Denis Jude Kalagira

Profession: Radiographer

Registration Number: RA68185

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 15/08/2022 End: 17:00 19/08/2022

Location: This hearing was held virtually by way of video conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended on day 1 of the hearing, namely, 23 May 2022)

As a registered Radiographer (RA68185) your fitness to practise is impaired by reason of conviction and/or misconduct. In that:

1. On 17 July 2018 you were convicted at Cambridge Magistrates’ Court of: on 25 June 2018 driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 92 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. On 27 November 2018 you were convicted at Suffolk Magistrates’ Court of:

a. on 10 November 2018 of assault by beating contrary to section 39 of the Criminal Justice Act 1988.

b. on 10 November 2018 of assault by beating a police constable contrary to section 39 of the Criminal Justice Act 1988.

3. Did not declare the fact of your convictions at paragraphs 1 and/or 2 above to the HCPC in a timely manner as required.

4. Your actions above at paragraph 3 lacked integrity and/or were dishonest.

5. The matters set out in paragraphs 3 and 4 above constitute misconduct.

6. By reason of your convictions at paragraphs 1 and/or 2 your fitness to practise is impaired.

7. By reason of your misconduct at paragraphs 3 and 4 above your fitness to practise is impaired

Finding

Preliminary Matters

Hearing partly in private

1. Ms Sheridan, on behalf of the HCPC applied for any matters relating to the health or private family circumstances of the Registrant to be heard in private, pursuant to Rule 10(1) of the Conduct and Competence Procedure Rules 2003 (the 2003 Rules).

2. The Registrant agreed.

3. The Panel took into account the HCPTS Practice Note entitled “Conducting in Hearings in Private” and accepted the advice of the Legal Assessor. The Panel decided to hear any matters of the Registrant’s health and private family circumstances in private in order to protect his private life.

Application to amend the Allegation

4. Ms Sheridan applied to amend the Allegation as follows:

i. to correct the Registrant’s registration number in the Preamble;

ii. to correct the spelling of “Suffolk” in Particular 2;iii. to amend the reference in Particular 7 from “paragraphs 3-5” to “paragraphs 3-4.”

5. The Registrant had no objection.

6. The Panel accepted the advice of the Legal Assessor. The Panel took into account that the amendments sought were typographical with no bearing on the nature of the allegations. The Panel decided that it was fair to allow the application.


Background

7. The Registrant is a registered Radiographer. At the time of the matters set out in the Allegation, the Registrant was employed by a Recruitment Agency MedicsPro as a Radiographer. He has remained in that role since the matters in question.

8. On 7 June 2019 the Registrant sent a self-referral form to the HCPC declaring that he had received a conviction for driving while intoxicated in July 2018 and a further conviction for two counts of assault in November 2018.

9. The HCPC alleges that the Registrant did not declare his convictions in a timely manner as he was required to do, and that in not doing so, his conduct lacked integrity and was dishonest.


Decision on the Facts

10. At the outset of the hearing, the Registrant admitted Particulars 1, 2(a) and (b), 3, and 4 in respect of integrity only.

11. The Panel had before it the HCPC hearing bundle, which included a witness statement from MR, Registration Manager at the HCPC. MR’s statement was read by the Panel. His attendance was not required because the Registrant did not dispute the contents of his statement.

12. The Panel also had before it a character reference submitted by the Registrant from FS, a Diagnostic Radiographer, dated 24 November 2021.

13. The Registrant gave oral evidence. During his evidence on the first day of the hearing, the Registrant stated that he had informed MedicsPro of his convictions. It became clear to the Panel from his evidence that it would be appropriate and fair to pause during the Registrant’s evidence to ask the Case Manager of the HCPC to contact MedicsPro for any evidence that would demonstrate that the Registrant had communicated the receipt of his convictions to MedicsPro. This was relevant to the dishonesty allegation and the line of cross-examination by Ms Sheridan which was focused on what the Registrant had or had not done to disclose the convictions.

14. The Panel also explained to the Registrant that if he had any documentary evidence in his possession which would substantiate his evidence of communications he had with MedicsPro about his convictions, then it was open to him to submit it.

