Aileen C Brady

Preliminary Matters

Service

1. The Panel noted that the Notice of Hearing specifying the hearing dates 12, 13, and 16 October 2023 had been sent to the Registrant at her email address registered with the HCPC on 14 September 2023.

2. The Notice of Hearing contained information relating to the format and nature of the hearing. The HCPC received notification on 14 September 2023 that “delivery” of the email was “complete”. The Panel was satisfied that proper and reasonable notice of today’s hearing had been served on the Registrant in accordance with Rule 6(2) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in absence

3. The Panel next considered proceeding in the Registrant’s absence. The Panel accepted the advice of the Legal Assessor, who drew the Panel’s attention to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. It noted that it had the power to do so under Rule 11 and if it was satisfied that all reasonable steps had been taken to serve the Notice of Hearing on the Registrant. The Panel must also consider all the circumstances of the case, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

4. The Panel had already satisfied itself that service of the Notice of Hearing had been effected in accordance with the Rules.

5. The Panel was aware that its discretion to proceed in absence is one which should be exercised with care and caution. It noted the guidance in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” that the discretion whether to proceed must be exercised having regard to all the circumstances of which the Panel is aware, with fairness to the Registrant being a prime consideration, but balanced with fairness to the HCPC and to the public interest.

6. In reaching its decision, the Panel noted the documentation contained within the supplementary bundle, which included an email from the Registrant to the HCPC dated 4 October 2023 stating as follows:

“I am just contacting you to let you know I hat [sic] I will not be attending the hearing and am happy for it to go ahead in my absence…”

7. There was a further email within the bundle dated 9 October 2023 from the Registrant confirming that she would not be attending the hearing.

8. The Panel noted that there was no application for an adjournment. Even if the hearing was adjourned to allow the Registrant to attend, this would not necessarily guarantee her attendance in the future.

9. The Panel therefore concluded that the Registrant had voluntarily chosen to absent herself. In these circumstances, the Panel was satisfied that it was fair and appropriate to proceed in the Registrant’s absence.

Application to conduct the hearing partially in private

10. Ms Bass, on behalf of the HCPC, applied to have the hearing held in private where there was reference to the Registrant’s health. The application was made pursuant to Rule 10(1)(a) of the Rules.

11. The Panel, having taken advice from the Legal Assessor on the interests of justice, concluded that it was fair and appropriate to conduct those parts of the hearing in private which related to the Registrant’s health.

Application to amend the Allegation

12. At the commencement of the hearing, Ms Bass applied to amend Particular 2 of the Allegation made by the HCPC against the Registrant. Notice of the proposed amendments had been given to the Registrant by an email dated 22 September 2023.

13. The HCPC sought to amend the Allegation on the basis that the proposed amendments served to reflect the evidence obtained and that they did not change the nature of the case, nor did they increase the seriousness of the case against the Registrant.

14. The Panel also noted that there was a typo in the Allegation at Particular 1, which related to the Registrant’s conviction, in that the word “of” had been omitted. The Panel noted that the word “of” was contained within the Memorandum of Conviction and that clearly this was a typographical error.

15. The Panel has a discretion to amend the Allegation providing it does not cause unfairness to any of the parties or prejudice the Registrant. As to the exercise of that discretion, the Panel considered that the proposed amendments did not have any impact upon the nature of the Allegation against the Registrant and that she was not thereby disadvantaged in her ability to defend herself.

16. Having carefully considered the amendments and following advice from the Legal Assessor, the Panel concluded that it was appropriate to allow the amendments, as applied for, to ensure clarity and to accurately reflect the evidence.

Background

17. The Panel noted the HCPC’s case summary, which set out the background to this matter.

18. The Registrant was employed as a Biomedical Scientist by the Royal Blackburn Teaching Hospital NHS Trust (“the Trust”) between December 1988 and February 2019.

