Mr Neil Bamsey

: Operating department practitioner

: ODP12042

Interim Order: Imposed on 03 Jan 2017

: Final Hearing

Date and Time of hearing:10:00 12/04/2017 End: 17:00 13/04/2017

: 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 with Heart of England NHS Foundation Trust, you:

 

1)    Engaged in an inappropriate relationship with Patient X, in that you:

a)    on 12 September 2013 gave Patient X your Trust mobile telephone number;

b)    between 12 September 2013 and 24 September 2013, contacted Patient X by texting her a number of times from your Trust mobile telephone;

 

c)    on 13 September 2013 met with Patient X when there was no clinical reason to do so;

 

d)    on 13 September 2013 took Patient X to a disused area of the Good Hope Hospital, namely the RSU theatre, when there was no clinical reason to do so;

 

e)    on 13 September 2013 whilst inside a disused area of the Good Hope Hospital, namely the RSU theatre, had sexual intercourse with Patient X; and

 

f)     on 24 September 2013 called Patient X from your Trust mobile telephone.

 

g)    on an unknown date between September and December 2013, engaged in oral sex with Patient X; and

 

h)   on an unknown date between September and December 2013, had sexual intercourse with Patient X

 

2)    In your contact with Patient X after 12 September 2013, influenced her to give to your employers and / or the police:

a)    an alternative account to the one that she had initially given the Community Mental Health Team; and

b)    an account which was not true.

 

3)    Your actions described at paragraph 1d were sexually motivated.

 

4. Your actions described in paragraph 2 were dishonest.

 

5. The matters described in paragraphs 1 - 4 constitute misconduct.

 

6. By reason of that misconduct, your fitness to practise is impaired.

Finding

Preliminary matters:
1. The Registrant, Neil Bamsey, did not attend the hearing and was not represented. The HCPC was represented at the hearing by Elisabeth Acker of Counsel instructed by Kingsley Napley.

Preliminary Application - Adjournment
2. A preliminary application was made by Ms Acker to adjourn the hearing on the basis that one of the witnesses called for the HCPC, Witness 5, could not attend this week because of a very recent close personal bereavement. It was her submission that Witness 5 was the person to whom Patient X had reported the events which are alleged to have occurred on 13 September 2013 and he was able to give direct evidence of what was said to him. Ms. Acker informed the Panel that Patient X is a vulnerable service user with mental health difficulties who has indicated that she does not want to attend to give oral evidence in these proceedings. It was Ms. Acker’s submission that it would be in the interests of justice for this hearing not to be opened but for the Panel to adjourn the case and for it to be re-listed by the HCPC at a time when Witness 5 would be able to attend. She said that it was the HCPC’s position that fairness to the parties included the expeditious disposal of the case and that this could best be achieved by the HCPC having the flexibility to re-list the case as soon as practicable. It was her submission that, if this Panel were to open the case, it would be seized of the matter and therefore only this Panel could then proceed to hear the case when it resumed. In practical terms, this meant that the hearing could only resume at a time when the three members of the Panel had availability at the same time. On the other hand, the HCPC could appoint an entirely new Panel to hear the case relatively quickly. She submitted that fairness to the parties included fairness to the Registrant and that his interest in the proceedings being dealt with expeditiously would not be prejudiced by a short adjournment. In any event, he has not engaged with these proceedings and has not attended today. It was her submission that it might be anticipated that he would not attend the resumed hearing. Accordingly, there would be little if any inconvenience to him. For these reasons, she invited the Panel to adjourn the proceedings.

3. The Panel gave careful consideration to the application to adjourn. In doing so it has accepted the advice of the Legal Assessor. The Panel has had the opportunity to read the documentary evidence in advance of the hearing and has noted what was said by Ms. Acker about the desirability of being able to hear the evidence of Witness 5. The Panel has borne in mind the interests of justice including the public interest in this case being heard as soon as possible as well as its duty of fairness to both parties. The Registrant has not engaged with this hearing other than to complete a pro forma response to the allegations. He is not present and the Panel is therefore unable to seek his response to the application. The Panel has also borne in mind that four witnesses have been called to attend the hearing and are due to give evidence over the course of the first and second days of this hearing. The Panel has considered the inconvenience to them and to their employers if this hearing were to be adjourned at short notice. The members of the Panel have also considered their availability over the next few months and consider that they can offer dates in the reasonably near future which would be comparable to the dates suggested by the HCPC if the case were to be re-listed before a different Panel.