15. The matter was left with the HCPC to make the relevant enquiries.

16. On the second day of the hearing, further material was also submitted by the Registrant. The Panel admitted this new material in evidence as set out below:

i. emails between the Registrant and JW, Recruitment Consultant at MedicsPro in May 2019;

ii. the Registrants covering email to the HCPC dated 7 June 2019 attaching the self-referral form;

iii. the Registrant’s email to JW dated 27 May 2019 attaching his statement to MedicsPro regarding the assault convictions.

17. In addition, the Registrant was asked to confirm those whom he had spoken to about his convictions, so as to ensure that the correct individuals at MedicsPro were approached by the HCPC. The Registrant confirmed, while still under affirmation that the persons he spoke to were BM and JW in respect of reporting matters to them.

18. In the interests of justice and fairness to the Registrant, the Panel directed the HCPC to contact both individuals and to ask them whether the Registrant had informed MedicsPro of all three convictions, when he had done so, and whether MedicsPro had any evidence of this. Both BW and JW replied to the effect that neither would be able to provide such information immediately and that they would require further time. The Panel therefore had no option but to stop proceedings, release the Registrant from his affirmation and reconvene at the next listing of the hearing.


Reconvened Hearing

HCPC’s Application to re-open its case

19. When the Panel reconvened on 15 August 2022, the HCPC informed the Panel that it had obtained witness statements from both BW and JW of MedicsPro, as well as further documentary evidence exhibited by them in the form of an Addendum Bundle, and that the HCPC sought to call them as live witnesses as part of the HCPC case. To this effect, Ms Simpeh, on behalf of the HCPC, applied to re-open the HCPC case to allow the HCPC to present this new evidence.

20. The Registrant did not object to this application.

21. The Panel accepted the advice of the Legal Assessor and decided to accede to the HCPC’s application, taking into account the reasons why it sought the further evidence from BM and JW previously, including that the evidence was relevant and that it was in the interests of justice to admit it.

22. Following the HCPC’s re-opening of the case and the Panel hearing the oral evidence of BM and JW, the Registrant gave further oral evidence to address the new HCPC evidence.

23. In coming to its decision on facts the Panel took into account all the evidence before it, both oral and documentary, as well as the submissions from both parties.

24. The Panel also took into account the HCPTS Practice Notes entitled “Conviction and Caution Allegations” and “Making decisions on a registrant’s state of mind”. The Panel accepted the advice of the Legal Assessor which included that despite the previous convictions, the Registrant was a person of good character in respect of the issue of dishonesty, and that this must be taken into account when considering both the Registrant’s credibility and propensity to act dishonestly. The Legal Assessor referred to the cases of Wingate v SRA; SRA v Malins [2018] EWCA Civ 366; Ivey v Genting [2017] UKSC 67, Lavis v NMC [2014] EWHC 4083 and Lawrance v GMC [2015] EWHC 586.

25. The Panel was mindful that the burden of proof is entirely on the HCPC to the civil standard, namely the balance of probabilities. The Panel took into account the Registrant’s good character as advised by the Legal Assessor. In this regard, the Panel took into account the evidence of the Registrant’s good character from BM in the form of her letter to the HCPC dated 17 January 2020 which refers to the Registrant’s openness and honesty about the circumstances which led him to the convictions. Further, in BM’s witness statement she states that she did not consider that the Registrant “purposely” did not inform the HCPC of his convictions.

Particular 1

26. The Panel took into account the Memorandum of Conviction in respect of this offence. It took into account Rule 10(1)(d) of the 2003 Rules which states:

“where the health professional has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based.”

27. The Panel also took into account the Registrant’s admission to this Particular.

28. On the basis of the evidence and the Registrant’s admission, the Panel found Particular 1 proved.

Particular 2(a) and (b)

29. The Panel took into account the Memorandum of Conviction in respect of this offence. It took into account Rule 10(1)(d) of the 2003 Rules which states:

“where the health professional has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based.”

