Miss Natalia Jack

Profession: Operating department practitioner

Registration Number: ODP36459

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/02/2021 End: 17:00 11/02/2021

Location: Hearing taking place virtually

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Operating Department Practitioner (ODP36459) your fitness to practise is impaired by reason of conviction. In that:

1. On 22 January 2020 you were convicted at Cambridge Crown Court of possessing a controlled drug of Class A with intent x 2.

2. By reason of your conviction your fitness to practise is impaired.

Finding

Preliminary matters

Hearing held remotely

1. Due to the Covid-19 pandemic, in March 2020 the HCPC suspended all in-person hearings to protect the health and safety of its registrants and stakeholders. The HCPC arranged for this hearing to be a virtual hearing conducted via Microsoft Teams with the Panel, Legal Assessor, Hearings Officer, Presenting Officer, and transcriber all attending virtually.

2. The Registrant was also present virtually, as was Mr Patrick Kenny, a Unison Regional Officer who supported her during the hearing as a McKenzie friend.

Proceeding in private

3. There was an application by Ms Lykourgou that the hearing should be held partly in private. The application was advanced on the basis that the protection of the private life of the Registrant required such a direction, as there would be mention of confidential matters concerning her health. The Panel accepted advice from the Legal Assessor and directed that the hearing should be held partly in private.

Background

4. The Registrant is registered with the HCPC as an Operating Department Practitioner. She was arrested by the police on 26 February 2019 in Cambridge. She was sitting in her car outside a flat in which the occupiers were known to be drug users. The Registrant’s car was searched by the police. They discovered heroin and crack- cocaine in numerous separate “wraps”, with a street value of £1,790, inside a compartment in her car.

5. The Registrant denied knowing anything about the drugs in her car. She said that she had travelled from London to Cambridge to give someone a massage. When she was interviewed by the police she stated that the drugs must have been put into her car by somebody else. The police examined her two mobile telephones, which indicated that she had also travelled to Cambridge on 24 and 25 February 2019. She was charged with two counts of possession of class ‘A’ drugs with intent to supply and pleaded not guilty, but she was convicted on 22 January 2020 by a jury. On 12 February 2020, the Registrant was sentenced to 30 months’ imprisonment.

6. The Sentencing Judge stated that it was not clear what her motives were, but the Registrant had acted as a courier for a County Lines drug operation. She had transported drugs from London to a flat where the occupier was being “cuckooed” (which means taking over a person’s home and using the property to facilitate exploitation.) The Judge described the case as Category 3 (‘street dealing’). The Registrant was of previous good character and this offence was an isolated incident. However, the Judge concluded that: “…the seriousness of what you became involved in and what you were prepared to do to assist this criminal enterprise is such that it can only be marked by that immediate term of imprisonment.”

7. The Registrant was released from custody on 23 July 2020 on a Home Detention Curfew, until 4 December 2020. She is on licence until 5 March 2022 under the supervision of the Probation Service. The matter was referred to the HCPC following her arrest.

Facts and Grounds

8. The statutory ground is conviction for a criminal offence, rather than misconduct or lack of competence. A Memorandum of Conviction has been produced by the HCPC as proof of the conviction and sentence. The Registrant has admitted the fact of the conviction and the Panel found that the conviction is proved to the requisite standard by the Memorandum of Conviction. The Panel cannot go behind that conviction. The Panel therefore concluded that the fact of the conviction and its statutory ground are made out.

Impairment

Registrant’s evidence

9. The Registrant supplied the following documents to the Panel: two letters from herself, one dated 18 May 2020 and another undated letter; letters from her Probation Officer and her General Practitioner; and five testimonials from former colleagues confirming her skills as an Operating Department Practitioner. She was described as honest, reliable, and hard working. The Panel also had sight of documents in the HCPC bundle from the Registrant’s mother and cousin.

10. The Registrant stated that she is extremely sorry for becoming involved with people who took advantage of her when she was living in London. She has now moved to a different area and feels safer with support from her family and her Church. She relied on the numerous character references she has provided and stated she would love to be able to return to NHS work. She has not worked since her release from custody but has undertaken courses and research to further improve her health and skills, and to maintain mandatory training such as fire safety and health and safety. The Registrant had not yet been able to undertake basic life support refresher training.

11. In cross-examination the Registrant stated that she had no knowledge of the drugs in her car and she did not accept that she committed the offences, though she accepted the consequences of the conviction. She stated that she did not lie to the police during interview but “missed things out”. She said that she went to Cambridge to give someone a massage. At the time she had been threatened by people who knew where her family lived. She was not party to any criminal activity. At her trial she gave evidence that she had been threatened before she agreed to drive to Cambridge.

