Mr Patrick Ndeze

Profession: Radiographer

Registration Number: RA084440

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 28/07/2022 End: 17:00 28/07/2022

Location: Virtual via videoconference

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

As a registered Radiographer (RA084440) your fitness to practise is impaired by reason of conviction and/or health condition. In that:

1. On 30 April 2021 you were convicted at West Hampshire Magistrates’ Court of driving a motor vehicle on a road, namely the A31, after consuming so much alcohol that the proportion of it in your breath, namely 67 microgrammes of alcohol in 100 millilitres of breath, exceed 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. You have a physical and/or mental health condition as set out in Schedule A.

3. By reason of your conviction and/or health your fitness to practise is impaired.

 

Finding

Preliminary Matters

Hearing in private

1.    Mr Bridges and Mr Beaumont made a joint application for part of the hearing to be heard in private to protect the Registrant’s private life. This application was limited to the parts of the hearing which involve details of the Registrant’s health.

2.    The Panel accepted the advice of the Legal Adviser. She advised that under Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 the Panel has the discretion to hear either all or part of the hearing in private. In the exercise of its discretion the Panel should balance the important principle of open justice with the interests of the Registrant in protecting his private life.

3.    The Panel decided that it was appropriate to hear part of the hearing in private where references would be made to details of the Registrant’s health.

Redaction of Registrant’s bundle

4.    On behalf of the Registrant Mr Beaumont submitted that a number of administrative errors had been made by the HCPC in preparing the case. He informed the Panel that in error, a document had been placed before the panel without an intended redaction. The intended redaction was to delete a reference to a similar conviction of driving under the influence of alcohol in 2018 prior to the Registrant’s admission to the HCPC register. On his application for admission to the HCPC register in 2020 the Registrant had declared this conviction. The matter had been considered at that time by the Education and Training Committee of the HCPC and the Registrant was permitted to join the register. Mr Beaumont submitted that the Panel should redact the document to exclude reference to this matter on the basis that it had been closed.

5.    Mr Bridges submitted that the document had been read by the Panel and that it would be difficult for the Panel to exclude the information from its consideration. He further submitted that that the information was relevant to the Panel’s assessment of the risk of repetition.

6.    The Legal Adviser advised that the Panel is a professional panel and that it is therefore able to exclude information from its consideration and deliberations if it is advised or takes a decision to do so. The Panel therefore has the option of redacting the information as requested by Mr Beaumont. She advised that the information relating to the past history of the Registrant is entirely irrelevant when the Panel is making a decision on the facts, and such information should form no part of the Panel’s decision. The issue of current impairment is a broader question and, as a general principle, the Registrant’s past history can be taken into account by the Panel as part of its assessment of the risk of repetition. The Panel’s decision should be made in the context of its role in protecting the public.

7.    The Panel accepted the advice of the Legal Assessor. It decided that it would entirely disregard the information relating to the 2018 conviction when considering the facts, but that if it were to find the facts proved, it would not redact the information when considering the issue of current impairment.

Background

8.    The Registrant is a registered Radiographer. He commenced employment as a Radiographer with Salisbury NHS Foundation Trust (“the Trust”) in September 2020.

9.    On 14 May 2021, the Registrant submitted a self-referral to the HCPC informing the HCPC that he had been arrested for the offence of driving over the legal drinking limit on 9 May 2021.

10. On 30 April 2021, the Registrant appeared at West Hampshire Magistrates’ Court and was convicted of driving a vehicle under the influence of alcohol. The legal limit in the United Kingdom is 35 microgrammes of alcohol in 100 millilitres of breath. The reading taken from the Registrant was 67 microgrammes of alcohol in 100 millilitres of breath.

