Mrs Beth McDowall
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Whilst employed by NHS Tayside and registered with the HCPC as an Occupational Therapist, you:
1. Were convicted, at Perth Sheriff Court on 03 October 2017, of driving a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in your breath was 151 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 22 microgrammes of alcohol in 100 millilitres of breath, contrary to the Road Traffic Act 1988, Section 5(1)(a).
2. By reason of your conviction, your fitness to practise as an Occupational Therapist is impaired.
1. The Registrant was neither present nor represented at the Hearing. The Panel was advised that a Notice of Hearing was sent to the Registrant at her registered address with the correct date, time and venue of today’s Hearing. It was sent on 14 November 2018 in respect of today’s Hearing on 1 February 2019 so the required notice was given. The Panel accepted Legal Advice. The Panel was satisfied that the Registrant was notified of the date and time of this Hearing by a letter dated 14 November 2018 by both email and post as noted in the bundle and that service had been effected in accordance with the Rules.
Proceeding in Absence
2. Mr Millin, on behalf of the HCPC, applied to the Panel to proceed in the absence of the Registrant
3. The Panel took into account the HCPTS Practice Note “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor.
4. The Panel noted that the Registrant had contacted the HCPC by email dated 6 November 2018 and stated that she did not intend to attend any future Hearing. Subsequent to this the Registrant had recently indicated she may wish to attend today’s hearing on 1 February 2019 by telephone. Several calls were made to the Registrant’s telephone number on the morning of the Hearing to facilitate her attendance by telephone. There was an initial response to the telephone call but further contacts and messages by the Hearings Officer were neither not answered nor responded.
5. Accordingly, the Panel concluded that the Registrant 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.
6. The Registrant was an Occupational Therapist employed by NHS Tayside as a manager. On 30 October 2017, the HCPC was advised that the Registrant had been charged with a drink driving offence. On 3 October 2017, the Registrant pleaded guilty and was convicted at Perth Sheriff Court of driving with excess alcohol in contravention of Section 5(1)(A) of the Road Traffic Act 1988. The circumstances that gave rise to the conviction were that the Registrant was stopped by the police as concerned members of the public had identified the Registrant was driving erratically. The Registrant was subsequently breathalysed and her blood alcohol reading was 151mgs in 100 millilitres of breath at the test taken at the police station. This exceeded the prescribed limit of 22ugs in 100 millilitres of breath. The Registrant was sentenced on the 8 November 2017 and received a sentence of four months imprisonment, disqualification from driving for 66 months and her driving licence was endorsed.
Decision on Facts
7. Mr Millin, on behalf of the HCPC submitted that the Extract of Conviction was evidence that the Panel could accept as proof of the Allegation.
8. 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.
9. 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.”
10. The Panel was provided with a copy of the Extract of Conviction from Perth Sheriff Court. The Panel noted that the Registrant had pleaded guilty and she had 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
11. 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
12. Mr Millin submitted that the Registrant’s fitness to practise is impaired on both the public and personal components. He submitted that the Registrant outlined her difficult personal circumstances and expressed some remorse and shame for her actions. Nevertheless, it demonstrated a significant and concerning failure of judgment – as the Registrant accepted that:
• She knew she had drunk alcohol, on her journey home from work
• She had a previous conviction of drink driving,
• She must have been aware of the risks of driving having consumed excess alcohol;
13. Mr Millin submitted that whilst this conduct is potentially remediable and the Registrant’s plea of guilty to the criminal charge may demonstrate some limited insight, nevertheless the Registrant has not provided details of any safeguards that would address that risk. Mr Millin submitted there is very limited up-to-date information about the Registrant’s personal circumstances.
14. In respect of the personal component Mr Millin submitted that the Registrant still needed to engage and demonstrate insight and remediation.
15. On the public component Mr Millin submitted that this was a case where the public would lose confidence in the regulator if a finding of impairment were not made. He submitted that the extremely high reading of excess alcohol was an aggravating factor. Mr Millin submitted that a finding of impairment was necessary in the public interest. He 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.
16. 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.
