Mr Damian Clark

Profession: Biomedical scientist

Registration Number: BS41471

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/11/2021 End: 17:00 19/11/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

As a registered Biomedical Scientist (BS41471) your fitness to practise is impaired by reason of conviction. In that:

1. On 15 January 2020 at Liverpool Knowsley & St Helens Magistrates' Court, you were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath, namely 115 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

2. By reason of your conviction, your fitness to practice is impaired.

Finding

Preliminary Matters:

Application for parts of the hearing to be held in private

1. Mr Lloyd applied under Rule 10(1) of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 for those parts of the hearing which involve reference to the Registrant’s health and personal life to be heard in private. Mr Clark did not oppose this application. The Panel determined that such parts of the hearing that referenced health should be held in private for the protection of Mr Clark’s private life.

Background:

2. Mr Clark is registered with the HCPC as a Biomedical Scientist. On 7 January 2020 he sent a self-referral form to the HCPC notifying them that he had been arrested following a road traffic accident that occurred on 25 December 2019. Mr Clark engaged with the HCPC and provided updates in respect of the progression of his court case.

3. On 15 January 2020, Mr Clark was convicted on his own admission at Liverpool Knowsley & St Helens Magistrates' Court of driving a motor vehicle with excess alcohol. The legal limit in the UK being 35 microgrammes per alcohol in 100 millilitres of breath. Mr Clark’s reading was recorded as 115 microgrammes of alcohol in 100 millilitres of breath. He was disqualified from driving for 27 months and a community order was imposed. He was also ordered to pay a victim surcharge and court costs.

Admissions

4. At the outset of the hearing, Mr Clark informed the Panel that he admitted the conviction set out at particular 1 of the Allegation. Further, in the course of his oral evidence Mr Clark confirmed the conviction.

Evidence

5. There was before the Panel a bundle of documents prepared on behalf of the HCPC, containing a Memorandum of Conviction in regard to particular 1 and exhibits including the Registrant’s self-referral form, a witness statement from the police and an Occupational Health report. Also before the Panel were two character references provided by Mr Clark.

Submissions

6. Mr Lloyd’s submission was that particular 1, the conviction, could be proved by the Memorandum of Conviction and that this would then amount to the statutory ground of conviction.

7. In regard to impairment, Mr Lloyd submitted that the matters giving rise to the conviction amounted to a breach of standard 9 of the HCPC Standards of Conduct, Performance and Ethics, “you must make sure that your conduct justifies the public’s confidence in you and your profession”. His submission was that the public would be alarmed and would lose confidence in the profession were this conviction and its causes not marked by a finding of impairment. In this context Mr Lloyd referred to Mr Clark’s evidence in regard to the limited factual disclosures to counsellors, colleagues and his General Practitioner (GP) of the full nature of the conviction and the matters leading to it and also to his history of alcohol consumption.

8. Mr Lloyd’s submission was that in engaging in dangerous criminal behaviour Mr Clark brought the profession into disrepute and breached a fundamental tenet of the profession as set out in standard 9 of the HCPC Standards of Conduct, Performance and Ethics. Furthermore, that the level of insight and remediation displayed by Mr Clark may indicate that there remains a risk of repetition.

9. Mr Clark in his evidence and submissions described the effect that the conviction had had upon his attitude towards drink driving and his conduct which he described as disgraceful and unacceptable. He said that he had undertaken the drink driving awareness course to the extent possible during Covid-19 restrictions. Mr Clark said that he had learned from this and from further reading of the potential risks to other road users and to service users of the effect on driving ability, judgement and working ability as a result of alcohol consumption.

10. Mr Clark further said that since his conviction, he abstained from alcohol for some two months and now limits his consumption to beer and drinking this in small quantities, generally only at the weekends. He did describe however, one occasion when he drank a significant quantity of beer at a celebratory event. He also said that he no longer drinks wine save for one family occasion when he drank one or two glasses of wine.

11. Mr Clark submitted that in the light of these matters his fitness to practise is not currently impaired.

Decision on Facts:

12. In reaching its decision on the facts the Panel considered all the evidence before it, both oral and documentary, together with the submissions of Mr Lloyd and Mr Clark. It accepted the advice of the Legal Assessor.

