Mrs Emma Louise Evans

Profession: Operating department practitioner

Registration Number: ODP33361

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 21/10/2019 End: 17:00 22/10/2019

Location: The Angel Hotel Castle Street, Cardiff, CF10 1SZ, United Kingdom

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation (as amended):

Whilst registered as an Operating Department Practitioner, you:

1. On 28 September 2017, at South West and Devon Magistrates Court, were convicted of "knowingly and wilfully making a statement false in a material particular", contrary to section 5(b) of the Perjury Act 1911, and received a six Month custodial sentence, suspended for 12 months.

2. On 12 March 2018, accepted a Simple Caution for "theft by employee”, contrary to section 1(1) and 7 of the Theft Act 1968.

3. Failed to disclose your conviction to the HCPC until 27 September 2018, even though you were convicted on 28 September 2017.

4. The matter set out at paragraph 3 amounts to misconduct.

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

Finding

Preliminary Matters

1. The Panel has been convened to undertake the final hearing of the HPCP’s Allegation against the Registrant, Mrs Emma Evans, an Operating Department Practitioner. The Registrant has attended the hearing and been represented at it.

2. At the outset of the hearing the Presenting Officer applied to amend the Allegation. The Allegation involved the contentions that the Registrant’s fitness to practise is impaired by reason of a conviction, a simple caution and misconduct. The misconduct alleged was that the Registrant did not disclose to the HCPC the conviction in a timely manner. The terms of the Allegation formulated by the Investigating Committee on 6 February 2019 clearly intended that misconduct should be alleged because Particular 4 of the referred Allegation stated, “By reason of your conviction and/or caution and/or misconduct your fitness to practise is impaired”. The Allegation did not, however, explicitly allege that the delayed disclosure of the conviction was misconduct. It was this omission the HCPC’s application to amend sought to remedy. The application to amend was not opposed by the Registrant and the Panel was satisfied that no prejudice would be caused by it. Accordingly, the Panel acceded to the application. The form of the Allegation as set out above incorporates the amendment.

3. After the Allegation was amended, the Registrant was invited to respond to it. By her Counsel the Registrant admitted Particulars 1, 2 and 3. She made no response to the contentions of misconduct or impairment of fitness to practise advanced by Particulars 4 and 5.

4. It was apparent to the Panel from pre-reading documents submitted by the Registrant, that it is was likely that there would be mention of the Registrant’s health during the course of the hearing. Accordingly, the Panel considered it appropriate to direct before the commencement of the case that it would receive any such evidence in a private part of the hearing.

Background

5. At the relevant time the Registrant was employed by Abertawe Bro Morgannwg University Health Board (“the Board”) as a Band 5 Operating Department Practitioner. She worked in the Anaesthetics and Recovery Department at the Princess of Wales Hospital. She was suspended from that employment on 7 August 2017. The Panel was informed that the suspension had been lifted in June 2019, but that the Registrant has not returned to work, her continuing absence being as a result of sick leave.

6. The detail of the HCPC’s case in relation to the conviction, the simple caution and the delayed disclosure of the conviction to the HCPC will be explained by the Panel when it describes its decisions on the facts.

Decision on Facts

7. The HCPC called one witness to give evidence before the Panel. At the time relevant to the matters being considered by the Panel, Ms BD was employed by the Board as Theatre Matron. Ms BD first became involved in early February 2017 when the Registrant spoke to her about a telephone call she said her husband had received from the Police concerning the Registrant giving the name of a relation in connection with a speeding offence. Approximately a month later, in early March 2017, there was a further conversation between Ms BD and the Registrant as a result of which Ms BD understood that the Registrant might face a charge of perverting the course of justice. An initial assessment was undertaken as required by the Board’s disciplinary process, but the matter was then left on the basis that the Registrant would update Ms BD when she received further information from the Police. The Registrant did not communicate with Ms BD again until she disclosed the conviction to her by a letter dated 26 October 2017, four weeks after the court appearance.

8. The HCPC also relied upon a witness statement made by Mr SY, a Registrations Manager employed by the HCPC. Ms Harris, on behalf of the Registrant, confirmed that the statement was not disputed. Mr SY described that the biennial HCPC renewal cycle applying to the Registrant required renewal on 30 November 2018. He stated that on 27 September 2018 the Registrant returned her re-registration document early, stating that there had been a change in her circumstances and disclosing the conviction that had been recorded against her on 28 September 2017.

