Jennifer Hughes

Profession: Biomedical scientist

Registration Number: BS68878

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 18/10/2021 End: 17:00 20/10/2021

Location: Virtual via Video Conference

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

(as amended on Day 1)


As a registered Biomedical Scientist (BS68878) your fitness to practise is impaired by reason of misconduct and/or conviction. In that:

1. On 12 November 2019, you were convicted at the Crown court at Liverpool of dangerous driving and failing to provide specimen for analysis (being in charge of motor vehicle). Offences under section 51(1)(b) Crime and Disorder Act 1998.

2. You did not inform your employer at Whiston Hospital about the conviction in a timely manner.

3. Your conduct in relation to allegation 2 above was dishonest.

4. The matters set out in allegation 2 and 3 above constitute misconduct.

5. Your fitness to practise is impaired by reason of your misconduct and/or your conviction.

Finding

Preliminary Matters

Proceeding in Private

1. The Registrant had indicated that matters relating to her health should be held in private. The HCPC indicated that they would have made a similar application and had no objections to this course of action. Having read the documentation the Panel accepts that it is likely that personal issues relating to matters of health would arise in the course of this hearing. Having received the Legal Assessor’s advice, the Panel came to the decision that the Registrant’s right to privacy should be protected and that it would proceed in private when any details of the Registrant’s health arose.

Amending the Allegation

2. The HCPC applied for Particular 2 of the Allegation to be amended.

3. Instead of:

“You did not inform your employer at Whiston Hospital about the details of your arrest which led to the conviction set out in allegation.”

- the proposed amendment would mean that the particular would read:

“You did not inform your employer at Whiston Hospital about the conviction set out in allegation 1 in a timely manner.”

4. On behalf of the HCPC, there was an indication that the Registrant had been written to about the proposed amendment on Friday 15 October 2020. It was submitted the proposed amendment better reflected the evidence. It was the HCPC’s position that this amendment is minor in nature and does not affect the substance of the allegation. The Registrant agrees with the amendment proposed.

5. The Panel accepted the legal advice of the Legal Assessor and considered both whether the allegation reflected the gravity of the case for public protection and whether a change of this type, and at this time, was fair to the Registrant. With some reservations, because the Registrant had originally indicated that she would object and then changed her mind, the Panel did check whether the Registrant needed more time to consult with others, given that she was not legally represented. The Registrant confirmed that she did not object to the amended Allegation.

6. The Panel was of the view that the proposed amendment did materially change the case in extending its remit. However, in terms of fairness to the Registrant it took into account her position that she did not have any objection. The amendment does better reflect the HCPC case in terms of the evidence available and introduces an element of time.

7. The Panel permitted the amendment proposed.

Background

8. The Registrant is registered with the HCPC as a Biomedical Scientist.

9. The Registrant is employed by St Helens and Knowsley Teaching Hospital NHS Trust (“the Trust”) as a Specialist Biomedical Scientist at Whiston Hospital since 27 May 2019. She is also serving in the Territorial Army. Both roles were held at all material times.

10. On 26 September 2019 the Registrant was arrested by Police for dangerous driving and failing to provide a specimen.

11. On 27 September 2019, the Registrant did not attend work. A number of attempts were made to contact her by telephone before her then line manager attended her home address.

12. Her line manager did not see the Registrant on the occasion of 27 September 2019 but did meet with her mother who lives at the same address.

13. When the Registrant did speak to her line manager on 2 October 2019, she informed her about the arrest but indicated that the police had made a mistake. She further spoke to her on 4 October 2019.

14. On 12 November 2019, the Registrant’s line manager was made aware that the Registrant had been convicted of dangerous driving and failing to provide a specimen to Police for analysis. This was brought to her attention via the managerial team, as a news article had been reported in “The Echo” newspaper and on Facebook: “Drunken NHS worker in Audi TT caught with empty bottle of wine after police chase.”

