Preliminary Matters

Amendment of Allegation

1. Ms Manning -Rees made an application to amend the stem of the Allegation to remove the words “and/or a health condition”. She stated that this was not a health case and that the inclusion of the words was an error. Ms Hart did not oppose the application.

2. The Panel accepted the advice of the Legal Assessor.

3. The Panel acceded to the application to amend the stem of the Allegation on the basis that the amendment was minor in nature and necessary in order to reflect accurately that this was an allegation of conviction and misconduct.

Hearing in Private

4. Ms Hart made an application for parts of the hearing to be held in private, on the grounds that much of the evidence related to the Registrant’s health.

5. Ms Manning -Rees accepted that parts of the hearing should be held in private.

6. The Panel accepted the advice of the Legal Assessor that despite the presumption in favour of public hearings it could exercise its discretion to hear a case in private where it is in interests of justice to do so or where the evidence relates to private life and or health matters.

7. The Panel has balanced the right to private and family life against the principle of open justice. The allegations are already in the public domain. Having balanced the competing interests, the Panel finds that it is in the interests of justice for those parts of the hearing relating to the Registrant’s health to be held in private because of the risks of compromising the Registrant’s privacy in relation to personal health issues.

Background

8. The Registrant is a registered Physiotherapist. At the time of the Allegation he was employed at Leeds Teaching Hospital Trust (The Trust) as a Band 8 Physiotherapist.

9. The Allegation relates to a drink driving offence and failure to report this in a timely manner to his employer and the HCPC. On 21 July 2017, the Registrant stopped at a petrol station. Staff at the petrol station believed he was under the influence of alcohol and were concerned because he had a child in the car. The police were notified of his car and number plate and stopped the Registrant on a nearby road.

10. The Registrant failed a roadside breath test which showed 67 microgrammes of alcohol in 100 millilitres of breath.

11. He was charged with driving whilst under the influence of alcohol and pleaded guilty on 7 August 2017 to drink driving at Scarborough Magistrates Court. He was sentenced to 55 Hours community service and disqualified from driving for 38 months.

12. On 7 December 2017, during a meeting with his line manager, the Registrant was asked whether he was driving to work. The Registrant disclosed that he had recently pleaded guilty to driving whilst under the influence of alcohol. At a further meeting on 8 December 2017, the Registrant was informed of the need to inform his employer (the Trust) and the HCPC.

13. On 18 December 2017, the Registrant self-referred to the HCPC. In his self-referral the Registrant stated that the conviction arose whilst he was on holiday and therefore not at work, so he did not think that it needed to be brought to the attention of the Trust or the HCPC.

14. The Registrant was dismissed from his employment following an internal disciplinary hearing on 18 August 2018, for failing to disclose his conviction for drink driving in breach of his contract of employment.

Previous drink/ drive conviction

15. This is the Registrant’s second conviction for driving with excess alcohol. On 5 February 2014, the Registrant had an accident on the way to work. On 18 February 2014 he pleaded guilty to driving whilst under the influence of alcohol. The roadside test showed 106 microgrammes of alcohol in 100 millilitres of breath.

16. The Registrant immediately informed the Trust of this offence and the HCPC. He was provided with support at work to address his use of alcohol.

17. He appeared at a final hearing before the HCPC on 11 September 2017. The panel at that hearing found that driving to work under the influence of alcohol, intending to work breached Standards 1’ you must act in the best interests of service users’ & 3 ‘you must keep high standards of personal conduct’. The Registrant was three times over the prescribed limit on his way to work and the panel found that the incident was so serious as to amount to misconduct.