9. The Registrant gave evidence before the Panel. She also submitted documents for the consideration of the Panel, including a witness statement, a reflective piece and testimonials.

The conviction.

10. The Panel accepted the Registrant’s admission of Particular 1, finding that it accorded with the evidence presented by the HCPC, in particular the Memorandum of Conviction.

11. The factual background to the conviction was that, when driving to Cornwall, the Registrant’s car was recorded exceeding a speed limit. When, as the registered keeper of the speeding car, the Registrant received the Notice of Intended Prosecution requiring information to be provided as to the driver of the speeding vehicle, the Registrant replied stating that it was her uncle who had been driving. Her uncle, who apparently lived abroad, was unaware of this act until subsequently contacted by the Police.

12. The Registrant was charged with an offence contrary to section 5(b) of the Perjury Act 1911, the particulars of the offence being that on 15 January 2017 she had knowingly and wilfully made a statement false in a material particular. When the Registrant appeared in Court on 28 September 2017 she pleaded guilty to the charge. The sentence imposed was a term of imprisonment for 26 weeks suspended for 12 months, together with some ancillary financial orders. The reasons for this sentence are explained thus on the Memorandum of Conviction, “Offence so serious. Reason for custody: undermining the criminal justice system; Implicating her brother (sic) who was entirely innocent …:

13. Particular 1 is proven.

The simple caution.

14. The Panel also accepted the Registrant’s admission of Particular 2. Again, it accorded with the HCPC’s evidence, which included the record of a simple caution administered to the Registrant on 12 March 2018.

15. The criminal offence in respect of which the simple caution was accepted by the Registrant is recorded in the document as, “Theft by employee 2017/08/04 – During 2017 at PRINCESS OF WALES HOSPITAL, BRIDGEND, stole medical equipment, of a value unknown belonging to PRINCESS OF WALES HOSPITAL, BRIDGEND”.

16. Particular 2 is proven.

Disclosing the conviction to the HCPC.

17. The undisputed evidence of Mr SY has already been summarised in paragraph 8 above, and HCPC records exhibited by Mr SY supported the narrative account contained in the witness statement. The Registrant also admitted Particular 3.

18. Particular 3 is proven.

Decision on Grounds

19. In relation to the conviction and the simple caution, the findings that were recorded against the Registrant also amount to the grounds of the relevant particulars.

20. In relation to the delayed disclosure of the conviction, there was an additional finding the Panel considered it necessary to make beyond the finding of the fact accepted by the Registrant that she did not make the disclosure to the HCPC until very nearly a year after the conviction. That additional issue was whether Ms BD informed the Registrant that she (i.e. Ms BD) would make the disclosure to the HCPC on behalf of the Registrant. The Panel accepts that Ms BD intended that the employer would inform the HCPC of the conviction (although for reasons outside Ms BD’s control that disclosure was significantly delayed), and it also accepts that in a letter dated 26 October 2017 the Registrant wrote to Ms BD stating that she had been told that Ms BD would inform not only the Board’s HR department, but also the HCPC on her behalf. The Panel also accepts that Ms BD did not reply to the Registrant stating that she would not be making the disclosure to the HCPC on her behalf. Nevertheless, on the balance of probabilities the Panel accepts the evidence of Ms BD that she did not inform the Registrant that she would be making the disclosure on her behalf.

21. The conviction was recorded in relation to a very serious criminal offence, a fact reflected in the substantial sentence imposed by the Court. The Panel considered that two elements of Standard 9 of the HCPC’s Standards of conduct, performance and ethics, which require honesty and trustworthiness, were engaged. They were 9.1, “You must make sure that your conduct justifies the public’s confidence in you and your profession”, and 9.5, “You must tell us as soon as possible if you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence”. In the judgement of the Panel the Registrant was under a clear personal obligation to inform the HCPC of the serious criminal matter that resulted in the conviction as soon as possible, and that was so even if she thought that the Board also intended to report the matter to the HCPC. The fact that in this particular case the Board’s intention to inform the HCPC was significantly delayed only serves to underline the importance of the registrant concerned doing so himself or herself personally.

22. Having carefully considered the matter, the Panel concluded that the failure not to disclose the conviction for very nearly a year was one of sufficient seriousness to be categorised as misconduct.

