Michelle Metcalf

Profession: Chiropodist / podiatrist

Registration Number: CH13827

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 16/11/2018 End: 17:00 16/11/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

 

The allegation against you is as follows:

 Whilst registered as a Chiropodist with the Health & Care Professions Council, you: 

1) On 18 May 2017 at Gateshead Magistrates’ Court, were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 94 microgrammes in 100 millilitres of breath, exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988;

 

2) By reason of your conviction, your fitness to practise is impaired.

 

 

 

Finding

Preliminary matters

Service

1 Miss Michelle Metcalf (“the Registrant”) is registered with the HCPC as a Chiropodist/Podiatrist. 

2 The Panel was satisfied that the notice of hearing was sent by both post and email to the Registrant on 30 August 2018.  The version sent by post was sent to the address provided by the Registrant to the HCPC for registration purposes. The Panel was satisfied that there had been good service of the notice of hearing.

Proceeding in the absence of the Registrant

3 The Registrant did not attend the hearing. On behalf of the HCPC, Mr Millin asked the Panel to proceed in the absence of the Registrant. He accepted that the Registrant had a right to be present and that a Panel should take great care before deciding to proceed in the absence of a registrant. It was important that the Panel fairly balanced all the relevant circumstances.  The email of yesterday from the Registrant did not request an adjournment and nor did she indicate a wish to be represented.

4 The Panel took into account the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

5 The Panel was satisfied that all reasonable steps had been taken to serve notice of the hearing on the Registrant.  The task for the Panel was to strike the proper balance between the public interest in proceeding with cases such as this in a timely manner and ensuring fairness to the Registrant. In exercising its discretion on whether to proceed, the Panel particularly took into account that:

• there is a burden on professionals to engage with their appropriate regulator in the resolution of allegations.

• there is a public interest in dealing with cases such as this with reasonable expedition.

• there has been little previous engagement by the Registrant in these proceedings. The Registrant sent an email to the HCPC dated 30 May 2017 in which she self-reported that she had been convicted of a drink drive offence and a letter dated 24 June 2017 in which she gave background information regarding the offence for which she had been prosecuted and her employment circumstances. Yesterday, the Registrant had sent an email to the HCPTS to say that she would not be attending the hearing “due to illness” and, further, that she no longer intended to continue as a Podiatrist and would be seeking removal from the Register.

6. The Panel has taken account that although the Registrant’s email of yesterday referred to her being unable to attend by reason of illness, she did not ask for the hearing to be adjourned or say she would attend a future hearing. In addition, she did not specify the nature of her illness and nor did she take the opportunity of providing any further representations. There was nothing to show that an adjournment was likely to result in the Registrant attending on a later date.

7. The Panel accepted that the Registrant would be disadvantaged to some degree by her absence but concluded that the fair and proper balance of interests was to continue in the absence of the Registrant.

Background

8. On 18 May 2017 the Registrant was convicted at Gateshead Magistrates’ Court of the offence of driving a motor vehicle on 22nd February 2017 after having consumed excess alcohol. The breath test administered showed her to have 94 microgrammes of alcohol in 100 millilitres of breath. The maximum level of alcohol in breath permitted by law is 35 microgrammes.

9. The Registrant was sentenced to a term of 4 months imprisonment suspended for 18 months. The Memorandum of Conviction provided by the Magistrates’ Court records that this was the Registrant’s third conviction for driving with excess alcohol. Alongside other additional sentence provisions relating to costs and the payment of a victim surcharge, the Registrant was also made the subject of a Rehabilitation Activity Requirement of up to 25 days and she was disqualified from driving for 40 months.

Today’s Hearing

10. Mr Millin on behalf of the HCPC drew the Panel’s attention to the bundle of documents before it including the Memorandum of Conviction.

11. The Registrant, in her email dated 30 May 2017 said:

“Hi 

I am aware that I need to inform you that unfortunately I have been convicted of a drink Drive offence and that you need to be informed I sincerely am ashamed and saddened by the whole event If you need to discuss this further please do not hesitate to contact me”

12. In the letter dated 24 June 2017 the Registrant provided certain court documents relating to the prosecution against her. She went on to say:

“Overview of circumstances of the offence
I was driving home, after having a drink after work. I had rested / slept for a period of time before commencing my journey home as I was tired, the police stopped my vehicle as they saw me swerve my car, stopped & roadside breath test failed. Was taken to police station, processed & charged. It had been a particularly stressful day which started at 7 am, from an elderly patient, who was very distressed, as her toes were sticking together, no matter, what I tried to tell her on the phone she would not be paciified, I went on an early morning call prior to clinic as she was threatening to get her son from Birmingham to come and see her, also my mum who suffers from severe health [problems] had also called that morning, when I got to clinic. I have an early morning patient booked in which I did not no about which made me run late for the rest of the day.
I am currently self-employed.
I do not work for anyone
I rent a room in a beauty salon”.