18. In relation to impairment that panel found that the Registrant ‘had demonstrated remorse and had remediated his actions’. It found that the risk of repetition was low and that the Registrant was no longer impaired in relation to the personal component. The panel went on to consider the public interest. The panel wrote: -

“There are two limbs to this test. The first is whether a fair minded member of the public, knowing what the Panel knows, would find that there was current impairment. The Panel concluded, that in light of the strong personal mitigation, the remedial steps taken by the Registrant and his continued work, which is of a high standard, confidence in the profession would not be undermined if a finding of impairment were not made.
However, the Panel concluded that a finding of impairment is necessary to maintain confidence in the regulator. The Panel notes that, in this case the circumstances surrounding the conviction were particularly serious. The Registrant was three times over the prescribed limit and was on his way to work under the influence of alcohol, fully intending to provide clinical care to service users who would have been placed at risk as a result. The Panel finds it necessary to mark that this conduct was unacceptable and that a clear message needs to be sent by the regulator in respect of the seriousness of this drink drive conviction, The Panel therefore find that the public component of the test is met and that a finding of impairment is necessary in the public interest”.

19. In determining the question of sanction, that panel attached considerable weight to the fact that this incident occurred during a difficult period in the Registrant’s personal life, and that up to this point the Registrant had a long and unblemished career. That panel attached weight to the evidence of a colleague KM who spoke of the Registrant’s “considerable expertise”, the fact that he worked at a high level and was respected by his physiotherapy and work colleagues. There had never been any complaints about the quality of his work. The Registrant had informed his employer on the day of the incident and had co-operated with the Trust’s enquiries. Furthermore, that panel was told that the Registrant was working in his original role as a Band 8 extended scope practitioner. That panel therefore determined that there was ‘exceptionally strong mitigation’, that this was an ‘isolated incident in an otherwise unblemished career’, the Registrant had shown remorse, had complied with rigorous monitoring in the workplace and already received a criminal conviction. It determined that the risk of repetition was low, and a sanction would be unnecessarily punitive. It concluded that the case was exceptional:-

“The Panel wishes to record that there is a public interest in this Registrant using his specialist skills to provide the public high quality treatment without restriction”.

The Hearing

20. The HCPC called one witness, TC. She is Head of Dietetics at the Trust. She presented the findings of her colleague who had gathered the information for the disciplinary hearing before the Trust.

21. She gave evidence that the Registrant’s contract of employment stipulates that he must disclose a conviction to his employer immediately and that a failure to disclose such information may lead to ‘disciplinary action up to and including dismissal’.

22. The statement of IA was read as part of the case for the HCPC and was admitted unchallenged. IA is the registration manager for the HCPC.

23. In her statement IA confirmed that the Registrant is obliged to disclose a conviction to his regulator as soon as possible. She referred specifically to HCPC Standard 9.5 of the Standards of Conduct Performance and Ethics which states: -

“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”

24. The Registrant gave evidence to the Panel.

25. He stated that when he was stopped for the drink driving offence in July 2017, he believed that he did not need to declare his arrest and subsequent guilty plea, as it occurred whilst he was on holiday and was therefore a personal issue. He drew a distinction between driving to and from work and driving for personal pleasure. He stated that when he gave evidence before the panel at the substantive hearing in September 2017 he had persuaded himself of the distinction and therefore did not feel it was necessary to inform the panel that he had just pleaded guilty to drink driving.

26. He said that not being able to work in the profession that he loved had been difficult and that the regret he felt was acute. He said that he had kept up with his professional development as far as possible. He has worked in muscular skeletal physiotherapy for 20 years and believes he would be able to pick up where he left off, despite some advances in technology since 2017.

27. In answer to questions from the Panel, the Registrant stated that he could not now remember whether he had drunk one glass of wine with lunch on 21 July 2017(as noted in the police report) or one and a half pint of beer, as set out in his statement to the Panel.

28. He was also asked about his holiday in July 2017. He was referred to the Report which stated that he was on sick leave in July 2017. The Registrant said he had fractured his elbow, so could not work, he had booked his holiday before he fractured his elbow. He said that despite the fracture, he was able to drive.

29. He stated that he now realised that the delay in disclosing his drink drive conviction was dishonest but at the time, having canvassed it with friends, he persuaded himself that there was a distinction between the two incidents.

