
Christel Rogers
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Allegation
As a registered Occupational Therapist (OT79372):
- On 30 January 2023, at Birmingham and Solihull Magistrates’ Court, you were convicted of driving a motor vehicle on a road, on 17 June 2022, after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
- You did not inform the HCPC that you had been charged with the above offence, in a timely manner.
- The matter set out in Particular 2 constitutes misconduct.
- By reason of the matter set out above, your fitness to practise is impaired by reason of your conviction and/or misconduct.
Finding
Preliminary Matters
Admissions
1. At the outset of the matter and following the reading of the Allegation the Registrant admitted the factual particulars 1 and 2 of the Allegation. The Registrant confirmed that she accepted that the conviction related to her and that she did not inform the HCPC in a timely manner that she had been charged. The Registrant denied that this amounted to misconduct and denied that her fitness to practise was impaired. As a consequence of the Registrant’s admissions and following the agreement of all parties it was determined that the witnesses who were warned to give evidence were not required, and their evidence could be read.
Background
2. The Registrant is a Registered Occupational Therapist. At the time of the events giving rise to the Allegation she was not working as an Occupational Therapist.
3. On 17 June 2022, following a roadside breath test that took place between 22:03 and 23:00, the Registrant was arrested by a Police Constable for driving a vehicle whilst under the influence of alcohol and hitting two other parked vehicles. This took place in a car park. The Registrant explained that she was trying to charge her mobile phone and was driving the car slowly to charge her phone. A security guard saw her collide with other cars in the car park and called the police.
4. On 18 June 2022, the Registrant was charged with driving a motor vehicle on a road, after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
5. On 8 July 2022 the Registrant entered a plea of not guilty in the Magistrate’s Court, and on 30 January 2023 the Registrant was found guilty at Birmingham and Solihull Magistrates’ Court.
6. On 8 February 2023 the Registrant submitted a self-referral form to the HCPC and selected a box to indicate that she had ‘Been charged with a criminal offence(s)’, and expanded:
“I have been charged with drink driving conviction and have lost my driving licence from 14 to 17 months with drink driving course given as an option. I have to go to court order probation meetings once every two weeks for 8 months to include 15 meetings.”
Decision on Facts
7. The Panel took into account the Registrant’s admissions together with the documentary evidence in relation to the conviction and the declaration of that conviction to the HCPC.
8. In making its findings, the Panel has borne in mind that the burden of proof rests with the HCPC and the standard of proof is the balance of probabilities. Rule 10(d) of the Rules states that ‘where a registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction (or in Scotland and extract of conviction) shall be admissible as proof of the findings of fact on which it was based’.
9. The Panel considered the memorandum of an entry entered in the Register of the Birmingham and Solihull Magistrates’ Court for 30 January 2023 together with the certification of the court officer. In view of this document and the Registrant’s admission, the Panel found particular 1 of the Allegation proved.
10. In relation to particular 2 of the Allegation the Panel had regard to the documentation produced by the HCPC regarding the notification of the conviction and the admissions made by the Registrant. In the circumstances the Panel was satisfied that there was a delay between 18 June 2022 and 18 February 2023 before the Registrant notified the HCPC that she had been charged and subsequently convicted and this amounted to a failure to inform the HCPC in a timely manner as required.
Proceeding in absence
11. At the point of the hearing resuming to deliver the Panel’s decision in relation to facts, the Registrant did not re-join the link. The Registrant sent an email to the Hearings Officer to state that she was having difficulties with her Wi-Fi and that she considered it would be best if the hearing proceeded without her. The hearing paused for 30 minutes whilst the Hearings Officer emailed the Registrant to asked if she wished for further time to resolve the difficulties. In addition, the Hearings Officer provided the Registrant with the information to enable her to join the hearing via telephone. The Registrant sent a further email stating that she was content for the hearing to proceed in her absence. At 11.45am she sent an email to the Hearings Officer stating,
“Sorry I wish for the heading [sic] to just continue without me now thank you.”
12. The Panel therefore considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. Ms Kennedy on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant on the basis that it was clear that there had been good service and the Registrant had now chosen to disengage with the hearing process and had voluntarily waived her right to attend. Ms Kennedy submitted that an adjournment would be unlikely to secure the Registrant’s attendance given her express wish for the hearing to proceed without her. Ms Kennedy submitted that there was a public interest in the expeditious disposal of matters and the Panel should proceed in the absence of the Registrant.
