Mr David Bamford

: Operating department practitioner

: ODP09913

Interim Order: Imposed on 15 Jun 2016

: Final Hearing

Date and Time of hearing:10:00 24/11/2017 End: 17:00 24/11/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

1. On 03 April 2017 at the Crown Court at Bristol you were convicted of:

 

(a) Theft

(b) Public Nuisance

 

2. By reason of your conviction as set out at paragraphs 1(a) and/or 1(b) your fitness to practise as an Operating Department Practitioner is impaired.

Finding

Preliminary Matters

Proof of Service

1. The Panel heard that notice in respect of this hearing was sent by first class post to Mr Bamford’s registered address and to his current address on 21 September 2017 in accordance with rules 3 and 6 of the Conduct and Competence Procedure Rules 2003.


2. The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant

3. Ms Thompson, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. She referred the Panel to the guidance contained in the HCPTS Practice Note on Proceeding in the Absence of the Registrant. She also referred the Panel to the Registrant’s response of 1 October 2017 to the Notice of Allegation in which he indicated that he did not intend to appear or be represented at his hearing. In this response, the Registrant explained that, at the time of writing, he was serving a sentence of imprisonment and was not scheduled for release until 19 December 2017. Ms Thompson referred the Panel to a letter from the HCPC to the Registrant dated 12 October 2017 which noted the contents of his completed Pre Hearing Information Form, and which invited him to state whether:

a) “You are content for the hearing to proceed in your absence
b) You would like to attend the hearing and therefore need to make a formal postponement request…”


4. Ms Thompson informed the Panel that no response had been received. She submitted that, in all the circumstances, it was appropriate for the Panel to exercise its discretion to proceed with the hearing. In the absence of any request from the Registrant for an adjournment, she submitted that the public interest in the expeditious disposal of the allegation outweighed any disadvantage to the Registrant in proceeding in his absence.

5. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the guidance provided in the cases of R v Jones [2002] UKHL5, Adeogba v the General Medical Council [2016] EWCA Civ 162 and Davies v HCPC [2016] EWHC 1593 (Admin).


6. The Panel recognised that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. In reaching its decision, the Panel had regard to the nature and circumstances of the Registrant’s behaviour in absenting himself and noted that he was currently serving a custodial sentence. The Panel balanced the public interest in the timely disposal of the allegation with the disadvantage to the Registrant should the hearing proceed in his absence.


7. On the basis of the information before it, the Panel determined that it would be fair and in the interests of justice to proceed in the absence of the Registrant.

Background


8. The Registrant is registered with the HCPC as an Operating Department Practitioner (ODP). On 5 March 2010 he was employed as an Anaesthetic Practitioner at the NHS Treatment Centre in Emersons Green, near Bristol. He was promoted to the role of Anaesthetic Lead on 1 December 2012.


9. In his position as the Lead ODP he had access to the controlled drugs used within the NHS Treatment Centre. The NHS Treatment Centre investigated inconsistencies with the controlled drugs audit, and found that controlled drugs were missing and had also been tampered with. The investigation concluded that the Registrant had stolen controlled drugs and had tampered with the drugs. The Police were notified and the Registrant was arrested.  

  
10. The Registrant was subsequently found guilty at Bristol Crown Court for the offences of Theft and Public Nuisance as he had stolen controlled drugs, namely Fentanyl and Diamorphine and had substituted the contents and glued the lids back on. The Registrant was sentenced to 2 years imprisonment. He is scheduled for release on 19 December 2017.


11. Ms Thompson opened and summarised the Council’s case.


12. Ms Thompson informed the Panel that, in his response to the Notice of Allegation, the Registrant had denied the facts alleged.


Decision on Facts


13. The Panel accepted the advice of the Legal Assessor. The Panel had well in mind that the burden of proving the facts is on the Council, that the Registrant is not required to prove anything and that a fact alleged is only to be found proven if the Panel is satisfied on the balance of probabilities that it is correct.


14. In reaching its decision, the Panel had careful regard to the Certificate of Conviction. The Panel also took into account the submissions from Ms Thompson on behalf of the HCPC, and the HCPTS Practice Note entitled ‘Conviction and Caution Allegations’. The Panel was aware that it could not go behind the conviction and was required by Rule 10 (1) (d) of the Conduct and Competence Committee Procedure Rules 2003 to accept the Certificate of Conviction from Bristol Crown Court as conclusive proof of the conviction itself and the underlying facts.