Submissions

30. At the end of the hearing the Panel heard submissions from Ms Manning- Rees and from Ms Hart. Both agreed that the facts were not in dispute and that the question of impairment was for the Panel. Ms Manning -Rees, however, drew the Panel’s attention to the contents of the decision for the earlier hearing. She argued that it was significant that the Registrant had attended a substantive hearing just over a month after he had pleaded guilty to this offence and had not mentioned it whilst giving evidence. She reminded the Panel that an admission of dishonesty implied attitudinal failings.

31. Ms Hart argued that on the personal component the Panel could be satisfied that the Registrant is no longer impaired. She submitted that the ‘wider public interest’ was a matter for the Panel.

32. The Panel accepted the advice of the Legal Assessor.

33. In reaching a decision the Panel has taken into account all of the evidence in the HCPC bundle, the exhibits, which included the Memorandum of Conviction dated 7 August 2017; The Panel has also read and taken into account the Registrant’s statement, his reflection and his references.

Assessment of witnesses

34. The evidence relied on by the HCPC was not challenged. The one witness who was called, TC, explained that her role was to present the findings of a colleague. The substance of these findings were not challenged and the Panel accept that in this respect her evidence was accurate.

35. The evidence of IA was not disputed and is therefore accepted.

36. The Panel had difficulty accepting the evidence of the Registrant. It found that he minimised his dishonesty and showed a lack of insight into the risks associated with his past conduct.

Decision on Facts

37. The Panel find Particular 1 proved. The Registrant pleaded guilty to a charge of driving with excess alcohol at Scarborough Magistrates Court on 7 August 2017. The procedural rules state:

“Where a registrant has been convicted of a criminal offence, a certified copy of the conviction… shall be admissible as proof of that conviction and of the findings of fact upon which it is based”.

38. The Memorandum of Conviction is therefore proof of Particular 1.

39. The Panel find Particular 2 proved both by the Registrant’s admission and by the evidence presented by the HCPC. The Registrant’s contract of employment stipulates that he had a duty to inform his employer as soon as possible of a conviction. The evidence of IA sets out the HCPC’s requirements that a Registrant inform the HCPC of a criminal conviction.

40. The Panel finds Particular 3 proved. The Registrant accepted with hindsight in his written statement and during his oral evidence, that his failure to disclose his conviction to his employer and to the HCPC was dishonest. However, the Panel was concerned that the Registrant’s oral evidence in relation to dishonesty was at times equivocal. The Panel concluded that it was not credible that the Registrant did not know that he was required to report the offence to the HCPC, bearing in mind that he was at the time before a Fitness to Practise Panel for a similar driving offence. The Panel also finds applying the standard of ordinary decent people that the Registrant’s failure to disclose his further conviction would on the balance of probabilities be considered to be dishonest.

Decision on Grounds

41. The Panel finds that the matters contained in Particular 1 relate to a conviction for driving with excess alcohol with a reading of almost twice the legal limit. This offence was aggravated by the fact that this was a second drink driving offence within a three-year period and that he had a child in the car with him at the time. The Memorandum of Conviction is sufficient to confirm the statutory ground.

42. In relation to Particulars 2 and 3, the fact that this was the Registrant’s second drink driving conviction exacerbates the situation. The Registrant reported the first incident to his employer and his regulator. The distinction drawn by the Registrant between being at work and not at work was difficult to accept in the context of the earlier conviction and the substantive hearing before the HCPC in September 2017, a month after the Registrant had pleaded guilty to this driving offence. The Panel finds that driving with excess alcohol is serious, the subsequent failure to report conviction to the Trust and the HCPC as soon as possible was dishonest and so serious as to amount to misconduct.

Decision on Impairment

43. The Panel paid due regard to the submissions of Ms Manning- Rees and Ms Hart and reminded itself of the HCPC Practise Note “Finding that Fitness to Practise is Impaired”. The Panel considered both the personal and public component.

