Mr Ingo M J Ndlovu

Preliminary Matters
Service and Proceeding in Absence
1. The Panel was satisfied, based on the documentation it had seen, that notice giving the time and date of today’s hearing had been served on the Registrant by email on 1 February 2024. It was aware, in view of the legal advice it received, that the duty on the Regulator, in accordance with the Conduct and Competence Committee (Procedure) Rules 2003, is to send notice to the Registrant at his registered address, and that documents can be served by email. The Panel accepted the header of the email as evidence of the address to which notice was served, and was satisfied that good service had been effected.

2. Mr Barnfield made an application to proceed in the absence of the Registrant. He submitted that based on the email sent by the Registrant this morning, in which he asked the Panel to proceed in his absence unless his attendance was ‘absolutely necessary’, the Registrant was aware of the hearing and had voluntarily absented himself. He had cited a number of personal reasons for his absence, but had not requested an adjournment. Mr Barnfield submitted that it was therefore fair to proceed in the Registrant’s absence. Indeed, in a discussion with the Legal Assessor, the Registrant had said that he was keen for the matter to be dealt with today.

3. The Panel accepted the advice of the Legal Assessor and was aware of the factors to take into account when deciding whether it is appropriate to proceed in the absence of the Registrant, as set out in R v Jones [2003] UKPC 34. It determined that the Registrant had made an informed decision not to attend, particularly as he had been afforded the opportunity to speak to the Legal Assessor, who had outlined the decisions the Panel will be making, and how his attendance would assist. The Panel considered that whilst the Registrant will be disadvantaged by not attending and giving evidence as to his insight and hence current impairment, this had to be balanced against fairness to the Regulator, and the public interest in dealing with matters expeditiously. The Panel concluded that in view of these matters, combined with the fact that there was no suggestion that adjourning would secure the Registrant’s attendance at a later date, the fair and proportionate approach was to proceed in his absence. The Panel drew no adverse inference from the Registrant’s absence.

Background
4. On 16 October 2017 the Registrant pleaded guilty to, and was convicted at Hull Magistrates’ Court, of two offences which took place on 12 September 2017; driving having consumed alcohol exceeding the prescribed limit and driving without insurance, contrary to the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988. He received fines and driving license endorsements in respect of both offences, and in relation to the first, the Registrant was disqualified from driving for 12 months (with a potential three-month reduction upon completion of an approved course).

5. The Registrant did not declare these convictions to the HCPC until 8 December 2021, when he renewed his registration. In a subsequent email exchange with the HCPC in December 2022, the Registrant apologised for not having declared his conviction in a timely manner, and stated he was not aware of the requirement to do so, until he was renewing his registration in 2021.

6. Following an enquiry made by the HCPC in January 2023, the Registrant’s employer confirmed that the conviction was disclosed to them prior to his employment starting, and in the employer’s view, it had no impact on his ability to carry out his role. The employer stated thatthey had no concerns about the Registrant’s fitness to practise, and that in recent months, the Registrant had been promoted to the role of Clinical Lead.

Submissions and evidence on behalf of the HCPC
7. Mr Barnfield set out the background and submitted that the Memoranda of Convictions are proof of those matters. In relation to Particular 3, the HCPC would be calling a witness who would testify that the first time the HCPC was notified of the convictions was December 2021. The Registrant was required to notify the HCPC ‘as soon as possible’ and there had been no such notification between October 2017 and December 2021. Further, Mr Barnfield submitted that emails from the Registrant contained within the bundle including apologies for not reporting his convictions in a timely manner which amounted to admissions. The Registrant had said that it did not cross his mind that he needed to declare his convictions, and that he did so after speaking to a friend about renewing his registration.

8. The HCPC called Mr AM, a Registrations Manager with the HCPC. He confirmed his written statement, with which he said:
I have reviewed the HCPC’s internal registrations system and confirm that the first time Mr Ndlovu declared a conviction to the HCPC was on 8 December 2021 when he submitted an application for renewal. I exhibit as Exhibit AW1 a screenshot of the HCPC’s internal registrations system which shows the details of Mr Ndlovu’s renewal in 8 December 2021.

9. In his oral evidence Mr AM pointed out that in his December 2021 renewal, the Registrant selected ‘yes’ to say that there had been a change relating to his good character, and he told the HCPC about his convictions. Mr AM stated that he had been through the HCPC’s system and there was no other record of the HCPC having been notified of the convictions. He explained that prior to October 2020, if someone needed to make a declaration, they would need to contact the HCPC to request a paper renewal form.

