Trever C Gayakaya

Preliminary Matters
Service
1. The Registrant attended and was not represented. After speaking to him
at the start of the hearing, the Panel was satisfied that the Registrant
had been properly served with notice of the hearing in good time and
had the documents before the Panel.
Amendment
2. At the outset of the hearing, Mr Rokad applied to the Panel to amend the
Allegation to change the name of the Magistrates’ Court in which the
Registrant had been convicted, from ‘Llandudno Magistrates Court’ to
‘Caernarfon Magistrates Court’.
3. He submitted that the amendment was necessary to reflect all the court
documents that were before the Panel and could be made without any
risk of injustice to the Registrant because he was simply correcting a
typographical error which had no impact upon the case that the
Registrant had to meet.
4. The Registrant did not object to the amendment.
5. The Panel heard and accepted the advice of the Legal Assessor, which
it has followed in the decision set out below.
6. The Panel noted that there is no specific provision in The Health and
Care Professions Council (Conduct and Competence Committee)
(Procedure) Rules 2003 (the Rules) dealing with amendment but
accepted the advice of the Legal Assessor that it has the power to
amend if such amendment is necessary to protect the public and can be
made without injustice to the Registrant.
7. The Panel was satisfied that the proposed amendment did not affect the
fairness of the hearing as the Registrant was already aware of the
Magistrates’ Court in which he had been convicted. Accordingly, the
Panel allowed the amendment.
Background
8. The Registrant is a registered Operating Department Practitioner (‘ODP’)
with the HCPC.
9. At the time of the events giving rise to the Allegation the Registrant was
employed at Ysbyty Gwynedd Hospital in Wales and worked as locum
ODP with Blue Stones Medical.
10. On 29 October 2022, the Registrant was involved in a road traffic
accident when he drove his vehicle into a tree and the car ignited. He
was arrested and provided a sample of breath at the police station which
showed a breath alcohol reading of 46 micrograms of alcohol per 100
millilitres of breath.
11. On 20 December 2022, the Registrant attended the Caernarfon
Magistrates’ Court and pleaded guilty to a single charge of driving with
excess alcohol. He was fined £438, ordered to pay a victim surcharge of
£175 and £85 costs. He was disqualified from driving for 14 months,
reduced by 14 weeks upon completion of “an approved course”. He had
also referred himself to the HCPC on 14 December.
12. The Registrant completed the approved course on 13 May 2023. The
Registrant’s period of disqualification ended in November 2023.
Decision on Facts
13. At the start of the hearing, the chair asked the Registrant if he wished to
make any admissions and the Registrant admitted the conviction.
14. The Panel heard the submissions of Mr Rokad who drew the Panel’s
attention to the certificate of conviction from the magistrates’ court and
submitted that the Panel should find the conviction proven.
15. The Registrant admitted that he had been convicted, on his plea of
guilty.
16. The Panel heard and accepted the advice of the legal assessor, which
the Panel has followed in its decision set out below.
17. The Panel bore in mind that, at this stage, the burden of proving the
Allegation rests upon the HCPC. The Registrant does not have to prove
anything. It reminded itself that the standard of proof is the civil standard,
that is to say the balance of probabilities.
18. The Panel reminded itself of Rule 10 (1) (d) which provides that: where
the Registrant has been convicted of a criminal offence, a certified copy
of the certificate of conviction (or, in Scotland, an extract conviction) shall
be admissible as proof of that conviction and of the findings of fact upon
which it was based”.
19. The Panel saw the Memorandum of Conviction and had regard to the
Registrant’s admissions.
20. Accordingly, the Panel found the Allegation proved.
Decision on Impairment
21. The Panel had regard to article 22 of the Health Professions Order 2001
(the Order) which provides that conviction by a court in the United
Kingdom is a ground upon which a Panel can find a Registrant’s fitness
to practise is impaired.
22. Having found proved the facts set out above, the Panel considered
whether the Registrant’s fitness to practise is currently impaired by
reason of the conviction set out above.