44. The Panel finds that there are a number of aggravating factors. This was the Registrant’s second drink drive offence and he had a child in his car. He failed to disclose the offence to his employer and to his regulator in a timely manner and gave evidence before a fitness to practise panel of the HCPC, when he failed to disclose the offence, just one month after entering a guilty plea. That panel accepted that he had implemented a broad range of safety mechanisms to avoid repetition and came to the conclusion that the risk of repetition was extremely low. The Panel find that the Registrant effectively misled that panel by failing to disclose his recent conviction.

45. The Panel remains concerned that the Registrant’s insight into his past difficulties is superficial. He minimised his past problems. The Panel noted that he attributed everything to a difficult period in his life and found the Registrant’s evidence that there was no risk of repetition to be unrealistic.

46. The Panel accepts that the Registrant has cooperated with the investigation carried out by both of the Trust and the HCPC. He admitted the allegations and has engaged in the process. However, the Panel finds that the Registrant’s admission to the failure to disclose the conviction in a timely manner and to dishonesty lacked depth. The Registrant continued to try to distinguish between this incident and the 2014 drink driving conviction and the Panel found his answers in this regard to lack substance and his acceptance of ‘dishonesty’ to be somewhat equivocal.

47. Although the Registrant accepted that his behaviour was selfish and irresponsible and gave an assurance that it would not be repeated, the Panel remains sceptical that he has taken full responsibility for the risks associated with his behaviour. The Panel therefore finds his remorse to and insight to be incomplete.

48. The Panel concluded that there is therefore a risk of repetition on the personal component.

49. The Panel also concluded that a finding of impairment is necessary in the public interest to maintain public confidence in the profession and in upholding proper standards of conduct and behaviour. The Panel concluded that the public would be shocked that the Registrant had failed to disclose a second incident of drink driving to his employer and to the Regulator as soon as possible. It concluded that the public would share the Panel’s concern as to the Registrant’s apparent limited insight. Most importantly, the Panel found that the public would be shocked by the lack of honesty, in the failure to make a timely disclosure of this second conviction. The Panel concluded that there was insufficient evidence of sustained remediation to reassure the public that a finding of impairment was not necessary to uphold confidence in the profession.

50. In addition, the Panel concludes that a finding of impairment is necessary to maintain confidence in the regulator. The Panel notes that the circumstances surrounding this conviction were particularly serious. Driving with excess alcohol, with a child in the car, is an aggravating factor. The fact that the Registrant had an outstanding matter before the HCPC, concerning an earlier conviction for drink driving exacerbates the position further. Furthermore, the fact that he attended a substantive hearing and misled a different panel would in this Panel’s view undermine public confidence in the regulator, if a finding of impairment were not made. The Panel finds that it is necessary to mark that this conduct was unacceptable and to send a clear message by the regulator to members of the profession that it is essential to disclose convictions at the earliest opportunity as well as marking the seriousness of the dangers of driving with excess alcohol. The Panel wishes to note the importance that the regulator attaches to honesty and integrity as well as marking the seriousness of the dangers of driving with excess alcohol.

51. The Panel therefore finds that a finding of impairment is necessary and that both the personal and public component of the test for a finding of impairment are met in this case.

Decision on Sanction

52. The Panel heard the submission of Ms Manning-Rees and Ms Hart on sanction.

53. The Panel accepted the advice of the Legal Assessor.

54. The Panel had regard to all the evidence presented, and to the Council’s Sanctions Policy (March 2019). The Panel reminded itself that the primary function of a sanction is to protect the public and that it needed to consider:

(i) any risks the Registrant might pose to service users;

(ii) the deterrent effect on other Registrants;

(iii) public confidence in the profession and in the regulatory process.

55. It reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

56. The Panel considered the following to be mitigating factors in this case:

(i) The Panel accepts that the Registrant’s judgment was impaired at the time of the incident. The Panel accepts that the impaired judgment affected the choices that the Registrant made including the choice not to tell the Trust or his regulator of the second driving conviction. The dishonesty in question was an omission (i.e a failure to disclose) rather than a premeditated plan. It did not arise from attitudinal failings.

