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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.
1. The Panel has been convened to undertake a review of a substantive order of suspension imposed in respect of the registration of the Registrant, Mr Lininsh, on 14 December 2016.
2. The Registrant has neither attended the hearing nor been represented at it. The Panel was satisfied that the letter dated 6 March 2017 sent to the Registrant at the address provided by him for the HCPC Register constituted a valid notice of hearing. Having stated in the hearing that the Panel was so satisfied, the Presenting Officer applied for the hearing to proceed in the absence of the Registrant.
3. The Panel accepted the advice of the Legal Assessor in relation to the application that the hearing should proceed in the absence of a registrant. In particular the Panel heeded the terms of the HCPC’s Practice Note on the topic and accepted that great care is required to be taken before deciding that a case should proceed in the absence of the person concerned. However, the Panel concluded that the hearing should proceed in the absence of the Registrant for the following reasons:
• Three communications have been sent to the Registrant concerning this hearing. In addition to the notice of hearing letter dated 6 March 2017 to which reference has already been made, the same day the information was also sent by email. On 31 March 2017 a further letter was sent to the Registrant informing him of a revised, later, time of commencement of the hearing. The Panel confirms that it waited until this later time before considering the case.
• The Registrant telephoned the HCPC yesterday (6 April 2017) to say that he would not attend the hearing today.
• There has been no request that the present hearing should be adjourned to another date.
• The Registrant did not attend the final hearing on 14 December 2016.
• For jurisdiction to undertake a review of the current order not to be lost, the review must be undertaken before 11 May 2017. There would now be little time for a valid notice of hearing to be served for a hearing to take place before that date.
• Taking all these factors into account the clear public interest in the review taking place at the present time outweighs the absence of the Registrant.
4. The Suspension Order being reviewed today was imposed on 14 December 2016 by the Panel that undertook the final hearing of allegations made by the HCPC against the Registrant. Two allegations were made, and both were determined by the final hearing panel to be well founded. One was that his fitness to practise was impaired by reason of a conviction. The other was that his fitness to practise was impaired by reason of misconduct, the particulars of the misconduct alleged being that the Registrant failed to declare the conviction when renewing his registration.
5. The conviction was recorded against the Registrant on 24 October 2014 at York Magistrates’ Court in respect of an offence of driving when the proportion of alcohol in his breath exceeded the prescribed limit. On 4 October 2014 the Registrant was involved in a road traffic collision with another vehicle. He left his contact details with the other driver, who reported to the Police that the Registrant had a strong smell of alcohol at the time of the incident. The Police went to the Registrant’s address and breath samples were taken. The lowest reading was 89mcg in 100ml of breath (the permitted level being 35mcg). When he attended Court on 24 October 2014 the Registrant pleaded guilty, was fined £440 and disqualified from holding or obtaining a driving licence for 22 months.
6. On 28 October 2014 (four days after his appearance in Court) the Registrant completed a signed renewal form and submitted it to the HCPC. In that form he declared that he had not received any convictions or cautions since the last registration period.
7. The matter came to the attention of the HCPC as a result of a referral to the HCPC on 11 May 2015 by the Registrant’s employers, who had in turn become aware of the conviction as a result of the renewal of the Registrant’s Disclosure and Baring Service Check.
8. The Registrant did not attend the final hearing of the allegations made by the HCPC against him, having indicated in advance of the hearing that it was not his intention to do so. The panel that conducted the final hearing proceeded with the hearing in his absence and found all the facts proved. In relation to the failure to disclose the conviction on the HCPC renewal form, the panel stated that it was satisfied that the failure was neither accidental nor inadvertent, but rather was a dishonest attempt to conceal the fact.
9. The final hearing panel also found that the Registrant’s fitness to practise was impaired by the conviction and the misconduct of dishonestly failing to disclose the conviction to the HCPC. This finding was the consequence of that panel deciding that the Registrant had undermined the trust and confidence that the public and other members of the profession have in those who are regulated.
10. When it turned to consider the issue of sanction, the final hearing panel decided that the Registrant’s behaviour required his practice to be subject to some sort of restriction. It decided that a caution order would not be appropriate. A conditions of practice order would not be appropriate not only because there was no information about the Registrant’s then current activities, but also because dishonesty cannot be readily remedied by a period of conditional registration.
11. The final hearing panel therefore considered the sanction of suspension. It decided that the interrelated actions of the Registrant represented an isolated act and that there was no evidence to suggest that a risk to service users had been created. Nevertheless, the panel recognised the seriousness of the findings and the detrimental effect on the profession and its regulator. The conclusion of the final hearing panel was that a suspension order sent out the required deterrent message to the Registrant and the profession that the behaviour was unacceptable. It would also maintain public confidence in the profession and the HCPC. In all the circumstances the panel determined that the appropriate length of the period of suspension should be four months.
