Miss Yvonne M Hall
Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via firstname.lastname@example.org or +44 (0)808 164 3084 if you require any further information.
Allegations as found proven at the Final Hearing
Whilst employed at Wirral Teaching Hospitals NHS Foundation Trust in the capacity of Chief Biomedical Scientist:
1) On 9th November 2017 you:
a) Consumed alcohol at work
b) Were under the influence of alcohol whilst at work
2) On 10th November 2017 you consumed alcohol at work and were under the influence of alcohol at work
3) The matters set out in paragraphs 1 – 2 amount to misconduct
4) By reason of your misconduct, your fitness to practise is impaired
1. Under Rules 3, 6(1), 6(2) and 13 (1)(a) of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), the Panel determined that there has been good service of the Notice of Hearing. The Notice of Hearing was dated 2 April 2020. It was sent in letter form to the address of the Registrant in the HCPC register. It was posted by first class post and it stated today’s date of hearing and that it would be conducted on paper with submissions requested from the Registrant and the HCPC.
2. Thus, it complied with the 28 day notice period. Furthermore, the 2 April 2020 letter also stated that this was to be a Substantive Order Review hearing on the papers. Under the HCPC’s emergency provisions due to the outbreak of the Covid 19 virus, and the customs and practices set by the HCPC, under this unusual set of circumstances, the Panel determined that the contents of the 2 April 2020 letter of Notice of Hearing gave all the details of this hearing that were required to effect good service. It lacked the time of the hearing, but the Panel considered that this omission did not negate the efficacy of service of the Notice of Hearing, as it was clear in the letter that the hearing was on the papers and that element requires no time aspect, as documentation that a Registrant wishes to send would have been sent on an earlier date, well before today’s date.
3. In addition, although the HCPC has the custom and practice of using emails only in the present Covid 19 crisis period, that has not been embodied in any of its procedural Rules and, hence, postal communication, on its own, remains valid for proving good service. However, no accompanying email was sent to the Registrant as the HCPC did not have a current email address and attempts at using her previous email address had not been successful at reaching her.
4. Finally, the Panel determined that, as all Registrants have the duty to provide the HCPC with any change of address, the HCPC could do no more than to send the Notice letter to the last known registered address of the Registrant, and that has been proved by the un-redacted documentation in the Panel’s bundle.
Proceeding in Absence:
5. In reaching its decision, the Panel took into consideration the written submission of the HCPC in its first skeleton argument for the hearing to proceed in the Registrant’s absence and the contents of Rule 11 of the Rules. The Panel also noted the contents of the HCPC’s Practice Note on Proceeding in a Registrant’s absence. It accepted the Legal Assessor’s advice and noted the case law on this matter.
6. The Panel took account of the fact that the Registrant has had good service, that the Registrant has not requested an adjournment, that this is a mandatory Review and that the Registrant has continued not to engage with this process. The Panel determined that if an adjournment was to be granted, this would allow the original Order to expire on 14 May 2020. This would mean that the Registrant would be able to return to unrestricted practice from that date. In light of the seriousness of the allegations and the findings of the original Panel, the fact that the Registrant was declared to be impaired on the last occasion on 16 April 2019, that there has been no contact from her in the intervening period or indeed at all since late 2017 and that this is a statutory mandatory Review, the Panel considered that the public would be put at risk and the public’s confidence in the regulatory process would be undermined if an (unrequested) adjournment were to be granted.
7. In the Panel’s judgement, the Regulator’s interests, representing as it does the public interest, outweighs the Registrant’s interests in being entitled to be participate in this hearing and to have a fair hearing. The Panel concluded that, as there has been good service and she has not provided any written submission or other documentation, the paper hearing should proceed in the Registrant’s absence of any written submission by her. In any event, the Panel determined that the Registrant’s interests can be properly protected by the independent Legal Assessor and by the vigilance of the Panel.
8. The Panel concluded that the Registrant’s right to a private and family life under European and national laws can be met by the application of Rule 10 (1)(a) of the Rules. This provides for the hearing to be in private, either wholly or partly, if there is to be any reference to the Registrant’s private and family life. This would include written references to her health condition and to her personal life, in these unusual circumstances of a paper hearing. Thus, whenever required so as to protect the Registrant right to confidentiality, the Panel’s decision will be written using a private method, under Rule 10(1)(a) of the Rules.