Evidence
23. The Panel heard evidence on affirmation from the Registrant who told
the Panel that, on the afternoon of Saturday 29 October 2022 he had
been drinking with friends in a pub to celebrate one of them starting a
new job. He went home and slept and went out later that evening
because somebody had called him. He felt well enough to drive and
believed that he was now below the legal limit. However, he had lost
control of his car on a country road and collided with a tree.
24. He told the Panel that after the collision his phone was not working, but
he had remained at the scene and positioned himself on the road so that
other cars did not collide with his. He described how he stopped another
car, called the emergency services, waited at the scene and made a
statement to the police admitting that he had been driving.
25. He told the Panel how he had been breathalysed and later agreed to
being voluntarily interviewed by the police, and pleaded guilty at the first
opportunity at the Magistrates’ Court. He had read about the Home
Office approved drink drive course and volunteered to go on it in order to
reduce the risk of him reoffending.
26. He told the Panel that he had completed the “driver awareness” course
and drew the Panel's attention to his written reflections on what he had
learned each day.
27. He told the Panel that during his period of disqualification he had been
unable to fulfil his on-call duties, which he deeply regretted as he could
not support his colleagues.
28. He acknowledged that he had shown bad judgement and that
professionals were supposed to set an example. He told the Panel that
he had seen what happens when a driver collides with someone. He
explained that he had stayed at the scene because he thought the public
would be let down if he left the scene of an accident.
29. He confirmed that he had learned a lot from the course about the effect
of drink and the unhealthy relationship between his drinking and his
socialising that had built up. He recognised that on the day of the
accident he had drunk too much whether he was driving or not. He told
the Panel that, since the accident, not a day had passed without him
thinking of it and he had had periods of abstinence and, even when he
drank, he stayed below the level of 14 units per week. He also
recognised that going out had been an impulsive act and he had learned
to be less impulsive.
30. He told the Panel that he had been working since the accident. He had
been shadowing the practice educator and showing new students
around the department. He said that he had continued to work in his role
but had withdrawn from an interview for a band six job because he felt it
was inappropriate to apply whilst these matters were outstanding. He
emphasised his regret that he could not do his quota of on call shifts and
told the Panel that he had taken a number of the most unpopular shifts
when he could drive again, in order to make this up to his colleagues.
31. In answer to questions he told the Panel that the testimonial from Stuart
Metcalfe was from his deputy team leader who had originally been his
practise educator when he was a student in September 2017. He
confirmed that he had continued to work without restrictions since the
drink driving offence and there had been no further concerns.
32. He told the Panel of the precautions he was taking to prevent any further
re offending. He described how he did not drink if he was going to drive
within 24 hours, and had bought a breathalyser to ensure there was no
alcohol in his body when he drove. On a number of occasions, he
emphasised his understanding of the damage he could do if he drove
with excess alcohol.
33. The Panel records at this stage that it found the Registrant to be an
honest and convincing witness. The Panel noted that his evidence was
consistent with the written reflection that he had put before the Panel
and both his written and oral evidence contained a number of matters
(such as the circumstances of the accident that lead to his arrest) which
were contrary to his own interests and apparently unknown to the HCPC.
34. The Panel also read the testimonial dated 5 August 2023 from Mr
Stewart Metcalfe, a registered ODP and the Registrant’s Deputy Team
Leader at Ysbyty Gwynedd, who spoke of the Registrant in extremely
favourable terms. He described the Registrant as a key member of the
team who was very well respected. He described how he often picks up
extra shifts to help the department to cope with sickness and vacancies
and added this “I make no exaggeration in saying that over the last 3-4
months, had Trever not picked up the extra shifts that he did, operating
lists would have been cancelled due to departmental staffing figures,
meaning patients would have had their surgeries postponed and rescheduled.”
He added that the department was in an isolated part of
Wales where it was difficult to recruit and expressed real concern about
the impact on the department and the service it offered if they were to
lose “such a loved and valued member of the team.”
