Mark Considine

Preliminary Matters

Parts of the hearing in private

1. A joint application was made by Mr Olphert for those parts of the hearing which touched on health to be held in private. He submitted that health is one of the few exceptions to the general principle that matters should be dealt with in public, where the law holds that it is proper for matters to be heard in private. Ms Bernard-Stevenson on behalf of the HCPC submitted that in addition, Colleague A, in his evidence, makes reference to past health matters and those may be relevant to the context of his work at the time. She submitted that any parts of his evidence where health is referenced should also be heard in private.

2. The Panel accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on "Conducting Hearings in Private". It was aware that it had a discretion to hold parts of the hearing in private. It carried out a balancing exercise between the public interest in a public hearing, and individuals’ right to privacy in respect of health matters. The Panel determined that the individuals’ right to privacy in respect of matters pertaining to their health outweighed the public interest in hearing such evidence in public.

Application to discontinue particular 2c)

3. Ms Bernard-Stevenson applied to discontinue particular 2c because Service User A, who is alleged to have overheard the altercation between the Registrant and Colleague A, would not attend to give evidence. This had not been appreciated by Ms Bernard-Stevenson prior to the first day of the hearing. Ms Bernard-Stevenson submitted that numerous attempts had been made to request the attendance of Service User A, but they had failed to respond. Service User A’s evidence was the sole and decisive evidence in respect of this particular, and as such, the Panel was, Ms Bernard-Stevenson submitted, unlikely to admit the evidence on that matter as hearsay as it would be unfair to do so. It followed that it was not viable for the HCPC to proceed with particular 2c, hence the application to discontinue it.

4. Mr Olphert on behalf of the Registrant endorsed the application.

5. The Panel accepted the advice of the Legal Assessor that it needed to consider whether the proposed withdrawal altered the nature or seriousness of the case and then balance any unfairness to the Registrant with the HCPC’s duty to bring a case that reflects the evidence, given its overarching objective of protecting the public. The Panel was also advised as to the principles to be weighed in the balance as set out in Thorneycroft v NMC [2014] EWHC 1565 (Admin) when determining whether it is fair to admit hearsay evidence.

6. The Panel, having read the witness statements, accepted the submission of Ms Bernard-Stevenson that Service User A’s evidence is the sole and decisive evidence in relation to particular 2c. There was no other means of testing its reliability and therefore it would not be fair to admit Service User A’s evidence which goes to particular 2c as hearsay. As to the discontinuance of the particular, the Panel considered that particular 2c was probably the least serious allegation faced by the Registrant so withdrawing it would not impact on the overall seriousness of the case. Given that the HCPC is unable to prove this particular in the absence of the attendance of Service User A, the Panel granted the application to discontinue.

Application to admit hearsay evidence

7. Ms Bernard-Stevenson applied for the remainder of Service User A’s written evidence to be admitted as hearsay. She referred to the Panel’s power to admit such evidence as set out at rule 10(1)(b) of the Conduct and Competence Committee Rules and the factors set out in Thorneycroft. She outlined the attempts made by both the HCPC and Blake Morgan to engage Service User A, to which they had failed to respond. Ms Bernard-Stevenson submitted that the lack of a good reason for Service User A’s non-attendance does not necessarily mean that their evidence should be excluded. She submitted that his evidence corroborates that of Colleague A and the Registrant has made some concessions which corroborate Service User A’s evidence. She submitted that it would not be unfair for this evidence to be admitted, and in the alternative, that any unfairness could be addressed by the weight given to this evidence at the deliberation stage.

8. Mr Olphert submitted that whilst Service User A’s evidence is not sole and decisive in relation to the remaining particulars, their account potentially corroborates that of Colleague A, and cannot be challenged. He submitted that the Panel needs to consider the relevant factors and determine whether it is fair to admit this evidence, noting that there is no good reason for Service User A’s non-attendance.

9. The Panel was aware that hearsay evidence is admissible in these proceedings subject to the requirements of relevance and fairness. Relevance was not in despute. As to fairness, the Panel had regard to the principles set out in Thorneycroft v NMC [2014] EWHC 1565 (Admin) and was cognisant that there is likely to be some prejudice to the Registrant if Service User A’s evidence is admitted, because there will be no opportunity for the reliability of their evidence to be tested via cross-examination. Whilst there was no good reason for Service User A’s non-attendance, the Panel considered that Service User A could not realistically have been compelled to attend, and noted the significant attempts made to gain their engagement. The Panel determined that it would admit Service User A’s evidence as hearsay, and reflect the potential for unfairness in the weight attributed to this evidence when making its findings of fact.

Background

10. The Registrant was employed as an Operating Department Practitioner by Betsi Cadwaladr Health Board from 15 June 2015 until his dismissal on 20 October 2021. This followed a disciplinary investigation which resulted in a finding of gross misconduct.

11. The incident leading to the internal investigation and dismissal, and which formed the basis of the referral to the HCPC, took place on 20 April 2021. The Registrant had been seconded to the Plaster Room to be trained in casting. On the day in question, he was working under the supervision of Colleague A, Charge Nurse of the Plaster Room. Service User A attended at 9.15am for the removal and re-application of a cast. The Registrant asked to do this, and said he had undertaken various casting procedures the previous week when Colleague A was on annual leave. Colleague A agreed to the Registrant’s suggestion, on the basis that it would be a good opportunity to see what he had learned.

12. The Registrant removed the backslab (partial cast) without issue, and then undertook the initial steps for the fitting of the new cast. Soon after he commenced this, Colleague A, who was sat on a swivel chair at a computer desk a few metres away, through observation considered that the Registrant’s approach was incorrect. He went across to the casting chair and stood on the opposite side to the Registrant. Colleague A told the Registrant that what he was doing was incorrect. The Registrant disagreed and considered that Colleague A should not have made criticisms of his work in front of Service User A. He left the casting room, saying he was going to the toilet. Colleague A removed the cast that the Registrant had started to apply and fit the cast himself.