30. The Panel also took into account the Registrant’s admission to this Particular.

31. On the basis of the evidence and the Registrant’s admission, the Panel found Particular 2(a) and (b) proved.

Particular 3

32. The Panel took into account the witness statement of MR which stated that the Registrant was first registered with the HCPC on 8 November 2012. On checking the records, MR states that the convictions received by the Registrant on 17 July 2018 and 27 November 2018 (the subjects of both Particulars 1 and 2) were not declared to the HCPC until 7 June 2019. In this regard, the Panel had before it the self-referral form completed by the Registrant and submitted on that date.

33. Standard 9.5 of the HCPC’s Standards of Conduct, Performance and Ethics provides:
“You must tell us as soon as possible if:
– you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence;”

34. The evidence before the Panel was therefore that the Registrant was required to disclose the convictions to the HCPC as soon as possible after the conviction, and further that he did not so until 7 June 2019.

35. The Registrant admitted this Particular, and admitted that he did not declare his convictions to the HCPC until 7 June 2019 in his self-referral form.

36. The Panel found that the Registrant did not declare the fact of his convictions in a timely manner as required, and therefore found Particular 3 proved.

Particular 4: the actions in Particular 3 lacked integrity

37. The Panel took into account that a lack of integrity connoted a lack of adherence to ethical standards of the profession.

38. The Registrant admitted this Particular.

39. The Panel took into account MR’s evidence about the Registrant’s application to the HCPC Register in 2012, including the Registrant’s application form itself. At that time, the Registrant declared previous convictions which he had received (which are not the subject of Particulars 1 and 2). At the time, the decision to allow him on the Register was made by a Registration Panel hearing on 7 November 2012. The Panel concluded that the Registrant was therefore aware of the importance of the principle of declaring convictions to the HCPC, having had that experience of having done so in 2012, and the seriousness with which that disclosure was dealt with by the HCPC.

40. The Panel considered the Registrant’s oral evidence, which as he reiterated throughout, was that he did not consider that he needed to declare the convictions prior to the renewal of his registration in December 2019, and it was only at the insistence of JW that he realised that he should do so. The Registrant relied on a number of emails he wrote to JW which stated that he would declare his convictions on renewal, which he said, was consistent with this belief. The Panel considered that this position indicated, by reasonable logical inference, that the Registrant did not know about, or alternatively, did not remember or have in mind, Standard 9.5 which requires disclosure of convictions “as soon as possible”. The Panel did not find this credible. The Registrant has been registered with the HCPC since 2012 and had therefore been subject to the Standards since then. He had been through the process of having a Registration Panel hearing to consider his application to the register on the basis of his earlier convictions and was therefore acutely aware of the importance of disclosure of convictions.

41. In all the circumstances the Panel found on a balance of probabilities that he was aware of his obligation as set out in Standard 9.5.

42. Therefore, the Panel decided that the Registrant, in not declaring his convictions in a timely manner as required, lacked integrity.

43. The Panel therefore found Particular 4 in respect of lack of integrity proved.

Particular 4: the actions in Particular 3 were dishonest

44. The Registrant denied this Particular.

45. The Panel considered all of the evidence before it, including the evidence of the interactions between the Registrant and MedicsPro, up until the time when the Registrant declared his convictions to the HCPC on 7 June 2019.

46. The evidence of JW was that the first time the Registrant informed MedicsPro of the drink driving conviction was when he telephoned JW on 5 October 2018, and a note of this conversation was made by JW on the system. In his oral evidence JW stated that if the Registrant had informed him by telephone of his conviction or convictions on any other time, there would have been a formal record of this. In addition, the evidence of JW was that having reviewed the Registrant’s file, as well as MedicsPro’s document management system, there were no calls or emails at all from the Registrant informing MedicsPro of his two convictions for assault.

47. The evidence of JW was that MedicsPro only discovered the existence of the two assault convictions when it applied for a routine Disclosure and Barring Service (DBS) check to be conducted in relation to the Registrant. The evidence of JW was that the DBS check was applied for on 24 September 2018 and it was returned on 11 February 2019, which was when MedicsPro first became aware of the two assault convictions.

48. The evidence of BW was that there was likely to have been a lot of calls between JW and the Registrant, and that not all calls have notes made of them in her experience. However, when pressed on this issue her evidence was clear that if the Registrant had reported convictions by telephone, then JW would have made a record based on her experience of how JW worked.

