Mr Shane Wood

: Operating department practitioner

: ODP26225

Interim Order: Imposed on 05 May 2016

: Final Hearing

Date and Time of hearing:10:00 27/03/2017 End: 17:00 28/03/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as an Operating Department

Practitioner at County Durham and Darlington Trust you:

 

1. Between 28 and 29 November 2015, incorrectly assembled the

anaesthetic breathing equipment on nine anaesthetic machines.

 

2. Your actions in paragraph 1 were done with the intention this would impact on the anaesthetic breathing equipment working correctly.

 

3. The matters set out in paragraph 1 constitute misconduct and/or lack of competence.

 

4. The matters set out in paragraph 2 constitute misconduct.

 

5. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

 

Preliminary Matters

Service of Notice

1. The notice of the hearing was sent to the Registrant at his address as it appeared in the register on 30 November 2016. The notice contained the date, time and venue of the hearing.

2.  The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of the hearing has been served in accordance with the rules.

Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Conduct and Competence Committee Rules. In doing so, it considered the submissions of Mr Kewley on behalf of the HCPC.

4.  Mr Kewley submitted that the HCPC had taken all reasonable steps to serve the notice on the Registrant. Mr Kewley stated that the Registrant had not engaged with the HCPC since he self-referred this matter, and that an adjournment would serve no useful purpose. Mr Kewley reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5.The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel was satisfied that all reasonable efforts had been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant.

6. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”. It was also clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

7.  It was clear, from the principles derived from case law, that the Panel was to ensure that fairness and justice was maintained when deciding whether or not to proceed in a Registrant’s absence.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.

9.   In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibilities for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

10.In reaching its decision the Panel took into account the following:

·            The Registrant had not engaged in these proceedings since he self-referred these matters to the HCPC.

·            The Registrant had not made an application to adjourn today’s hearing.

·            The HCPC witnesses had attended and were ready to give evidence.

·            There is a public interest that this matter proceeds.

11. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. It determined that, in the light of the non-engagement from the Registrant, it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest in the expeditious disposal of this case against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Background

12. The Registrant commenced employment at County Durham and Darlington NHS Foundation Trust (“UDND”) in 1989, and worked as an ODP since 2006, specifically in Theatres at UDND since March 2014.

13. The Registrant was alleged to have incorrectly assembled anaesthetic breathing equipment for nine machines whilst on a night shift. It was discovered by an Anaesthetist, Witness 2, the following morning.

14. The matter was investigated by Witness 1, who was the Registrant’s line manager at the time. Prior to this, Witness 3 was the Registrant’s line manager.

Decision on Facts

15. The Panel considered all the evidence in this case together with the submissions made by Mr Kewley on behalf of the HCPC.

16.The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities. This means if the Panel was satisfied that it was more likely than not a factual particular occurred as alleged or is true, then it must find that Particular proved.

17.The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

·          Witness 1, Practice Development Sister (Theatres) at UDND.

·          Witness 2, Consultant Anaesthetist in the Department of Anaesthesia at University Hospital of North Durham.

·          Witness 3, Band 6 Principal Operating Department Practitioner at UDND.

18. The Panel found all three witnesses to be an honest credible witnesses.

19. The Panel also received a bundle of documentary evidence which included:

·          An email from the Registrant to Witness 3, wherein the Registrant admits that he made the mistakes in relation to the incorrect assembling of the nine machines;

·          The investigatory interview of the Registrant, where he again made the admission that he made the mistake in relation to the incorrect assembling of the nine machines;

·          The training records of the Registrant.

Particular 1

20. The evidence is clear that the Registrant incorrectly assembled the parts involved for each of the nine anaesthetic machines. In each case the same assembly was involved, and in each case he had left out the connecting part between respiratory bag and the respiratory tubing. The witnesses stated that the Registrant had forced the tubing into the respiratory bag that was of the same diameter as the tubing. The connecting part was meant to securely connect the two together.

21. In his investigatory interview with Witness 1, the Registrant admitted that he had connected the tubing into the respiratory bag by deforming the tubing in order to insert it directly into the bag.

22. Accordingly the Panel finds this particular proved.

Particular 2

23. The Panel noted that this Particular alleged that the Registrant acted with the specific intent that his actions would adversely affect the equipment concerned. The Panel was aware that specific intention is a concept that stands on its own. It is not the same as negligence, carelessness, or a slipshod approach to practice.