4. For all these reasons, the Panel has determined not to accede to the application and will proceed to hear the case. The Panel recognises that it is likely that the case will have to be adjourned towards the end of the second day.          

Service and Proceeding in Absence
5. The Panel has heard that notice of the hearing had been properly served on the Registrant at his address as it appears on the Register. The Panel is satisfied that notice of the hearing had been served on him in accordance with Rule 3 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the “Rules”). The Panel is also satisfied from the pro forma response form completed by the Registrant on 24 April 2016 that he is aware of these proceedings.

6. The Panel next considered whether to proceed in the Registrant’s absence under Rule 11 of the Rules. The Panel accepted Ms. Acker’s submission and also the Legal Assessor’s advice. The Panel reminded itself that its discretion to do so was one which must be exercised with the utmost care and caution. The Registrant had indicated on his response proforma that he did not intend to attend or to be represented at this hearing. His response proforma form also contained certain admissions and denials of specific Particulars. He admits Particulars 1(a), 1(b) and 1(c) but denies all the other Particulars. The Panel is satisfied that he is aware of today’s hearing and has chosen to voluntarily absent himself. The Panel did not consider that there was any information before it to suggest that the Registrant might attend the hearing on another date if these proceedings were postponed. The Panel has considered the possible disadvantage to the Registrant in not being able to give his own account of the matters alleged against him in person. The Panel notes that the Registrant has not made a submission for the purposes of this hearing, nor has he lodged any evidence or called any witnesses. He has not requested an adjournment. In addition, the Panel has noted that there are four witnesses present for the HCPC and the Panel has taken account of the inconvenience to them if the hearing was adjourned, as well as the possible diminishing of their memory of events given the passage of time. Finally the Panel has taken account of the wider public interest including the public interest that regulatory proceedings should take place within a reasonable time of the events to which they relate. For all these reasons, the Panel concluded that it is in the public interest as well as in the Registrant’s own interests to proceed with the hearing in the Registrant’s absence.

7. The Panel has also reminded itself that in deciding to proceed in the Registrant’s absence, it has a duty to ensure that the hearing is as fair as the circumstances permit and to bring out such matters as are favourable to the Registrant as the evidence permits as well as to expose weaknesses in the case against him.

Preliminary application on the admission of hearsay evidence
8. The Panel then considered an application from Ms. Acker under rule 10(1)(c) of the Rules that the Witness Statement of Patient X be admitted as hearsay evidence. She reminded the Panel that the test to be applied was whether the Panel was satisfied that the admission of the evidence was necessary for the protection of members of the public. Ms. Acker said that while the Panel had the power to admit this evidence under rule 10(1)(c), there was authority from a number of recent cases, and in particular Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin), that a Panel should consider and apply the following principles in reaching its decision:-

1. Whether the statements were the sole and decisive evidence in support of the charges;

2. The nature and extent of the challenge to the contents of the statements;

3. Whether there was any suggestion that the witnesses had reason to fabricate their allegations;

4. The seriousness of the charge, taking into account the impact which adverse findings might have on the Registrant’s career;

5. Whether there was a good reason for the non-attendance of the witnesses;

6. Whether the HCPC had taken reasonable steps to secure their attendance;

7. The fact that Registrant did not have prior notice that the witness statements were to be read.

9. Ms. Acker submitted that it was important for the Panel to give careful consideration to the question of whether or not to admit the Witness Statement of Patient X. Ms. Acker submitted that the Registrant had been aware of the evidence contained in Patient X’s Witness Statement for a considerable time and he has not lodged any response for the purposes of these proceedings. He is not present or represented in these proceedings and accordingly, he has effectively waived his right to cross-examine Patient X. Ms. Acker submitted that, for all these reasons, there can be no unfairness to him. She said that if the Panel did decide to admit the Statement, it would be a question for it to determine what weight, if any, should be given to it. Ms. Acker went on to explain that Patient X was known to be a very vulnerable person with a history of mental and physical abuse who had been under the care of a Community Mental Health Team since 2002. Ms. Acker said that Witness 5, who had been Patient X’s Community Psychiatric Nurse, would give a fuller account of her clinical history but for present purposes, she referred the Panel to paragraphs 34 to 36 of the Witness Statement of Witness 5 which sets out the trauma suffered by Patient X as a result of the incidents set out in the allegations. Ms. Acker specifically referred the Panel to paragraph 36 where Witness 5 concludes by saying that “I believe that attendance at a hearing would be harmful to the mental and emotional health of Patient X”. In any event, Patient X has been unwilling to attend even if the measures for protecting vulnerable witnesses set out in rule 10A of the Rules were made available.

