Ms Joanna Mary Dunn

Preliminary Matters

Application to conduct the hearing partially in private

1. Ms Mosely, 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 Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). Mr Holborn did not oppose the application.

2. 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.

Background

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

4. The Registrant is registered with the HCPC as an Operating Department Practitioner.

5. On 23 February 2021, the Registrant was convicted at Cambridge Magistrates’ Court of driving a vehicle under the influence of alcohol. The legal limit is 35 microgrammes of alcohol in 100 millilitres of breath. The reading taken from the Registrant was 75 microgrammes of alcohol in 100 millilitres of breath.

6. The Registrant was fined £750 and ordered to pay a victim surcharge of £75 and prosecution costs of £150. She was disqualified from driving for 18 months with an option to reduce the period of disqualification by 18 weeks if she were to complete a drink-drive awareness course by 18 February 2022.

7. The Registrant self-referred to the HCPC on 6 May 2020.

8. On 14 July 2022, the Registrant was further convicted at Cambridge Magistrates’ Court of driving a vehicle under the influence of alcohol. The reading taken from the Registrant was 95 microgrammes of alcohol in 100 millilitres of breath.

9. The Registrant was fined £623 and ordered to pay a victim surcharge of £95 and prosecution costs of £85. She was disqualified from driving for a period of 48 months and received an 18-month Community Order with a 6-month alcohol treatment requirement and 25 rehabilitation activity requirement days. The Registrant confirmed during the hearing that in relation to this sentence, her driving ban was reduced by 24 months as a result of a successful application being made to the Magistrates’ Court.

10. The Registrant made a second self-referral to the HCPC on 10 June 2022.

11. This case involves a mixed Allegation; that is, an allegation of impairment by reason of both conviction and health. Ms Mosely, on behalf of the HCPC, submitted that the HCPC wished to invite the Panel to consider the evidence and make findings on those particulars of the Allegation that related to convictions only.

12. It was submitted that if, having made its findings on the conviction matters, there remained an outstanding public interest in resolving the health aspects of the Allegation, the HCPC would invite the Conduct and Competence Committee to transfer the health allegation to the Health Committee, in order that it may be determined and, if appropriate, a sanction (or further sanction) imposed.

13. Mr Holborn, on behalf of the Registrant, submitted that the Registrant admitted the facts in relation to those particulars that related to convictions only.

Decision on Facts

14. The Panel was provided with the following relevant documents:

• The self-referral form submitted by the Registrant to the HCPC on 6 May 2020;

• Memorandum of Conviction dated 23 February 2021;

• The self-referral form submitted by the Registrant to the HCPC on 10 June 2022;

• Certified Certificate of Conviction dated 10 June 2024.

15. 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.

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

17. The Panel made the following findings of fact:

(i) On 23 February 2021, the Registrant was convicted of:

- driving a motor vehicle on the M11 on 24 April 2020 after consuming so much alcohol that the proportion of it in your breath, namely 75 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit. This was contrary to s 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.

(ii) On 14 July 2022, the Registrant was convicted of:

- driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in your breath, namely 95 micrograms of alcohol in 100 millilitres of 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.

18. With regard to each of the above particulars, the Panel was provided by the HCPC with evidence of the Certificates of Conviction dated 23 February 2021 and 10 June 2024 respectively.

19. The Legal Assessor advised that where the 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.

20. 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 the above particulars were found proved.

Decision on Grounds

21. The HCPC relied on the statutory ground of conviction pursuant to Article 22(1)(a)(iii) of the Health Professions Order 2001, which provides that one of the grounds upon which an allegation may be made is that a registrant’s fitness to practice is impaired by reason of:

“a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence”

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

23. The Panel found the particulars in relation to the Registrant’s convictions proved and the Panel was satisfied from the evidence produced that the ground for conviction was established.

Application to Adjourn until 18 February 2025

24. At the impairment stage, Mr Holborn made an application to adjourn the hearing until 18 February 2025. He sought clarification in relation to the HCPC position surrounding impairment. He explained that the Registrant wished to give evidence at the impairment stage and that some further time would be required to prepare her for the same.

25. Ms Mosely, on behalf of the HCPC, submitted that she did not take any issue with further time being afforded to the Registrant to prepare for the next stage of the hearing. However, she was opposed to such a lengthy adjournment.

Decision

26. The Panel accepted the advice of the Legal Assessor, who referred the Panel to the case summary, which set out the HCPC’s position in relation to impairment. The Panel also took into account the HCPTS Practice Note on “Postponement and Adjournment of Proceedings”.

27. The Panel concluded that, in the interest of both parties and the public interest, the application to adjourn would be granted; however, the hearing should resume at 14:30 on 17 February 2025. The Panel also took into account the substantial period of time that the Registrant and her representative had notice of this hearing.