13. After Service User A left the plaster room the Registrant re-entered and shut the door behind him. He challenged the Registrant for having, in his view, belittled him in front of Service User A. There is a dispute as to exactly what was said by each person, and as to who approached whom. However, it is not disputed that the Registrant pushed his chest into Colleague A, who in turn fell backwards into the casting chair.

14. The incident was reported by each staff member, with Colleague A going upstairs, followed by the Registrant, with the intention of reporting the incident to the Matron. The Matron was not in her office, and Colleague A reported to the Charge Nurse on duty. The Registrant reported the incident to his line manager.

15. Both staff members were suspended after the incident and an internal investigation took place. The Registrant attended a disciplinary investigation meeting on 8 June 2021. On 25 August 2021 he was invited to a disciplinary hearing which took place on 20 October 2021. Two allegations were brought, of assault and threatening behaviour directed at another staff member, and of unacceptable behaviour towards another staff member. The allegations were found proved, and that the Registrant’s conduct amounted to gross misconduct. He was summarily dismissed.

16. The Registrant’s former employer reported him to the HCPC on 15 November 2021.

17. The Panel heard evidence from:

• Colleague A, Charge Nurse in the plaster room;

• RC, Deputy Head for Medicine at the time of events, currently manager of Fairways Newydd Nursing Home;

• The Registrant.

18. Prior to the Registrant giving his evidence, it was established that his partner was in the room with him. She was there for support. It was explained to the Registrant that he must not have any communication with his partner whilst he gave his evidence. In the event, due to the time taken for the Registrant’s bundle to be provided to the Panel, he did not give evidence until day 3 of the hearing, and confirmed that on this day, he was alone in the room.

Submissions on the facts

19. Ms Bernard-Stevenson on behalf of the HCPC summarised the evidence going to the disputed particulars. She submitted that the evidence of Colleague A was more reliable than that of the Registrant and invited the Panel to find all the facts proved.

20. Mr Olphert invited the Panel to take into account the Registrant’s good character when assessing his credibility. He urged caution in respect of the weight that should be given to hearsay evidence. He made submissions as to the reliability of Colleague A, and submitted that the evidence of the Registrant was more reliable.

Legal Advice

21. The Panel accepted the Legal Assessor’s advice. It was aware that:

• The burden of proof is on the HCPC and the standard of proof is the balance of probabilities - Miller v Minister of Pensions 1947 2 All ER 372;

• The Panel should take into account the entirety of the evidence and assess its accuracy, reliability and credibility;

• Inferences can be drawn, but assumptions should not be made;

• Demeanour is generally not considered a reliable indicator of credibility – Dutta v GMC – [2020] EWHC 1974, however where there is no independent evidence, it is permissible to take demeanour into account - Byrne v GMC [2021] EWHC 2237;

• When considering hearsay evidence, separate decisions are needed on admissibility and weight. When deciding what weight to give to such evidence, regard should be had to the circumstances in which it was obtained and the extent to which it is consistent with other evidence;

• Evidence of the Registrant’s good character can be taken into account at the facts stage - Wisson v HPC [2013] EWHC 1036 (Admin).

Decision on Facts

22. The Panel first decided whether to admit the written evidence of AP, Charge Nurse, and LR, Matron as hearsay. This evidence was relevant as Colleague A reported the altercation to AP immediately after it took place. The Registrant had given his initial account to LR. Not only do these people say what they were told, but talk about how Colleague A and the Registrant respectively presented. The Panel considered that these accounts do not go directly to the Allegation, but were relevant to the broader picture because these people witnessed the immediate aftermath.

23. As to fairness, the Panel had regard to the factors set out in Thorneycroft. There was no information as to why the HCPC had not sought to call these people as witnesses, hence there was no good or cogent reason for their non-attendance. The Registrant had made clear in his evidence that he disputed some aspects of AP’s account. In particular, the Registrant disputed what AP had said when he referred to the Registrant swearing (separately to the allegation in particular 2b). The Panel considered that this evidence merely provided context, and its reliability could in large part be assessed through its consistency with the account of Colleague A, as Mr AP reports what he was told by Colleague A. Therefore, whilst there was some disadvantage to the Registrant in admitting the statement of AP, the Panel determined that it was fair to admit the evidence, but that it would give only limited weight to it, to reflect the disadvantage to the Registrant of not being able to cross-examine AP. The Panel did not accept the Registrant’s assertion that AP was somehow against him, having taken into account that the two had never met, and AP was reporting, as requested by his employer, what he had been told and witnessed in the aftermath of the incident on 20 April 2021. The Panel considered that there was no disadvantage to the Registrant of admitting the account of Matron LR, and greater weight could be given to her statement.

24. As to the weight to be given to the account of Patient A (also referred to as Service User A in the Allegation), the Panel considered that they were entirely independent of both the Registrant and Colleague A, and had no reason to give anything other than an honest account of their treatment. They had initially engaged, but many months ago decided that they no longer wished to be part of this process. This was a decision they were entitled to make. The Panel considered that it could give substantial weight to their evidence.

25. The Panel, noting that there are no contemporaneous documents which go to the factual disputes, decided that it would assess the credibility and reliability of each witness when dealing with the individual disputed particulars. This was because a witness’s memory can be reliable in some respects but not others, and internal consistency would be assessed through comparison of the accounts given in relation to each particular.

26. The Panel had regard to the two character references supplied by the Registrant and was satisfied that the writers were aware of why the testimonials had been requested. However, the Panel noted that both these people worked with the Registrant over 20 years ago. It was also unclear whether they were fully aware of the allegations against the Registrant. The Panel therefore gave limited weight to this evidence.