10. Ms. Acker explained that Patient X was the only witness who could give direct evidence of the incidents. Accordingly her witness statement was important. However, her evidence had to be considered in the context of all the other evidence available at this hearing including the oral and written evidence of the members of the Community Mental Health Team, some of whom had known her for a considerable period and to whom she had spoken about the incidents. The HCPC’s evidence includes evidence from a number of key witnesses including the oral and written evidence of two Managers at the Heart of England NHS Foundation Trust (“the Trust”) one of whom was responsible for the Trust’s Disciplinary Investigation. Ms Acker submitted that, in making its decision whether or not to admit the Statement, the careful assessment which the Panel should carry out required it to weigh up the competing factors and to assess all the issues in the case including the other evidence to be called and the potential consequences of admitting the evidence. She submitted that the evidence of Patient X is demonstrably reliable for a number of reasons. Firstly, there was evidence that Patient X’s disclosure was first made to her Community Psychiatric Nurse on the same day as the first incident. Secondly, the accuracy of her account of her meeting with the Registrant on 13 September 2013 and of their itinerary through the Good Hope Hospital (“the Hospital”) is supported by CCTV evidence as well as by the knowledge of the managers of the layout of the Hospital. Thirdly, she invited the Panel to consider why Patient X would fabricate her account of the incident on 13 September 2013. She submitted that, at that point, the evidence showed that Patient X was contemplating the possibility of a relationship with the Registrant and therefore had no reason to fabricate a complaint. For these reasons, Ms. Acker submitted that it was possible for the Panel to make an assessment of the reliability of Patient X’s evidence.

11. In his advice, the Legal Assessor endorsed Ms. Acker’s submission in regard to the legal tests to be applied. He said that the case of Thorneycroft essentially summarised the issues which had arisen in the earlier cases of Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216 and R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585. He said that Ogbonna is authority for the proposition that fairness means fairness to both sides. Fairness to the prosecution is frequently used as a reason to admit evidence which should otherwise not be admitted. In Ogbonna, it was said that fairness must be considered before admitting hearsay particularly in circumstances where (1) the witness was the sole and critical witness; (2) there was a factual conflict between the Registrant and the witness; and (3) the potential consequences for the Registrant could be very serious. It was also said that although there is no absolute right to cross-examine a witness, there must be compelling reasons for depriving a person of the opportunity to do so. In the Bonhoeffer case it was held that the admission of hearsay was not always unfair. Evidence which would not normally be admitted in criminal proceedings may be admitted under the rules usually found in regulatory proceedings. The critical issue was whether admitting such evidence with no opportunity to cross-examine a witness was fair either at common law or under article 6 of the ECHR. It was also said that the more serious the allegations or the potential outcome for the Registrant, the greater the need for procedural safeguards to protect the Registrant. In particular there had to be compelling reasons to deny a Registrant’s right to cross-examine a witness (and particularly a sole or decisive witness) who offered a conflicting account.

12. The Legal Assessor pointed out that perhaps the most serious issue in this case is the allegation concerning the Registrant’s alleged dishonesty. He reminded the Panel that such allegations are always viewed as particularly serious and carry with them the prospect of a sanction at the higher end of the scale including of course the possibility of striking off. 

13. The Legal Assessor advised that, having regard to what was said in Ogbonna and Bonhoeffer cases, although there is no absolute right to cross-examine a witness, there must be compelling reasons to deprive a registrant of this opportunity. However, in this case, the Registrant has not engaged and so there would be no opportunity for him to cross-examine Patient X in any event. He said that the Panel should consider whether it would it be in the interests of justice to admit Patient X’s statement. He said that the Panel had a particular duty to consider this question in the Registrant’s absence. However, given all that has been said, it is open to the Panel to conclude that the other evidence in this case assists the Panel with a proper evaluation of the evidence provided by Patient X in her Statement. 

14. Finally, the Legal Assessor advised the Panel that if it decided to admit the Statement of Patient X, it would be a matter for it to determine what weight, if any, should be given to that statement.

