Miss Danielle Eustace

Profession: Operating department practitioner

Registration Number: ODP32342

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 29/08/2019 End: 17:00 30/08/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road,

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you:

1. On 6 July 2018 at Liverpool Crown Court you were convicted of Wound / Inflicting grievous bodily harm.

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

Finding

Background

1. The Registrant is registered with the HCPC as an Operating Department Practitioner (“ODP”). At all material times the Registrant was employed by St. Helens and Knowsley NHS Trust (“the Trust”) as an ODP.

2. On 23 December 2017, the Registrant became involved in an altercation whilst socialising with friends and family, which culminated in her throwing a prosecco flute in the direction of the victim. The glass caused an injury to the victim, resulting in permanent scarring of her forehead. The Registrant was interviewed under caution in January 2018. She informed her employer of the criminal investigation and was advised to contact her Regulator if she was charged.

3. On 14 April 2018, the Registrant received a summons to attend Court on 22 May 2018 in respect of assault occasioning actual bodily harm. She self-referred to the HCPC by an email dated 16 April 2018. By the time the matter was heard in the Crown Court on 6 July 2018, the offence had been changed to wounding / inflicting grievous bodily harm as a consequence of the CCTV of the incident being reviewed.

4. In making sentencing remarks, the Judge considered references and a pre-sentencing report prepared by the Probation Service in respect of the Registrant. He identified that intoxication was an aggravating feature of the offence. He was cognisant of the likelihood of regulatory action being progressed and gave the Registrant full credit for an early guilty plea. She was convicted of the offence on 6 July 2018 and the Court imposed a community sentence for a period of two years, with 250 hours’ unpaid work to be completed within 12 months. She was also ordered to pay compensation of £750 to the victim, contribute £500 to the prosecution costs, and pay the mandatory £85 victim surcharge.

5. The Registrant was open with the Trust about the altercation and resultant criminal proceedings and, once summonsed, her duties were amended to remove her from a patient-facing role pending the conclusion of the criminal and regulatory proceedings. Her colleagues provided supportive references to the Court. Following her conviction, she was subject to disciplinary proceedings by the Trust which resulted in a finding of gross misconduct and a sanction of a first and final written warning and downgrading to a Band 5. The Registrant resigned from her post at the Trust in January 2019 and commenced employment as a Theatre Manager at a private hospital. Her new employer had also been made fully aware both of the conviction and pending regulatory proceedings.

Decision on Facts and Grounds

6. The Panel listened carefully to the evidence provided by the Registrant under Affirmation, and was grateful to her for answering its questions openly and directly. It found that she was clear and consistent in her evidence. The Panel also heard submissions from the Presenting Officer, who was also able to ask the Registrant questions.

7. The Panel received advice from the Legal Assessor, which it applied, and had regard to the bundle of documents provided to it by the HCPC in advance of the hearing, as well as the bundle presented on behalf of the Registrant at the hearing. It had regard to the HCPTS Practice Notes to which it had been referred, particularly those entitled “Finding that Fitness to Practice is ‘Impaired’” and “Conviction and Caution Allegations”.

8. The Panel noted that it was obliged to approach the consideration of an allegation sequentially, determining firstly whether the facts set out in the allegation are proved, then whether those facts amount to the statutory ground set out in the allegation and, if so, whether the Registrant’s fitness to practise is impaired.

9. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide firstly whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden. It was satisfied that the extract of conviction provided to it by the HCPC, together with the Registrant’s confirmation that she had pleaded guilty to, and been convicted of, the offence was sufficient to establish Particular 1 as proved on the balance of probability.

10. Having found the particular proved, the Panel then considered whether it amounted to a statutory ground, as set out within the Order at Article 22(1), noting this was entirely a matter for it to determine. The Panel recognised that it was required to provide a decision in sufficient detail for readers to understand why the facts do or do not amount to the ground alleged. It was aware that it could not ‘go behind’ the conviction. It was satisfied that the facts (i.e. the conviction) had been proved against the Registrant and that this did amount to a statutory ground under the Order, namely a conviction. It then moved on to consider whether the Registrant’s fitness to practice is impaired.

