Miss Jeannie Hawthorn

Profession: Operating department practitioner

Registration Number: ODP23481

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 28/09/2020 End: 17:00 28/09/2020

Location: Virtual Hearing

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Operating Department Practitioner (ODP23481) your fitness to practise is impaired by reason of conviction. In that:

1. On 23 May 2019 you were convicted at Stockport Magistrates’ Court of:


(a) driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 103 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offences Act 1988.


(b) resisting a constable in the execution of his duty.


2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary Matters:


Service and Proceeding in Absence

1. The Panel was satisfied that the letter dated 24 June 2020 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.


2. The Panel considered Ms Sheridan’s application to proceed in the Registrant’s absence. She reminded the Panel it had found good service. The Registrant had responded by returning the HCPC response to hearing form on 3 July 2020 to advise that she would not be attending the hearing. Ms Sheridan submitted that there was a public interest in the case proceeding and submitted that the Registrant had voluntarily absented herself.


3. The Panel is aware that its discretion to proceed in absence is one which should be exercised with care. The Legal Assessor referred the Panel to GMC v Adeogba [2016] EWCA Civ 162 which makes clear that the first question the Panel should ask is whether all reasonable efforts have been taken to serve the Registrant with notice. Thereafter, if the Panel is satisfied about notice, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware, with fairness to the Registrant being a prime consideration, but with fairness to the HCPC and the interests of the public also taken into account.


4. The Panel determined to proceed in the Registrant’s absence as it is satisfied that it is appropriate to do so. In reaching this decision, the Panel has noted there has been no request for an adjournment and it noted that in the HCPC response form the Registrant had clearly stated that she would not be attending. It balanced fairness to the Registrant with fairness to the HCPC and the public interest and concluded that the Registrant has voluntarily absented herself. In these circumstances the Panel is satisfied that it is fair and appropriate to proceed in the Registrant’s absence.


5. Ms Sheridan reminded the Panel that the Registrant has disclosed in the HCPC response to hearing form that she had a number of previous convictions for driving under the influence of alcohol. Ms Sheridan requested that in fairness to the Registrant the Panel should put that information from its mind whilst considering the fact and grounds aspects of the hearing. The Panel confirmed that it would do so.


Background:


6. On 24 May 2019, Ms Hawthorn, the Registrant, contacted the HCPC by email to notify them that she had been convicted of driving whilst under the influence of alcohol and resisting arrest on 23 May 2019. On 19 June 2019 the Registrant sent an update email to the HCPC confirming that she had been sentenced.


7. On 17 September 2018 the Registrant pleaded not guilty to the offences of driving whilst under the influence of alcohol and resisting arrest following an incident that took place on 23 August 2018. The criminal proceedings took place on 23 May 2019 and the Registrant was found guilty of both offences.


8. The Registrant was sentenced on 17 June 2019 to a custodial sentence of 12 weeks suspended for 12 months. The Registrant was also disqualified from driving for 52 months. The Registrant also received a fine of £250 in respect of the offence of resisting arrest and ordered to pay the Crown Prosecution Service (CPS) costs of £1,330.


HCPC Submissions on facts and grounds


9. Ms Sheridan opened the case for the HCPC. Ms Sheridan set out the background to the case and referred the Panel to the summary provided by the Police, the Police statements and the Memorandum of Conviction. She reminded the Panel that the legal limit for blood alcohol was 35 mgs and that the Registrant’s blood alcohol level had been 103mgs.


10. Ms Sheridan referred the Panel to the HCPTS Practice Note on Conviction and Caution Allegations. She reminded the Panel that the Memorandum of Conviction was proof of the conviction. Ms Sheridan invited the Panel to find the allegation proved.


Decision on Facts and Grounds:


11. 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 which made clear that a criminal conviction was proved by production of a Memorandum of Conviction from the court.


12. The Panel considered the evidence and the submissions from Ms Sheridan. It was mindful 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.