19. During the course of that employment, the Registrant was convicted on 22 July 2016 at the Greater Manchester Magistrates Court of having been suspected of having driven a vehicle and having failed without reasonable excuse to provide a specimen of breath for analysis without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

20. The facts associated with that conviction were that, on 23 June 2016 at 00:16, the Registrant was observed by the police driving slowly but erratically out of Ramsbottom village. As a result, the police caused the Registrant’s vehicle to stop. The police observed that the Registrant was slurring her words, unsteady on her feet, and smelled of alcohol. The Registrant was given two separate opportunities by the police to provide a suitable sample breath test but failed, on both occasions, to do so. As a result, the Registrant was arrested and cautioned. In response to the caution the Registrant stated, “I do understand - I don’t want to say anything - I don’t want to be here”. The Registrant was extremely distressed throughout her engagement with the police.

21. The Registrant was conveyed to Bury Police Station where she again failed to provide sufficient specimens of breath for analysis. As a result, she was charged with the offence detailed in Particular 1 of the Allegation.

22. The Registrant subsequently pleaded guilty to that offence on 22 July 2016. The Registrant was made subject to a community order with a curfew requirement requiring her to remain inside her address between 9pm and 6am for four months from the date of her conviction. She was also ordered to pay the costs of the Crown Prosecution Service and the victim surcharge and was disqualified from driving for a period of 29 months.

23. The HCPC submitted that Standard 9.5 of the HCPC’s Standards of Conduct, Performance and Ethics states that:

“You must tell us as soon as possible if you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence.”

24. It was the HCPC’s case that the Registrant failed to inform the HCPC of her conviction.

25. In addition, it was alleged that on 24 September 2017, just over a year after her conviction, the Registrant completed an online renewal form for the purposes of renewing her registration with the HCPC. In that form, the Registrant failed to disclose the conviction.

26. As part of a separate Fitness to Practise investigation, the Registrant disclosed her conviction and sentence. Following further enquiries that were carried out by the HCPC, the fact of the Registrant’s conviction and her failure to disclose that conviction to the HCPC were both investigated under a separate Fitness to Practise investigation, which is the matter being considered at the hearing today.

27. Two witnesses were invited to give evidence on behalf of the HCPC, namely the expert witness, PG, and AM, a Registration Manager at the HCPC.

28. Ms Bass indicated on behalf of the HCPC that she intended to invite the Panel to accept both witnesses’ evidence as ‘read’ and to not require them to attend for questioning. It was submitted that due to the nature of the evidence provided, no prejudice was caused to the Registrant in not inviting them to attend to be questioned.

29. Ms Bass invited the Panel to consider whether they intended to pose any questions to the witnesses by way of clarification, particularly in circumstances where the Registrant was not present and was not represented.

30. There was a preliminary discussion regarding the necessity to hear evidence from either witness. Following careful discussion of the issue, the Panel determined that, having considered the evidence before it, there was no requirement for the witnesses to attend to provide direct evidence to the Panel to clarify any issues.

Submissions for the HCPC

31. Ms Bass submitted that the Panel should find Particulars 1, 2, and 3 proved. She referred the Panel to the supporting evidence provided by each witness and the evidence relating to each particular.

32. Ms Bass referred the Panel to the relevant case law and guidance surrounding dishonesty.

Legal Advice

33. The Legal Assessor reminded the Panel to assess all the evidence on the balance of probabilities, the onus of proof resting upon the HCPC. It should consider all the documentary evidence and be mindful of the guidance contained in the HCPTS Practice Note “Making decisions on a registrant’s state of mind”.

34. The Legal Assessor referred the Panel to the relevant authority, namely Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, regarding findings of dishonesty.

Decision on Facts

35. The Panel was mindful that the burden of proof was on the HCPC and that the civil standard of proof applied, so the particulars of the Allegation must be proved on the balance of probabilities.

36. The Panel took into account the submissions of Ms Bass on behalf of the HCPC and accepted the advice of the Legal Assessor.

