aggravating factors before considering (in ascending order) what, if any, sanction to impose.

 

24.           The Panel has also taken into account the need to deter other registrants and to convey a message to the profession in relation to the high standards of professional conduct to be expected of ODPs. It is also necessary to maintain confidence in the regulatory process.

 

25.           The aggravating features are that:

 

               The Registrant had been using Ketamine, Diazepam, and Midazolam for a number of years. Access to such drugs in the operating theatre is a routine part of the ODP role and abusing them was a serious breach of trust;

 

               The Registrant was also using cocaine;

 

               He was sentenced on 25 February 2016 at Teesside Crown Court to imprisonment for 8 months, suspended for 24 months, so he will be subject to a suspended sentence until 25 February 2018;

 

               The dishonesty offence of theft was described by the Judge as “a gross breach of trust”;

 

               The Registrant’s behaviour had the potential to compromise patient safety.

 

26.           The mitigating factors in this case are:

 

               The guilty pleas and admissions to the police;

 

               He is of previous good character and also has positive testimonials and character reference;

 

               His undertaking of a drug treatment course and the employment record of the Registrant;

 

               His voluntary work, including with St John’s Ambulance;

 

               There currently appears to be a low risk of repetition in this case.

 

27.           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.

 

28.           The Panel first considered whether to impose no sanction in this case and decided that would be inappropriate, given the seriousness of the convictions and that the Panel has found there is current impairment on both personal and public policy grounds.

 

29.           This is not an appropriate case for mediation.

 

30.           The Panel next considered imposing a caution order.

 

31.           The Indicative Sanctions Policy states that a caution order should 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 not high and thus suspension from practice would be disproportionate.

 

32.           A caution order is not appropriate and proportionate to ensure the Registrant maintains proper professional standards in future and is also insufficient to uphold the standards of behaviour. This is an insufficient sanction to convey to the profession that high standards are expected of ODPs in respect of their conduct towards the public, particularly given that the Registrant’s suspended sentence will not expire until February 2018.

 

33.           The Panel next considered whether imposing conditions of practice was appropriate. The Registrant has not practiced as an ODP since August 2015 but stated in an email dated 24 June 2016 that he would wish to remain on the HCPC register “with a supervision order”. The Panel took this to mean that the Registrant was asking for a Conditions of Practice Order. The Panel finds workable conditions of practice cannot be formulated which are appropriate in this case. This is because being responsible for drugs is an intrinsic part of the work of an ODP, yet it is this very part of the role that the Registrant has abused.

 

34.           The Panel has therefore considered whether a period of suspension is appropriate. A 12 month Suspension could enable the Registrant to demonstrate that he has successfully overcome his drug problems, before possibly returning to practise as an ODP. The Panel has therefore decided that a period of suspension for 12 months is appropriate and the Panel concludes a 12 month suspension order would be proportionate and sufficient to protect the public.

 

35.           Before reaching a final conclusion, the Panel also considered whether imposing a striking off order was necessary; but decided that this was unnecessary, in view of the possibility of full remediation. Therefore, striking off would be disproportionate.

 

36.           This Order will be reviewed before it expires and an early review may be requested if there has been a change in circumstances.

 

37.           The reviewing Panel is likely to be assisted by:

 

               The attendance of the Registrant, in person, or by telephone;

 

               Up-to-date, independent evidence of the Registrant’s continued abstinence from drugs;

 

               Confirmation that any appropriate Continuing Professional Development has been undertaken;

 

               A written reflective piece from the Registrant on the risks for him of working as an ODP with access to drugs and coping with workplace stress;

 

               Evidence of his insight in respect of the potential impact of his behaviour upon patient safety and the risk to the public of removing drugs from the controlled environment of a hospital.

Order

That the Registrar is directed to suspend the registration of Mr Jamie S Broadbent for a period of 12 months from the date this order comes into effect.

 

Notes

The order imposed today will apply from 26 December 2016.

 

This order will be reviewed again before its expiry on 26 December 2017.

Hearing history

History of Hearings for Jamie S Broadbent

Date Panel Hearing type Outcomes / Status
30/11/2017 Conduct and Competence Committee Final Hearing Suspended
28/11/2016 Conduct and Competence Committee Final Hearing Suspended