13. The copy of the letter provided to the Panel has certain redactions which the Panel took to be the name and address of the beauty salon.

14. The Registrant went on to say:

 “.………… is fully aware of my conviction and is fully supportive and is not taking any action against the conviction.

 I hope this information is helpful. I look forward to further correspondence”.

15. The Registrant also provided a letter dated 27 July 2017 from a Probation Service Officer working for Northumbria Community Rehabilitation Company.  In a section of the letter the officer said:

“To date Ms Metcalfe has engaged to a very positive standard and has attended all appointments offered to her. She has completed 5 RAR days thus far which have focused around victim awareness, how the offence has effected victims, herself, and various others, work around alcohol use and legal limits. Ms Metcalfe will continue to attend future RAR activities which will focus on raising awareness of the effects of driving whilst over the legal limit and relapse prevention….

I assess Ms Metcalfe as a very motivated individual who expresses remorse for her actions … I have no information to suggest otherwise based on her engagement, compliance and presentation”.

Decision on Facts and Grounds

16. The Panel heard and accepted the advice of the Legal Assessor. The Panel decided that, having taken into account all the written evidence before it, including the Memorandum of Conviction provided by the Magistrates Court, there was reliable evidence of the conviction. This has not been disputed by the Registrant. Therefore it finds both the facts and grounds proved.

Decision on Impairment

17. The Panel has also taken into account the HCPTS Practice Note “Conviction and Caution Allegations” and “Finding that Fitness to Practise is Impaired”. It also heard and accepted the advice of the Legal Assessor.

18. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence concerned. In considering the nature, circumstances and gravity of the offence, the Panel was advised to take into account public protection in its broadest sense, including whether the Registrant’s actions bring the profession concerned into disrepute or may undermine public confidence in that profession. In doing so, Panels are entitled to adopt a 'retrospective' approach and consider the conviction as if the registrant was applying for registration with the HCPC.

19. Although Panels cannot re-try criminal cases, they may have regard to whether the registrant pleaded guilty to the offence and, if so, at what stage in the proceedings. A guilty plea entered at the first reasonable opportunity is indicative of a greater insight on the part of the registrant than one entered at the last moment.

20. In reaching its decision, the Panel took into account the Memorandum of Conviction which shows that on the day of conviction the Registrant changed her plea from “Not Guilty” to “Guilty”.  The Panel was satisfied that the Registrant did not plead guilty to the charge at the earliest reasonable opportunity.

21. Whether fitness to practise is impaired has to be assessed as at today’s date. The Panel’s task is not to “punish for past misdoings”, but it does need to take account of past acts or omissions in determining whether the Registrant’s present fitness to practise is impaired. 

22. The Panel has taken into account:

• the ‘personal’ component: the current competence, behaviour  etc. of the individual  Registrant; and

• the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

23. The Panel also took into account that the offence was committed whilst the Registrant was not on duty. However, the offence was serious taking into account that:

• a sentence of imprisonment was imposed, albeit suspended

• a  disqualification from driving for 40 months was imposed

• members of the public were put at significant danger from the Registrant’s actions.  In a witness statement a police officer recorded “I saw that the vehicle which was moving around whilst in the nearside lane and was driving in an unsafe manner. At one point I thought the vehicle was actually going to collide with the main safety fencing on the bridge as it swerved to the near side”.

• the Registrant had two previous convictions for drink driving.

24. In respect of the personal component the Panel has taken into account that the Registrant self-reported the conviction but in her emails and letter to the HCPC / HCPTS she has shown limited insight, remorse and reflection for her actions. The Panel noted that this was the Registrant’s second drink drive conviction which led the Panel to conclude that there remains a risk of future similar offending.

25. The Panel has concluded that this is a case where the public component carries very considerable weight.  The behaviour of the Registrant, by driving under the influence of excess alcohol was dangerous.  The Panel recognises that the Registrant has not caused danger to service users but she has shown little insight and reflection on the danger she has caused to other road users and the damage she has caused to the reputation of her profession.

26. The Panel was satisfied that the actions of the Registrant brought the reputation of the Chiropody / Podiatry profession into disrepute and she has breached one of the fundamental tenets of her profession which is to make sure that her conduct justifies the public’s trust and confidence in her and her profession. (HCPC Standards of Conduct, Performance and Ethics – paragraph 9.1).

27. On that basis the Panel has concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

28. Mr Millin addressed the Panel by saying that the HCPC had no specific view on the question of sanction but asked that the Panel take into account the aggravating features already identified by the Panel and the advice in the HCPC Indicative Sanctions Policy.

