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Allegation (as amended at the hearing):
As a registered Radiographer your fitness to practise is impaired by reason of a conviction. In that:
1. On or around 28 October 2020 you were convicted of an offence contrary to Section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1968 at the Norfolk Magistrates’ Court. This conviction arose from the fact that on 20/08/2020 you drove a vehicle at Lowestoft … after consuming so much alcohol that the proportion of it in your breath, namely 121 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit.
2. The matter listed in particular 1 constitutes a conviction.
3. By reason of your conviction your fitness to practise is impaired.
1. The Panel received the HCPC hearing bundle of 40 pages and written opening and closing submissions from Ms Bernard-Stevenson.
Application to amend the allegation
2. Ms Bernard-Stevenson, on behalf of the HCPC, applied to amend particular 1 of the allegation in the terms set out above. The amendments were not substantive but were to re-order the content of particular 1, to add the name of the court where the Registrant was convicted and to correct two minor grammatical matters.
3. The Registrant did not object to the proposed amendments.
4. The Panel took advice from the Legal Assessor. The Panel was satisfied the proposed amendments were to ensure that the allegation was complete, accurate and factually correct by including the name of the court. The amendments would not make any substantive change to the allegation against the Registrant in particular 1 and no prejudice to her would result.
5. As such, the Panel was satisfied that the amendments proposed by the HCPC should be made.
6. The Registrant is a registered Radiographer and is employed by Spire Healthcare at Spire Norwich Hospital.
7. On 17 November 2020, the HCPC received a self-referral from the Registrant confirming that she had been convicted of driving whilst under the influence of alcohol and over the legal limit in the United Kingdom.
8. On or about 28 October 2020 the Registrant appeared at Norfolk Magistrates Court where she pleaded guilty to and was convicted of the offence.
9. The sentence of the Court was that the Registrant was disqualified from driving or holding a driving licence for 30 months, to be reduced by 30 weeks if by 18 June 2022 she satisfactorily completed a course approved by the Secretary of State. Her licence was endorsed and she received a fine for £500.
Response of the Registrant to the allegation
10. The Registrant admitted the fact of the conviction.
The HCPC’s Case
11. On behalf of the HCPC, Ms Bernard-Stevenson set out the background facts. She relied upon the documentary evidence in the hearing bundle, including a certified copy of a Memorandum of Conviction from Norfolk Magistrates Court dated 3 March 2021 confirming details of the Registrant’s conviction on 28 October 2020.
12. In respect of the circumstances of the offence, information obtained by the HCPC from Suffolk Constabulary indicated that on 20 August 2020 at approximately 18.50 hours, the Registrant had been observed by a police officer on a road in Lowestoft driving a grey VW Golf and weaving from one side of the carriageway to the other. When the Registrant pulled over she was asked if she had consumed alcohol. The Registrant replied no, but that she was a little tired. Following a specimen of breath being taken, which showed she was over the legal limit for alcohol, the Registrant was arrested and taken to Great Yarmouth Police Centre. She was co-operative with the investigation and did not show outward signs of intoxication, other than her eyes being a little red.
13. In relation to the factual allegation, Ms Bernard-Stevenson submitted that the conviction and of the findings of fact upon which it was based were proved on the basis of the Memorandum of Conviction from Norfolk Magistrates Court, as provided for by Rule 10(1)(d) of the Rules.
Panel’s decision on Facts
14. The Panel considered the submissions of Ms Bernard-Stevenson, the admission of the Registrant and took account of the advice of the Legal Assessor. The Panel considered whether the facts were proved according to the civil standard of proof, that is the balance of probabilities, and proceeded on the basis that the burden of proving the facts rests upon the HCPC throughout.
15. The certified copy of the Memorandum of Conviction from Norfolk Magistrates Court dated 3 March 2021 confirmed that the Registrant pleaded guilty to the offences and was convicted on or about 28 October 2020. The Registrant admits the conviction.
16. As provided for by Rule 10(1)(d) of the Rules, the Panel accepted the Memorandum of Conviction as proof of the conviction and of the findings of fact upon it was based.
17. The Panel was satisfied that the facts of particular 1 were proved.
Grounds and Impairment
18. The Registrant affirmed and gave oral evidence. She told the Panel that on the day of the offence she had been out during the afternoon with her mother and sister and had had two large glasses of wine. She took a taxi home, but later decided to go to the gym. She thought she was by that time fit to drive. She drove to the gym and was then pulled over by the police.