13. The Panel accepted the Memorandum of Conviction and noted the Registrant’s admission to her conviction in the HCPC response to hearing form. The Panel accordingly found particular 1 proved. It also found the ground, being that of conviction, established.
HCPC Submissions on Impairment of Fitness to practise


14. Ms Sheridan advised the Panel with regard to an earlier FTP finding by the HPC on 24 August 2009 in respect of the Registrant as a result of a conviction for driving under the influence of alcohol in 2008. This resulted in a 4 year driving ban. She was also asked to pay a fine and pay costs. The FTP Panel in 2009 had imposed a two year Caution Order.


15. Ms Sheridan submitted that with regard to the current conviction, the Registrant had been almost three times over the blood alcohol limit and had been driving at night without lights. She submitted this showed a serious element of recklessness. She said that the Registrant had breached Standard 9.1 of the HCPC Standards of conduct, performance and ethics (2016).


16. Ms Sheridan referred the Panel to the Registrant’s response where she may be seen to have expressed some, limited remorse. She referred the Panel to the case law and to the guidance in the Grant case and stressed the importance of the public interest and confidence in the profession. She submitted that the Registrant had shown no insight or remediation and that her fitness to practice was impaired on both the personal and public aspects of impairment.


Decision on Impairment:


17. The Legal Assessor referred the Panel to the HCPTS Practice Note on Finding Fitness to Practise is Impaired. He also referred the Panel to the authoritative guidance in CHRE v Grant [2011] EWHC 927 (Admin) and reminded the Panel to consider the issues of insight, remediation and the risk of repetition presented by the Registrant. He stressed the central importance of the public interest in all its deliberations.


18. The Panel 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.


19. The Panel noted that the Registrant had pleaded not guilty and had set out a version of events of the incident that did not appear to concur with the Police statements. She had also resisted arrest.


20. The Panel considered that the Registrant’s conduct and conviction are serious. Coupled with the earlier and similar FTP finding in 2009, the Panel concluded that there is, and continues to be, a high risk of repetition of her conduct. There is nothing before the Panel to show that the Registrant has any insight into her behaviour and her relationship with alcohol. Despite some engagement with the FTP process, the Registrant has provided nothing to indicate that she has taken any steps to recognise and deal with that serious issue, or that she has taken any steps to remediate her practise. The Panel found that Registrant has demonstrated a serious and persistent lack of insight.


21. Other than a brief apology, the Panel noted that the Registrant stated in her HCPC response form that she did want to be “humiliated further” and sought removal from the Register. The Registrant has demonstrated no recognition of the seriousness or the recklessness of her conduct, and the serious risk at which she placed members of the public. She has failed to demonstrate any recognition of the impact of her behaviour on colleagues and on the public perception of, and confidence in, the profession. The Panel decided that the Registrant is currently impaired on the personal aspect of impairment.


22. On the public aspect of impairment, the Panel was mindful of the importance of upholding public confidence in the profession and the need to declare proper standards. It decided that a member of the profession, or the public, would be very concerned if, in light of the Registrant’s actions, there was not a finding of impairment. Her conduct is likely to bring the profession into disrepute and to undermine confidence in it.


23. The Panel decided that in order to maintain public confidence in the profession, and in the Regulator that, in the circumstances of this serious case, it was necessary and appropriate to find that the Registrant’s fitness to practise is also currently impaired on the public interest aspect of impairment.


HCPC Submissions on Sanction


24. The Panel heard from Ms Sheridan. She referred to the HCPC’s Sanctions Policy (SP) and reminded the Panel to consider the degree of public protection required. She stressed the importance of proportionality of any sanction and of public confidence in the profession. She submitted that the Panel should consider the sanctions in ascending order.


25. Ms Sheridan suggested that the aggravating features were the finding of a repetition of concerns and the lack of insight and remediation. Ms Sheridan referred the Panel to the guidance in the SP. She remained neutral as regards the appropriate sanction to impose but advised the Panel that the Registrant was currently subject to an interim suspension order.