1. On 20 April 2021, your behaviour with Colleague A was not professional in that you refused to work in partnership with Colleague A by not accepting an instruction on a procedure while you were in training/on secondment - PROVED

27. In his original statement made on 22/23 April 2021 in the aftermath of the incident, Colleague A stated that he watched the Registrant remove the backslab, which he did well. However, he was concerned that the piece of stockinette used was far too long, and that the padding was far too thick and had covered the patient’s thumb, which is not required. The Registrant then turned the stockinette back to the padding before applying any casting material. Colleague A therefore approached the Registrant and said that what he was doing was wrong. According to Colleague A, the Registrant replied that this was how it was done in theatre. Colleague A said he explained that if the stockinette were not sandwiched between the layers of synthetic (plaster) it would detach and the cast would come loose, allowing the fracture to move. Colleague A’s account was that the Registrant replied that he had been doing it like this for years and his casts never came apart.

28. Colleague A also states in his original statement that the patient’s arm was in the wrong position, and in a pleasant manner, he explained why. Colleague A said that after this conversation he allowed the Registrant to continue, and he returned to the computer. However, he then saw that the Registrant was applying the synthetic plaster incorrectly. Colleague A went over again and told the Registrant to stop. He explained what was being done wrong, and offered to help. The Registrant continued whilst Colleague A was putting on gloves, and continued to apply the casting material incorrectly. Colleague A said he had to tell the Registrant to stop again, following which, the Registrant said that he could not apply the plaster with his partially amputated thumb and with Colleague A watching over him. The Registrant walked away and said he was going to the toilet, leaving the casting material dangling from the patient’s wrist.

29. In his investigation interview on 21 June 2021, Colleague A’s account reflected this.

30. In his statement for these proceedings dated 25 May 2023, Colleague A, by way of background, stated that the Registrant had come to the plaster room on a three month secondment to be trained in Levels 1 and 2 casting competency. He and the Registrant had worked two shifts together on 6 and 7 April 2021 for a total of three hours before he went on annual leave. On the morning of 20 April 2021, the Registrant asked if he could do Patient A’s cast, saying that he’d had lots of practice the week before. Colleague A agreed, and stayed in the room to observe.

31. Colleague A in this statement repeated the same criticisms of the Registrant’s technique in applying the cast. Colleague A added that after he told the Registrant to stop for a second time, the Registrant replied that he had completed a casting course whilst in the army in the 1980s and that he did all the casting in the operating theatre.

32. In his oral evidence, Colleague A repeated the same concerns as to how the Registrant was applying the cast. When asked, he explained the consequences of applying the padding too thickly; that after a short time the padding goes down and a gap between the skin and the cast develops meaning that the cast becomes loose, in turn meaning that the fracture can move. Colleague A said that when the Registrant began to apply the cast material he also did that incorrectly, so he (Colleague A) said this was not right and asked the Registrant to stop. Colleague A said he thought he was being nice about it, he was not aggressive or raising his voice, he just said that what was being done was not right. Colleague A said he would show the Registrant how to apply the cast and started to put on gloves. Colleague A’s evidence was that whilst putting on gloves, with his back to the Registrant, when he turned around he saw that the Registrant was continuing to apply the cast and Colleague A again had to ask him to stop. Colleague A believed his tone had been pleasant.

33. When asked how the Registrant reacted, Colleague A’s evidence was that the Registrant was not happy at all. The Registrant told Colleague A that he was able to apply casts himself and did not want help. Colleague A’s account was that then the Registrant reached a point where the cast would not apply, and the Registrant then said that he could not do it with Colleague A watching and with an amputated thumb. The Registrant said he was going to the toilet and walked away. When the Registrant left Colleague A said he noticed that the cast material had started to solidify; because hot water had been used the plaster went hard very quickly.

34. Patient A gave a statement dated 9 June 2023. He says that there was a disagreement between the Registrant and Colleague A as to how the cast should be applied. Colleague A had said "You’re not doing it right” to which the Registrant had replied “I have done thousands of casts in the army so its fine”. Patient A said that eventually the Registrant had had enough, excused himself to the bathroom and walked out of the room.

35. The Registrant, in his original statement made on 21 April 2020 said he had been working alongside Colleague A in the plaster room for the past few weeks. Under cross-examination, he accepted that he had worked 2 days of 2-3 hours with Colleague A before his annual leave. On the day in question, he volunteered to take care of Patient A because he could see that Colleague A was busy. He started to replace the cast by placing a stockinette over the lower part of Patient A’s left arm and then dressed the arm with padding. He rolled the stockinette back from the elbow and back from the knuckles and then started applying the cast. He said Colleague A came over and immediately started to criticise his application of the cast. According to the Registrant, Colleague A said, in a very condescending manner: “You shouldn’t roll the stockinette back yet but apply one layer of synthetic cast then roll the stockinette back”. The Registrant continued that he tried to explain his reason behind the application of the cast, but Colleague A insisted that he (the Registrant) was wrong, in front of the patient, causing the Registrant to feel embarrassed and humiliated. The Registrant said he continued to apply the cast with Colleague A stood over watching. Colleague A again told the Registrant that he was applying the cast wrong around the thumb. The Registrant said the manner of Colleague A’s approach made him feel more foolish and inadequate and totally undermined his professional proficiency. The Registrant said that he then suggested that Colleague A take over, rather than continue with the disagreement. He therefore said in a calm manner that Colleague A should carry on as he needed to go to the toilet.