15. The Panel has carefully considered the submission. It considers that the decision whether to admit Patient X’s statement as hearsay is of crucial importance to the case. For this reason it considered carefully the factors mentioned in the case of Thorneycroft and the legal advice it had received. The Panel accepts that because of the seriousness of the allegations the admission of Patient X’s witness statement could have a very serious impact upon the Registrant. The allegations are, for the most part, denied by the Registrant, although he admits Particulars 1(a), 1(b) and 1(c). In the Panel’s view Patient X had no reason to fabricate her evidence because, at the time of her disclosure, she did not realise that it would be reported or have any adverse consequences for the Registrant. Indeed, at that time she was hoping to enter into a relationship with him. In the Panel’s view she had no reason to lie. It also considered that there were good reasons for Patient X’s non-attendance. She was a vulnerable patient and the other witness statements indicated that the events in question had seriously affected her mental health. The HCPC had taken appropriate, albeit unsuccessful, steps to secure her attendance. In the Panel’s view Patient X’s witness statement is demonstrably reliable because it is corroborated in many respects by other, independent evidence. This includes documentary and photographic evidence and evidence from other witnesses, in particular Witness 5 and his contemporaneous clinical notes. The independent documentary evidence supports the details she recounts. Serious public protection issues arise in this case.  The Panel is satisfied from all that it has heard that that it is necessary for the protection of members of the public for this evidence to be admitted and will exercise its power under rule 10(1)(c) of the Rules to admit the Witness Statement of Patient X.
      
Background
16. The Panel heard that the matters set out in the allegation are said to have occurred while the Registrant was employed as an Operating Department Practitioner with the Trust. Patient X had reported that she had attended at the Good Hope Hospital as a day patient to undergo a minor procedure on 12 September 2013. She alleged that the Registrant had given her his hospital mobile phone number and that they had texted each other later that day. This was established from the Registrant’s and Patient X’s phone records. The following day, 13 September 2013, Patient X returned to the hospital for a different procedure in a different department of the hospital. This procedure did not involve the Registrant. The Panel heard from Witness 4, a Band 7 Community Psychiatric Nurse and Team Manager at the Birmingham and Solihull Mental Health Trust, that he had raised a safeguarding concern with the HCPC about the disclosure made by Patient X to Witness 5. It was his evidence that the Registrant and Patient X, having met on 12 September 2013, had arranged to meet again the following day and subsequently. On 13 September 2013, during her therapy session with Witness 5 she had alleged that the Registrant had met her in a coffee shop in the Hospital that morning and had taken her to a disused operating theatre where they had sex.

17. Witness 4 confirmed that Patient X had been a patient of the mental health department for around 14 years. She had made the disclosure to Witness 5 her Community Psychiatric Nurse (CPN), who reported it to him and he had subsequently interviewed Patient X. The Panel found this witness to be open and honest. He showed no hesitation in answering questions put to him. The Panel confirmed with him that Patient X had at no time made any similar allegations and that at the time of her disclosure Patient X did not think there would be any consequences for the Registrant of her disclosure, which had been made as part of her normal therapy session.

18. The Panel also heard from Witness 2. He was the Registrant’s line manager. He told the Panel that he had interviewed the Registrant on 24 September 2013 and suspended him two days later. He did this after receiving a phone call from Witness 4 about Patient X’s disclosure. The Panel found Witness 2 to be credible, neutral and that there was no indication of bias against the Registrant.

19. The Panel then heard from Witness 3. She was a colleague of the Registrant’s and they had previously shared an office. She had interviewed Patient X and noted that she had been sad and anxious. It was her view of Patient X that she was “very believable”. The Panel considered that Witness 3 was an honest witness, albeit somewhat cautious, with a possible element of loyalty to the Registrant, her former colleague. Despite this she said she believed Patient X.

20. Finally (on 7 June 2016), the Panel heard from Witness 1, the Trust investigating officer. The Panel found that his recollection was very good. He did not speculate and stated if he did not know or could not remember something. The Panel found him to be very credible and that he had a good grasp of the facts.

21. On 11 December 2016 at the resumed hearing, the Panel had the benefit of hearing from Witness 5. He had a good knowledge of Patient X having been her CPN since 2011. The Panel found him to be open, credible and honest. He had a very good memory of Patient X’s disclosure, but acknowledged when there was something which he could not remember. His evidence was consistent.

22. As previously noted, the Panel did not have the benefit of hearing from Patient X or from the Registrant. The Panel had admitted into evidence the witness statement of Patient X as hearsay. The Panel’s understanding of the Registrant’s position is derived from the notes of two interviews with the Registrant which were carried out during the Trust’s disciplinary investigation, which the Registrant had signed as true.

