Mr Gary Evans

Profession: Operating department practitioner

Registration Number: ODP36757

Interim Order: Imposed on 04 Mar 2020

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 03/03/2020 End: 17:00 04/03/2020

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered with the Health and Care Professions Council as an Operating Department
Practitioner:

1. On 27 February 2018 at Telford Magistrates Court you were convicted of:

a) On 10 February 2018 without the consent of the owner or other lawful authority, took a mechanically propelled vehicle for the use of yourself or another and after the vehicle was unlawfully taken and before it was recovered, damage of less than £5,000 was caused to the vehicle. Additional aggravating factors were crashed the car which was a write off. Contrary to
section 12A of the Theft Act 1968.

b) On 10 February 2018, you drove a motor vehicle on a road after consuming so much alcohol that the proportion of it in your breath, namely 87 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. Contrary to section 51(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. By reason of your conviction, your fitness to practise as an Operating Department
Practitioner is impaired.

Finding

Preliminary Matters

1. At the start of the hearing the Registrant provided the Panel with a number of documents. The Panel labelled the documentation as R1. The documentation consisted of the following documents:

i. Probation completion letter dated 14 November 2019;
ii. Drink driving course completion letter dated 18 February 2019;
iii. Character reference from RE – undated;
iv. Character reference from IF dated 7 November 2019;
v. Letter from AP dated 02 May 2019;
vi. Letter from APM dated 26 April 2019;
vii. Character reference from AC – undated;
viii. Character reference from JW – undated;
ix. Notification by the Registrant to the HCPC date 01 March 2018 of the outcome of the proceedings;
x. Character reference from JY dated 28 March 2018;
xi. Character reference from CJH dated 28 November 2019;
xii. Character reference from DB dated November 2019; and
xiii. An undated reflective piece from the Registrant.

Application for parts of the hearing to be heard in Private

2. Ms Shah invited the Panel to conduct the parts of the hearing in relation to the Registrant’s health and private life, in private. She submitted that conducting the hearing in private would protect the Registrant’s right to a private life.

3. Ms Shah drew the Panel’s attention to the evidence provided by the Registrant, and which was contained within the Health and Care Professions Council (HCPC) bundle, and submitted that reference would be made to that evidence during the course of the hearing.

4. Mr Lloyd, on behalf of the HCPC, did not oppose the application.

5. The Panel accepted the Legal Assessor’s legal advice and carefully considered the public interest grounds in the case being heard in public.

6. The Panel was satisfied, given the evidence regarding the Registrant’s health before it, that there was a need to protect the Registrant’s right to a private life and ordered that the parts of the hearing pertaining to the Registrant’s health should be conducted in private.

Background

7. On 16 February 2018, the Registrant self-referred his arrest and investigation by the Police to the HCPC. He confirmed that he had been charged under the Theft Act 1968 and for drink driving.

8. On 01 March 2018, the Registrant informed the HCPC of the outcome of the Court hearing. He advised that he had pleaded guilty and been convicted of taking a vehicle without consent and drink driving.

9. On 10 June 2019 a panel of the Investigating Committee determined that there was a case to answer in respect of the Registrant’s fitness to practise and referred the matter on to the Conduct and Competence Committee.

HCPC Case

10. The Presenting Officer opened and summarised the HCPC’s case.

11. The HCPC relied upon the Memorandum of conviction as proof of the facts.

12. The Memorandum records the fact that the Court hearing took place at Telford Magistrates’ Court on 27 February 2018. The Registrant was recorded as having pleaded guilty to unlawfully taking a vehicle without consent and to drink driving as set out in the Allegation. The Registrant was sentenced to a Community Order requiring him to complete 150 hours of unpaid work within a twelve-month period. He was further ordered to pay one hundred pounds compensation, the victim surcharge of 85 pounds, and prosecution costs of 135 pounds, totalling 320 pounds.  He was also disqualified from driving or holding a licence for 36 months which could be reduced by 36 weeks if by 19 April 2020 he satisfactorily completes a relevant driving course.

13. The Panel requested that Mr Lloyd provide further detail on the background of the Particulars, to the Panel. Mr Lloyd stated that he was unable to provide any further information to the Panel at this time. After further questions from the Panel and the Legal Assessor, Mr Lloyd requested a short adjournment to enable the HCPC to obtain a copy of the Police MG5 document, which would provide the background facts and context of the Registrant’s convictions.

