Miss Rebecca J D Overton-Applebee

: Operating department practitioner

: ODP25397

Interim Order: Imposed on 04 May 2012

: Review Hearing

Date and Time of hearing:10:00 27/06/2017 End: 12:30 27/06/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

During the course of your employment as an Operating Department Practitioner from January to March 2012 with Gloucestershire Hospital NHS Foundation Trust, you:

 1. On 7 March 2012, you received a caution for theft by employee of 4 x 30mg Codeine Phosphate from Gloucestershire Constabulary

2. On 7 March 2012 you: a. self-administered 4 x 30mg of Codeine Phosphate stolen from the controlled drug cupboard whilst on duty

b. falsified records in the controlled drugs book to show that patients A and B had received Codeine Phosphate when they had not

3. You falsified records in the controlled drugs book to show that patients had received Codeine Phosphate when they had not a. on at least seven occasions and in particular on:

i. 3 February 2012 - 60mg, Patient C

ii. 24 February 2012 - 60mg, Patient D

iii. 27 February 2012 - 60mg, Patient E

iv. 5 March 2012 - 60mg, Patient F

v. 21 February 2012 - 60mg, Patient G3

vi. 24 February 2012 - 60mg, Patient H

vii. 2 March 2012 - 60mg, Patient I

b. and in so doing, you

 i. stole the Codeine Phosphate

 ii. self-administered the Codeine Phosphate

5. Your actions in 2 to 3 were dishonest

6. Your fitness to practise is impaired by reason of your Caution as set out in paragraph 1

7. The matters set out in paragraphs 2 to 5 constitute misconduct 8. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Registrant did not attend and was not represented.  The Panel first considered whether she had been given an opportunity to appear before it in accordance with article 30(9) of HCPC 2001 Order.

2. The Panel saw documentation, which showed that a proper notice of the proceedings had been sent by post to the Registrant’s registered address on 23 May 2017.  The Panel also saw a letter from the Registrant dated 21 June on which she indicated that she knew the hearing was scheduled to take place on 27 June.  Accordingly the panel was satisfied that the Registrant had been given an opportunity to appear at the hearing.

Proceeding in the Absence of the Registrant

3. The Panel then went on to decide whether it should proceed in the Registrant’s absence.  The Panel heard the submissions of Ms Rapu on behalf of the HCPC and considered the letter from the Registrant and a letter from her GP, dated 23 June 2017.

4. The Registrant did not seek an adjournment or take up the recommendation previously made to her to communicate with the Panel by telephone, or video if she could not attend in person.

5. Having regard to all the evidence, the Panel was satisfied that the Registrant had voluntarily absented herself but had done so for pressing personal reasons, which did not amount to lack of engagement on her part.

6. The Panel also bore in mind that the hearing is a mandatory review of an order due to expire on 22 July 2017.  The Panel decided there was a strong public interest in reviewing the order before that date.

7. There was no material that indicated that the Registrant would be able to attend before that date so the Panel was satisfied an adjournment for a short period would serve no purpose.

8. Accordingly the Panel decided to proceed with the hearing in the public interest, bearing in mind throughout that it would draw no adverse inference from the Registrant’s absence.

Background

9. The Registrant was employed by the Gloucestershire Hospital NHS Foundation Trust (the Trust) from 22 July 2002, initially as a Nursing Auxiliary, subsequently as an Operating Department Practitioner (ODP) in or about November 2006 after she had qualified as an ODP. She worked in the private sector between December 2006 and August 2008, after which she rejoined the Trust as a Band 5 Orthopaedic Scrub Practitioner and subsequently moved into the Recovery Unit.

10. On the dates identified in the allegations, whilst on duty, the Registrant took Codeine phosphate from Trust supplies and falsified the controlled drugs record book to make it appear that patients had been given the Codeine phosphate.  In relation to allegation 2, the Registrant was arrested and given a Police Caution.

11. The panel at the final hearing in June 2013 heard that Codeine phosphate is a mild pain killer that should not be used over long periods as it has an addictive property.  It is a prescription drug that cannot be bought over the counter. That panel took account of the number of occasions when the Registrant had falsely signed the drug out of the controlled medications store in the names of patients when she had in fact self-administered the drugs. The facts were admitted and found proved in relation to heads of allegation 1, 2, and 3. The Registrant admitted dishonesty, impairment and misconduct as alleged.

