Mr Gary R Buswell
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1) On 7 May 2013 at Birmingham Magistrates’ Court you were convicted of:
a) Driving a motor vehicle, after consuming so much alcohol that the proportion of it in our blood, namely 260 milligrammes of alcohol in 100 millilitres of blood, exceeded the prescribed limit.
2) Between the 1 October 2013 and 28 November 2013 you did not declare the above conviction during your renewal process.
3) The matter set out in paragraph 2 constitutes misconduct.
4) By reason of your misconduct and convictions your fitness to practise is impaired.
1. The Panel has been convened to undertake a review of a substantive suspension order made in respect of the Registrant, Mr Buswell.
2. The Registrant has neither attended the hearing nor been represented at it. The Panel was satisfied that the letter dated 10 January 2017 sent to the Registrant as his HCPC registered address informing him of the day, time and place of this hearing, constituted good notice. It followed that the Panel had jurisdiction to entertain the application made by the Presenting Officer that it should exercise its discretion to direct that the hearing should proceed in the Registrant’s absence.
3. The decision of the Panel was that the hearing should proceed in the absence of the Registrant. The reasons for this decision were as follows:
• His absence from the hearing was voluntary. On 24 January 2017 he telephoned the HCPC in response to a letter he had received. In the telephone conversation he stated in very forceful terms that he wished to have nothing to do with the HCPC. As no letter other than the notice of hearing dated 10 January 2017 had been sent to the Registrant by the HCPC for some considerable time, the Panel finds that as at 24 January 2017 he had knowledge that the present review hearing was due to take place.
• A review of a suspension order is a mandatory requirement in all cases. In this case the jurisdiction to undertake the review will be lost when the current period of suspension expires on 5 March 2017. It would not now be possible to give a valid notice of hearing for a hearing on another occasion before 5 March 2017.
• There has been no request for an adjournment of the hearing of the review made by the Registrant, and no suggestion that he would attend on any other occasion if it did not take place at the present time.
• It follows that the clear public interest in complying with the requirement to review the current order outweighs the absence of the Registrant.
4. So far as it is relevant for the purposes of the present review, the history of the fitness to practise proceedings concerning the Registrant is as follows:
• The HCPC made two allegations against the Registrant. 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 conviction relied upon for the former was recorded against the Registrant at Birmingham Magistrates’ Court on 7 May 2013 for the offence of driving a motor vehicle after consuming so much alcohol that the proportion in his blood, namely 260 milligrammes of alcohol in 100 millilitres of blood, exceeded the prescribed limit. The contention of misconduct was founded upon that when the Registrant renewed his HCPC registration as a Biomedical Scientist between 1 October 2013 and 28 November 2013, he failed to declare the conviction in that renewal process.
• The final hearing of the allegations took place on 5 February 2015. The Registrant did not attend the hearing which proceeded in his absence. The fact of the conviction was proved. The Panel accepted the HCPC’s evidence that the conviction had not been declared by the Registrant when he renewed his registration, and that his failure to do so constituted misconduct. The Panel also found that the Registrant’s fitness to practise was impaired by reason of both the conviction and the misconduct. Both allegations were therefore determined to be well-founded. The sanction imposed by the final hearing Panel was a suspension order for a period of 12 months. That Panel decided that a suspension order was necessary but sufficient, stating that the Registrant might have the capacity to resolve the prevailing issues that had been identified by the decision, and that a period of suspension would enable the Registrant to address them. In informing the Registrant that the suspension order would be reviewed before it expired, the final hearing Panel said that the reviewing Panel might be assisted by the Registrant’s attendance at the review hearing and by him submitting information for the purposes of the review, including evidence that he understood the gravity of his conviction and misconduct, indicating how he had reflected on the findings against him and how he intended to ensure that there would be no repetition.
• The review of the original term of suspension was held on 5 February 2016. The Registrant did not attend the hearing and there was no information provided by him for the purposes of the review. The reviewing Panel decided that in the circumstances it was necessary to order a further period of suspension for 12 months.