14. Ms Shah did not object to the short adjournment request. However, Ms Shah submitted that she would object to any lengthier adjournment being sought by the HCPC, should the MG5 not be obtained during the short adjournment period. Highlighting to the Panel that her client had travelled some distance to attend the hearing and that he had also attended with witnesses and supporters.

15. The Panel accepted the Legal Assessor’s legal advice. The Panel carefully considered the HCPC’s request for a short adjournment and considered that it was in the public interest to grant such an adjournment. The Panel was of the view that on balance, given the potential value of an MG5 being obtained, and the stage of the day’s proceedings, it would be beneficial to allow the HCPC some time, over the luncheon period, to make attempts to obtain the MG5.

Application for the Registrant’s previous conviction to be heard in private

16. The Panel drew the parties’ attention to the reference in the papers to the Registrant having a previous conviction. The Panel asked the parties’ to give thought to their submissions, in respect of this aspect of the case, during the adjournment period.

17. Ms Shah submitted that any reference to the Registrant’s previous conviction should be heard in private. She further submitted that given the age of his conviction (2012), which she said was for drink driving, and the fact that Registrant would no longer be required to disclose the existence of the conviction to an employer under the Rehabilitation of Offenders Act, save for in circumstances where an ‘Enhanced’ Disclosure and Barring Service check is required of him, mention of this conviction should not be heard in the public domain so as to preserve the Registrant’s right to a private life. She accepted that the previous conviction could be of relevance to these proceedings.

18. Mr Lloyd stated that the HCPC remained neutral on Ms Shah’s submissions.

19. The Panel accepted the Legal Assessor’s legal advice.

20. The Panel had regard to the Health & Care Professions Tribunal Service (‘HCPTS’) practice note titled ‘Conducting Hearings in Private’.

21. In particular, the Panel noted that the practice note states:

 ‘a person’s private life is not subject to the ‘strict necessity’ test under Article 6(1), but nonetheless Panels do need to establish a compelling reason for deciding that a hearing should be held in private. Doing so is not justified merely to save the registrant or others from embarrassment or to conceal facts, which, on general grounds, it might be desirable to keep secret. The risk that a person’s reputation may be damaged because of a public hearing is not, of itself, sufficient reason to hear all or part of a case in private unless the Panel is satisfied that the person would suffer disproportionate damage’.

22. The Panel also noted the case of L v Law Society [2008] EWCA Civ 811, referred to in the practice note, which stated ‘refusing to hear proceedings in private to prevent the appellant’s ‘spent’ criminal convictions from being made public was held not to be a breach of Article 6. The court found that the convictions were relevant to being a member of the regulated profession and that conducting the proceedings in public was part of ensuring that public confidence is maintained’.

23. The Panel also carefully considered Ms Shah’s submissions and the public interest grounds in the Registrant’s previous conviction being heard in public.

24. Taking all of the aforementioned matters into account, the Panel was not satisfied that the Registrant had provided a compelling reason to justify his earlier criminal conviction being considered in private. The Panel was satisfied however, that, as a member of a regulated profession, the Registrant was held to a higher standard. Consequently, there is a significant public interest in these proceedings being held in public which is not outweighed by any disadvantage to the Registrant regarding a spent conviction.

Application for an adjournment of the hearing

25.  Mr Lloyd informed the Panel that, notwithstanding the short adjournment afforded to him by the Panel, the HCPC had been unable to obtain a copy of the MG5 document from the Police. Mr Lloyd made a second application for an adjournment. Submitting that there was a need for the entire proceedings to be adjourned. He further submitted:

i. the HCPC accepted that the fault lay with it in respect of not having properly obtained the documentation, from the Police, and that this should weigh in the Registrant’s favour when the Panel consider his application;
ii. the HCPC required the MG5 to establish the unknown facts and these unknown facts could not be established from the Memoranda of Conviction;
iii. the Registrant has made assertions that others were not injured, when he took the motor vehicle without consent, and the HCPC cannot agree with those facts based on the information before the Panel. There is a risk faced by the Panel, which could properly be addressed by obtaining the MG5. Without the MG5, the Panel cannot be satisfied with the facts established and may experience difficulty in assessing current impairment;
iv. if a Panel does not know what happened it cannot assess whether the Registrant has addressed the causes of his conduct or whether his conduct is likely to recur;
v. the adjournment is sought to obtain a single document (the MG5), and where the sender of the document is known to the HCPC. The adjournment is therefore for a specific purpose;
vi. the practical difficulties which might be experienced by the Registrant in attending any future hearing could be overcome by making alternative and practical arrangements such as his attendance by Skype or Video-link; and
vii. if the Panel did not accede to the HCPC request for an adjournment, the hearing was unlikely to conclude within the allotted timeframe. The Registrant could then be potentially left in the unenviable position of giving evidence to the Panel today and an MG5 produced by the HCPC at a future hearing date, should the hearing go part-heard. Further, any accounts which do not accord, between the MG5 and the Registrant’s account of events during his oral evidence, would then need to be be put to the Registrant and could lead to him giving evidence to the Panel for a second time. It would be preferable therefore for the MG5 to be obtained and considered and the Registrant provided with an opportunity to give evidence before the Panel.