36. In the investigation interview on 8 June 2021, it is recorded that when asked about supervision, the Registrant said that nothing was explicitly stated when he went to work in the plaster room. He had assumed that he would be under observation and would have two to three weeks supervision until he was up to speed due to his maturity and professional attitude. In terms of how long he had worked in the plaster room, he said that the week before Colleague A went on annual leave he had worked with Colleague A most days and had generally worked three to four hours/day.

37. The Registrant did not go into detail about how he applied the cast, save for saying that in Theatres they “would apply the stockinette and then fold back depending on the patient”, and that this method usually worked better for patients with thinner arms. The Registrant said that he carried on reapplying the cast when Colleague A came over and told him that “he shouldn’t be doing that”. The Registrant said he had felt unnerved as this was in front of a patient and there was nothing wrong with what he was doing. The Registrant said he tried to explain the reason why he casted the patient’s arm as he did. He said that as he carried on plastering Colleague A stood over him. The Registrant said he would rather Colleague A had said “I’d rather you didn’t do this” and then explained the mistake later.

38. [redacted] He said that during this incident he had thought he could not carry on and needed to leave. He therefore told Colleague A he was going to the toilet, but Colleague A had told the Registrant to stay and carry on, to which the Registrant had replied that he needed to leave.

39. In his statement prepared for this hearing the Registrant referred to his extensive training in the army including Operating Theatre Technician qualifications 3, 2 and 1. These courses provide knowledge of all operating theatre practice – a range of areas including plaster casting. He had been employed as an ODP since 1992.

40. The Registrant stated that due to his phased return to work he was placed in the plaster room because he had prior knowledge of casting and as the department required help. He said that he did not refuse Colleague A’s instruction, but became upset at his confrontational style of instruction. He felt demeaned and embarrassed in front of his patient. He needed to excuse himself [redacted]. The Registrant said that initially Colleague A refused to allow him to leave, but did not elaborate.

41. In his oral evidence the Registrant said that he was placed in the plaster room because he was on a phased return to work, and his understanding was that he was there on a secondment, not in a training role. He said that in the week Colleague A was on annual leave he did between three and five casts. He said some aspects of casting had changed so in his spare time in the plaster room he spent some time practising different casts.

42. In terms of Patient A’s cast, the Registrant accepted that the stockinette was a little long, but not excessively, and went on to explain that the reason was that this made it easier for him to undertake the fitting process due to him having a partially amputated thumb. The Registrant considered that the way he was using the stockinette was the cause of the problem; he was using the extra length as a tool, whereas Colleague A did not think that he was going to sandwich it in the layers of the cast.

43. The Registrant said that [redacted], being told in front of the patient that he was doing it wrong made him feel inadequate. His evidence was that Colleague A interrupted 2-3 times saying he had made a mistake, and in order to avoid a situation arising, he decided to move away. He did not want to argue in front of the patient.

44. Under cross examination the Registrant accepted that he was less experienced in plastering than Colleague A and that Colleague A was more up to date. He said that Colleague A had given him a booklet which covered certain innovations that had come about since he had applied some casts. The Registrant was unable to recall whether this had been the Level 1 booklet. He denied that the intention was that he was to follow a training programme. He had no awareness that training was part of the role, and if he had known, he would probably have refused the role. However, the Registrant accepted that Colleague A was his supervisor as he was in charge of the department.

45. When taken through the process of applying Patient A’s cast, the Registrant did not accept that there was a certain or proper way of applying the cast. He did not accept there was any issue with his method of application or that he used hot water. The Registrant did not accept that Colleague A had concerns that harm may be caused to Patient A. He said the issue was how Colleague A spoke to him; it was unnecessary.

46. When questioned about his attitude to accepting instructions, the Registrant disputed that rank is important in all parts of the army and suggested that this was not the case in the Medical Corps. It was put to the Registrant that he likes to have his seniority recognised, with reference to an email sent by his MS (Member of the Senedd) in the context of a request for recognition by the employer of the Armed Forces Covenant. The MS wrote: “Mr. Considine states that, above all, he needs his seniority to be recognised in Theatre…”. Initially the Registrant had said that he is not a person who demands respect. Then he accepted this proposition to a point. He did not believe his employer had made the best use of his experience.

47. [redacted].

Assessment of evidence

48. The Panel, noting the different accounts given by the Registrant and Colleague A, began with an assessment of each witness’s credibility, and hence the reliability of their versions of events. The Panel noted a number of inconsistencies in the Registrant’s evidence set out above, such as the time he had worked with Colleague A [redacted].

49. The Panel did not find the Registrant’s evidence as to how much experience of casting he had gained in the army plausible, when he said he would work in casting in rotation and as much as 6 months in a 12 month period, given the number of areas that OTTs work in and the range of skills and practice areas they are trained in. Nor did the Panel find the Registrant’s answers to questions about rank plausible. The Panel considered that the Registrant’s assertion in his evidence that he does not, in civilian life, expect his seniority to be recognised, was inconsistent with the evidence he himself had put before the Panel.

50. On the other hand, the Panel found Colleague A to be balanced in his views and consistent in his account. There were not obvious discrepancies. The Panel considered that it is human nature that a person may not mention every detail in every account and what they say will in large part depend on what they are asked.

51. With regard to the statement of Patient A, the Panel considered that it was likely that the Registrant had made reference to the army, as Patient A would have had no knowledge of his past, and this is not a reference that is heard every day.

