Miss Jolene McHugh

Profession: Chiropodist / podiatrist

Registration Number: CH14571

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/05/2021 End: 17:00 13/05/2021

Location: Virtual via Video Conference

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As a registered Podiatrist your fitness to practise is impaired by reason of your misconduct. In that:

1. On 12 December 2018, you engaged in private paid work as a podiatrist whilst absent due to sickness absence and receiving sick pay from your substantive employment with NHS Greater Glasgow and Clyde.

2. During NHS Greater Glasgow and Clyde’s investigation and/or disciplinary process in respect of your private paid work of 12 December 2018, you claimed that one of the reasons for your attendance at Bankhall Court Care Home (“the Home”) was receipt of a short notice request from the Home when you knew this was not the case.

3. Your conduct in paragraphs 1 and/or 2 was dishonest.

4. The matters described at paragraphs 1 to 3 constitute misconduct.

By reason of your misconduct, your fitness to practise is impaired.

Finding

Background

1. The Registrant’s employment with the NHS Greater Glasgow & Clyde (‘the Board’) commenced in 2007. She was employed as a Band 7, Advanced Podiatrist. In December 2018, she worked clinically for two days a week in the out-patients team at Stobhill, a hospital in North Glasgow. She also worked non-clinically on two other weekdays. Her work days were Monday to Thursday. The Registrant did not work for the Board on Fridays.

2. In December 2018, the Board commenced an investigation into an allegation that the Registrant had undertaken private work on 12 December 2018, while taking sick leave from her employment with the Board. The Registrant completed a written form of referral to the HCPC in respect of her conduct on 30 July 2019 and the Board referred the matter to the HCPC on 27 August 2019, following the conclusion of their investigation and disciplinary inquiry earlier in August 2019. 

 

Decision on Facts

3. At the start of the hearing, Mr Hutchison on behalf of the Registrant admitted each of the factual particulars of the Allegation. In relation to Particular 3, which contains the wording ‘and/or’, the Registrant admitted that the Registrant’s conduct in respect of both Particulars 1 and 2 was dishonest.  

4. The Panel’s task is to decide the facts of this case as alleged in Particulars 1 – 3 of the Allegation in the light of the Registrant’s admissions and all the evidence both oral and documentary, taking into account the submissions of Mr Lloyd and those of Mr Hutchison, and the advice of the Legal Assessor which it has accepted.

5. In making the findings of fact set out below, the Panel has taken into account those admissions, but it has concentrated on the evidence placed before it as set out in the reasons given below for those findings.  

6. The burden of proof lies with the HCPC, and the Panel has considered the factual particulars of the Allegation against the civil standard of proof, that is to say, the balance of probabilities. In relation to the charge of dishonesty (including the facts alleged at Particulars 1 and 2), the Panel has directed itself in accordance with the guidance in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at p. 586 and has borne in mind that a charge of dishonesty should only be found proved on solid grounds based on cogent evidence and after a full consideration of the circumstances.

7. The Panel heard oral evidence from the following witnesses for the HCPC:

DM -  Team Leader at the Care Home;

AB  - a Service Manager employed by the Board.
  
8. The Panel considered that DM was a credible and reliable witness. She explained the nature of the paid private work that the Registrant had been doing since 2017 at the Care Home for its patients, the arrangements that were made on 5 December 2018 for the Registrant to work there on 12 December 2018, and the Registrant’s attendance at the Care Home on that date to provide podiatry services. She produced the emails passing between her and the Registrant on 5 December 2018 and also spoke about the Registrant’s continued work, providing podiatry services at the Care Home. Her evidence was clear, convincing, balanced and fair.

9. In her evidence, AB explained her role in conducting the investigation commissioned by the Board into an allegation that on 12 December 2018 the Registrant had been working at the Care Home while absent from work with a medical certificate from her General Practitioner. She gave an overview of the investigation and produced copies of documents that had been passed to her or had been created in the course of the investigation, such as notes of interviews she conducted with other staff members. The Panel found her evidence to be balanced and clear and it considered that AB’s evidence was credible and reliable.        