23. The Panel accepted the advice of the Legal Assessor that the relevant standard of proof is the balance of probabilities and that it is for the HCPC to prove its case.

Decision on facts:
Particular 1(a)
24. The Registrant has admitted this Particular. The email header detailing the Registrant’s hospital address and hospital mobile phone number was exhibited by Patient X and was within the bundle of documents before the Panel. Patient X’s witness statement confirms that the Registrant gave her this document on 12 September 2013 while she was in the department, and told her to hide it because he was not supposed to have given it to her. The Panel finds this Particular proved.

Particular 1(b)
25. The Registrant has admitted this Particular but says the text messages were to give advice to Patient X on pain relief, were brief, and were asking her to stop contacting him. The Panel had sight of the Registrant’s mobile phone records showing more than 90 text messages to Patient X’s mobile number between 12 and 24 September 2013. Patient X confirms in her statement that they were texting each other on a regular basis. The Panel finds this Particular proved.

Particular 1(c)
26. The Registrant has admitted this Particular but said that Patient X had asked to meet him to give him a “Thank You” card. He says he met her in a coffee shop at her request, and then took her to a quiet seating area to talk. Patient X says that the Registrant suggested that they meet for coffee after her clinic appointment (in a different department) on the 13 September 2013. She was not being treated in the Registrant’s department that day. The Panel had sight of CCTV still photographs showing Patient X and the Registrant walking along a corridor together on 13 September 2013. The Panel finds this Particular proved.

Particular 1(d)
27. The Registrant does not admit this Particular. He says he met Patient X in a coffee shop then took her to a seating area at the far end of the hospital to talk. They initially intended going to another coffee shop but on their way someone had told them it was very busy. They therefore went up in a lift to a quiet seating area on the first floor. Patient X says that they met in a coffee shop after her clinic appointment then walked along a corridor towards another coffee shop at the suggestion of the Registrant. They then went up in a lift and the Registrant took her into a disused operating theatre (the Richard Salt Unit (RSU)) using his swipe card. On neither account is there a clinical reason for their meeting.

28. The Panel had sight of swipe card data showing that the Registrant’s card was used to enter the RSU at 11:53 am on the 13 September 2013. The CCTV stills show the Registrant and Patient X walking along a corridor towards a lift and returning at 12:10pm along the same corridor. The Patient gives a detailed description of the operating theatre, including the sinks within it. The RSU was a controlled access area to which Patient X could not otherwise have had access. In the Panel’s view, her accurate description of the theatre and its location support her version of events. When challenged about the swipe card data during the disciplinary investigation the Registrant had explained that he had encountered a volunteer outside the RSU and had let her in using his swipe card. He was unable to identify this person nor was Witness 1 able to do so during his investigation.

29. The Panel was shown an email from the Volunteer Co-ordinator to the Registrant timed at 11:54am on 13 September 2013 requesting access to the RSU. In the Panel’s view this is likely to be the origin of the Registrant’s purported explanation, but does not in fact support that explanation because the email was sent to him after the Registrant had accessed the RSU. The evidence of the hospital geography given by Witness 1 showed that the logical route to the seating area was not the route the Registrant took. There was another, closer, lift leading directly to the seating area. However, the lift they used was further to walk to and lead directly to the RSU. The Registrant’s explanation is not credible. Patient X’s version of events is supported by the CCTV evidence, the swipe card records and by her knowledge of the route to the RSU and the interior of the RSU. The Panel finds this Particular proved.

Particular 1(e)
30. The Registrant denies any sexual contact with Patient X. There is no direct evidence that sexual intercourse took place apart from Patient X’s witness statement. In that statement, Patient X gives a detailed description of the sexual encounter. Witness 5 gave evidence that Patient X had disclosed the sexual encounter to him later that day during her scheduled therapy session. He stated that Patient X did not know at the time, that this would have to be reported or that it would have adverse consequences for the Registrant. The disclosure is recorded in Witness 5’s contemporaneous clinical notes. The Panel finds that Patient X had no reason to lie; indeed she was hoping that it was the start of a relationship.