Finding

52. The Panel began with the dispute as to whether or not the Registrant was in a training role or on secondment. It found that there had been a genuine difference of perceptions. The Panel accepted what Colleague A said he had been told by the Matron, namely that the Registrant was to be placed in the plaster room for three months and to be trained in Level 1 and 2 competencies. Whilst the Registrant understood that he was seconded to the plaster room, the Panel accepted that it had not been explained to him that he would be undergoing any formal training. The Panel noted that the Registrant accepted that he would be subject to supervision, and indeed, initially, observation. The Panel also noted the Registrant’s comment that the secondment was “to get me up to speed”. The Panel believed that this showed the Registrant had an understanding that the secondment was to improve his casting skills and would therefore involve some degree of training or mentoring. The Panel found that an ODP would not normally work in the plaster room and that the Registrant was on secondment, during which he would receive training to enhance his skills. The Panel found that the two things were not mutually exclusive.

53. As to whether the Registrant did not accept instruction on a procedure, it was not disputed that Colleague A went over to more closely observe how the Registrant was carrying out the procedure, and that on more than one occasion Colleague A told the Registrant to stop. The Registrant’s evidence was that he continued to apply the cast notwithstanding Colleague A saying he was doing it wrong, because he did not believe he was doing it wrong. The Registrant’s evidence was that he took issue with Colleague A’s tone and manner, which he said made him feel demeaned and embarrassed.

54. The Panel accepted that this was the Registrant’s perception. The Panel considered that the Registrant did not believe he needed instruction in the application of Patient A’s cast and due to a combination of this, and his view that others should have respect for his depth and breadth of knowledge and experience, Colleague A’s attempt to intervene was unwarranted and indeed disrespectful.

55. The Panel found that if the Registrant had been open to accepting guidance and acknowledged that his skills could be improved, then he would not have found Colleague A’s intervention embarrassing or demeaning. The Registrant’s response – continuing to apply the cast notwithstanding having been told it was wrong, and Colleague A having offered to demonstrate how it should be done - led the Panel to conclude that the Registrant was not open to receiving training, despite having said during the internal interview that he was aware his practice would be observed and he was working under the supervision of Colleague A.

56. This analysis of the evidence was supported by the comment referred to by Patient A; that the Registrant had done thousands of these casts in the army. The Registrant’s negative response to supervision was not objectively justified. The Panel found that Colleague A had to intervene. The Panel accepted his evidence as to the likely consequences of not doing so, and that there was a real risk of patient harm had Colleague A not intervened. Therefore, whilst the Panel did not doubt that the Registrant felt humiliated and embarrassed, this was in consequence of his attitude to his status and skill level, and not due to the way Colleague A spoke.

57. The Panel found that by the Registrant’s own admission he did not accept instruction, as he accepted that he continued to apply the cast after Colleague A had told him to stop. The Panel further found that the Registrant acted in an unprofessional manner, both in not acting in accordance with the instruction of his supervisor, and in walking out rather than taking the opportunity to learn.

58. [redacted] The Panel concluded that there was no justification for the Registrant leaving the plaster room, and that this was a refusal to work in partnership with Colleague A. The Panel found this particular proved.

2. On 20 April 2021, your communication and/or behaviour with Colleague A was inappropriate in that:
a. You shouted at Colleague A and said to Colleague A: “I don’t give a fuck, who do you think you are in here?” “I didn’t give a fuck who you were in the army, don’t belittle me in front of a Patient Again”, or words to that effect - PROVED

59. In his original statement made in April 2021, Colleague A said that after Patient A had left the plaster room, he sat at the computer again. The Registrant then came back into the plaster room and closed the door behind him. According to Colleague A, the Registrant then shouted, “don’t you ever belittle me in front of patients again”. Colleague A said he got up and walked towards the Registrant saying, “I had to stop you doing the cast wrong”. Colleague A’s account is that the Registrant then moved forward and shouted, “I don’t give a fuck who you think you are here or who the fuck you were in the army, don’t belittle me again”. Colleague A said he was quite shocked and replied, “What? You can’t talk to me like that”.

60. During the internal investigation interview on 23 June 2021, Colleague A said he had gone back to the computer desk (having walked out of the plaster room with Patient A and given him a leaflet) and the Registrant followed him back into the plaster room. The Registrant locked the door and shook it to make sure it was locked, then turned around and ‘exploded’. Colleague A said that when the Registrant shouted the first comment quoted above about Colleague A belittling him, he was purple in the face. Colleague A said he stood up and replied that he didn’t belittle the Registrant but tried to explain why the Registrant had been applying the cast wrong. Colleague A said that the Registrant then started coming towards him and screamed at Colleague A and made a comment along the lines of the quote in this particular. Colleague A replied that the Registrant could not say that.

61. In his statement prepared for this hearing, Colleague A gave an account which reflected the above, but did not refer to the Registrant being purple in the face. He said he was shocked and taken aback by the way the Registrant spoke.

62. In his oral evidence, Colleague A said that when the Registrant returned he closed the door and turned the lock on the door and tried the handle to ensure that it was locked. The Registrant then turned to Colleague A. He exploded and started shouting. Colleague A’s account reflected his previous accounts, in that first the Registrant shouted that Colleague A had belittled him, to which Colleague A replied that he had not belittled the Registrant, but said that he was doing the cast wrong.

63. The Registrant, in his initial account said that when he re-entered the plaster room Colleague A was sat at his desk and started to make idle conversation as though he had not spoken “out of tone”. This concerned the Registrant because it made him feel that Colleague A thought he could speak to him however he liked. The Registrant said he started by saying he could not allow Colleague A to speak to him in an abrupt and unprofessional manner. The Registrant said he felt Colleague A’s reply was dismissive. The Registrant continued that Colleague A started gradually raising his voice, as though to intimidate him. The Registrant therefore felt it imperative that he make Colleague A fully aware of his (the Registrant’s) aversion to his behaviour, so he said in a calm and assertive manner: “Never, never, never ever talk to me like that again especially in front of a patient”. The Registrant said he was not aggressive, but assertive as Colleague A refused to listen. He did not raise his voice.