Decision on Impairment

23. The findings made in relation to the facts and in relation to misconduct have the consequence that it is necessary for the Panel to consider the issue of current impairment of fitness to practise in relation to each of the three elements already identified.

24. The Panel heeded the advice it received from the Legal Assessor and considered the terms of the relevant HCPTS Practice Note. Accordingly, the Panel considered the matter from the perspectives of both the personal component and the public component.

25. The Panel began by considering the issue of impairment of fitness to practise in relation to each of the three elements of the conviction, the simple caution and the misconduct. However, when the Panel considered the issue it determined that the relevant factors were common to each of those three elements, namely conscious actions demonstrating a lack of integrity. The time span from 15 January 2017 (when the false declaration leading to the conviction was made) to 27 September 2018 (when the conviction was belatedly disclosed to the HCPC) is a lengthy period, and it was during that period that the theft from the hospital occurred. The Panel accepted that the simple caution and misconduct had a direct bearing on the Registrant’s professional work, involving, respectively, theft from the place of work and a deliberate failure to comply with an obligation imposed by the professional regulator. Although the circumstances leading to the conviction had no connection to the Registrant’s work, the Panel is satisfied that it is so serious it necessarily has an impact on her professionalism.

26. In both her written material put before the Panel and in her oral evidence, the Registrant expressed remorse and sought to assure the Panel that she would not behave in a similar manner in the future. However, when the Panel scrutinised those assurances it was unable to find that there was a solid foundation for them. For example, in relation to the giving of her uncle’s name as the driver of the speeding car, the Registrant referred to having recently been prescribed a change in medication, and characterised her actions as a “mistake”. These are examples of the Registrant’s account being focused on herself, rather than demonstrating an appropriate level of objectivity. In the judgement of the Panel there was little genuine acceptance of personal responsibility for what were very serious personal failings. Furthermore, in the judgement of the Panel there was an inadequate acceptance by the Registrant of the impact of her actions on others. Accordingly, while accepting that when the breaches being considered are attitudinal in nature it will be difficult for someone to demonstrate remediation particularly in cases of serious dishonesty, the Panel found that the Registrant had not provided information on which it could be satisfied that she would behave differently in the future. Accordingly, the Panel found that there was a risk of repetition with the inevitable consequence that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

27. So far as the public component of impairment of fitness to practise is concerned, all HCPC registrants are required to be honest and trustworthy for the public to have trust in them. That is true of Operating Department Practitioners who have contact with patients when they are acutely vulnerable. The Panel is satisfied that the Registrant’s professionalism would be diminished in the view of fair-minded members of the public. Furthermore, a finding of current impairment of fitness to practise is required to declare and uphold proper professional standards and to send a message to other registrants that behaviour of the sort committed by the Registrant is unacceptable.

28. The consequence of these findings is that each of the particulars is well founded. The Panel must proceed to consider the issue of sanction.

Decision on Sanction

29. After the Panel announced its decision on the Allegation it received submissions from the parties on the issue of sanction.

30. On behalf of the HCPC, the Presenting Officer identified what she submitted were aggravating factors, namely the seriousness of the findings, and in particular the conviction, the breach of fundamental tenets of the profession and the risk of repetition. She invited the Panel to follow the guidance contained in the HCPC’s Sanctions Policy, and identified relevant sections of that document. Although the Presenting Officer submitted that a caution order and conditions of practice order would be unlikely to be considered appropriate, she did not urge the Panel to impose any particular sanction.

31. On behalf of the Registrant, Ms Harris submitted that the Registrant accepted the Panel’s findings and said that she had learned a salutary lesson from what was described as her “impulsive” behaviour. It was submitted that the Registrant wished the Panel to accept that there would be no repetition of behaviour of the sort found against her. In relation to the sanction to be imposed, Ms Harris invited the Panel to impose a Conditions of Practice Order which could require close monitoring and the maintenance of a well-kept log. She submitted that any more severe sanction than a Conditions of Practice Order would result in the Registrant becoming even more de-skilled than she has already become as a result of being away from the workplace for a considerable period.

32. The Panel approached the decision on the basis that a sanction is not to be imposed to punish a registrant against whom a finding has been made. Rather, any sanction decided upon must be the least restrictive outcome consistent with the need to protect the public, to maintain a proper degree of confidence in the registered profession and maintain proper professional standards. The Panel has had regard to the HCPC’s Sanctions Policy in reaching its decision.

