Mr Elliot J Clarke
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1. The Panel had before it information that the notice of today’s hearing was sent by email on 4 June 2020 to the Registrant’s email address on the HCPC’s register. The Notice of Hearing made clear that today’s hearing would take place by video conference. The Panel was aware that Rule 3 of the HCPC Conduct and Competence Committee Procedure Rules 2003 strictly requires that the Notice of Hearing is sent to the Registrant’s postal address. However, in light of the published HCPC Guidance, following a change of policy, no notices are currently being sent by post due to the HCPTS offices being closed due to the Covid-19 pandemic, and a number of hearings are being held remotely. The Panel was satisfied that in the unprecedented circumstances, it could interpret “address” to mean email address. The Panel therefore found that service was properly effected.
Proceeding in Absence
2. Ms Ktisti, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. Ms Ktisti referred to an email received from the Registrant dated 7 July 2020 which was itself a reply to an email dated 6 July 2020 from the Hearings Officer in which she reminded him that the hearing will take place on today’s date. In his email of 7 July 2020 the Registrant thanked the Panel for hearing his early review, and made clear that he cannot attend today due to family reasons. Ms Ktisti reminded the Panel that the Registrant has not asked for an adjournment and submitted that he has voluntarily waived his right to attend. Ms Ktisti submitted that it would not be unfair to proceed given the Registrant’s position expressed in his email as well as the submissions contained in that email.
3. The Panel had regard to the Registrant’s email dated 7 July 2020.
4. The Panel took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”, and accepted the advice of the Legal Assessor.
5. The Panel noted that no application to adjourn had been made by the Registrant and there was no indication given by the Registrant that he would attend on any future date. Therefore adjourning and re-listing this hearing would serve no useful purpose. The Panel was of the view that the Registrant had an expectation that the Panel would proceed today to hear his application for an early review. The Panel was of the view that there may be a potential disadvantage to him in proceeding without him. However, this was on his request, and he had provided some written submissions for the Panel to take into account.
6. The Panel was mindful that it has a discretion to hold an early review pursuant to Article 30(2) of the Health Professions Order 2001 (2001 Order). In the circumstances the Panel was of the view that it was fair and in the interests of justice to proceed.
7. 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.
8. 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.
9. 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.
10. 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.
11. On 27 August 2019 a substantive hearing panel found the Registrant to be impaired on both the personal and public components and imposed a Suspension Order for a period of 12 months.
12. Ms Ktisti submitted that the Registrant’s submissions in his email dated 7 July 2020, while demonstrating some level of insight, are lacking in depth and that there is no supporting evidence to demonstrate his remediation. Ms Ktisti submitted that the email indicates a rushed approach and without substantive evidence to demonstrate that he has remediated the concerns, the Registrant remains impaired on the basis of the personal and public components. Ms Ktisti submitted that the Panel should confirm the Suspension Order.
13. The Panel took into account the Registrant’s submissions in his email dated 7 July 2020, as well as an email dated 29 March 2020 in which he requested an early review. The Panel took into account the Registrant’s expression of remorse and regret and his taking of full responsibility of his actions. The Panel noted that the Registrant seeks to ensure public confidence in him.
14. The Panel was of the view that the Registrant has demonstrated some insight in his email dated 7 July 2020. However, this is expressed in a cursory and brief way without any real and meaningful reflection on the impact of his conviction on the confidence of the public and the profession. With the Registrant being absent, the Panel has been unable to test his assertions by hearing from him in oral evidence.
15. The Panel was of the view that it would have been helped by detailed information as to the circumstances surrounding, and reasons for, the Registrant’s offending, whether those reasons still exist as issues in the Registrant’s life, and evidence of what steps has been taken address those issues. At this stage of these regulatory proceedings, there is an onus on the Registrant to provide evidence demonstrating that he has made progress to address the findings made against him at the previous hearing. In addition, the Panel took into account that the 2017 conviction was the third received by the Registrant for driving with excess alcohol.
16. The Panel noted that the Registrant states that he has been taking steps to keep his professional knowledge and skills up to date. However, there is no independent record of this or any reference given from the Radiographer with whom he says he has been in contact, to give some detail of his efforts.
17. The Panel was of the view that the 2017 conviction was serious, and that it raised issues which led to concerns regarding the Registrant’s judgement which led him to drive while having consumed excess alcohol. His good judgment is what patients and the public would expect of him as a registered professional. The lack of evidence of sufficient insight or remediation did not address such concerns.
18. The Panel did take into account in the Registrant’s favour that there is no indication that there has been any further similar conviction since 2017. However, in light of the lack of evidence of sufficient insight or remediation, the Panel was of the view that there was a real risk of repetition of the behaviour which led to the conviction.
19. The Panel therefore decided that in light of the above factors, the Registrant’s fitness to practise remains impaired in respect of the personal component.
20. The Panel was also of the view that in light of the seriousness of the conviction, and its circumstances, and the lack of sufficient evidence of insight and remediation, the need to uphold proper professional standards, and to maintain public confidence in the profession, would be undermined if a finding of impairment were not made.
21. The Panel therefore found that the Registrant’s fitness to practise remains impaired in respect of the personal and public components.
22. The Panel next went on to consider sanction, and took into account the Sanctions Policy (SP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant. Any sanction must be proportionate, so that it is the least restrictive order necessary to protect the public interest.
23. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s conviction, it would be inappropriate to take no action. It would be insufficient to maintain public confidence and uphold the reputation of the profession. The Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest for the same reasons.
24. The Panel next considered a Conditions of Practice Order. However, the Panel decided that conditions would be insufficient to meet the public interest concerns in this case in light of the seriousness of the conviction, and the lack of evidence of sufficient insight and remediation.
25. The Panel next considered a Suspension Order and considered para. 121 of the SP which states as follows
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
26. The Registrant has shown only limited insight. There remains a real risk of repetition of the conduct which led to the conviction.
27. However, he has expressed remorse and regret, he wishes to uphold the public confidence in him, and has a desire to return to the profession. There has also been no further conviction for driving with excess alcohol since the last hearing. In the circumstances, the Panel decided that it would be proportionate and appropriate to confirm the Suspension Order. For the same reasons, the Panel decided that a Striking Off Order would be disproportionate and punitive at this time.
28. In coming to this decision on Sanction, the Panel took into account the issue of proportionality, as well as the fact that confirming the Suspension Order will prevent the Registrant from practising and may have a financial and reputational impact on him. However, the Panel was of the view that the need to uphold the wider public interest outweighed his interests in this regard.
29. The Panel further concluded that in the absence of the Registrant who appears to be unrepresented and unadvised with regard to these proceedings, it would be unfair for the Panel to use its powers to extend the current order. The HCPC has not sought an extension of the current order at this time.
30. Accordingly, the Panel confirmed that it should confirm the existing Suspension Order of 12 months which is due to expire on 24 September 2020. The order will be subject to a mandatory review hearing before its expiry.
31. The Panel was of the view that a future review panel would be assisted by the following:
i. the Registrant’s attendance;
ii. a written reflection dealing with the Registrant’s insight into his previous offending behaviour, the circumstances of his offending, its impact on the public, patients and the profession, and what steps he has taken to ensure it will not be repeated;
iii. any references or testimonials from previous professional colleagues dealing with his previous conduct while carrying out work as a Radiographer;
iv. any references or testimonials concerning any other more recent work, whether paid or unpaid.
The Panel decided to confirm the current Suspension Order pursuant to Article 30(2) and (4) of the 2001 Order.
No notes available