HCPC submissions

12. The HCPC submitted that in considering the Registrant’s fitness to practise under the personal component, an important factor is whether the Registrant has insight into what caused her to commit these offences. Also, it was necessary for the Panel to consider whether she had taken steps to remedy those failings. If she has a lack of insight, there was unlikely to be a low risk of a repetition of her criminal behaviour. The HCPC submitted that there is a lack of insight in this case. The Registrant did not accept that she committed the offences for which she was convicted. It was not open to the Panel to go behind her conviction and the Registrant’s continued denials provided good evidence of impairment under the personal component.

13. An aggravating feature was the serious nature of the offences and the lack of reflection or remediable action in relation to them by the Registrant. Despite her previous good character, there were serious concerns in relation to the Registrant’s fitness to practice under the personal component.

14. Under the HCPC Standards of Conduct, Performance and Ethics, registrants are required to comply with the following standard: “9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”. In the case of Grant, it was stated that impairment may arise when a registrant has brought the profession into disrepute or has breached one of the fundamental tenets of the profession, or has acted in a way that their integrity can no longer be relied upon.

15. The HCPC submitted that the Registrant’s conviction put her in serious breach of HCPC Standard 9.1 and brought the profession into disrepute. Furthermore, the need to uphold professional standards and public confidence in the profession and the HCPC would be undermined if a finding of current impairment were not made in this case. Operating Department Practitioners are required to work with controlled drugs. The HCPC submitted that the public would be rightly concerned if the Registrant were able to practise without restrictions following her convictions for two offences of possession of class ‘A’ drugs with intent to supply. Therefore the HCPC submitted that the Registrant’s fitness to practise is also impaired under the public component.

Registrant’s submissions

16. The Registrant submitted that this was an isolated incident. She had spent time since her arrest reflecting upon her actions and had taken responsibility for them and their consequences, including the loss of her employment. The Registrant stated that she should have been more aware and that she was naive and vulnerable when she was arrested. She had no previous convictions and took pride in her work, as demonstrated by the character references from her former colleagues. She had never put patients at risk and had a strong desire to return to work as an Operating Department Practitioner.

17. The Registrant submitted that she can be trusted in the future and will do what she can to ensure that there is no repetition of this incident. She had reflected upon the effect on her family and the HCPC and is very sorry. She severed all ties with her previous associates in London to ensure this incident would never happen again. She asked the Panel to give her a second chance to continue the career which she is passionate about. She submitted that what she was convicted of was “not a deliberate act”.

18. The Registrant stated that she is now living in another location. She has undertaken online courses to keep her skills up-to-date and she is looking after herself to get her life back on track.

19. Mr Kenny added that the Registrant has been deeply affected by her conviction and is remorseful. She is now being supported by her family and her Church.

Legal Assessor’s advice

20. The Panel was advised by the Legal Assessor that a conviction should only lead to further action being taken against a registrant if, as a consequence of that conviction, the registrant’s fitness to practise is found to be impaired. Conviction allegations are not about punishing a registrant twice. The Panel was also advised to consider the guidance in the HCPTS Practice Notes entitled “Conviction and Caution Allegations” and “Finding that Fitness to Practice is ‘Impaired’”.

21. In determining whether fitness to practise is impaired, the Panel must take account of a range of issues which, in essence, comprise two components: the personal component and the public component. The personal component includes the behaviour of the individual registrant. The public component includes the need to protect service users, declare and uphold proper standards of behaviour, and maintain public confidence in the profession.

22. Impairment of fitness to practise is a matter for the Panel’s judgement. The test of impairment is expressed in the present tense. The Panel must decide whether the Registrant’s fitness to practise is impaired at today’s date.

23. The Panel noted that the Registrant has been released from custody on licence until 5 March 2022. Therefore it would usually be necessary for there to be a restriction on her ability to practise, at least until the successful completion of the period on licence.

Decision on Impairment

24. The Panel noted that the Registrant had a good work record, was passionate about her job, and is genuinely remorseful in relation to what has happened as a consequence of her conviction.

25. The Panel accepted that she has reflected upon her actions and that her conviction arises from an isolated incident which was out of character. However, the seriousness of her conviction was clearly indicated by the Judge’s sentencing remarks and the immediate 30-month custodial sentence for possession of class ‘A’ drugs with intent to supply.

26. The Registrant demonstrated, in her evidence to this Panel, a naive lack of insight in relation to the consequences of her conviction. She was clearly sad about the impact on herself and her family, and said that she had made mistakes. However, she has still not recognised the impact of her offending behaviour on the victims and their families, or on members of the public.

