Nigel M R Murray

Application to proceed in Private
1. Prior to the hearing, the Registrant’s representative, Ms Meek, had lodged written submissions, which contained an application that part of the hearing be heard in private. The relevant part of those submissions stated:

“Application for In Part Private Hearing
…4. Some of the material within the bundle relates to firstly, R’s health and medical conditions and secondly, to private discussions with his brother.
6. R has also disclosed during the HCPC investigation the reason for requiring the discussions he had with his brother at the relevant time.
7. In light of this, R wishes to make an application for those parts of the hearing, namely any reference to his health, to be heard in private in accordance with the Practice Note on "Conducting Hearings in Private", and for reporting restrictions to be imposed in respect of any information regarding these aspects. This is in order to protect his private life.
8. As per paragraph 13 of the "Conducting Hearings in Private" Practice Note, it is recognised that, in certain cases, Panels may require to consider intimate details of a registrants physical or mental condition. It is further stated that in such cases, a Panel is normally justified in hearing these aspects in private in order to protect the Registrant's privacy.
9. While it is acknowledged this is not a health allegation, and relates to misconduct, I would submit that this is such a case whereby consideration does need to be given to intimate details of R's private life and so it would be proper for the Panel to hear these aspects in private. I understand this is not contentious and that the HCPC do not oppose such an application.”

2. Also prior to the hearing, the HCPC’s representative, Mr Wigg, had likewise lodged a written skeleton argument, which anticipated Ms Meek’s application and which stated:

“4. Some of the material within the bundle relates to R’s health. Accordingly, should either the R (or the Committee (of its own volition)) consider that those parts of the hearing be held in private, the HCPC confirms that it would not contest such application or object to such approach.
5. This would be consistent with the Practice Note on ‘Conducting Hearings in Private’ ”.

3. Both representatives orally confirmed their respective positions regarding the application.

4. The Panel heard and accepted the legal advice and had regard to the HCPTS Practice Note ‘Conducting Hearings in Private’. It bore in mind that, as a starting point, hearings should be conducted in public session. However, having regard to the information before it, the Panel was satisfied that it was in the interests of justice that this matter be heard partly in private when matters relating to the Registrant’s health and private life were to be mentioned.

Background
5. The background to this application is set out in the written skeleton arguments prepared by Mr Wigg on behalf of the HCPC, which were lodged prior to the hearing commencing. As this document comprehensively sets out the relevant issues in this case, the Panel considers that it is appropriate that it be duplicated in full, as follows:

