Elizabeth Anne Wythes

Preliminary Matters
Hearing partly in private
1. The HCPC submits that this hearing should be held partly in private, under the Procedure Rules 2003, which states: …the proceeding shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence, or of any patient or client, the public should be excluded from all or part of the hearing.

2. The concerns raised in this hearing include health matters. The Panel accepted that the hearing should be held partly in private to protect the Registrant's private life and that of a third party who may be referred to in the hearing.

Background
3. The Registrant is registered with the HCPC as a Podiatrist.

4. On 30 June 2022 at Dudley Magistrates’ Court the Registrant pleaded guilty to the charge set out in the Allegation above. Her alcohol reading was 100 mg in 100 millilitres of breath. The legal limit is 35 mg. The Registrant was convicted and sentenced to pay a fine of £369. In addition, the Registrant was disqualified from driving for 24 months and ordered to pay a surcharge of £37 and costs of £135.

5. The Panel have had sight of a Memorandum of Conviction as proof of the Registrant’s conviction and sentence.

6. The Registrant gave evidence at the hearing. She stated she was at a wedding and had booked a room with her partner with no intentions of leaving the venue until an urgent telephone call was received. She made the mistake of saying she would take him after not being able to get a taxi, with all the emotions being heightened. She stated she drove for only 1 minute and went back to the venue. She is truly sorry for this error of judgement and immediately informed her operations lead at work and also the HCPC. She has paid the financial penalties and is awaiting a date to undertake a drink driving awareness course which will reduce the period of her disqualification by 24 weeks when completed.

7. The Registrant’s employer has provided the following information: Elizabeth has been a proactive, engaged Podiatrist who is patient focused. She has completed work streams as requested and is meetings the standards as set by her employer Midlands Partnership Foundation Trust (MPFT). I therefore have no concerns regarding her fitness to practice.

8. Elizabeth informed myself of the arrest, subsequent court date and outcome contemporaneously. MPFT Human Resources (HR) advised that she should contact the HCPC immediately to report the incident which Elizabeth did herself. I was advised to carry out a Risk Assessment for Elizabeth and both myself, my manager and HR were happy for her to continue to work with a modified timetable. Elizabeth was advised to use public transport/not to drive and also had her domiciliary caseload removed. She has a structured timetable which is purely clinic based.

Decision on Facts
9. The Panel accepted the Legal Assessor’s advice that in determining whether the fact of the conviction is proved, the burden of proof rests with the HCPC to prove the case, to the civil standard, the balance of probabilities.

10. The Registrant has admitted the fact of the conviction and the Panel finds the fact of the conviction is proved to the requisite standard by the memorandum of conviction.
Decision on Grounds
11. This case is brought under Article 22(1)(a)(iii) of the Health Professions Order 2001 because the statutory ground is conviction for a criminal offence, rather than misconduct or lack of competence.

12. The Panel accepted the Legal Assessor’s advice that conviction and caution allegations are not about punishing a registrant twice. The Panel was advised by the Legal Assessor to consider the guidance in the HCPTS Practice Note entitled Conviction and Caution Allegations and followed that advice.

13. The Panel today cannot go behind the conviction. The Practice Note states: A conviction or caution should only lead to further action being taken against a registrant if, as a consequence of that conviction or caution, the registrant’s fitness to practise is found to be impaired.

Decision on Impairment
14. The Panel accepted the Legal Assessor’s advice to consider the HCPTS Practice Note on Finding that Fitness to Practice is Impaired. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components: 1. the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and 2. the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession. In the case of Council for the Regulation of Healthcare Professionals v (1) General Dental Council (2) Alexander Fleischmann [2005] EWHC 87 (Admin) it was stated that where a practitioner has been convicted of a serious criminal offence, he should generally not be able to resume his practice until he has satisfactorily completed his sentence.

