Mr Lloyd Subner

: Operating department practitioner

: ODP13308

: Final Hearing

Date and Time of hearing:10:00 25/09/2017 End: 17:00 26/09/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

While registered as an Operating Department Practitioner, between April and September 2016 you:

1. Submitted and/or caused to be submitted a reference from Person A dated 21 September 2016 to A24 Group which was incorrect in that it contained the following information:
a. You worked with and/or for and/or under the supervision of Person A from 3 March 2015 to 23 April 2016 as an Operating Department Practitioner;
b. Person A holds the position of Senior Operating Department Practitioner at High Gate Hospital;
c. You have not been and/or are not currently the subject of any fitness to practice proceedings by a regulatory body in the United Kingdom.

2. Submitted and/or caused to be submitted reference from Person B dated 22 September 2016 to A24 Group which was incorrect in that it contained the following information:
a. You worked with and/or for and/or under the supervision of Person B from 14 May 2015 to 21 May 2016;
b. Person B holds the position of Senior Operating Department Practitioner at the London Wellbeck Hospital;
c. You have not been and/or are not currently the subject of any fitness to practice proceedings by a regulatory body in the United Kingdom.

3. Attempted to obtain work through A24 Group as an Operating Department Practitioner when you were aware that you had not completed the Return to Practise requirements.

4. The matters described in paragraphs 1-3 are dishonest.

5. Your actions described in paragraphs 1-4 amount to misconduct.

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

Finding

Preliminary Issues

Preliminary Application

1. At the start of the hearing Mr Berkin requested time to consider whether he should make a preliminary application. Following a short adjournment, Mr Berkin then informed the Panel that he had taken instructions from his client and he did not make any application.
Admissions

2. The Registrant admitted the Allegation in full.

Hearing in private

3. During the hearing the Registrant and his representative confirmed that they were happy for any evidence relating to the Registrant’s health to be heard in public.

Background

4. The Registrant qualified as an Operating Department Practitioner (ODP) in 1995 and worked as an ODP until October 2008, when he was removed from the Register. The Registrant made an unsuccessful application for restoration to the HCPC register in September 2014, but a second application was successful on 3 September 2015. The Panel directed that the Registrant’s name should be restored to the register, subject to him paying a restoration fee and providing evidence which satisfied the Registrar that he had successfully completed 60 days of updating his professional knowledge and skills.

5. The Registrant was restored to the HCPC Register in October 2015. The HCPC position is that this was an error because the Registrant had not completed the Return to Practice requirements.
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6. On 19 April 2016 the Registrant began his application process to a recruitment agency, Ambition Recruitment Services, which is also known as the A24 Group (“Ambition”). Ambition received two references purported to be in support of the Registrant’s application. The first from Person A on 21 September 2016 and the second from Person B on 22 September 2016. The Locums Manager of Ambition, MP, was advised that the references provided could not be verified. MP contacted the Registrant, who sent an e-mail to MP on 6 October 2016 stating that the references were “wrong”. MP advised the Registrant that the matter would be reported to the governing body if there were insufficient reasons. In response the Registrant sent a further e-mail to MP stating: “I made the whole thing up and got people I know to act as references…”

7. A fitness to practise referral was made to the HCPC on 6 October 2016.

Decision on Facts

8. The witness MP was available to give evidence by video link if required, but neither the parties nor the Panel had questions for him.

9. The Panel read and considered the witness statement of KR, Legal Assistant at Kingsley Napley LLP. KR exhibited a witness statement of GB, a case manager at the HCPC. GB’s statement and the documents exhibited set out the chronology relating to the Registrant’s incorrect registration on the HCPC register after the restoration hearing on 3 September 2015 and the steps that were taken to address this issue. Ms Eales provided clarification that there was an error in GB’s statement where she referred to 60 hours of return to practice requirements. The correct position, as stated in the Order following the restoration hearing on 3 September 2015, was for 60 days of return to practice requirements.