10. The Registrant gave oral evidence. The Panel considered that the evidence she gave was honest, credible and reliable. 

Paragraph 1 / ‘On 12 December 2018 you engaged in private paid work as a podiatrist whilst absent due to sickness absence, and receiving sick pay from your substantive employment with NHS Greater Glasgow and Clyde.’

11. The Panel has seen the written Statements of Fitness for Work dated 3 December 2018 and 10 December 2018, signed by the Registrant’s GP, each stating that the Registrant was not fit for work. The document dated 10 December 2018 recorded the GP’s advice that the Registrant was not fit for work and that this would be the case for seven days. The Registrant informed CB, Podiatry Team Leader, on 2, 3 and 6 December 2018 that she would not be working due to sickness. She did not attend her NHS workplace on 3 December 2018 and returned to work there on 17 December 2018. 

12. The three emails dated 5 December 2018 passing between the Registrant and DM showed that the Registrant contacted the Care Home to arrange an appointment the following week and that the date of 12 December 2018 was agreed for her visit. She was seen working at the Care Home on that date by GW, another practitioner who was interviewed by AB in the disciplinary investigation. The Registrant also accepted when interviewed by AB on 28 January 2019 that she had been working at the Care Home on that date.

13. In her written self-referral to the HCPC, the Registrant also admitted that she had been in receipt of sick pay from the Board for the period of her absence while off sick. The Panel has also seen a copy of a receipt for payment of treatment at the Care Home for treatment given on 12 December 2018 from one of the patients treated by the Registrant on that day. 

14. In those circumstances, the Panel has found this Particular of the Allegation to have been proved.
 
‘Paragraph 2 / During NHS Greater Glasgow and Clyde’s investigation and/or disciplinary process in respect of your private paid work of 12 December 2018, you claimed that one of the reasons for your attendance at Bankhall Court Care Home (“the Home”) was receipt of a short notice request from the Home, when you knew this was not the case.’

15. The Registrant wrote a letter dated 28 December 2018 to PH, Podiatry Manager, who conducted the initial investigations into the Registrant’s actions. In that letter, she stated that she had told PH in their earlier discussion on 18 December 2018 that in respect of her visit to the Care Home on 12 December 2018, ‘the home contacted me at short notice for treatment of some of the residents.’

16. The Panel has also seen the note of the interview of 28 January 2019, which was not challenged. The note records that the Registrant stated that in respect of her attendance at the Care Home on 12 December 2018, ‘the home contacted me at short notice.’ 

17. The three emails of 5 December 2018 show that the Registrant’s attendance at the Care Home to work on 12 December 2018 had been arranged on 5 December 2018 and that it was the Registrant who had written to the Care Home to arrange work for the following week.

18. The Panel has also taken into account the admissions made by the Registrant in her oral evidence that each of the statements set out in paragraphs 15 and 16 above was inaccurate.  

19. Therefore, the Panel has found this Particular of the Allegation to have been proved in its entirety.

Paragraph 3 / ‘Your conduct in paragraphs 1 and/or 2 was dishonest.’

20. The correct approach to dishonesty in law was authoritatively stated by the Supreme Court in Ivey v Genting [2017] UKSC 67. Lord Hughes, giving the judgment of the court, stated at [74] –


…. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

Dishonesty with respect to paragraph 1

21. The Panel has made the following findings with respect to the Registrant’s state of mind when attending on patients at the Care Home on 12 December 2018. She knew that she had told her NHS employer that she was unfit to work through sickness. She also knew that she had been ‘signed off’ sick by her GP and in receipt of sick pay for that day. She was also aware that she would be paid private fees for the services provided at the Care Home on that day and that she was paid for that private work.

22. That being the Registrant’s state of mind as to the relevant facts, ordinary decent people would consider it dishonest to have engaged in private paid work as a Podiatrist on 12 December 2018 while absent due to sickness absence and receiving sick pay from her substantive employment with the Board. 