27. Furthermore, during this hearing not only did the Registrant fail to demonstrate insight into her criminal behaviour, at times she appeared to minimise it. In the Panel’s view the Registrant has seriously underestimated the impact of her conviction. For example, she stated to the Panel that she thought members of the public would have “different views” about her offence and that “one in four people have a criminal conviction”.

28. There was clear evidence from the police investigation, which the Panel has seen, to prove the offences (and in any event, this Panel cannot go behind the Registrant’s conviction). The Panel found that there is a lack of insight and remediation in this case. The Panel cannot be confident that the Registrant’s criminal behaviour will not be repeated. Therefore her fitness to practise is currently impaired under the personal component.

29. The Panel also found that the Registrant’s fitness to practise is impaired under the public component. She pleaded not guilty at trial and denied she had committed any offence when she was interviewed by the police. In her evidence to the Panel, she made clear that she still does not accept that she committed the offences for which she was convicted. Her criminal conduct was totally unacceptable and will have had a detrimental impact upon the reputation of the profession. The Panel was particularly concerned that a healthcare professional would engage in criminal conduct that would be likely to have such a serious detrimental impact upon the health and wellbeing of its victims. Such conduct would appear to be in direct conflict with the Registrant’s stated desire to care for others in a professional role. Therefore the Panel concluded that public confidence in the regulatory process would be seriously undermined by a finding that the Registrant’s fitness to practise as an Operating Department Practitioner  is not impaired.

30. The Panel therefore concluded that the Registrant’s fitness to practise is impaired on both the personal and the public components.

Decision on Sanction

HCPC submissions

31. The Panel heard submissions from the HCPC in relation to sanction.

32. The HCPC submitted that there are four important factors for the Panel to consider in discharging its primary function, which is not to punish the Registrant but to protect the public. Those factors are: the risks to service users, the deterrent effect of any sanction, the need to maintain public confidence in the profession and in the regulatory process.

33. The HCPC submitted that there is a lack of insight in this case. The Registrant does not accept that she committed the offences for which she was convicted and it is not open to the Panel to go behind her conviction.

34. Due to her lack of insight the available sanctions up to and including suspension may be inappropriate. Furthermore, any suspension would be required to last at least until 5 March 2022, when the Registrant’s period on licence expires.

35. The HCPC therefore submitted that the Panel should consider the sanction of a Striking Off Order. The Registrant’s conviction was for serious criminal offences. This would suggest that any lesser sanction would be insufficient to protect the public and maintain confidence in the profession and the regulatory process. This may be the appropriate and proportionate sanction due to the Registrant’s lack of insight, the risk of repetition, and the seriousness of the offences committed. Such offences were likely to be incompatible with the Registrant remaining on the HCPC Register.

Registrant’s submissions

36. The Registrant submitted that this was an isolated incident. She had never put patients at risk and had a strong desire to return to work as an Operating Department Practitioner. The Registrant submitted that she could be trusted in the future not to re-offend and her Probation Officer confirmed that she is a low risk to the public. She had severed all ties with her previous associates in London to ensure this type of incident would never happen again.

37. The Registrant submitted that she is now living elsewhere and is getting her life back on track. Her comment that “one in four people have a conviction” was intended to show that one in four people do reform and learn from their mistakes. Also, it was not correct that she does not care about other people. She is a caring person, as demonstrated by the character references she produced. She has found it hard to appear before the Panel. She was not trying to minimise the seriousness of her actions, and the behaviour which caused her to be convicted would not be repeated.

38. Mr Kenny added that the Registrant could have looked for a career elsewhere but she wants to stay in the profession and that is why she was putting herself through the hearing process. She is a good person and had gotten mixed up in something she deeply regrets. If a Suspension Order was imposed today, the Registrant will not reoffend and she has had a harsh lesson.

Legal Assessor’s advice

39. The Panel was advised by the Legal Assessor that in deciding what, if any, sanction to impose under Article 29 of the Health Professions Order 2001, the Panel should have regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant. It should consider the matter of sanction in ascending order from the least restrictive.

40. The Panel should be guided by the HCPC Sanctions Policy and also consider the mitigating and aggravating factors and the wider public interest, which includes the need to uphold the reputation of the profession and maintain public confidence in the HCPC regulatory process.

41. The HCPC Sanctions Policy states, “Where a registrant has been convicted of a serious criminal offence, and is still serving a sentence at the time the matter comes before a panel, normally the panel should not allow the registrant to resume unrestricted practice until that sentence has been satisfactorily completed.”

Decision on Sanction

42. The Panel accepted the advice of the Legal Assessor and considered the HCPC Sanctions Policy. The Panel then identified the mitigating and aggravating features of this case.