15. Current impairment is a matter for the Panel’s judgement, there is no burden or standard of proof to be applied at this stage. It is important to note that the test of impairment is expressed in the present tense; the Panel must decide whether the Registrant’s fitness to practise is impaired at the current date. The Panel must also take into account the critically important public policy issues. Dame Janet Smith identified the circumstances where impairment might arise as: (a) where a registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession or (d) has acted in a way that their integrity can no longer be relied upon.

16. The Panel finds that the Registrant is a valued practitioner, and this was an isolated incident. The Registrant has expressed her genuine remorse and acknowledged that her conduct was at odds with the standards to be expected of an HCPC registrant. She has demonstrated good insight into the seriousness of her conviction and has been open and honest with the Court, her employer and the HCPC. She was of previous good character and has been supported by her employer, with no concerns about her competence. The particular circumstances in which she chose to drive with excess alcohol were highly unusual. She has demonstrated an intention to undertake remediation and her engagement in the HCPC process shows there is a low risk of repetition. This was a unique one-off situation, and The Panel finds the Registrant is not currently impaired under the personal component.

17. However, the Panel finds that the Registrant’s fitness to practise is impaired under the public component. This conviction for a serious offence is likely to have had a detrimental impact upon the reputation of the profession. Public confidence in the regulatory process would be undermined by a finding that her fitness to practise is not impaired.

18. This incident concerns driving with an alcohol reading which is 2.8 times above the legal limit. The Registrant has not yet completed the period of disqualification imposed by the Court.

Decision on Sanction
19. The Panel accepted the Legal Assessor’s advice to consider the HCPC Sanctions Policy which states:

        82. Where a registrant has been convicted of a serious criminal offence, and is still serving a sentence at the time the matter comes before a panel, normally the panel should not allow the registrant to resume unrestricted practice until that sentence has been satisfactorily.  completed.

      101. 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.

     102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low).

     103. The panel can impose a caution order for any period between one and five years. As discussed earlier, the panel should take the minimum action required to protect the public and public confidence in the profession, so should begin by considering whether or not a caution order of one year would be sufficient to achieve this. It should only consider imposing the caution order for a longer period where one year is insufficient.

20. The Panel has considered the following mitigating features:
• The Registrant’s fitness to practise is not impaired under the personal component.
• Her conduct was out of character and due to a very stressful situation.
• She drove for a very short distance and stopped the vehicle herself before the police intervened.
• She has taken steps to attend a drink driving awareness course.

21. The Panel has considered the following aggravating features:
• Her conviction is likely to have had a detrimental impact upon the reputation of the profession.
• This was a serious offence with an alcohol reading which is 2.8 times above the legal limit.
• The disqualification period has not yet expired.

22. The Panel considered the available sanctions in ascending order of gravity.

23. To impose no sanction or mediation would not be appropriate.

24. The Panel next considered a Caution Order. This conviction is an isolated incident, and the Registrant has taken steps to arrange to undertake remediation. This offence is at the less serious end of the spectrum of criminal offences. Although it is serious it is not so serious that a caution order would be inappropriate. There is a low risk of repetition, and the Registrant has demonstrated good insight. A Caution Order for two years would be sufficient to reflect the seriousness of this conviction. This outcome is consistent with the HCPC Sanctions Policy and reflects the minimum action which is necessary and proportionate to protect the public and safeguard the public interest.

25. The Panel considers that a Caution Order for a period of two years is the minimum necessary period to uphold the reputation of the profession and the public interest in this case.

26. The Panel considered whether a conditions of practice order might be appropriate but concluded that no suitable conditions could be formulated.

27. The Panel also considered whether a Suspension Order might be appropriate but decided that this would be disproportionate. The Panel concluded that the low risk of repetition and the strong mitigating features outweighed the fact that the Registrant is still subject to a period of driving disqualification.

Order: The Register entry for Ms Elizabeth Anne Wythes is to be annotated with a Caution Order for two years. 

No notes available

History of Hearings for Elizabeth Anne Wythes