23. Therefore, the Panel has found Particular 3 of the Allegation to have been proved with respect to Particular 1 of the Allegation.

Dishonesty with respect to paragraph 2

24. The Registrant has admitted in her evidence that she did not receive a short notice request from the Care Home to attend on 12 December 2018. She knew that it was she who had initiated the contact with the Care Home, on 5 December 2018 by email and that the attendance had been arranged on that date by the two further emails of 5 December 2018 passing between her and DM.
 
25. In the circumstances, ordinary decent people would consider that it was dishonest for the Registrant to claim during the Board’s investigation and disciplinary process that one of the reasons for her attendance at the Care Home on 12 December 2018 for private paid work was receipt of a short notice request from the Care Home, when she knew that no such request had been made by her and therefore that her claim was a lie.

26. Therefore, the Panel has found Particular 3 of the Allegation to have been proved with respect to Particular 2 of the Allegation.

27. Accordingly, Particular 3 has been found proved in its entirety.
 

Decision on Grounds

28. Mr Lloyd submitted that the facts, if proved, established misconduct. They constituted serious departures from professional standards. The Panel has borne in mind the Registrant’s admission through Mr Hutchison, again made at the outset of the hearing, that the (admitted) facts constituted misconduct.  

29. The Panel has directed itself in accordance with the advice from the Legal Assessor. In summary, the facts proved will amount to the statutory ground of misconduct if they establish conduct that fell short of what would have been proper in the circumstances, including the requirements of rules and standards ordinarily required to be followed and if, in context, the conduct was sufficiently serious: see Roylance v GMC [2000] 1 AC 311 and Nandi v GMC [2004] EWHC 2317 (Admin). The Panel’s attention was also drawn to Khan v GMC [2015] EWHC 301 (Admin), where Mostyn J stated at [6], -

The decisions from this court have demonstrated that a very strict line has been taken in relation to findings of dishonesty. This court and its predecessor, the Privy Council, has repeatedly recognised that for all professional men and women, a finding of dishonesty lies at the top end of the spectrum of gravity of misconduct; ..

30. By acting dishonestly in taking privately paid work on 12 December 2018 while on sickness absence from her main NHS employer and in receipt of sick pay for that work and then giving a dishonest explanation for that private work in her employer’s investigative and disciplinary process, the Registrant’s conduct fell seriously short of what was proper in the circumstances.

31. The Registrant’s conduct also constituted a failure to comply with Standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics, January 2016, which states -

Standard 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

The Panel did consider whether there were circumstances that might justify a departure from the guidance in Khan v GMC in the context of misconduct but concluded that there were no such circumstances.

32. Two further Standards, namely 8.1 (openness towards service users when things go wrong) and 9.6 (co-operation with investigations), were mentioned in the submissions made for both parties. The Legal Assessor did give the Panel legal advice in relation to those matters, but it considered that all aspects of the misconduct were captured by Standard 9.1 and by the Panel’s wider consideration of the seriousness of the conduct, as set out in paragraph 30 above.     

33. In all the circumstances, the Registrant’s conduct was sufficiently serious to amount to the statutory ground of misconduct. Therefore, the statutory ground of misconduct has been established.

 

Decision on Impairment

34. Mr Lloyd referred to the ‘personal component’ and ‘public component’ set out and explained in the HCPTS Practice Note, Fitness to Practise Impairment, (December 2019) and put forward a number of considerations based on the facts and circumstances of this case. He submitted that on the basis of the personal component and the public component, particularly by the need to uphold proper professional standards and public confidence in the profession and the regulator, the Panel may consider that the Registrant’s fitness to practise is impaired. That, he pointed out, was a matter of judgment for the Panel.

35. Mr Lloyd referred to the considerations set out in the judgment of Mrs Justice Cox in CHRE v NMC & Grant [2011] EWHC 927 (Admin). He also referred to the judgment of Carr J. in Professional Standards Authority v The Health and Care Professions Council & Mohammed Ghaffar [2014] EWHC 2723 (Admin) at [45] - [46], that it would be an unusual case where dishonesty did not result in impairment.

