Mr Justin Williams

: Operating department practitioner

: ODP23141

Interim Order: Imposed on 05 Aug 2015

: Review Hearing

Date and Time of hearing:10:00 15/02/2017 End: 12:30 15/02/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

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.

Finding

Preliminary matters
1. The Panel has been convened to undertake a review of a substantive suspension for a period of 12 months imposed in respect of the HCPC registration of the Registrant.

2. The Registrant has neither attended this hearing nor been represented at it.  The Panel therefore commenced by considering the issue of service of the notice of hearing.

Service
3. Notices of hearing were sent to the Registrant by both post and email on 19 January 2017.  The Panel has been advised of the terms of rule 13 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003, and in particular of the 28 day period referred to in that rule.  This hearing is being held one day short of the 28 day period, but the Panel has concluded that service has been effected.  The reasons for this decision were as follows:
• The hearing is being held one day early.
• There is no risk of prejudice to the Registrant by the hearing being held a day early.  He has not sought an adjournment, and he has not suggested that the reasons he has not attended the hearing today would not apply on a later date.  Furthermore, he has made full submissions in writing to the Panel.
• There is a real risk that jurisdiction to undertake a review would be lost if the matter was not considered at the present time.
• For all these reasons the Panel found that the wider public interest required a finding that service had been effected.

Proceeding in absence
4. After the Panel announced its decision that service had been effected, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant.  Having heeded the advice it received, that great care should be exercised before making such a direction, the Panel acceded to this application.  The reasons for this decision were as follows:
• A review of the suspension order is required to be undertaken no later than 17 March 2017.  If the review does not proceed as planned today it would be extremely difficult for a review to be scheduled, and for proper notice of it to be provided, before that date.
• The Registrant has had an opportunity to make submissions for the Panel, and has made those submissions in writing by his email dated 1 February 2017.
• The Registrant has not sought an adjournment of the hearing.
• For these reasons the wider public interest in an expeditious hearing of the review outweighs the absence of the Registrant.

Decision
5. The Registrant commenced employment with the BMI Bath Clinic as a Theatre Practitioner in Anaesthetics in September 2004.  He subsequently became a Senior Theatre Practitioner.  In this role the Registrant worked on a daily basis in operating theatres where patients were undergoing operations.

6. On Saturday 24 May 2014 the Registrant was working in theatre and was responsible for “closing down” the theatre once the patient list was complete.  On the next day when the theatre was used it was discovered that the theatre had not been correctly shut down in the specific respects detailed in Particulars 1(a) to (d) of the Allegation.

7. The incident on 19 December 2014 arose when the Registrant planned to switch a patient from one anaesthetic machine to another, but he failed to identify that the machine in use had an incorrectly fitted reservoir bag and erroneously chose to replace the machine rather than identify and rectify the error.  This problem was identified by the Lead Theatre Practitioner who was present, and the operation continued as planned.

8. So far as is material for the purposes of the present review, the history of the fitness to practise proceedings is as follows:
• On 10 April 2015 the HCPC received a referral from the Registrant’s employer concerning the incident on 19 December 2014.
• When the HCPC subsequently received a copy of the employer’s investigation report it learnt of the failure to close down the theatre on 24 May 2014.
• The final hearing of the allegations, which the Registrant did not attend, was held between 16 and 18 February 2016.  The final hearing Panel found all of the factual Particulars proved, and also decided that they amounted to misconduct that was then impairing the Registrant’s fitness to practise.  The final hearing Panel found that there were various aggravating factors, namely the fact that there was potential for harm to colleagues and service users, potential for delay to patient care, a repetition in lapses in concentration, limited insight and a reluctance to engage in training and education.  The mitigating factors identified by the final hearing Panel were that there was no evidence of harm, the fact that the Registrant had admitted his actions and apologised for them and an absence of a history of similar incidents. The final hearing Panel also noted from the witness evidence that the Registrant had had health issues in 2014 - 2015.
• The sanction imposed by the final hearing Panel was the Suspension Order currently being reviewed.  That Panel determined that the appropriate length of the Order was 12 months, being a sufficient period for the Registrant to reflect, to take remedial action and to provide evidence for a reviewing Panel.  When informing the Registrant that the Order would be reviewed before it expired, the final hearing Panel suggested to the Registrant that a reviewing Panel might be assisted by the following:
(a) a reflective statement covering both incidents and the responses he made at the time of the incidents were raised with him;
(b) if health issues were relevant to the incidents, evidence from him and/or his G.P. 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 taken by him;
(e) evidence that he has maintained his CPD;
(f) if he has been working in the healthcare field, a reference or testimonial from his employer.