19. The Registrant told the Panel that this was a one-off incident of which she was deeply ashamed and embarrassed. She said she does not have a problem with alcohol and has not had any treatment. She said that 13 months of not being able to drive and transport her two young children was difficult and deeply embarrassing and she intended to ensure the situation never occurred again
20. In relation to her professional practice, the Registrant said that she qualified as a Radiographer in 1998. She said that her conviction has had no impact on her work or professionalism. She has always striven to do her best and is dedicated to scanning and teaching and is passionate about MRI safety.
21. The Registrant said that the incident had had no direct impact at all on her professionalism at work. She understood that the HCPC would be concerned about her decision to get in her car and drive on the night in question, but she believes her decisions at work are sound.
22. In cross-examination, the Registrant said she accepted her conviction. She confirmed she had paid the fine and remained disqualified from driving until August of this year. She confirmed in answer to further questions that she completed the drink/drive awareness course in April 2021. This had reduced her period of disqualification by 25%. From the course she had gained much greater understanding of issues related to driving and use of alcohol. For example, she better understood how long alcohol stays in the system.
23. The Registrant accepted that the alcohol readings on the night in question were relatively high. She accepted that as an HCPC registrant she must adhere to the HCPC’s standards. She accepted that her actions must justify public trust and confidence in the profession and that conduct outside work impacts upon her work. When put to her, she accepted that her conviction would undermine public confidence in the Radiographers’ profession.
24. The Registrant accepted that she had not submitted a reflective piece to the HCPC to demonstrate insight. She told the Panel that she had not appreciated this might be appropriate and also said that there had been a period of around a year when she had not had contact from the HCPC and it had not occurred to her.
25. The Registrant said she was still very mortified and ashamed of what had happened and she was very remorseful. She assured the Panel that her past conduct would not recur. She said that no action had been taken by her employer and the only effect of the matter was that she had had to undergo a new DBS check. The Registrant also told the Panel that she had been required to undergo HCPC audits of her fitness to practise in the last two cycles since her conviction and had satisfactorily passed both.
26. The Registrant called two witnesses.
27. SH affirmed and gave oral evidence. She is the Clinical Modality Lead at Spire Norwich and at the time of the offence was the Registrant’s team leader and immediate manager. She had known the Registrant since 2006 as they had also worked together for about 5 years in a previous employment
28. She described the Registrant as absolutely professional and reliable and said that she puts patients first in everything she does. She is a valued team member. SH has no concerns about the Registrant’s professional conduct and there has not been a single day since that she has not attended work. She always does her very best for her patients. SH believed the Registrant had shown insight into her past actions and that the Registrant was incredibly upset at the time. This matter had not affected her professional conduct in any way and SH had never had cause to question the Registrant’s professional judgment in the many decisions she has to make in her role.
29. MT affirmed and gave oral evidence. MT is the Radiology Manager at Spire Norwich. He has known the Registrant for a year and a half, having joined after the incident, and is her current line manager. MT spoke highly of the Registrant’s work ethic and professionalism with her patients. He said she had attended every day even during the period of the Covid pandemic. He values being able to seek her advice due to her long and extensive experience in MRI. He had not previously spoken directly to the Registrant about this matter. It had had no impact on her work at all as far as he was concerned.
Submissions of the HCPC
30. Ms Bernard-Stevenson submitted in relation to the personal component of impairment that in principle, the Registrant’s conduct is remediable, but she had submitted limited evidence of remediation and insight. A reflective statement had not been submitted. However, it was acknowledged that as the Registrant was unrepresented, she may not have had access to legal advice regarding the preparation of her case.
31. In the Registrant’s evidence she submitted that as the driving offence took place outside of her working hours, it was unrelated to her work as a Radiographer. Ms Bernard-Stevenson noted that the Registrant only conceded that her conduct outside of work may reflect on her practice as a Radiographer when the specific question was put to her under cross-examination. The HCPC’s submission was that the Panel may find impairment on the personal component.
32. Ms Bernard-Stevenson said that in relation to the public component, the HCPC expects Registrants to uphold professional standards in order to maintain the public’s confidence in the profession. The Registrant has been convicted of a criminal offence. Owing to the level of alcohol in the Registrant’s breath at the time of the incident, the offence is in the upper tier of the sentencing guidelines category. The serious nature of the offence was reflected in the sentence imposed (namely a fine and a long period of disqualification from driving). There was also a letter in the bundle dated 4 November 2020 (at PDF page 25/section C10) from the Driver and Vehicle Licensing Agency suggesting that owing to the disqualification, the Registrant falls into the ‘high risk offender scheme.’ In light of the serious nature of the offence, the HCPC submitted that in the event that the Panel did not make a finding of impairment, the public’s confidence would be undermined.