Decision on Facts
10. The Panel accepted the advice of the Legal Assessor. It was aware that it should accept the Certificates of Conviction as proof of those matters, and it was not permitted to look behind them. In relation to Particular 3, the Panel needed to weigh the evidence before it to determine whether the HCPC had proved the matter on the balance of probabilities.

Particulars 1 and 2 - proved
11. The Panel considered the Certificates of Conviction and noted the email from the Magistrates’ Court, confirming that that these were certified copies. It noted that the Registrant accepted his convictions and indeed, had provided the HCPC with a Disclosure and Barring Service Certificate dated December 2018 which set out these convictions. The Panel found Particulars 1 and 2 proved.

Particular 3 - proved
12. The Panel considered the evidence of Mr AW, and noted that the Registrant had two earlier opportunities to declare his convictions, namely when he renewed his registration in 2017 and 2019. It also took into account the email from the Registrant in which he stated that he was unaware he had to disclose these to the Regulator. The Panel was aware, from its own experience, that there is guidance available to registrants when renewing their registration online, which among other things, informs registrants of the matters affecting ‘good character’ which should be declared. Whilst the Registrant may not in fact have been aware of his obligation in this respect, as a registered professional, he should have been familiar with the Standards of Conduct, Performance and Ethics, and should have been aware of this requirement.

13. The Panel noted that a period of over four years had elapsed between the date of the convictions and the declarations, and that the requirement is to notify the HCPC ‘as soon as possible’. Given this significant intervening period, the Registrant could not be said to have informed the HCPC of his convictions in a timely manner, particularly in light of the two earlier opportunities, when he renewed his registration in 2017 and 2019.

Decision on Grounds
14. Mr Barnfield submitted that the convictions are their own ground of impairment, and that the failure to notify the HCPC in a timely manner of them amounts to misconduct as the Registrant breached standards 9.1 and 9.5 of the HCPC’s Standards of Conduct Performance and Ethics:

9.1 you must made sure that your conduct justifies the public’s trust and confidence in you and your profession.

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;

15. The Panel accepted the advice of the Legal Assessor. It was aware that if it found the convictions proved as a matter of fact, then the conviction ground of impairment was made out. In relation to misconduct, there is no statutory definition, and the Panel had regard to guidance given in Roylance v General Medical Council (No.2) [2000] 1 AC 31: Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed.....in the particular circumstances; and Doughty v General Dental Council [1988] AC 164 which is authority for the position that any falling short of standards should be serious, so as to amount to misconduct.

16. The Panel found the conviction ground made out by virtue of it having found Particulars 1 and 2 proved.

17. With regard to misconduct, the Panel considered that the Registrant had a duty to be aware of the requirement to report his convictions to the HCPC, and as such, his failure to do so fell below the standards expected, as set out in Mr Barnfield’s submissions. As to whether this failing was sufficiently serious to cross the misconduct threshold, the Panel considered that a failure to report matters that go to one’s suitability to remain on the Register is inherently serious, because such failures pose a risk to the integrity of the Register. The public expect the Registrar to have all relevant information available when making decisions both in relation to admission to the Register, and renewal of registration, because in turn, this gives patients and service users assurance that registrants involved in their treatment meet the Regulator’s requirements. As such, if there is a failure to declare convictions, this means that the person may remain on the Register in circumstances where, had all the facts been declared, the decision about their renewal may have been different. The integrity of the Register is fundamental to the Regulator’s ability to function effectively. As such, the Panel determined that the Registrant’s failure to declare his convictions in a timely manner amounts to misconduct.

Decision on Impairment
18. Mr Barnfield submitted that the Panel is primarily concerned with the public component of impairment; public confidence in the profession. He submitted that failures to notify the Regulator of convictions are of concern. The Registrant’s convictions were serious matters, so failing to inform the Regulator undermines public confidence in the regulator. The public are entitled to know that the Regulator had all relevant information when making registration decisions. If the register is inaccurate, public trust is potentially damaged. The Registrant’s behaviour, both in terms of the convictions themselves, and failing to inform the Regulator in a timely manner, fall far short of the standards expected and poses a real risk of significant harm. Mr Barnfield invited the Panel to make a finding of current impairment as not doing so would undermine confidence in the profession and the regulatory process.

19. The Panel accepted the advice of the Legal Assessor and was aware that:

• The existence of impairment is a matter for the panel’s own independent judgment or assessment;

• In assessing impairment, the panel is looking at the past to assess the present, as set out by Sir Anthony Clarke in Meadow v General Medical Council [2006] EWCA Civ 1390:

• “In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, to form a view as to the fitness of a person to practice today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past”.