Submissions
35. The Panel heard the submissions of Mr Rokad, who drew the Panel’s
attention to the relevant law, to which it refers in its decision set out
below.
36. With regard to the conviction, he submitted that it was a serious matter.
He submitted that the conviction amounted to a breach of standard 9.1
of the HCPC Standards of Conduct, Performance and Ethics (2016),
which provides that “You must make sure that your conduct justifies the
public’s trust and confidence in you and your profession.” He submitted
that it also constituted a breach of a similar provision in the Standards of
Proficiency for Operating Department Practitioners.
37. He submitted that the Registrant’s fitness to practise is impaired with
regard to the personal component and the public component, in
particular the need to maintain public confidence in the profession.
38. The Registrant submitted that his fitness to practise was impaired by
reference to the personal component at the time of his offending
behaviour. However, he submitted that since then, he had demonstrated
real insight into what he had done and taken all necessary steps to
correct what he had done wrong, so that there was no significant risk
that he would repeat his offending behaviour.
39. The Panel heard and accepted the advice of the Legal Assessor which
it has followed in the decision set out below.
The Panel’s approach
40. The Panel is aware that impairment is a matter for its own professional
judgement. In reaching its decision, the Panel had regard to the nature,
circumstances and gravity of the conduct giving rise to his conviction
and the critically important public policy issues, in particular the need to
maintain confidence in the profession as well as declaring and
upholding proper standards of conduct and behaviour for the
profession.
41. The Panel also bore in mind that it was concerned with whether the
Registrant’s fitness to practise is currently impaired and focused on the
need to protect the public and the wider public interest in the future.
42. The Panel bore in mind that a finding of impairment is separate from
the finding of a conviction and not all convictions will lead to a finding of
impairment.
43. The Panel had at the forefront of its mind that over a year has elapsed
since the Registrant’s conduct leading to his conviction and there is no
evidence that the Registrant has offended in this way either before or
since the matters proved and the Registrant says he has learned how
to avoid the risk of repetition.
44. The Panel reminded itself that it is always relevant to ask (even if it is
not the end of the matter) whether the misconduct can be remediated
and whether it has been. When considering that question the Panel
must consider whether the Registrant has developed insight and what
has he done to reassure the Panel that his offending behaviour will not
be repeated.
45. With regard to this question, the Panel noted in particular the
observations of Silber J in Cohen v GMC [2008] EWHC 581 (Admin):
“There must always be situations in which a Panel can properly
conclude that the act of misconduct was an isolated error on the part of
a medical practitioner and that the chance of it being repeated in the
future is so remote that his or her fitness to practice has not been
impaired. Indeed the Rules have been drafted on the basis that once
the Panel has found misconduct, it has to consider as a separate and
discreet exercise whether the practitioner’s fitness to practice has been
impaired.”
46. The Panel also bore in mind that in deciding whether the Registrant’s
fitness to practise is still impaired it should follow the approach of
Dame Janet Smith endorsed by the High Court in CHRE v NMC and P
Grant [2011] EWHC 927 (Admin): "Do our findings of fact in respect of
the (Registrant’s) misconduct, deficient professional performance,
adverse health, conviction, caution or determination show that his/her
fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so
as to put a patient or patients at unwarranted risk of harm;
and/or
b. has in the past brought and/or is liable in the future to bring
the …..profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach
one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act
dishonestly in the future."
47. The Panel also had regard to the passage from the Cohen case above
and cited by Cox J which reminds Panels that there may need to be a
finding of impairment in the public interest, even if the misconduct can
be characterised as an isolated incident:
“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 in the (profession)'(sic).
48. The Panel also had regard to the direction given to Panels by the High
Court that they must have regard to all three aspects of the overarching
objective, to protect the public, when reaching a decision.
49. It also reminded itself that the overarching objective involves acting:
a. to protect, promote and maintain the health, safety and wellbeing of
the public
b. to maintain public confidence in the profession
c. to promote and maintain proper professional standards and conduct
for members of that profession.