33. The Panel considered the aggravating and mitigating factors. The Panel agreed with the aggravating factors identified by the Presenting Officer. So far as mitigating factors are concerned, the Panel accepted that, before the matters that were decided by the Panel, the Registrant had enjoyed an unblemished career while remaining in employment. It was also appropriate to take into account that she had experienced health problems, as also it was that the Registrant had expressed remorse.

34. In the judgement of the Panel the findings against the Panel are far too serious to result in no further action being taken or for a caution order to be imposed.

35. The Panel next considered whether it would be appropriate to impose a Conditions of Practice Order. The clear view of the Panel is that such an order would not be appropriate. As acknowledged by Ms Harris, the findings against the Registrant did not involve the quality of her performance as an Operating Department Practitioner. In the judgement of the Panel conditions of practice would not be appropriate to address what should properly be considered to be behaviour falling beyond the ambit of professional performance. The Panel also noted the terms of paragraph 108 of the Sanctions Policy which stated that conditions of practice would be less likely to be appropriate in serious cases involving dishonesty.

36. The Panel therefore next considered a Suspension Order. The conclusion of the Panel was that such an order is appropriate. Such an order is required not only because the present risk of repetition is such that the Registrant cannot be permitted at present to return to practice, but also because such an outcome is necessary to maintain public confidence.

37. The Panel tested the appropriateness of a Suspension Order by considering whether a striking-off order should be made. The Registrant has practised safely and effectively in the past, and there is a prospect that in the future she will be able to demonstrate that she can be allowed to return to practice. In these circumstances it would be disproportionately severe to remove from the Registrant the prospect of a return to practice.

38. In the judgement of the Panel the appropriate length of the Suspension Order is 12 months. An order of that length is necessary to maintain public confidence and because it will take the Registrant some time to take the steps to be able to persuade a future reviewing panel that she should be permitted to return to practice.

39. The present Panel should make clear two facts. One is that a future reviewing panel will have the power to make a striking-off order if the circumstances demand such an outcome. The other is that by making some suggestions to the Registrant as to the steps she might take to persuade a future panel that she should be return to practise, it is not intended to bind the decision that will be made on that review. However, the Panel suggests that the Registrant should consider:

• Preparing a reflective statement detailing what she has learnt and how she would seek to avoid breaching proper standards in the future.

• Presenting a Personal Development Plan outlining any steps taken in preparation for re-commencing work as an Operating Department Practitioner.

• Presenting evidence from any employer during the period of suspension attesting to her integrity and honesty whatever the nature of the employment is.

Order

Order: That the Registrar is directed to suspend the registration of Mrs Emma Louise Evans for a period of 12 months from the date this order comes into effect.

Notes

Interim Order:

Reasons for making interim order:

1. The Panel found that there was jurisdiction to make an interim order because the notice of hearing dated 30 July 2019 in respect of this hearing informed the Registrant that in the event of a Suspension Order being made, an interim order might be applied for. Furthermore, as the Registrant has been represented by Counsel, she has had the opportunity to make representations on the issue whether such an order should be made.

2. The Panel accepted the advice it received that an interim order should not be considered an automatic response to the making of a substantive order of suspension. For an interim order to be made it must be established that it is (i) necessary for protection of members of the public, (ii) otherwise in the public interest, or (iii) in the interests of the registrant. If one of those conditions is met, then the Panel must consider whether an interim conditions of practice order would address the concerns that have resulted in an interim order being required.

3. The Panel finds that an interim order is required because of the risk already identified that the Registrant will repeat behaviour of the type found by the Panel. For that reason an order is necessary for protection of members of the public and is otherwise in the public interest. The Panel considered whether interim conditions of practice would meet these concerns, but for the reasons explained in rejecting substantive conditions of practice as an appropriate sanction, it was decided that interim conditions would not be appropriate.

4. The Panel has decided that the interim order should be made for the maximum period of 18 months. If no appeal is made within the next 28 days the substantive suspension order will come into effect and the interim order will fall away. If an appeal is made then the order should continue until the appeal is finally determined, and that appeal could take 18 months.

5. 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.

Hearing History

History of Hearings for Mrs Emma Louise Evans

Date Panel Hearing type Outcomes / Status
22/10/2020 Conduct and Competence Committee Review Hearing Suspended
21/10/2019 Conduct and Competence Committee Final Hearing Suspended