13. The Panel considered the application and took into account the HCPTS Practice Note on ‘Proceeding in the Registrant’s Absence’. The Panel accepted the Legal Assessor’s advice and considered the guidance in R v Jones [2003] 1 AC 1 HL and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. The Panel decided to proceed in the absence of the Registrant for the following reasons:
• The Panel is satisfied that the Registrant has had notice of the hearing, having participated until this point;
• The Notice of Hearing dated 17 September 2024 set out that the hearing could continue in the Registrant’s absence;
• The Registrant confirmed in her email to the HCPTS Hearing Officer that she was aware that the hearing could continue and she did not wish to participate;
• The Registrant has not sought an adjournment and twice expressed a wish for the hearing to proceed without her;
• The Panel considered it was very unlikely that the Registrant would attend any future hearing;
• The Panel determined that the Registrant had chosen not to attend the rest of the hearing and voluntarily waived her right to appear;
• The Panel had sight of the representations made by the Registrant and she had stated in her emails that she had nothing further to add;
• There is a general public interest in the expeditious disposal of this matter and an adjournment would serve no useful purpose.
Decision on Grounds
14. In light of the findings made regarding the facts of the conviction the Panel was satisfied that the statutory ground of conviction was made out.
15. The Panel next considered whether the facts found proved in relation to particular 2 of the Allegation amounted to misconduct. The Panel noted that the consideration of misconduct and impairment is a two-step process. The Panel noted that this was a matter for the Panel exercising its own professional judgement.
16. The Panel in reaching this decision had regard to the submissions made by Ms Kennedy on behalf of the HCPC and the information set out by the Registrant in her emails and oral comments to the Panel. Ms Kennedy set out the approach for the Panel to adopt and referred to the relevant case law and Standards of Performance Conduct and Ethics within the Case Summary and in oral submissions.
17. The Panel had regard to the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on “Fitness to Practise Impairment” and in particular, it noted that it was required to determine whether the facts found proved amounted to the statutory ground and this did not automatically follow from the findings of fact. The Panel was reminded that misconduct must be serious and not every falling short will give rise to a finding of misconduct.
18. The Panel considered that particular 2 of the Allegation, as admitted and found proved, amounts to serious professional misconduct. The Panel considered that the Registrant’s delay in notifying the HCPC about the fact that she had been charged with a criminal offence necessarily hampered the HCPC in effectively regulating the profession. The Panel considered that the Registrant’s actions amounted to a falling short of the standards expected of a registered Occupational Therapist. It ought to have been clear to the Registrant that this was a matter that should have been reported to the HCPC immediately and it was not dependent on whether she was working as an Occupational Therapist at the time or not. The Panel considered that this was a core responsibility of a regulated professional to notify the HCPC of these matters.
19. The Panel notes the HCPC Standards of Conduct, Performance and Ethics January 2016 and in particular Standard 9.5 which states,
“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.”
20. The Panel considered that this Standard makes the obligation clear and the Registrant should have been in no doubt that she was required to tell the HCPC about the fact that she had been charged. The Panel did not accept that because the Registrant was not working as an Occupational Therapist at the time the standard was not applicable.
21. The Panel also had regard to Standard 9.1 which states,
“You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”
The Panel considered that the Registrant’s failure to notify the HCPC in a timely way undermined public trust in her and the profession.
22. The Panel considered that the reputation of the profession was damaged by the Registrant’s conduct. The Panel considered that members of the profession and the public would consider the Registrant’s failure to comply with her professional obligations to be deplorable conduct and amounted to the statutory ground of misconduct.
Decision on Impairment
23. Ms Kennedy addressed the Panel in relation to impairment. She submitted that the Registrant’s fitness to practise is impaired both in relation to the personal and public component. She submitted that the Registrant had not provided any evidence that she had addressed the circumstances that led to the offending in any depth. She submitted that the Registrant had not produced any significant evidence of insight or remediation and that there was a real risk of a repetition and a risk of future harm. Ms Kennedy submitted that both in relation to the conviction and the misconduct in failing to notify the HCPC of the charging decision, a finding of impairment was also required to uphold proper professional standards and public confidence in the profession.
24. Although the Registrant had left the hearing, the Panel took into account the information contained in her emails and her oral submissions. The Panel noted that the Registrant had provided a character reference and had also provided a letter of remorse. The Panel noted that the Registrant believed that she was not required to notify the HCPC as she was not working at the time. The Panel also noted that the Registrant had completed her probation requirements.
25. In addressing the issue of current impairment of fitness to practise, the Panel accepted the advice it received from the Legal Assessor and applied the guidance contained in the HCPTS Practice Note entitled, “Fitness to Practise Impairment”. Accordingly, it considered both the personal and public components.
