Mr Edward K Cadogan

Profession: Radiographer

Registration Number: RA56527

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 06/09/2018 End: 16:00 07/09/2018

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

 

Whilst registered as a Radiographer: 

 

1. On 10 August 2017 at Cheshire Magistrates Court, you were convicted of: Driving a motor vehicle after consuming so much alcohol that a proportion of your breath, namely 101 micrograms of alcohol in 100 millilitres if breath, exceeded the prescribed limit;

2. By reason of your conviction as set out at paragraph 1, your fitness to practise as a Radiographer is impaired.

 

 

 

Finding

Preliminary matters

Application for parts of the hearing to be in private

1. During the course of the Registrant’s evidence, Ms Rangamuwa, on behalf of the HCPC, applied for those parts of the hearing which related to the Registrant’s private life to be heard in private. The Panel considered whether it should hear those parts of the case which related to the Registrant’s private life in private.

2. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC’s Practice Note Conducting Hearings in Private. The Panel determined to hear those parts of the case which related to the Registrant’s private life, in private.

Background

3. The Registrant is a Radiographer registered with the HCPC.

4. The Registrant is employed by the University of Bradford as a Lecturer in Radiography. 

5. On 22 July 2017, at around 01:10am, a passer-by found the Registrant slumped in his car which was parked across the A34 towards Congleton. The lights were on and the engine was running. The passer-by stopped to check on the welfare of the Registrant, when suddenly his car moved forward and collided with the wall of a pub car park. The Registrant was unresponsive to efforts to rouse him. Police were called.

6. At 01:25 am, police attended the scene and conducted a road side breath test procedure. The Registrant provided a positive breath test. At 01:40 police arrested the Registrant for driving with excess alcohol and cautioned him. He was conveyed to East Cheshire custody facility at Middlewich.

7. At the police station, the Registrant undertook the station breath test procedure and provided a specimen of breath registering 101 microgrammes of alcohol within 100 millilitres of breath. The legal limit is 35 microgrammes.

8. Between 15:13pm and 15:20pm, the Registrant was interviewed under caution with a solicitor. During the interview he stated that he was very sorry, had been under a lot of stress recently and had been drinking in Alderley Edge. He stated that he had consumed about 6 pints of beer, and had then got into his car and driven. He had no recollection of stopping the car or collided into a wall.

9. On 10 August 2017, the Registrant pleaded guilty to one offence of driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to sections 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. He was sentenced to a fine of £800 and disqualified from holding or obtaining a driving licence for 24 months, to be reduced by 24 weeks if he successfully completed a Secretary of State approved course by 22 December 2018. In addition, he was ordered to pay a victim surcharge of £80, and prosecution costs of £85.
10. On 10 August 2017, the Registrant self-referred his conviction to the HCPC.

Decision on facts

11. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that the burden of proving the facts rests on the HCPC and that the HCPC will only be able to prove a fact, if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

Particular 1

12. The Panel found this particular proved.

13. The Panel had regard to Rule 10(d) which states: 'where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (...) shall be admissible as proof of that conviction and the finding of fact upon which it was based'.

14. The Panel had before it a copy of the Memorandum of conviction, dated 10 August 2017, from South Cheshire Magistrates’ Court. The Panel was satisfied to the required standard, that the Registrant had been convicted of the offence of driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath, namely 101 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit.

Decision on Ground

15. Having found the facts proved, the Panel was satisfied that, by its nature, it amounted to the statutory ground of a conviction.

Decision on Impairment

16. The Panel next went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence of the conviction.

17. Ms Rangamuwa submitted that the Registrant’s fitness to practise is currently impaired by reason of his conviction. She acknowledged that he had demonstrated some insight by reason of his guilty plea, his self-referral to the HCPC and his expressions of remorse, but explained that the assessment of the level of insight he demonstrated was a matter for the Panel. She submitted that the gravity of the offence was set out in the police report, which indicated that the Registrant had been in an unresponsive and intoxicated state in his car, on a major road and his that his car collided with a wall. He had been nearly three times over the legal limit and had been disqualified from driving for 24 months, when the statutory minimum was 12 months. She submitted that this highlighted that he had been a danger to the public. She submitted that a finding of impairment was required in order to uphold public confidence in the profession.

