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Allegation (as amended at Final Hearing):
Whilst registered as an Operating Department Practitioner you:
1. On 24 October 2014 at York Magistrates Court were convicted of:
a) Driving a motor vehicle, after consuming so much alcohol that the proportion of it in your breath, namely 89 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 of the Road Traffic Offenders Act 1988.
2. Did not declare the matter as described in paragraph 1 to the Health and Care Professions Council on your renewal form dated 28 October 2014.
3. Your actions described in paragraph 2 were dishonest.
4. The matters set out in paragraph 2 and 3 constitute misconduct.
5. By reason of your conviction as described in paragraph 1, your fitness to practise is impaired.
6. By reason of your misconduct as described in paragraphs 2-4 your fitness to practise is impaired.
Proof of service
1. The Registrant was neither present nor represented. Ms Sheridan addressed the Panel in respect of proper notice. She highlighted that notice of this hearing had been sent to the Registrant on 26 September 2016 to his registered address by first class post.
2. The Panel were satisfied that proper notice had been given in accordance with the rules.
Proceeding in the absence of the Registrant
3. Ms Sheridan then applied for the Panel to proceed in the absence of the Registrant. She highlighted the pro forma response received from the Registrant dated 4 November 2016 in which he confirmed that he would not be attending the hearing. She submitted that the Panel could conclude that he had voluntarily absented himself.
4. The Panel heard and accepted the advice from the Legal Assessor.
5. The Panel has a discretion whether to proceed in the absence of a Registrant. This discretion must be exercised with the utmost care and caution, mindful of the right of a Registrant to attend and participate in his hearing. The Panel noted the pro forma response and is satisfied that the Registrant has voluntarily absented himself from today’s hearing. In any event, there is a public interest in the expeditious disposal of cases. The Panel determined to proceed in the absence of the Registrant.
Application to amend the allegation
6. Ms Sheridan applied to the Panel to amend the allegation in the terms set out on page 2 of the case summary document. She submitted that these were minor corrections that better particularised the allegation.
7. The Panel heard and accepted the advice from the Legal Assessor.
8. The Panel agreed to the proposed amendments. There was no discernible prejudice caused to the Registrant and he had not objected to them.
9. Ms Sheridan informed the Panel that the Registrant was first registered with the HCPC as an Operating Department Practitioner (ODP) in October 2004.
10. On 4 October 2014, the Registrant was involved in a road traffic collision with another vehicle. Having provided his contact details, he left the scene of the collision prior to the police arriving. The owner of the other vehicle reported to the police that the Registrant (being the driver) had a strong smell of alcohol at the time of the collision.
11. Police attended the Registrant’s address. He confirmed that he was driving the vehicle at the time of the collision. He was arrested and a breath sample was taken at the police station, the lowest reading being 89 mcg of alcohol in 100 ml of breath.
12. On 24 October 2014, the Registrant pleaded guilty to the offence of driving a motor vehicle, after consuming so much alcohol that a proportion of it in your breath, namely 89 mcg of alcohol in 100 ml of breath, 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. The Registrant was fined £440 and was disqualified from holding or obtaining a driver’s licence for 22 months.
13. The memorandum of conviction identifies the Registrant by a variation of spelling of his surname. By checking his address on the various documentation and his date of birth, there is no dispute in the actual identity of the Registrant.
14. On 28 October 2014, the Registrant completed a signed renewal form and submitted this to the HCPC, declaring that he had not received any convictions or cautions since his last registration period. He was referred by his employer on 11 May 2015 once they became aware of his conviction after renewing his Disclosure and Barring Service (DBS) check.
Decision on Facts
15. The Panel had regard to the submissions of Ms Sheridan and heard and accepted the advice of the Legal Assessor.
16. The Panel is satisfied having had sight of the signed certified copy of the certificate of conviction that this is admissible as proof of that conviction and the findings of fact upon which it is based in accordance with Rule 10(1) (d).
17. The Panel turned next to the allegation of dishonesty. It is mindful of the fact that the burden of proof is on the HCPC to the civil standard of a balance of probabilities. It had regard to the signed renewal form and the witness statement of AM, Registrations Manager for the HCPC, in which she stated that there was no record of the Registrant contacting the HCPC registrations department prior to submitting his renewal form.
18. The Panel is satisfied that by checking with an ‘x’ that section of the renewal form which refers to there being no change relating to good character, which includes any conviction, the Registrant was acting dishonestly. He had appeared in the Magistrates Court only four days before completing the renewal form and would have been fully aware of his obligation to disclose this recent conviction. The Panel is satisfied that his failure to do so was neither accidental nor inadvertent but on the contrary was a dishonest attempt to conceal the fact of his conviction from his Regulator.
Decision on Grounds and Impairment
19. The Panel had regard to the submissions of Ms Sheridan and heard and accepted the advice of the Legal Assessor.
20. The Panel is satisfied under Article 22(1) (a) (3) of the 2001 Order that the Registrant’s fitness to practise is impaired by reason of his conviction.