9. The Registrant had been a Chief Biomedical Scientist (BMS) at the Wirral Teaching Hospitals Foundation Trust (“the Trust”). Her role in 2017 had been as a Quality Manager.
10. It was alleged that, whilst at work on 9 November 2017, the Registrant’s colleague JG heard the Registrant unscrew a metal lid and saw the Registrant pouring liquid into a tea cup from a bottle covered by a plastic bag and on two occasions drinking from the cup. When the Registrant left the room JG checked the plastic bag and found an almost empty vodka bottle. JG reported the incident to management.
11. AQ, an Improvement Manager with the Trust and a registered Nurse with the NMC, met the Registrant on 10 November 2017 to discuss the incident. AQ had reported that the Registrant smelt of alcohol but the Registrant had claimed she had consumed alcohol the previous night. The Registrant had admitted to bringing alcohol to work on 9 November 2017 to consume later at home. She had initially denied drinking alcohol at work.
12. AQ told the original panel that when the Registrant entered the room for the interview on 10 November 2017 there was a strong smell of alcohol. AQ said that when the Registrant spoke to AQ the smell of alcohol was also noticeable. AQ said the Registrant’s eyes were glazed, and that she was unkempt in appearance and was shaking, however she spoke steadily and her speech was not slurred and AQ said the Registrant was probably nervous.
13. AQ also told the original panel that the Registrant had admitted at that time that she had brought alcohol into the Trust premises. AQ said she was concerned as to why the Registrant had not left the alcohol in the car if it was, as the Registrant claimed, for consumption that evening. AQ told the original panel that on that day she had decided to suspend the Registrant after a lengthy discussion with her about the stresses in the Registrant’s home life. The Registrant was shortly thereafter referred to Occupational Health by AQ.
14. On 10 November 2017 a further two plastic bottles of clear liquid had been found on the Registrant’s desk. AQ smelt one of the bottles and confirmed that she could smell alcohol. At the same interview with AQ that day, the Registrant denied the existence of these bottles or that she had consumed alcohol at work. AQ suspended the Registrant from work on 10 November 2017.
15. AQ told the original panel that she had been concerned about the Registrant, who was a quality assurance manager and had been concerned to hear that the Registrant had driven in to work that morning and intended to drive home, given the smell of alcohol from her. AQ said that she was also concerned about the impact of the Registrant’s behaviour on colleagues who had reported the matter. In addition, AQ told the original panel that she had spoken to a colleague, the Registrant’s previous manager. He had told her that the Registrant had previously had alcohol related issues and concerns had been raised about her behaviour in the work place at that time. AQ had not been not clear when those concerns were raised, but it was at least a year before this incident. AQ said it had not been Trust policy to breathalyse staff.
16. HW, the Allied Health Professionals Manager at the Trust, thereafter conducted an investigation in to the incidents for the Trust. On 30 November 2017 the Registrant was interviewed by HW. The Registrant admitted bringing alcohol into work on 9 November 2017 and having consumed two alcoholic drinks at her desk on 9 November 2017. HW told the original panel that the Registrant had denied drinking alcohol at work on the 10 November 2017 or having alcohol in the two plastic bottles at her desk. HW said that although the Registrant had been willing to say she had consumed alcohol on 9 November 2017, she had not been willing to say how much and she appeared to understand that what she had done was wrong.
17. HW referred the original panel to the Trust policy on Substance Misuse and said it was generally known at the Trust that one must not consume alcohol at work or be under the influence of alcohol whilst at work. Subsequent to that interview the Registrant acknowledged that she may have had alcohol in her bag on 10 November 2017.
Misconduct finding of the original Panel:
18. In the judgement of the original panel, the facts found proved were sufficiently serious to amount to misconduct; consuming alcohol at work and being under the influence of alcohol at work put patients at risk, even indirectly. It was a serious breach of the standards of conduct and behaviour expected of a Biomedical Scientist and brought the profession into disrepute. The original panel found that the Registrant’s behaviour fell far below what would be proper in the circumstances and would be considered deplorable by fellow professionals.
