In the course of your employment as an Operating Department Practitioner at Brighton and Sussex University Hospitals NHS Trust, on or around 9 July 2010, you:
1. Took 2 vials of Thiopentone, syringes, needles and a cannula from the Princess Royal Hospital, Main Theatres Department, with the intent of taking your own life.
2. The matter set out in paragraph 1 constitutes misconduct.
3. By reason of that misconduct, your fitness to practise is impaired.
The registrant, Monica Phillips, did not attend the hearing. The HPC was represented by Ms. Sophie Lister of Kingsley Napley, solicitors. The Panel was satisfied that the notice had been properly served on her and had regard to her letter of response dated 15 March 2012 in which she stated that she would not be attending the hearing. The Panel determined to proceed in her absence in terms of rule 11 of the HPC (Conduct and Competence Committee) (Procedure) Rules 2003.
The Panel noted that this case had been considered first by a panel of the Health Committee on 15 December 2011. That panel had determined that the allegation was better dealt with by a panel of the Conduct and Competence Committee and suspended its consideration of the matter. This Panel, having heard the evidence in the case, is satisfied that the matter should properly be determined by a panel of the Conduct and Competence Committee and has decided to proceed with the case.
The Panel was disappointed that Mrs. Phillips has elected not to attend to give her own account of matters in person at this hearing. However, the Panel wishes to make clear that it has taken into account what was said by Mrs. Phillips in her letter and as well as all those matters which are favourable to her in the evidence before it. The Panel has accepted the advice of the legal assessor that it should draw no adverse inference from her absence from the hearing and that it has a duty in such absence to expose any weaknesses in the HPC’s case and bring out any evidence in the bundle which is favourable to her.
Decision on Facts:
The Panel heard oral evidence from Patricia Titherly, Surgical Matron at the Princess Royal Hospital, Sussex (the “Hospital”) and also Christine Chiswell, Clinical Theatre Manager at the Hospital and had regard to their witness statements. The Panel accepted the evidence of both witnesses as credible. The Panel did not accept Mrs. Phillips’ criticisms of what was said in the witness statements of these witnesses. The Panel also had regard to the letter of 15 March 2012 from Mrs. Phillips as well as to the various records of statements made by her in the course of the Hospital’s investigation into her conduct and the subsequent disciplinary procedures. The Panel considers that Mrs. Phillips various accounts of the provenance of the drugs and equipment to be inconsistent and lacking credibility but is satisfied about what she has said about her intention to use them to end her life.
The Panel finds the facts set out in paragraph 1 of the allegation proved on the balance of probability. The Panel accepted the evidence of Patricia Titherly that the two vials of Thiopentone were taken from the Hospital. This was clear from the batch numbers as confirmed by an audit at the Hospital which follows a note in the accident and emergency record on the date she was admitted. The Panel accepted that Mrs. Phillips had misappropriated the drugs with the intention of taking her own life. This is clear from her own statements, the most recent dates 15 March 2012 for this hearing; and also from what she said to the two Consultant Psychiatrists who examined her after the event. The Panel accepts that Mrs. Phillips was suffering from stress at the time.
Decision on Grounds:
The Panel next considered whether the registrant’s actions amounted to misconduct. The Panel noted that she was a long-serving and very experienced operating department practitioner who was considered to be clinically competent. She would have been expected to have known that it was wrong to misappropriate drugs from a hospital. Stealing medication from a hospital for whatever purpose has the potential to put at risk patients who need that medication. The Panel is conscious that there is no evidence that harm was caused to any patient in this case. Nevertheless, the Panel determined that the registrant’s conduct in misappropriating drugs while employed by the Hospital fell short of the standards expected of a registered health professional and was in breach of the Standards of Conduct Performance and Ethics of the Health Professions Council and in particular standards 3 (keeping high standards of personal conduct) and 13 (behaving with honesty and integrity and ensuring that behaviour does not damage the public’s confidence in the profession). The Panel has concluded that the registrant’s actions amounted to misconduct.
Decision on Impairment:
In regard to impairment, the Panel had regard to the duties imposed on it in terms of the Cohen case. Mrs. Phillips has admitted taking the vials of Thiopentone but has maintained that her conduct was attributable to failures on the part of the Hospital’s management and also because of bullying by her superiors. The Panel was conscious that, in her written statements and the responses recorded as having been made by her at investigatory and disciplinary meetings, she has expressed remarkably little regret or remorse about her conduct. She has offered no apology and has not stated that she acknowledges that what she did was wrong. Instead, she has sought to blame those in management positions for the way in which she was treated. Furthermore, the Panel do not consider this to be an isolated incident where the risk of repetition is remote. The Panel considers that there may well be a risk of repetition of this kind of behaviour if the registrant were to find herself in a similarly stressful position. In regard to public interest considerations, the Panel considers that the public would expect a registered operating department practitioner to maintain high standards of conduct and not resort to misappropriating medication in this way. Such conduct has the potential to undermine public confidence in the profession of operating department practitioners as well as in the Health Professions generally. The Panel accepts that the stress which the registrant was experiencing may have caused her to act out of character. However, it would have been expected of a health professional that she would have sought professional help rather than resort to conduct of this kind. The Panel considers that public interest considerations including in particular, the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour, means that the Panel can only conclude that the registrant’s fitness to practise was impaired at the time of the events set out in the allegation. Although some evidence has been given by the registrant about her current work undertaking useful community roles serving tea in a hospice position, housekeeping and voluntary pet support, the Panel has not had sufficient evidence from her to show that her position has changed sufficiently or that she has demonstrated insight into her actions to enable it to conclude that her fitness to practise is no longer impaired. Accordingly, the Panel has concluded that Mrs. Phillips’ fitness to practise is currently impaired by reason of her misconduct.
