Mr Elliot J Clarke
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Whilst registered with the Health and Care Professions Council as a Radiographer:
1. On 31 October 2017 at Cardiff and the Vale of Glamorgan Magistrates Court you were convicted of:
On 30 September 2017 at McDonalds Restaurants Ltd, Pencoed Business Park, Pencoed, Bridgend drove a motor vehicle on a road namely m4 motorway between junction 33 and 35, after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit contrary to section 5(1) (a) of Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
2. By reason of your conviction, your fitness to practise as a Radiographer is impaired.
1. The Panel heard that Notice in respect of this hearing was sent by first class post to the Registrant’s registered address on 21 May 2019 in accordance with rules 3 and 6 of the Conduct and Competence Procedure Rules 2003.
2. The Panel heard and accepted the advice of the Legal Assessor and determined that the Notice had been served in accordance with the Rules.
Proceeding in the absence of the Registrant
3. The Registrant did not attend the final hearing. The Panel first considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. The Panel concluded it was in the public interest to do so, having considered the HCPTS Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Asessor’s advice, and having considered the guidance in R v Jones  1 AC 1 HL and GMC v Adeogba and Visvardis  EWCA Civ 162. This decision was for the following reasons:
• The Panel is satisfied that the Registrant had notice of the hearing and that the rules on service had been complied with;
• The Registrant has not sought an adjournment;
• There is no evidence before the Panel that the Registrant would be likely to attend any future hearing;
• The Panel determined that the Registrant had chosen not to attend the hearing and voluntarily waived his right to appear;
• There is a general public interest in the expeditious disposal of this matter as the events date back to 2017.
4. The Registrant is a Radiographer. He was employed by Abertawe Bro Morgannwg University Health Board in the Cardiac Catheter Lab at Morriston Hospital and had been working there since 2002.
5. On 30 September 2017 the Registrant was arrested for driving a motor vehicle with excess alcohol. On the 31 October 2017 the Registrant pleaded guilty to driving with excess alcohol and was sentenced to 3 months immediate custody, disqualified from driving for 49 months and 21 days and ordered to pay a victim surcharge and costs.
6. The Registrant self-referred his conduct to the HCPC in an email dated 23 October 2017 in which he set out the circumstances leading to the offending and expressed regret and remorse.
7. Further enquiries by the HCPC revealed that the Registrant had been convicted on two previous occasions of driving with excess alcohol on 25 July 2003 and 22 December 2014. The Registrant self-referred his 2014 conviction to the HCPC in January 2015.
Decision on Facts
Particular 1 Proved
8. The Panel has seen the certified copy of the Memorandum of Entry in the Register of the Cardiff and Vale of Glamorgan Magistrates Court dated 31 October 2017, which it has taken as conclusive proof of facts and grounds.
Decision on Impairment
9. The Panel then had to consider whether the Registrant’s fitness to practise is currently impaired, in light of the Registrant’s conviction, having regard to the HCPTS Practice Note ‘Finding that Fitness to Practise is Impaired’ and the Practice Note on “Conviction and Caution Allegations’. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offence.
10. The Panel is mindful of the forward looking test for impairment and the need to take account of public protection in its broadest sense, including whether the Registrant’s actions bring the professional concerned into disrepute or may undermine public confidence in the profession.
11. The Panel heard submissions on the issue of impairment from the HCPC. It was submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired on both the public and private components of impairment, based on the following factors:
(a) The high level of alcohol in the Registrant’s breath at the time of the offence;
(b) The fact that the Registrant has been convicted on 3 separate occasions for this offence;
(c) The Registrant has not attended the final hearing. The Panel has therefore seen only very limited evidence of insight and remediation, and there remains a risk of repetition.
12. The Panel, after reviewing all the evidence in this case, and the advice from the Legal Assessor, has concluded that the Registrant’s fitness to practise was impaired both at the time of the offence and remains currently impaired, after considering both the personal and public components.
13. In reaching its decision, the Panel regarded the offence as being serious. There was evidence in the Memorandum of Conviction that the Registrant posed a risk to the public at the time of the offence. His driving was described as “shocking” and demonstrated an “unacceptable standard of driving, aggravated by passengers in vehicle.” This was behaviour which fell significantly short of that which the public is entitled to expect from a Radiographer.
14. Although the Registrant pleaded guilty in his referral email to the HCPC, he sought to minimise the seriousness of his behaviour by comparing it to violence or sexual misconduct, rather than focusing on a full admission of his responsibility for his actions.
15. Although the Registrant in his email apologised and expressed remorse for his actions the Panel had no further detailed evidence about any steps the Registrant had taken to address the circumstances that led to the offence. The Panel noted that the Registrant’s offending behaviour appeared to be escalating with repeat convictions for driving with excess alcohol.
16. The Registrant has not engaged in these proceedings and the Panel has not seen any significant evidence of insight or remediation. The Panel concluded that there remained a very high risk of repetition.
17. The Panel’s overall conclusion, in relation to the personal component of impairment, was that the Registrant’s current fitness to practise is impaired, having regard to the seriousness of the offence and the lack of evidence of insight and/or remediation.
18. In relation to the public component, it is clear that the public’s perceptions of the Registrant’s actions would have been negative and they have harmed the reputation of both his employer and the profession as a whole.
19. The Panel concluded that the Registrant had breached a fundamental tenet of the profession of being a Radiographer and has brought the profession into dispute. In concluding that the public component of impairment is clearly established, the Panel also had regard to the need to uphold the proper standards of behaviour. The Panel concluded that confidence in the profession and the regulatory process would be undermined if there was no finding of impairment, given the seriousness of the offence.