10. The Registrant gave evidence to the Panel. The Panel found that some of the Registrant’s evidence was clear, particularly when he was frank in relation to his dishonesty. However, the Panel found that his description and chronology of his work history was less clear and that, although some of his descriptions of workplace interactions could be of concern, they were uncorroborated, and the Panel had no sight of any supporting evidence.
Particular 1
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11. The Panel took into account MP’s witness statement and the exhibits which included e-mail correspondence between himself, a colleague, and the Registrant.

12. The Panel was provided with a copy of the reference which appeared to be from Person A. The Registrant accepted in his evidence that he wrote the reference and that he created the e-mail address from which it was sent. The reference states that the Registrant worked with or for Person A from 3 March 2015 to 23 April 2016 as an ODP and that Person A held the position of Senior ODP at Highgate Hospital. These statements are incorrect. The HR department at Highgate Hospital confirmed that Person A was not an employee. The reference also stated that the Registrant had not been the subject of any fitness to practise proceedings. This was incorrect because the Registrant had previously been subject to a fitness to practise allegation and removed from the register.

13. The Panel found particular 1(a), (b) and (c) proved by the documentary evidence, the oral and written evidence of the Registrant, together with the

Registrant’s admissions.

Particular 2

14. The Panel was provided with a copy of the reference which appeared to be from Person B. The Registrant accepted in his evidence that he wrote the reference and that he created the e-mail address from which it was sent. The reference states that the Registrant worked with or for Person B from 14 May 2015 to 21 May 2016 as an ODP and that Person B holds the position of Senior ODP at the London Wellbeck Hospital. These statements were incorrect. The HR department at the London Wellbeck Hospital confirmed that Person B was not an employee. The reference also stated that the Registrant had not been subject of any fitness to practise proceedings. This was an incorrect statement.

15. The Panel found particular 2(a), (b) and (c) proved by the documentary evidence, the oral and written evidence of the Registrant, together with the Registrant’s admissions.
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Particular 3

16. The Registrant was aware that he was required to complete supervised practice and that he had been restored to the register in error. The Registrant had made enquiries about completing the required supervised practice at the Royal Free London NHS Foundation Trust. He had not completed any hours of supervised practice at any time when he attempted to obtain work through Ambition as an ODP in the period April 2016 to October 2016.

17. The Panel found particular 3 proved by the witness statement of MP, the documentary evidence, the evidence of the Registrant, and the

Registrant’s admission.

Particular 4

18. In considering whether the Registrant’s conduct in particulars 1-3 was dishonest the Panel applied the modified Ghosh test:
 on the balance of probabilities, according to the ordinary standards of reasonable and honest Operating Department Practitioners, were the actions of the Registrant dishonest; and if so
 on the balance of probabilities, whether the Registrant himself must have known that what he was doing was dishonest by those standards

19. The Panel took into account the Registrant’s admission of dishonesty.

20. The Panel found that reasonable and honest Operating Department Practitioners would conclude that the Registrant’s actions in providing fraudulent references were dishonest and that it was dishonest to apply for work when he knew that he was required to complete a period of supervised practice.

21. The Registrant knew himself that what he was doing was dishonest. With regard to particulars 1 and 2 the Registrant admitted in his e-mail on 6 October 7 2016 that he had made up the references and he made the same admission to the Panel. With regard to particular 3 the Registrant knew that he was required to complete supervised practice and he has admitted his dishonesty.

22. Mr Berkin submitted that the Registrant’s dishonesty was a “moment of madness”. The Panel did not accept this submission. There were two references which were completed in detail and they were sent from e-mail addresses created by the Registrant. The Registrant first made contact with Ambition in April 2016 and he knew throughout the period from April to early October 2016 that he had not completed the supervised practice. He did not inform Ambition of the requirement to complete supervised practice before he was able to work. This was pre-meditated and calculated dishonesty for the purpose of obtaining financial gain by obtaining a work placement.

Decision on Grounds

23. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.

24. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances…”. The conduct must be serious in that it falls well below the required standards.