24.The Panel noted that the witnesses’ evidence as below:

a)  Witness 1 stated that she “did not get an impression that the errors were intentional.” She also stated that at no point in her investigation did she have a suspicion that the Registrant’s actions were intentional or done with a specific intention.

b)  Witness 2 stated that he could not “comment on whether the incorrect assembling of the anaesthetic breathing was intentional.”

c)   Witness 3 stated that he “was not aware of any reason why the incorrect assembling of the anaesthetic breathing equipment would have been intentional.”

25. Witness 3 told the Panel that, as the Principal ODP, he was familiar with the parts of the assembly and where they were stored. He told the Panel that the tubing was kept in a separate storage cupboard from the bags and the connecting parts. In particular, he told the Panel that the bags and connecting parts were kept in the same cupboard, but that they were stored separately. He told the Panel that it was possible the Registrant forgot to include the connecting part when he was gathering the replacement parts. He accepted that if the Registrant was not aware that he had made a mistake at the first machine, he would likely not realise he had made a mistake each time. He told that Panel that it was not the case that the Registrant would have been left with a spare connector part after each assembly that he completed.

26.The Panel was aware that this allegation is extremely serious. The Panel was aware that the more serious the allegation, the less likely it is that the event occurred and hence the stronger the evidence should be before a panel should conclude that the allegation is established on the balance of probabilities.

27. There was no evidence to show that the Registrant intentionally misassembled the breathing equipment. Accordingly there was no evidence from which the Panel could properly infer that the Registrant intended his actions to adversely impact the machines.

28. The Panel determined that Particular 2 is not proved.

Decision on Grounds

29. The Panel heard submissions from Mr Kewley on behalf of the HCPC. He submitted that, although on the night in question, the Registrant had wrongly assembled nine anaesthetic machines, it was not a fair sample by which the Panel could conclude that it amounted to a lack of competence. The evidence did not suggest that the Registrant did not know how to assemble the equipment correctly. Mr Kewley went on to submit that misconduct was the appropriate statutory ground that applied in this case. The misconduct was serious and had the potential to cause serious harm to patients.

30. Mr Kewley further submitted that the Registrant had breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics: 1. Mr Kewley further submitted that the Registrant had also breached the following paragraphs of the HCPC’s Standards of proficiency for Operating Department Practitioners: 1.1, 1.2, 3.1, 15.1, and 15.6

31. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:

a)  Calhaem v GMC [2007] EWHC 2606 (Admin)

b)   Roylance v GMC (2000) 1 AC 311

32. The Panel accepted the advice of the Legal Assessor. The Panel exercised its own judgement in determining the issue before it. In considering the Registrant’s fitness to practise, the Panel reminded itself of its duty to protect patients, and of its wider duty to protect the public interest, which included the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process.

33. The Panel considered that the Registrant had breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics:

1.  You must act in the best interests of service users.

34.  The Panel also determined that the Registrant had breached the following paragraphs of the HCPC’s Standards of proficiency for Operating Department Practitioners:

1.1  know the limits of their practice and when to seek advice or refer to another professional

1.2   recognise the need to manage their own workload and resources effectively and be able to practise accordingly

3.1  understand the need to maintain high standards of personal and professional conduct

15.1  understand the need to maintain the safety of both service users and those involved in their care

15.6 be able to establish safe environments for practice, which minimise risks to service users, those treating them and others, including the use of hazard control and particularly infection control.

35. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It was also aware that that mere negligence does not constitute Misconduct. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to Misconduct. A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions.

36. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.

37. Witness 3 told the Panel that the task of assembling of those constituent parts of the machines was a basic skill taught to newly qualified ODPs. It required no specialist expertise, minimal manual dexterity, only involved three separate parts, and would take approximately 15 seconds. The Panel heard that the Registrant knew how to assemble those parts as he had done them countless times before, as had other ODPs. The witnesses told the Panel that it was standard procedure for the machines to be checked each morning before their use, and both an ODP and an Anaesthetist carry out such checks. Nevertheless, the failure of the Registrant on this occasion to include the connector parts could have had catastrophic consequences if his error had not been identified in the subsequent checks.

38. Witness 3 told the Panel that when he spoke to the Registrant about the error, the Registrant was unable to give a good reason as to why the error occurred and did not appear to understand what his error was. Witness 3 described the Registrant as appearing blasé. In the light of the evidence outlined above, the Panel determined that the Registrant was grossly negligent in the manner he approached the task of assembling those parts, and that his gross negligence amounted to Misconduct for the purposes of regulatory proceedings.

