Miss Shamiso Mashonganyika

Profession: Occupational therapist
Registration Number: OT69126
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 07/04/2025 End: 17:00 09/04/2025
Location: Virtual via videoconference
Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation Finding Order Notes Hearing History

Allegation

As a registered Occupational therapist (OT69126):

1. On 18 March 2022, you were convicted at Northampton Magistrates Court of driving a motor vehicle after consuming so much alcohol that the proportion of it in your blood, namely 60 microgrammes alcohol in 100 millilitres of blood, exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.

2. You did not inform the Health and Care Professions Council (“the HCPC”) as soon as possible that you had been:

a. Charged with the offence in particular 1 above; and/or

b. Convicted of the offence in particular 1 above.

3. The matters set out in particular 2 above constitute misconduct.

4. By reason of the matters set out above, your fitness to practise is impaired by reason of conviction and/or misconduct.

Finding

Preliminary Matters
Proceeding in Private
1. The Panel’s proceedings are by default conducted in public session, pursuant to Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) (“the Rules”). The Panel was aware, from considering the documents provided in advance of the hearing, that evidence that might be heard concerned matters going to the private life of the Registrant. The parties submitted that they were content for the Panel to continue in public and consider moving into private session where appropriate. 
 
2. The Legal Assessor referred the Panel to Rule 10(1)(a) and the HCPTS’ Practice Note: Conducting Hearings in Private. He advised the Panel that, although the important principle of open justice must be observed, as the Rule made clear, the Panel had a discretion to move into private session when the private life interests set out in the Rule outweighed the general principle of conducting hearings in public. 
 
3. The Panel decided that it was in accordance with Rule 10(1)(a) for it to conduct the hearing partly in public and partly in private. The Panel decided to move into private session whenever it considered matters going to the Registrant’s private life, but otherwise sit in public. A public and a private version of the Panel’s determination will therefore be prepared in due course. 
 
Background
4. The Registrant is an Occupational Therapist (“OT”) registered with the HCPC. On 6 June 2023, the Registrant made a self-referral in conjunction with her intended return to work. On 3 July 2023, the Registrant provided details of the conviction to the HCPC. The HCPC was in receipt of a Memorandum of Conviction, which showed that the Registrant had been convicted, on her guilty plea, of the offence in particular 1 of the Allegation on 18 March 2022.
 
5. The HCPC alleged that the Registrant had made no earlier declaration of either the charge or conviction, which was a breach of the professional standards which applied, pursuant to the HCPC’s Standards of Conduct, Performance and Ethics (2016 edition).
6. The HCPC obtained evidence from its operational staff, who confirmed from an examination of the HCPC’s records that there was no record of the Registrant making a self-referral between 16 February 2022 (the date of charge) and 6 June 2023 (when the Registrant contacted the HCPC about her conviction). 
 
Decision on Facts
7. At the start of the hearing, on the Allegation being formally put to her, the Registrant admitted particulars 1, 2(a) and 2(b) of the Allegation. The Legal Assessor referred the Panel to the HCPTS’ Practice Note: Admissions (October 2024). The Panel was satisfied that it was appropriate to accept the Registrant’s admissions to the factual particulars of the Allegation. The Panel accepted the Registrant’s admissions. 
 
8. The Panel, in accordance with the guidance in the Admissions Practice Note, found particulars 1 and 2(a) and 2(b) proved by virtue of the Registrant’s admissions. 
 
9. In addition, the Panel noted in the hearing bundle, that it had been provided with the Memorandum of Conviction, which in itself was admissible as proof of the conviction, pursuant to Rule 10(1)(d).
 
Statutory Grounds
10. The Panel having found the factual particulars in the Allegation proved, next considered whether the statutory grounds in the Allegation were well-founded. 
 
11. The Panel received and accepted the advice of the Legal Assessor, that Article 22(1)(a)(iii) sets out, as a ground for potential impairment:
“(iii)     a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence”
 
12. The Panel was satisfied that the Registrant’s conviction for driving with excess alcohol was a conviction which satisfied that statutory ground. 
 
13. The Panel next considered particular 3 of the Allegation and whether the facts found proved in particular 2(a) and/or 2(b) amounted to misconduct. 
 