31. Patient X provided an accurate description of the route to the RSU which is supported by CCTV evidence and of the theatre, supported by photographic evidence and by Witness 1’s evidence. In the Panel’s view the Registrant’s explanation that he was taking Patient X to a quiet seating area, his explanation of the swipe card data and his route through the hospital were not credible. Witness 3 gave evidence that the RSU was a location well known to the Registrant because he had previously worked there and the Panel finds that the Registrant is likely to have known that he and Patient X were unlikely to be disturbed there because it was a disused area requiring swipe card access. The Registrant denies taking Patient X into the RSU but the Panel has concluded that he did so. In the Panel’s view the likely explanation for the Registrant taking Patient X into the RSU is that Patient X’s version of events is true and that the Registrant and Patient X did have sexual intercourse in the RSU as Patient X described.

32. The Panel finds the evidence of Patient X credible and the Registrant’s explanation not credible. On the balance of probabilities the Panel finds this Particular is proved.

Particular 1(f)
33. The Panel has accepted Patient X’s statement. She says that the Registrant called her “a few days after she told the CPN” and he was very angry. The phone records show that the Registrant texted Patient X at 17.14 on 24 September 2013 and then rang her for 26 seconds at 17.27. The Registrant stated in interview that he must have rung her in error.  Nevertheless the phone records prove that the call did take place and the Registrant does not deny this. Accordingly the Panel has found this Particular proved 

Particulars 1(g) and 1(h)
34. The Panel next looked at Particulars 1(g) and 1(h) of the allegation. The Registrant denies that these events happened and says that he did not have any sexual contact with Patient X. However, Patient X stated that they did. Patient X gave detailed descriptions of oral sex which took place in the Registrant’s car and, on another occasion, sexual intercourse at the road side. The Panel has accepted Patient X’s version of events in respect of the preceding Particulars. It sees no reason to doubt the allegations in Particulars 1(g) and 1(h) when the other allegations Patient X has made have been corroborated by independent evidence and her evidence is therefore demonstrably reliable. For this reason, the Panel has accepted her account and on the balance of probabilities finds Particulars 1(g) and 1(h) proved. 

Particular 2(a)
35. The Panel next looked at 2(a) of the allegation. The Registrant denies this Particular. The evidence relating to this Particular arose from:

• The “Thank you” card signed by Patient X and given to the Registrant on 13 September 2013; and

• The two letters allegedly written by Patient X and posted to the Trust that arrived on 18 November 2013 in which Patient X withdrew her allegations against the Registrant.

36. With regard to the “Thank You” card, the Registrant’s version of events was that Patient X met with him on 13 September 2013 to give him a card, and some chocolates, by way of a thank you for his professional assistance on 12 September 2013 when she had attended for her clinical procedure. The “Thank You” card was shown by the Registrant to Witness 1 during the second of the investigation meetings on 16 January 2014. The Registrant said that he had the card in his possession having retrieved it from the staff room before he was suspended. Witness 1 told the Panel that the card was still in its original envelope and none of the staff remembered seeing it before.

37. Patient X said she signed the card at the Registrant’s request when she met with him in a public house at some point after 13 September 2013. On the balance of probability the Panel believed Patient X’s version of events and accepted Witness 1’s evidence. It concluded that the Registrant had provided the card and persuaded Patient X to sign it after the event in an attempt to prove his version of events, and therefore his innocence.
38. With regard to the two undated letters that were sent by Patient X, her version of events is that she met with the Registrant in a public house, the same evening as referred to above, and that the Registrant had produced a typed letter addressed to himself at his Trust address which he asked her to sign. He also brought writing paper and a stamp and sat next to her while she hand wrote a second version of the letter based on the typed letter which the Registrant had written and which he posted to the Hospitals General Manager. On the Registrant’s instruction she added to the hand written version of the letter the fact that a copy of the letter had also been sent to the Registrant. Patient X says that he told her this was so that the Trust could not later deny having received it. The contents of both letters were a withdrawal of the allegation made by Patient X relating to the events of 13 September 2013.

39. Both letters were received by the Trust on 18 November 2013 and were exhibited by Witness 1.

40. Patient X also says that the Registrant was “constantly telling me to tell the CPN that I had lied”. She said:

“Everytime I went to see my CPN, [the Registrant] would phone me. He was not happy with what I told the CPN. I know I am vulnerable and have a mental illness but I do know the difference between having sexual intercourse and not.”

41. Patient X’s version of events given to the police in December 2013 and January 2014, as evidenced in her statement provided to the police, recounts a different version of the events of 13 September 2013, in that it said no sex took place. The Panel has no evidence before it that the Registrant influenced Patient X to give this version of events to the police.