36. Mr Hutchison submitted that the Registrant’s fitness to practise is not impaired with respect to either the personal or public components of impairment. He referred to CHRE v NMC & Grant and submitted that the insight and remediation undertaken by the Registrant were such that the personal component of impairment had not been established. He submitted that the considerations of the wider public interest did not require a finding of impaired fitness to practise. 

37. The Panel also received advice from the Legal Assessor, which it has accepted. That advice included reference to the considerations set out in CHRE v NMC & Grant at [65] - [76] in the judgment of Cox J and the correct approach to impairment in the context of dishonesty as explained in the authorities set out in PSA v GMC & Hilton [2019] EWHC 1638 (Admin) at [85] - [86] (which include PSA v HCPC & Ghaffar) and other case law. 

38. The Panel’s conclusions on the issue of impairment are as follows. In considering whether or not the Registrant’s fitness to practise is currently impaired, the Panel examined the ‘personal component’ first. 

39. In assessing the personal component, a key consideration is the level of insight demonstrated by a registrant. In view of the Registrant’s oral evidence in particular, the Panel considered whether she had shown an understanding of the following, namely the seriousness of her conduct, the impact of her conduct on others and on the profession, and the causes of her behaviour and how to address them.

40. The Panel concluded that the Registrant did understand the seriousness of her dishonesty. She made admissions to each of the factual particulars and also admitted that her actions amounted to misconduct.  She explained that by acting as she did, she had lost the trust and respect of her professional colleagues and her integrity had been damaged. Both the genuine remorse shown by the Registrant in giving evidence and shame she expressed about letting down her colleagues, the apologies she offered to them in her evidence and the embarrassment she showed when interviewed by AB, all showed that she well understood the seriousness of what she had done in carrying out private work while off work sick and taking sick pay.

41. The Registrant’s oral evidence persuaded the Panel that she grasped how serious it was to have lied to the Board’s representatives in the investigation and disciplinary process. She did not attempt to excuse her conduct, even though she explained that she found part of her work for the Board (on the non-clinical side) to be very stressful. Her self-referral to her regulator underlined her appreciation of the gravity of her conduct and she told the Panel that she had learned a painful lesson and referred to the deep personal pain and regret that she felt about her actions.

42. The Registrant also understood that the effect on public confidence in the profession. In her evidence, she explained how she had let down the profession and that members of the public would be shocked and disappointed by her conduct.         

43. The Registrant told the Panel of the measures she has put in place to avoid a repetition of her actions. She explained that she had been working on a self-employed basis only and had engaged a receptionist to manage her diary properly. If appointments had to be re-scheduled due to her sickness in particular, she would ensure that the appointments would be re-scheduled.

44. The Panel also considered remediation, asking itself whether the conduct that led to the Allegation was remediable, whether or not the Registrant has taken remedial action, and whether those acts or omissions are likely to be repeated. 

45. It is difficult to remediate dishonesty, though not impossible. The Panel accepted that the Registrant had not been motivated by the extra money she earned on that single day. She had also paid back the sick pay.

46. The Registrant assured the Panel that she would never again let down the profession as she had done.

47. The Panel took into account the testimonial evidence provided by the Registrant. It paid particular regard to the fact that one of the testimonials had been given by the Head of Medical Services on behalf of a well-known football club, for which the Registrant has provided podiatry services, and continues to do so. The club is aware of the allegations in this case. The testimonial stated that the Registrant had acted with complete honesty and integrity in her dealings with the club and she had expressed her remorse to the Head of Medical Services for what she had done. He wrote that, ‘despite this current case, I still believe Jolene to be an honourable individual and excellent caring podiatrist.’  
 
48. The Panel also bore in mind the evidence of DM who told the Panel that the Care Home has continued to engage the Registrant for private work despite the allegations in this case and that she considered the Registrant always to have been honest in her approach in her dealings with the staff at the Care Home and the residents who are looked after there.