26. Ms Shah opposed the HCPC application for an adjournment. She submitted:

i. the Registrant had gone to great lengths to attend the hearing today. She stated that the Registrant had taken two days off from work, along with his manager, and both were ready to give evidence to the Panel;
ii. the Registrant wished for matters to be concluded, with his career and job “on the line”;
iii. an MG5 will not be able to tell the Panel why the offence occurred as this information was only with the Registrant’s knowledge;
iv. all of the facts of the offence are contained within the charge sheet. The Panel have the damage amount, less than £5000, and the aggravating factors are outlined on the charge sheet. The Panel are aware that he crashed the car and that it was a “write-off” as a consequence of the accident;
v. the Panel are aware of the charge itself and should injury have been caused to another individual the criminal conviction would have been drafted differently;
vi. Ms Shah referred the Panel to her earlier submissions in which she advised the Panel that the Registrant had a limited recollection of events owing to the effect of alcohol he had consumed at the time. She advised that he had accepted the police account of events which were in part confirmed by CCTV footage, which he had seen. She advised that the Registrant could confirm that he had left a kebab shop and driven off in a car, belonging to a person unknown to him, that had been parked outside with the keys left in the ignition. Having driven off he had crashed the car, causing no injuries to anyone except himself, and no damage to any other vehicle.
vii. the Panel are aware that the Registrant’s conduct was not considered to be at the higher end, as he was sentenced to a Community Order by Telford Magistrates’ Court, and in her submission, the Panel knew sufficient about the facts of the convictions to deal with these proceedings;
viii. the HCPC are at “fault” in respect of this application and consequently, this was clearly a case where the adjournment should not be granted;
ix. the impact of an adjournment, on the Registrant, would be a detrimental and significant one, as he would not know how long an adjournment would be for and there would be no guarantee that his manager would afford him with time off to attend future proceedings; and
x. the Panel could make use of the time allotted today and it could hear from the Registrant and the Registrant’s manager.

27.  The Panel carefully considered the parties’ submissions and accepted the Legal Assessor’s advice. The Panel also had regard to the nature of the case and in particular, that the fault, in respect of failing to ensure the appropriate documentation was before the Panel for today’s hearing, lay entirely with the HCPC. The Panel had regard to the fairness to both of the parties and noted that the Registrant would be disadvantaged by a decision to adjourn today’s proceedings.

28. However, notwithstanding this disadvantage, the Panel noted that the Registrant was able to work and was not prevented from doing so by these proceedings. The Panel was also of the view that there was significant value in obtaining the MG5 documentation from the Police, which the Panel noted would ordinarily be before a panel in such a case. The Panel was satisfied that it required an independent account of the Registrant’s conduct on the day in question. The Panel was also satisfied that any disadvantage caused to the Registrant in adjourning today’s proceedings did not outweigh the benefit in obtaining and having the MG5 placed before it.

29. The Panel also considered its statutory objectives and formed the view that the MG5 documentation was required to provide a fuller and independent account beyond the limited information provided to the Panel thus far.

30. Consequently, the Panel determined that in all the circumstances of this case, it was fair and proportionate to adjourn today’s proceedings to a future hearing date so that the HCPC could obtain a copy of the MG5 document.

31. Prior to concluding the hearing, the Panel also directed that:

i. the HCPC serve the MG5 document on the Registrant, and his representative, no later than 28 days before the reconvened hearing date; and
ii. that any further documentation upon which the HCPC seek to rely also be served 28 days prior to the reconvened hearing date.

32. Having consulted diaries, the Panel identified 3 and 4 March 2020 as the likely dates for a two day reconvened hearing, subject to the HCPC issuing the notice of hearing.

Reconvened hearing (03 March 2020):

Preliminary matters:

Additional documentation

33. The HCPC provided the Panel with the following documentation:

i.  MG5 – Police Report relating to the 2018 incident.

34.  Ms Shah also provided the Panel with the following documentation:

i. Witness statement of Gary Evans dated 30 November 2019;
ii. an undated letter from Staffordshire University; and
iii. a letter dated 18 February 2014 from Staffordshire University.