15. On 13 November 2019, the Registrant self-referred to the HCPC. A referral was also separately made to the HCPC by her line manager. It was said that the Registrant had failed to notify the Trust of her conviction and that the Trust had only become aware when the matter was reported in the press. This omission was said to be both deliberate and dishonest.

16. The Registrant remains employed by the Trust but works in another department under another line manager.

Witnesses

17. The Registrant’s line manager at the time of the incident, was SB she shared this responsibility with Ms W. SB was also the Haematology Operations Manager.

18. SB gave oral evidence under affirmation and adopted her written statement. She supplemented this with further information. She indicated how when a number of telephone calls to the Registrant were not answered on 27 September 2019, she visited the Registrant’s home the same day.

19. Advice from Human Resources was sought before a home visit was undertaken. This was sought because her colleagues were concerned as they had been with her the night before and she had not made contact with them either.

20. The Registrant was not at her home, but the Trust spoke to her mother.

21. The Trust checked with the Police as they considered the Registrant to be a “missing person”. The Police indicated that she was “safe”. This enabled the Trust to know that she was with police.

22. That afternoon, the Registrant’s mother contacted the Trust to tell them that the Registrant had been arrested. She did not have many details but indicated that it might have been a mix up.

23. Further conversations made clear that the Registrant would not return to work immediately.

24. On 2 October 2019, a telephone conversation between the Registrant and her line manager took place. In this conversation, the Registrant said that she had been arrested for the first time. She said that the Police had made a mistake about her not stopping when their blue lights were on.

25. SB said that she only found out that the Registrant was convicted on 12 November 2019. She remembers the date because it is her birthday. Prior to an article on social media and the press, SB had no knowledge that the Registrant was due in court or would be admitting allegations, as the only information she had about her involvement with police was on 2 October 2019. She gained the impression that the Registrant was going to fight her case through solicitors because of what the Registrant told her.

26. The Registrant did not contact her line manager immediately following her conviction or in the immediate aftermath. Her line manager contacted her repeatedly to try and talk to her but was not able to speak to her. She overheard a conversation when the Registrant called her by accident indicating that she did not wish to speak to her line manager. This was confirmed by a text from the Registrant which indicated that she was “not in a good place” but there was no information about the conviction.

27. Her line manager contacted the HCPC to find out whether the Registrant had to be referred. The Registrant did mention her conviction for Dangerous Driving but not Failing to provide a specimen and mentioned her driving ban but not the Rehabilitation Order or a fine for £500.

28. The Disclosure and Barring Service (DBS) checks are required prior to employment with the Trust. This policy is not part of the induction paperwork. If an employee wanted to consult this policy, it would be available because all policies for the Trust are on the intranet. The policy requires that all convictions, reprimands, and warnings are notified to a line manager at the earliest opportunity. Regular DBS checks are meant to take place during employment, but she was not aware of how frequently this was due.

29. She indicated that the Registrant did raise a grievance in relation to her as her line-manager at the time in relation to attending her home unannounced but that she had no issues with the Registrant prior to the events surrounding the arrest and time off work.

30. SB agreed that the Trust had never told the Registrant that they had asked the Police about her and said that this was because the Trust were focusing on health issues and this never came up. She did inform the Trust that the Registrant had been arrested but was surmising what might have happened because she did not have all the details at that time.

31. She said that she had not made the timeline (or any supporting documentation) of all contact available to this Panel because she had not been asked to do so by the HCPC.

32. She indicated that even though she had known about the arrest since 27 September 2019, she did not give any guidance to the Registrant regarding the policies surrounding disclosing convictions. She did not provide any disclosure information herself and that this was only available via the Registrant’s contract of employment when recruited but not covered in any induction.

33. She said that the Registrant did tell them about her arrest at the outset and that she was fighting it etc. so there was conversation about this. She said that there had been no indication from Human Resources that she should provide additional support in relation to the court case. She said that she was responsible for 30-50 people at that stage and did not indicate to the Registrant that she was entitled to representation at any welfare meeting.