11. In the Registrant’s self-referral, he informed the HCPC of the circumstances around the offence.

Decision on Facts

12. The Panel was provided with a Certificate of Conviction dated 30 April 2021 from the West Hampshire Magistrates’ Court. The Certificate states that the Registrant pled guilty and to the following offence:

On 22/3/2021 at New Forest in Hampshire you drove a motor vehicle, namely a BMW Series, registration [xxx] on a road, namely the A31, after consuming so much alcohol that the proportion of it in your breath, namely 67 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffice Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988”.

1.    The Registrant was sentenced to a fine of £1,500, victim services surcharge £150, costs £85, and was disqualified from holding or obtaining a driving licence for three years.

2.    The Panel found the conviction proved by the Certificate of Conviction.

Decision on Impairment 

13. The Panel heard submissions from Mr Bridges. He submitted that the seriousness of the conviction should be marked by a finding of current impairment.

14. The Panel were informed that the Registrant was willing to answer questions from the Panel. The Panel had no questions.

15. The Panel heard submissions from Mr Beaumont. He referred the Panel to documents in the Registrant’s bundle.

·       Testimonial from a church minister;

·       Certificate of completion of course “mental health awareness for healthcare professionals;

·       Certificate following testing for alcohol consumption dated 26 April 2022 confirming that alcohol was not detected;

·       Certificate of online training in “drug and alcohol awareness”;

·       A letter from the Registrant’s GP dated 16 May 2022

·       Positive testimonial from the Registrant’s line manager;

·       Reflective statement from the Registrant in which he apologised and acknowledged the impact of his behaviour in relation to the “danger that I caused on the road, and for the potentially negative view I may have brought upon my profession and the HCPC. I hope you can give me the chance to make amends. I am thankful that no one or myself was hurt and I promise to be a safer driver.”

16. Mr Beaumont submitted that the Registrant has demonstrated deep insight and that this is demonstrated by his success in removing alcohol from his life. He submitted that the Registrant has taken pro-active steps to address his past behaviour. He invited the Panel to conclude that the a reasonable member of the public would conclude that the Registrant has taken the matter seriously and that he has demonstrated that he is fit to practise.

17. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPTS Practice Notes “Conviction and Caution allegations” and “Fitness to Practise Impairment”. The Panel assessed the Registrant’s fitness to practise at today’s date.

18. The Panel considered the information provided by the Registrant and noted the efforts he has made to remediate his past criminal behaviour and ensure that there will be no repetition. He has engaged in remedial action, which includes his decision to abstain from alcohol. He has provided objective evidence of professional testing to demonstrate that he is not abusing alcohol and he has also provided evidence from his GP confirming that there is no alcohol related problem.

19. The Registrant has demonstrated insight. He has reflected on his past behaviour, was remorseful and self-critical, and has demonstrated an understanding of the seriousness of his past criminal conduct.

20. In assessing the risk of repetition the Panel carefully balanced the positive evidence provided by the Registrant and the insight he demonstrated against the fact that the conviction involved a repetition of behaviour which had previously resulted in a criminal conviction. While the Panel recognised the efforts the Registrant has made to reduce the risk of repetition, it was unable to exclude the risk of repetition. Its assessment was that the risk of repetition is low.

21. Having concluded that there remains a residual risk of repetition, the Panel decided that a finding of current impairment is necessary to protect the public.

22. The Panel considered the nature and gravity of the Registrant’s conviction. It was of the view that the conviction would be considered particularly serious by an informed member of the public because it was a repetition of similar criminal behaviour which had occurred approximately three years prior to the offence. The Panel also noted the imposition of a lengthy driving ban of three years.

23. The Panel considered that a conviction of this nature which placed other road users at risk of serious harm undermines public confidence in the profession. The Registrant’s criminal behaviour was a breach of the HCPC Standards of Conduct, Performance and Ethics, standard 9.1 “you must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

24. A finding of impairment is therefore also required uphold public confidence in the profession and to mark the gravity of the conviction and the Registrant’s departure from professional standards.

25. The Panel therefore decided that the Registrant’s fitness to practise is impaired to protect the public, to maintain public confidence in the profession, and to uphold and maintain proper professional standards.    