25. The dishonesty in this case is serious. Particulars 1 and 2 involve a fraud, and all the particulars involve dishonesty for the purpose of obtaining employment relating to his profession. The Panel regarded the dishonesty as particularly serious because it was calculated, pre-meditated, protracted, and in a professional context. The Registrant had several opportunities to admit his dishonesty before it was discovered. However, he only admitted his fraud when he knew that he had been found out and was challenged upon it.

26. The Registrant’s dishonesty involved a breach of the trust and confidence which is placed in professionals by employment agencies and employers. The Registrant made misrepresentations which potentially placed members of the public at risk. Agencies rely on the accuracy of information provided by professionals so that they can carry out the appropriate checks to confirm that
8 the individual is safe and competent. If Ambition had not carried out checks and identified the fraud the Registrant may have obtained employment at a time when his skills and knowledge had not been brought up to date as required by the HCPC. The Registrant himself acknowledged that there was potentially a risk to patients.

27. The Panel found that there was a breach of the HCPC Standards of Conduct, Performance and Ethics standards:
 6.1 “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible”;
 6.2 “You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk”;
 9.1 “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”;
 9.2 “You must be honest about your experience, qualifications and skills”

28. The Panel also found that there was a breach of the Standards of Proficiency for Operating Department Practitioners paragraph 3.1: “understand the need to maintain high standards of personal and professional conduct”.

29. The Panel found that the Registrant’s conduct would be regarded as deplorable by other ODPs and that his dishonest conduct fell well below the required standards. The Panel decided that the Registrant’s conduct in particulars 1, 2, 3 and 4 constituted misconduct.

Decision on impairment

30. The Panel applied the guidance in the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.

31. Mr Berkin informed the Panel that the Registrant has been subject to an Interim Suspension Order since 31 October 2016. He has therefore been unable to work as an ODP.

32. The Registrant informed the Panel that he has been and is currently working as a security guard in a number of different workplaces. The Panel was not 9 provided with any independent confirmation of the Registrant’s current employment, or any references or testimonials. The Registrant informed the Panel that he has recently undertaken training and that he has kept his knowledge and skills as an Operating Department Practitioner up to date, but again no documentary evidence was submitted in support of this. The Registrant told the Panel that prior to his suspension he attempted to complete the supervised practice requirements for return to practice as an Operating Department Practitioner, but was unable to do so.

33. The Panel considered that the Registrant has demonstrated some insight by his full admission of dishonesty and his admission that such conduct is wrong. However, the Panel found that there were limitations to the level of the Registrant’s insight. The Panel’s view was that the Registrant did not fully recognise the seriousness of his dishonesty. Although he accepted that his conduct potentially put patients at risk, his insight about his past behaviour appeared to the Panel to be limited. In one answer he said that he “hoped it would not happen again”, and in another he stated that “it was a silly thing to do, it was my fault”.

34. When the Registrant was asked about what he had learned from his experience, he replied that he had learned “not to create false references”. The Panel considered he had not fully reflected on his past misconduct and the importance of overall honesty in the professional context. The Panel also noted that the Registrant had passed over several opportunities to admit his dishonesty in his dealings with Ambition.

35. The Panel found that there remains a risk of repetition of similar misconduct.

36. The ongoing risk of repetition found by the Panel involves a continuing risk to patients. The Registrant’s actions could have seriously compromised patient care and there is a risk of repetition. The Registrant’s behaviour could have brought the Operating Department Practitioner profession into disrepute and had the potential for serious organisational risk of any future employer. Honesty is a fundamental tenet of the profession and the Registrant’s dishonesty was a very serious breach of professional standards. The Panel therefore considered that the test for fitness to practise proposed by Dame Janet Smith in her fifth Shipman report and confirmed in CHRE v Grant [2011] EWHC 927 was satisfied in respect of all four questions.