34. The Registrant gave oral evidence under affirmation.

35. The Registrant indicated that there had been conversations between herself and SB, along with email correspondence.

36. She said that she felt the Army officers were really supportive. They said to come and see them when she was ready. They took her through what they could expect from the court process. She did not get that support from the Trust. She felt the Trust just wanted her to get back to work.

37. In cross examination the Registrant said that she had been kept at the police station overnight from late evening to early afternoon the next day because they were dealing with other people. She was released to go home the following day. Her mother had told her that her line managers had visited her home, that they were worried and that she had to contact them. She said that she telephoned her line manager that evening in response to this. She said she could not remember if she texted her. She did not mention the arrest in any text or communication that day. Her line manager wanted a conversation on the following Monday.

38. She said that she did speak with SB on 30 September 2019. She told SB that she was arrested, and other very personal things, because she needed to talk to someone. She did tell her line manager about being arrested because she had not stopped for police. This was only part of what she told her line manager. She said that she was going to fight this case, because it was not a deliberate fail to provide (a specimen of breath for analysis), and that she considered herself innocent. She told her line manager this.

39. She discussed the lights and failing to stop, and the failing to provide, but there were lots of things, such as failing to co-operate as it was categorised that were put forward. A whole list of things appeared to be condensed by the court. A representative of the Army attended with her when she appeared at court. She said that she did tell her line manager that she was going to fight her case, and go to court, but cannot remember whether or not she told her the date of her court hearings.

40. She denied that she was hiding and trying not to talk to her line managers. She asked that the meeting be put back two weeks by email. She said she did not want to talk to anyone immediately after the incident. She had spoken to SB in confidence and did not want to talk to her other line manager about such personal matters.

41. She said that despite having told SB that she was going to court and she gave her no support or advice. She did not indicate that she was going to plead guilty because she did not know.

42. She did not specifically ask for a character reference from the Trust, but the Army provided one without her having to ask. She was adamant that she did tell SB that she was going to court, and her colleagues in the laboratory, the latter who offered to accompany her. When asked about SB indicating that she did not know about the court case, she responded that SB had been told, and had also forgotten about the conversation that she had with the Registrant on the 30 September 2019 in giving evidence, until she had been reminded.

43. She was asked why she had not told the Trust that she had been convicted on the 12 November 2019. She said that she did tell SB and the HCPC. She said that she did know that SB was trying to contact her on the 13 November 2019. The first two times she was asleep but the third time she answered. This was an irrational call, where she was angry with the Registrant indicating that she had brought the Trust into disrepute and did not tell her about the fact that this was going to be reported in The Echo. She said that it should have been dealt with differently by the Trust because although she had done wrong, she required support. She said that conversation took place on the 13 November 2019, and she could provide evidence to support the fact that the telephone call had occurred.

44. She said she did not aim to deliberately hide the conviction from the Trust. She pointed out that it was published in The Echo and could not be hidden from anyone. She said Trust polices can be accessed from work but not from home. She said that nobody had mentioned anything to her at the time, but she referred herself to the HCPC and that the Trust Human Resources agreed there was nothing deliberately done to contravene Trust policies, signing a document to that effect.

45. She said on 5 December 2019 she was able to give all the details of her side of the story. She said she had admitted the dangerous driving because of circumstances and legal advice and told the Trust she had been given a “ban and rehab”. She said that a fail to provide was not a deliberate refusal and wanted SB to know that. She denied that there was an empty bottle of wine in the car and maintains that now. Her acceleration when the Police were behind her was originally to get out of their way because their lights were flashing. She had gone through three red lights.