49. The Panel took into account a written risk assessment carried out by MedicsPro in September 2018 which referred to earlier convictions received by the Registrant, but not the drink driving conviction on 17 July 2018.

50. The Registrant’s evidence was that he did telephone JW to inform him about the drink driving conviction as well as the two assault convictions, although he was unable to tell the Panel when this was. The Registrant’s evidence was further that he had been experiencing some very difficult personal and family circumstances and that he was in Uganda attending to them when JW sent him a number of emails asking him to disclose his convictions to the HCPC. He told the Panel that he had delays in receiving those emails due to the lack of internet connection in his home village, and that he had to travel to the city to obtain a connection.

51. The Panel considered all of the evidence which it heard and read. The Panel did not find it credible that the Registrant had informed JW of the convictions by telephone, other than on the occasion on 5 October 2018 when the Registrant called JW about the drink driving conviction. JW was clear that any telephone conversation about such an issue would have been recorded by him in a note, and there are no notes other than the one he made on October 2018. The Panel considered that it was more likely than not that if a serious matter such a conviction was reported, this would have been noted by JW.

52. The Panel took into account that the Registrant only reported his drink drive conviction to MedicsPro on 5 October 2018, nearly 4 months after receiving it. The reason for disclosing it on this date rather on any other date is not clear to the Panel from the evidence. However, the evidence is also clear to the Panel that the Registrant did not disclose his two convictions of assault.

53. The Panel considered the Registrant’s interactions with MedicsPro, in only disclosing the drink driving conviction some 4 months after receiving it, and not disclosing the assault convictions at all. The Panel found that the Registrant wanted to delay MedicsPro from discovering about them. The Panel took into account that several times that in his emails in 2019 the Registrant expressed concerns about the security of his position with MedicsPro, after the DBS check was received.

54. The Registrant’s evidence about his personal difficulties in 2018 and 2019 was considered carefully by the Panel. The Panel decided that the personal difficulties could not be a credible explanation for not disclosing the assault convictions to MedicsPro. In this regard the Panel took into account that he was in Uganda around April and May 2019 several months after both convictions.

55. The Panel has already found, on the balance of probabilities, that he knew of his obligation to disclose the convictions as soon as possible to the HCPC as set out in Standard 9.5.

56. The Panel considered explanations other than dishonesty, for example whether the Registrant was distracted or forgot to disclose the convictions to the HCPC in a timely manner. However, in light of his previous experience of undergoing a Registration Appeal hearing on the basis of his disclosure of earlier convictions, and on the basis of all the evidence including the Registrant’s conduct and interactions with MedicsPro over time, as set out above, the Panel concluded, on the balance of probabilities, that the Registrant fell into a mind set when he knew he must disclose his convictions as soon as possible to the HCPC but did not do so as he was worried about not being able to practise as a Radiographer. As such, he wished to conceal the convictions from the HCPC for as long as possible. The Panel was satisfied that this knowing concealment from his regulator, to prevent disclosure which he knew he should make, would be considered dishonest by the objective standards of ordinary decent people. The Panel therefore found that his actions in Particular 3 were dishonest.

57. The Panel therefore found Particular 4 in respect of dishonesty proved.


Decision on Grounds

58. Having found factual Particulars 1 and 2 proved, which, as convictions, forms a statutory ground upon which a finding of impairment may be based, the Panel noted that this was a matter which would be addressed in due course in its decision on whether the Registrant’s fitness to practise is currently impaired.

59. With regard to the allegation that Particulars 3 and 4 constituted misconduct, Ms Simpeh submitted that the Panel should find misconduct. Ms Simpeh relied on Standards 9.1 and 9.5 of the HCPC Standards of Conduct, Performance and Ethics.

60. The Registrant apologised for his behaviour and acknowledged wrongdoing.

61. In considering whether the facts found proved constituted misconduct, the Panel was aware that there was no burden of proof at this stage and that misconduct was a matter for its own professional judgment. The Panel accepted the advice of the Legal Assessor who referred to the case of Roylance v GMC (No. 2) [2001] AC 311 and Nandi v GMC EWHC 2317 (Admin)

62. The Panel was aware that a breach of professional standards such as those contained in the HCPC Standards of Conduct, Performance and Ethics was not necessarily in itself determinative of whether there was misconduct.