12. The Registrant acknowledged at the final hearing in June 2013 that the allegations constituted serious matters. That panel noted that self-administering medication whilst on duty was a matter of serious concern. Although there was no evidence of actual patient harm, the Registrant’s actions had exposed patients to a risk of harm in that, having been falsely recorded as receiving analgesia, they may have been denied pain management when it was genuinely required.

13. It recommended that the Registrant provide to any reviewing panel evidence of remedial steps to preclude repetition as well as evidence of maintenance of professional skills and knowledge.

14. The first review took place on 12 June 2014.  The panel at that hearing concluded that the Registrant had not provided any medical evidence which could have helped in determining whether there was any current risk of Codeine phosphate misuse and had taken few steps towards maintaining her Continuing Professional Development (CPD). She had not used any resources other than reading magazine articles and remained of the opinion that she had only taken Codeine phosphate and that was “not a major drug”. She expressed little insight into the effect of her actions on service users. That panel ordered a suspension for a further one year.

15. At the second review on 24 June 2015 the panel noted that since the last hearing the Registrant had had a new baby and as a result of her personal circumstances she had been unable rather than unwilling to remedy the failings in her practice or to address the recommendations made by the previous panel. That panel noted that, in a letter dated 18 June 2015, the Registrant indicated the difficulties that she had to deal with and it took account of her commitment to remaining on the Register as an Operating Department Practitioner. She expressed in that letter her remorse for what she had done in the past and expressed a wish to eventually return to her profession. That panel went on to state at paragraphs 13-14 the following:

“15. This Panel noted that a Striking Off order was an available option to it today but it concluded that such an order would be disproportionate at this stage. It is of course an available option for sanction at any future review of this order."

16. The panel concluded that a Suspension Order for 12 months was an appropriate and proportionate order.

17. The panel indicated that a reviewing panel would be assisted by: evidence of achievement of insight into dishonesty; and evidence that the Registrant has taken actual steps taken to maintain CPD.

18. The third review hearing took place on 17 June 2016. The panel heard from both Mr Claughton for the HCPC and Mr Oestreicher for the Registrant. It received shortly in advance of the hearing a letter from the Registrant date 6 June 2016 and a letter from her GP dated 3 June 2016. The Panel found that the registrant’s letter demonstrated some insight into the misconduct found proved at the final hearing. In that letter that she realised that her dishonesty could have put patients at risk as well as bringing disgrace to the Trust. She also told the panel in her letter that she was now a full time carer for a member of her family so that she had been unable to engage with the various remedial steps recommended by the previous panels.

19. Mr Claughton for the HCPC proposed a further extension for a period of 12 months because the HCPC recognised that although the Registrant had not engaged with the various recommendations made by panels for evidence of remediation, this was not due to a lack of desire by the Registrant but rather due to her full time caring responsibilities. Mr Oestreicher agreed with the HCPC’s submission. The Registrant indicated in her letter that she would like to have an opportunity in the future to remediate her misconduct and her union would help her to do so.

20. That panel again imposed a Suspension Order for 12 months and gave the following guidance to the Registrant:

The Panel therefore makes the following recommendations to the Registrant that may assist a future reviewing panel. The Panel believes these recommendations are practical even in the light of the Registrant’s caring responsibilities.

(i) The Registrant should attend the next review hearing preferably in person or in the alternative by phone/video link and be prepared to give evidence of remedial steps taken and evidence of continuing development of insight into her dishonest behavior.

(ii) The Registrant should provide documentary evidence of any CPD undertaken and of either actual steps taken to return to work or a structured plan for a future return to work.”

Decision

21. This Panel has taken into account all the documentation placed before it. This includes the letter from the Registrant to which the Panel has referred above.  This letter is in virtually identical terms to the letter the Registrant submitted to the 2016 reviewing panel.  It has heard submissions from Ms Rapu, on behalf of the HCPC, taken and accepted the advice of the Legal Assessor, and it has reminded itself of the terms of the Council’s Practice Note.  In summary the legal principles in respect of an Article 30 (1) review are as follows:

a) The Primary objective of the Panel is to secure public protection in the most appropriate and proportionate way;

b) The Panel cannot go behind the original decision. Its task is to consider whether the order under review remains an appropriate and proportionate means of securing public protection;

c) The   correct   approach   is   to   determine  whether   the   Registrant’s impairment identified at the final hearing is still continuing and if so what level of restriction is appropriate;

d) The Panel can allow the current suspension order to lapse, extend or further extend it by a period up to one year or replace it with any sanction that could have been made at the time of the substantive hearing. That includes, in this case, removal from the register.