46. She said that her colleagues would be sad and disappointed to know how she had behaved. She said that she had undermined the trust that had been placed in her. She acknowledged that this reflects on the profession more widely, and said that she had let the Trust, family and everyone down. She said that if she could go back and change things she would. She did not want to get her licence back in May when she could have done. When the Pandemic started, she saw this as her opportunity to “give her all” to the public. She asked to move to Microbiology to give back to society rather than just going sick to avoid working with SB.

47. She acknowledged that her colleagues and the Trust would have been really upset but that any upset was not limited to them. This has had an impact on her family and everyone. She said her colleagues and current line manager at the Trust now are an excellent support network which she did not have before.

48. She highlighted a letter from her Probation Officer which set out that her “Compliance is excellent”.

49. She said that she did feel that the Trust, Army, family, everyone has been let down. She said that she is normally someone who helps everyone. She likes to support other people and is referred to as an asset in the Trust and Army. She said that she is trying to earn their trust back. She said:

“I tried very hard during the pandemic to make up for my wrongdoing. I never want to do anything that means I will be in court ever again. Working at 140% during the pandemic and I work in an amazing team where we all provide mutual support and reassurance and each of us has a person we can go to. I have changed my whole profession. I have moved from Haematology to Microbiology which has meant a complete career change and being a fast learner. I am committed to my profession and helping others. <…> I am giving presentations to the military and am trying to pay back society, my profession, my employers for the wrong I have done… This is the hardest thing I have done but I have learnt from it. I do not think I am impaired and want to be a useful biomedical scientist if I am allowed to be.”


50. PL, her current line manager, also gave evidence under affirmation on behalf of the Registrant. He said that she has worked well, gone to university and done her MSc. She has helped to write a Standard Operating Procedure document and trained other staff. He also said she works hard and works well with her colleagues and wants to make a difference with what she does. He added she seems to have a sixth sense about her colleagues when someone is feeling down and has the support of whole team.

51. She has supportive colleagues, who she supported and who in turn support her. You can notice the trait if you have suffered, and she seems able to use her experience to help others. He said: “She is so honest about everything”. He said that there is “never any doubt that what she is telling me is the truth.”

52. A written statement from a senior officer in the Army referred to the Registrant in glowing terms exclusively.

53. It was said on behalf of the HCPC that there were two separate but overlapping issues to consider: the 12 November 2019 convictions which have been proved, and whether that impacts the current impairment of the Registrant. Secondly, that the Registrant did not inform the Trust of her conviction in a timely manner and whether that constitutes misconduct. It was submitted that her conduct was deliberate and dishonest and that she was currently impaired.

Facts

54. In reaching its decision on the facts, the Panel considered the oral evidence of those who had appeared before it, the documentary evidence adduced in this case, together with the submissions made on behalf of the HCPC and by the Registrant. It accepted the legal advice of the Legal Assessor.

Particular 1

1. On 12 November 2019, you were convicted at the Crown Court at Liverpool of dangerous driving and failing to provide specimen for analysis (being in charge of motor vehicle). Offences under section 51(1)(b) Crime and Disorder Act 1998.

55. Having been provided with a copy of the certificate of conviction obtained from the Liverpool Crown Court the Panel finds that the fact of conviction proved further to Rule 10(1)(d) of the Health and Care Professions Rules 2003, as amended which states:

“In any hearing where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or, in Scotland, an extract conviction) shall be admissible as proof of that conviction and of the findings of fact upon which it was based.”

56. The Panel noted that the fact of conviction is admitted and has sight of a certificate of conviction.

Admitted and Found Proved.

Particular 2

2. You did not inform your employer at Whiston Hospital about your conviction in a timely manner.

57. The Panel first considered what the Registrant had said to her employer and when this had occurred. It heard from SB that the first she knew about the conviction was in reading reports in the media. She said that the Registrant had only spoken to her about the conviction on 5 December 2019, several weeks after the 12 November 2019 which was the date on which she had been convicted by the court and sentenced.