21. The Panel had regard to the HCPC Standards of Conduct Performance and Ethics published in 2012:
Standard 3 – You must keep high standards of personal conduct
Standard 4 – You must provide (to us and any other relevant regulators) any important information about your conduct and competence
In particular, you must let us know straight away if you are:
- Convicted of a criminal offence…..
Standard 13 – you must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or the profession.
22. The Panel went on to consider whether the allegation in respect of dishonesty amounted to misconduct. It is satisfied that the actions of the Registrant in completing his renewal form to his regulator in the way that he did would clearly be regarded as deplorable conduct by fellow practitioners. The Panel is satisfied that the actions of the Registrant were an attempt to conceal his conviction and as such the Registrant has brought the profession into disrepute, and breached one of the fundamental tenets of the profession.
23. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his conviction and misconduct. In respect of the conviction, the Panel had regard to the fact that the Registrant admitted to the police that he was the driver of the vehicle when they attended his home address and the subsequent guilty plea at the Magistrates Court. However, the Panel is satisfied that a criminal conviction brings the profession into disrepute.
24. In respect of the facts surrounding the misconduct, the Panel is satisfied that the Registrant has brought the profession into disrepute and has breached one of the fundamental tenets of the profession. The Panel acknowledges that the Registrant has admitted the entirety of the allegation in his pro forma response and as previously noted, he admitted his drink driving to the police, which may be indicative of some insight. The Panel has no evidence to conclude that this act of dishonesty is anything other than an isolated act. The Panel therefore concludes that this does not indicate that the Registrant is fundamentally dishonest.
25. However, a system of proper registration and renewal is designed to protect members of the public and the reputation of the profession. By acting dishonestly in that he made a false declaration when renewing his HCPC registration, the Registrant undermined the trust and confidence that the public and the profession have in those who are regulated. Furthermore, the Panel is satisfied that public confidence in the profession and the HCPC as its regulator would be undermined if a finding of impairment were not made. Honesty is integral to being a member of the profession and the trust and confidence that members of the public expect to have in those who act in a professional role.
Decision on Sanction
26. The Panel then heard submissions as to the approach it should take to the question of sanction.
27. It heard and accepted the advice of the Legal Assessor.
28. The Panel noted that the question of sanction is a matter of the Panel exercising its professional judgement.
29. The Panel took into account the following aggravating and mitigating factors.
30. The aggravating factors identified are:
• An act of dishonesty is always a serious matter;
• A false declaration to the regulator;
• No disclosure to the HCPC or his employer prior to being referred by his employer in May 2015 following a DBS check;
• The Registrant has not attended this hearing to demonstrate remorse and insight into the effects of his behaviour on the public and wider public interest.
31. The following mitigating factors were identified:
• Early admission to the police that he was the driver of the vehicle involved in the collision;
• Guilty plea at the Magistrates Court;
• Full admissions to the allegation in his pro forma response to the HCPC;
• No evidence to suggest that this was anything other than an isolated act;
• The Panel has no evidence of any previous regulatory matters.
32. The Panel has balanced the Registrant’s interests with the public interest, which includes the protection of service users and maintaining the reputation of the profession and the HCPC as its regulator. It has had regard to the Indicative Sanctions Policy.
33. It notes that the purpose of a sanction is not punitive, although it may have a punitive effect. The Panel has throughout been guided by the principle of proportionality, namely to do no more than is necessary to meet the risks identified and to reflect its earlier findings of fact and decision on impairment.
34. The Panel accepts that the Registrant’s conviction and his subsequent dishonesty in falsifying his renewal form were serious in that they damage the wider public interest and undermine proper professional standards. The Panel is satisfied that such behaviours require the Registrant’s practice to be subject to some form of restriction.
35. The Panel first considered whether to take no further action in this case. However, the matters found proved are too serious to take no further action. For the same reasons, a caution order would also not be appropriate or proportionate. There is a lack of information as to the current level of insight and remorse on the part of the Registrant. Mediation would not be applicable in this case.
36. The Panel then went on to consider whether a conditions of practice order would be the proportionate response. The Panel notes that any potential conditions must be appropriate, measurable and workable. However, it has no idea as to what the Registrant may currently be doing or any information as to his future career intentions. The Panel determined that an act of dishonesty cannot be readily remedied by a period of conditional registration.
37. The Panel then went on to consider whether a suspension order would be the proportionate and appropriate response. The Panel is satisfied that the interrelated actions of the Registrant represented an isolated act and that there is no evidence to suggest that there was a risk to service users. However, the Panel recognises the seriousness of the matters found proved and the detrimental effect on the profession and its regulator. The Panel determined that a suspension order sends out the required deterrent message to the profession and the Registrant that such behaviours are unacceptable; as well as protecting and maintaining public confidence in the profession and its regulator. In the circumstances, the Panel decided a suspension order for a period of four months was the appropriate and proportionate response.
38. The Panel did not direct a review prior to the expiry of the order, it is satisfied that a period of suspension for 4 months will adequately mark the gravity of the matters.