63. The Panel was of the view that the Registrant fell below the following standards:

HCPC Standards of Conduct, Performance and Ethics (2016)

“9 Be honest and trustworthy

Personal and professional behaviour

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
Important information about your conduct and competence

9.5 You must tell us as soon as possible if:
– you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence;”

64. With regard to Particular 3, the Panel took into account that the Registrant had, according to Standard 9.5, an obligation to inform the HCPC “as soon as possible” of his convictions. In not doing so, with a lack of integrity and dishonestly, he breached his duty to be honest with his regulator, with regard to the serious matters of convictions for criminal offences. It was an omission which breached his duty to be honest and transparent with his regulator.

65. The Panel considered that this omission was serious in that it struck at the heart of the Registrant’s relationship with his regulator, and deprived the HCPC from a disclosure to which it was entitled as part of its duty to ensure protection of the public interest, including public protection. As such, his omission fell sufficiently far below the standards expected of him as to constitute misconduct.

66. The Panel therefore found that Particulars 3 and 4 constituted misconduct.


Decision on Impairment

67. The Registrant gave further evidence at this stage. What follows is not intended to be a verbatim account, rather a summary.

68. The Registrant apologised for his wrongdoing and expressed remorse. He told the Panel that he accepted the Panel’s findings on fact. He stated that he had learnt his lessons, was a changed man and that he would never repeat his actions.

69. The Registrant referred to the difficult circumstances existing in 2018 at the time of the convictions which were before the Panel.

70. With regard to the dishonesty, the Registrant reiterated that at the time he honestly believed that he did not need to declare his convictions until renewal of his registration, although he now realised that this was wrong. He stated that he had not read the Standards for many years (since either completing his studies or on registration with the HCPC), and he could see that if he had read them since he would have been aware of his obligations which he was committed to going forwards. He stated that he accepted the Panel’s findings and would never repeat his behaviour.

71. When asked questions about the public perception of him and his profession, he acknowledged that this has been “tarnished” and referred to the adverse effect on public, colleagues and the service users of his convictions and expressed remorse and apology.

72. In her closing submissions Ms Simpeh made clear that the HCPC did not put its case on the basis that there was a direct risk to patients. Ms Simpeh submitted that the Registrant’s fitness to practise was impaired on the basis of both the personal and public components.

73. Ms Simpeh asked the Panel to note that the Registrant had continued to maintain that that he had not acted dishonestly, and that in defending himself at the facts stage he had gone beyond merely requiring the HCPC to prove its case, and had made positive assertions that he had reported his convictions to MedicsPro, which the Panel had not accepted. Ms Simpeh submitted that the Panel may think that the Registrant had attempted to mislead the Panel and that this may reflect on its findings on the level of his insight.

74. In his closing submissions, the Registrant summarised much of his evidence, and reiterated that he accepted the Panel’s decisions on facts, and that he accepted had been wrong in not disclosing the convictions as soon as possible.

75. The Panel accepted the advice of the Legal Assessor who referred to CHRE v (1) NMC (2) Grant [2011] EWHC 927. The Panel took into account the HCPTS Practice Note entitled “Fitness to Practise Impairment”. The Panel was aware that impairment is a matter for its own independent judgment and that public protection and the wider public interest should be considered.

76. The Panel took into account that prior to these matters, the Registrant had been a person of good character in respect of dishonesty, and that prior to and subsequent to these matters, he had not been the subject of any disciplinary or regulatory findings.

77. The Panel took into account the questions formulated by Dame Janet Smith in the Fifth Shipman report, as set out in the case of CHRE v (1) NMC and (2) Grant [2011] EWHC 927, which are presented in Grant as a test of impairment and ask whether a practitioner:

“a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

78. The Registrant expressed remorse and apologised for his actions several times.

79. With regard to the convictions, the Panel took into account that the Registrant had earlier convictions from 2009 and 2010 which were also related to driving under the influence of alcohol, and that he had again received convictions which were fuelled by alcohol in 2018.

