Ms Anne M Mitchell-Smith

Profession: Speech and language therapist

Registration Number: SL07263

Hearing Type: Final Hearing

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

Location: Novotel Glasgow Centre, 181 Pitt Street, Glasgow, G2 4DT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

 Allegation (As amended at Final Hearing):


On 25 April 2017 at Peterhead Sheriff Court you were convicted of:


1. Driving with excess alcohol contrary to Section 5(1) (A) of the Road Traffic Act 1988.


2. By reason of your conviction as set out in paragraph 1 your fitness to practise as a Speech and Language Therapist is impaired.

 

Finding

Preliminary Matters

Service

1. The Registrant was neither present nor represented at the hearing. The Panel was satisfied that the Registrant was notified of the date and time of this hearing via a letter dated 11 July 2018 by both email and post as noted in the bundle.

2. In an email of 11 July 2018 the Registrant  acknowledged receipt of the  Notice of the Allegation which was sent  on 25 November 2017 and the Notice of the Hearing, so good service had clearly been effected.

Proceeding in absence

3. Ms Vignoles, on behalf of the HCPC, applied to the Panel to proceed in the absence of the Registrant.

4. The Panel took into account the HCPTS Practice Note “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor.

5. The Panel noted that the Registrant had indicated on the HCPTS’s  Response Pro-Forma completed by the Registrant on 23 June 2018 that she was not planning to attend or be represented at the hearing and was “keen for the hearing to go ahead as soon as possible”.

6. Accordingly, the Panel concluded that she had voluntarily absented herself from the hearing. The Registrant had not applied for an adjournment or provided any information as to why the hearing should be adjourned. The Panel balanced the Registrant’s interests with the public interest in the expeditious determination of the case and decided that no useful purpose would be served by an adjournment and that it was in the interests of justice to proceed with the hearing in the absence of the Registrant.

Application for the Hearing to be Held in Private

7. Ms Vignoles on behalf of the HCPC applied for those parts of the Hearing relating to the Registrant’s health to be heard in private. The Panel heard and accepted the advice of the Legal Assessor.

8. The Panel determined that it would hear those parts of the case in which reference was made to the Registrant’s health, in private, under Rule 10 (1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).  In making this decision, the Panel acknowledged that there is a presumption that hearings will be held in public. The decision is to protect the private life of the Registrant which the Panel considered outweighs the public interest in this instance.

Amendment of the Allegation

9. Ms Vignoles applied to amend a typographical error to amend Allegation 1 from “Road Traffic Act 1985” to read “Road Traffic Act 1988”.

10. The Panel heard and accepted the advice of the Legal Assessor. The Panel determined that the change related to the correction of a typographical error and there would be no prejudice to the Registrant in amending the allegation and granted the application.

Background

11. The Registrant was employed by NHS Grampian as a Speech & Language Therapist. 

12. On 25 October 2016, the Registrant advised the HCPC that she had been charged with a drink driving offence in Scotland. On 25 April 2017, the Registrant pleaded guilty and was convicted at Peterhead Sheriff Court of Driving with excess alcohol in contravention of Section 5(1)(A) of the Road Traffic Act 1988.  The Registrant was sentenced on the same date and received a fine of £400 in addition to being disqualified from holding a driving licence for 16 months.
 

Decision on Facts


13. Ms Vignoles, on behalf of the HCPC submitted that the Extract of Conviction was evidence that the Panel could accept as proof of the Allegation.


14. The Panel heard and accepted the advice of the Legal Assessor. It recognised that the burden of proving the facts rests on the HCPC and the standard of proof required is the civil standard.


15. The Panel had regard to Rule 10(1)(d), which, in terms of the evidence required to prove a conviction, states, “where the registrant has been convicted of a criminal offence, ……in Scotland, an extract conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based.”


16. The Panel was provided with a copy of the Extract of Conviction from Peterhead Sheriff Court. The Panel noted that in the Response Pro-Forma, the Registrant indicated that she admitted the facts alleged in the Notice of Allegation in its entirety. The Panel was therefore satisfied, to the required standard, that the facts were proved.