28. The Panel determined that this period of time would provide the Registrant with reasonable opportunity to prepare for the next stage of the hearing.

Decision on Impairment

The Registrant’s Evidence

29. The Registrant told the Panel that she fully accepted responsibility for her actions. She described that at the time of the first conviction, she was working in a very pressurised environment and was also experiencing difficulties in her personal life.

30. She told the Panel that her conduct had an impact professionally and financially and that she felt humiliated when she returned to work. She stated that her colleagues provided support to her at this time and have subsequently provided very positive testimonials.

31. In response to Panel questions regarding the chronology from her convictions to returning to work, the Registrant confirmed that after her first conviction she returned after three weeks. She stated that after the second conviction, she was off on sick leave for approximately three months. She told the Panel that she returned to work undertaking infection control duties in early September 2022. Following this, she returned to her original post at the end of September 2022. She told the Panel that she was subject to conditions of practice for a period of six months. The conditions were removed and she has worked full time on an unrestricted basis since then.

32. The Registrant told the Panel that she loves her job and that it means a lot to her. She stated that she has kept up to date with Continuing Professional Development (CPD), and has obtained a postgraduate certificate in happiness and wellbeing in the work place.

33. In response to cross-examination, the Registrant stated that she accepted that her actions could potentially have put the public at risk of harm and understood the impact on both the public and on her profession. She stated that she does not have any firm plans for the future but that she has strong support from family and colleagues should she change roles.

Submissions on impairment

34. The Panel considered the detailed written submissions on behalf of the HCPC and on behalf of the Registrant. Ms Mosely submitted that the Registrant’s fitness to practise is impaired on both the personal and public component. Mr Holborn submitted that the Registrant’s fitness to practise is not currently impaired.

35. The Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment”. 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, namely whether the Registrant:

• has in the past acted and/or is liable in the future to act so as to put a member or members of the public at unwarranted risk of harm; and/or

• has in the past and/or is liable in the future to bring the profession into disrepute; and/or

• has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession;

• has in the past acted dishonestly and/or is liable in the future to act dishonestly.

36. The Panel found limbs A, B, and C engaged in this case.

37. The issue of impairment is a matter for the Panel’s professional judgement, and it required the Panel to consider the central issues of insight, remediation, remorse, and the risk of repetition. The Panel should look to past conduct and to the future in assessing risk of repetition. The Panel must at all times keep at the forefront of its mind the fundamental considerations and overarching objectives of protecting the public and the wider public interest, including the reputation of and public confidence in the profession.

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

39. The “personal” component relates to the Registrant’s own practice, 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.

40. With regard to the “personal” component, the Panel carefully considered all the documentary evidence provided in the bundle, as well as the Registrant’s oral evidence, which demonstrated all the steps taken by the Registrant to remediate her practice.

41. The Panel considered the Registrant’s written reflection and her oral evidence and determined that she had demonstrated insight and remorse for her behaviour and acknowledged the impact that her behaviour had on members of the public and on the profession.

42. The Panel also took into account the positive testimonials received from several of the Registrant’s colleagues. Not all of the testimonials confirmed an awareness of the Registrant’s convictions, but the Registrant confirmed to the Panel that all the testimonials were made with that knowledge. The Panel accepted that the testimonials speak highly of the Registrant and were particularly positive about her contribution to the team and the high quality of her individual clinical practice.

43. The Panel had regard to the Registrant’s evidence that she had returned to practice unrestricted in March 2023 with no further incidents.

44. In all the circumstances, the Panel determined that there was a very limited risk of repetition and concluded that there was no finding of impairment in relation to the personal component.

45. In terms of the public component, the Panel noted the serious nature of the Registrant’s convictions, which involved erratic driving and alcohol readings which were significantly above the legal limit to drive a vehicle. The Panel also noted that the second conviction was consequent upon a higher breath reading than her first conviction. The Panel was of the view that the conduct was aggravated by the fact that the Registrant was travelling to work at the time of the first offence and that she committed a subsequent offence, which resulted in the imposition of a 48-month driving disqualification and an 18-month Community Order with a 6-month alcohol treatment requirement and 25 rehabilitation activity requirement days.

46. In all the circumstances, the Panel found the “public” component of impairment to be satisfied in this case. The Panel considered that a member of the public, knowing of the Registrant’s convictions, would be shocked and undoubtedly expect some restriction to be placed on her registration. Public confidence in the profession and in the Regulator would be undermined if there was no finding of impairment.

47. The Panel accordingly found that the Registrant’s fitness to practise is currently impaired on the public component only.

Decision on Sanction

48. The Panel carefully considered the detailed written submissions from both Ms Mosely and Mr Holborn.

49. Ms Mosely submitted that sanction was a matter for the judgement of the Panel. She took the Panel to the relevant parts of the HCPC Sanctions Policy, which contains guidance on the approach to criminal convictions. Ms Mosely also outlined the aggravating and mitigating factors of the case.