64. The internal interview records that the Registrant said he said something along the lines of, “Never ever talk to me like that in front of a patient”.

65. In his statement for these proceedings the Registrant said that the allegation is inaccurate and he did not swear, nor make any reference to the British Army. He said, “Don’t ever talk to me like that in front of my Patient Again”. The Registrant continued that Colleague A could have approached him privately and suggested amendments to his technique.

66. In his oral evidence the Registrant gave a similar account of the words he said he used. He disputed that his voice was raised. The Registrant said that the incident with Patient A had not particularly bothered him, there had been a difference of opinion, but he wanted Colleague A to know that he did not want to be spoken to like that in front of a patient. The Registrant disputed that he swore. His evidence was that he does not swear at all, notwithstanding his time in the army.

67. AP, to whom the incident had been reported by Colleague A, wrote in his statement for the internal investigation that the Registrant “stated that he did not do that (assault Colleague A) and that Colleague A was not in the army now and could not tell people what to do. Mark Constantine [sic] then left the room in an agitated state stating “I’m not f**king having this””.

Finding

68. The Panel did not find the Registrant credible when he said that the incident with Patient A had not particularly bothered him. The Panel considered that the Registrant was upset and annoyed that his practice had been challenged at all, and particularly in front of a patient. This is the logical inference from his statement, where the Registrant suggests that Colleague A should have spoken to him privately about any concerns. It followed, that the Registrant, being unable to accept that his method of applying the cast required improvement, and being unable to accept that Colleague A’s role included telling him what to do, as his supervisor, decided to address the matter as one of unprofessional conduct on the part of Colleague A.

69. The Panel found that the Registrant felt belittled by having been told that he was wrongly applying Patient A’s cast, and therefore more likely than not, the first comment he made was a comment along the lines of that set out by Colleague A in his evidence: “don’t you ever belittle me in front of patients again”. This carries a similar message to the words the Registrant says he used. In any event, the actual words of the initial comment are somewhat immaterial. Even on the Registrant’s own account of the words he used, as set out in his initial statement, the Panel considered that these have an inherently aggressive nature, (noting as an aside that they were typed in capitals) and were unlikely to have been said calmly, as stated by the Registrant. This was particularly so because the Registrant has made clear that he considered that the way he was spoken to, to have been uncalled for and humiliating.

70. The Panel found that the Registrant was angry, and Colleague A was not expecting the challenge that took place after the Registrant re-entered the plaster room. Colleague A was not, at least initially, angry or annoyed, but shocked by the Registrant’s approach. Given that the Registrant is reported, at different times by Patient A, Colleague A and Mr AP, to have made reference to the army when referring to the events of 20 April 2021, the Panel found that the Registrant’s notion that he deserved respect because of his military background was on his mind throughout. The Panel therefore found that the Registrant did reference the army in his exchange with Colleague A.

71. The Panel did not find the Registrant’s evidence that he does not swear to be plausible. This was because two people, Colleague A and AP, have independently given separate accounts of his swearing, and because of the Registrant’s refusal to accept, under cross examination, that even when in the army he used language that civilians would consider swearing.

72. The Panel did not find that the Registrant was calm, but that he was angry, and that when he did not get a response that he wanted initially from Colleague A, and when Colleague A, in response, again referred to the cast having been wrong, this further angered the Registrant. The Panel found it likely that both parties raised their voices, and found, more likely than not, that the Registrant shouted words to the effect of, “I didn’t give a fuck who you were in the army, don’t belittle me in front of a Patient Again”.

73. The Panel found that such language is inherently inappropriate.

b. You expanded your chest and caused physical contact that resulted in Colleague A falling over his chair - PROVED

74. Colleague A’s original account set out in his statement dated 22-23 April 2021 was that after he said that the Registrant could not speak to him as set out in particular 2a, the Registrant moved very close to Colleague A’s face, poked Colleague A twice in the shoulder and pushed his body and chest against Colleague A, forcing him backwards, off his feet landing on the casting chair.

75. In the investigation interview Colleague A said that he felt a push on his shoulder and the Registrant then pushed Colleague A with his chest which made Colleague A fall backwards onto a chair.

76. In his statement for this hearing, Colleague A said that the Registrant “got into his face, pushed his chest and body out to intimidate me. He then poked me twice in the shoulder. The Registrant pushed his body and chest against me forcing me backwards”. Colleague A then fell backwards over the footrest of the casting chair and into the chair.

77. In his oral evidence Colleague A said that he stood up after the Registrant’s first comment and walked, not in the Registrant’s direction, but towards the casting chair. He replied that the Registrant was doing the cast wrong. Thereafter they both walked towards each other. Colleague A said that the Registrant came right up to his face, poked him twice in the shoulder, and using his chest, knocked Colleague A back.

78. The Registrant’s initial account was that Colleague A lunged towards him, entering his personal space and putting his face very close to the Registrant’s face. The Registrant said that this aggressive behaviour did not intimidate him and he stood his ground. He said that Colleague A then moved closer, putting his face directly in front of the Registrant’s and started shouting. The Registrant said that Colleague A then came even closer with his body and their chests touched, so he pushed back with his chest. This caused Colleague A to stumble backwards into the chair. The Registrant said that Colleague A then had a surprised expression on his face “as though he hadn’t expected me to stand up to him and his antics”.

79. In the internal interview, the Registrant described Colleague A to be shouting and came so close that he (the Registrant) could feel Colleague A’s breath on his face. The Registrant said that he backed towards the door, but Colleague A continued to come towards him until their chests touched. The Registrant then put his chest out which caused Colleague A to fall backwards into the chair.

80. In his statement for the hearing, the Registrant said Colleague A rose from his chair and stood so close to him that the Registrant could feel his saliva hitting his face as he was shouting. The Registrant felt threatened so stood upright expanding his chest to gain some personal space. Their chests touched, Colleague A took a step back and stumbled into the plaster chair.