14. The Panel received oral evidence from the Registrant at this point in the hearing. The Registrant informed the Panel of the particular personal circumstances which had affected her at the time of the conviction. 
 
15. The Registrant told the Panel that she had been working full-time but on being convicted had to give up work because of the driving disqualification. The Registrant said she was aware of the obligation to refer the conviction to the HCPC, but “I just didn’t think at the time”. The Registrant stated that she had informed the Disclosure and Barring Service (“DBS”) of the conviction. However, until the Registrant had planned to return to work she had not told the HCPC. The Registrant said that, when renewing her registration, she had informed the HCPC about her conviction. 
 
16. The Registrant admitted that she had been aware of the requirement in the professional standards to inform the HCPC in March 2022, even though she was not then working as an OT. She said that it had “completely missed my mind”. 
 
17. The HCPC submitted that the Registrant had acted in a way which fell far short of what would be proper in the circumstances. She had breached relevant professional standards of the Standards of Conduct, Ethics and Performance (“SoC”) and the Standards of Proficiency for Occupational Therapists (“SoP”) which had applied at the time, it was submitted.
 
18. The Registrant relied on her evidence to the Panel and had no further submissions. 
 
19. The Legal Assessor advised the Panel that the matter of misconduct is for its own judgement, not involving a burden or standard of proof. He referred the Panel to the court’s judgment in Roylance (no.2) [2000] 1 AC 311 and also R (ota Remedy UK Ltd) v GMC [2010] EWHC 1245 (admin), Nandi v GMC [2004] EWHC 2317 (Admin) and Mallon v GMC [2007] CSIH 17. 
 
20. The Legal Assessor advised that the Panel had to decide whether the Registrant’s conduct was ‘serious professional misconduct’ and the assessment of seriousness was a matter for the Panel.
 
Decision on Grounds
21. The Panel considered the provisions of the SoC and SoP which were involved in the Registrant’s non-disclosure. There were relevant paragraphs which the Panel concluded that the Registrant had breached:
From the SoC - 
“9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”
“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;”
From the SoP – 
“Registrant occupational therapists must:
2.2 understand what is required of them by the Health and Care Professions Council
3.1 understand the need to maintain high standards of personal and professional conduct”
 
22. The Panel considered that the public’s trust and confidence in the Registrant and the profession depended on there being an effective system of regulation. By her failure to disclose her charge and conviction, the Registrant had inhibited and prejudiced the system of regulation. Further, the omission had persisted for a significant period and the Registrant had allowed this even though, as she admitted, she had been aware of the requirement to notify the HCPC. 
23. The Panel decided that, due to the nature of the failing and the period over which it was allowed to continue, the Registrant had failed to demonstrate an appreciation of the high standards of personal and professional conduct which were required. She had not met those standards and her conduct had fallen far short of what had been required.
 
24. The Panel concluded that the Registrant’s lack of disclosure, of the charge and the conviction, was serious professional misconduct. The statutory ground of misconduct in the Allegation was well-founded in relation to particulars 2(a) and 2(b).
 
Impairment of Fitness to Practise
25. The Panel had found two statutory grounds, namely conviction and misconduct were well-founded in the case. It therefore went on to consider whether, as a result, the Registrant’s fitness to practise as an Occupational Therapist is currently impaired. 
 
26. The Panel heard further evidence from the Registrant at this stage of the proceedings. The Registrant told the Panel that since her return to work she had made it an objective to undertake Continuing Professional Development and continually refresh her knowledge. She had made it an objective to prepare a reflection once every three months and to have monthly supervisions with her manager. The Registrant referred the Panel to her written reflections and said that she now had access to a ‘well-being’ team at work. 
 
27. The Registrant told the Panel that she now appreciated the importance of reporting relevant matters quickly. She was aware of the potential risks to patients and others from any misuse of alcohol on her part. Although the Registrant recognised that she had misused alcohol as a support in the past, she had now developed alternative and better ways of managing situations. The Registrant offered her apologies for her past misconduct.
 