35. The Panel labelled the Registrant’s second bundle of documents as R2.

36. After serving the 2018 MG5 document, the Panel requested that Mr Lloyd provide it with the details of the Registrant’s first drink drive conviction, which occurred in 2012. Mr Lloyd provided the details of the Registrant’s earlier offence and subsequently provided page 1 of the 2012 MG5 to the Panel, which did not include the Police summary of the Registrant’s interview.

37. At the request of the Panel, and after a short adjournment, Mr Lloyd read out to the Panel two emails and advised the Panel that the HCPC had been unable to retrieve any significant documentation relating to the Registrant’s application to register with the HCPC in 2016. It had found the Registrant’s application form, in which he had ticked the box indicating a prior conviction, but no further written declaration or reflection to support his support his application for registration.

38. Mr Lloyd closed the HCPC’s case.

39. Ms Shah called the Registrant to give evidence before the Panel. 

Registrant’s evidence

40. The Registrant informed the Panel that at the time that he committed the offences he was encountering difficult personal circumstances, owing to the end of a three-year relationship.

41. He explained that he had been out drinking with a group of friends, having left his car at home, and that he consumed a large amount of alcohol during the course of the evening, having not eaten much during the day. The Registrant informed the Panel that he did not recall leaving the pub, entering the vehicle, which was parked outside a kebab shop he had attended and in which the ignition key had been left, or taking it without the owner’s consent. He also told the Panel that he had no real recollection of the events of the evening, after leaving the pub, until the Police attended his home to arrest him in the early hours of the following morning. However, he accepted that he had committed the aforementioned acts, after viewing the CCTV evidence obtained by the Police, and that he was guilty of drink driving and taking a vehicle without the owners consent. The Registrant speculated that he may have got in the car thinking it was a taxi.

42. The Registrant told the Panel that around the time of the incident, he was regularly “binge drinking” at weekends, but that he had not let this impact on his work in any way.

43. The Registrant told the Panel that he was sorry for his behaviour and recognised that his actions could have caused harm to members of the public and himself. During Panel questioning the Registrant accepted that a member of the public could have been killed as a consequence of his actions. He also explained that he understood that his actions had impacted on the ODP profession, his colleagues, the hospital trust and the public’s trust and confidence in the profession. 

44. The Registrant gave evidence regarding his 2012 drink driving offence advising that he had been drinking with friends and was driving the friends home when he crashed the vehicle.

45. The Registrant informed the Panel that since the incident had occurred he had refrained from consuming alcohol, as he wanted to ensure that his behaviour was not repeated. He further told the Panel that he had successfully completed his community order and a drink drive rehabilitation course and continued to volunteer in the charity shop, where he had undertaken his community service, on a monthly basis.

46. During his evidence, the Registrant told the Panel that being an ODP was very important to him and that he had worked hard to achieve the necessary qualifications to qualify as an ODP. He also told the Panel that he had removed himself from a group of friends who were having a negative impact on his life, and had learnt to be more open and not to “bottle up” concerns he may have.

Witness DB

47.  Witness DB told the Panel that he was the Anaesthetic Practitioner Manager at the Robert Jones and Agnes Hunt Orthopaedic Hospital and that he had been in his current role for twelve months. He told the Panel that he is the Registrant’s line manager and sees the Registrant daily in work and that he had no concerns about the Registrant’s clinical practice.

48. DB also told the Panel that he was aware of the Registrant’s drink drive convictions, though his awareness and knowledge of the 2012 conviction was limited. He informed the Panel that he had been meeting with the Registrant on a “weekly to fortnightly basis”, as he was aware of the support required by the Registrant during the Fitness to Practise process. He stated that his conversations, with the Registrant, during this time, had been conducted in a way to “work on reflecting back and learning from his conduct and improve the trust from patients”. He described review sessions with the Registrant and stated that the Registrant was often emotional and remorseful when discussing the circumstances surrounding his conviction and that he was aware of what he had done wrong and the potential ramifications for his future career.

49. DB stated that he was aware of the final warning, which the Registrant had received from his employer in 2018. DB told the Panel that the Registrant is very passionate about his work and was remorseful about the impact of his actions and potential risk to his career. DB told the Panel that the Registrant appreciates the gravity of the situation and that it does not “look favourable” on the wider profession.