18. The Registrant gave evidence to the Panel, and provided a reference from his employer dated 14 June 2018. The Registrant told the Panel that the police report of the events of 22 July 2017 horrified and disgusted him, and served as constant reminders for him. He said that he had work and life stressors at the time, but recognised that they paled into insignificance, in light of his actions. He identified for the Panel, the steps that he had taken to address the stressors that he had been experiencing at the time in both his work life and home life. At work, this included disclosing his conviction to colleagues as well as sharing his stresses and anxieties with them; learning to delegate; and asking for assistance rather than trying to be responsible for everything. He had found that colleagues at work had been very supportive. At home, the steps included taking a more balanced approach to life, exercising regularly and making more time for his children. As a consequence, he had found that a number of matters which he had previously found to be stressors had simply dissipated.

19. The Registrant explained that he had undertaken the drink driving course, from which he had learnt a great deal, and his disqualification would expire on 22 February 2019. He outlined his understanding of the impact of his behaviour and resultant conviction on the students he taught, the reputation of the University and the profession.

20. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC Practice Note on Convictions and Cautions. It also had regard to the HCPC Practice Note on Impairment, and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

21. The Panel considered that this was a serious offence, which could have had extremely significant consequences on both the Registrant himself as well as other members of the public. He had been nearly three times over the legal limit of alcohol while driving, had driven for several miles on a major road, and had been so intoxicated at the time of being found by a passer-by that he had been unresponsive, had collided with a wall and had no real recollection of events. It was in this context that the Panel considered both the ‘personal’ and ‘public’ components.

22. In relation to the ‘personal component’, the Panel considered that there was significant evidence of insight and remorse on the part of the Registrant. He had pleaded guilty to the offence in the Magistrates’ Court and had admitted the matter before the Panel.

23. It was apparent to the Panel from the Registrant’s evidence that he was thoroughly ashamed of his behaviour, and was genuinely distressed about his flawed decision to drive his car on that night. It was clear to the Panel that the Registrant had extensively reflected on his actions which led to the conviction. He recognised the potential catastrophic consequences that could have occurred from his decision to drive and identified that there had been considerable personal cost not just to him, but also his family, in particular his wife and children.

24. Further, the Panel was satisfied that the Registrant fully understood the impact that his conviction had on the reputation of the University and the profession itself. He recognised that a criminal conviction indicates that you have fallen foul of the law of the country.

25. The Panel had regard to the reference provided on behalf of the Registrant, from his employer at the University. It was provided by the Head of the School for Allied Health Professions and Midwifery and the Programme Lead for Diagnostic Radiography. It attested to the high regard with which the Registrant is held at the University, stating: ‘[the Registrant] has an excellent reputation within the University. He is a good communicator and has a good critical ability to see through complex issues and find solutions’. In this he has gained the trust of a range of clinical colleagues and has built high levels of trust with clinical supervisors across the 5 NHS Trusts with whom he frequently liaises to ensure student clinical education remains of high quality.’ The reference also confirmed that the Registrant had ‘immediately’ informed the Head of School of the matter and had discussed the seriousness of it.

26. The Panel was reassured that the Registrant had taken steps to remediate his actions. He had identified stressors in his work and home life and had developed strategies to ensure that he was able to manage them appropriately. He recognised the detrimental impact to the public and the profession of his actions leading to the conviction as well as the conviction itself. In all the circumstances, the Panel was of the view that the risk of repetition was minimal. This had been a salutary lesson for him, and the risk of losing his employment and family in the event of repetition was too great. He also had personal knowledge of a neighbour who had lost a relative at the hands of a drink driver.

27. In all the circumstances, the Panel concluded that in respect to the personal component, the Registrant’s fitness to practise is not currently impaired.

28. In relation to the ‘public component’, the Panel was aware that consideration of fitness to practise is not limited to the ‘personal component’, but also requires a judgement to be made in respect of the wider public interest and in particular upholding proper standards of conduct and behaviour; the reputation of the profession and maintaining public confidence in both the profession and the HCPC as its Regulator.

29. The Panel was of the view that the case was serious, with the Registrant being nearly three times over the limit, and this was reflected in the 24 months’ disqualification and £800 fine which the Registrant had received. It was fortunate that there had been no accident involving injury to either himself or another member of the public as a result.

30. In all the circumstances, the Panel was of the view that not to find current impairment would have a detrimental reputational effect on the Regulator, and would undermine public confidence in the profession. The Panel considered that any member of the public would be concerned at the Registrant’s actions and resultant conviction. The Registrant himself acknowledged this.

31. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

32. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration.

33. The Panel took account of the submissions of Ms Rangamuwa on behalf of the HCPC and those of the Registrant. It also had regard to all of the material previously before it, including the reference.

34. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. It had regard to the Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

35. Before considering the individual options open to it, the Panel considered the significant aggravating and mitigating features in this case.

36. The Panel considered the following to be the significant aggravating factors:

• The Registrant was nearly three times over the limit;

• His car had collided with a wall;

• The potential risk of serious harm to members of the public in driving whilst so intoxicated.

37. The Panel considered the following to be the significant mitigating factors:

• This was an isolated incident in an otherwise unblemished career, as evidenced by the reference stating it was ‘out of character’;

• The positive reference attesting to the Registrant’s practice, describing him as ‘a respected colleague and lecturer’, ‘innovative educator… appreciated by students and colleagues’ and ‘he has an excellent reputation within the University’.

• The Registrant’s guilty plea and prompt self-referral of his conviction to the HCPC;

• The Registrant’s extensive insight, remorse and remediation; and

• The Registrant’s challenging personal circumstances at the time.
 
38. The Panel first considered whether any sanction was necessary. It looked at paragraph 8 of the Policy, which reminds Panels that even if it has determined that fitness to practise is impaired, it is not obliged to impose a sanction. It says: ‘This is likely to be an exceptional outcome, but for example, may be appropriate in cases where a finding of Impairment has been reached on the wider public interest grounds…but where the registrant has insight, has already taken remedial action and there is no risk of repetition.’ Whilst much of this appeared to apply to this case, the Panel was not of the view that this was an exceptional case, justifying such a course.

39. In reaching this view, the Panel considered that the seriousness of the conviction of driving with excess alcohol at nearly three times over the legal limit, was such that to take no action would send out the wrong message to the public. It concluded that some form of sanction was necessary to act as a deterrent for Registrants, to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

40. Given that the Panel had ruled out that this was an appropriate case for no further action, it concluded that mediation was also not an appropriate outcome in this case.

41. The Panel then considered whether to make a Caution Order. Having regard to the Policy, it was of the view that paragraph 22 was particularly relevant in this case. It starts: ‘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.’

42. The Panel was of the view that the Registrant’s actions could properly be described as an isolated incident. It noted the observations of his employer in the reference dated 14 June 2018, which stated that the behaviour was: ‘out of character and does not align to our experiences of working with him’.

43. However, the Panel did not consider that the lapse was ‘relatively minor in nature’. It considered its finding at the Impairment stage that the conviction and circumstances were serious, given that the Registrant had been nearly three times over the legal limit for driving; he had been unresponsive, had collided with a wall, and his decision to drive could have resulted in significant harm to the public.

44. The Panel had regard to that part of paragraph 28 of the Policy, which reads: ‘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.’ In relation to this, the Panel was mindful of its earlier findings to the effect that the Registrant had shown significant insight, had taken appropriate steps to remediate, the risk of repetition was minimal and, as evidenced by the reference, the matter was out of character.

45. The Panel also had regard to its earlier findings that the Registrant was not impaired in respect of the personal component. There were clearly no issues with his clinical practice, as attested to in the reference, which cited the Registrant’s clinical reputation. In light of this, the Panel considered that there were no meaningful practice restrictions which could be imposed on the Registrant’s practice, and so a Conditions of Practice Order was not appropriate in his case.

46. The reality was, therefore, that the next applicable sanction to consider in the hierarchy of sanctions, if a Caution Order was not appropriate, was that of a Suspension Order.

47. In light of the above, the Panel concluded that a Suspension Order would be disproportionate and unduly punitive in the particular circumstances of this case, particularly given his well-regarded clinical reputation. It was also mindful that a restriction from practice would have a significant financial implication for the Registrant and his family.

48. In all the circumstances, therefore, the Panel determined that the appropriate and proportionate sanction in this case is a Caution Order.

49. The duration of the Caution Order will be for the period of one year. The Panel noted that the Registrant’s disqualification from driving would expire in February 2019. The Panel acknowledged that the ‘benchmark’ length of a Caution Order indicated in the Policy was that of three years. However, in light of the extensive insight, remorse and remediation demonstrated by the Registrant, together with the minimal risk of repetition, the Panel considered that it was appropriate to depart from the benchmark and impose a shorter length. The Panel was satisfied that in the particular circumstances of this case, the public interest would be met by a Caution Order for one year.

Order

The Registrar is directed to annotate the entry of Mr Edward K Cadogan in the Register with a Caution Order for a period of one year.

 

Notes

No notes available

Hearing History

History of Hearings for Mr Edward K Cadogan

Date Panel Hearing type Outcomes / Status
06/09/2018 Conduct and Competence Committee Final Hearing Caution