Particular 1 – Found Proved

13. The Panel was satisfied that this was a true Memorandum of Conviction, and it therefore found the conviction proved. Therefore, the Panel found particular 1 proved.

Decision on Ground:

14. The Panel next considered whether the facts found proved amounted to the statutory ground of conviction. In doing so it had regard to the submissions of Mr Lloyd and Mr Clark. It accepted the advice of the Legal Assessor.

15. In regard to particular 1, the Panel found the statutory ground of conviction was established by reason of the Memorandum of Conviction.

Decision on Impairment:

16. The Panel next considered whether Mr Clark’s fitness to practise is currently impaired by reason of his conviction.

17. In reaching its decision the Panel took into account its findings of fact together with the submissions of Mr Lloyd and those of Mr Clark. It had regard to the HCPTS Practise Notes on Conviction and Impairment. The Panel accepted the advice of the Legal Assessor.

18. Mr Clark gave evidence in an apparently candid manner, however when questioned by the Panel it was clear that he had not been completely transparent. The Panel therefore concluded that although Mr Clark may have believed that his evidence was honest, it was not confident that it was a true and complete picture of his history of alcohol consumption since 2014.

19. In regard to the personal component, the Panel concluded that Mr Clark’s conduct which led to the conviction is remediable and that he has taken some steps to remedy it. This includes reading of material regarding self-help in addressing alcohol consumption. The Panel is aware that Mr Clark self-referred this matter to the HCPC prior to the date of his conviction and also that he pleaded guilty at an early stage. Moreover, he informed senior colleagues that he had been convicted. Furthermore, Mr Clark accepted that although by good fortune those in the car with whom he collided were uninjured, the incident would be likely to have affected them, particularly as it occurred on Christmas Day. He also accepted that his resultant absence on the day of the offence, left his work colleague unsupported during a shift.

20. Mr Clark told the Panel that he now drinks only beer in modest quantities and does so generally only at weekends.

21. However, the Panel regarded these remedial steps to be insufficient.

22. The Panel could not be confident that Mr Clark’s description of his current level of drinking is accurate. The Panel found this to be evidence of a significant and concerning lack of insight and self-awareness. In the light of these matters the Panel was not satisfied that it could rely upon Mr Clark’s description of his current level of alcohol consumption.

23. The Panel has therefore concluded that although Mr Clark has developed some degree of insight, this is extremely limited.

24. In the light of Mr Clark’s lack of insight the Panel has concluded that although he has expressed genuine remorse and has described his conduct as disgraceful and unacceptable it cannot be satisfied that this has been satisfactorily addressed.

25. Furthermore, the Panel cannot be confident that Mr Clark has the mechanisms to prevent relapse to excessive alcohol consumption with a potential risk to road users and to service users.

26. In these circumstances, in regard to the personal component, the Panel has determined that Mr Clark’s fitness to practise is currently impaired.

27. Furthermore, a finding of current impairment is also required in the wider public interest. This is necessary to declare and uphold proper professional standards and to maintain public confidence in the profession. The public would expect a Biomedical Scientist to act in accordance with those standards and to justify the trust that the public place in him. Public confidence in the profession and the HCPC as a regulator would be undermined were a finding of impairment not made. The Panel has therefore concluded that Mr Clark’s fitness to practise is also impaired in regard to the public component.

Decision on Sanction:

28. In reaching its decision, the Panel considered all the information before it, together with the submissions by Mr Foxsmith and those by the Registrant. It had regard to the HCPC’s Sanctions Policy (The Policy). It accepted the advice of the Legal Assessor.

29. Mr Foxsmith made no submissions in regard to particular sanctions. He referred the Panel to the policy and emphasised that the purpose of a sanction is not to punish the Registrant but to protect the public. He did, however, refer to certain mitigating factors in relation to the degree of insight demonstrated by the Registrant and the remorse he had expressed. Mr Foxsmith referred also to the fact that the Registrant is apparently supported by his management and has indeed continued in his employment.