50. DB also told the Panel that the Registrant’s conduct leading up to his 2018 drink drive conviction and his conduct at work, were “worlds apart”. He stated that in his experience the Registrant’s priority is always the patient and that while most hospitals “treat patients” he was of the opinion that the Registrant was a professional who “goes above and beyond for his patients” by not only treating but “caring” for his patients. DB also told the Panel that the Registrant is always early for his shift and “regularly stays over to care for patients”. He told the Panel that the Registrant engages well with his colleagues and is a positive influence within the wider ODP team at the hospital.

51. In response to Panel questions, DB stated that the Registrant had reflected on his actions and become more open with his feelings. He told the Panel that he believed that, should a stressful or difficult situation arise in the Registrant’s life again, he hoped that he would “talk more about any situation that bothered him in the future” but also acknowledged that the situation had not been tested.

Submissions

52. Mr Lloyd, on the HCPC’s behalf, made the following submissions:

i. the Panel should have regard to the certificate of conviction and the MG5 provided by the HCPC as proof that the facts were found proved;
ii. the statutory ground had been made out;
iii. the Registrant is impaired on both the personal and public components of impairment;
iv. the Panel should ask itself whether the Registrant had demonstrated insight, remorse and remediation;
v. could the Panel be satisfied with the Registrant’s insight? Had the Registrant demonstrated an understanding of his actions, why he did what he did and what impact his actions had, not just on him, but also on members of the public;
vi. was the Panel content with the Registrant’s remediation? The Panel was aware that the Registrant had completed his community order and had successfully completed his drink-drive rehabilitation course and that he had attended two counselling sessions. Is this sufficient to address remediation?;
vii. there is a history of alcohol use, which in this case, the Registrant claims was compounded by the breakdown of his relationship. He cannot recall what happened in between leaving the pub and arriving home. Can the Panel therefore be satisfied that he fully understands what and why his actions occurred, such that he can secure against them happening again in the future?;
viii. there is a distinct similarity between his first and second convictions. The Panel has no independent evidence of the Registrant’s abstinence from alcohol and would have to rely solely on his evidence in that regard. Is the Panel satisfied that this is sufficient to mitigate against the risk of such conduct being repeated?; and
ix. the public interest necessitates a finding of impairment.

53.  Ms Shah, on behalf of the Registrant made the following submissions:

i. the facts and grounds are not in dispute;
ii. the Panel should have regard to the Registrant’s conduct throughout the proceedings. He had self-referred to the HCPC and his employer at the earliest opportunity and he had also made the HCPC aware of his first drink-drive conviction;
iii. he has gone over and above his duty to disclose information during the course of the proceedings, choosing to disclose privileged information to the HCPC;
iv. the Registrant has engaged throughout the proceedings and has not sought to hide anything from his regulator;
v. DB gave evidence to the Panel which corroborated some of the Registrant’s evidence;
vi. the Registrant has shown genuine remorse. He completed his community order in a short time and has remained abstinent, from alcohol, for two years;
vii. the previous conviction was relevant to the Panel’s consideration of the Registrant’s risk of repetition. However, the Panel should consider how he has dealt with, and responded to, each of the convictions. In response to the second drink-drive conviction, the Registrant has made a conscious effort to change his behaviour by disengaging with previous friends, stopping drinking, taking up hobbies and cycling to work;
viii. there is no dispute in respect of the Registrant’s clinical competence, he is passionate about his role and delivers high quality care for patients; and
ix. a fully informed member of the public, with knowledge of all of the facts, would not lose confidence in the Registrant. There was therefore, no reason to make a finding of impairment on either personal or public interest grounds.

Decision on Facts and Grounds

Panel’s Approach

54. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved if the Panel was satisfied on the balance of probabilities.

55. The Panel had regard to Rule 10 (1) (d) which, in terms of the evidence required to prove a conviction, states: ‘where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based’.

56. In reaching its decision, the Panel took into account all of the evidence and information presented to it and contained within the hearing bundles.

57. The Panel accepted the advice from the Legal Assessor.

Particular 1 – Found Proved
Whilst registered with the Health and Care Professions Council as an Operating Department Practitioner:
1. On 27 February 2018 at Telford Magistrates Court you were convicted of:
a) On 10 February 2018 without the consent of the owner or other lawful authority, took a mechanically propelled vehicle for the use of yourself or another and after the vehicle was unlawfully taken and before it was recovered, damage of less than £5,000 was caused to the vehicle. Additional aggravating factors were crashed the car which was a write off. Contrary to section 12A of the Theft Act 1968.
b) On 10 February 2018, you drove a motor vehicle on a road after consuming so much alcohol that the proportion of it in your breath, namely 87 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. Contrary to section 51(1)(1) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Act 1988.