29. The Panel has taken into account the HCPC Indicative Sanctions Policy. The purpose of a sanction is not to be punitive. It is to protect members of the public. Relevant other objectives are to:

• create a deterrent for other Chiropodists / Podiatrists, and

• maintain the reputation of the Chiropody / Podiatry profession, and public confidence in this regulatory process.

30. On the basis of the Indicative Sanctions Policy the Legal Assessor advised the Panel that, in deciding what, if any, sanction to impose, panels should ensure that any sanction is proportionate and strikes a proper balance between the protection of the public and the rights of a registrant.

31. Further advice was that where a registrant, who has been convicted of a serious criminal offence is still serving a sentence at the time the matter comes before a Panel, normally the Panel should not permit the registrant to resume unrestricted practice until that sentence has been satisfactorily completed.

32. The Panel finds that the aggravating features in this case are:

• the serious nature of the offending and the potential harm to members of the public

• the Registrant’s previous conviction history

• the lack of insight and lack of evidence of remediation

33. A mitigating feature is the Registrant’s self-referral to the HCPC.

34. The Panel takes into account that, as at today, the Registrant is still the subject of the suspended sentence, albeit that it will finish tomorrow. In this case it is not appropriate to make no order because of the serious nature of the Allegation that is now proved. Mediation is not appropriate because the failings of the Registrant were neither minor nor isolated.

35. A Caution Order is not appropriate because the behaviour on the part of the Registrant was of a serious nature, the Registrant has not shown limited insight and has not provided any evidence of any remedial action taken.

36. The Panel considered a Conditions of Practice Order. Such an order would be appropriate where a Panel is confident that a Registrant will adhere to the conditions, is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so.  The Panel considered that the Registrant’s failings are capable of being remedied. However, the view of the Panel is that there remains a lack of insight on the part of the Registrant regarding the aggravating features mentioned above. At the moment, the Panel has no evidence that allows it to be confident that the Registrant is committed to resolving the issues and that she will make a determined effort to comply with conditions. The Panel could not therefore formulate any Conditions of Practice that would provide sufficient public protection, maintain confidence in the Chiropodist / Podiatrist profession and which would be workable and enforceable. The Panel concluded that such an order is not appropriate.

37. A Suspension Order may be appropriate where the allegation is serious and cannot be addressed by any of the lower sanctions, but there is a potential for the Registrant to remedy their failings. The view of the Panel (for the reasons recorded above) is that the Registrant at the moment has limited insight into the seriousness of her actions. The Panel has however taken into account the positive report from the Probation Service and on that basis the Panel believes that she may be capable of developing insight and addressing her failings in the future.

38. On that basis the Panel is satisfied that a Suspension Order of 12 months is the appropriate order in this case and that a Striking-off order would be disproportionate at this stage. 12 months has been chosen in order to meet the public interest in this case including a deterrent effect on the profession.

39. The Suspension Order will be reviewed by the HCPTS before the expiry date and the Registrant will be invited to engage in that process. This Panel cannot tie the hands of any Reviewing Panel but this Panel suggests that, in connection with any Review, the Registrant (when invited by the HCPTS to do so):

• attends any future review hearing because it would be helpful to hear from her directly.

• provides a written reflective piece for that Review Panel in which she reflects upon the impact of her past offending on members of the public, members of her profession and public confidence in the Chiropody / Podiatry profession. That reflective piece should also set out what the Registrant would do differently to ensure that her past offending will not be repeated.

40. The Registrant should be aware that if she does not positively engage with a future review panel the option of a more serious sanction i.e. a Striking Off Order may be open to a future review panel.

Interim Order:

1 There has been an application by the HCPC for an Interim Suspension Order.

2 The Panel has taken into account that in the Notice of Hearing the Registrant was put on specific notice of such a possibility and therefore notice in that respect has been served. The Panel has considered whether it is fair to proceed in the absence of the Registrant and has taken into account the reasons the Panel relied upon when deciding to proceed in the absence of the Registrant for the main part of the hearing. On that basis the Panel has decided that it is fair and appropriate to consider this application in the absence of the Registrant.

3 The HCPC’s application is made on the 3 statutory grounds as follows:

• it is necessary for the protection of members of the public

• is in the interest of the Registrant

• is otherwise in the public interest.

4 The Panel has decided to make an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, on the ground of it being otherwise in the public interest.  The reason for making this Interim Suspension Order is to maintain confidence in this regulatory process. Members of the public would not have confidence in this regulatory process if the Registrant were to appeal and thereby be able to continue in unrestricted practice for an extended period of time.

5 This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

 

Order

Order: That the Registrar is directed to suspend the registration of Miss Michelle Metcalf for a period of 12 months from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Michelle Metcalf

Date Panel Hearing type Outcomes / Status
16/11/2018 Conduct and Competence Committee Final Hearing Suspended