• In Cohen v General Medical Council [2008] EWHC 581 Mr Justice Silber suggested a 3 fold "test"; the Committee may be assisted by asking itself: Is the conduct of the Registrant remediable? Has it been remedied? Is it highly unlikely to recur?

• In Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927 (Admin) it was emphasised that panels need to consider “whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances”.

20. The Panel first considered whether the Registrant’s conduct is remediable. It was of the view that his actions were in principle remediable, notwithstanding that there is no information as to the circumstances of the convictions. In the absence of any suggestion of an underlying alcohol issue, it was entirely feasible for the Registrant to learn from his serious errors of judgment. His failure to report the matter to the HCPC in a timely manner was also remediable, and this process is likely to have made the Registrant aware of the importance of ensuring familiarity with the HCPC’s Standards of Conduct, Performance and Ethics.

21. In terms of whether the Registrant has remediated, whilst the Panel noted that he pleaded guilty to the offences and he has apologised for his delay in informing the HCPC, the Panel had no evidence before it of any insight. The Registrant had not demonstrated either an awareness of the risks posed by his conduct, or the impact of such conduct on the reputation of and public confidence in the profession. The Panel was conscious that the Registrant has not, to its knowledge, had the benefit of legal advice. However the Registrant had chosen not to attend today, having been informed that this would be of benefit to the Panel, which was likely to have questions for him. Had he done so, or had he taken the opportunity offered to provide a short written statement dealing with current impairment, then the Panel would have been greatly assisted. As matters stood, there was no information before the Panel upon which it could conclude that the Registrant understood the seriousness of his convictions, or the seriousness of failing to declare them in a timely manner. There was no evidence before the Panel to enable it to find that the Registrant had remediated.

22. It followed that there remains a risk of repetition. Whilst this was probably low, given that almost 7 years have passed and there has been no repetition, combined with the fact that the Registrant is now aware of the requirement to declare convictions, the Panel could not say whether the Registrant had now familiarised himself with all the HCPC’s Standards, and whether he will abide by those in his private as well as his professional life.

23. The Panel noted the positive email from the Registrant’s employer, and that he has recently been promoted to Clinical Lead. The Panel, applying the ‘test’ formulated by Dame Janet Smith in the fifth Shipman Inquiry, as articulated in the case of the CHRE v NMC and Grant (above), considered that whilst the Registrant does not pose an unwarranted risk of harm to patients, he has breached a fundamental tenet of the profession, in that he has broken the law, and he has thereby brought the profession into disrepute. As the Panel had no assurance that the Registrant had developed insight, the only logical conclusion was that he was liable to act in similar ways in the future. The Panel found that the Registrant is impaired on the personal component.

24. The Panel went on to consider the public component of impairment. It considered that convictions will almost always damage public confidence in the profession, because the public are entitled to expect that registered professionals are law abiding citizens, who can be trusted. Not only were the convictions themselves serious matters, for which the Registrant received fines, license endorsements and was disqualified from driving for a period of up to 12 months, but the failure to declare them for over four years negatively impacted on the Regulator’s ability to perform it’s function in a robust and effective manner. By the Registrant having failed to provide up to date character information at two previous renewals, the Regulator had been deprived of the opportunity to make a judgement on the Registrant’s suitability for continued registration. The integrity of the Register was put at risk. An informed member of the public would be extremely concerned to learn that professionals were able to remain on the Register by failing to declare matters to the Regulator, and such a member of the public would, in turn, question the extent to which they could trust that professionals regulated by the HCPC were correctly registered. When confidence in a register such as that maintained by the HCPC is called into question, there is a real risk of people taking risks with their health.

25. Further, the Panel was of the view that a finding of impairment is required in the circumstance of this case to send a message to the profession that failing to declare convictions in a timely manner is not tolerable. A finding was required in order to uphold and maintain proper professional standards.

26. For these reasons the Panel found the Registrant currently impaired on the public component.

Decision on Sanction
27. Mr Barnfield made no sanction bid, but noted certain mitigating and aggravating factors. With regard to mitigation, the Registrant had apologised, the offences took place some time ago, and there were no other concerns as to his practice. There were also the personal circumstances as set out in his email.

28. As to aggravating features, Mr Barnfield noted the lack of any evidence of insight, and submitted that a more serious sanction is appropriate where a registrant has failed to demonstrate an understanding of the impact of their actions. Nor was there any evidence before the Panel as to any steps the Registrant may have taken to gain familiarity with the HCPC’s Standards. Mr Barnfield submitted that there had had been two registration renewal cycles when the convictions could have been declared, so the time taken to notify the HCPC was an aggravating feature. Finally, the fact that there had been two convictions suggested the Registrant’s behaviour was more serious and intentional.