28. The Registrant told the panel that her past misconduct “definitely should not have happened”. The Registrant said that she should have been able to make contact [with the HCPC] in a timely manner. She was now aware of the professional standards and would continually refresh her knowledge of them.
 
29. The Registrant had provided her written reflection on the case and a recent, written testimonial from her line manager, which the Panel had been provided in advance.  
 
30. Ms Girven submitted that the Panel should consider the two ‘components’ of impairment. She submitted that the Registrant’s misconduct was remediable. However, it was a matter for the Panel whether it had been remedied. Ms Girven said that the Panel must consider the Registrant’s insight and its assessment of any risk of repetition. 
31. Ms Girven also submitted that the Panel must also consider the three ‘elements’ of the ‘public component’, i.e. whether there was a risk to public protection, public confidence and/or professional standards, in the absence of a finding of impairment. Ms Girven submitted that members of the public would be concerned if impairment was not found and the Panel may consider that a finding of impairment was needed to uphold proper professional standards.
 
32. The Registrant submitted that, in addition to the evidence which she had given, she repeated that she was very apologetic. The Registrant told the Panel that she will not repeat her past actions, and there was no room for repetition. 
 
33. The Legal Assessor advised that the decision whether the Registrant’s fitness to practise is impaired is a matter for the Panel’s judgement, not involving a burden of proof. He referred the Panel to the HCPTS’ Practice Notes: Fitness to Practise Impairment and Conviction and Caution Allegations. He advised the Panel to consider impairment in relation to the two aspects referred to in the Fitness to Practise Impairment Practice Note, addressing both the risk of any repetition and also whether the wider public interest required a finding of impairment. He referred the Panel to the test of impairment cited in CHRE v NMC & Grant [2011] EWHC 927 (Admin) and taken from Dame Janet Smith’s Fifth ‘Shipman’ report. 
 
Decision on Impairment
34. The Panel noted the submission from the HCPC that the Registrant’s misconduct was remediable. The Panel was of the view that this was correct and that the Registrant’s misconduct was, in principle, remediable. The Panel considered whether it was satisfied that any misconduct (and the conduct underlying the conviction) had been remedied and therefore was highly unlikely to be repeated. 
 
35. The Panel took into account that the conviction for driving with excess alcohol had occurred three years ago. The conviction was not related to the Registrant’s performance of her professional duties. There was no evidence of any harm having been caused or any risk generated to service users and there had been no repetition since. The Registrant had successfully completed a driver rehabilitation course and provided her reflection on the risks underlying the conduct leading to her conviction.
 
36. The Registrant had also provided her reflections on her failure to notify the HCPC of her charge and conviction. The Registrant expanded in her oral evidence on the personal circumstances which had affected her thinking at the time. She also described to the Panel the alteration in her attitudes and thinking since the time between February 2022 and June 2023 when she had failed to notify the HCPC. 
 
37. The Registrant told the Panel about her ability to access available support in the event that similar life difficulties arose in the future. She described how she had encountered a family difficulty and had dealt with this differently to find support. The Registrant gave evidence about her actions to become and remain aware of the necessary professional standards. 
 
38. The Panel found the Registrant to be an open and impressive witness and accepted her evidence. The Panel considered that the Registrant had developed a high level of insight into the circumstances surrounding her past misconduct, its ramifications and effects and strategies to prevent recurrence. 
 
39. The Panel took into account in the Registrant’s favour that, although the Registrant had not informed the HCPC about her charge and conviction, she had informed the DBS and her employer of the relevant matters. 
 
40. The Panel also had the benefit of a recently prepared, supportive reference from the Registrant’s line manager, which spoke positively of her performance in her OT role. The Registrant also provided another reference from the Operational Manager at Central Bedfordshire Council which, although dated from 2022, evidenced that the Registrant had previously been an exemplary employee.
 
41. Taking into account the date of the conviction, that the Registrant has developed insight and undertaken remediation and that she has alternative strategies for addressing any future life stresses, the Panel concluded that it is now highly unlikely that the Registrant will repeat her past misconduct, either in respect of her driving or her professional duties of notification to the HCPC. 
 