Decision on Impairment

11. Direct oral evidence was provided to the Panel by the Registrant under Affirmation. The Panel also had the benefit of information contained in the bundle of documents submitted on the Registrant’s behalf, which included a comprehensive witness statement from the Registrant, testimonials from colleagues, and certificates in respect of training she had undertaken.

12. The Presenting Officer asked the Panel to have regard to the Practice Note in respect of conviction and cautions when fulfilling its role of protecting the public and maintaining standards and confidence in the profession. He confirmed that the personal component of impairment related to the competence, behaviour, and insight of the Registrant, while the public component related to the need for the Regulator to protect service users, declare and uphold standards, and maintain confidence in the profession. He referred the Panel to the case of Meadow v GMC and encouraged them to look forward, not back. He also identified two of the four criteria in the leading case of Grant v NMC as being relevant, namely that the Registrant could bring the profession into disrepute or had breached a fundamental tenet of the profession. He invited the Panel to have regard to the insight of the Registrant, demonstrated by the self-referral, testimonials, and early guilty plea, and referenced the comments of the judge who sentenced the Registrant (noting that those comments were not binding on the Panel) and urged it to balance these against the public component of impairment; throwing a glass and causing injury is a serious matter for a regulated professional. He reminded the Panel that the Registrant herself had informed it that patients are entitled to trust ODPs, who they come into contact with at a vulnerable time, and that her actions may have called that trust into question.

13. In respect of the case of CRHP v GDC and Fleischmann, the Presenting Officer accepted that the Registrant had complied with the terms of the Community Order within three months and noted that the Panel may consider that this matter can be distinguished from that case. However, he submitted that the Panel should still have regard to the fact that the Registrant remains subject to an Order imposed by the criminal court, and it should consider the impact that may have on public perception of the profession. The Presenting Officer reminded the Panel of the requirements of paragraph 9.1 of the Standards of Conduct, Performance and Ethics adopted by the HCPC and submitted that the Registrant’s behaviour fall far below that expected of a registered professional. As a consequence, he submitted that a finding that her practice is not impaired may undermine public confidence in the profession and the Regulator.

14. The Registrant’s representative submitted that on the night of 22 December 2017, for a matter of seconds, the Registrant behaved in a manner which was “spectacularly out of character” and that she was a hard-working, highly valued ODP with almost a decade of unblemished working practice. She highlighted the significant consequences that had flowed from the action of the Registrant that night, including criminal charges, financial impact, and the regulatory proceedings. The Registrant did not seek to minimise the impact of her actions on the victim, but her representative submitted that the Registrant was not currently impaired on any ground. The fact that the Registrant was still subject to a Community Rehabilitation Order was a technicality, as it had served its purpose, the Registrant having discharged the payment obligations within days of being sentenced and completing the unpaid work element of the order within 3 months. She submitted that it would be perverse to penalise the Registrant for not applying to have the Order revoked. She urged the Panel to ask itself what a right-minded member of the public, in possession of all the facts about this non-work related incident, would think given the Registrant’s unblemished record, supportive testimonials, early guilty plea, and compliance with the provisions of the Community Rehabilitation Order. She reminded the Panel that, having given careful consideration to the matter, it did not have to find the public interest component made out, despite the incident being serious and highly unpleasant.

15. The Panel reminded itself that the test for impairment is expressed in the present tense, in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past. It also recognised that the purpose of the regulatory proceedings is not to punish the Registrant, and it had regard to the practice notes published by the HCPTS, entitled “Finding the Fitness to Practise is ‘Impaired’” and “Conviction and Caution Allegations”.

16. The Panel was mindful that a finding of impairment does not automatically follow a finding that the facts proved amounted to the statutory ground of conviction; it could properly conclude the offence was an isolated incident and that the chance of repetition in the future is remote. It also noted the guidance in the case of Cohen v GMC that it must be highly relevant when determining impairment that the conduct leading to the allegation is easily remediable, has been remedied, and is highly unlikely to be repeated, as well as the “critically important public policy issues” identified in that case.