80. The Registrant had denied dishonesty, and continued to maintain his innocent but mistaken belief at the time. The Panel carefully considered the submission of Ms Simpeh that the Registrant’s defence to dishonesty and the maintenance of his honest belief may well lead the Panel to decide that this reduces his insight or demonstrates an absence of it. In this regard, the Panel took into account all the evidence before it. The Panel was of the view that the Registrant’s position did not necessarily detract from his insight. Insight was a matter which included a number of different issues, and was to be assessed in the round as a matter of the Panel’s judgment, having considered all of the evidence.

81. With regard to the convictions, the Registrant acknowledged their seriousness and that his behaviour had been “despicable”, “selfish” and “stupid” in putting the public at risk by driving while under the influence, and assaulting public servants while they were trying to help him, namely by kicking a paramedic on the shin and spitting at a police officer. The Panel found that his insight was more focused on the impact on him and his registration. His insight into the effect on public confidence, including that of patients, colleagues, and the wider public was not in the Panel’s view well developed.

82. The Panel also noted the Registrant’s acceptance of the Panel’s decision on dishonesty, as well as his acceptance that he had been wrong in his (innocent) beliefs at the time, the implications of this for his registration as a professional and reiterated that he would never act in the same way again.

83. Having heard from the Registrant and considered all the evidence, the Panel was satisfied that he has demonstrated some insight with regard to his wrongdoing in general, although this was limited, and focused on the impact upon himself and that of his registration.

84. With regard to public protection, the Panel noted Ms Simpeh’s position that this was not a case about risk to the public. The Panel took into account the positive testimonial relied on by the Registrant, as well as the evidence of BM which was that his clinical practice was held in high regard.

85. The Panel considered the convictions received by the Registrant. The Panel decided that, in that respect, the Registrant had not put service users at an unwarranted risk of harm in the past, nor did the Panel consider there were grounds to find that he was liable to do so in the future.

86. The Panel considered that his receipt of the convictions were serious matters which did in the past bring the profession into disrepute, and breached fundamental tenets of the profession not to act in a way which would undermine the public’s trust in the Registrant.

87. The Panel did take into account that the Registrant’s insight into the effect of convictions on the public confidence was not well-developed. However, the Panel considered it significant that there have been no convictions since 2018, Despite the difficult experiences, which occurred after the convictions he had not repeated the behaviour which led to the convictions, with the Panel noting that the convictions occurred at a time of different difficult family circumstances. The Panel took into account the Registrant’s evidence about the effect upon him of the fact of the convictions, on his professional life, and his shame, taking into account the comments from colleagues. These proceedings have clearly had a salutary effect on him. In all, the Panel considered that the risk of repetition was low, and that he was not liable to receive convictions in the same or similar circumstances in the future.

88. The Panel was therefore of the view that the Registrant’s fitness to practise was not currently impaired on the basis of the personal component, in respect of the convictions.

89. The Panel next considered the misconduct. The Panel did not consider that the Registrant’s misconduct put patients at an unwarranted risk of harm, in that it was not associated with any risk to patient safety because this was not dishonesty related to the Registrant’s clinical practice, in relation to his dealings with patients or patient records. Nor did the Panel consider that there was any evidence that the Registrant was liable to put patients at an unwarranted risk of harm in the future.

90. However, the Panel did conclude that the misconduct, which was a dishonest concealment of the convictions from the HCPC brought the profession into disrepute, breached fundamental tenets and was dishonest over a period of time.

91. The Panel next considered whether the Registrant was liable to act with a lack of integrity and dishonestly in the future. It is clear to the Panel that he understands some of the implications of the misconduct. While this understanding was primarily focused on the effect upon him, and even if he maintained he had an honest belief at the time. The Panel’s view was that he fully accepted that his behaviour fell below what was expected of him. He expressed remorse and shame. These proceedings have clearly had a salutary effect on the Registrant. In the particular circumstances, the Panel decided that the risk of the repetition of the misconduct was low. Therefore, he was not liable to bring the profession into disrepute, to breach fundamental tenets and to act dishonestly in the future.

92. The Panel was therefore of the view that the Registrant’s fitness to practise was not currently impaired on the basis of the personal component, in respect of the misconduct.