39. Accordingly the Panel finds that the facts found proved amounted to the statutory ground of Misconduct.

Decision on Impairment

40.  The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel heard the submissions of Mr Kewley, and it accepted the advice of the Legal Assessor.

41. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

42. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:

a)     has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or

b)     has in the past brought and/or is liable in the future to bring the [Operating Department Practitioner] profession into disrepute; and/or

c)     has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the [Operating Department practitioner Profession]?”

43.The Panel determined that the answers to all the above questions were in the affirmative in relation to past, and future possible conduct. In coming to its decision it took into account the following factors:

a)   The direct consequence of the misassembling of the parts was that patients were put at unwarranted risk of harm.

b)  The Registrant’s actions were so grossly negligent that they had brought the ODP profession into disrepute.

c)  The Registrant has failed to engage with the process and has not attended the hearing to tell the Panel what, if any, insight he has gained into his actions. The Panel noted that the reason for the Registrant’s gross negligence on that day has never been established.

d)  There was no evidence of any insight on the part of the Registrant. This is a matter of misconduct, and there can only be very limited remediation without insight. There has been no evidence of any action taken by the Registrant to remediate his misconduct. Therefore there was a real risk of repetition of gross negligence on the part of the Registrant.

44. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment were not made in these circumstances.

45. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.

Decision on Sanction

46. The Panel heard the submission of Mr Kewley with regard to sanction.

47.The Panel accepted the advice of the Legal Assessor.  The Panel had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

48. The Panel considered the aggravating factors in this case to be:

a)     The Registrant has not demonstrated any insight or remorse or engaged effectively with the regulatory process.

b)     The Registrant’s misconduct had the potential for extremely serious consequences for patients.

c)     The Registrant’s misconduct related to nine anaesthetic machines, albeit all on one occasion.

d)     The Registrant was a practitioner of many years’ experience, had carried out the process of assembling the equipment often in the past and the process itself was simple and basic.

49. The Panel considered the following to be mitigating factors in this case:

a)  The Registrant has been of good character.

b) This is a single incident in an otherwise unblemished career.

c)  The Registrant did admit his failing at the first opportunity.

d)  The Registrant did not seek to apportion blame.

50. In considering the matter of sanction, the Panel started with the least restrictive, moving upwards.

51. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct, this would be wholly inappropriate.

52.The Panel then considered whether to make a Caution Order. The Panel was mindful of its finding that the Registrant was likely to repeat his misconduct. These matters are too serious for a caution order to be considered appropriate.

53. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant has not demonstrated insight into his misconduct. This was not a case where the Registrant’s clinical skills are in question. These are matters involving attitudinal issues, which cannot be addressed by the imposition of conditions of practice without insight having been demonstrated first.

54. Taking into account all of the above, the Panel concluded that conditions could not be formulated which would adequately address the risk posed by the Registrant, and in doing so protect patients, colleagues and the public during the period they are in force.

55.The Panel went on to consider whether a period of suspension would be appropriate in this case. A period of suspension would be appropriate if the Registrant had demonstrated insight into his misconduct such that there was not a significant risk of repetition, and also if there was no evidence of deep seated personality or attitudinal problems.

56. Unfortunately, that is not the case here. The Registrant has disengaged from the process, and has not provided any evidence of insight or remorse.  The Registrant has breached a fundamental tenet of the profession and the Panel has determined that there is a significant risk of repetition of his misconduct. Furthermore, the Registrant has not demonstrated a commitment to remaining in the profession or taken any steps to remediate his failings or shown any inclination to do so.

57. In any case, the Panel determined that a period of suspension would be insufficient to mark the Registrant’s very serious misconduct.

58.   In that light, the Panel determined that even the maximum period of suspension would not serve to protect the public in the long term.

59.With regard to the wider public interest, the public must be assured that, when subject to procedures requiring anaesthesia, the highest standards are required of the Operating Department Practitioners who provide their safe care. A blasé attitude to safety aspects of their work is totally unacceptable, particularly with regard to life critical machines.

60.  Therefore, the Panel is satisfied that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a Striking-Off Order.

 

Order

ORDER: The Registrar is directed to strike the name of Mr Shane Wood from the Operating Department Practitioner part of the Register.

Notes

The Order imposed today will apply from 25 April 2017 (the operative date).

Hearing history

History of Hearings for Mr Shane Wood

Date Panel Hearing type Outcomes / Status
13/04/2017 Conduct and Competence Committee Interim Order Review Hearing has not yet been held
27/03/2017 Conduct and Competence Committee Final Hearing Struck off