58. The Panel noted that there was no dispute that Telford Magistrates’ Court convicted the Registrant and that the Registrant admitted that Particular 1, in its entirety.

59. The Panel accepted the documentary evidence, noting the Certificate of Conviction and the MG5 Police report contained within the HCPC documentary bundle. The Panel was satisfied, to the required standard, that the facts were proved.

60. The Panel next considered the statutory grounds. The Panel was satisfied that a conviction is one of the statutory grounds.

Decision on Impairment

Panel’s approach

61. The Panel is aware that a finding of impairment is a matter for the Panel’s professional judgment. The Panel took into account the relevant HCPTS Practice Notes relating to ‘Conviction and Caution Allegations’ and ‘Finding that Fitness to Practise is ‘Impaired’’ and it accepted the advice of the Legal Assessor.

Panel decision

62. The Panel recognised that the Registrant has engaged with his regulator and the fitness to practise process. The Panel commended the Registrant for attending the hearing, on more than one occasion, and for electing to give evidence before it; recognising that it was not an easy experience for him.

63. However, when considering his evidence, the Panel was of the view that the Registrant was not overly forthcoming when providing answers to the Panel. The Panel found his responses to questions had to be extracted from him and the answers provided did not demonstrate an individual who was readily reflecting on his conduct, or one who was providing reflective answers. For example, his initial answers regarding the risks of drink driving were minimal, and only after persistent Panel questioning did he acknowledge drink driving causes deaths. In addition, whilst he readily acknowledged that his behaviour brought his profession into disrepute, it was again only after persistent questioning that he acknowledged the public rely on healthcare professionals to be responsible and that his irresponsible behaviour thereby undermined public confidence in healthcare professionals. He recognised that healthcare professionals are supposed to care for people in hospital, “not put them in hospital”.

64. The Panel noted that the two 2018 criminal convictions in this case concerned the driving, taking and damage of a motor vehicle, whilst the Registrant was under the influence of alcohol and also noted that this was not the Registrant’s first drink driving conviction.

65. The Panel was of the view that the facts found proved concerning the 2018 offence were serious. It noted that the Registrant admitted consuming a large quantity of alcohol, which resulted in him being found to be more than twice the legal drink drive limit, before taking a motor vehicle that did not belong to him and attempting to drive the motor vehicle home, a considerable distance away. The Panel was particularly concerned that the Registrant crashed the motor vehicle, which resulted in the vehicle being found on its roof, and that he fled the scene of the accident. Other members of the public were in the vicinity. His actions caused the Police to expend significant time and resource in mounting a search for him, by deploying officers and a Police helicopter.

66. Whilst the Panel recognised that the Registrant had made full and frank admissions, once he had viewed the CCTV evidence at the Police station, the Panel was of the view that this action did not lessen the gravitas or impact of his actions or the potential harm that he could have caused to members of the public, or himself. It was by good fortune alone that members of the public were not injured during the incident. The victim’s car was written off.
67. The Panel carefully considered the Registrant’s evidence. Whilst the Panel accepted that the Registrant was genuinely remorseful for his actions and had demonstrated some insight for his actions, the Panel were not persuaded that the Registrant would not commit similar acts again, should he encounter stressful or difficult situations, in the future.

68. The Panel noted that the Registrant’s evidence amounted to an acceptance that he had a long established and problematic relationship with alcohol. It had led to him having two drink driving convictions, each involving him crashing the vehicle he had been driving. He gave evidence that in 2018 whilst in a police cell he recognised that alcohol was a problem for him and he gave evidence of attending his GP surgery within days to seek help. The Staffordshire Partnership Recovery letter, dated 28 March 2018, confirmed that the referral was to “look at any alcohol problems he may have”. In his witness statement the Registrant acknowledge that he had “used alcohol as a way of trying to make myself feel better”.

69. The Registrant also told the Panel that he had abstained from alcohol for a period of two years and that his actions would not be repeated. The Panel were not persuaded by the Registrant’s evidence in this regard. It noted in particular, that this was the Registrant’s second offence for drink driving and where the Registrant’s excessive alcohol consumption had, on both occasions, resulted in road traffic accident. The Panel was of the view that it did not have any independent evidence to corroborate the Registrant’s account that he had abstained from alcohol.