Submissions of the Registrant
33. The Registrant did not make further submissions in closing. The Panel took into account her evidence as previously given.
Panel’s decision on Grounds and Impairment of Fitness to Practise
34. The Panel considered the evidence and submissions and accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Note, Fitness to Practise Impairment.
35. In respect of particular 1, the Panel was advised that a criminal conviction is a statutory ground of impairment under Article 22(1)(a)(iii) of the Health Professions Order 2001. Having found the conviction proved at the facts stage, this ground was therefore established.
36. The Panel next considered whether the Registrant’s fitness to practise is currently impaired by her conviction. The Panel received and accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note, Impairment of Fitness to Practise.
37. The Panel was aware that the question of impairment is a matter for its own judgement. In reaching its decision, the Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of it’s findings and the critically important public policy issues, in particular the need to maintain public confidence in the profession as well as declaring and upholding the proper standards of conduct and behaviour which the public expects.
38. The Panel first considered the personal component of current impairment.
39. The Panel considered that the Registrant gave an open and honest account in her evidence. The Panel considered that in her evidence she demonstrated remorse and insight into her past actions, albeit she had not submitted a written reflective piece. The Panel accepted that she had learned a lesson and considered that she is highly unlikely to repeat her past actions.
40. The Panel was mindful of the evidence given at the impairment stage by SH and MT, both of whom it found to be thoroughly professional and credible witnesses both of whom spoke very highly of the Registrant’s professional practice and confirmed that her conviction had had no direct impact on her work or care of her patients.
41. The Panel also noted further documentary information in the hearing bundle. Information from the Registrant’s employer, Spire Healthcare, confirmed that she remains employed at Spire Norwich Hospital. VT, who at the time was the Clinical Service Manager at Spire Hospital, informed the HCPC that the Registrant had not been the subject of any previous investigations or disciplinary or grievance processes. There were no concerns about her fitness to practise. The Registrant had informed the Hospital Director and the Director of Clinical Services of the criminal matter. The employer was satisfied that the matter had been resolved locally.
42. A Certificate of Completion from the Driver & Vehicle Standards Agency dated 13 April 2021, confirmed that the Registrant has completed the driving course.
43. The Panel considered the four factors identified by Dame Janet Smith in The Shipman Inquiry Report as indicating current impairment. The Panel concluded that the Registrant did not pose a continuing risk of harm to patients and the public. The Panel concluded that the Registrant’s conviction has brought the profession into disrepute. She has breached a fundamental tenet of the profession, the requirement to be honest and trustworthy. The Panel did not conclude that the Registrant has acted in such a way that her integrity can no longer be relied upon.
44. In respect of the personal component of current impairment, In the light of the above evidence, the Panel was satisfied that the Registrant’s past conduct leading to the offence was remediable and has been remedied. The Panel noted there is no evidence before it of any continuing health issue relating to alcohol use. The Panel was also satisfied that the Registrant has demonstrated insight and accepts that it is highly unlikely that her conduct will be repeated in the future. It is satisfied that she does not present a future risk of harm.
45. The Panel found that the Registrant is not impaired in respect of the personal component of current impairment.
46. In relation to the public component of current impairment, the Panel considered whether wider public confidence would be undermined in this case if a finding of current impairment were not made. The Panel took the view that the criminal conviction was serious, for the reasons set out in the HCPC’s submissions. HCPC registrants are expected to comply with the HCPC’s Standards. The Panel was satisfied that a member of the public who was aware of the circumstances of this case would be concerned if this Registrant’s fitness to practise were not found to be currently impaired by her conviction and that wider public confidence in the profession would be undermined if no such finding was made. The Panel was mindful that other HCPC registrants must be made aware that to receive such a conviction is unacceptable and undermines public confidence in the profession and in the HCPC as its regulator.
47. The Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the public component of impairment.
Submissions on Sanction
48. Ms Bernard-Stevenson did not propose a specific sanction on behalf of the HCPC. She reminded the Panel of the purpose of regulatory sanctions and of the appropriate approach to considering the sanction stage. She referred the Panel to the HCPC’s Sanctions Policy and specifically to paragraphs 80 to 89 which relate to criminal convictions.