81. In his oral evidence the Registrant again referred to Colleague A coming so close to him that he felt his saliva in his face. The Registrant said he felt like there was nowhere to go. As they were so close their chests touched and Colleague A stepped back and stumbled.

82. The Panel considered that if Colleague A had lunged towards the Registrant, shortly after the Registrant had come through the door, then the two men would not have been next to the casting chair when they became so close that one was forced to step back. Alternatively, if the Registrant had moved back towards the door, as he also says he did, then the men would not have ended up next to the casting chair.

83. The Panel found that Colleague A’s account as to how they became close was more likely to be accurate, because in accordance with that, the physical proximity began when Colleague A was close to the casting chair. The Panel found it more likely that both men moved towards each other, because if it had just been Colleague A moving towards the Registrant they could not have been in such close proximity to the chair when Colleague A was forced to step back. It was therefore more likely than not that the Registrant was the one who took more steps to get close to Colleague A, moving him back towards the casting chair. This in turn suggests that it was the Registrant who was the aggressor. The Registrant was unable to provide a plausible account when asked to explain his comment that he “had nowhere to go”. Indeed, the fact that he refused to take a step back, and was determined to stand his ground (as set out in his initial statement), meaning that Colleague A was the one to step back when the Registrant caused physical contact to be made, led the Panel to find that the Registrant’s behaviour was inappropriate.

3. On 27 October 2021 and/or thereafter, you did not self-refer to the HCPC following the dismissal from your job role – PROVED ON ADMISSION

84. This particular was admitted. The Registrant gave evidence that he was informed by his employer that a referral was not necessary, and this was why he did not self-refer.

Misconduct

85. Ms Bernard-Stevenson submitted with regard to particular 1 that the Registrant’s refusal to follow direction when under training and supervision falls significantly below the standards expected. In respect of particular 2, she referred the Panel to the evidence of Colleague A, as to the impact of this conduct on him. She submitted that verbal and physical abuse is a significant departure from the expected standards. In terms of the Registrant’s omission in self-referring, Ms Bernard-Stevenson submitted that this was a serious falling short, as such conduct undermines the HCPC’s ability to fulfil its statutory objective of maintaining professional standards and protecting the public. She referred the Panel to the HCPC’s Standards of Conduct Performance and Ethics, and the Standards of Proficiency for Operating Department Practitioners which she submitted were engaged by the Registrant’s conduct.

86. Mr Olphert on behalf of the Registrant submitted that the bar for a finding of misconduct is a high one. As to particular 1, he submitted that this was an isolated incident, and whilst there had been a falling short of standards, this was not serious. As to particular 2, Mr Olphert invited the Panel to consider whether the seriousness threshold was met, as a verbal argument with use of bad language would not necessarily be regarded as deplorable by fellow practitioners. With regard to particular 3, it was submitted that this was insufficiently serious to warrant a finding of misconduct; this was simply an error or oversight and there was no alleged dishonesty.

Legal advice

87. The Panel approached misconduct having had regard to the legal advice it received, as follows:

• Misconduct is a matter for the panel’s independent judgment; there is no burden or standard of proof.

• There is no definition of misconduct, but regard may be had to the description by Lord Clyde in Roylance v General Medical Council (No.2) [2000] 1 AC 31 as follows: “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 […] in the particular circumstances.”

• Doughty v General Dental Council [1988] AC 164 described it as “conduct that has 'fallen short, by omission or commission, of the standards of conduct expected among dentists, and that such falling short as is established should be serious.”

• A good starting point is the HCPC’s Standards of Conduct, Performance and Ethics.

88. The Panel worked through the particulars in order, beginning with particular 1. It noted that this was an isolated incident of failing to work in partnership with Colleague A. This breached standard 2.5 of the HCPC’s Standards of Conduct, Performance and Ethics: “You must work in partnership with colleagues, sharing your skills, knowledge, and experience where appropriate, for the benefit of service users and carers”, and standards 9.1 and 9.2 of the Standards for Operating Department Practitioners: “9.1 - be able to work, where appropriate, in partnership with service users, other professionals, support staff and others”; “9.2 - understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team.”

89. The Panel considered that the Registrant recognised his frustration at the situation and removed himself to prevent it from escalating. The Panel did not consider that this incident was sufficiently serious to cross the misconduct threshold.

90. The Panel considered that particulars 2a and b were significantly more serious. The Registrant’s conduct was completely inappropriate, demonstrated an attitude of disrespect for a senior colleague and fell far short of what would be considered appropriate in a professional environment. The Registrant initially verbally assaulted Colleague A, and when he did not like the response he received, his conduct escalated and became physical. The Panel noted the impact of this on Colleague A, as stated in his evidence; he had never experienced anything similar in 47 years in the NHS and was left feeling humiliated. The Panel determined that this conduct was extremely unprofessional and fell far short of the standards of behaviour expected of professionals in the workplace. The conduct at particulars 2a and 2b was misconduct.

91. Moving to particular 3, which had been admitted, and an apology and explanation given, the Panel nevertheless considered this to be a serious falling short of the expectations upon Registrants. It was not in dispute that standard 9.5 of the Standards of Conduct Performance and Ethics had been breached: “You must tell us as soon as possible if you have any restriction on your practise or been suspended or dismissed by your employer because of concerns about your conduct or competence”. This falling short was serious for two reasons. Firstly, because the Registrant was made aware at the final disciplinary hearing that a referral to the HCPC was required, as reflected in the outcome letter, which he also received, dated 27 October 2021. The second reason was that it is essential that concerns are reported to the regulator to enable it to carry out its statutory functions. If this omission were not found to reach the misconduct threshold, that would send a message to registrants that failing to report themselves, in circumstances where a report is required, is acceptable conduct. This is not the case. As such, the Panel determined that the Registrant’s failure to report was misconduct.