Decision on Sanction
20. The Panel has heard submissions on sanction on behalf of the HCPC. It has paid regard to the HCPC’s Indicative Sanctions Policy and has accepted the advice of the Legal Assessor. The Panel had particular regard to the principle of proportionality and the need to strike a careful balance between the protection of the public and the rights of the Registrant.
21. The Panel has also reminded itself that the purpose of fitness to practise proceedings is not to punish registrants but to protect the public. The primary function of any sanction is to address public safety. However, Panels should also have regard to wider public interest and this includes the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process.
22. The Panel has had regard to the aggravating and mitigating circumstances in this case. It determined that the aggravating features are:
(a) The seriousness of the criminal offence of which the Registrant was convicted and, in particular, the risk caused to others whilst driving with excess alcohol;
(b) The fact that this was the Registrant’s third conviction for driving with excess alcohol;
(c) The lack of evidence of reflection, insight or remediation;
(d) The lack of engagement in these proceedings;
(e) The Registrant has not taken on board the Learning Point imposed by a panel of the Investigating Committee in 2015 for driving with excess alcohol.
23. The Panel has concluded that the mitigating features are:
(a) The Registrant pleaded guilty in the criminal case, which this hearing concerns;
(b) The Registrant appears to have had a previous unblemished employment record and there are no clinical concerns;
(c) There is some evidence (albeit limited) that the Registrant has expressed remorse and evidence of personal shame and embarrassment, at his offending behaviour.
24. In light of the above factors the Panel determined that, given the nature of the Registrant’s conviction, that to take no action, make a Caution Order or a Conditions of Practice Order, would not be in the public interest, and would not retain public confidence in the regulatory process or have the necessary deterrent effect on other registrants. The Panel further concluded that public confidence in the profession would be undermined by imposing any of these sanctions, given the seriousness of the conviction.
25. In addition, the Panel was unable to identify any suitable or workable conditions which could be imposed, in light of the Registrant’s offending behaviour and his lack of engagement in these proceedings.
26. The Panel next considered whether to make a Suspension Order, and concluded that this was an appropriate sanction to both protect the public and to address the wider public interest concerns which the Panel identified. The Panel considered that the incident was serious but concluded that the identified failings are potentially capable of being remediated in the future.
27. The Panel further determined that the Suspension Order should be imposed for a period of 12 months, in light of the Registrant’s limited insight and the extent to which he had fallen short of appropriate professional standards. The Panel considered that the maximum period of suspension was appropriate to mark the seriousness of the behaviour.
28. Having arrived at an appropriate and necessary sanction, the Panel concluded that to impose the more restrictive sanction of a Striking Off Order would be unnecessarily punitive and disproportionate at this stage. The Panel noted that striking off should be reserved for cases where there is no other way to protect the public and at this time the Panel determined that an adequate level of public protection could be achieved by the lesser sanction of a Suspension Order.
29. Whilst in no way seeking to bind any future review Panel, this Panel anticipates that the following matters are likely to be of assistance to any future reviewing Panel:
(a) The Registrant’s attendance at the hearing and engagement with the regulatory process;
(b) A written document/reflective piece of writing regarding the Registrant’s insight into his previous offending behaviour and its impact on the profession and on the public and how a repeat of any such behaviour might be avoided in the future;
(c) References and testimonials from any paid or voluntary work that the Registrant has undertaken.
ORDER: That the Registrar is directed to suspend the registration of Mr Elliot J Clarke for a period of 12 months from the date this order comes into effect.
This Order will be reviewed by the Committee before its expiry.
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.
European Alert Mechanism
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.
You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.
Proceeding with the application in the Registrant’s absence
1. Mr Bridges made an application for an interim order to be made in the absence of the Registrant.
2. The Panel decided that it was appropriate to consider the HCPC’s application in the Registrant’s absence because he had been informed in the Notice of Hearing sent to him on 21 May 2019, that such an application might be made, and he did not respond. Furthermore, there are no additional factors which would justify deviating from the Panel’s decision to proceed in the absence of the Registrant at the outset of this hearing. In these circumstances, the Panel was satisfied that (i) the Registrant had voluntarily chosen not to participate in these proceedings, (ii) no useful purpose would be served by adjourning consideration of the HCPC’s application and (iii) as a substantive order has been imposed, there is public interest in ensuring that an interim order application is considered as expeditiously as possible.
3. The Panel accepted the advice of the Legal Assessor.
Decision on Interim Order
4. The HCPC made an application for an immediate Interim Suspension Order on the grounds of public protection and the wider public interest.
5. The Panel was mindful that when a substantive sanction is imposed, a Registrant’s entitlement to practise is unrestricted whilst their appeal rights against the substantive sanction remain outstanding. The Panel concluded that in view of its determination that a substantive Suspension Order should be imposed, it would not be appropriate for the Registrant to return to practice unrestricted given the lack of insight and remediation and the ongoing risk of repetition. Accordingly, the Panel determined that the Registrant’s registration should be suspended on an interim basis. An Interim Suspension Order is necessary to protect the public and to uphold trust and confidence in the profession and the regulatory process.
6. The Panel took the view that the wider public interest far outweighs the Registrant’s personal and professional interests and that an interim order is proportionate because of the risks posed in the interim period.
7. The Panel concluded that the appropriate length of the Interim Suspension Order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event that the Registrant submits a Notice of Appeal within the 28-day period.
8. Therefore, the Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.