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1) On 08 April 2014 at Hamilton Justice of the Peace Court you were
a) Threatening or abusive behaviour (domestic, child)
b) Assault to injury (child)
c) Assault to injury (domestic)
2) By reason of that conviction your fitness to practice as an Operating Department Practitioner is impaired.
On 1 July 2015 at Hamilton Sheriff Court you were convicted of:
1) Stalking, contrary to s.39(1) Criminal Justice and Licensing
(Scotland) Act 2010.
2) By reason of your conviction as set out at paragraph 1 your fitness to practise as an Operating Department Practitioner is impaired.
Proceeding in the absence of the Registrant
1. The Panel was satisfied that notice of today’s hearing was properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules and thereafter considered Ms Hastie’s application to proceed in the Registrant’s absence in terms of rule 11. The Panel has been advised by Ms Hastie that there had been no recent contact from the Registrant, although he had initially engaged with the HCPC in 2014 when the first conviction was referred to the HCPC. Ms Hastie referred the Panel to the factors set out in the case of R v Jones. The Panel has accepted the advice of the Legal Assessor and has had regard to the current HCPC Practice Note on Proceeding in Absence. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. Given the very limited engagement by the Registrant, the Panel has no reason to believe that he would attend at a future date if the matter were adjourned The Panel is of the view that the Registrant has chosen not to engage in these proceedings and it has determined that it is in the public interest to proceed in his absence today.
2. The Registrant is an Operating Department Practitioner who was employed by NHS Greater Glasgow & Clyde from September 1986. He worked as an Operating Department Practitioner and was based at the Victoria infirmary. The Registrant returned to work on 12 May 2014 following an investigation in respect of an unrelated matter. Following his return to work, the Registrant was asked to complete a Protecting Vulnerable Groups application form in line with the ongoing programme of retrospective checking of existing staff members within NHS Greater Glasgow and Clyde. After receiving this form, the Registrant informed his line manager that he was unsure of how to complete the form as he had a conviction for assault in relation to an incident in January 2014.
3. It was subsequently ascertained that the Registrant had been convicted at Hamilton Sheriff Court on 8 April 2014 as follows:-
a. Threatening or abusive behaviour (domestic, child)
b. Assault to injury (child)
c. Assault (domestic)
4. On 2 May 2014, the Registrant received a community payback order with the addition of a supervision period of 12 months in addition to all three offences. The matter was thereafter reported to the HCPC.
5. On 6 April 2015, the Registrant was arrested and interviewed by police as he had been accused of harassing Person X. The harassment consisted of the Registrant telephoning Person X on her mobile telephone and on her landline telephone, contacting her and her family members by telephone, sending text messages and contacting her via Facebook.
6. The police checked Person X’s landline telephone log and the Registrant had telephoned her on more than 50 occasions on 31 March 2015, on nine occasions on 5 April 2015 and 37 occasions on 6 April 2015. On 1 July 2015, the Registrant was convicted of the following offence:-
Stalking, contrary to section 39(1) Criminal Justice and Licensing (Scotland) Act 2010.
7. The Registrant was sentenced on 10 August 2015 at Hamilton Sheriff Court to an unpaid work order of 100 hours to be completed within six months, and subject to a non-harassment order for two years against Person X starting on 10 August 2015.
8 The Registrant provided representations to the HCPC’s Investigating Committee in respect of his conviction of 8 April 2014. He does not refer to the conviction in his representations but states that his fitness to practise is not impaired at he would “accept that his fitness to practise was impaired as a result of my ill health at the time due to alcohol dependency”. He further states that “since January 2014 I have been actively engaged with clinical specialists to help me return to good health and I have been alcohol free now for 8 weeks. Whilst I accept that my fitness to practise was impaired, I am working hard to ensure that my continuing fitness to practise is not impaired”. There has been no engagement from the Registrant in relation to the second conviction.
9. Police Scotland have provided a copy of the case summaries in respect of both convictions.
Decision on Facts and Grounds:
10. The Panel considered the submissions by Ms Hastie and the advice of the Legal Assessor. The Panel had sight of the extract convictions dated 20th March 2015 and 22nd April 2016 and accepted these as proof of the convictions and of the findings of fact upon which they were based in terms of rule 10(1)(d) of the Conduct and Competence Committee Procedure Rules. The Panel is therefore satisfied that the facts and grounds have been proved.
Decision on Impairment:
11. The Panel next considered whether the Registrant’s current fitness to practise is impaired by his convictions. The Panel is aware that this is a matter for its own professional judgement. In reaching its decision, the Panel has had regard to the conduct of the Registrant, the nature, circumstances and gravity of the offences and the critically important public policy issues, in particular the need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect.