42. The Panel heard from Witness 3 that, in a meeting with Patient X in May 2014, Patient X had admitted that she had lied in the letter that had been sent to the Trust and Neil Bamsey and that she had lied to the police. Witness 3 states “she told me that [the Registrant] had coached her in what to say and had told her what to write in the letters”. The Panel preferred the version of events provided by Patient X and Witness 1 and Witness 3 to that given by the Registrant. This is the only plausible explanation for the existence of the two letters. The Panel therefore found this Particular proved.

Particular 2(b)
43. The Panel then considered Particular 2(b). The Registrant denies this Particular. The Panel has found that sexual intercourse took place in the RSU on 13 September 2013 and that the Registrant influenced Patient X to give an alternative account to his employers and the police. The Panel therefore concludes that the accounts given in the letters were untrue and that the statement given to the police was similarly untrue. Accordingly the Panel finds this Particular proved.

Particular 3
44. The Panel next considered whether the Registrant’s actions were sexually motivated. This Particular was denied by the Registrant. The Panel has found as a fact that there was sexual contact between the Registrant and Patient X on at least three occasions. The first took place in the RSU and further sexual acts took place at the roadside and in the Registrant’s car on separate occasions, after the Registrant’s employment had been suspended. The Panel was satisfied that these acts were sexually motivated and accordingly finds this Particular proved.

Particular 4
45. The Panel went on to consider whether the Registrant’s actions were dishonest. The Panel has found that the Registrant influenced Patient X to give a false version of events to his employer and the police in an attempt to prove his innocence.

46. The Panel accepted the advice of the Legal Assessor that the test to be applied was that set out in the case of R v Ghosh [1982] 2 All ER 689:

(a) Was what the Registrant had done dishonest according to the standards of reasonable and honest people

(b) Would the Registrant realise that reasonable and honest people would regard what he did as dishonest?

47.  The Panel concluded that this conduct would be considered dishonest by the standards of reasonable and honest people and that the Registrant would have realised that this was the case. It therefore found this Particular proved. The Registrant’s actions were dishonest.

Decision on Grounds:

48. The Panel proceeded to consider whether the facts and matters found proved as set out above, amount to misconduct; if so, whether the Registrant’s fitness to practice is thereby currently impaired.

49. The Panel considered the submissions made by Ms Acker on behalf of the HCPC. She submitted that in respect of all the matters alleged in Particulars 1-4 inclusive they were sufficiently serious as to amount to misconduct and that by reason of that misconduct the Registrant’s fitness to practise was impaired.

50. The Panel heard and accepted the advice of the Legal Assessor.

51. The Panel was aware that any findings of misconduct and impairment were matters for the independent judgement of the Panel.

52. The Panel was also aware that consideration of impairment only arises in the event that the Panel judges that the proven facts do amount to misconduct, and that what has then to be determined is current impairment.

53. The Panel determined that the facts found proved were a very serious departure from the proper standards of conduct to be expected of an Operating Department Practitioner and clearly amount to misconduct. Its reasons included the following:

• Patient X was to the knowledge of the Registrant a vulnerable patient with both physical and mental health difficulties.

• The Registrant grossly abused a relationship of care, trust and responsibility toward Patient X and, as was foreseeable by the Registrant, his conduct toward Patient X has caused her much distress.

• The conduct of the Registrant was wholly inappropriate, sexually motivated and continued over several months. His behaviour was both manipulative and coercive.

• The Registrant acted dishonestly in the manner set out above.

• The Registrant was in breach of the provisions of the HCPC Standards as set out below.


54. The Registrant did not act in accordance with the following HCPC Standards of conduct, performance and ethics:
• Standard 1 – You must act in the best interests of service users
• Standard 3 – You must keep high standards of personal conduct
• Standard 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
Decision on Impairment:

55. Having regard to its findings on the facts and to its determination on misconduct, the Panel has concluded that a finding of current impairment is necessary to maintain proper standards within the profession of Operating  Department Practitioner  and  also to safeguard public confidence in that profession and in the regulatory process. The Registrant has breached a fundamental tenet of the profession by a gross breach of professional boundaries. Consequently a finding of impairment is in the public interest as identified by Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council, Paula Grant [2011] EWHC 927 [Admin].