42. The Panel next considered the wider public interest concerns in respect of its findings of misconduct and the conviction. The Panel considered, in respect of the excess alcohol conviction, that the Registrant had been sentenced and had undertaken a driving awareness course. The conviction had been in March 2022. To that end, it concluded that the wider public interest concerns had been satisfied. 
 
43. The Panel was concerned, however, that the Registrant had, despite being aware of the need, not informed the HCPC of her conviction for a significant period. The Registrant had told the Panel that she had been aware in March 2022 of the need for disclosure. The Panel had found that the failure also included not notifying the HCPC on being charged with the offence as well. The Panel was clear that the period of time for which the non-notification had existed, from February 2022 (at the time of being charged) and then March 2022 (the conviction date) until June 2023 was a significant period. It seriously interfered with the HCPC’s obligation to regulate professionals on its register, for the protection of the public.
 
44. In light of the seriousness with which the Panel regarded the breach, in particular of SoC paragraph 9.5 (above), the Panel concluded that a finding that the Registrant’s fitness to practise is impaired was necessary, in order to promote and maintain proper professional standards and conduct for members of the profession. 
 
45. Furthermore, the Panel determined that a finding of impairment was necessary to maintain public confidence in the profession. Members of the public should be confident that Registrants will not impede the regulatory process for any, let alone a prolonged, period. A finding of impairment validates this expectation and demonstrates that regulatory action will be taken against those who fall short of it.  
 
46. The Panel found that the Registrant’s fitness to practise is currently impaired, based on the ‘public component’ of impairment.
 
Sanction
47. The Panel, having found that the Registrant’s fitness to practise is currently impaired, went on to consider what, if any, sanction it should impose. The Panel was mindful of its impairment finding which was solely on the basis of the ‘public’ component of impairment, and which relates to the wider public interest. The Panel had not found that there was a risk of repetition of misconduct or conviction. 
 
48. Ms Girven, on behalf of the HCPC, submitted that the Panel should be guided at this stage by the HCPC’s Sanctions Policy (March 2019) (“SP”) and impose the sanction it considered was proportionate. The sanction should be the least restrictive that was necessary and should focus on its impairment finding based on the wider public interest. 
 
49. Ms Girven submitted that the Panel should consider whether there were any Mitigating or Aggravating factors in the case. She submitted that the HCPC accepted that the Registrant had shown insight and remorse, and that she had undertaken remediation. Ms Girven suggested that there were no apparent aggravating factors. 
 
50. Ms Girven referred the Panel to various paragraphs of the SP. She submitted that, regarding the section on ‘Criminal Convictions and Cautions’, it was relevant that the Registrant had completed her criminal sentence. She submitted that taking ‘no further action’ was a relatively rare step, where there had been a finding of impairment. Ms Girven submitted that it was accepted that the case related essentially to a single, isolated issue. 
 
51. Ms Girven submitted that, in light of the Panel’s findings, a Conditions of Practice Order may not be relevant, as any conditions had to be appropriate to the Panel’s findings concerning impairment. She submitted that a Suspension Order was only appropriate where no lesser sanction applied and a Striking Off Order is a sanction of last resort. 
 
52. The Registrant gave further evidence at this stage of the hearing and produced a further written character reference from a wellbeing coordinator at the hospice where the Registrant works. The Registrant told the Panel that she has been working in a registered role as an OT since December 2023. The Registrant has been adhering and maintaining appropriate standards, both professionally and outside of work, she said. 
 
53. The Registrant told the Panel that she had adhered to local procedures and kept up to date with her training requirements. The Registrant reminded the Panel of the positive recommendation cards that she had provided for the hearing bundle. 
54. The Registrant confirmed that she is very apologetic for her past misconduct, which, she said, will not be repeated. The Registrant said that she has been seeking to ‘challenge’ herself. She has joined the Royal College of Occupational Therapists and kept herself up to date with changes to the profession. She had reached out for assistance where necessary. 
 
55. The Registrant told the Panel that she understood the reason why the Panel needed to consider a sanction, in order to protect the public. She reassured the Panel that, in future, she will follow all the correct procedures. 
56. The Legal Assessor advised the Panel that, having found the Allegation well-founded, it must consider, pursuant to Article 29(3) which of the options under Article 29 it now had to take for protection of the public. He advised that the Panel must first consider Article 29(4) and mediation or taking ‘no further action’. If that was not appropriate, the Panel must consider imposing a sanction pursuant to Article 29(5). The Legal Assessor advised the Panel to carefully consider the SP issued by the HCPC.
 