Particular 1: On 03 April 2017 at the Crown Court at Bristol you were convicted of:   a) Theft    b) Public Nuisance


15. The Panel was provided with a Certificate of Conviction in the name of the Registrant, which was signed by an Officer of the Court on 11 May 2016. The Panel accepted the Certificate of Conviction as conclusive evidence that on 3 April 2017 the Registrant was convicted of Theft and of Public Nuisance at Bristol Crown Court. The Panel noted that the Registrant had been convicted following ‘not guilty’ pleas at trial.


16. Based on the Certificate of Conviction, the Panel was satisfied that the facts as set out in Particular 1 had been proved.

Decision on Grounds


17. Based on the Certificate of Conviction, the Panel was satisfied that Conviction as a potential ground of impairment had been established.
Decision on Impairment

18. The Panel then went on to consider whether the Registrant’s fitness to practise is impaired by reason of his conviction. It had careful regard to all the evidence before it, including the Registrant’s responses during the course of his police interviews and his correspondence with the HCPC.


19. The Panel had careful regard to the submissions of Ms Thompson that the Registrant’s actions had been dishonest and had involved a gross breach of trust which had put patients at risk of harm and brought the profession into disrepute. Further, by continuing to deny his actions, and seeking to blame others for them, the Registrant had demonstrated a complete lack of insight and remediation.


20. The Panel noted the sentencing remarks of His Honour Judge Lambert after the Registrant had been found guilty of Theft and Public Nuisance as follows:


“You are now 47 years old, although you have no previous convictions, it’s not right to describe you as being of good character because in your Defence Case Statement you revealed using cannabis and   methylenedioxymethamphetamine so called recreational drugs. There is evidence that you were looking for drugs of that nature also.


You were convicted after a trial of stealing controlled drugs and of public nuisance. At trial it was established you were an operating practitioner who turned to abusing controlled drugs. The jury found that you stole opiates and then substituted the contents of the glass ampoules gluing the tops back on. Ten ampoules were proved on the evidence at trial to have been tampered with. The risks, risks plural, that created were gross and obvious and on the findings of the jury would have affected a significant number of patients.


The jury were told that in convicting of Count 2 [public nuisance] they  would have to be sure that a significant number were affected by your conduct and they so found. The gross and obvious risk here was that of infection and that the patient would not be properly anaesthetised when undergoing major surgery. Those risks did not crystallise but that  was pure chance.


The pre-sentence report outlines again the avoidance tactic you deployed at trial and which was rejected by the jury. In sentencing for a case of this nature, the law recognises that risk taking of a high degree can and must be punished significantly.
Rehabilitation has to give way to retribution and deterrents in a case of this nature and I regret to say the seriousness of what you did in terms  of the Public Nuisance Offence goes far beyond that which can be  contemplated as a suspended sentence.


If you had been stealing the drugs alone, there might have been a case for treating you and for rehabilitation but as I say, with the gross and obvious risk taking only a custodial sentence can be justified. In terms of the theft for what the assessment is worth. I found it to be a Category 3A case with high culpability.


The right sentence for stealing will be one of 12 months’ imprisonment that is of less significance in the context of the case than the risk taking which there was when, on the findings of the jury at trial, you glued ampoules back together having substituted their contents. This is simply unforgivable for a man in your position. There will be 2 years’ imprisonment for the offence of public nuisance but concurrent with the 12 months for theft.”


21. The Panel accepted the advice of the Legal Assessor and had careful regard to the HCPTS Practice Note entitled “Finding that Fitness to Practise is “Impaired””.


22. The Panel noted that, by his actions, the Registrant had fallen well below the standards expected of him as a registered ODP. In particular, he had breached the trust placed in him by virtue of his role, put patients at unwarranted risk of harm, acted dishonestly and brought the profession into disrepute.


23. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat conduct of the kind which led to his conviction. In reaching its decision the Panel had particular regard to the issues of insight, remediation and the Registrant’s history.


24. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated: “When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.”


25. In his written response to the HCPC allegation the Registrant had continued to deny that he had acted as the jury found. In the circumstances, the Panel concluded that the Registrant has demonstrated no insight into his failings, the risks to patients and the impact on public confidence in the profession.


26. The Panel noted Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that panels should take account of:


• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.


28. The Panel recognised that the dishonesty which underlay the Registrant’s conviction on both counts was a breach of trust which put patients at risk of harm and is not easily remedied. In addition, it considered that the Registrant’s conviction for public nuisance demonstrated deep-seated attitudinal problems in his approach to the risk to which he subjected patients. For this reason also, the Panel concluded that the conduct which led to the conviction is not easily remediable. Further, the Panel received no evidence to suggest that the Registrant has taken any steps to remediate his failings or that it is highly unlikely to be repeated.