56. The Panel further considered that there was a serious risk that if the Registrant was in a similar position in the future he would repeat his conduct. In coming to this conclusion the Panel kept in mind that prior to this hearing the Registrant has denied all the Particulars of the allegation other than those set out in Particulars 1(a), 1(b) and 1(c). He has not shown any remorse or contrition. The Panel has seen nothing to suggest that the Registrant has addressed the character failings that led to the facts as found by the Panel. Moreover the sexual relations initiated by the Registrant continued over several months; they were opportunistic and abusive in character.

57. For the reasons set out above the Panel finds that by reason of the Registrant’s misconduct his fitness to practise is currently impaired.

Decision on Sanction:

58. Ms Acker made submissions on behalf of the HCPC. In summary she submitted as follows:

• That the Panel should have regard to the Indicative Sanctions Policy [ISP] published by the HCPC.

• The Registrant’s conduct as found proved is incompatible with continued registration on the register.

• In determining the appropriate order the Panel should have regard to the considerations set out in the determination, which explain the finding of misconduct and also to the finding that the Registrant had acted dishonestly. She submitted that these factors were of an aggravating character.

59. The Panel heard and accepted the advice of the Legal Assessor.

60. The Panel kept in mind that the purpose of a sanction is not punitive but is designed to protect the public interest which includes protecting members of the public from possible harm, maintaining proper standards within the profession, the reputation of the profession itself and public confidence in the regulatory functions of the HCPC.

61. The Panel took into account the contents of the ISP.

62. In considering whether to make an order and the nature and duration of any order to be made, the Panel applied the principle of proportionality weighing the Registrant’s interests in the balance with the need to protect the public interest.

63. The Panel took into account both mitigating and aggravating circumstances.

64. Mitigating factors included the following:

• The Panel is not aware of any previous regulatory findings against the Registrant.

• The Registrant’s admission of Particulars 1(a), 1(b) and 1(c).

65. However the Panel also considered the following aggravating factors;

• That in the opinion of the Panel, the Registrant’s conduct as found proved, was a very serious abuse of his position. It involved acts of sexual conduct with a vulnerable patient which extended over several months. The sexual conduct included intercourse on hospital premises, which Patient X had visited for treatment and where she was entitled to feel safe.

• That the Registrant has shown no remorse or contrition and has been guilty of serious dishonesty.

66. The Panel considered the sanctions available to it in ascending order of severity. In arriving at its decision the Panel applied the principles that are set out in the ISP.
No Action

67. The Panel concluded that having regard to the facts that have been found proven, to take no further action would be wholly inappropriate. The Registrant’s misconduct is far too serious to permit such an outcome, which would provide no protection to the public, would undermine confidence in the profession and in the regulatory functions of the HCPC and would not serve to uphold standards of conduct and performance within the profession.

Mediation

68. The Panel a concluded that mediation was not appropriate to a case of this kind.

Caution

69. For the same reasons as those just expressed with regard to taking no action, the Panel concluded that a Caution Order would also be wholly inappropriate. In coming to this conclusion, the Panel also noted that the Registrant has shown no remorse or contrition and the risk of repetition is real.

Conditions of Practice Order

70. The Panel considered making a Conditions of Practice Order. The Panel was aware that the conditions imposed by such an order must be relevant, workable, enforceable and proportionate. The Panel concluded that in the circumstances of this case, appropriate conditions of practice cannot be formulated and in any event would not sufficiently safeguard the public interest or uphold appropriate standards of conduct within the profession.

Suspension

71. Having regard to the gravity of the Registrant’s misconduct, to the risk of repetition and to the complete absence of remorse or contrition, the Panel did not think that suspension was a sufficient and appropriate sanction.

Striking off

72. Whilst recognising that striking off was the sanction of last resort, the Panel concluded that having regard to the gravity of the Registrant’s misconduct, the abuse of trust involved, to the absence of remorse and contrition and to the risk of repetition, a Striking Off Order was the only appropriate and sufficient sanction. In the Panel’s view the Registrant’s actions were incompatible with his continued registration.

Order

That the Registrar is directed to strike the name of Neil Bamsey from the Register on the date this Order comes into effect.

Notes

Application for an Interim Order:
The Panel received submissions from Ms Acker as to the need for an interim order. The Panel also heard and received the advice of the Legal Assessor.


Interim Order:
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 and being otherwise in the public interest.  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.

 

Hearing history

History of Hearings for Mr Neil Bamsey

Date Panel Hearing type Outcomes / Status
12/04/2017 Conduct and Competence Committee Final Hearing Struck off
12/12/2016 Conduct and Competence Committee Final Hearing Adjourned part heard