Decision on Grounds


17. The Panel noted the Extract of Conviction and next considered the statutory grounds. The Panel was satisfied that the statutory ground of Conviction was made out.


Decision on Impairment


18. Ms Vignoles submitted that the Registrant’s fitness to practise is impaired on both the public and personal components. She submitted that the Registrant outlined her difficult personal circumstances and repeatedly expressed her remorse and shame for her actions, and stated that this behaviour was out of character.  Nevertheless, it demonstrated a significant and concerning failure of judgment – as the Registrant admitted that:  


• She knew she had drunk a bottle of wine, and at least three glasses since dinner time (“a couple of glasses of wine over dinner and finished the bottle”);
• She had an opposition to drink driving, she said, which means she must have been aware of the risks;
• It was dark, which again increases the risks;
• It was a short drive, which means that it was entirely avoidable – this is not a case where the Registrant truly had no alternative;
• The Registrant was also driving a car leased to her in the course of her registered employment and indeed damaged the car.


19. Ms Vignoles submitted that whilst this conduct is remediable, and the Registrant had stated her strong views against driving while under the influence of alcohol, she had not furnished details of any safeguards to the Committee that would address that risk. The Panel has no up-to-date information about the Registrant’s personal circumstances, in particular whether the stressors which the Registrant says contributed to the conviction, are resolved.  Hence there is no information as to how the Registrant would cope if the circumstances were to recur.


20. Ms Vignoles submitted that a finding of impairment on the personal component would signal to the Registrant that she needed to engage with her regulator and demonstrate remediation.


21. Ms Vignoles submitted that a finding of impairment was also necessary in the public interest. She submitted it was a serious matter for a healthcare professional to have a conviction against them and that driving with excess alcohol has particular seriousness for healthcare professionals because of the risk of harm to others. She submitted that in this case, a member of the public had suffered injuries which required hospitalisation for some weeks. The Registrant was also carrying a passenger, her son, and  thereby risked his safety and wellbeing as well.


22. The Panel is aware that a finding of impairment is a matter for its professional judgment. The Panel took into account the relevant HCPTS Practice Notes relating to “Conviction and Caution Allegations” and “Finding that Fitness to Practise is ‘Impaired’” and it accepted the advice of the Legal Assessor.


23. The criminal conviction in this case concerns the Registrant driving after consuming alcohol to the extent that the amount of alcohol in her blood was three times over the prescribed limit in Scotland. The Registrant was also involved in an accident in which a pedestrian was injured and required to spend a period of time in hospital. This is a serious offence.  Apart from the fact that the Registrant pleaded guilty, the Panel is not aware of any mitigation offered on her behalf. The Panel does have evidence of some insight to the extent that she expresses remorse. However, there is no evidence that she has addressed the underlying causes of her conduct in any way. In the circumstances, there is a risk of repetition.


24. The Registrant’s conduct falls far below the required standards of her profession, demonstrates a lack of judgement and consideration for others, and is such as to bring her profession into disrepute. The Panel noted there is a breach of Standard 9.1 of the Standards of Conduct, Performance and Ethics:


‘You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.’

The Registrant has breached a fundamental tenet of the profession. The Panel has no doubt that public confidence in the profession and in the Regulator would be undermined if a finding of impairment were not made. The Panel was satisfied that this behaviour falls far below that expected of a registered health professional.


25. Accordingly, the Panel finds that the Registrant’s fitness to practise is impaired by reason of her conviction.

Decision on Sanction


26. Ms Vignoles submitted that having found the Registrant’s fitness to practise impaired the Panel may consider all the sanctions up to and including striking the Registrant’s name from the Register. She submitted that the Indicative Sanctions Policy states that in reaching their decision, the Panel should not only consider public safety and the risk to service users but also the wider public interest. 