37. The Panel decided that it was necessary to make a finding that the Registrant’s fitness to practise is impaired to protect the public, to maintain confidence in the 10 profession, and to uphold standards of conduct and behaviour. An informed member of the public would expect the Panel to make a finding of current impairment to mark the seriousness of the Registrant’s dishonesty and the Regulator’s disapproval of such conduct.

38. The Panel decided that the Registrant’s current fitness to practise is impaired on the basis of the personal component and the public component.
Decision on sanction

39. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions Policy (ISP). The purpose of a sanction is not to punish the Registrant, though it may have that effect. The purpose of a sanction is to protect the public. The Panel should also give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.

40. The Panel applied the principle of proportionality, balancing the Registrant’s interests against the public interest.

41. The Panel identified the following mitigating circumstances:
 the Registrant’s partial insight;
 the Registrant’s engagement in the hearing;
 the Registrant’s apology and his recognition that he had put patients at risk;
 the Registrant’s commitment to the profession.

42. The Panel gave limited weight to these circumstances for the following reasons. Although the Registrant said that he recognised that he had put patients at risk, it was evident that he had either not recognised this risk at the time of his actions or had chosen to disregard it. In addition, although he admitted his deception, he did not do so until he was challenged upon it. Furthermore, although the Registrant stated that he has learned that he should not submit false references, the Panel was not persuaded that he understood the high standards of personal conduct required for professionals or that he would act sufficiently differently in other situations in which his honesty was tested. The Panel
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acknowledged that the Registrant is committed to the profession, but the Registrant’s evidence did not indicate that his commitment was in relation to patient care, but more in relation to “making a living” from his professional role.

43. The Panel noted that the Registrant gave evidence that at the time of the events he was taking anti-depressant medication. However, there was no medical evidence submitted in support of this, and the Registrant did not suggest that his health concerns at that time were so significant that they would have prevented him from undertaking a professional role or from following appropriate procedures.

44. The Panel also considered Mr Berkin’s submission that the HCPC had made errors in its handling of the Registrant’s case following the Restoration Hearing in September 2015. The Panel considered that the only relevant issue was whether the HCPC had been sufficiently clear in setting out the return to practice requirements. The Panel carefully reviewed the HCPC correspondence and was satisfied that the HCPC had been clear on the requirements and had also clearly communicated the position to the Hospitals where the Registrant was seeking to obtain a placement for his supervised practice.

45. There were no references from any employer or any testimonials. The Panel therefore had no information, other than the Registrant’s assurances, in relation to the Registrant’s present reliability, trustworthiness, and honesty.

46. The Panel identified the following aggravating circumstances: the dishonesty was pre-meditated, planned and protracted and in a professional context; the dishonesty involved a serious breach of trust; the Registrant did not take any of the opportunities to admit his dishonesty before he was found out; the Registrant’s blemished fitness to practise history; 12 the Registrant’s attitude to the past events particularly the absence of self-reflection or self-criticism and a tendency to blame others for difficult situations; the Panel’s assessment that there is a continuing risk of repetition.

47. The Panel considered that the Registrant’s previous fitness to practise history is relevant. The Registrant was struck off for a physical and verbal assault on a member of staff at work. The Registrant was restored to the register and given the opportunity to demonstrate that his personal conduct met the high standards required of professionals, but within a year of the Restoration Hearing his conduct again failed to meet the standards required. Mr Berkin submitted that the Registrant should be given a “second chance”. The Panel’s view was that the Registrant has already been given this opportunity, but he has not taken it.

48. The Panel was particularly concerned by the Registrant’s worrying lack of recognition that, after a lengthy period when he had not practised as an Operating Department Practitioner, he required training to reach the required standards of proficiency. The Registrant was prepared to go back to clinical practice when he had not worked as an Operating Department Practitioner since 2008 and knowing that he had not yet completed the return to practice requirements. The Registrant either did not recognise at the time the serious risk to patients that this involved, or he chose to disregard that risk.

49. The Panel considered the option of imposing no sanction, but decided that it would offer no protection for the public, the public interest would not be secured and there would be no deterrent.