49. In view of all the considerations set out above, the Panel has concluded that the risk of repetition of the misconduct is very low and further, that the Registrant’s fitness to practise is not impaired by reference to the personal component. 

50. The Panel next considered the public component, and in particular the need to maintain public confidence in the profession and to declare and uphold standards of conduct among members of the profession. In view of the Panel’s findings as to the risk of repetition, there is no risk significant risk of harm to service users and that element of the ‘public component’ is not engaged.

51. The Panel asked itself whether in view of the principles from the relevant case law and in the light of all the circumstances, the fact that the Registrant has undergone a rigorous assessment of her fitness to practise in her regulator’s procedures, resulting in a public finding of misconduct would be sufficient to maintain public confidence in the profession and to declare and uphold professional standards, or whether a finding of impaired fitness to practise is necessary in order to do so.

52. In making that assessment, the Panel has taken into account the insight and remediation to which it has already referred and the low risk of repetition. It bore in mind that the Registrant has been practising as a Podiatrist for approximately 20 years and that the misconduct was isolated, in the context of an otherwise unblemished career. It has also taken into account that the Registrant is a competent and caring practitioner and all other matters in her favour.

53. The Panel refers to the following passage from the judgment in CHRE  v NMC & Grant, where Cox J. stated,-  

76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in my view that test would be equally applicable to other practitioners governed by different regulatory schemes.
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, convictions, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk or harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession: and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

In view of the Panel’s findings of fact and its conclusions on the question of misconduct, the Registrant has brought the profession into disrepute, has acted dishonestly and also breached a fundamental tenet of the profession: to make sure that a practitioner’s conduct justifies the public’s trust and confidence in them and their profession.

54. Although none of these matters is likely to be repeated in the future,  the Registrant was a very experienced practitioner at the time, who occupied a position of seniority as an employee of NHS Greater Glasgow & Clyde. She well knew that it was dishonest to do private work while signed off sick from her NHS post, in receipt of sick pay. Instead of telling her employer what she had done, she lied to those who investigated the matter by giving a dishonest explanation of why she was working at the Care Home on the day. The Registrant was correct to acknowledge that members of the public would have been shocked by what she had done.

55. Even though the Registrant has undergone a rigorous assessment of her fitness to practise and a finding of misconduct has been made, the Panel has concluded that in view of all the circumstances of this case and the gravity of the misconduct in particular, a finding of current impairment is necessary in order to maintain public confidence in the profession and to declare and uphold professional standards.         

56. Therefore, the Panel has concluded that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction

57. Mr Lloyd referred to the Sanctions Policy (SP) and to the purpose of sanctions He invited the Panel to consider each available sanction in ascending order of seriousness. He informed the Panel that there was no previous fitness to practise history against the Registrant.

58. Mr Lloyd stated that it was not the role of the HCPC to bid for a particular sanction, but he referred to paragraphs of the SP that he submitted may be relevant to the available sanctions.     

59. In summary, Mr Hutchison’s submissions were as follows. The misconduct was an isolated occurrence in a long and otherwise unblemished career of a very effective and respected practitioner. The Registrant had made amends by prompt repayment of all the sick pay she received for the period and had made apologies towards her colleagues. She had acknowledged the inconvenience that her actions had caused to the NHS and to the HCPC and had shown considerable and genuine remorse for her actions. The Registrant had admitted the charges in these proceedings and had made admissions during the Board’s investigation and disciplinary process. The Registrant attended the Care Home out of concern for the care of her patients and had then panicked when asked to explain what she had done in the disciplinary process.

60. Mr Hutchison pointed to the Registrant’s self-referral to the HCPC. She had lost her job with the Board as a result of her actions. She had suffered and been punished enough for what she had done. He also referred to the testimonials. A severe sanction would be to the detriment of the profession as it would lose a highly valued and trained Podiatrist. It was unlikely that there had been any damage to the reputation of the profession, as the Care Home and the football club have continued to engage the Registrant for her podiatry services. He also referred to PSA v GMC & Uppal [2015] EWHC 1304 (Admin) at [34] and to other decisions of the Conduct and Competence Committee. 