57. The Legal Assessor advised the Panel that it had to impose the least sanction which was necessary to achieve the aim of public protection. The Panel should approach sanctions from the least restrictive, moving upwards to meet its finding of impairment. The Panel had to balance the Registrant’s interests with the public interest, in deciding sanction.
 
Decision on Sanction
58. The Panel first considered whether, in its view, there were factors which mitigated or aggravated the seriousness of the case. In terms of mitigation, the Panel considered that it was relevant that the Registrant had apologised, expressed her remorse and undertaken remediation.  In terms of aggravating factors, the Panel was of the view that there were no particular aggravating features of the case.  
 
59. The Panel first considered whether the case was suitable for mediation. It considered that there were no remaining issues to be resolved between any party and the Panel must recognise and respond to its finding of impairment. 
 
60. The Panel took into account that its finding of impairment had been made on the basis of a need to uphold professional standards and to maintain public confidence in the profession. The Panel noted that taking no action would allow the Registrant to resume unrestricted practice without marking the conviction and misconduct. Additionally, it would not send the necessary message to the public and to the profession. There were no special features of the case which warranted the exceptional course of taking no further action at this stage.
 
61. The Panel therefore went on to consider Article 29(5) and the sanctions options, starting with the least serious sanction. The Panel considered imposing a Caution Order, noting that this may be imposed for any period from one to five years. It noted paragraph 101 of the SP states:
“101. A caution order is likely to be an appropriate sanction for cases in which: 
• the issue is isolated, limited, or relatively minor in nature; 
• there is a low risk of repetition; 
• the registrant has shown good insight; and 
• the registrant has undertaken appropriate remediation.”
 
62. The Panel considered that, notwithstanding that there were two grounds of impairment, the case was essentially about the Registrant’s conviction and her consequent failure to notify it (and the charge) to the HCPC. These were serious matters, but the Panel considered that they were to be set against the difficult personal circumstances which had existed at the time for the Registrant. 
 
63. The Panel had already found, having heard from the Registrant, that it is highly unlikely that the Registrant will repeat her past behaviour. The Panel had found that the Registrant has demonstrated good insight. She has undertaken a driving awareness course in respect of the excess alcohol offence and has also undertaken further study of the HCPC’s professional standards. The Panel has accepted the Registrant’s evidence that she now has a better understanding of her stressors and has put in place appropriate strategies for dealing with them. 
 
64. The Panel also bore in mind that its finding of impairment was based on the need to declare that the Registrant’s misconduct had been unacceptable. The Panel decided that this could be appropriately and proportionately achieved by imposing a Caution Order. 
65. The Panel looked at the next available sanctions. However, there were no practice issues in the case which would make a Conditions of Practice Order appropriate. In the Panel’s view a Suspension Order was an un-necessarily restrictive and harsh sanction to impose, in all the circumstances of this case. 
 
66. The Panel decided that a Caution Order is the appropriate order: as the least restriction which met the Panel’s impairment finding, it was also the proportionate step.
 
67. The Panel acknowledged that, in imposing its sanction, this may have an inhibiting effect on the Registrant. However, it did not impose any restrictions directly on the Registrant’s practice and the necessity to mark the impairment in the public interest outweighed any such concern. 
 
68. The Panel considered for what period it was necessary to impose a caution order. It was of the view that a sufficient marker would be made by imposing the Caution Order for one year. This period would allow for the necessary warning to be sent out, that failing to notify a charge or conviction will not be tolerated and will receive a regulatory response. 
 
69. The Panel decided to impose a Caution Order for one year.

Order

The Registrar is directed to note the Register with a Caution on the Registrant’s name for a period of one year.

 

Notes

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

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

Hearing History

History of Hearings for Miss Shamiso Mashonganyika

Date Panel Hearing type Outcomes / Status
07/04/2025 Conduct and Competence Committee Final Hearing Caution
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