17. In the Panel’s view, the Registrant demonstrated comprehensive insight into her conduct. It was satisfied that the risk of repetition was low, particularly given the Registrant’s efforts to understand her behaviour since the incident, and her reflections on the steps she could have taken to prevent the situation from escalating. It noted that she had provided testimonials from colleagues as to her competence and had discharged the requirements of the Community Rehabilitation Order within three months of it being imposed. It found her to be fully engaged in the Regulatory process, and to have been open with her employer about what had happened. The Panel had no reason to doubt that she was indeed embarrassed by her behaviour and genuinely remorseful for the same. She has provided a detailed statement which includes her reflections on the incident and outlines the steps she has taken to ensure the behaviour is not repeated. The Panel found the testimonial that a colleague had asked the Registrant to be part of the team treating one of his family members to be particularly favourable to the Registrant. She gave evidence, thereby making herself available to answer questions from both the Panel and the Presenting Officer. She had expressed remorse and apologised for her behaviour.

18. The Panel was satisfied that there was nothing more that the Registrant could have done on a personal level to remediate her conduct, and was therefore satisfied that she was not impaired on the personal component.

19. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Whilst the Registrant’s action had not caused harm to a patient, it had resulted in the victim becoming a patient, requiring treatment, and leaving her with permanent scarring of the face. The CCTV footage viewed by the Panel clearly showed the extent to which the Registrant had lost her temper and prolonged the altercation.

20. The Panel is charged with considering the degree of harm caused by the Registrant, recognising that it may have been greater or less than the harm which was intended or reasonably foreseeable and cannot be considered in isolation. It was required to assess the Registrant’s culpability for the harm given that deliberate and intentional harm is more serious than harm arising from the Registrant’s reckless disregard of risk which, in turn, is more serious than that arising from a negligent act where the harm may not have been foreseen by the registrant. By throwing a prosecco flute from close proximity, the Registrant had engaged in a deliberate act with a reckless disregard for the welfare of the victim and others in her vicinity.

21. There was no evidence before the Panel to suggest that the public needed to be protected from the professional acts of the Registrant (the conduct having occurred outside of the work environment). However, the Panel considered that members of the public and members of the profession, knowing all of the facts, would be concerned to learn that an Operating Department Practitioner had been convicted of a serious offence of violence involving a weapon. Further, it considered that her conduct breached Standard 9 the Standards of Conduct, Performance and Ethics (2016) set out by the HCPC for all registered professionals, which requires registered professionals to be honest and trustworthy, and also:

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

22. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made in these circumstances. It concluded that the Registrant’s fitness to practise is currently impaired on the public component for the reasons set out above.

Decision on Sanction

23. The Presenting Officer addressed the Panel in relation to sanction, confirming that all sanctions are available to the Panel. He referred to the Sanctions Policy issued by the HCPC and encouraged the Panel to determine the least restrictive sanction that would afford an appropriate level of protection to the public. He reminded the Panel that the sanction imposed must be proportionate and emphasised that it would not be usual for a registrant to be allowed to return to practice while serving a sentence, as set out in the case of Fleischmann.

24. The Registrant’s Representative submitted that, given the findings already made by the Panel in this matter, it would be proportionate for the Panel to impose a Caution Order on the Registrant. The Panel had already recognised the extent of the remorse, insight, and remediation of the Registrant and identified that the risk of repetition was extremely low. She believed that this sanction would adequately reflect the public interest in this case. She also submitted that there was a spectrum in terms of the length of Order that could be imposed and that this was a situation in which the Panel could properly impose a Caution Order for up to five years for the reasons it had already identified.

25. The Panel accepted the advice of the Legal Assessor. It was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and promote the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

26. The Panel had regard to the recently updated Sanctions Policy adopted by HCPC and took into account the submissions made by both parties. It identified the following aggravating factors in relation to the Registrant’s conduct:

• the offence resulted in physical injury to an individual which required treatment and left a permanent scar;
• at the time of the offence the Registrant was under the influence of alcohol;
• a weapon was used (the prosecco flute).