29. The Panel accepted the view of the sentencing judge that, while the Registrant has no previous convictions, it is not right to describe him as being of good character because of his use of recreational drugs.


30. For all the reasons set out above, and in the absence of any evidence to the contrary, the Panel concluded that the Registrant is likely to repeat conduct of the kind which led to his conviction.

31. The Panel had careful regard to the critically important public policy issues identified by Silber J in the case of Cohen when he said:
“Any approach to the issue of whether .... fitness to practise should be  regarded as ‘impaired’ must take account of ‘the need to protect the  individual patient, and the collective need to maintain confidence in the  profession as well as declaring and upholding proper standards of conduct and behaviour.”


32. The Panel had no doubt that, in the circumstances of this case, the need to protect the individual patient required a finding of current impairment on the ground of public protection.


33. Further, the Panel had no doubt that, in the circumstances of this case, the collective need to maintain confidence in the profession, as well as declaring and upholding proper standards of conduct and performance, would be undermined if it did not make a finding of current impairment of fitness to practise on public interest grounds.


34. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his conviction, both on the grounds of public protection and in the public interest. 


35. Accordingly, the Panel found the Allegation well founded.


Decision on Sanction


36. The Panel next considered what, if any, sanction to impose on the Registrant’s registration.

37. The Panel had careful regard to all the evidence put before it, and also to the submissions of Ms Thompson. The Panel accepted the advice of the Legal Assessor.

38. Ms Thompson drew the Panel’s attention to the HCPC’s Indicative Sanctions Policy and submitted that the question of sanction is a matter for the panel’s own independent judgment.

39. In reaching its decision the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.

40. The Panel had in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The panel considered the options open to it in light of the guidance provided in the case of General Dental Council &  Fleischmann (2005) EWHC 87 (Admin) that:                                                                                  “where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence.”

41. Given that the Registrant is currently serving a custodial sentence, the only options open to the Panel at this time are to impose a suspension order of up to 12 months or to impose a striking off order.

42. In reaching its decision on sanction, the Panel had regard to all the circumstances, including the following aggravating and mitigating features of the case:

Aggravating:


a) The conduct which led to the conviction was so serious it could only be dealt with at Crown Court by the imposition of a period of immediate imprisonment.
b) Patients were put at risk of significant harm although there is no evidence that any were actually harmed.
c) The conduct which led to the conviction involved a gross breach of the trust placed in the Registrant by reason of his employment as a Lead Operating Department Practitioner.
d) The Registrant has demonstrated neither insight nor remediation.
e) The conduct which led to the conviction involved dishonesty and calculated deception on the part of the Registrant was deliberate,  reckless as to potential consequence, repeated and persistent and demonstrated a pattern of behaviour over a protracted period of time.

Mitigating - The Panel could find no mitigating features.

43. The Panel first considered the imposition of a Suspension Order. It gave careful consideration to Paragraphs 39-45 of the Indicative Sanctions Policy.

44. The Panel considered the seriousness of this case is such that a Suspension Order would not be sufficient to protect the public, nor to mark the unacceptability of the Registrant’s behaviour, nor to satisfy the wider public interest.

45. The Panel next considered the imposition of a Striking Off Order. It had no doubt that this case fulfils the criteria for striking off as set out in the Indicative Sanctions Policy. In particular, it found that the conduct which led to the conviction was serious, deliberate, reckless and involved both abuse of trust and dishonesty. Having concluded that a lesser sanction in the form of a period of suspension would not provide adequate public protection, and would not be sufficient in the public interest, the Panel determined that a striking-off order is the only appropriate and proportionate response. In the Panel’s view, the Registrant’s actions are entirely incompatible with his continued presence on the Register, and members of the public would be shocked if he were to be permitted to remain on it. In the Panel’s view, public confidence in the profession, the regulator and the Register would be undermined if the Registrant were permitted to remain on the Register.

Order

ORDER: The Registrar is directed to strike the name of Mr David Bamford from the Register.

 

Notes

Hearing history

History of Hearings for Mr David Bamford

Date Panel Hearing type Outcomes / Status
24/11/2017 Conduct and Competence Committee Final Hearing Struck off
15/05/2017 Investigating committee Interim Order Review Interim Suspension