Mrs Diane Elizabeth McNally

Profession: Social worker

Registration Number: SW61120

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/01/2019 End: 17:00 04/01/2019

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered as a Social Worker:

  1. On 3 October 2017, at North Cheshire Magistrates' Court, you were convicted of driving a motor vehicle after consuming so much alcohol that he proportion of it in your breath, namely 80 microgrammes of alcohol in 100 millilitres of breath exceeded the prescribed limit.
  2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary matters:

Application for the matter to be heard in private

1. Mr Dite made an application for the hearing to be heard partly in private in the event that issues were raised about the Registrant’s health or references were made to her private life. The Registrant supported the application. The Panel accepted the advice of the Legal Assessor that, although hearings are usually heard in public, the Rules allow for the hearing to be heard in private where matters pertaining to the health, or private matters, of the Registrant are to be referred to. The Panel therefore agreed that where such matters were referred to the hearing would be in private in order to protect the private life of the Registrant.

Background:

2. The Registrant is, and was at all material times, registered as a Social Worker with the HCPC.

3. The Registrant was employed as a locum Social Worker by Cheshire East Council (the Council). On 2 October 2017, the Registrant self-referred to the HCPC as she had provided a positive specimen of breath to the police on 15 September 2017 and was found to be over the legal limit to drive, due to excess alcohol consumption.

4. On 3 October 2017, the Registrant pleaded guilty to committing an offence contrary to Section 5(1) of the Road Traffic Act 1998 and Schedule 2 to the Road Traffic Offenders Act 1988, after consuming so much alcohol that the proportion in her breath was 80 micrograms in 100 millilitres, the legal limit being 35 micrograms in 100 millilitres of breath.

5. On 9 October 2017, the Registrant was sentenced to a 12 month Community Order with 20 days Rehabilitation Activity, fined £50 and disqualified from driving for 42 months.

6. The Registrant gave oral evidence to the Panel and admitted the conviction. In her written representations, and oral evidence, she stated that, on the day in question, she had a few hours out with a friend. She had a couple of “lagers” but did not think she would be over the limit. They had planned on having a meal but were so busy chatting that they did not have time to eat anything. She said that on driving home her satellite navigation was playing up and she ended up getting lost. She admitted that she may have swerved at the last minute to take a turning, but denied colliding with bushes and driving erratically, as had been reported by a member of the public. She said she was horrified to find that she was over the limit when seen by the police and maintained that she had had very little to drink and so was surprised to be over the limit. She said she felt able to drive. In her oral evidence she maintained this stance, notwithstanding the high reading of over twice the legal limit.

7. The Registrant said she had learnt from the whole experience and realised she cannot have one drink if she was going to drive. She said she rarely drinks alcohol now. She said the incident occurred at the weekend and did not impact upon her ability to work. She therefore denied that the conviction impacted upon her fitness to practise as a Social Worker.

8. The Registrant provided details of a Drink Drive Course she had booked in 2018, but which has been re-scheduled to February 2019. She said she had successfully completed the Community Order component of her sentence.

9. The Registrant said that she had returned to work as a Social Worker. She said she loved her work and it was what had kept her going.

Decision on Facts:

10. In reaching its decisions on the facts the Panel took into account the memorandum of conviction which, the Legal Assessor advised, is conclusive proof of the conviction. The Registrant also admitted the facts. Accordingly, the Panel found the facts detailed in Allegation 1 proved.

Decision on Statutory Ground:

11. The Panel next considered the statutory ground. Because this is a conviction case and the Panel had been provided with the memorandum of conviction, the Panel found the statutory ground to be made out.

Impairment:

12. Having found the statutory ground of conviction to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that conviction. In doing so it took into account the submissions made by Mr Dite, the evidence provided by the Registrant and all the documents provided. The Panel accepted the advice of the Legal Assessor.