50. Mr Holborn outlined the aggravating and mitigating factors on behalf of the Registrant and submitted that a Caution Order for a period of one year would address the public interest and would be the most proportionate sanction.

51. 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. The Panel wished to emphasise that it reached its decision based upon the individual facts of this particular case.

52. The Panel noted that the Registrant has a previous good character. With regards to mitigation, the Panel took into account the following factors:

• The Registrant pleaded guilty and self-referred to the HCPC on two occasions;
• The Registrant has fully complied with the regulatory process;
• The Registrant has demonstrated good insight and expressed remorse regarding the impact on her colleagues and members of the public;
• The Registrant has undertaken sufficient remediation, to include personal reflection and training courses;
• Low risk of repetition;
• Positive testimonials.

53. By way of aggravating factors:

• Convictions for driving with excess alcohol, travelling to work at the time of the first offence;
• Repetition of a similar offence.

54. The Panel carefully considered the submissions on behalf of the HCPC and the Registrant respectively. The Panel took account of the Registrant’s written reflections and her oral evidence, where she expressed that she is deeply remorseful for her actions.

55. The Panel noted that the Registrant has exhibited significant efforts to remediate her practice. The Panel was of the view that the Registrant has demonstrated a high level of insight.

56. The Panel considered that the Registrant returned to practice, initially under restriction, and then approximately two years ago to unrestricted practice, and there have been no further concerns raised since returning to her professional duties. Following all efforts to remediate her criminal conduct, the Panel was satisfied that there is no risk of harm to patients, colleagues, or members of the public. The Panel also had regard to the numerous positive testimonials which had been provided by the Registrant’s colleagues.

57. The Panel took account of the HCPC Sanctions Policy, to include sanctions surrounding conviction cases. In reaching its decision the Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public. It considered the available sanctions in ascending order.

58. When considering the options available, the Panel determined that given the nature of the case, it would not be appropriate for the Panel to consider mediation or to take no further action. This would fail to send the appropriate message to the profession and to the public that the conduct is unacceptable. Taking no action would also fail to protect the public.

59. The Panel then considered the imposition of a Caution Order and noted that the HCPC Sanctions Policy states that a Caution Order is likely to be appropriate in the following circumstances:

• …
• There is a low risk of repetition
• The Registrant has shown good insight
• The Registrant has undertaken appropriate remediation

60. The Panel determined that a Caution Order for a period of one year would be the most appropriate and proportionate sanction in the particular circumstances of this case. Such an order will meet the public interest concerns by acknowledging the seriousness of the convictions; however, it will not place unnecessary restrictions on a skilled and committed practitioner.

61. The Panel considered the HCPC Sanctions Policy and the guidance provided in relation to the other available sanctions in ascending order and determined that it did not consider the facts of this case to justify a more serious sanction.

62. The Panel concluded that the appropriate and proportionate sanction in the circumstances of this case was a Caution Order for one year.

Reconstitution as Health Committee Panel

1. Following the conclusion of the Substantive Hearing as the Conduct and Competence Committee, the Panel reconvened as the Health Committee to consider [FTP87125] Particular 2 and Schedule A of the Allegation. The Registrant had notice that the Panel would be reconvened to consider the particulars which relate to the Registrant’s health if there remained an outstanding public interest in resolving the health aspects of the Allegation.

The HCPC’s application to discontinue Particular 2 and Schedule A

2. On behalf of the HCPC, Ms Mosely made an application to discontinue Particular 2 and Schedule A of the Allegation. Ms Mosely submitted that based on the Panel’s findings with regard to the Conduct and Competence matter, the HCPC did not intend to proceed with the health Allegation.

3. Mr Holborn, on behalf of the Registrant, did not oppose the application.

Decision

4. The Panel received advice from the Legal Assessor, which it accepted and applied. It had regard to the HCPTS Practice Notes entitled “Discontinuance of Proceedings” dated August 2023 and “Health Concerns” dated February 2022.

5. It had regard to the submissions of the parties and accepted the submission by Ms Mosely that the imposition of a one-year Caution Order satisfied the wider public interest in upholding proper standards of conduct and maintaining public confidence in the profession and the HCPC as its Regulator.

6. The Panel determined that the public interest had been met and protected by its consideration of the Allegation and its decision as the Conduct and Competence Committee. In all the circumstances, the Panel therefore concluded that it was appropriate to discontinue Particular 2 and Schedule A in respect of health.

That the Registrar is directed to annotate the register entry of Mrs Joanna Mary Dunn with a Caution which is to remain on the Register for a period of one year from the date this Order comes into effect.

No notes available

History of Hearings for Ms Joanna Mary Dunn