Impairment finding of the original Panel:
19. On the personal component of impairment of fitness to practice, the original panel determined that it had very little information from the Registrant to demonstrate remorse, insight or remediation as it had no then-current information from her. The original panel considered that the conduct found proved was remediable, but that there was no evidence that the Registrant had taken steps to do so and there was no evidence before the original panel that the Registrant was keeping her skills and practice up to date. There had been no engagement by the Registrant with the HCPC and she had not provided any evidence of her then-current circumstances to the Panel.
20. With respect to insight, the original Panel noted that HW had said the Registrant, at the time, clearly knew what she had done was wrong and HW said she could “tell she [the Registrant] knew it was wrong as she was willing to say she had had an alcoholic drink at work but she was less willing to say how much”. AQ said that on 10 November 2017 she and the Registrant had a “very open and common sense” conversation but the Registrant had denied drinking.
21. The original Panel noted that, at the time of the Allegation, the Registrant had acknowledged that she had some health issues and indicated at the investigatory interview on 30 November 2017 that she had been seeking support and had admitted consuming two alcoholic drinks at work. She was reported to have said at that interview that “I have not had a drink since it happened.”
22. The original panel also had taken into account the Registrant’s annotation on the interview notes of 30 November 2017.
23. The original panel determined that the Registrant did appear, at the time, to accept she had underlying issues, but she was then seeking to address them. It noted that she had expressed some remorse for her actions. However, the original panel had no further evidence of the Registrant’s developing or current insight, and it had no evidence of any remediation of her practise. The original panel knew nothing of the Registrant’s then-current circumstances, as there had been no engagement by her with the HCPC. The original panel did not know the outcome of the Registrant’s steps in 2017 to remedy her practice and it had determined that it could attach only very limited weight to those “green shoots” of the Registrant’s insight and her steps to remedy her practice at that time.
24. The lack of any then-current evidence of insight and remediation led the original panel to conclude that there was risk of repetition. The original panel determined that there was a potential risk to patient safety, albeit indirect. The original panel also concluded on the private component of impairment that the Registrant’s fitness to practice is currently impaired.
25. With respect to the public component of Impairment, the original panel had been mindful of the critical public interest aspects. It had considered the need to protect service users, to declare and uphold proper standards of behaviour and to maintain confidence in the profession. It had concluded that the public would have been very concerned that a Biomedical Scientist, including in the role of this Registrant, with responsibilities to ensure quality and safety, had been consuming alcohol at work.
26. In those circumstances, the original panel concluded that there was a clear need to protect service users and to uphold proper standards. It determined that public confidence would have been seriously undermined were it not to have found that the Registrant’s fitness to practise was then currently impaired.
27. It determined that, in order to maintain public confidence in the profession, and in the Regulator, and to uphold and declare proper standards, a finding of impairment was required on public interest grounds.
Sanction finding of the original Panel:
28. It found the following aggravating features:
a. The premeditation involved in bringing and concealing alcohol in the work place on two consecutive days;
b. Limited insight and non-engagement with the HCPC;
c. The potential for harm to patients and the public.
29. The original panel identified the following mitigating features:
a. Difficult personal circumstances;
b. Previous good character and no previous regulatory concerns.
30. The original panel decided that taking no further action and the sanction of a Caution Order would not reflect the seriousness of the allegation proved and the finding of a risk of repetition. The findings were not limited, minor or isolated. There was very limited evidence of remedial action and limited evidence of insight. Further, such orders would not have been adequate or proportionate given the wider public interest in upholding proper standards and maintaining confidence in the profession and the regulatory process. The original panel found that neither order was appropriate or proportionate in the circumstances of this case.
31. The original panel next considered imposing a Conditions of Practice Order. It determined that the allegation found proved was serious. It considered paragraph 33 of the Indicative Sanctions Policy (ISP) of the HCPC. It required panels to be satisfied that the Registrant was committed to resolving the issues that gave rise to the Allegation and was able to do so. The original panel knew nothing of the Registrant’s then-current circumstances and given the complete lack of engagement by the Registrant, there was no evidence that the Registrant was either willing or able to comply with Conditions. In any event, the original panel concluded that its findings were not amenable to the imposition of realistic, verifiable and workable Conditions of Practice at that stage. Therefore, the original panel determined that a Conditions of Practice Order was not appropriate or proportionate and would not address the risk identified or satisfy the public interest.