“C. BACKGROUND
6. The R is registered with the HCPC in the Occupational Therapist part of the register [7].
7. On 08 June 2021, on the A6089, Gordon, Scottish Borders, the R was arrested having failed a roadside breath test [67].
8. R was charged with offences contrary to the Road Traffic Act 1988, Section 5 (1)(a) (drink driving) and Section 143(1) and (2) (no insurance) [66].
9. On 09 June 2021, R advised his employer, East Lothian Council, that he was pulled over because his car flagged up on their system for being uninsured [26].
10. On 11 June 2021, in revising this position, R apologised and said that he [had not] told [his employer] the truth previously [26] and that the night before he went on holiday to the Isle of Harris with his brother they had some drinks. [R] told [his employer] he wanted to talk to his brother as he had relationship problems with his wife and he was seeking support from his brother. [R] told [his employer] that he was breathalysed by police on his way to the Isle of Harris and that he was over the limit [26].
11. On 18 June 2021, R referred himself to the HCPC stating [33]:
“I refer to the above HCPC professional standards. I understand that under Section 9 registrants must be honest and trustworthy.
Section 9.5 requires that I inform HCPC if I receive a caution from the Police.
On 07/06/2021 I was returning from holiday in the Scottish Highlands. I was stopped and then charged by police under Section 5 (1) (a) of the Road Traffic Act. I was marginally over the safe drink drive limit and am required to attend court on 21/06/2021.
Following this appearance I shall again make contact with HCPC and advise of the outcome.
I would be most grateful if this information can be brought to the attention of the relevant department within HCPC.
Thank you in advance”
12. On 21 June 2021, at Jedburgh Sheriff’s Court, R pleaded guilty to drink driving and was banned from driving for 12 months (to be reduced to 9 months on successful completion of the drink aware course) [35]. He was also fined £350 [62]. It is unclear how the no insurance charge was disposed of.
13. On 29 June 2021, R’s employer became aware (from an article in a newspaper) [27] that the facts relating to R’s conviction were as follows:
“R went on holiday with his brother and had been drinking on 2 occasions whilst driving. The article also said that [R] took paracetamol or ibuprofen together with Taylor’s Port which is an alcoholic drink”.
14. This account was different from the one provided by R previously because he had informed his employer before that he was drinking the day before his trip.
15. An investigation was commenced by his employer as R was required to have a valid driving licence as part of his employment and also because R breached the disciplinary code of conduct [27].
16. On 30 June 2021 R informed HCPC [33]:
“As can be seen from the email below, I stated that I would provide an update following my court appearance on 21/06/21. I received the minimum driving ban of 12 months which shall be further reduced to 8 months with the successful completion of a Driving Awareness Course that I have been given the option to complete”.
17. On 05 August 2021, R was interviewed as part of his employer’s investigation [51] and a report completed on 11 August 2021 [48].
18. A disciplinary hearing took place on 06 October 2021. During the disciplinary hearing the R explained that it was a moment of stupidity and that he did not realise the repercussions of his lies and what they would mean for his career [28]
19. On 22 February 2022, R sent a detailed letter to the HCPC setting out reflections and apologising for his conduct [69]. He accepted that his initial statement to his employer was wrong and misleading. He states [71]:
“On the 9th of June I realised that I had to be honest about being charged with drink driving, which I did, but did not again give a clear account of events. I again was not honest about events as I stated it happened on a different day and that being over the limit was attributable only to the effects of drinking the night before, which was not the case. My being over the limit was attributed also to having been drinking during the day as well, as I travelled home from my holiday. I did not at the time honestly account for this. Having reflected on the situation I would like to add that I believe part of the reason for not accurately and honestly accounting for events as they happened, was in part related to the stigma that is attached to drink driving. I believed at the time that being charged with drink driving would be more acceptable to those around me if it was only associated with the effects of “the morning after the night before” which for some reason I thought would be more acceptable to those I was accountable to”.
20. R provided an update on 19 October 2023 detailing health issues [80] together with supporting documentation.
21. On 15 March 2022 a Panel of the Investigating Committee determined that there was a case to answer [8].
22. On 17 October 2023, a preliminary hearing was held. The HCPC was permitted to amend the charges and the matter was adjourned [12].
23. On 19 January 2024, R wrote to HCPC. He confirmed that he accepts the facts as set out within the allegations against me and do not intend to dispute those in any way [100]. And he further stated that:
“I note the case is scheduled to proceed to a fitness to practise hearing later this year. While I fully appreciate the importance of the HCPC having sufficient time to investigate matters, this matter has been ongoing for almost 3 years and it is significantly impacting upon my health and wellbeing.
With that in mind, and given that I accept the factual allegations against me, I am writing to ask if it is possible to discuss the case in advance of the fitness to practise hearing, and whether the HCPC would be prepared to consider early resolution of this case. I would be prepared to consider any outcome suggested by the HCPC, and would welcome the opportunity to discuss this further with the HCPC.
I look forward to hearing from you. Please note that I have recently instructed a solicitor to assist me with this matter, and if it would assist for you to discuss matters with my solicitor directly, I would be very happy to facilitate that”.
24. Also on 19 January 2024, R wrote to HCPC setting out: the factors that contributed to the allegations [101]; details as to his personal awareness [102] and how he sought to address these issues [103].
25. On 05 June 2024, Blake Morgan (on behalf of HCPC) wrote to R’s representatives confirming that if R admits the allegations the HCPC would be willing to apply to conclude this case by way of consensual disposal. The agreed upon sanction would be a 12 month caution order [112].
26. On 13 June 2024, R’s representative confirms R is willing for the matter to proceed with this case by way of consensual disposal [113]. A completed and signed form reflecting this is provided and dated 22 November 2024 [114].
27. On 16 December 2024, notice of this hearing is sent to R [3].
D. RELEVANT LAW
Consent Orders
28. The relevant factors and procedure for a Committee to consider when considering whether to approve a consent order are set out in the HCPC’s Practice Note [117] and the annexed policy [119].
29. In summary, the main points to consider (as per the Practice Note) are that, bearing in mind the overarching duty to protect the public, a Panel should not agree to a case being resolved by consent unless it is satisfied that [117]:
“a. the appropriate level of public protection is being secured; and
b. doing so would not be detrimental to the wider public interest”.
30. In considering these factors, a Panel should satisfy itself that the HCPC [118]:
“a. has provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and
b. has made clear to the registrant concerned that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved”.
Impairment
31. Relevant to disposal by consent, and as per the HCPC’s Practice Note [117] is the issue of impairment, and specifically the ‘public components’ of impairment.
32. In Cohen v GMC [2008] EWHC 581 (Admin) §17 Silber J confirmed that Stage 2 (i.e. the impairment stage):
“…is concerned with the issue of whether in the light of any misconduct proved, the fitness of the doctor to practice has been impaired taking account of the critically important public policy issues”.
[Emphasis added]
33. This means that in assessing impairment, it is necessary to take in to account public policy issues. And this requirement is reflected in the HCPC’s Practice Note. This requires the HCPC to address the appropriateness of concluding the allegations without a full hearing, having regard to the extent to which they engage the ‘public components’ of impairment identified in Cohen v GMC [2008] EWHC 581 (Admin).
34. The Practice Note further cross refers to the HCPC guidance on ‘finding that fitness to practise is ‘impaired’’. The salient section of that guidance is as follows:
“Public Component
27. Next, Panels must consider the three elements of the public component. The first element of the public component - the need to protect service users - overlaps with the personal component. A registrant who has insight and is unlikely to repeat past acts or omissions may not present an ongoing/ future risk to service users.
28. The other two elements of the public component are maintaining professional standards and public confidence in the profession concerned. The professional standards expected of registrants are what the public and the HCPC expects of them. Panels should consider the need for the public to have confidence in the registrants who treat them . The public is entitled to expect registrants to be professionally competent and act with decency, honesty and integrity. The public should also be able to rely on the regulatory process to be robust, fair and transparent.
29. The key question to be answered here is, given the nature of the allegation and the facts found proved, would public confidence in the profession be undermined if there were to be no finding of impairment?”
E. SUBMISSIONS
Basis of disposal by consent
35. Firstly, R, having self-referred to the HCPC, has admitted all of the allegations in their entirety, including impairment.
36. Secondly, there is no dispute of fact or matter at issue for the Committee to determine.
37. Thirdly, the sanction proposed (12 month caution order) is consistent with the expected outcome if the case was to proceed to a contested hearing. This is because, as per HCPC’s sanction policy:
“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”.
38. There is no suggestion that R’s impairment relates to his clinical practice. A conditions of practice order therefore would likely be unsuitable, as no meaningful conditions could be imposed. Whilst given that the impairment stems from an isolated uncharacteristic incident, where there is likely to be a low risk of repetition, and R has shown good insight, it is respectfully suggested that a suspension order may be disproportionate here.
Appropriateness of disposal by consent.
39. For these reasons the HCPC respectfully submits that this matter is apt for disposal by consent.
40. Conversely, there is nothing to be gained by the matter continuing to a full hearing.
F. CONCLUSION
41. For the reasons above, the HCPC invites the Committee to endorse the attached draft consent order.”