93. The Panel next considered the wider public interest. With regard to the convictions, the Panel took the view they were serious matters, and that this did have implications for the wider public interest. Driving under the influence put the public at risk, and assaulting a paramedic and police officer who were attempting to assist him was behaviour which brought him and his profession into disrepute. The Panel took the view that the convictions required a finding of Impairment because to do otherwise would undermine the need to uphold proper standards of conduct and behaviour and to maintain public confidence in the profession.

94. With regard to the misconduct, the Panel was of the view that it was serious. It struck at the heart of the Registrant’s duty to be open and honest with the HCPC which relied on him to be honest so that it could consider them and make a risk assessment as to whether it had any implications for patient safety, as they were obliged to do. The Registrant breached the trust placed in him. In the circumstances, the Panel decided that the need to uphold proper standards of conduct and performance, and the need to maintain confidence in the profession would be undermined if no finding of impairment were made.

95. There was a need for a finding of Impairment to mark the fact that the Registrant’s behaviour had been unacceptable.

96. The Panel therefore found the Registrant to be impaired on the basis of the public component.


Decision on Sanction

97. Ms Simpeh referred to the HCPC Sanctions Policy, including the section on serious cases, specifically in relation to dishonesty. Ms Simpeh referred to mitigating and aggravating factors and made submissions that the Registrant has shown limited insight and has not shown remediation of his dishonesty.

98. The Registrant made brief submissions that he was “terribly sorry’ for his wrongdoing, and that to be able to convince others that these actions would not be repeated is a process. He promised he would not repeat his behaviour, and asked for leniency from the Panel.

99. The Panel read the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was aware that the aim of any sanction is not to be punitive. Rather, the fundamental aim is to uphold the public interest which may include protection of the public. Sanction is a matter for the independent judgment of the Panel. The Panel took into account the principle of proportionality in coming to its decision on sanction, which means that the right to practice should not be restricted any more than is necessary to address the risks arising out of the matters found proved.

100. The Panel identified the following mitigating factors:

i. Genuine remorse demonstrated and apology given;

ii. positive character testimonial and positive comments from BM as to the Registrant’s character;

iii. admissions to most of the HCPC allegations;

iv. no repetition of the conduct in question;

v. difficult personal circumstances at the time;

vi. previous good character in respect of dishonesty and no previous regulatory findings.

101. The Panel identified the following aggravating factors:

i. the convictions in 2018 were alcohol fuelled and involved assaults against public servants;

ii. there were previous alcohol related convictions in 2009 and 2010;

iii. there was limited insight;

iv. the dishonesty continued over a period of time in respect of three convictions received on two different occasions.

102. The Panel considered the level of seriousness of the matters found proved.

103. With regard to the convictions, the Panel took the view that the convictions were serious in that the drink driving risked public safety, and that the assaults were upon public servants who had attempted to assist the Registrant when he was discovered intoxicated.

104. With regard to the dishonesty, the Panel considered the fact that the dishonesty took place over a period of time in respect of three convictions received on two different occasions. In taking into account the breach of the relationship of trust with the HCPC in being dishonest, the Panel considered that the dishonesty was towards the lower to middle end of the spectrum of seriousness. In coming to this decision, the Panel took into account that it was limited in that it was related to the disclosure of three convictions, and that it was not related to patient records or related to patient care.

105. The Panel was also aware that openness and honesty was a fundamental tenet of the profession, and if breached, had serious implications for public confidence in the Registrant, and the profession.

106. The Panel also reminded itself that it has already decided that the Registrant is not liable to repeat his behaviour in the future.

107. The Panel was of the view that mediation is not appropriate in light of the nature and seriousness of the case.

108. The Panel discounted taking no further action because it would not satisfy the public interest in this case.

109. The Panel also discounted a Caution Order. In this regard, the matters found proved were not relatively minor in nature, and therefore a Caution Order would not address the wider public interest.

110. The Panel next considered a Conditions of Practice Order. This was not a case where there are findings of clinical performance issues which are conducive to being addressed by conditions, and further the risk of repetition was low. Thus, the Panel was unable to formulate any workable conditions.