70. The Panel noted that the Registrant accepted, during his evidence, to keeping his private and work life separate. DB accepted during his evidence that he was not sighted on the Registrant’s private life and therefore unable to comment on the Registrant’s alcohol consumption outside of work. Consequently, the Panel found that he was unable to corroborate the Registrant’s account in this regard. The Registrant and DB each gave evidence of a single occasion shortly before Christmas 2019 when they had both socialised together with other work colleagues. However, their evidence in this regard was not wholly consistent and in any event was of an account of a single evening and upon which the Panel could place little weight.

71. The Panel had regard to the letter, dated 28 March 2018, from JY at the Shropshire Recovery Partnership. 

72. The Panel had regard to the Registrant’s evidence that he had put coping strategies in place and was “being more open” with friends and colleagues. The Panel had regard to DB’s evidence when he told the Panel that he “hoped” that the Registrant would be more open and talk to others, should a difficult situation arise. However, DB also acknowledged that, to his knowledge, this had not been tested.

73. The Panel felt that the Registrant’s action, in terms of his insight into his underlying relationship with alcohol and behaviour, was, at this time, insufficient to address its concerns regarding his future conduct.

74. Taking all of the circumstances into account, the Panel was not satisfied that there would not be a repeat of the Registrant’s conduct and there therefore remained a risk of repetition of his behaviour and giving rise to a risk of harm to others. The Panel concluded, in relation to the personal component of its decision, that the Registrant is currently impaired.
75. In relation to the public interest component, the Panel came to the conclusion that a member of the public, fully informed of the facts of the case, would conclude that the Registrant’s convictions were serious in nature and that because he had repeated his conduct on more than one occasion this would therefore support a funding of impairment in the wider public interest.

76. In the Panel’s view, the Registrant’s conduct falls far below the required standards of his profession and his actions bring his profession into disrepute; a fact which the Registrant accepted himself during his evidence. Members of the public rely on the responsibility and professionalism of ODP’s and an ODP who has two drink drive convictions and a taking without consent conviction does not instil the public’s confidence in the profession. The Panel has no doubt that public confidence in the profession, and in the HCPC as its Regulator, would be undermined if a finding of impairment were not made.

77. Furthermore, the Panel was also satisfied that a finding was required to send a clear message to the Registrant’s profession that such conduct was not acceptable. Professionals who may have a problematic relationship with alcohol and/or who are facing stressful life experiences must address these issues in a responsible and professional way, not by engaging in criminal behaviour or binge drinking that puts others at risk of harm.
78. Accordingly, the Panel finds that the Registrant’s fitness to practise is impaired on both the public and personal components.

Decision on Sanction

79. The HCPC submitted that the Panel’s role, when determining sanction, was not to punish the Registrant but to protect the public. Mr Lloyd reminded the Panel that the Registrant had completed his community order and his drink drive rehabilitation course, but that he was still subject to a drink drive ban.  He also drew the Panel’s attention to Registrant’s early guilty plea, the fact that members of the public had not been hurt or injured during the incident leading up to the Registrant’s convictions and he also drew the Panel’s attention to the relevant paragraphs of the Sanctions Policy.

80. Ms Shah, on behalf of the Registrant, submitted the following:

i. the Panel should have regard to the principle of proportionality and balance the interests of the Registrant with the public interest;
ii. the Registrant has demonstrated remorse and some insight and was not an individual who had demonstrated attitudinal issues or who was unwilling to address his conduct; and
iii. he is in a supportive environment at work and there were a number of mitigating factors in the case.

81. Ms Shah accepted, on the Registrant’s behalf, that no action was not appropriate in the circumstances of this case and submitted that the appropriate order to be imposed was a conditions of practice order.

Panel Decision

82. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Lloyd on behalf of the HCPC together with the submissions provided by Ms Shah on behalf of the Registrant, along with the positive testimonials provided.

83. The Panel also referred to the ‘Sanctions Policy’ issued by the HCPC and accepted the Legal Assessor’s advice.

84. The Panel had in mind the fact that the purpose of sanction was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate.
85. To assist it in assessing the relevant level of sanction, the Panel identified the following mitigating and aggravating factors.

Mitigating factors:

i. the Registrant pleaded guilty to the offences at the earliest opportunity;
ii. the Registrant brought the fact of the criminal proceedings to the attention of the HCPC and his employer;
iii. the Registrant has engaged with the criminal, disciplinary and regulatory processes;
iv. the Registrant has shown remorse;
v. the Registrant has provided evidence that he has taken some remedial steps
vi. albeit that the Panel found that these steps were insufficient the Panel recognised that he had taken them;
vii. made admissions to his employer and his regulator about his conduct; and
viii. he has provided a number of positive testimonials and was able to demonstrate that there were no concerns about his clinical practice.