61. Mr Hutchison submitted that in the circumstances, public confidence in the profession and other aspects of the wider public interest is sufficiently marked by the rigour of the disciplinary process, the Panel’s finding of misconduct, its further finding of impairment and the prior disciplinary process, which had resulted in the loss of her job at the Board.  Therefore, ‘no action’ would be the appropriate response to the circumstances of this case, and if not, a Caution for a period of no more than one year.

62. The Panel has taken into account all the submissions of Mr Lloyd and Mr Hutchison and the relevant parts of the SP in reaching its decision, its earlier findings and the evidence before it, as well as PSA v GMC & Uppal and the other decisions referred to by Mr Hutchison. No further oral or documentary evidence was relied on at this stage by either party. The Panel has accepted the advice given by the Legal Assessor.

63. The primary function of any sanction is to protect the public and the wider public interest. Sanctions are not intended to punish registrants, but instead to ensure that the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, a panel is required to apply the principle of proportionality.

64. In assessing the seriousness of the misconduct, the Panel has had regard to that section of the SP headed, ‘Serious cases.’ Paragraphs 56 – 58 address dishonesty. Dishonesty undermines public confidence in the profession and breaches Standard 9 of the HCPC’s Standards of conduct, performance and ethics (paragraph 56). Dishonesty in the workplace can have a significant impact on the trust placed in the practitioner (paragraph 57).

65. In this case, the dishonesty was financial, involved public funds and was followed by a lie told by the Registrant to two individuals who investigated the matter with a view to misleading their investigation. There was also an adverse impact on the trust placed in her by colleagues in the workplace, as the Registrant told the Panel. The dishonesty was also aggravated by the knock-on effect, because the Board had to investigate her conduct and she then tried to mislead the investigation.

66. The SP states that given the seriousness of dishonesty, cases are likely to result in more serious sanctions, though a nuanced assessment of the form and degree of the dishonesty is required (paragraph 58).

67. In carrying out that assessment, the Panel bore in mind that the dishonesty consisted of two acts that were interlinked. Although the dishonesty did not occur on multiple occasions and took place over a short period, the Registrant took an active role in respect of it, especially in her attempt to mislead the investigation and disciplinary process. Though the Registrant made an early admission of her dishonesty to her employer, she tried to downplay the seriousness of what she had done by lying to those who interviewed her in that process. She has since admitted in these proceedings the Allegation that she did lie in the investigation.

68. The seriousness of the dishonesty must also be weighed against the mitigating factors in the case. The misconduct was an isolated occurrence in a long and otherwise unblemished career of a very effective and respected practitioner. It has not been repeated. The Registrant had made amends by prompt repayment of all the sick pay she received for the period and has made apologies to her colleagues and those affected by her actions in the evidence she gave. She has remediated her misconduct as far as possible.

69. The Registrant acknowledged the inconvenience that her actions had caused to the NHS and to the HCPC and has shown considerable and genuine remorse for her actions, as well as insight. The Panel accepts that the Registrant attended the Care Home out of concern for the care of her patients and was not motivated by financial gain.

70. The Panel has borne in mind that this is a case where there is no significant risk to patients and turns on the question of what, if any, action is needed as a sanction in order to maintain public confidence in the profession and its regulation and to uphold standards among members of the profession, so as to provide a deterrent effect on other registrants.

71. The Panel considered first whether ‘no action’ would be a suitable response to the impaired fitness to practise.          

72. Even though the risk of repetition of the misconduct is low, to conclude this case by taking ‘no action’ would not reflect the seriousness of the misconduct. The Panel gives little weight to the adverse effects on the Registrant as a result of her dismissal. Its function is to decide this case in a manner that maintains public confidence in the profession and declares and upholds standards of conduct among members of the profession. 