Decision on Sanction:
Members of the public expect the highest standards of probity and conduct in registered health professionals. Honesty and integrity are fundamental to the proper functioning of the healthcare professions and are an essential element in professional regulation. Misconduct involving the misappropriation of drugs has the potential to undermine public confidence in the health professions and to bring those professions into disrepute. The Panel was conscious that in reaching its decision, appropriate weight must be given to wider public interest considerations, including the deterrent effect to other health professionals, the reputation of the profession of operating department practitioners as well as public confidence in the regulatory process.
This is the stage at which any matters in mitigation should be taken into account by the Panel. The Panel has not had any evidence that any patient was harmed by the registrant’s actions. As previously noted, the Panel has carefully read what was said by Mrs. Phillips in her letter of 15 March 2012 and also in her written statements and her oral statements in the Hospital’s investigation and disciplinary processes. The Panel did not accept that the problems experienced by Mrs. Phillips were attributable to deficiencies in her personal relationship with her managers at the Hospital. Rather, the Panel considered that she suffered from stress because of her poor relationships with colleagues. The Panel has also noted that the passage of time appears to have hardened Mrs. Phillips’s attitudes to her problems with colleagues. The Panel compared her near-contemporaneous comments about her colleagues, as recorded in the Notes of the Investigation Meeting held on 13 September 2010, with the most recent comments contained in her letter of 15 March 2012, and found that her position had moved from measured criticism to extreme condemnation to the point of alleging that certain parts of the evidence against her was a complete fabrication.
The Panel has already determined that there was nothing before it to suggest that the registrant had shown any insight into her misconduct or that she had demonstrated any remorse for her actions. The Panel could find very little in mitigation.
The Panel considered all the sanctions available to it under article 29 of the Health Professions Order 2001 and took into account the guidance contained in the Health Professions Council’s Indicative Sanctions Policy. Following the approach set out in Giele v. General Medical Council, the Panel considered the sanctions in ascending order. The sanctions included taking no action, mediation, a caution order, a conditions of practice order, a suspension order and a striking off order. In reaching its decision, the Panel has applied the principle of proportionality and has balanced the interests of the public with those of the registrant. In doing so, it has addressed the questions posed in paragraph 9 of the HPC’s Indicative Sanctions Guidance.
The Panel concluded that to take no action would not adequately protect the public because of the seriousness of the misconduct and the lack of insight and remorse demonstrated in this case. The Panel also considered that mediation would serve no purpose in this case. The Panel then considered a caution order. The Indicative Sanctions Guidance states that a caution order may be appropriate for an isolated lapse of a minor nature or where there was a low risk of repetition and the registrant had shown insight and had taken remedial action. The Panel finds that none of these elements were present in Mrs. Phillips’ case. Accordingly the Panel has concluded that a caution order would not be sufficient in the circumstances of this case. The Panel next considered conditions of practice. The Indicative Sanctions Guidance states that conditions of practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm. However, by her own acknowledgement, Mrs. Phillips is no longer working as a health professional or as a registered nurse. Given that she is not currently employed as a health professional, it would be difficult for this Panel to draft conditions of practice which would be workable. The Guidance goes on to state that conditions must be realistic and the Panel considers that it would be impossible to formulate a condition which would be appropriate realistic and verifiable and prevent a registrant from misappropriating drugs if an opportunity arose. Furthermore, the efficacy of conditions depends to a large extent on the registrant being trusted to comply with them and the Indicative Sanctions Guidance states that panels need to be confident that the registrant will adhere to those conditions. It is stated that the imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore that conditions may not be appropriate where failings cannot be overcome such as matters involving lack of insight or denial. For all these reasons, the Panel considers that conditions of practice would not be workable in this case. The Panel does not consider that Mrs. Phillips could be trusted to adhere to any such conditions given her lack of insight and denial. The Panel is particularly concerned about the likelihood of repetition. In all the circumstances, the Panel has concluded that there would be no purpose in making a conditions of practice order.
The Panel then considered whether to impose a suspension order. The Indicative Sanctions Guidance states that a suspension order may be appropriate where lesser sanctions are insufficient or inappropriate to protect the public but where there is a realistic prospect that repetition will not occur. The Guidance emphasises that suspension is punitive in effect and that this must be borne in mind. It goes on to say that if the evidence suggests that a registrant will be unable to resolve or remedy her failings, then striking off may be the more appropriate option unless there is a realistic prospect that the registrant can resolve her difficulties whilst suspended. The Panel did not consider that Mrs. Phillips could resolve her problems during a period of suspension and as previously stated, it cannot be satisfied that there will be no repetition. The Indicative Sanctions Guidance states that a striking off order is a sanction of last resort for serious acts involving persistent failure and where there is a lack of insight, continuing problems or denial. The Guidance states that an inability or unwillingness to resolve matters suggests that a lower sanction will not be appropriate. Accordingly, for all these reasons, the Panel has decided that a striking off order is the only appropriate and proportionate order to make in this case.
That the Registrar be directed to strike the name of Monica Phillips from the register.
Right of Appeal:
You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the High Court in England and Wales.
Under Articles 29 and 38 of the Health Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. The order made against you will not take effect until that appeal period has expired or, if you appeal during that period, until that appeal is disposed of or withdrawn.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health 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.