37. The Panel made the following findings of fact.

Particular 1 – Proved

On 22 July 2016 you were convicted at Greater Manchester Magistrates Court of when suspected of having driven a vehicle and having been required to provide a specimen or specimens of breath for analysis by means of a device of a type approved by the Secretary of State pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether you had committed an offence under section 3A, 4, 5 or 5A thereof, failed without reasonable excuse to do so contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

38. With regard to Particular 1, the Panel was provided by the HCPC with evidence of the Memorandum of Conviction dated 15 February 2022.

39. It was submitted on behalf of the HCPC that where a registrant has been convicted of a criminal offence, a certified copy of the Certificate of Conviction shall be admissible as proof of that conviction and of the findings of fact upon which it was based, pursuant to Rule 10(1)(d) of the Rules.

40. The Panel noted that a conviction allegation can be proved by the production of the certified copy of the Memorandum of Conviction. The Panel was satisfied from the evidence produced that Particular 1 was found proved.

Particular 2 – Proved

On 24 September 2017, you completed the online renewal form to renew your registration with the Health and Care Professions Council and did tick the box next to the statement: “since my last registration there has been no change relating to my good character (this includes any conviction or caution, if any, that you are required to disclose)…”

41. The evidence in support of Particular 2 was provided by reference to the HCPC’s Standards of Conduct, Performance and Ethics (January 2016). The HCPC made particular reference to Standard 9.5, which provides as follows:

“You must tell us as soon as possible if:

You accept a caution from the police, or you have been charged with or found guilty of a criminal offence.”

42. The Panel also had regard to the contents of the statements of AM dated 1 March 2022 and 19 September 2023 and the accompanying exhibits, which confirmed that the Registrant did not disclose her criminal conviction dated 22 July 2016 to the HCPC when completing her online renewal form to renew her registration. The Panel had not received any representations from the Registrant.

43. Accordingly, the Panel found Particular 2 proved.

Particular 3 – Proved

Your conduct in relation to particular 2 was dishonest.

44. In reaching its decision, the Panel considered all the documentary evidence before it. The Panel also had regard to the relevant guidance and case law surrounding dishonesty allegations.

45. The Panel noted that the Registrant had been employed as a Biomedical Scientist since 1988 and, in the absence of any evidence to the contrary from the Registrant, the Panel determined that the Registrant would have had knowledge of the standards expected of a registered Biomedical Scientist.

46. The Panel noted that at the time the Registrant renewed her registration online, she was still subject to a driving ban and provided false information when she ticked the relevant box.

47. When considering the Registrant’s state of mind, the Panel had careful regard to the test set out in Ivey v Genting Casinos (UK) Ltd [2017] UKSC and considered each limb of the test. The Panel determined that in all the circumstances the Registrant’s actions were, by the standards of ordinary decent people, dishonest. Accordingly, Particular 3 was proved.

Decision on Grounds

48. The Panel found Particular 1 proved and was satisfied from the evidence produced that the ground for conviction was established.

49. The Panel went on to consider whether the facts found proved in relation to Particulars 2 and 3 amounted to misconduct.

50. The Panel was mindful that the question as to whether the proven facts constituted misconduct was a matter for the Panel’s professional judgement, there being no standard or burden of proof.

51. The Panel took into account the submissions on behalf of the HCPC and accepted the advice of the Legal Assessor.

52. The Panel considered the HCPC’s Standards of Conduct, Performance and Ethics (2016). It found that the Registrant had breached standards 9, 9.1, and 9.5:

• Standard 9: Be honest and trustworthy

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

• Standard 9.5: You must tell us as soon as possible if:
You accept a caution from the police, or you have been charged with or found guilty of a criminal offence.

53. The Panel also considered the HCPC’s Standards of Proficiency for Biomedical Scientists (2014) and found that the Registrant had breached the following standards:

• Standard 2: Be able to practise within the legal and ethical boundaries of their profession

• Standard 2.2: Understand what is required of them by the Health and Care Professions Council

• Standard 3: Be able to maintain fitness to practise

• Standard 3.1: Understand the need to maintain high standards of personal and professional conduct

54. The Registrant was convicted of an offence and did not advise the HCPC that she had been arrested, charged, and ultimately convicted of that offence. The Registrant was made subject to a community order with a curfew requirement that she remain inside her address between 9pm and 6am for four months from the date of her conviction. She was disqualified from driving for a period of 29 months.