73. In addition, the rigours of the regulatory process and the Panel’s findings of misconduct and current impairment do not sufficiently meet the demands of that wider public interest in this case in view of the seriousness of the misconduct, despite the mitigating circumstances. The Panel has considered the case of PSA v GMC & Uppal, in particular. That was a very different case, where the dishonesty concerned the conduct of a trainee doctor, who also told the truth in the disciplinary investigation by her employer into her actions.       

74. The Panel next considered the possibility of a Caution, which may be imposed for a period between one and five years. The SP states the following in relation to the sanction of a Caution, -

101. A caution order is likely to be an appropriate sanction for cases in which:

• the issue is isolated, limited, or relatively minor in nature;

• there is a low risk of repetition;

• the registrant has shown good insight; and

•  the registrant has undertaken appropriate remediation.

102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).’

75. The Panel refers to the considerations in paragraph 101. The Panel has already concluded that there is a low risk of repetition, that the Registrant has shown good insight and that she has remediated the misconduct so far as is possible. The Panel also accepts that the misconduct was isolated

76. However, the misconduct was neither limited nor relatively minor in nature. By her first act of dishonesty the Registrant undertook private paid work when she had been signed off sick by her NHS employer and in receipt of sick pay. This led to her dishonest attempt to downplay what she had done by attempting to persuade the investigation that the Care home had contacted her a short notice, which she knew was a lie. That conduct brought the profession into disrepute, breached a fundamental tenet of registered practice and was dishonest.    

77.  The Panel did also bear in mind at this stage of its decision-making that Conditions of Practice would not be appropriate, for the reasons given below. Therefore, it also considered at this stage whether or not a sanction of suspension, particularly one of short duration, would be disproportionate. For the reasons set out below, despite all the points advanced in favour of the Registrant and the arguments made by Mr Hutchison as to the wider public interest and the effect of a suspension order on the Registrant and the decided cases relied on by him, the Panel concluded that an order of suspension would not be disproportionate.

78. The Panel concluded that a Caution would not meet the seriousness of the case and the demands of the public interest with which this Panel is concerned. The Panel did bear in mind that a Caution may last as long as five years. However, such an outcome would not maintain public confidence in the profession or be sufficient to uphold professional standards and provide a sufficient deterrent effect.

79. As indicated, Conditions of Practice would not be an appropriate sanction in this case. Conditions must be appropriate to remedy the concerns raised (paragraph 111 of the SP). There is no serious risk of repetition and Conditions of Practice are not appropriate to dishonesty in any event.   

80. In considering whether an order of suspension would meet the demands of the case, the Panel weighed the aggravating and mitigating factors and also the potential effects of such an order on the Registrant.

81. Paragraph 121 of the SP states, -

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.

Paragraph 124 of the SP states, -

Short-term suspensions can also be appropriate in cases where there is no ongoing risk of harm, but where further action is required in order to maintain public confidence in our professions.

82. The factors identified in paragraph 121 all apply in this case and the guidance indicates that a short-term suspension may be appropriate in cases where further action is necessary to maintain public confidence. 

83. The Panel has concluded that a short period of suspension is the appropriate response in view of the gravity of the misconduct and all the circumstances. Such a measure shows that misconduct of this nature is wholly unacceptable, whereas a Caution would not carry that message sufficiently. A short period of suspension is also the appropriate response in order to maintain public confidence in the profession. Members of the public aware of all the circumstances of this case would be surprised if, notwithstanding all the mitigation and other points in favour of the Registrant, the outcome of the case were a less serious sanction.

84. In determining the period of the suspension, the Panel has also considered the potential impact of a suspension on the Registrant and has considered what the minimum period should be in order to meet the demands of the public interest as the Panel has explained them to be.

85. In all the circumstances, the Panel has decided that a period of three months is the proportionate and necessary period.

86. For those reasons, the Panel has decided that a suspension order of three months should be placed on the registration of the Registrant.

Order

Order: The Registrar is directed to suspend the registration of Ms Jolene McHugh for a period of 3 months from the date this Order comes into effect.