32. The original Panel next considered a Suspension Order. It had found a serious allegation proved that gave rise to a risk to patient safety. There was no engagement, limited insight and very limited remediation. It determined that a Suspension Order would protect the public and uphold proper standards. It would also have a deterrent effect on other professionals.
33. The original panel did not find that it was able to conclude that the Registrant was unable to resolve the behaviour which led to the Allegations. It was mindful of the terms of paragraph 41, 42 and 43 of the ISP which indicated that a Suspension Order may be appropriate where a lesser sanction would undermine public confidence and be unlikely to provide the required level of public protection. The original panel decided that the nature and gravity of the Allegation was such that to maintain confidence, protect the public and provide a deterrent effect, a Suspension Order for a period of 12 months was the appropriate and proportionate sanction.
34. The original panel considered that a panel reviewing the Suspension Order would be assisted by the Registrant providing the following:-
i. The Registrant’s engagement;
ii. Up to date evidence from any treating health professionals regarding her wellbeing and fitness for work;
iii. Any evidence of remediation;
iv. Any evidence of keeping her knowledge and skills up to date;
v. Any relevant testimonials from paid or unpaid work which she may wish to place before the panel.
35. Finally, the original panel considered that a Striking Off Order would not have been proportionate at that stage, as a Suspension Order sufficiently and proportionately protected the public and the wider public interest. Further, the nature and gravity of the Allegation, although serious, were not so serious as to call for a Striking Off Order to be made.
The Decision of this Review Panel:
36. In reaching its decisions, the Panel has read all the documents provided, including the HCPC’s 2 skeleton arguments, dated 7 and 29 April 2020. It noted that the HCPC seeks a finding of continuing impairment and an extension of the current Suspension Order of a further 12 months’ duration. The Panel also took into consideration that the Registrant has not engaged with the HCPC or this process, by submitting any written documentation. The Panel also paid respect to the previous Panel’s decision, but undertook its own review of the case. The Panel also had regard to the HCPC’s Practice Note on Impairment and the HCPC’s ISG.
37. The Panel noted that there has been no engagement by the Registrant in this process in the intervening period since the last hearing, a year ago, or indeed, at any time with the HCPC, or since late 2017, despite her assertions to the Trust on 30 November 2017 that she had been seeking positive help with her health issues and despite the suggestions of the original Panel for any Review hearing. The Panel was disappointed by this, as it seemed that this was a remediable case. In the Panel’s opinion, once any remediation generally might have been initiated, and particularly regarding the previous Panel’s suggestions, there could have been a chance for the Registrant to demonstrate the potential for her to return to her chosen profession eventually, without impairment. In the Panel’s judgement, the Registrant’s failure to engage with the HCPC and with this process, which otherwise would have been extremely useful, is regrettable.
38. With no further information before the Panel, it can only conclude that the Registrant remains currently impaired. Alcohol consumption, whilst on duty, by a BMS of the seniority of the Registrant at the time, is serious, as it puts the health, safety and well-being of the public at risk of harm and also undermines the confidence that the public is entitled to have in the profession and in the regulatory process.
39. Therefore, in the Panel’s judgement, the already-identified lack of insight and remediation continues, with the commensurate risk of repetition. This, in turn would lead to the public still being at risk of harm from the Registrant were she be declared to be fit to practise. The Panel also determined that if an informed member of the public were to learn that this Registrant was to be declared fit to practise, they would be shocked and this would severely undermine the public’s confidence in the profession and in this regulatory process.
40. Thus, for these reasons, the Panel concluded that the Registrant remains currently impaired on the grounds of public protection and in the wider public interest.
41. The Panel approached the options available to it under Article 30(1) (a), (b) and (c) and Articles 29 (4) and (5) of the Health and Social Work Professions Order 2001 (the Order) in ascending order.
42. The Panel identified the following aggravating factors:
• A continuing failure to engage with the HCPC or this process, and since late 2017;
• No significant evidence of: any intervening, and current, insight, remorse or regret, since November 2017, a period of two and a half years; no remediation; no update of the Registrant’s health condition; no information of how the Registrant is keeping up to date on her skills and knowledge; no testimonials or references.