17. 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 in excess of six times over the prescribed limit (in Scotland). The Registrant was stopped by the police as her driving was such that concerned members of the public had contacted the police. This was a very 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 not have evidence of the Registrant’s insight although the Panel notes the Registrant has engaged with services to address the behaviour that may have given rise to the conviction. However, there is no evidence that the Registrant has addressed the underlying causes of her conduct in a way that would prevent the circumstances repeating. The Panel noted the high reading of alcohol at the time of the incident and the concern of, and risk to members of the public. There is a risk of repetition.
18. 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.’
19. 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.
20. Accordingly, the Panel finds that the Registrant’s fitness to practise is impaired by reason of her conviction.
Decision on Sanction
21. Mr Millin 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. He 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 the policy also indicates consideration of the wider public interest too.
22. Mr Millin submitted that the Panel should consider both the mitigating and the aggravating features. Given the absence of the Registrant Mr Millin drew the Panel’s attention to the mitigation factors on behalf of the Registrant. Mr Millin identified the following mitigating factors :
• The Registrant had demonstrated some insight by pleading guilty to the criminal charge;
• The conduct was not patient related;
• The Registrant had expressed some remorse;
• The Registrant stated she was no longer drinking and had co-operated with treatment;
23. The aggravating factors were that:
• The Registrant already had a conviction for driving with excess alcohol, prior to this conviction now under consideration;
• The Registrant was suspended by the Regulator in January 2014 following an earlier conviction for driving with excess alcohol on 27 February 2013.
• Members of the public were put at risk
• The alcohol reading was very high
• High risk of repetition
24. In considering what sanction, if any, to impose, the Panel took account of the submissions made by Mr Millin 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.”
25. 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 incident that led to a conviction, members of the public were concerned by the Registrant’s driving and alerted the police. The Registrant also exposed herself 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 and evidence of remorse. The Panel noted there is no clinical evidence as to the Registrant abstaining from alcohol or not. The Panel did have regard to the letter from the GP but noted that it was dated June 2018, was somewhat historic and may not reflect the current situation. The Panel was not satisfied the Registrant had demonstrated any insight or remediation. Accordingly, there is a risk of repetition.
26. 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.
27. No conditions of practice could be formulated to address the nature of the Registrant’s conduct, which does not relate to her competence as an Occupational Therapist. The Panel noted it has no information about any current or prospective employment. 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.
28. 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 due to personal circumstances;
• The Registrant had expressed limited remorse;
• The Registrant stated she was no longer drinking;
29. The aggravating factors considered were that:
• The Registrant already had a conviction for driving with excess alcohol;
• The Registrant was suspended in January 2014 following an earlier conviction for driving with excess alcohol on 27 February 2013.
• Members of the public were put at risk
• The alcohol reading was very high
• There is a high risk of repetition
30. The Panel noted that although the Registrant has participated in some treatment and expressed some remorse. She has not however demonstrated insight into her behaviour .The Panel noted the Registrant’s adverse regulatory history in respect of a similar conviction.
31. The Panel considered all the circumstances of the case was and in particular the gravity of this conviction and the earlier conviction for which she received a suspension as recently as 2014. The Panel was not satisfied that the Registrant is fit to practise as an Occupational Therapist, and that the Registrant’s behaviour is remediable. A Suspension Order would not adequately address the public interest concerns in this case. The Panel determined that a Suspension Order would not adequately protect the public and address the wider public interest. It would be insufficient to protect the public and maintain confidence in the profession and the regulatory process.
32. Therefore, having carefully considered all of the evidence before it and the powers available to it, the Panel determined that it is in the public interest, that an order striking the Registrant from the Register is the appropriate and proportionate order, to provide the required degree of public protection that is required and in the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession concerned and public confidence in the regulatory process.
ORDER: That the Registrar is directed to strike the name of Beth McDowall from the Register on the date this order comes into effect
History of Hearings for Mrs Beth McDowall
|Date||Panel||Hearing type||Outcomes / Status|
|01/02/2019||Conduct and Competence Committee||Final Hearing||Struck off|