55. The Registrant did not notify the HCPC of the circumstances leading to the conviction in 2016 and ultimately concealed her conviction for the offence when renewing her registration one year later in 2017. The HCPC only became aware of the conviction during the course of a separate Fitness to Practise investigation.

56. The Panel considered the Registrant’s conduct to be a serious breach of professional boundaries and one which could properly be described as “deplorable” by the standards of ordinary, decent members of the public. This was compounded by her dishonesty in failing to inform the HCPC that she had been convicted of the offence.

57. The Panel found each of these particulars to constitute misconduct and that such misconduct was serious.

Decision on Impairment

58. The Panel took into account the submissions on behalf of the HCPC. There were no submissions from the Registrant as she was not in attendance. The Panel had careful regard to the HCPTS Practice Note on “Fitness to Practise Impairment”. The Panel also had regard to the HCPTS Practice Note on “Conviction and Caution Allegations”.

59. The Panel accepted the advice of the Legal Assessor, who advised the Panel to consider the criteria set out in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 927.

60. The Panel determined that limbs b), c) and d) of the Grant test were engaged:

“Do our findings of fact, in respect of the doctors, or in this case, the nurse’s misconduct show that his fitness to practise is impaired in the sense that he has,

(a) …

(b) has the Registrant in the past brought and/or is liable in the future to bring the profession into disrepute.

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

(d) has the Registrant in the past acted dishonestly and/or is liable in the future to act dishonestly.”

61. In accordance with the case of Cohen v General Medical Council [2008] EWHC 581, the Legal Assessor advised the Panel to ask whether the Registrant’s conduct was easily remediable, whether it had in fact been remedied, and whether it was highly unlikely to be repeated.

62. In determining whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct, the Panel took into account both the ‘personal’ and ‘public’ components of impairment.

63. The personal component relates to the Registrant’s own practice as a Biomedical Scientist, including any evidence of insight and remorse and efforts towards remediation. The public component includes the need to protect service users, declare and uphold proper standards of behaviour, and maintain public confidence in the profession and the Regulator.

64. With regard to the personal component, the Panel noted that the Registrant has not engaged in the proceedings.

65. However, in the absence of engagement from the Registrant, the Panel had no evidence of remorse, reflection, remediation, or insight.

66. In the absence of any such evidence, the Panel considered that there would be a risk of repetition if the Registrant were permitted to practise without restriction.

67. The Panel next considered the important public interest considerations; that is, the public component of fitness to practise. It was mindful of the advice in the Grant case, which states:

“71 ... it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations … namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession…In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

68. In Grant, the case of Cohen v GMC [2008] EWHC 581 (Admin) was referred to and approved. This states:

“[62] Any approach to the issue of whether a doctor’s fitness to practise
should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence…”

69. The Panel was mindful of its findings that the Registrant’s conduct was dishonest. The Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment”, which states that the “public is entitled to expect registrants to be professionally competent and act with decency, honesty and integrity. The public should also be able to rely on the regulatory process to be robust, fair and transparent”.

70. The Panel determined that its findings were serious and such a finding of misconduct had an impact on the public and on public confidence in the profession.

71. The Panel concluded that in the circumstances of this case, given the nature of the misconduct and the conviction, not to make a finding of current impairment would undermine public confidence in the profession and in the Regulator. It would also fail to uphold and declare proper professional standards.

72. The Panel accordingly found the Registrant’s fitness to practise to be currently impaired on the public and personal components.

Decision on Sanction

73. The Panel took into account the submissions of Ms Bass on behalf of the HCPC. Ms Bass submitted that sanction was a matter for the judgement of the Panel. She took the Panel to relevant parts of the HCPC Sanctions Policy and outlined the aggravating and mitigating factors.

74. As the Registrant was not in attendance, there were no submissions from the Registrant.

75. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

76. With regard to mitigation, the Panel noted that it appeared that, prior to these proceedings, there were no previous findings against the Registrant.