58. The Panel considered the obligation set out in the Registrant’s contract that required prompt reporting of convictions but also noted that the Registrant’s conviction had been reported in the press and social media in a sensational manner on the same day it occurred. It evaluated what “timely” might mean. It also evaluated the evidence that it had heard from the Registrant that she had spoken to her line manager the day after the conviction and sentencing when SB had been cross that that the Trust’s reputation had been damaged.

59. The Panel bore in mind the standard and burden of proof and was prepared to give the benefit of the doubt to the Registrant. It was mindful that these matters are almost two years old, and that SB had many people to line manage, while for the Registrant events are less likely to be forgotten. Given that the Registrant told the HCPC about her conviction the following day, there is no reason to suppose that this discussion did not occur as stated on 13 November 2019. It accepted that the fact of conviction would have been brought to SB’s attention before she spoke with the Registrant the next day and she would have reason to be surprised because she had been told that the Registrant was going to maintain her innocence rather than plead guilty to these charges.

Not admitted, and not found proved.

Particular 3

3. Your conduct in relation to allegation 2 above was dishonest.

60. Having not found Allegation 2 proved, the Panel did not have to consider Allegation 3.

Not admitted, and not found proved.

Particular 4

4. The matters set out in allegation 2 and 3 above constitute misconduct.

61. Having not found Allegation 2 or 3 proved, the Panel did not need to consider misconduct.

Impairment

62. The Panel went onto consider whether the Registrant’s fitness to practise is currently impaired, by reason of her conviction. It had been taken to the principles set out in the case of GMC v Meadow [2007] QB 462, CHRE v NMC and Grant [2011] EWHC 927 (Admin), CHRE v GDC and Fleishman [2005] EWHC 87 (Admin) and the Fifth Shipman Inquiry Report.

63. In considering the issue of impairment, the Panel had careful regard to the approach formulated by Dame Janet Smith in her report of the Fifth Shipman Inquiry, which was cited with approval in the case of Grant:

a…

b. has in the past brough and/or is liable in the future to bring the profession into disrepute…

c…

d…

64. The Panel determined that it was only limb b in the case of Grant that is engaged in this case. The Panel considered that there is no evidence to before it that suggests that the Registrant acted so as to put any service user at direct risk of unwarranted harm. However, the Panel considered that the behaviour of the Registrant which led to the convictions were serious and fell significantly short of behaviour expected of a professional. The Panel considered that by virtue of her conviction, the Registrant has in the past brought the profession of Biomedical Scientist into disrepute.

65. The Panel considered that the issue it had to determine was that of current impairment. Accordingly, it had to look at the Registrant’s present behaviour and what might happen in the future. It also took into account that in the two years since the conviction there has been no repetition and that the Registrant’s employers spoke of her in glowing terms. In considering the risk of repetition, the panel also took into account the level of insight and remorse demonstrated by the Registrant.

66. In considering the personal component, the Panel noted that the Registrant has fully engaged in the HCPC’s regulatory process by attending and giving evidence under affirmation, as well as challenging some of the evidence brought by the HCPC. It notes that she has displayed insight and has been presented with documentary evidence from the Registrant’s Probation Officer about the progress that the Registrant has made. In the Panel’s view the exclusively positive remarks made by others on her behalf are indicative of the Registrant’s insight into her convictions, and that there is a low risk of repetition of the conduct that led to her conviction.

67. In considering the public component, the Panel took into account that the Registrant was sentenced in November 2019 and is no longer subject to a sentence. The Panel had regard to the judgement in Fleishmann in this respect but weighed this against the overarching objectives of the HCPC and the need to protect the public and the public interest. The latter includes promoting and maintaining public confidence in the profession and its regulation and upholding the proper professional standards that are expected.

68. Having regard to all the matters set out above, the Panel was satisfied that the Registrant’s fitness to practise is currently impaired by reason of her conviction on the public component only. The Panel noted that finding impairment on the public component only is exceptional but considered this was an occasion where the public confidence in the profession and its regulation requires it.


