Mrs Sharon D Gratton

Profession: Occupational therapist

Registration Number: OT64735

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 29/03/2019 End: 17:00 29/03/2019

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

Panel: Conduct and Competence Committee
Outcome: No further action

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Allegation

While registered with the Health and Care Professions Council as an Occupational Therapist:

1. On 6 November 2017, at Teesside Magistrates' Court, you were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your blood, namely not less than 234 milligrammes of alcohol in 100 millilitres of blood, exceeding the prescribed limit contrary to section 5 (1) (a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. You did not declare the conviction set out at particular 1 to the HCPC.

3. The matter as described at particular 2 amounts to misconduct.

4. By reason of your conviction and/or misconduct your fitness to practise is impaired.

 

Finding

Preliminary Matters

Service

1. The Panel was satisfied that the letter dated 6 February 2019 addressed to the Registrant at her registered address with the HCPC informing her of the date, time and location of the hearing, constituted good service of notice of hearing.  The Registrant appeared and represented herself.

HCPC Application to amend the allegation
2. Mr Millin sought to amend the allegation by deleting the reference to a further particular, being a failure to declare the conviction.  He submitted that this narrowed the allegation and was not unfair or prejudicial to the Registrant and clarified matters. She had received notice of the proposed amendments by letter of 30 November 2018.  The Registrant did not object.

3. The Panel took advice from the Legal Assessor. He advised that the Panel has discretion to allow amendments but must be mindful of the interests of justice and the need to ensure fairness to parties. It should consider whether the changes proposed are significant and whether they alter the nature or gravity of the allegation. The Panel should also be mindful of the public interest.

4. The Panel determined that the proposed amendment narrowed the scope, and did not change the nature or gravity of the allegation. The Panel concluded that it was fair and appropriate to allow the proposed amendment of the allegation. 

Application to hold hearing in private

5. Mr Millin indicated that matters relating to the private life of the Registrant would likely arise in the course of the hearing.  Having accepted the advice of the Legal Assessor, the Panel decided that it would be fair and appropriate to hear in private those parts of the hearing which relate to the Registrant’s private life, it being in the interests of justice to do so.
 
Background

6. Mr Millin referred the Panel to the terms of the allegation.  He told the Panel that the Registrant was employed as an Occupational Therapist (OT) with South Tees Hospitals NHS Foundation Trust.

7. On 7 December 2017 the HCPC received an anonymous complaint in respect of the Registrant.  The complainant enclosed an excerpt from an online news article which stated that the Registrant had been convicted of a drink-driving offence at Teesside Magistrate’s Court.  

8. It was subsequently confirmed by the court to the HCPC that the Registrant had pleaded guilty to a drink driving offence under the Road Traffic Act 1988 at her first appearance on 6 November 2017. She received a Conditional Discharge for 24 months and was disqualified from driving for 12 months.  The disqualification was to be reduced by 3 months if she completed an approved driving course.

9. The Probation service had provided a report to the court which the Magistrates considered and which made reference to the Registrant’s personal circumstances. This report was not made available to the HCPC.

10. The Registrant told the Panel that she admitted the court’s imposition of a Conditional Discharge on 6 November 2017 for drink driving.  She denied her practice was currently impaired.  

The HCPC Submission

11. Mr Millin opened the case for the HCPC.  He set out the background to the case and referred the Panel to the summary provided by the Police and to the Memorandum of Conviction.  Mr Millin told the Panel that the court had departed from the sentencing guidelines and appeared to accept the personal mitigation put forward by the Registrant. The court had imposed a Conditional Discharge with a driving disqualification. The Registrant had undertaken the recommended driving course and had the disqualification period reduced. He indicated that the HCPC did not present any further evidence or witnesses.

12. Mr Millin referred the Panel to the HCPTS Practice Note on Conviction and Caution Allegations.  He reminded the Panel that a Conditional Discharge should not be treated as a conviction. The Panel was therefore required to consider whether the conduct reflected in the Memorandum of Conviction amounted to misconduct.