26. The Panel accepted the advice of the Legal Assessor to consider the SP. 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:


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


28. The Panel considered that the aggravating features were the recklessness of the behaviour, the lack of insight and the risk of harm to members of the public as a result of driving whilst under the influence of alcohol. In addition, there is a previous conviction for a similar offence resulting in an FTP finding imposing a Caution Order.


29. The Panel considered the mitigating features were that the Registrant did express some regret for her behaviour in her response form.


30. The Panel first considered taking no further action or a Caution Order. This is a serious conviction, a risk of repetition has been found and there is no evidence of insight. The Panel decided that a Caution Order would not be sufficient to protect the public and would not be appropriate or proportionate in the circumstances of this case. It would also fail to maintain confidence in the profession.


31. The Panel next considered a Conditions of Practice Order. The Panel has found a lack of insight and a risk of repetition. The Panel was mindful that conditions must protect the public and be realistic, workable and verifiable. The Registrant's behaviour is not in respect of her professional role or competence. It is of a gravity and nature that does not lend itself to control and direction by conditions of practice and the Panel was not able to formulate appropriate and realistic conditions of practice. Further, the Panel decided that conditions of practice would not be sufficient to maintain public confidence in the profession and uphold proper standards.


32. The Panel next considered a Suspension Order. The Registrant has demonstrated a persistent lack of insight and there is no evidence of remediation. The Panel has found there is a risk of repetition and she has failed to demonstrate any willingness or ability to remediate her practice. Indeed, she has asked to be removed from the Register. Her convictions in the present case and in the previous 2009 FTP case indicate a pattern of serious behaviour which is deliberate and sustained and which placed the public at risk of harm. Accordingly, the Panel concluded that in all the circumstances of this case that a Suspension Order would not be a sufficient or proportionate sanction.


33. The Panel decided that a Striking Off Order was the appropriate and proportionate sanction. The Registrant’s conduct has resulted in a serious criminal conviction, similar to the conviction in 2008. The Registrant’s conduct was both reckless and deliberate and she lacks insight. She has repeated her behaviour and has given no indication of any willingness to resolve or remediate matters.


34. The Panel concluded therefore that a Striking Off Order was the appropriate and proportionate sanction.

Order

That the Registrar is directed to strike the name of Miss Jeannie Hawthorn from the Register on the date this Order comes into effect.

Notes

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 Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

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.

Interim Order Application:

1. In light of its findings on Sanction, the Panel next considered an application by Ms Sheridan for an Interim Suspension Order to cover the appeal period before the Sanction becomes operative.


2. The Panel accepted the advice of the Legal Assessor who referred it to the HCPTS Practice Note on Interim Orders and on Proceedings in Absence. He reminded the Panel that it should once again consider proceeding in absence. An Interim Order must be necessary to protect the public or be otherwise in the public interest. The Panel must act proportionately and balance the interests of the Registrant with the need to protect the public.


3. The Panel decided that it was appropriate to proceed with this application in the absence of the Registrant and noted that the Registrant had been given notice of the possibility of an Interim Order application in the Notice of Hearing dated 24 June 2020. It decided that it would be wholly incompatible with its earlier findings and with the Striking Off sanction imposed, to conclude that an Interim Suspension Order was not necessary for protection of the public or otherwise in the public interest. Accordingly, the Panel concluded that an Interim Suspension Order should be imposed on both public protection and public interest grounds. It determined that it is appropriate that the Interim Suspension Order be imposed for a period of 18 months to cover the appeal period. When the appeal period expires this Interim Order will come to an end unless there has been an application to appeal. If there is no appeal the Striking Off Order shall apply when the appeal period expires.


Interim Suspension Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health 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 Miss Jeannie Hawthorn

Date Panel Hearing type Outcomes / Status
28/09/2020 Conduct and Competence Committee Final Hearing Struck off