9. At the present review the Presenting Officer did not submit that the Panel should make any particular order.  She did, however, urge the Panel to have regard to the HCPC’s Indicative Sanctions Policy.  She also asked the Panel to have regard to three points, namely, whether there was evidence that the Registrant had maintained his professional knowledge, whether he had shown sufficient insight into his behaviour and whether it could be said that the Registrant would not repeat the behaviour found against him.

10. The Registrant has advanced his case by way of a lengthy email dated 1 February 2017.  The Panel has fully considered his submissions in reaching its decision.

11. In undertaking this review the Panel has applied the followed the following principles:
• The findings of the final hearing Panel made in February 2016 are now settled and not open to be questioned.
• The issue for the present Panel is to decide whether the findings made in February 2016 require the imposition of a sanction when the present period of suspension ends on 17 March 2017.  In making this decision the Panel is not only required to take into account the findings made in February 2016 in relation to the allegations, but also all that has and has not occurred in the period between the final hearing in February 2016 and the present time.
• In deciding on the issue of sanction, ordinary sanction considerations apply.  In particular, a sanction is not to be imposed to punish.  Rather, a sanction should be the least restrictive order consistent with the need to protect the public (including potential service users) and to maintain a proper degree of confidence in the registered profession and the regulatory process currently being undertaken.  The fact that there has been a period of suspension for 12 months does not give rise to a presumption that there will be a further sanction, still less that it should be one of a further period of suspension.  If the Panel determines that a further sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that sufficiently addresses the issues of public protection and the maintenance of confidence just referred to.  The sanction powers available when undertaking a review are those that were available to the preceding Panel.  As the sanction of striking-off was available to the final hearing Panel, that sanction is available to the present Panel in undertaking this review.

12. The Panel acknowledges that, by the submissions he has made in his email dated 1 February 2017, the Registrant has acknowledged his shortcomings and expressed remorse and regret.  He has also provided evidence that he has begun to reflect on his actions when measured against professional requirements. The Panel recognises the significant mitigation that the Registrant has now disclosed in terms of close family bereavements and other personal issues. However, the present Panel considers that there are gaps in the information the Registrant has provided.  They concern important aspects which would need to be addressed for it to be concluded that the risk of repetition is no longer present and that the Registrant may be allowed to return to practise.  These areas are as follows:
• The Registrant has provided evidence from his G.P. relating to his health at the date of the two incidents, but he has not provided equivalent evidence of his current health status.
• There is no substantive or independent evidence of continuing training or Continuing Professional Development such as certificates of attendance, course details or critiques of the reading he has undertaken.
• There are no testimonials relating to work he has undertaken since leaving the employment of BMI Bath Clinic.

13. The Panel has considered the matter in accordance with the principles outlined above, but has concluded that it would not be appropriate to permit the Registrant to return to practise at the present time. The consequence of this is that a further period of suspension is required.  On this occasion the Panel considers that a period of 6 months is appropriate.  It is long enough for the Registrant to gather the further evidence indicated as necessary by the Panel and any further evidence he considers to be relevant.

14. It is always open to a Registrant to seek an early review if the evidence available to them justifies such a request.

15. The further period of suspension ordered today will be reviewed before it expires.  Whether a registrant attends the review hearing is entirely a matter for them, but the present Panel thinks that it will assist a reviewing Panel if The Registrant is present to speak to his evidence of reflection and remediation. For that reason the Panel would urge him to consider attending the future review.

Order

With effect from the expiry of the present period of suspension, namely with effect from 17 March 2017, the Registrar is directed to further suspend the registration of Mr Justin Williams for a period of 6 months.

Notes

This order will be reviewed again before its expiry on 17 September 2017.

Hearing history

History of Hearings for Mr 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