Decision on Sanction

26. The Panel heard submissions from Mr Bridges. He referred the Panel to the HCPC Sanctions Policy (SP). He did not make submissions on the sanction the Panel should impose.

27. The Panel heard submissions from Mr Beaumont. He highlighted mitigating factors and submitted that it would not be in the public interest to restrict the Registrant’s practice. He submitted that the Panel might consider imposing no sanction or a Caution Order and that the length of any Caution Order might reflect the insight demonstrated by the Registrant and his effective remediation.

28. The Panel accepted the advice of the Legal Assessor and had regard to the guidance in the SP. The Panel noted that the purpose of a sanction is not to punish the Registrant, but to protect the public and the wider public interest, including maintaining confidence in the profession and the regulatory process and upholding professional standards.

29. The Panel identified the following aggravating feature:

·       The Registrant’s conviction was in respect of similar behaviour which had occurred in 2018.

30. The Panel identified the following mitigating features:

·       The Registrant’s insight, apology and remorse;

·       The Registrant’s remedial action, particularly his total abstinence from alcohol;

·       Evidence of support from the Registrant’s GP and his employer;

·       Evidence of the high quality of the Registrant’s work as a Radiographer.

31. The Panel was impressed by the work the Registrant has undertaken to remediate his past behaviour and it was unable to identify any gaps in the remediation. It was particularly notable that the Registrant had made a decision to abstain from alcohol and had provided the Panel with evidence to demonstrate that he had done so over a sustained period of time. The Panel’s assessment was that the mitigating features carried weight.

32. The Panel considered the sanctions in ascending order of severity.

33. The Panel considered the option of taking no action, but decided that it would be insufficient to mark the gravity of the conviction and the Registrant’s serious departure from professional standards.

34. The Panel next considered the option of a Caution Order. It had regard to the guidance in the SP.

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

35. The Panel considered that these factors applied. The incident which led to the conviction was a single incident; there is a low risk of repetition; the Registrant has shown good insight and he has undertaken appropriate remediation.

36. The Panel considered that a Caution Order would provide a sufficient measure of public protection. The Caution Order will form part of the Registrant’s record and will act as a deterrent against the residual risk of repetition. A Caution Order also sends a clear message to members of the profession and members of the public that the Registrant’s criminal behaviour was entirely unacceptable and was a serious breach of professional standards.

37. The Panel considered the more serious option of imposing a Conditions of Practice Order, but decided that conditions were not appropriate. The Panel has not identified any gaps in the Registrant’s remedial action which could be addressed by conditions of practice. The Panel also considered that the imposition of restrictions on the Registrant’s practice would be disproportionate, taking into account the Registrant’s insight,  his remedial action, and the low risk of repetition.

38. The Panel decided that a Caution Order was sufficient to maintain public confidence in the profession and the regulatory process and to mark the Registrant’s serious departure from professional standards.

39. The Panel next considered the length of the Caution Order. It decided that a one year Caution Order was appropriate and proportionate. The Panel considered that this was a case where the Registrant has engaged in a full remediation process and that the sanction imposed should reflect his commitment and the efforts he has made. It is in the public interest that the decision on sanction should acknowledge remedial action in the fitness to practise process, sending a message to the profession and the public that such steps will be taken into account when it is appropriate to do so.

40. For these reasons the Panel decided that the appropriate and proportionate sanction is a one year Caution Order.

Order

Order: The Registrar is directed to annotate the Register entry for Mr Patrick Ndeze with a Caution Order for 12 months.   

Following the hearing, the Panel reconvened as a Health Panel to consider Particular 2 of the Allegation and agreed that the Health Allegation should be discontinued.

Notes

This is a Final Hearing taking place via video conference on 28 July 2022.

Hearing History

History of Hearings for Mr Patrick Ndeze

Date Panel Hearing type Outcomes / Status
28/07/2022 Conduct and Competence Committee Final Hearing Caution
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