12. The Panel has first considered the personal component of the Registrant’s conduct. In relation to the first conviction, the Panel has noted that the Registrant entered a plea of guilty to the charge which indicates a degree of insight. However the Panel notes from the Management Report of the Investigation by NHS Greater Glasgow and Clyde, the Registrant described the incident as being “no more than a minor scuffle”. The Panel is of the view that the conviction is serious involving a considerable level of violence and verbal abuse in a domestic setting and involving children. The Panel also notes that this violence and abuse was directed at both his family and the police. It demonstrates to the Panel that the Registrant is capable of behaviour which is completely out of control and although this behaviour did not occur in a professional setting, would lead the Panel to have concerns about the potential risk to vulnerable patients in his care. In addition, the Panel has not seen any evidence of remorse or remediation.
13. In relation to the second conviction, again the Panel is aware that the Registrant pled guilty to the offence. However the offence involved a considerable level of harassment involving his whole family and impacted on his wife and children who were seriously affected by the constant calls. Again the Panel has no evidence of insight or remorse on the part of the Registrant.
14. Taking all of these matters into account together with the nature and circumstances surrounding each of the offences, the Panel is satisfied that there are concerns in relation to the personal component of the Registrant’s actions.
15 In respect of the critically important public policy issues, the Registrant’s actions in respect of both offences clearly bring the profession into disrepute and undermine public confidence in the profession. As an Operating Department Practitioner, the Registrant is in a position of trust and dealing with vulnerable service users. Further, the Panel notes that the Registrant is still subject to a non-harassment order. His actions have very clearly undermined that trust. The Panel has concluded that given the nature and circumstances of the Registrant’s actions, in respect of both convictions he has clearly breached the following standards of the HCPC Standards of Conduct, Performance and Ethics:-
• Standard 3 - You must keep high standards of personal conduct
• Standard 13 - You must behave with integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
16. In order to maintain public confidence in the profession and the regulatory process and to uphold proper standards of conduct, the Panel has concluded that the Registrant’s fitness to practise is currently impaired by his conviction of 8 April 2014 and by his conviction of 1 July 2015. The allegation is therefore well founded.
Decision on Sanction:
17. The Panel has heard submissions from Ms Hastie on the issue of sanction. The Panel has also considered the advice of the Legal Assessor and had regard to the HCPC’s Indicative Sanctions Policy.
18. The Panel is aware that the purpose of sanction is not to be punitive and that they must consider the risk the Registrant may pose to those using or needing his services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.
19. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a caution would not be appropriate given the very serious nature of the convictions. The Panel has also considered that a conditions of practice order would not be appropriate given the nature of the Registrant’s conduct, his non engagement with these proceedings and the fact that the conduct took place outside of a professional setting.
20. The Panel next considered a suspension order. Prior to these incidents the Registrant has had at least 28 years of practice without regulatory issues. The two incidents which led to the allegations were not directly related to his clinical practice. With regard to repetition, the Panel took the view that repetition is possible but noted that the Registrant has referred to health issues which may have affected his behaviour at the time of the first incident. A suspension order adequately protects the public since the Registrant cannot practise. It also clearly states the standards that are expected of a Registrant since he has been removed from current practice. It is possible that the resolution of the health issues may enable the Registrant to remediate his failings. The Police case summary indicates that the Registrant sought help with his health issues in 2013 and the Registrant makes reference to this issue in his investigatory interview with his employer in July 2014. In the absence of direct evidence from the Registrant, the Panel has taken proportionality into account, and in particular, the terms of paragraph 10 of the Indicative Sanctions Policy which states as follows:
In deciding what, if any sanction to impose, Panels should apply the principle of proportionality, considering whether the chosen sanction:
• Is an appropriate exercise of the Panel’s powers;
• Is a suitable means of attaining the degree of public protection identified by the Panel;
• Takes account of the wider public interest, such as maintaining public confidence in the profession;
• Is the least restrictive means of attaining that degree of public protection;
• Is proportionate in the strict sense and strikes a proper balance between the protection of the public and the rights of the Registrant
21 The Panel considers that a suspension order at this time provides the Registrant with a further chance to demonstrate that he has addressed his health issues, remediated his failings and provides convincing insight and has remediated his failings. The Panel is also aware that the Non-Harrassment Order will expire in August 2017. Taking all of these matters into account, the Panel has concluded that in these circumstance a suspension order would be an appropriate and proportionate sanction. The Panel considers that a period of one year is appropriate to give the Registrant an opportunity to reach the end of the Court Order and to produce evidence of remediation and insight.
22. The Panel gave serious consideration to a striking off order. However the Panel is of the view that it would be disproportionate at this stage, given that the Registrant has had no prior referrals to the HCPC and that there have been a number of references to him having a health issue which he appeared to be taking steps to address in 2014 when he last made contact with the HCPC.
23. This order will be reviewed by another Panel prior to its expiry. It may assist a future Panel if the Registrant were to engage with the process and produce up to date evidence indicating that the matter which led to his convictions has been addressed, current testimonials or references and a reflective piece concerning the circumstances leading to his convictions.
Order: The Panel directs the Registrar to suspend the registration of Michael McKechnie for a period of one year from the date that this order takes effect.
This Conduct and Competence Committee Panel Final Hearing took place at the Novotel, Glasgow at 10.00 am on 18 November 2016.
The order imposed will apply from 16 December 2016. This order will be reviewed again before its expiry on 16 December 2017.