50. The Panel next considered the option of a Caution Order. A Caution Order would enable the Registrant to practise without restriction and there would be insufficient protection for the public. There is no evidence that the Registrant has taken remedial action and he does not have full insight. The Panel decided that a Caution Order would not be an adequate deterrent.

51. The Panel next considered a Conditions of Practice Order. This case involves dishonesty and a breach of trust and the Panel was unable to identify conditions which would guard against the risk to the public the Panel has identified. Further, the Panel has identified concerns about the Registrant’s lack of self reflection, and it is not confident in the Registrant’s willingness to comply with conditions.

52. The Panel next considered a Suspension Order. In considering the proportionality of a Suspension Order the Panel carefully evaluated the mitigating factors, but considered that their weight was compromised for the reasons explained above.

53. The Panel also considered carefully the case law outlined by the Legal Assessor and accepted the advice of the Legal Assessor. Mr Berkin invited the Panel to conclude that the Registrant’s case is similar to Watters v NMC [2017] EWHC 1888. In this case the Registrant falsified a date on a training certificate to give an impression that her training was up to date when she applied for a job at a nursing agency. The Panel made a Striking Off Order which was overturned on appeal and substituted with a Suspension Order. The Panel’s view was that the case of Watters was not comparable because the Registrant does not have an unblemished previous history. Further, the risk to the public is higher in the current case. The nurse in the Watters case was working in a professional setting, whereas the Registrant knew that he had not completed the return to practice requirements and was therefore not competent, at that time, to practise as an Operating Department Practitioner.

54. The Panel carefully considered a Suspension Order but decided that it would not be sufficient. The Panel’s concerns in this case are so fundamental that they would not be addressed by a period of Suspension. The Panel’s view was that this case was so serious that the ultimate sanction of a Striking Off Order is required. The Panel considered that the sanction of last resort was the only sufficient sanction, taking into account the aggravating circumstances and the extent of the risk to the public. The Panel’s view was that the risk to the public in this case was significant. If the Registrant’s deception had not been identified the Registrant could have undertaken work as an Operating Department Practitioner even though he had not worked in clinical practice for approximately nine years. The consequences for patients could have been catastrophic. Members of the public would be particularly concerned by such reckless and deliberate behaviour.

55. In addition the Panel had found that there is a real risk of repetition and has identified an attitudinal problem with regard to self-reflection and personal responsibility. There is also previous significant fitness to practise history. The Registrant has not learned from his previous experience of the fitness to practise process, which gives the Panel no confidence as to his future conduct. In all these circumstances, public confidence would be undermined if the Panel did not make a Striking Off Order. The less restrictive sanction of a Suspension Order would not be a sufficient deterrent to other registrants.

56. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

Order: The Registrar is directed to strike the name of Lloyd Subner from the Register from the date this order takes effect.
The order imposed today will apply from 24 October 2017 (the operative date)

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

57. Ms Eales made an application for an interim suspension order for a period of eighteen months to cover the twenty eight day appeal period and, if an appeal was made, the time it may take for an appeal to be disposed of. The application was made on the ground that it is necessary for the protection of the public and is otherwise in the public interest.

58. Mr Berkin did not oppose an interim suspension order.

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

60. The Panel decided to impose an interim suspension order for a period of a maximum of eighteen months on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The Panel has identified a serious and ongoing risk of repetition. The public have been protected by the Interim Suspension Order, but that Order will now cease to
have effect. There would be a risk to the public if the Registrant were allowed to return to practice. The Panel considered that a reasonable and informed observer would be shocked to learn that there was any gap in public protection. The period of eighteen months is appropriate to cover the time that it may take for any appeal to be disposed of.

Notes

No notes available

Hearing history

History of Hearings for Mr Lloyd Subner

Date Panel Hearing type Outcomes / Status
25/09/2017 Conduct and Competence Committee Final Hearing Struck off
07/07/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
13/04/2017 Conduct and Competence Committee Interim Order Review Interim Suspension
03/09/2015 Conduct and Competence Committee Final Hearing Restored