• Following the review hearing, on 9 February 2016, after he had received the written determination of the reviewing Panel, the Registrant telephoned the HCPC. He stated that he was unsure why the matter was still going on as he had informed the HCPC that he had retired and no longer wished to be registered. It was explained to him that no communication had been received from him for the purposes of the review, and the HCPC employee to whom he spoke suggested that he should confirm his wishes and status in writing. She provided the Registrant with both an email and postal addresses. The Registrant stated that he would shortly send a letter.
• On 24 January 2017 (a little over a fortnight before the present hearing) the Registrant telephoned the HCPC complaining that he had been sent a letter by the HCPC. He said that he had previously sent a letter to the HCPC explaining that he did not want to be on the register any longer because he had taken early retirement. He said that he could not understand why the HCPC was still communicating with him. The reason why a review was required was explained to the Registrant, who said in very forceful terms that he no longer wished to have anything to do with the HCPC. He asked that it be noted, expressing that it be recorded in bold, that he does not wish to practise again and desired to be struck off the register. When it was suggested that he should write a letter to be put before the present Panel confirming the views he had expressed during the telephone call, he expressed irritation in view of the fact that he said he had written in 2015. He did, however, agree to write again.
• No letters have been received from the Registrant despute what he said on 9 February 2016 and 24 January 2017.
5. The Presenting Officer submitted that the Registrant has continued to fail to acknowledge his behaviour, and as a result his fitness to practise is currently impaired. Furthermore, it was submitted there is now no realistic prospect that the Registrant will address these matters. That being the case, it was submitted, the sanction that would be appropriate at the present time would be the making of a striking-off order.
6. There were no submissions addressed to the Panel made by the Registrant. The Panel was, however, provided with copies of two File Notes recording telephone conversations between the Registrant and HCPC employees on 9 February 2016 and 24 January 2017. During both telephone conversations he said that he no longer wished to practise as a Biomedical Scientist. In both conversations he said that he would write to the HCPC confirming these statements, but no letters have been received by the HCPC.
7. In undertaking this review the Panel has applied the followed the following principles:
• The findings of the final hearing Panel made in February 2015 are now settled and not open to be questioned.
• The issue for the present Panel is to decide whether the findings made in February 2015 require the imposition of a sanction when the present period of suspension ends on 5 March 2017. In making this decision the Panel is not only required to take into account the findings made in February 2015 in relation to the allegations, but also all that has and has not occurred in the period between the final hearing in February 2015 and the present time.
• In deciding on the issue of sanction, ordinary sanction considerations apply. In particular, a sanction is not to be imposed to punish. Rather, a sanction should be the least restrictive order consistent with the need to protect the public (including potential service users) and to maintain a proper degree of confidence in the registered profession and the regulatory process currently being undertaken. The fact that there have been two periods of suspension, each for a period of 12 months, does not give rise to a presumption that there will be a further sanction, still less that it should be one of a further period of suspension. If the Panel determines that a further sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that sufficiently addresses the issues of public protection and the maintenance of confidence just referred to. The sanction powers available when undertaking a review are those that were available to the preceding Panel. As the sanction of striking-off was available to the final hearing Panel in respect of both of the allegations it determined to be well founded, the sanction of striking-off is available to the present Panel in undertaking this review.
8. The present Panel agrees with both the final hearing Panel and the first reviewing Panel that the findings made against the Registrant were serious, and, without acknowledgment and remedial action, were such that his fitness to practise would remain impaired. In the judgement of the present Panel the matter requires a sanction, a caution order would not sufficiently reflect the seriousness of the matter and conditions of practise are not appropriate to address the issues of probity arising in this case. The judgement has concluded that a further period of suspension is not appropriate as the consistent attitude of the Registrant has been such that it is clear that the position at the end of any period of suspension would be the same as it is now. The consequence of these findings is that a striking-off order is the required outcome, and this is the order made by the Panel.
Order: That the Registrar is directed to strike the name of Gary R Buswell from the Register on the date this order comes into effect.
The order imposed today will apply from 5 March 2017
No notes available