43. The aggravating features are the seriousness of the offences and the potential harm to others from the supply of illegal drugs. The Registrant has a fundamental lack of insight in relation to the impact on the public and the reputation of the profession caused by her conviction. She still does not accept that she committed the offences for which she was convicted. The seriousness of her conviction is clearly indicated by the Judge’s sentencing remarks and the immediate 30-month custodial sentence for possession of class ‘A’ drugs with intent to supply. Her criminal conduct was totally unacceptable and will have had a detrimental impact upon the reputation of the profession.

44. The mitigating features are that the Registrant had a previously unblemished record. The Panel accepts that she has reflected upon her actions and that her conviction arises from an isolated incident which was out of character. The Registrant had a good work record, was passionate about her job, and is genuinely remorseful. The Registrant has a genuine desire to resume her career. She was hard working and highly regarded by her fellow professionals, who have provided testimonials for her. She has engaged with the HCPC process. She has moved from London to reduce the risk of reoffending, which has been confirmed by her Probation Officer, and is planning to live independently.

45. This is a sad case and the Panel’s role is not to punish the Registrant. However, the Panel considered that there are no mitigating circumstances with regard to the offences themselves because the Registrant has not acknowledged any responsibility for them.

46. The Panel has therefore decided that it is necessary to impose a sanction to mark the gravity of the Registrant’s conviction. Whilst she has shown remorse for the consequences to herself, she failed to acknowledge the impact of her offending behaviour on the victims, the public, and the profession. The Panel also noted the case of Fleischmann, which states that a registrant who is subject to an ongoing criminal sentence should not be permitted to be in unrestricted practice.

47. The Panel found that mediation or a Caution Order would not be sufficient to protect the public due to the Registrant’s serious criminal behaviour.

48. The Panel concluded that Conditions of Practice would not be an appropriate or proportionate sanction. No practicable or workable Conditions of Practice could be formulated which would address the nature of the offending behaviour, nor its seriousness.

49. The Panel next considered a Suspension Order. The HCPC Sanctions Policy states that:

“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

50. The Registrant has not demonstrated insight into the serious breach of standards brought about by her offending behaviour and she is not presently, in the Panel’s view, able to sufficiently resolve these failings such that it could address their seriousness. The Panel noted that these failings have persisted. Further, even if they are addressed by the Registrant in the future, a higher level of insight would not be sufficient to overcome the gravity and seriousness of her offending behaviour. The Panel was aware of the need to demonstrate to the profession that conduct of this seriousness, namely a conviction for possession of class ‘A’ drugs with intent to supply, is wholly unacceptable for a registered Operating Department Practitioner. The Panel noted the guidance set out above and concluded that a Suspension Order would not be sufficient to mark the gravity of the offence and would not be in the public interest, as it would fail to protect the public or maintain public confidence in the profession.

51. The Panel therefore decided to impose a Striking Off Order. The HCPC Sanctions Policy states that, “A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving … criminal convictions for serious offences…”. The Panel noted that there is no issue in relation to the Registrant’s competence; however, a registrant’s behaviour outside their working environment can have an impact on their registration with the HCPC. The Registrant has not demonstrated any understanding of the public interest in requesting leniency from the Panel. The Panel concluded that the serious nature and circumstances of the Registrant’s criminal conviction are incompatible with her HCPC registration and with her membership of the profession.

52. The Panel therefore concluded that a Striking Off is the only appropriate sanction in this case, in order to maintain public confidence in the regulatory process and the reputation of the profession and to protect the public and the wider public interest.

Order

That the Registrar is directed to strike the name of Ms Natalia Jack from the Register on the date this order comes into effect.

Notes

Interim Order

1. The HCPC applied for an Interim Order to cover the appeal period. If a panel imposes a Striking Off Order, Article 31 of the 2001 Order provides the Panel with the discretionary power to also impose an Interim Suspension Order to cover the appeal period. This will apply from the imposition of the substantive order until the end of the appeal period or, where an appeal is lodged, the end of the appeal process. The power to impose an interim order is discretionary and is not an automatic outcome.

2. The Panel took into account the HCPTS Practice Note on “Interim Orders” and the advice of the Legal Assessor that, as the HCPC Sanctions Policy states, “An interim order is likely to be required in cases where: the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.”

3. The Panel has determined that an interim order is necessary in this case in the public interest to maintain public confidence in the reputation of the profession and the regulatory process. An Interim Conditions of Practice Order would not be appropriate for the reasons cited in the determination above. Therefore an Interim Suspension Order for 18 months is necessary to cover any appeal period.

4. The Panel therefore makes an Interim Suspension 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.

Hearing History

History of Hearings for Miss Natalia Jack

Date Panel Hearing type Outcomes / Status
10/02/2021 Conduct and Competence Committee Final Hearing Struck off