Determination on sanction

69. The Panel has considered this case very carefully and has decided to impose a Caution Order.

70. In reaching this decision, the Panel has had regard to all the evidence that has been adduced in this case, including the submissions of parties.

71. The Panel heard submissions from both parties and accepted the advice of the Legal Assessor.

72. The Panel has borne in mind that any sanction imposed must be appropriate and proportionate, and its purpose is not one of punishment, albeit any sanction may have punitive consequences. The Panel had careful regard to the Sanctions Guidance published by the HCPC and recognised that the decision on sanction is a matter for the Panel, exercising its own independent judgement.

73. The Panel considered whether there was any aggravating or mitigating factors in this case. It identified:

Aggravating features:

• The serious nature of the conviction, as covered in the sentencing of the Registrant;

• The potential harm to road users, which the Judge in the criminal case, and the Registrant herself acknowledge.

Mitigating features:

• At the time of this incident that the Registrant was going through a difficult set of personal circumstances including matters relating to health;

• This was a single and isolated incident;

• The Registrant did enter guilty pleas at the Crown Court and demonstrated remorse;

• The Registrant has expressed insight of the potential impact on road users, the profession, her employers, her family and the public;

• That the Registrant has taken steps to remediate and worked hard in relation to the pandemic to make up for her wrongdoing to her profession and the public;

• There is positive feedback from her employer, her Probation Officer, who confirmed that there was “excellent” compliance with her rehabilitation requirement;

• There has been no repetition of events in the two years that precede this hearing;

• The Registrant remains committed to working for the NHS to help others and making reparation for her past behaviour;

• The Registrant acknowledges that she will have to rebuild trust with her employers but has the courage to do so;

• The Registrant has engaged with the regulatory process and represented herself;

• That due to the good level of insight there is a low risk of repetition;

• There is no concern relating to the Registrant’s professional ability;

• There is no evidence that the Registrant’s actions resulted in, or put patients, at risk of harm.

74. The Panel then turned to the question of which sanction, if any, it should impose. It considered each course of action in turn, starting with the least restrictive sanction before moving upwards.

75. The Panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The Panel decided that it would be neither proportionate nor in the public interest to take no further action in light of its findings at the impairment stage.

76. The Panel next considered whether a Caution Order would be appropriate in this case. The Panel did think that this sanction would mark that the behaviour was not acceptable and should not be repeated. It would be both proportionate and in the public interest in declaring and upholding standards and maintaining public confidence in the profession.

77. The Panel came to this conclusion given its assessment of the aggravating and mitigating features identified above. The fact that this incident is isolated in nature, with independent evidence of rehabilitation, and remediation, coupled with the Registrant’s insight means that there is a low risk of repetition.

78. The Panel did test whether a more serious sanction was required. It considered whether a Conditions of Practise Order was justified. It discounted this not just on the basis that there are no conditions that could be formulated to address the impairment outlined, but on the basis that the wrongdoing was not persistent or planned and occurred within a particular context. The Panel also considered a Suspension Order. However, it was of the view that there was nothing to warrant a more serious sanction that a Caution Order.

79. The Panel next turned to the duration of the Caution Order. It was aware that a Caution Order could be made for a period of between 1-5 years. The Panel decided that the length of the Caution Order should be 18 months, reflecting that the Registrant herself had acknowledged the likelihood of this being the timeframe it might take to rebuild trust in her. The Panel considered that the period of 18 months was sufficient to mark the seriousness of the conviction and that any longer than this would be unduly punitive and disproportionate.

Order

Order: The Registrar is directed to annotate the Register entry of Jennifer Hughes with a caution which is to remain on the Register for a period of 18 months from the date this Order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Jennifer Hughes

Date Panel Hearing type Outcomes / Status
18/10/2021 Conduct and Competence Committee Final Hearing Caution