77. By way of aggravating factors, the Panel noted as follows:

• The Registrant was convicted of an offence and failed to notify her employer or the Regulator;

• This was a single act but a prolonged display of dishonesty from the date of her arrest in 2016 until her re-registration in 2017;

• The Registrant’s dishonest conduct in failing to notify the HCPC of her conviction would have an impact on the trust the public can place on the profession.

• There was no evidence that the Registrant had shown any remorse, insight, or remediation.

78. The Panel determined that, given the gravity of the Registrant’s conduct, this case was too serious for the Panel to take no further action.

79. A Caution Order would not reflect the seriousness of the Registrant’s conviction, misconduct, and dishonesty. The dishonesty, although a single incident, occurred over a prolonged period of time. In the absence of any evidence of remediation, the Panel determined that there was a risk of repetition.

80. The Panel noted that the Registrant’s clinical capabilities were not in dispute. However, the Panel determined that a Conditions of Practice Order would not be appropriate or proportionate as the Panel could not formulate any conditions which would address the underlying concerns regarding the Registrant’s misconduct, conviction, and dishonesty. Furthermore, the Panel had no evidence of the Registrant’s current circumstances and whether she would comply with any conditions.

81. The Panel considered whether to impose a Suspension Order. However, in light of its conclusion regarding the seriousness of the concerns, the attitudinal nature of the Registrant’s misconduct, and no evidence of any insight, remorse, or remediation and the consequent risk of repetition, the Panel decided that a Suspension Order would not be appropriate.

82. The HCPC Sanctions Policy states that a Striking Off Order is a sanction of last resort for serious persistent and deliberate acts including:

• Dishonesty

and “is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

o Lacks insight”

83. In the Panel’s judgement, all of the criteria for a Striking Off Order were applicable in this case. The public is entitled to expect members of the profession to behave with decency, honesty, and integrity.

84. In the Panel’s judgement, the Registrant’s misconduct was so serious as to be incompatible with her remaining on the Register. The Panel concluded that a Striking Off Order was required to protect the public, declare and uphold proper standards of behaviour, and maintain confidence in the profession and its Regulator. The Panel concluded that the Registrant’s behaviour was wholly unacceptable and was incompatible with registration.

85. The Panel concluded that the appropriate and proportionate sanction in the circumstances of this case was a Striking Off Order.

That the Registrar is directed to strike the name of Mrs Aileen C Brady from the Register on the date this Order comes into effect.

Interim Order

1. As the Striking Off Order could not take effect until the end of the 28-day appeal period, the Panel considered whether an interim order was required in the specific circumstances of this case. It could only make an interim order if it was satisfied that it was necessary for the protection of the public, was otherwise in the public interest, or was in the Registrant’s own interest until the sanction took effect.

Application

2. Ms Bass, on behalf of the HCPC, applied for an Interim Suspension Order to cover the appeal period before the substantive Suspension Order came into effect or, if the Registrant appealed, until such time as the appeal was withdrawn or otherwise finally disposed of.

Decision and reasons on interim order

3. The Panel carefully considered the submissions on behalf of the HCPC Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that the Registrant had been given notice within the Notice of Hearing, dated 14 September 2023, of the HCPC’s intention to apply for an Interim Order to cover the appeal period if conditions or suspension were imposed as a sanction. It considered the same factors applied as for its decision to proceed in the substantive hearing, in particular that she had waived her right to attend and it was both fair and in the public interest to proceed.

4. The Panel was satisfied that an Interim Order was required in the public interest. The Panel had regard to the facts found proved and the reasons set out in its decision for the substantive order in reaching its decision to impose an interim order. It determined that an interim order was required to promote and maintain public confidence in the profession.

5. The Panel concluded that an Interim Conditions of Practice Order would not be appropriate or proportionate in this case due to the reasons already identified in the Panel’s determination for imposing the substantive order.

6. The Panel therefore made an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being in the public interest.

7. 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.

History of Hearings for Aileen C Brady