26. With regard to the personal component, there were elements of what the Registrant told the Police and subsequently this Panel about the incident that has led the Panel to conclude that the Registrant’s insight is not fully developed. For example, the Panel had no information about the Registrant’s alcohol use. [Redacted]. The Registrant set out in her correspondence that she was angry at the time of the offending and had herself been the victim of a crime, but no further evidence was provided. The Registrant also stated that she had been incorrectly advised by her legal representatives to plead not guilty and it was because of this advice that she had lost money. There was no detailed reflection from the Registrant to reassure the Panel that she had addressed the issues that led to the offending to prevent any repetition.
27. The Panel noted that the Registrant does accept that she did commit the offence and is remorseful for her actions.
28. The Panel considered that there was an absence of acceptance of the true circumstances of the incident, and a lack of insight into the consequences of it. Further there is a lack of any meaningful insight into the impact of the conviction on the reputation of the profession. The Panel also considered that there was a lack of appreciation of the consequences that the delay in reporting the matter to the HCPC could have on effective regulation and protecting the public. In these circumstances the Panel could not be satisfied that the Registrant had insight into her misconduct or conviction.
29. The Panel therefore concluded that there was insufficient evidence of insight and remediation and there was a risk of repetition. For that reason the Panel has concluded that the Registrant’s fitness to practise is impaired upon the personal component.
30. So far as the public component of impairment of fitness to practise is concerned, the Panel considered that a finding of impaired fitness to practise is necessary. The Panel considered that the conviction is a serious falling short of the standards required and in the view of the Panel fair-minded members of the public would be shocked if a finding of impairment were not made in circumstances where a Registrant was convicted of drink driving and had failed to inform the Regulator of the circumstances for a significant period.
31. Having concluded that the Registrant’s fitness to practise is impaired on both the personal and public components, the allegation is well founded. It follows that the Panel must go on to consider the issue of sanction.
Decision on Sanction
Submissions
32. Ms Kennedy did not invite the Panel to impose any particular sanction. However, she drew the Panel’s attention to the HCPTS Sanctions Policy (“Sanctions Policy”). She submitted that there was some evidence of mitigating features, in that the Registrant had made admissions, partially engaged with proceedings and had apologised and expressed remorse for the drink driving conviction. She invited the Panel to consider as aggravating features that there is a lack of meaningful insight, and the Registrant has taken no steps to remediate her conduct by way of training or reflection.
33. In conclusion, she submitted that the Panel ought to impose a proportionate sanction in accordance with the Sanctions Policy.
Registrant’s submissions
34. Although the Registrant was not present for this part of the hearing the Panel took into account everything that had been submitted including her character reference and letter of apology.
Panel’s consideration and decision
35. The Panel accepted the advice of the Legal Assessor. She advised the Panel that the full range of sanctions is available to it as this was a case involving a criminal conviction and misconduct. She advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process. The Legal Assessor advised the Panel that it was entitled to take into consideration factors that it considered to be aggravating and mitigating circumstances when deciding what sanction would be sufficient in the public interest.
36. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. She reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. She advised the Panel that it should consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public and the public interest.
37. The Panel accepted the advice of the Legal Assessor and had due regard to the Sanctions Policy. The Panel has considered any aggravating and mitigating factors and has borne in mind the principle of proportionality.
38. The Panel identified the following aggravating factors, the Registrant has not demonstrated any meaningful insight into her conduct, particularly in relation to the delay in reporting matters to the HCPC. There is no evidence before the Panel that the Registrant has understood the seriousness of her misconduct nor appreciated the impact on the profession. There was no evidence before the Panel that the Registrant had remediated her conduct by familiarising herself with the Standards or by providing a reflective account to the Panel to demonstrate that she has learned from the experience and had taken effective steps to prevent any repetition. There was no evidence before the Panel regarding the Registrant’s current use of alcohol or any evidence that she had appreciated the effects of alcohol on the offending. The responses given by the Registrant during these proceedings suggested that she had not developed personal accountability for the misconduct and conviction and sought to blame others such as her criminal lawyers, the legal and regulatory processes and the HCPC.
39. The Panel identified the following mitigating factors, the Registrant made admissions in these proceedings and has engaged with the HCPC. The Registrant indicated in her correspondence with the HCPC that there were difficult personal circumstances on the night of the offence but the Panel had heard no detailed evidence from the Registrant and so it was unable to attach significant weight to these matters. The Panel also noted that the Registrant was at the start of her career.
40. The Panel reminded itself that the Registrant has been convicted of a criminal offence which had the potential to cause serious harm. The Panel also took into account the findings it had made in relation to impairment and in particular the finding that the Registrant posed a risk of repeating her misconduct in relation to her responsibilities as a professional to keep the HCPC informed of relevant matters.
41. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offence committed, and the misconduct in the delay in informing the HCPC, this would be inappropriate and inadequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.
42. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99 - 102 of the Sanctions Policy as to when such an order might be appropriate. The Panel determined that the circumstances of the criminal offence and misconduct are such that a Caution Order is also not appropriate to meet the public interest concerns identified for the same reason as set out above.
43. The Panel next considered the imposition of a Conditions of Practice Order and had regard to paragraphs 105 - 117 of the Sanctions Policy. The Panel has had regard to the fact that there are no concerns with the Registrant’s practice or competency as an Occupational Therapist and this matter occurred outside of the workplace. However, the nature of the criminal offence and subsequent late disclosure makes a Conditions of Practice Order inappropriate as a sanction. A Conditions of Practice Order, which focuses on the need to remedy practice deficiencies, would not be appropriate or relevant to the facts of this case. In any event, such a sanction would be unworkable and impracticable given the Registrant’s current lack of full insight.
44. The Panel then considered whether a period of suspension would be a sufficient and proportionate response. It had regard to paragraphs 118-120 of the Sanctions Policy.
45. The Panel bore in mind the findings it had already made and took into account the need to protect the public and public interest. There was evidence before the Panel that the Registrant was remorseful for her conviction and made early admissions to the factual particulars which suggested that there was some understanding that the conduct was wrong. The Panel also noted that the Registrant had complied with her probation requirements to address the offending, but it had no details of what this work was or any learning she had developed. The Panel noted that the Registrant was at the beginning of her career and had not had the benefit of advice or representation during these proceedings.
46. The Panel considered that the Registrant was capable of insight given her remorse and apology but that this was not sufficiently developed to encompass reflection and remediation to mitigate the risk of repetition. The Panel did not consider that the Registrant’s conduct was fundamentally incompatible with remaining on the Register. The Panel considered that there was evidence that the Registrant wished to remain registered as an Occupational Therapist and her engagement suggested to the Panel that there was a willingness to comply with the requirements. The Panel therefore concluded that a period of suspension would be sufficient to protect the public and maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals. The Panel considered that striking the Registrant’s name off the HCPC Register of Occupational Therapists would be disproportionate in circumstances where the conduct was remediable through insight and reflection and the Registrant had demonstrated that she was able and willing to develop such insight.
47. The Panel took into account the impact that an order of suspension would have on the Registrant and noted that although she was not currently working in this role it would prevent her from doing so whilst the order was in force. Nevertheless, it considered that this was the appropriate and proportionate sanction and the public interest outweighed the Registrant’s interests.
48. The Panel determined that a period of 6 months was the appropriate and proportionate length of the Suspension Order. This would be adequate to protect the public interest and maintain high standards of conduct and behaviour but would also allow the Registrant sufficient opportunity to develop her insight and undertake remediation to identify and address the issues that led to the conviction and misconduct.
49. This Panel does not seek to fetter the discretion of a future reviewing panel, but it considers that such a panel may be assisted by any information which evidences a developing level of insight. This might include learning from courses targeted towards professional ethics and compliance with the Standards. In addition, a future Panel may be assisted by a reflective piece which addresses the impact the Registrant’s misconduct and conviction may have had on public confidence in the profession. The Registrant could also provide any other relevant evidence which demonstrates the steps she had taken to address the misconduct and prevent any repetition.
Order
ORDER: That the Registrar is directed to suspend the registration of Miss Christel Rogers for a period of 6 months from the date this order comes into effect.
Notes
Interim Order
1. The Panel considered the application by the HCPC for an Interim Order to cover the appeal period. The Panel was satisfied that the Registrant had been served with the appropriate notice of the Panel’s powers to consider an interim order in the Notice of hearing dated 17 September 2024. The Panel considered it was appropriate to proceed in her absence for all the reasons outlined in its earlier determination.
2. The HCPC’s application is made on the 2 statutory grounds as follows:
• it is necessary for the protection of members of the public;
• it is otherwise in the public interest.
3. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition. The Panel considered that the period of 18 months was required to cover the likely length of time required for any appeal to be heard and determined.
4. The Panel noted that such an order may have a detrimental effect on the Registrant however, this was outweighed by the need to protect the public from the risk of repetition identified.
5. 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 to cover the length of any appeal.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.
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.
Hearing History
History of Hearings for Christel Rogers
Date | Panel | Hearing type | Outcomes / Status |
---|---|---|---|
30/10/2024 | Conduct and Competence Committee | Final Hearing | Suspended |