Impairment

22. The Panel first considered the question of current impairment. The Panel was firmly of the view that the Registrant’s fitness to practise is currently impaired. This was not disputed by the Registrant, who has not put before the Panel any material to indicate that there has been any improvement since 2016 in the matters giving rise to her impairment. The very serious matters that led to the suspension order have not been fully addressed or remediated. The Panel accepts that there are understandable reasons for this.  Nevertheless, the impairment identified by the panel at the final hearing and by subsequent reviewing panels, is still current.

Sanction

23. The Panel went on to consider which level of restriction was appropriate and proportionate to continue to protect the public and the public interest. In so doing it had to balance the Registrant’s interests in being able to return to safe unrestricted practice with the protection of the public. Allowing the current Suspension order to lapse or the imposition of a Caution Order would, in the Panel’s view, provide wholly inadequate protection.

24. A Conditions of Practice Order was not proportionate or appropriate in light of the very serious matters giving rise to the suspension which have not been fully addressed and the fact that the Registrant is not working in any capacity and has disclosed no plans to work in any capacity at the moment. Accordingly the Panel is not in a position to formulate any realistic and workable conditions even if such a sanction would have been proportionate. For the avoidance of doubt the Panel is not, on the evidence it has before it, of the view that such a sanction would in any event be a proportionate means of securing adequate public protection.

25. The Panel then went on to consider a Suspension Order. The Panel was of the view that on this occasion, it was still appropriate and proportionate to impose a suspension order. This order would protect the public while giving the Registrant what may well be a last opportunity to remediate her misconduct.

26. The Panel decided that the appropriate length of that order is 9 months.  That period is not meant to indicate that the Panel is imposing a less restrictive order on this occasion.  On the contrary, it is intended to underline the urgency of the situation in the light of the time that has already elapsed and also to ensure that the next review avoids a date which the Panel understands causes distress to the Registrant.

27. The Panel gave very careful consideration to whether a striking off order was the appropriate sanction in this case.  The Registrant has been suspended for four years.  She has not complied with the recommendations of the reviewing panels nor has her insight into the effect of her dishonesty on patients and colleagues developed sufficiently. She does not appear significantly nearer remediating her misconduct than she did 4 years ago.

28. Nevertheless, the Panel is mindful of the personal circumstances that have made it very difficult for the Registrant to engage fully.  The panel also had regard to the Sanctions Guidance 2017 and in particular paragraphs 47 and 48:
47. Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.

48. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.

29. Balancing those considerations the Panel came to the conclusion that on this occasion a suspension order would still be sufficient to protect the public while giving the Registrant what may well be a last chance to engage and remediate her misconduct.

30. The Panel has finally considered the issue of guidance for the Registrant in advance of a future review. The Panel is mindful that recommendations for evidence of remediation have been made in this case previously.  The Panel is not unsympathetic to the circumstances that have hindered the Registrant, but the following are matters which are likely to assist a future reviewing panel. Without in any way seeking to influence, much less bind a future panel, the Panel wishes to record that if it is not assisted by these things, a future panel may well find its options are even narrower than those before the Panel.

31. The recommendations are:

• The Registrant should attend the next review hearing preferably in person or in the alternative by phone/video link and be prepared to give evidence of remedial steps taken and evidence of continuing development of insight into her dishonest behaviour.

• The Registrant may also benefit from being represented or supported at the next hearing.

• The Registrant should provide documentary evidence of any CPD undertaken and of either actual steps taken to return to work or a structured plan for a future return to work.”

Order

The Registrar is directed to suspend the registration of Miss Rebecca J D Overton-Applebee for a further period of 9 months on the expiry of the existing order.

Notes

The order imposed today will apply from 23 July 2017.

This order will be reviewed again before its expiry on 23 April 2018.

Hearing history

History of Hearings for Miss Rebecca J D Overton-Applebee

Date Panel Hearing type Outcomes / Status
12/03/2018 Conduct and Competence Committee Review Hearing Suspended
27/06/2017 Conduct and Competence Committee Review Hearing Suspended
17/06/2016 Conduct and Competence Committee Review Hearing Suspended
24/06/2015 Conduct and Competence Committee Review Hearing Suspended
12/06/2014 Conduct and Competence Committee Review Hearing Suspended
24/06/2013 Conduct and Competence Committee Final Hearing Suspended