Mr Akkara L Jose

Profession: Occupational therapist

Registration Number: OT75272

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/02/2020 End: 17:00 10/02/2020

Location: Radisson Blu Hotel, Edinburgh City Centre, 80 High Street, Royal Mile, Edinburgh, Lothian, EH1 1TH

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

“Whilst registered as an Occupational Therapist and employed by Norfolk and Suffolk NHS Foundation Trust, you;

1. On or around 21 July 2018 accepted a Simple Caution for possession of a controlled drug of Class A.

2. By reason of your Caution, your fitness to practice is impaired. “

Finding

Preliminary matters

HCPC Application to amend the allegation

1. Mr Bridges applied to amend the allegation by correcting the error in the alleged date of the simple caution from 15 July 2018 to 21 July 2018. He submitted that this corrected an error and was not unfair or prejudicial to the Registrant. The Registrant had received notice of the proposed amendments by letter of 11 December 2019 and did not object. Ms McPhee confirmed there was no objection.

2. The Panel took advice from the Legal Assessor who advised that the Panel has discretion to allow amendments and must be mindful of the interests of justice, the need to ensure fairness to parties and to be mindful of the public interest.

3. The Panel determined that the proposed amendment was fair and appropriate as it simply corrected a typographical error as to the date of the simple caution.  The Registrant did not object. The Panel granted the application to amend.

4. The Registrant admitted the entire allegation and accepted that his fitness to practice was consequently impaired.

Background and Submissions for the HCPC

5. Mr Bridges referred the Panel to the terms of the allegation.  He told the Panel that the Registrant was a registered Occupational Therapist employed at the time of the allegation by Norfolk and Suffolk NHS Foundation Trust. 

6. The Registrant received a Simple Caution for the offence of being in possession of a controlled Class A drug namely MDMA. The drugs had been found on the Registrant at a nightclub on 15 July 2018 when he was searched. He was arrested by the police and he told them that he was new to the area and was looking to make friends when he had bought the drug.

7. The Registrant admitted the offence and on 21 July 2018 he accepted a Simple Caution from the police. He signed and agreed the terms of the Simple Caution which was before the Panel. Mr Bridges referred the Panel to the Crime Report of the offence and explained that the Registrant had fully cooperated with the police and was interviewed and accepted the Caution on 21 July 2018, fully admitting the offence of having possession of a Class A drug contrary to the Misuse of Drugs Act 1971.

8. Mr Bridges told the Panel that the Registrant informed the HCPC of the Simple Caution on 12 February 2019.  His employer confirmed that the Registrant had informed his line manager at the first opportunity. The Registrant is currently completing a PhD at Queen Margaret University, Edinburgh and had also informed his course supervisors.

9. Mr Bridges referred the Panel to the HCPTS Practice Note on Conviction and Caution Allegations.  He also referred the Panel to the HCPTS Practice Note on Finding Fitness to Practice Impaired. Mr Bridges closed the case for the HCPC and invited the Panel to find the facts proved and to find the Registrant’s fitness to practise impaired.

The Registrant’s Evidence

10. The Registrant took the oath. He told the Panel he had been a registered OT since 2017. He said he is currently part of a PhD programme at Queen Margaret University.  He told the Panel about the incident and said he made a mistake in buying the MDMA.  He said he cooperated with the police and accepted the Simple Caution. He said he had immediately told his line manager and he was given a verbal warning. He disclosed the incident to the HCPC when he renewed his registration. He said he has been open with his PhD supervisor and his team and they were fully aware of the HCPC proceedings.

11. The Registrant said he now had to disclose the matter when applying for jobs and he said he regrets his actions.  The caution has had a significant impact on his employment situation and as a foreign student he said it had also complicated his visa situation and that was a source of stress. The Registrant said he had delayed telling the HCPC following advice from his employers to raise it at the point of renewing his registration. He apologised and explained his understanding of the need to uphold the reputation of the profession and the impact on patients. He said he would never repeat what he did and said it was a “massive mistake”.

Closing Submissions for the Registrant

12. Ms McPhee submitted that the Registrant has admitted the allegation, and that his fitness to practice was impaired. He had shown remorse and he would not repeat his conduct.

13. 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 reminded the Panel to consider the HCPC Practice Note on Finding Fitness to Practise is Impaired. He referred to the guidance in the case CHRE v Grant [2011] EWHC 927 (Admin).  He reminded the Panel to consider insight, remediation and the risk of repetition presented by the Registrant. He stressed the central importance of the public interest in its considerations and the need to maintain public confidence in the profession.

Decision

14. The Panel carefully considered all of the evidence, the Registrant’s oral evidence and the submissions from Mr Bridges and Ms McPhee. 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.

Finding of Fact 

15. The Panel considered and accepted the documentation setting out the record of the offence, the simple caution and the Registrant’s admission. The Simple Caution clearly sets out the details of the offence and the nature of the caution accepted by the Registrant. The Panel found allegation 1 proved that on 21 July 2018 the Registrant accepted a Simple Caution for possession of a controlled drug of Class A.