13. Mr Millin referred to the case law on misconduct and submitted that the conduct fell short of proper standards and amounted to misconduct.  He referred the Panel to the HCPTS Practice Note on Finding Fitness to Practise Impaired. He accepted that the Registrant was not a risk to service users, but submitted that the Registrant’s fitness to practise was impaired and that a finding of impairment was required to maintain confidence in the profession.

The Registrant’s Evidence

14. The Registrant took the oath. She told the Panel she was deeply sorry for her actions.  She said she should not have done what she did. She was struggling with stress arising from health, family and work related problems. In addition, a change to her role at work had not become permanent as she had hoped. She told the Panel she had done the approved driving course and would never drink and drive again.  She said she was currently working as an OT and that she was well respected and dealt with complex cases. 

15. As regards to stress, the Registrant’s personal situation has since improved. She did not drink at home and in any case, was not a frequent drinker. She sewed and gardened to help her relieve stress and had found counselling useful.

16. The Registrant explained that she has now moved employment and was well supported by her employer. She said that her employer knew about these proceedings. Her line manager had intended to give her a reference and was supportive but had not remembered to provide the reference for today. The Registrant told the Panel that she had brought the profession into disrepute and did not know what made her get in the car that day.  She said it should “never have happened” and she acknowledged she could have injured her own grandchildren.

Closing Submissions

17. Mr Millin closed the case for the HCPC and invited the Panel to find the facts proved. He has submitted that the Registrant had shown she understood the impact of her actions on the public and the profession. He invited the Panel to find the incident amounts to misconduct and that the Registrant is impaired, principally on public interest grounds, but also on the personal grounds.

18. The Panel heard and accepted the advice of the Legal Assessor.  He reminded the Panel of the need to assess the evidence and to apply the balance of probabilities. He referred to the HCPTS Practice Note on Conviction and Caution Allegations and the need to consider whether the facts in particular 1 were proved and whether they amounted to misconduct. He referred to Roylance v. General Medical Council (No 2) [2000] 1 AC 311 as to misconduct and reminded the Panel to consider the HCPC Practice Note on Finding Fitness to Practise is Impaired if it finds misconduct. He referred to the guidance in the case Council for Healthcare Regulatory Excellence v Grant [2011] EWHC 927 (Admin).  He reminded the Panel to consider the risk presented by the Registrant and stressed the central importance of the public interest in its considerations.

Decision on Facts

19. The Panel carefully considered all of the evidence, the Registrant’s oral evidence and the submissions from Mr Millin. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact, as distinct from issues of impairment, the burden of proof rests on the HCPC and that the standard of proof was the civil one, the balance of probabilities.

20. The Panel considered the evidence.  It accepted the Memorandum of Conviction and the Registrant’s admission.  The Panel found particular 1 proved on the balance of probabilities.

Decision on Grounds

21. The Panel found that the conduct in breaching drink driving law was serious and placed the public at risk of harm. The Registrant was well in excess of the prescribed legal limit for blood alcohol.  

22. The Panel concluded that the conduct found proved which resulted in the Conditional Discharge, was conduct which fell well below the proper standards to be expected of an Occupational Therapist and amounts to misconduct.
 
Decision on Impairment

23. The Panel next considered whether the Registrant’s fitness to practise is currently impaired. It kept in mind the central importance of the protection of the public, the wider public interest and the guidance provided in the Grant case. The Panel was mindful of the need to safeguard public confidence both in the profession and the HCPC. 

24. The Panel found the Registrant had demonstrated well developed insight and had shown genuine remorse. It found that the Registrant was open, credible and reliable. She explained clearly in her evidence that she had attended counselling and developed coping strategies to deal with stress. She set out her difficult and stressful personal circumstances at the time and the context in which the incident occurred. The Panel accepted that evidence.

25. The Panel found that the Registrant had good insight and understands the impact of her actions on the public, the profession and her colleagues. She understands that her behaviour brought the profession into disrepute and that her actions undermined public confidence. The Registrant’s competence has not been called in to question and she is currently working in her profession and is being fully supported by her manager. The Panel concluded that the Registrant does not present a risk to the public and that the misconduct is highly unlikely to be repeated.  Accordingly, the Panel did not find the Registrant impaired on the personal aspect of impairment.