29. As to the appropriate sanction, Mr Barnfield submitted that when looking at the Sanctions Policy, the circumstances before the Panel did not fit with when a caution order is appropriate. Mr Barnfield submitted that a suspension order may be appropriate with reference to the guidance. He submitted that any sanction needs to be sufficient to mark the damage to public confidence potentially caused by inaccuracies in the Register.

30. The Panel accepted the advice of the Legal Assessor. It was aware that it should:

• Have regard to the Sanctions Policy and begin by considering whether there are any particular mitigating or aggravating features;

• Then work through the sanctions starting with the least restrictive;

• Have regard to the HCPC’s over-arching objective of protecting the public, maintaining public confidence in the profession and upholding proper professional standards;

• Impose the minimum sanction necessary to meet the regulator’s overarching objective, bearing in mind that the purpose of sanction is not to punish; Sir Anthony Clarke MR in Meadow v GMC [2007] 1 QB 462;

• Ensure that any sanction is proportionate, whilst bearing in mind that the interests of the profession take precedence; Bolton v Law Society (1994) 1 WLR 512; however proportionality to the Registrant needs to weigh into the balance; Dad v General Dental Council [2000] 1 WLR 1538

• Bear in mind that there is a public interest in an otherwise competent professional being allowed to continue to practice;

31. The Panel considered the following to be mitigating features:

• No repetition since the offences in 2017;

• Positive testimonial from the Registrant’s employer;

• The Registrant had apologised;

• The Registrant’s personal circumstances behind his non-attendance and his reference to financial hardship if prevented from practising.

32. The Panel was of the view that the following were aggravating features:

• There had been two renewal cycles where the convictions could have been declared;

• Lack of evidence of any insight.

33. The Panel then went on to consider the available sanctions in ascending order. In its view, taking no action was not appropriate given the seriousness of the offences and the misconduct, combined with the Registrant’s lack of insight.

34. The Panel next considered a caution order. It noted that such an order may be appropriate where:

• 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 only the second bullet applied, as it could not be said that the offences were relatively minor in nature, and there had been no evidence of insight or remediation. It therefore considered that a caution order was not appropriate, although it did bear in mind that that the next available order, a suspension, will have very significant consequences for the Registrant.

36. The Panel then moved on to consider a suspension order, because a conditions of practice order is not suitable for cases in which there is no risk to patients or the public and an order is necessary due to public interest considerations alone. This was the circumstance before the Panel.

37. The Panel looked carefully at the circumstances when a suspension order may be appropriate, and noted this is when:

• The concerns represent a serious breach of the Standards of Conduct, Performance and Ethics;

• The registrant has insight;

• The issues are unlikely to be repeated; and

• There is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

38. Save for the lack of demonstrated insight, the remainder of the bullets were applicable. The Panel was aware that a suspension order will prevent the Registrant from practising his profession, and is likely to cause personal hardship. However, this was not the Panel’s primary concern, and unlike in the criminal courts, personal mitigation carries very little weight at the sanction stage, as the Panel was primarily concerned with maintaining public confidence in the profession and the regulatory process.

39. The Panel bore in mind the public interest in a competent professional remaining in practice, but considered that the seriousness of the matters found proved, and the consequent impact on the public’s ability to have confidence in the regulatory process and trust in the profession meant that action preventing the Registrant from practising was necessary and hence proportionate. This is because the Panel’s primary concern was to impose the sanction which would appropriately mark the gravity of the issues so as to maintain standards and uphold public confidence.

40. The Panel was cognisant of the case of Dad v General Dental Council, where an appeal against a 12-month suspension for driving offences was successful, in circumstances where there were no concerns about the Registrant’s practice. Such a suspension was deemed by the court to be disproportionate and hence unjustified.

41. The Panel therefore concluded that a short period of suspension, two months, without review, was appropriate to remind the profession of the need to declare convictions in a timely manner, was sufficient to mark the seriousness of the convictions and the registrant’s subsequent delay in declaring them, and as such, would mean that public confidence in the profession and regulatory process was maintained. The Panel considered that any lesser sanction would be insufficient to achieve this. Equally the Panel was of the view that a striking off order would be disproportionate, given that the convictions arose out of a single incident and there were no concerns with the Registrant’s practice.

Order: The Registrar is directed to suspend the name of the Registrant for a period of 2 months.

The order imposed today will apply from 3 May 2024.

This order will be reviewed again before its expiry on 3 July 2024.

An appeal may be made to the High Court in England and Wales against the Panel’s decision and the order it has made against you. Any appeal must be made to the court not more than 28 days after the date when this notice is served.

History of Hearings for Mr Ingo M J Ndlovu