30. The Registrant submitted that the appropriate and sufficient sanction would be that of a Caution Order. If the Panel did not accept that submission he proposed a Conditions of Practice Order. His submission in that regard was that Conditions of Practice requiring testing for alcohol consumption would be appropriate and that such testing could be arranged at his place of employment.

31. The Panel found, as an aggravating factor, the serious nature of the offence.

32. The Panel found as mitigating factors that:
• The Registrant has expressed some degree of insight, albeit limited, and also remorse
• There have been no previous regulatory findings against the Registrant
• There have been no previous convictions for such offences
• The Registrant made admissions to the matters alleged, pleaded guilty to the offence and self-referred to the HCPC
• The Registrant remains in his employment and his management is supportive
• There have been no criticisms of the Registrant’s professional ability and competence.

33. The Panel first considered whether to take no action but the serious nature of the matters giving rise to the conviction requires a sanction.

34. Mediation is not appropriate in this type of conviction case.

35. The Panel considered a Caution Order but determined that as the registrant has displayed only limited insight and there remains a risk of repetition of the matters which gave rise to the conviction, such a sanction would be inadequate; furthermore, a Caution Order would not demonstrate to the public the serious nature of the conviction.

36. The Panel next considered a Conditions of Practice Order. It concluded that there are conditions that would be workable, appropriate and sufficient to protect the public and to indicate the Panel’s concern for the reputation of the Profession. Such an order to be for a period of 12 months. This period is appropriate to protect the public and to satisfy any reviewing Panel that he has done so and that there would be no repetition of the matters which gave rise to his conviction. Furthermore, such an Order would be an opportunity for the Registrant to reflect upon those matters.

37. The Panel did consider a Suspension Order but concluded that as the Registrant is a competent and respected Practitioner about whom there has been no criticism of his practice, this would be unnecessary and disproportionate. The risk posed by the Registrant can be adequately addressed by a Conditions of Practice Order which also enables the Registrant to continue working.

38. At any review, the reviewing Panel would doubtless be assisted by a written reflection by the Registrant.

Order

ORDER: The Registrar is directed to annotate the HCPC Register to show that, for 12 months from the date that this Order takes effect (“the Operative Date”), you, Mr Damian Clark, must comply with the following conditions of practice:

1. You must register with and remain under the care of a general practitioner and inform him or her that you are subject to these conditions.

2. You must inform your general practitioner about these conditions of practice and authorise the doctor to provide the HCPC with information about your health and any treatment you are receiving.

3. You must abstain absolutely from the consumption of alcohol.

4. You must make arrangements for testing for the ingestion of alcohol by hair analysis or by a continuous monitoring tagging system. The testing is to be undertaken by a body independent of your employers. You must provide to the HCPC details of the testing arrangements and forward copies of the results for each preceding month to the HCPC on a monthly basis.

5. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

7. You must inform the following parties that your registration is subject to these conditions: A. any organisation or person employing or contracting with you to undertake professional work; B. any agency you are registered with or apply to be registered with (at the time of application); and C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions and providing information and reports to the HCPC.

 

Notes

This order will be reviewed again before its expiry.

Interim Order

Mr Foxsmith applied for an Interim Order on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. He submitted that the Order should be for the maximum period of 18 months to cover the 28-day appeal period and the time that might be required to conclude any appeal.

In reaching its decision the Panel considered all the information before it, together with its findings on impairment, the submissions by Mr Foxsmith and the comments by the Registrant. It took into account the HCPTS Practice Note on Interim Orders, and the relevant paragraphs of the sanctions policy. It accepted the advice of the Legal Assessor.

The Panel was satisfied that as the Registrant’s fitness to practice is impaired and that there is a risk of repetition, an Interim Order is necessary for the protection of the public. Furthermore, an Order is also in the public interest as right thinking members of the public would be concerned if the Registrant were allowed to practice unrestricted until the substantive order comes into effect.

The Panel is satisfied that the substantive conditions imposed are sufficient for these purposes. The Interim Conditions of Practice Order will be for 18 months to cover any appeal period.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Damian Clark

Date Panel Hearing type Outcomes / Status
19/11/2021 Conduct and Competence Committee Final Hearing Conditions of Practice
02/09/2021 Conduct and Competence Committee Final Hearing Adjourned part heard
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