And the following mitigating factors:

• the Registrant self-referred to the HCPC at an early stage and has engaged fully with the regulatory proceedings;
• a guilty plea was entered at the earliest opportunity in the criminal proceedings and she has fully complied with the Order of the court;
• no other adverse findings have been recorded against the Registrant;
• the Registrant has attended conflict training to further mitigate against the risk of any repetition.

27. The Panel considered taking no action. The Sanction Policy confirms that while a finding of impairment means that there are concerns about a registrant’s current ability to practise safely and effectively, there may be instances in which taking no action is the appropriate and proportionate outcome, such as when there is no risk to the public, or to public confidence in the profession, in taking no action.

28. The Panel concluded that taking no action in this case would be inappropriate. Although it was satisfied that no sanction was required to protect the public, taking no action would not maintain public confidence in the Regulator and uphold the reputation of the profession.

29. The Panel then considered a Caution Order. The Panel noted that the Sanction Policy provides that such an Order may be appropriate where:

• the issue is isolated or relatively minor in nature;
• there is a low risk of repetition;
• the registrant shows good insight;
• the registrant has undertaken appropriate remediation.

30. The policy also states that a Caution Order should be considered where the allegation means that meaningful practice restrictions cannot be imposed, but a Suspension Order would be disproportionate.

31. The Panel was satisfied that although the incident could not be described as minor in nature, it was an isolated occurrence. The imposition of a Caution Order would not place any restriction on the Registrant’s registration. It noted that:

• the Registrant has demonstrated a sustained, secure, consistent, and comprehensive level of insight into her behaviour on 23 December 2017;
• it had identified that there was a very low risk of the behaviour being repeated given the steps taken by the Registrant (e.g. practising mindfulness and undertaking relevant training and development);
• the Registrant had demonstrated remediation; for example, by paying compensation to the victim and completing the unpaid work element of her sentence within three months;
• she has provided comprehensive and highly complimentary testimonials as to her attitude and abilities.

32. The Panel was satisfied that a Caution Order would not be inappropriate or insufficient to meet the public interest. It may therefore be an appropriate means of addressing the Registrant’s behaviour.

33. The Panel went on to consider a Conditions of Practice Order, conscious that the Sanctions Policy indicated this may be appropriate given that the Registrant’s conduct was out of character, capable of remediation, and unlikely to be repeated. However, the policy also requires that conditions must:

• be workable and reasonable, taking into account the registrant’s practice setting;
• be appropriate to remedy the concerns raised;
• mitigate any risk posed by the registrant remaining in unrestricted practice.

34. The Panel was unable to identify any conditions that could be imposed which would restore public confidence in the profession and uphold proper standards of conduct and behaviour, and was conscious that if workable conditions could not be drafted, it was expected to consider imposing a Suspension Order.

35. Careful consideration was given by the Panel to the imposition of a Suspension Order, which would send a signal to the Registrant, the profession, and the public re-affirming the standards expected of a registered Operating Department Practitioner, particularly while she was still subject to a Community Rehabilitation Order, albeit with all requirements discharged. However, the Panel considered that imposing such a sanction would be tantamount to penalising her for not applying to have the Community Order revoked once she discharged the obligations imposed upon her. It determined that the imposition of a Suspension Order would be a disproportionately severe approach to adopt given the insight, remediation, and remorse expressed by the Registrant in the criminal proceedings and to it, as well as plainly excessive in the particular circumstances of this case.

36. Therefore the Panel concluded that the appropriate sanction in the particular circumstances of this case was a Caution Order. It then considered the length of the Order, noting the minimum period was one year and the maximum five years. The expectation upon the Panel is that it should impose the minimum action required to protect public confidence in the profession and it was satisfied that imposing a Caution Order for the minimum period of one year would be sufficient to achieve this given the insight, remorse, and remediation consistently demonstrated by the Registrant.

Order

That the Registrar is directed to annotate the register entry of Ms Danielle Eustace with a caution which is to remain on the Register for a period of 1 year from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Miss Danielle Eustace

Date Panel Hearing type Outcomes / Status
29/08/2019 Conduct and Competence Committee Final Hearing Caution