Finding on Impairment

16. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by reason of the Caution. 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 and the need to declare and uphold proper standards of conduct. 

17. The Panel found the Registrant open, credible and reliable. He demonstrated good insight into his conduct and showed genuine remorse and regret. He admitted the offence from the outset and accepted he had done wrong.  He told his line manager immediately and he explained to the Panel how he had dealt with the issue with both his line managers and his PhD supervisors.  The Panel accepted his explanation of the delay in advising the HCPC, which he said had resulted from advice given to him by a senior manager at his employer at the time being to raise the issue when he renewed his HCPC registration.  The Panel found no evidence that this delay was deliberate or malicious. The Registrant told the Panel about the impact on himself and on the wider profession and he explained clearly the impact of his conduct on the reputation of the profession and on patients.

18.  The Panel concluded that the Registrant has taken all reasonable steps to deal with his conduct and that he has remediated so far as possible.  It found that he presents a very low risk of repetition.  The Panel concluded that the Registrant’s fitness to practise is not currently impaired on the personal component. 

19. In terms of the public component the Panel was mindful of the importance of maintaining public confidence in the profession and the need to uphold and declare proper standards.  It decided that a member of the profession, and the public, would rightly be concerned if, in light of the Registrant’s conduct and the Simple Caution, there were not a finding of impairment.  Possessing a class A drug is a serious matter and not to make a finding of impairment would risk undermining the reputation of, and confidence in the profession.  It would also send the wrong message to the profession about what was acceptable conduct.

20. The Panel found that the Registrant had breached HCPC Standards of conduct, performance and ethics, standards 9.1 and 9.5:-

“9.1 You must   make   sure that your conduct justifies the public’s trust and confidence in you and your profession”
“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”

21. The Panel found no evidence that the delay in advising the HCPC was deliberate. It 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 component of impairment.

Submissions on Sanction

22. The Panel heard from Mr Bridges.  He referred to the HCPC’s Sanctions Policy and he reminded the Panel to consider the degree of public protection required. Mr Bridges remained neutral as regards the sanction to be imposed and made no further submissions.

23. Ms McPhee submitted that it was appropriate to take no further action.  She said the Registrant had disclosed the Caution to all with whom he worked and he had already suffered shame, but nonetheless he had been open and reflective. The Simple Caution had also made his visa position more complicated. She submitted that the Registrant had learned from the incident and there was no need to restrict his practice. If that was not acceptable, Ms McPhee submitted that a Caution of 1 year was sufficient, but in any event for no longer than 3 years at most to reflect the period of the Simple Caution. She said that the Registrant has had no previous issues with his practice, and had admitted his conduct from the outset. 

24. The Panel accepted the advice of the Legal Assessor to consider the HCPC Sanctions Policy. 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

25. 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 Sanctions Policy.

26. 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.

27. The Panel considered that the aggravating feature was the fact that this conduct involved a Class A drug.

28. The Panel considered the mitigating features were:-.

a. The Registrant’s good insight and genuine remorse.
b. This was an isolated incident.
c. Early admissions to the police and his employer.
d. The Registrant was well supported by his employer and had been accepted on to a PhD course after disclosing the Simple Caution.
e. Positive character references from friends and colleagues that made it evident that they are aware of the incident.
f. The Registrant was junior with one year post graduation experience.

29. The Panel first considered taking no further action.  It was mindful that the Registrant accepted a Simple Caution for possession of a Class A drug.  It concluded that in these circumstances, taking no action would not be sufficient or proportionate. It would fail to send the appropriate message to the public or to the profession as to what conduct was acceptable and would fail to maintain confidence in the profession and the regulator. 

30. The Panel next considered a Caution Order.  The Panel is mindful of its earlier findings. The Registrant has shown good insight and has remediated his practice. The incident was isolated and the Panel has found that there is a low risk of repetition. The Panel has found impairment on public interest grounds only. There was no evidence of any risk of harm to patients.  The Panel found that there was no need to restrict the Registrant’s practice.

31. In these circumstances the Panel concluded that it was sufficient and proportionate to impose a Caution Order on the Registrant.  This will serve to properly mark the conduct and send a message to the profession and the public that this conduct is unacceptable.

32. In all the circumstances of this case, the Panel considered that a Caution Order of 2 years was an appropriate and proportionate period to sufficiently mark the conduct.  The Panel was mindful that the Simple Caution in respect of the offence expires in July 2021. The Panel considered that a longer period would be punitive and it was mindful that the purpose of a Sanction Order is not to punish the Registrant, nor is it appropriate to punish the Registrant twice for the same offence.

33. The Panel considered a Conditions of Practice Order.  It concluded in light of its findings that such an order would be disproportionate and inappropriate.  Further, the risks and issues identified would not be suitable and are not of a nature to be meaningfully dealt with by a Conditions of Practice Order.

Order

That the Registrar is directed to annotate the Register entry of Mr Akkara L Jose with a caution which is to remain on the Register for a period of two years from the date this Order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Akkara L Jose

Date Panel Hearing type Outcomes / Status
10/02/2020 Conduct and Competence Committee Final Hearing Caution