Impairment

92. Ms Bernard-Stevenson submitted that the Registrant's conduct is capable of remediation, but the Panel may find that it is underpinned by attitudinal issues and as such is more difficult to remediate. She submitted that the Registrant has not taken any steps to remediate his conduct, nor displayed remorse for the conduct set out in particulars 1 and 2. It followed that he was, in her submission, impaired on the personal component. As to the public component, Ms Bernard-Stevenson submitted that a finding of impairment is required in order to maintain standards and that confidence in the regulator would be undermined if no finding of impairment were made.

93. Mr Olphert on behalf of the Registrant submitted that the Registrant understands the gravity of his conduct and has not found himself in a similar position in the years since this conduct took place. Indeed, the Registrant accepted in evidence that the conduct would have been very poor had it happened, but he denied that it happened in the way alleged. Mr Olphert referred the Panel to the two references contained in the Registrant’s bundle, which speak to his caring character and scrupulously high standards. He submitted that the Panel can be satisfied that these matters occurred in isolation as a result of the interaction between two specific colleagues. He submitted that the risk of repetition was therefore low and further, that an informed member of the public would not be appalled if no finding of impairment were made.

94. The Panel accepted the Legal Assessor’s advice and was aware that:

• The existence of impairment is a matter for the Panel’s own independent judgment or assessment.

• In assessing current impairment, the Panel is looking at the past to assess the present - Sir Anthony Clarke in Meadow v GMC:
“In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, to form a view as to the fitness of a person to practice today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”

• Cohen v General Medical Council [2008] EWHC 581 (Admin) suggested that at the impairment stage the tribunal should consider whether the conduct (i) is easily remediable, (ii) has been remedied; and (iii) whether it is highly unlikely to be repeated.

• CHRE v NMC and Grant: The High Court considered that an appropriate approach for panels considering impairment might be that which was formulated by Dame Janet Smith in the report to the Fifth Shipman Inquiry and reminded panels that in addition to any risk to the public, they should consider whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made.

• The High Court in Sayer v General Osteopathic Council [2021] EWHC 370 (Admin) reviewed the “rejected defence” principles and held that it was “wrong to equate maintenance of innocence with lack of insight”. However, where a registrant continues to deny any impropriety, it makes it more difficult for them to demonstrate insight, and that is a matter that a tribunal may take into consideration.

• There is a difference between knowingly advancing a dishonest case and putting the regulator to proof - Towuaghantse v GMC [2021] EWHC 681 (Admin).

95. The Panel began by considering whether the Registrant’s conduct is remediable. It determined that in principle it is; there was nothing that was so serious as to be incompatible with continued registration. However, the misconduct at particular 2 was attitudinal in nature and indicated an ingrained resistance to authority. For example, the Registrant’s view that receiving supervision was belittling, and his reference in his initial statement to his employer about standing his ground in the altercation with Colleague A.

96. The Panel reviewed the Registrant’s evidence, both written and oral, to establish the extent to which he has demonstrated remorse and insight. The Panel determined that whilst he apologised for his failure to self-refer, there was no evidence of remorse in relation to the altercation. Indeed, the Registrant has maintained that he was in the right and Colleague A was in the wrong. There was no evidence before the Panel that the Registrant had reflected on his role in the altercation and what led to it. There was no evidence that he has developed an understanding of the need to accept the seniority and knowledge of others.

97. Indeed, the Panel was concerned by the ‘Reflection/Insight/Remorse’ section of the Registrant’s statement. He does not accept any responsibility for what happened with Colleague A or recognise that it was his issue with authority, and response to supervision that led to the events at particular 2. Instead, he says that he should have taken a witness when he went to see Colleague A, and his greatest remorse is that he trusted the system. The Panel determined that the Registrant has not remediated and there is a long way for him to go to develop and demonstrate insight.

98. It followed that there was a significant risk of repetition were the Registrant to return to practise. This is because the Registrant has not learnt from the events that have brought him here. Whilst it is submitted on his behalf that he understands the gravity of his conduct, the Panel has seen no evidence of an acknowledgement that he may have been in the wrong, or that his attitude impacted on his perception of events which preceded and led to the altercation. The Registrant’s attitude and associated aggression means that he would pose a risk to colleagues in the workplace.

99. The Panel found that the Registrant is currently impaired on the personal component.

100. The Panel further found that because the Registrant’s conduct – physical and verbal abuse of a colleague – fell far short of the behaviour both professionals and members of the public would expect from a registered ODP, a finding of impairment was also required in the public interest to maintain standards and public confidence in the profession. An informed member of the public and fellow professionals alike would expect the HCPC to mark the unacceptability of this conduct with a finding of impairment. A failure to do so would undermine public confidence in the regulator and the regulatory process.

Resuming hearing 25 February 2025

Preliminary Matters

Hearing in Private

101. The Panel reminded itself that it had already determined during the previous hearing in October 2024 that it would go into private session whenever matters relating to health were due to be mentioned. It was informed that an application for an adjournment was to be made which would refer to [redacted] health so the Panel directed that the whole of the application would be heard in private. Neither party had any objection.

Application for an Adjournment

102. Mr Olphert made an application on behalf of the Registrant that today’s hearing be adjourned.

[redacted]

103. Accordingly, the Panel has decided to adjourn today’s hearing to a date to be fixed. It considered that it would not be possible to identify a new date of hearing at this time [redacted].

No information currently available

This hearing adjourned, part heard. The date for the reconvened hearing is to be confirmed.

History of Hearings for Mark Considine