26. On the public component the Panel was mindful of the importance of public confidence in the profession and the need to uphold and declare proper standards.  It decided that a member of the profession, or the public, would be concerned if, in light of the Registrant’s actions and the misconduct found proved, there were not a finding of impairment.
 
27. In order to maintain public confidence in the profession, and in the Regulator, the Panel concluded that in the circumstances of this case it was necessary and appropriate to find that the Registrant’s fitness to practise is currently impaired on the public interest aspect of impairment.

Submissions on Sanction 

28. The Panel heard from Mr Millin.  He referred to the HCPC’s Indicative Sanctions Policy (ISP) and reminded the Panel to consider the degree of public protection required and stressed the proportionality of any sanction to be imposed.  He submitted that the Panel should consider the sanctions in ascending order.

29. Mr Millin remained neutral as regards the sanction to be imposed and made no submissions as to the appropriate sanction but reminded the Panel about the importance of maintaining the reputation of the profession. Mr Millin submitted that the Registrant’s insight remained an important consideration at this stage. 

30. Mr Millin suggested that an aggravating feature was the potential for harm to be caused to the public due to the misconduct. As to mitigating features he suggested these were; the Registrant’s early admission to the court and to the Panel; her cooperation with the Police in giving a blood sample and her engagement with the HCPC process. 
 
31. The Registrant again expressed her apologies and said she did not want to lose her employment.

32. The Panel accepted the advice of the Legal Assessor to consider the ISP. He reminded it to consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. The Panel should act proportionately and consider any aggravating and mitigating factors and keep in mind the public interest. He reminded the Panel that the primary purpose of sanction was protection of the public.

Decision on Sanction

33. The Panel accepted the advice of the Legal Assessor and reminded itself that the primary purpose of sanction is to protect the public. It was mindful of the public interest and carefully considered the guidance in the ISP.

34. The Panel had regard to its findings.  The Panel approached sanction, beginning with the least restrictive first, bearing in mind the need for proportionality and balancing the interests of the Registrant with the public interest.

35. The Panel considered that the aggravating feature was the potential risk of harm to members of the public as a result of the Registrant driving whilst under the influence of alcohol.

36. The Panel considered the mitigating features were :-

a. The Registrant positively addressing her ability to cope with stress.
b. The Registrant’s significant insight and remorse.
c. The Registrant’s attendance today and the fact she was able to take full responsibility when giving evidence to the Panel.
d. Her continuing employment as an OT where no issues or concerns have arisen with regards to her practice.

37. The Panel first considered taking no further action.  It was mindful that the Registrant continues to be subject to the Conditional Discharge imposed by the court.  The Panel was impressed with the Registrant’s insight and considered that she has fully addressed her failings.  She at no time has sought to excuse her actions and the Panel has found that her misconduct is highly unlikely to be repeated.  It has made a finding of impairment on public interest grounds alone.

38. The Panel is mindful that the purpose of a sanction is not to punish the Registrant, nor is it appropriate to punish the Registrant twice for the same offence.

39. In these circumstances the Panel has found that there is no risk to the public. It concluded that the public interest was satisfied, and the reputation of, and public confidence in, the profession was maintained by the Panel’s finding of misconduct and current impairment.
 
40. In all these circumstances the Panel concluded that the appropriate and proportionate response is to take no further action and impose no order.

41. The Panel considered a Caution Order but considered that the minimum Caution Order for one year would not be proportionate and would go further than was necessary to address the wider public interest. The conclusion of the Panel was that the imposition of a caution order would be  disproportionate  and  would  have  an  unduly  punitive  effect  on  the Registrant.

Order

No Further Action

Notes

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. 

Hearing History

History of Hearings for Mrs Sharon D Gratton

Date Panel Hearing type Outcomes / Status
29/03/2019 Conduct and Competence Committee Final Hearing No further action