43. The Panel identified the following mitigating factors:
• Some, relatively small, attempts at insight in 2017, when the Registrant acknowledged in interview, that she understood that what she had done was wrong;
• A positive, and repeated, verbal assertion by the Registrant to the Trust, in 2017 that she intended to deal with her health issues;
• An inference that, in 2017, the Registrant had wanted to return to practice as a senior BMS;
• The matters found proved did not relate to the Registrant’s clinical work;
• No reported regulatory issues before these events.
44. The Panel first considered taking no action or mediation and rejected these outcomes. In the Panel’s judgement, they were not appropriate to the current circumstances as they would provide no checks and balances to ensure that the Registrant could return to practise without endangering the public.
45. The Panel next considered making a Caution Order and rejected this. Caution Orders, by their nature, permit Registrants to return to practice without further intervention from their regulator, unless the issues under scrutiny and/or additional matters occur in the future. Hence, in this case, with a Registrant who has been found unfit to practise by reason of alcohol consumption whilst on duty as a BMS, this sanction would be wholly insufficient to monitor the Registrant. In the Panel’s judgement, this sanction would not adequately protect the public and would not uphold the wider public interest.
46. The Panel next considered imposing a Conditions of Practice Order. In light of the lack of engagement by the Registrant with the HCPC or with this process and since late 2017 and the commensurate complete lack of information about her, her employment, if any, and an up to date report on her health condition, the Panel concluded that it could not have confidence that any conditions imposed, could not, and would not, currently be complied with by the Registrant. The Panel also concluded that any conditions could not be monitored and, at this time, would seem to have no chance of achieving a safe and effective return to practice for her. Therefore, for these reasons, the Panel was not able to conclude that any conditions imposed would have any chance of being workable and enforceable, in that they could be specific, measured, achievable, realistic and timed.
47. The Panel next considered extending the existing Suspension Order. The Panel was of the view that, at this time, this would be the fairest and most proportionate way to address the issues raised by this case. The misconduct found proved related to a serious allegation that gave rise to a risk to patient safety. There continues to be no engagement, no significant insight and remediation. The Panel also noted the HCPC’s ISG, where reference to a Suspension Order includes that a Suspension Order may be appropriate where a lesser sanction would undermine public confidence and be unlikely to provide the required level of public protection.
48. The Panel took into consideration that the Registrant had expressed to the Trust a desire to achieve good health in the future, but that was in November 2017, two and a half years ago. This was also entwined with an inference that, when she might achieve good health, this might enable her to return to practice as a BMS. Nothing has been heard from her since. However, the Panel was conscious that there have been many occasions when Registrants with ill health recover, or partially recover, which gives them the motivation and confidence to want to remediate fully and return to practice. The Panel does not have that information from the Registrant because she has continued not to engage with the HCPC and with this process.
49. Thus, with that in mind, the Panel has concluded that the Registrant should be given another chance to engage and the extension of the existing Suspension Order would enable this to take place.
50. The Panel considered that to impose a Striking Off Order, at this time, might be premature, and, thus, unduly harsh, punitive and disproportionate, if, as is hoped, the Registrant can bring herself to engage with the HCPC and with this process, within the next period of suspension. The Panel took into account that the Registrant had achieved a relatively senior status as a BMS with no past history of regulatory issues against her. It determined that, if fully remediated, this Registrant could achieve a safe and effective return to practice that could benefit the wider community.
51. The Panel considered that another 12 month period would give the Registrant sufficient time to engage and take her case forward in a positive way, if she so choses. Whether or not she does will be a matter for her.
52. This Panel also observed that the next reviewing Panel will once again have all sanctions available to it including that of a Striking Off order.
53. This Panel considered that a future Review Panel might find useful and helpful at the next Review, the following:
i. The Registrant’s engagement;
ii. Up to date evidence from any treating health professionals regarding her wellbeing and fitness for work;
iii. Any evidence of remediation, including, for example, a written statement addressing how she feels in relation to her misconduct and her fitness to practise, any future employment as a BMS, her health condition (past and present), her personal circumstances, and anything else she wishes to express;
iv. Any evidence of keeping her knowledge and skills up to date;
v. Any relevant testimonials from paid or unpaid work which she may wish to place before the next Review Panel.
ORDER: The Registrar is directed to suspend the registration of Miss Yvonne M Hall for a further period of 12 months on the expiry of the existing order.
A review was held on the papers due to the CoronaVid 19 Pandemic.