12. The substantive suspension order for a period of four months imposed on 14 December 2016 came into effect on 11 January 2017. It is therefore due to expire on 11 May 2017.
13. On behalf of the HCPC the Presenting Officer submitted that the HCPC should first consider whether the Registrant’s fitness to practise remains impaired as a consequence of the findings made against him at the final hearing. She submitted that if the Panel found that there was continuing impairment of fitness to practise, the issue of sanction should be considered in the ordinary way. As to the HCPC’s position on these issues, she described it as one of neutrality.
14. There were no submissions made by or on behalf of the Registrant.
15. The Panel has accepted the advice of the Legal Assessor as to the way in which this review should be undertaken:
• To take the findings of fact made by the final hearing panel as settled, and not open to review.
• To decide if the findings made by the final hearing panel in December 2016 result in the Registrant’s fitness to practise being impaired at the present time.
• If the conclusion of this Panel is that there is no continuing impairment of fitness to practise, then there should be no further sanction imposed upon the expiry of the present period of suspension.
• If, on the other hand, this Panel concludes that there is on-going impairment of fitness to practise, then the Panel must consider sanction in the ordinary way. This would require the Panel to be guided by the HCPC’s Indicative Sanctions Policy, remembering that a sanction should not be imposed to punish, but rather should be the least restrictive outcome consistent with the need to protect the public and to maintain a proper degree of confidence in the registered profession and in the HCPC. The sanction options available to the Panel today are those that were available to the final hearing panel. As both allegations determined to be well founded at the final hearing on 14 December 2016 could have resulted in the making of a striking-off order, it follows that in undertaking this review today the Panel has the power to make a striking-off order.
16. The Panel accepted the advice of the Legal Assessor. In the judgement of this Panel the Registrant’s fitness to practise is still impaired by reason of the findings made on 14 December 2016. This is because of the seriousness of a finding of dishonesty against a health professional. In reaching this decision the Panel has not overlooked the fact that it was apparently the view of the final hearing panel that a period of suspension for four months would be sufficient to mark the findings made. However, in the view of the present Panel its clear responsibility to ensure that the public is protected and that public confidence in the profession is maintained requires it to depart from the view earlier expressed. The present Panel takes the view that there should be confidence that the Registrant would not again behave in a dishonest way. In circumstances where the Registrant has not engaged in any meaningful way it is not possible for the Panel to have this confidence.
17. It follows from the fact that the Registrant’s fitness to practise is still impaired that the Panel has considered the imposition of a further sanction. In the judgement of the Panel a further restriction on his practise is required. Neither a caution order nor mediation would offer sufficient protection, and a conditions of practice are not appropriate when the issue is one of dishonesty. Accordingly, the Panel has concluded that a further period of suspension is required, such an order being the least restrictive outcome consistent with the need to protect the public and to maintain confidence. A further period of four months from the expiry of the present order is the appropriate length of the further period, as this will be adequate for any steps the Registrant wishes to take in accordance with the suggestions about to be made.
18. The further period of suspension ordered today will itself be reviewed before it expires. It should be clearly understood that the present Panel is not seeking to bind the future reviewing Panel by any comments it makes relevant to that future review. However, the Panel has already indicated that it’s view is that positive input would have been required from the Registrant for it to reach the conclusion that his fitness to practise is no longer impaired. The Registrant would be well advised to approach the future review on the basis that the same view might well be taken on that occasion.
19. Accordingly, this Panel would urge the Registrant to consider engaging in a positive manner with the HCPC’s process. He should consider attending the next review in person. If it is not possible for him to attend, he can ask that he might be able to participate over the telephone, although he would have to accept that remote participation of that sort might not have the same impact as personal attendance. He should also consider submitting for the consideration of the future reviewing Panel written evidence that he has reflected on the dishonesty found against him, explaining why it occurred, offering a personal reflection on the matter and indicating what he considers the impact of his dishonesty to be from the point of view of fellow professionals and the public.
20. Before passing from this case the Panel would wish the Registrant to understand the powers that will be available to future reviewing Panels. Whenever the reviews occur, the sanction of striking-off will be available. If the Registrant continues not to engage in this regulatory process the view might well be taken in the future that further periods of suspension are no longer appropriate as nothing will be achieved by their imposition.
The Order imposed today will apply from 11 May 2017.
This Order will be reviewed again before its expiry on 11 September 2017.