Mrs Helen L Smaldon
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On 18 July 2016 at Truro Magistrates' Court you were convicted of:
1. Driving a motor vehicle on a road after consuming so much alcohol that the proportion of alcohol in your breath, namely 72 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit.
2. By reason of your conviction as set out at paragraph 1 your fitness to practise as a Social Worker is impaired.
Service of Notice
1. The notice of this hearing was sent to the Registrant at her address as it appeared in the register on 25 July 2018. The notice contained the date, time and venue of today’s hearing.
2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).
Proceeding in the absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Wills on behalf of the HCPC.
4. Ms Wills submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. She outlined the attempts made by the HCPC to contact the Registrant by telephone using the numbers on record. The HCPC also contacted Cornwall Council who informed the HCPC that the Registrant was no longer employed by them as she had resigned from her position in January 2018. In that light, Ms Wills submitted that the Registrant has not engaged with the HCPC, and that an adjournment would serve no useful purpose. Ms Will’s confirmed that the Registrant’s last contact with the HCPC was in November 2016, and that there had not been no further contact from her. She reminded the Panel that there was a public interest in this matter being dealt with expeditiously.
5. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant.
6. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.
7. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.
8. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.
9. In reaching its decision the Panel took into account the numerous attempts made by the HCPC to contact the Registrant, and the Registrant’s lack of engagement with this process since November 2016.
10. The Panel was satisfied that the Registrant had voluntarily absented herself from the hearing. It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date, in the light of the non-engagement of the Registrant. Having weighed the public interest for expedition in cases against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.
Proceeding in private
11. The Panel heard that matters relating to the Registrant’s health were to be discussed as part of this application. Ms Wills submitted that it was appropriate that parts of the hearing be held in private where the Registrant’s health was to be discussed. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The Panel agreed the parts of the hearing, where reference was to be made to the Registrant’s health, should be heard in private.
12. The Registrant is a registered Social Worker. On 4 July 2016, the Police were contacted by a member of the public who had spoken to the Registrant at a petrol station and who was concerned that she appeared under the influence of alcohol. The Police observed the Registrant driving and approached her when she parked and exited her vehicle. The Police carried out a roadside breath test and a further breath test at the police station. The Registrant was charged with driving a motor vehicle with excess alcohol in her breath namely 72 microgrammes of alcohol in 100 millilitres of breath.
13. The Registrant attended Truro Magistrates Court on 18 July 2016.
14. The matter was referred to the HCPC and the panel at the substantive hearing on 12 March 2018 found the Registrant’s fitness to practise to be impaired by reason of the above conviction. That panel imposed a Conditions of Practice for a period of six months as the sanction. The conditions imposed upon the Registrant’s practice were as follows:
1. Prior to the next review, the Registrant must complete and send to the HCPC a written reflective statement which demonstrates:
i. her understanding of the impact of the behaviour, which led to her conviction, on public confidence in the profession.
ii. an understanding fo the risks of her actions on public safety;
iii. what coping strategies she has developed and used to avoid repetition of her behaviour.
2. Prior to the next review, the Registrant must provide to the HCPC a report from Cornwall Council outlining the support and monitoring given to her by the Council, the Registrant’s response to that support and monitoring, as well as an update as to her employment situation with Cornwall Council.
3. You must inform the following parties that your registration is subject to these conditions:
i. any organisation or person employing or contracting with you to undertake professional work;
ii. any agency you are registered with or apply to be registered with (at the time of application); and
iii. any prospective employer (at the time of your application).
Panel’s considerations and decision
15. The Panel took into account the submissions of Ms Wills. She submitted that the Registrant had not engaged with the HCPC by submitting the documents requested of her and therefore conditions were no longer appropriate. She submitted that the appropriate sanction now was one of suspension.
16. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Wills. In particular it noted the following factors:
(a) there is no suggestion that the Registrant lacked the requisite competence to carry out the role of a Social Worker;
(b) the previous panel found the Registrant’s fitness to practise was impaired on the public interest component only, and that there were no public protection issues;
(c) that panel determined that the public interest would be satisfied with the imposition of condition of practice and the Registrant’s compliance with the conditions imposed.