50. The Panel also had regard to the HCPTS practice note on Fitness to
Practise Impairment dated February 2022. It reminded itself that a
finding of fitness to practise must be focused upon the need to protect
the public. In accordance with the guidelines, it considered the
personal component of impairment which focuses on the likelihood of
the Registrant repeating his behaviour and also the public component
which is focused upon the need to maintain public confidence in the
profession.
The Panel’s decision
51. The Panel considered the questions set out in the case of Grant referred
to above. The Panel considered that the conviction breached the HCPC
Standards of Conduct, Performance and Ethics, particularly standard
9.1. The Panel concluded that the Registrant had acted in a way that
brought the profession into disrepute and breached a fundamental tenet
of the profession.
52. The Panel was satisfied that there was no indication that the Registrant
had put patients at risk and, in light of the Panel’s findings, the question
of the Registrant’s honesty does not arise. The Panel considered
whether there was evidence that the Registrant had developed insight
into the conduct leading to his conviction and taken sufficient steps to
remediate so that the Panel could have confidence that he would not
repeat that conduct.
53. The Panel examined the evidence and other material set out above. It
acknowledged that the Registrant has successfully completed the
approved drink drive course and reflected on what he has learned. The
Panel also accepts his evidence that he has made significant changes to
his life and pattern of socialising.
54. The Panel also acknowledges that the behaviour giving rise to the
conviction is not part of a pattern of behaviour and the Registrant has
worked for over a year without any repetition and made a very
favourable impression on a senior colleague, who speaks highly of the
contribution he has made to the department where he works.
55. The Panel concluded that the Registrant had developed good insight into
the seriousness of what he had done, the circumstances that had led
him to do it, the impact that his behaviour had on colleagues and the
profession and the potential to cause great harm to members of the
public.
56. The Panel was satisfied that the Registrant had demonstrated this
insight through his evidence and the written reflections he put before the
Panel, including reflections on the approved course, and through the
changes that he had made to the pattern of his life.
57. For those reasons the Panel was satisfied that there was no longer a
significant risk that the Registrant would repeat his misconduct and that
his fitness to practise was not impaired with regard to the personal
component.
58. Nevertheless, the Panel went on to consider whether a finding of
impairment was necessary under the public component in order to
maintain public confidence in the profession and uphold proper
standards of conduct.
59. The Panel concluded that an informed member of the public would be
disturbed to find that there was no finding of impairment following a
conviction for an offence such as this, which had the potential to cause
significant harm to members of the public.
60. For these reasons the Panel has found that the Registrant’s fitness to
practise is currently impaired on the public component alone.
Decision on Sanction
61. Having found the Registrant’s fitness to practise impaired, for the
reasons set out above, the Panel considered, what, if any sanction it
should impose on the Registrant.
Submissions
62. Mr Rokad drew the Panel's attention to the relevant passages of the
Sanction Policy, to which the Panel refers below. He also drew the
Panel's attention to potential aggravating and mitigating factors in the
case and said that the HCPC did not propose any particular sanction
although he submitted that a sanction of some sort was required in this
case. He reminded the Panel that the established approach was to
consider the least restrictive sanction first and consider sanctions in an
ascending order until the Panel found a sanction that was sufficient to
protect the public, including the wider public interest.
63. The Registrant thanked the Panel for its attention and repeated that
there was no excuse for what he had done, and he recognised that he
had put the public at risk. Nevertheless, he asked for a chance to remain
in the profession, to contribute more and redeem himself.
64. The Panel heard the advice of the legal assessor which it has followed in
the decision set out below. The Panel also had regard to the HCPC
Sanctions Policy (SP)
The Panel’s decision
65. The Panel is aware that the purpose of a sanction is not to be punitive
but to protect the public and the wider public interest, which includes the
deterrent effect on other Registrants, the reputation of the profession
and public confidence in the profession and the regulatory process. The
Panel reminded itself that the Registrant had already been punished by
the criminal court.