Aggravating factors:

i. his convictions are for serious matters and his behaviour has been repeated;
ii. he was drink driving and was more than twice the legal limit;
iii. he took the vehicle without consent, wrote it off, left the vehicle and fled the scene; and
iv. his behaviour constituted a risk to members of the public.

86. As advised by the Legal Assessor, the Panel started its consideration of this matter from the bottom of the scale of possible sanctions. It considered that taking no action would not be appropriate in this instance, and neither was mediation appropriate. Neither would address the issues in this case.

87. The Panel moved on to consider a Caution Order. The Panel noted that the Registrant’s conduct was not isolated in nature, nor could it be described as a minor incident. The Panel has already determined that the risk of repetition is not low and therefore the Panel was of the view that a Caution Order would be insufficient to mark the seriousness of the matters that led to the conviction.

88. The Panel next considered a Conditions of Practice Order and determined that a Conditions of Practice Order would not address the wider public interest. This order would not send a clear enough signal to the Registrant, other professionals and the public that the Registrant’s behaviour is not acceptable and not to be tolerated. This is not a case involving a ‘simple’ drink drive conviction but a second drink driving conviction, with significant aggravating features the seriousness of which would not be reflected by a conditions of practice order.

89. The Panel next considered whether to make a Suspension Order. The Panel was of the view that such an order would provide the necessary degree of protection for the public, whilst leaving open the possibility of further remediation and improved insight.
90. The Panel also considered that a Suspension Order would reflect the seriousness of the Registrant’s behaviour and convictions and send a clear message that such conduct was not acceptable.

91. In light of all the matters highlighted in this case, the Panel considered that this was a suitable case for a period of suspension.

92. The Panel has heard no reasons as to why he cannot further address his insight in the future. Indeed there is good evidence to show that he can make further progress. The Panel heard evidence that he is making inroads into addressing his alcohol issues. A period of suspension would give the Registrant the opportunity of reassuring a future panel that he is abstinent from alcohol and has sufficient strategies and networks of support in place so that were he to be faced with future stressful situations, he would manage those situations without resorting to alcohol.

93. The Panel considered that to strike the Registrant from the Register, which is a sanction of last resort, would be disproportionate at this stage and that a lesser sanction was therefore appropriate in this case. The Panel is of the view that the Registrant is a good and talented practitioner, who is well regarded by his employer, peers and colleagues. The evidence before the Panel was that the Registrant has a very caring approach to his clinical work, which is to be valued.

94. The Panel considers that a nine-month period of suspension is appropriate, as this would allow the Registrant sufficient time to allow a series and sequence of testing of abstinence. It would also to allow for further reflection to enable him to fully remediate his impairment and would be sufficient to mark the seriousness of his convictions and ensure that the message to the Registrant, the profession and the public is clear. The Panel was also satisfied that this sanction would restore public confidence in the profession.

95. The Panel considered that a reviewing Panel would be assisted by the following:

I. the Registrant’s attendance at the review hearing;
II. verifiable and independent testing evidence of alcohol abstinence;
III. a detailed reflective piece on the impact of his offending, both by the drink driving and taking of another’s vehicle and the impact on the wider public and his profession;
IV. evidence of his on-going professional development and CPD as a ODP;
V. evidence, if any, of his engagement with his GP and/or any other treating clinician and/or counsellor in respect of either his alcohol consumption, his emotional wellbeing and his ability to deal with stress; and
VI. up to date testimonials from any employer, whether paid or unpaid.

Order

That the Registrar is directed to suspend the registration of Mr Gary Evans for a period of 9 months from the date this Order comes into effect.

Notes

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. For the same reasons given in its determination on sanction, the Panel concluded that an Interim Conditions of Practice Order would not be appropriate. It concluded that the only proportionate interim order was an Interim Suspension Order for the period of 18 months to cover any appeal period and was necessary for public protection and is otherwise in the public interest. The Panel has made a finding that the Registrant should not practise unrestricted for at least 9 months owing to his unremediated failings. The Panel has had the benefit of scrutinising the Registrant’s case for a considerable period of time and the Panel has identified that the Registrant poses a risk to the public which needs to be managed. Whilst the sanction is there to send a message to the profession and the public, it is also there to manage the risk and for those reasons. To impose no order would be inconsistent with that finding.
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 Mr Gary Evans

Date Panel Hearing type Outcomes / Status
03/03/2020 Conduct and Competence Committee Final Hearing Suspended
04/12/2019 Conduct and Competence Committee Final Hearing Adjourned part heard