Notes

Interim Order

1. Mr Lloyd applied for an Interim Suspension Order. He submitted that in view of the Panel’s decision, such an order was appropriate as being otherwise in the public interest. Mr Hutchison did not oppose the application but made clear that he did not consent to it. The Panel accepted the advice given by the Legal Assessor. 

2. By Article 31(1), (2) Health Professions Order 2001 the Panel has the power to impose an Interim Suspension Order for a maximum period of 18 months. The legislation has been drafted so that an order of suspension does not take effect until 28 days after service of the order and if the Registrant appeals, until after disposal of the appeal. 

3. An Interim Suspension Order will last very much longer than the substantive order in view of the time it will take for an appeal to be heard, which is likely to be more than a year, if not considerably more. The period of the interim order does not count towards the substantive order.

4. In this case, the sole ground for an Interim Order that is relied on is that an order is otherwise in the public interest, there being no need to protect members of the public.

5. Although the word “necessary” is not used for the public interest ground, there is some implication of necessity and desirability, because the imposition of any order must be proportionate.

6. To decide whether or not an order is appropriate on the public interest ground, the Panel has considered whether public confidence in the profession is likely to be seriously damaged if the Registrant were to continue to hold unrestricted registration in the interim period before the expiry of the 28 days, and should she appeal, until any appeal is disposed of.

7. In addressing that question, the Panel has considered whether or not a reasonable member of the public informed of the circumstances of this case would be troubled or concerned if an Interim Order were not made.

8. A reasonable member of the public would be taken to know that the Panel’s reasons for imposing the Suspension Order of three months were based on the public interest alone. So, would the well-informed reasonable person be concerned if an Interim Order were not made, knowing that a substantive suspension order of three months had been imposed to maintain public confidence and to declare standards of professional conduct, but the Registrant has a right to appeal, that she might exercise that right and that the substantive order does not come into effect for 28 days? The Panel considers that the answer to this question is ‘no’. 

9. In Davey v GDC 2015 WL 675832, an immediate order of suspension made under s 36U Dentists Act 1984 was set aside by the reviewing court where the substantive order of suspension of 12 months concerning the registrant clinical dental technician had been imposed on public interest grounds only. The Committee decided that it was in the public interest to make an Interim Order in light of the misconduct found proved. The registrant applied to remove or overturn the order pending the hearing of his appeal. Granting the application, Deputy Master Bard said that the only reason given was the gravity of the misconduct. It was not clear that the full extent of the impact of the immediacy of the order was weighed by the panel. It was not clear that the draconian effect of a prospective appeal was considered, which was that all times spent until the appeal was heard under the immediate order would not count at all towards the twelve-month suspension that the panel imposed. It was not easy to see why the public interest—which had, until then, allowed the claimant to continue to practise—now required that he should cease immediately rather than continue for twenty-eight days until the suspension took effect or, if appealed, until the appeal was heard. The only reason given was the gravity of the misconduct, but even though, on any view, what happened was serious, it was not explained how the public interest was benefited to any significant degree, to a test of desirability, let alone necessity, by the imposition of an immediate order. In the circumstances, the immediate order was terminated.

10. In the circumstances, the Panel has concluded that there would be no serious damage to the public interest if an Interim Suspension Order were not made.

11. In any event, a balancing exercise is required, balancing any need to protecting the public interest against the potential consequences of an interim order on the Registrant. Even if the Panel were satisfied of a likelihood of serious damage to the public interest (which it is not), it must also consider whether the consequences of making the order are proportionate to the risks from which they are seeking to protect the public interest. The Panel concluded that those consequences would be disproportionate in view of, (i) the disproportionate length of the interim order when measured against the substantive order; and (ii) the fact that the Interim Order does not count towards the substantive order.

12. Therefore, the Panel decided to refuse the application.

 

Hearing History

History of Hearings for Miss Jolene McHugh

Date Panel Hearing type Outcomes / Status
11/08/2021 Conduct and Competence Committee Review Hearing No further action
10/05/2021 Conduct and Competence Committee Final Hearing Suspended