66. The Panel also bore in mind the principle of proportionality and balanced
the Panel’s duty to protect the public against the rights of the Registrant.
67. The Panel accepted the approach set out in Mr Rokad’s submissions.
It also accepted that when recording the mitigating and aggravating
factors it should balance them with all the other evidence and reach a
conclusion about the seriousness of the conduct giving rise to the
convictions in this case.
68. The Panel took into account the following mitigating factors:
a. The Registrant’s conviction arose from a single isolated incident;
b. The Registrant demonstrated remorse from the outset by
remaining at the scene, making a statement to the police and
pleading guilty at the first opportunity;
c. As the Panel has already recorded above, the Registrant has
demonstrated significant insight into all relevant aspects of his
behaviour, including how to prevent further offending in the
future;
d. By attending the approved course, reflecting on his life as well
as the course itself and by making appropriate changes to his
behaviour, the Registrant has done all he reasonably could to
remediate his behaviour;
e. The Registrant has put before the Panel an extremely
favourable testimonial from a senior colleague;
f. There have been no other matters recorded against the
Registrant in either criminal or regulatory proceedings.
69. The sole aggravating factor was that the Registrant had put members of
the public at significant risk or serious harm.
70. The Panel balanced those factors and found that the conviction was
serious but could be dealt with by a less restrictive sanction in light of the
significant mitigation.
71. The Panel then considered the sanctions available to it in ascending
order of severity.
72. The Panel was satisfied that it could not take no action because this
would not be consistent with its findings regarding the seriousness of the
conviction.
73. The Panel next considered whether it should impose a caution order.
The Panel had regard to paragraph 101 of the SP, which provides:
101. A caution order is likely to be an appropriate sanction for
cases in which:
i. the issue is isolated, limited, or relatively minor in nature;
ii. there is a low risk of repetition;
iii. the Registrant has shown good insight; and
iv. the Registrant has undertaken appropriate remediation.
74. The Panel also had regard to paragraph 102, which provides
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).
The Panel concluded that on the facts of this case a caution order would
be the most appropriate and proportionate sanction. The conviction was
the result of an isolated, albeit, serious incident, and there was a very
low risk of repetition given the significant insight and remediation
undertaken by the Registrant. The Panel considered that in all the
circumstances of this case, public confidence in the profession and
regulatory process would be maintained by the imposition of a Caution
order.
Having determined that a caution order was proportionate, the Panel
then considered whether a Conditions of practice or a Suspension order
would be more appropriate.
75. The Panel found that there were no meaningful practice conditions which
would reflect the nature of this case. It was also satisfied that a
suspension order would be disproportionate in this case for the following
reasons:
a. The offence giving rise to the conviction was a genuinely
isolated incident;
b. the Registrant demonstrated remorse and an acceptance of
responsibility from the moment of the traffic accident by staying
at the scene, calling the emergency services and making a
statement to the police;
c. the Registrant has already been punished by the criminal courts;
d. the Registrant has the benefit of an exceptionally favourable
testimonial, referred to above;
e. the Registrant has satisfied the Panel that he has developed
insight and modified his life to the point where the risk of
repetition is no longer significant.
76. The Panel has also had regard to the matters set out in the testimonial
which indicates that there is a strong public interest, in the particular
circumstances of the Registrant’s employment, in allowing him to
continue to work as he has for the year since his conviction.
77. The Panel then considered the length of the caution order and decided
that 12 months was sufficient to maintain confidence in the profession
and in the regulatory process in this case having regard to the
exceptional efforts that the Registrant has made and the changes he
has achieved, since his conviction.
78. Accordingly, the Panel imposes a caution order to be placed on the
Registrant’s registration for a period of 12 months.

Order: The Registrar is directed to enter a caution order on the
Registrant’s registration for a period of 12 months.

No notes available

History of Hearings for Trever C Gayakaya