27. Ms Vignoles submitted that the Panel should consider both the mitigating and the aggravating features. Given the absence of the Registrant Ms Vignoles drew the Panel’s attention to the mitigating factors on behalf of the Registrant:


• The Registrant stated she was under considerable pressure;
• The conduct appeared to be out of character;
• The Registrant had expressed remorse;
• The Registrant stated she was no longer drinking;
• The injured person may have had other health conditions responsible for a part of the hospitalisation
 The aggravating factors were that:
• The journey was unnecessary as a taxi could have been used;
• The Registrant had a passenger in the car;
• The Registrant caused damage to her employer’s property;
• There was disruption to the Registrant’s work and that of her colleagues;
• A member of the public sustained injuries

28. In considering what sanction, if any, to impose, the Panel took account of the submissions made by Ms Vignoles on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor and was guided by the HCPC “Indicative Sanctions Policy” and “Conviction and Caution Allegations.”


29. The Panel carefully considered, in ascending order of seriousness, all the options available by way of disposal. The Registrant has been convicted of a serious criminal offence demonstrating a serious error of judgement .In the course of the road accident a member of the public was injured and hospitalised for some weeks. The Registrant also exposed herself and her son to danger by driving whilst under the influence of excess alcohol. The Registrant has not fully engaged with these proceedings, and  has only  provided limited information about mitigation, evidence of remorse, insight or remediation. Accordingly, there is a risk of repetition.


30. In these circumstances, there can be no question of taking no further action. A Caution Order would be entirely inadequate to reflect the seriousness of the Registrant’s conduct, in light of her limited insight and in the absence of any information supporting her having remediated.


31. No Conditions of Practice could be formulated to address the nature of the Registrant’s conduct as this does not relate to her competence as a Speech and Language Therapist. The Conviction relates to the Registrant’s  failure to uphold the tenets of the profession in relation to her behaviour  in driving whilst under the influence of alcohol and demonstrating such a serious error of judgement.  The public interest requires the regulator to uphold standards in order for the public to have confidence in the profession and for the public to be protected.


32. The Panel considered whether to make a Suspension Order. The Panel took account of the aggravating and mitigating factors in this case:


• The Registrant stated she was under considerable pressure;
• The conduct appeared to be out of character;
• The Registrant had expressed remorse;
• The Registrant stated she was no longer drinking;

The aggravating factors considered were that:


• The journey was unnecessary as a taxi could have been used;
• The Registrant had a passenger in the car;
• The Registrant caused damage to her employer’s property;
• There was disruption to the Registrant’s work and that of her colleagues
• A member of the public sustained injuries


33. The Panel noted that the Registrant was beginning to develop insight  into her behaviour ,including stating that she felt remorse. The Panel also noted that there was no information of any adverse regulatory history.


34. The Panel having considered all the circumstances of the case was satisfied that whilst the Registrant is impaired and unfit to practise as a Speech and Language Therapist, her behaviour is remediable. A Suspension Order would adequately address the public interest concerns in this case.


35. It determined that a Suspension Order for a year was the proportionate sanction that would adequately protect the public and address the wider public interest. This would be sufficient to protect the public and maintain confidence in the profession and the regulatory process.


36. The Panel noted that a reviewing Panel may be assisted by:


• A Reflective Piece prepared by the Registrant. This may include any factors that have affected the Registrant’s behaviour in the past or may do so in the future and how those factors  have been or would be addressed in the future. It should also address the  impact of the Registrant’s Conviction on the reputation of the profession and the regulator


• References or testimonials from (i) her employer /colleagues at the time of the behaviour leading to the Conviction (ii) her current employer/colleagues (if applicable).


37. The Panel did also consider the imposition of a Striking Off Order but determined that in all the circumstances, that this would be disproportionate.

Order

ORDER: That the Registrar is directed to suspend the registration of Ms Anne M Mitchell-Smith for a period of 12 months from the date this order comes into effect.

Notes

A hearing was held in Glasgow on Thursday 6 September, 2018 when a Suspension Order was imposed.

Hearing History

History of Hearings for Ms Anne M Mitchell-Smith

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