13. The Panel had been advised by the Legal Assessor that an important factor when considering current impairment is whether the conduct which led to the allegation is remediable, that it has been remedied and that it is highly unlikely to be repeated. The Panel was informed that this was the second occasion on which the Registrant had been convicted of driving a car whilst under the influence of alcohol. On 5 September 2011, Aylesbury Magistrates’ Court disqualified the Registrant from driving for 18 months. This followed her arrest for driving a motor vehicle after consuming so much alcohol that the proportion of it in her breath was 79 micrograms of alcohol in 100 millilitres of breath. On that occasion the matter was reported to the General Social Care Council (the GSCC), the regulatory body that oversaw Social Workers at that time. The GSCC decided that the conviction did not affect her “current suitability to be registered on the Social Care Register”, but reminded the Registrant of her responsibility to “not behave in a way, in work or outside work, which would call into question [her] suitability to work in social care services.”

14. The Panel was of the view that the conduct identified in this case is capable of remedy. It was concerned, however, to hear that this was the second occasion on which the Registrant had been convicted of drink driving and that on both occasions the Registrant was more than twice over the legal limit for driving. The Panel was also concerned about the Registrant’s stance that on both occasions she had not had much to drink despite those high readings, suggesting she was continuing to underplay her responsibility and therefore her culpability. By so doing the Registrant was demonstrating limited insight. She spoke more about the impact the convictions had had upon her own life rather than the potential impact and risk to others. She did, however, when pressed by the Panel, say “you have to think about what may have happened and that you could kill someone if you drink and drive.”

15. The Panel took into account all the Registrant had said about the significant personal issues that had been affecting her over the past four years and the improved position she now finds herself in and was reassured by the reference to alternative coping mechanisms now employed. However, the Panel remained concerned at the level of the Registrant’s insight, particularly about the seriousness of her behaviour and the impact drink driving can have on others.

16. This is not a case where there has been any suggestion that the Registrant’s behaviour has impacted directly upon her work and there is no evidence or suggestion of Service Users being put at risk of harm by her actions. Indeed, apart from a short period, she has continued to work as a Social Worker since the conviction in 2017 and her abilities as a Social Worker have not been called into question. The Panel does not, therefore, consider the Registrant’s fitness to practise to be impaired on public protection grounds.

17. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made. This is particularly so given the previous conviction in 2011 for the same offence and for a similar reading of more than twice the legal limit. The Panel considered that a member of the public would be concerned if the Regulator took no action in a case where a Social Worker had twice been convicted of driving with excess alcohol and had limited insight into the impact of that behaviour on other road users and also upon the profession as a whole.

18. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired on public interest grounds alone and that the allegation of impairment is well founded.

Sanction

19. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Dite and those made by the Registrant, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Indicative Sanctions Policy (“ISP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

20. The Panel considered the main aggravating factor in this case to be: this was the second conviction for a drink drive offence.

21. The Panel considered the following mitigating factors; no previous disciplinary matters in a career spanning 16 years; some, albeit not fully developed, insight; significant personal and family issues, including being the sole carer of a dependent young person; remorse; an improved, changed attitude towards alcohol; her conduct was not linked to her role as a Social Worker and her abilities as a Social Worker had not been called into question.

22. In light of the serious nature of the conviction and the fact that this was the second such conviction, the Panel did not consider this was an appropriate case to take no further action.

23. The Panel next considered whether a Caution Order would adequately reflect the seriousness of the conviction. The Panel’s role as indicated by the ISP was not to punish the Registrant twice for the same offence, but to protect the public and maintain high standards among registrants and public confidence in the profession. Although the facts of the case did not precisely fit within the parameters of the guidance on Caution Orders in the ISP, the Panel was of the view, particularly given the significant mitigation, that a Caution Order was the proportionate sanction in this case. Such an Order would adequately mark the seriousness of the behaviour and send out a message to the public and the profession that behaviour of this sort was not to be tolerated.

24. This was not a case where Conditions of Practice would be appropriate since there were no clinical matters that needed to be addressed and no public safety concerns. Furthermore, the Panel considered it would be disproportionate to suspend the Registrant when there have been no concerns raised about her ability as a Social Worker and there are no issues of public protection.

25. The Panel therefore decided to make a Caution Order for a period of 3 years to mark the seriousness of the conviction and to satisfy the public interest.

26. That concludes the hearing for today.

Order

ORDER: That the Registrar is directed to annotate the register entry of Diane Elizabeth McNally with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mrs Diane Elizabeth McNally

Date Panel Hearing type Outcomes / Status
04/01/2019 Conduct and Competence Committee Final Hearing Caution