111. The Panel next considered Suspension. The Panel took into account that there was evidence of only limited insight from the Registrant, and that the concerns represented a serious breach of the Standards of Conduct, Performance and Ethics. However, the Panel also took into account that there were no findings of a clinical nature, that there is no ongoing risk of harm to patients, and that the issues are unlikely to be repeated. The Registrant has demonstrated a commitment to his profession, and he has worked for MedicsPro since the matters in question.

112. The Panel took into account that the genuine remorse and apology, and the salutary effect of these proceedings on the Registrant. In all the circumstances, the Panel decided that a Suspension Order was sufficient in principle to protect public confidence in the profession and the regulatory process.

113. The Panel decided that a period of three months was proportionate in the circumstances. This was to reflect the genuine remorse and apology, the low risk of repetition of the conduct, and the fact that there was a degree of insight. Taking into account all the circumstances, the Panel decided that three months was sufficient and proportionate to mark the seriousness of the findings as a whole, and to uphold the public interest.

114. The Panel did take into account proportionality, and took into account that a Suspension Order would prevent the Registrant from practising his profession and would have a financial and reputational impact. In this regard the Panel took into account the Registrant’s evidence about his financial commitments to his family. However, the Panel decided that the need to uphold the public interest and public confidence in the profession outweighed his interests in this regard.

115. The Panel did consider a Striking Off Order but decided that this would be disproportionate at this time, bearing in mind the reasons why a Suspension Order was proportionate.

116. The Panel also considered that a subsequent reviewing Panel may be assisted by the following:

i. A written reflective statement from the Registrant demonstrating an understanding of the findings of the Panel and the impact of the behaviour found proved on the profession and the wider public;

ii. any testimonials or references relating to work undertaken by the Registrant, whether paid or unpaid.

117. The Panel therefore determined to impose a three month Suspension Order.

Order

Order: The Registrar is directed suspend the name of Mr Denis Kalagira form the HCPC register for a period of 3 months from the date this Order comes into effect.

Notes

Interim Order

1. The Panel heard an application from Ms Simpeh for an 18 month Interim Suspension Order to cover the appeal period, on the basis that it is in the public interest.

2. The Registrant told the Panel that he respected the Panel’s decision, and that he had no intention of appealing. He requested that the Panel did not impose an Interim Suspension Order on the basis that he was currently working and that he had financial commitments, and would like to work until the substantive sanction came into effect.

3. The Panel considered the HCPTS Practice Note entitled “Interim Orders” as well as Paragraphs 133-5 of the HCPC’s Sanctions Policy. The Panel accepted the advice of the Legal Assessor.

4. The Panel took into account its previous findings, and adopting its reasons, the Panel came to the conclusion that an Interim Order is in the wider public interest in order to maintain public confidence in the profession and to uphold proper standards. This is on the basis of the finding of Impairment, the findings about the seriousness of the matters found proved, the nature of the convictions which were fuelled by alcohol, and the breach of the Registrant’s relationship of trust with the HCPC. Further, the substantive sanction of Suspension for 3 months has been imposed. In light of these findings already made by the Panel, public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an Interim Order during the appeal period. It would be inconsistent with its decision if no Interim Order was made.

5. The Panel was mindful of its decision at the sanction stage that Conditions were not appropriate. The Panel considered that to impose an Interim Suspension Order would be consistent with its finding that a substantive Suspension Order for three months is required.

6. The Panel recognised that the Panel must take into consideration the impact, including financially, of such an Interim Order on the Registrant, as part of the principle of proportionality, and must balance the impact on the Registrant with the need to uphold the public interest. In the circumstances of the case, the Panel was satisfied that the need to uphold the public interest outweighed the Registrant’s interests in this regard.

7. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to cover any appeal which might be made.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001.

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.

Hearing History

History of Hearings for Denis Jude Kalagira

Date Panel Hearing type Outcomes / Status
15/08/2022 Conduct and Competence Committee Final Hearing Suspended
23/05/2022 Conduct and Competence Committee Final Hearing Adjourned part heard
26/11/2021 Conduct and Competence Committee Final Hearing Adjourned
27/08/2021 Conduct and Competence Committee Final Hearing Adjourned part heard
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