17. The Panel noted that the Registrant has not re-engaged with the HCPC nor complied with the conditions imposed by providing statements and a report from Cornwall Council about her progress.
18. The Panel also took into consideration the additional information before it today, which was not before the previous panel, that included the fact that the Registrant had resigned from Cornwall Council in January 2018, before the imposition of the conditions.
19. However, the Registrant has not provided a reflective statement as required by Condition 1, and therefore the public interest, for which that condition was imposed, has not been satisfied. In that light, the Panel determined that the public interest still required a finding of impairment in this case.
20. Therefore Panel determined that the Registrant’s fitness to practise remains impaired.
21. The Panel then went on to consider what the appropriate and proportionate sanction should be. It bore in mind that the purpose of a sanction was not punitive, although a sanction may have that effect. It was very conscious that it was dealing with a conviction matter that:
(a) involved the Registrant driving with excess alcohol in her breath; and
(b) which was not committed whilst the Registrant was at work or carrying out duties as a Social Worker.
22. The Panel also took the following facts into account:
(a) the Registrant had a previously unblemished career as a Social Worker and that these allegations related to a single incident in 2016;
(b) Cornwall Council’s reference to the Registrant having demonstrated some insight during their disciplinary process, mentioned in the previous panel’s decision;
(c) the oblique reference to the Registrant’s health contained in the communications from Cornwall Council;
(d) the last panel’s view that there was information before it “which demonstrates a number of steps by way of remediation undertaken by the Registrant, within the context of supportive monitoring by her employer.”; and
(e) that it has been over two years since the incident, and there has been no repetition of this or other criminal conduct by the Registrant.
23. The Panel determined that in the light of the information before it, there was a very low risk of the Registrant repeating her behaviour that led to the conviction in this case.
24. When considering what sanction to impose, the Panel had regard to the Indicative Sanctions Policy of the HCPC. It first considered taking no action, but determined that these were matters that members of the public would be expect there to be sanction imposed, and would be concerned if no action were taken to mark the conviction.
25. The Panel then considered whether a caution order would be an appropriate sanction at this time. It took into account the previous panel’s decision in that it did not think a caution order was appropriate because it felt that there was a high risk of repetition in the absence of any evidence to the contrary. This Panel has determined that there is no evidence that there is a high risk of repetition. Further it has determined that there is a low risk of repetition, in the light of the passage of two years without further incident.
26. The Panel noted the guidance contained within the HCPC’s Indicative Sanctions Guidance that states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate.”
27. The Panel determined that the circumstances in the case now meant that a Caution Order for a period of three years would be the appropriate sanction. The Panel was very aware that it was dealing with a conviction case and not a case of misconduct. As such the Panel’s role was not to punish the Registrant twice for the same offence, but to protect the public and maintain high standards among registrants and public confidence in the profession concerned. The Panel determined that a Caution Order for three years would meet the public interest in this case. The Panel saw no reason to depart from the ‘benchmark’ of three years set out in the Indicative Sanctions Policy.
28. The Panel determined that a Conditions of Practice Order was no longer workable in this case. There was some evidence to indicate that the Registrant was no longer contactable by the HCPC and that she had not kept her details up do date.
29. In the light of the unworkability of continuing the Conditions of Practice Order, the Panel also considered a Suspension Order but determined that such an order would be disproportionate as the conviction was not for a serious criminal offence, and there were not patient safety issues.
Order: The Registrar is directed to annotate the register entry of Mrs Helen I Smaldon with a caution which is to remain on the register for a period of three years from the date this order comes into effect.
No notes available
History of Hearings for Mrs Helen L Smaldon
|Date||Panel||Hearing type||Outcomes / Status|
|29/08/2018||Conduct and Competence Committee||Review Hearing||Caution|
|12/03/2018||Conduct and Competence Committee||Final Hearing||Conditions of Practice|