49. Ms Bernard-Stevenson identified such mitigating and aggravating factors as the Panel might consider were present. She reminded the Panel that the Registrant would remain subject to the driving disqualification aspect of the sentence of the criminal court until August 2022 and of the principle that where the Registrant has been convicted of a serious criminal offence and is still serving the sentence, a panel should not normally allow the Registrant to return to unrestricted practice until the sentence has been satisfactorily completed.
Panel’s Decision on Sanction
50. The Panel took account of the submissions from Ms Bernard-Stevenson on behalf of the HCPC. The Panel took into account evidence relevant to mitigation which it had heard from the Registrant and her witnesses at the previous stage of the hearing.
51. The Panel accepted the advice of the Legal Assessor and referred to the HCPC Sanctions Policy in reaching its decision on sanction. The Panel had regard to the specific paragraphs concerning criminal convictions at paragraphs 80 to 84.
52. The Panel was mindful that a sanction is not intended to be punitive, although it may have that effect. The Panel must consider the risk the Registrant may pose in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.
53. The Panel considered that the following aggravating factors were present:
a. The length of the disqualification of 30 months.
54. In relation to mitigation, the Panel noted:
a. The Registrant pleaded guilty to the criminal offence and cooperated with the police investigation;
b. The Registrant has no previous disciplinary or fitness to practise history;
c. The Registrant referred herself to the HCPC and has engaged with the HCPC proceedings and attended this hearing;
d. She has demonstrated that she has insight into her past actions and is remorseful;
e. The Registrant’s offence was not directly related to her professional practice and there are no concerns about her clinical practice;
f. The Registrant has remained employed at Spire Norwich and senior colleagues, SH, MT, VT and CS, have spoken highly of her professional practice. They have no concerns about her fitness to practise.
55. The Panel considers that it is necessarily a serious matter for a health professional to receive a criminal conviction for an alcohol related driving offence. However, the Panel has received evidence that the Registrant continues to have the respect of her colleagues and to provide a high standard of care to her patients. The Panel considered that the mitigating factors carried significant weight in this case, where the Registrant has not been found to be currently impaired in respect of the personal component of impairment.
56. The Panel bore in mind paragraph 82 of the Sanctions Policy, which reflects the guidance from the Fleischmann case. The Panel was mindful that the Registrant has paid the fine and has completed the drink/driving awareness course, resulting in a reduction of the disqualification period. Given the full circumstances of this case, the Panel does not consider that the remaining period of disqualification should prevent an otherwise competent and useful practitioner from continuing to practise.
57. Taking all these factors into account, the Panel considered whether it was necessary to impose a sanction. The Panel had in mind the nature of the criminal offence and that its decision must uphold public trust and confidence in the profession. The Panel concluded that in this case, neither mediation nor taking no action would be appropriate. The Panel concluded that a sanction was necessary in the public interest.
58. The Panel considered the sanctions available to it in ascending order of severity, applying the guidance as to the factors relevant to each of the available sanctions.
59. The Panel first considered a Caution Order and the factors set out in the Sanction Policy relevant to that sanction. The Panel noted that the Registrant’s conviction was an isolated occasion. There has been no repetition of similar conduct since the conviction in October 2020.
60. The Panel was also mindful that there was no evidence suggesting that the Registrant has an underlying health issue concerning alcohol use. The Panel has found that the Registrant has shown insight into her past conduct and has undertaken remediation. She gave evidence about the embarrassment and remorse she feels concerning this matter. The Panel has concluded she has learned a lesson and will not put herself in the same position again. The Panel had not found that this Registrant poses any risk of future repetition of the criminal behaviour.
61. The Panel concluded that in all the circumstances of this case a Caution for a period of one year will appropriately mark the seriousness of this matter and convey the necessary message to other HCPC registered health professionals.
62. The Panel concluded that a Conditions of Practice Order would not be appropriate given the nature of the findings. The Panel carefully considered whether a period of suspension would be the proportionate and appropriate sanction, applying the factors in the Sanctions Policy, and concluded it would be disproportionate in the light of the positive evidence it has heard concerning the Registrant’s clinical practice.
ORDER: That the Registrar is directed to annotate the register entry of Mrs Emma Lark with a caution which is to remain on the register for a period of one year from the date this order comes into effect.
This Order comes into effect on 16 June 2022.
History of Hearings for Emma Lark
|Date||Panel||Hearing type||Outcomes / Status|
|19/05/2022||Conduct and Competence Committee||Final Hearing||Caution|