(ii) The Registrant admitted to his employer when asked whether he was still driving to work that he had been convicted of a further offence of driving with excess alcohol. He therefore did not seek to hide the conviction when directly confronted by a colleague.

(iii) The Registrant has cooperated with the Trust and with the HCPC throughout. He has admitted all of the particulars.

(iv) The Registrant engaged in the hearing and has shown some insight.

(v) The two driving offences occurred during a difficult period in the Registrant’s life.

(vi) The Registrant is an experienced and able Physiotherapist who is regarded as an expert in his field.

(vii) The conviction dates back to 2017 and a period of over 3 years has elapsed since the incident.

(viii) The Registrant pleaded guilty to driving with excess alcohol straight away and has completed his community service by undertaking unpaid work as required. The period of disqualification is now over.

(ix) The Registrant has held down a job with Jet 2 since then. He was honest with his employers before taking up the post and has been open and honest in job applications that he has made.

57. The Panel next considered the aggravating factors in this case to be:

(i) This was a second drink driving offence.

(ii) The Registrant did not inform the HCPC or the Trust about the conviction in a timely manner and has accepted this was dishonest.

(iii) The Registrant had a child in the car on 21 July 2017.

(iv) The Registrant attended a final hearing of the Competence and Conduct Committee in September 2017, where the previous panel considered risk of repetition. Had the Registrant disclosed the further conviction for driving with excess alcohol, it is inconceivable that it would have reached the conclusion that the likelihood of repetition was low.

58. In considering the matter of sanction, the Panel started with the least restrictive, moving upwards.

59. The Panel first considered taking no action but concluded that, given the seriousness of this matter that this would be wholly inappropriate.

60. The Panel then considered whether to make a Caution Order. The Panel was mindful of the fact that this was not a single isolated incident and was a second drink driving offence. It was neither an isolated lapse nor relatively minor in nature.

61. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant has demonstrated some insight into his misconduct by accepting in his statement, reflective piece and oral evidence that driving with excess alcohol was indefensible and that the failure to inform his employer and the HCPC of the conviction was dishonest.

62. The Registrant’s clinical skills have not been brought into question and the Panel have concluded that there is a public interest in the profession retaining able and experienced practitioners. The Panel has found that a Conditions of Practice Order for three years is both proportionate and the least restrictive option.

63. The Panel considered a Suspension Order but taking account of all of the information before it, concluded that it would not be proportionate, would be punitive and importantly would not address the risk of repetition.

ORDER: The Registrar is directed to annotate the Register to show that, for a period of 3 years from the date that this Order comes into effect (“the Operative Date”), you, Simon J Aldous, must comply with the following conditions of practice:

1. You must inform the following parties that your registration is subject to these conditions:

• any organisation or person employing or contracting with you to undertake professional work;

• any agency you are registered with or apply to be registered with (at the time of application)

• and any prospective employer (at the time of your application).

2. *******

3. ******

4. ******

5. ******

6. ******

7. You must promptly inform the HCPC if you undertake work as a physiotherapist either employed or self- employed, paid or voluntary. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer or any organisation.

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

Interim Order

The Panel makes an Interim Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Reasons for making the Interim Order

1. The Panel heard submissions from Ms Manning-Rees. She invited the Panel to impose an Interim Order. Ms Hart did not make submissions on behalf of the Registrant.

2. The Panel concluded that an Interim Order was necessary in the wider public interest given that now the Panel has made a determination and imposed a Conditions of Practice Order for a period of three years. The Panel is satisfied that in the light of those findings, fair-minded and fully informed members of the public would expect restrictions to be placed on the Registrant’s right to practise while his appeal rights against the substantive decision remain outstanding.

3. The Panel determined that the appropriate length of the interim order is 18 months. The order will immediately fall away if the Registrant does not launch an appeal within 28 days.

History of Hearings for Mr Simon J Aldous