7. The Panel also notes the written skeleton arguments prepared by Ms Meek on behalf of the Registrant, which state:

“C. BACKGROUND AND FACTS
10. R is grateful to Mr Wigg for outlining the factual background in paragraphs 6-27 and does not take any issue with the factual narrative as outlined.
11. There are though certain factors I would like to highlight for the Panel's attention as follows (which are of relevance when considering a caution order, in line with the HCPC's Sanctions Policy):
a. R self-referred to the HCPC on recognition of his own behaviours and in light of the pending prosecution (page 33). R kept the HCPC updated on the progress of the proceedings following him tendering a guilty plea.
b. Separately to the HCPC process, R has engaged fully in his employer's own disciplinary process and showed insight and recognition of the issues at an early stage. Within the disciplinary outcome letter, there is reference to R taking "full responsibility" for his actions, conveying his "deep regret" at how he had handled the situation and showing a determination to try and "rebuild confidence" in him if he were permitted to stay in employment.
c. Throughout the HCPC investigation process, R has engaged with the HCPC, providing detailed correspondence on 22 February 2022, 9 October 2023 and most recently on 19 January 2024. In his most recent correspondence from January 2024:
i. R confirmed that he did not intend to dispute the allegations and welcomed the opportunity to discuss resolution of the matter without proceeding to a full fitness to practise hearing;
ii. R confirmed that he accepted the facts as set out and did not intend to dispute those;
iii. R recognises the issues he was experiencing at the time of the incident and during conversations with management and how this contributed to his behaviours at the time;
iv. R recognises the seriousness of the allegations he faces and demonstrates insight into the key issues, particularly with regard to dishonesty and the far-reaching consequences of that (both in terms of securing trust of those he works with but also in terms of the wider public perception);
v. Importantly, in terms of remediation, R outlined some of the steps he has taken over the last few years in order to seek to remediate the behaviour and to manage his own health and wellbeing and to assure the HCPC and the Panel that this won't happen again.
d. R continues to be in employment with East Lothian Council, who are supportive of him.
e. Indeed, R has been promoted since this incident and continues to be an integral part of the team.
f. A positive reference has been provided by R's manager Morven McLelland, Team Manager (page 107) who comments that R is an incredibly valued member of staff (page 107). Ms McLelland further outlines that R is able to recognise signs of stress and has coping strategies in place, that he has excellent work ethics, and works well under pressure. Ms McLelland also states that it would be a real loss to the service if R were no longer able to work with them.
D. RELEVANT LAW
Consent Orders and Finding of Impairment
12. I am grateful to Mr Wigg for outlining in the skeleton argument the relevant factors and procedure for the Committee to consider when considering whether to approve a consent order, as set out in the HCPC’s Practice Note. R is in agreement with the position as advanced by Mr Wigg in that respect.
13. As outlined, R does not dispute any finding of current impairment.
E. SUBMISSIONS
Basis of disposal by consent
14. As outlined by Mr Wigg, R, having self-referred to the HCPC, has admitted all of the allegations in their entirety, including impairment and there is no fact or matter at issue for the Committee to determine.
15. R agrees that the sanction proposed (12 month caution order) is consistent with the expected outcome if the case was to proceed to a contested hearing.
16. Mr Wigg has already highlighted to the Committee relevant considerations within the HCPC Sanctions Policy. On this point, the Sanctions Policy also states that a caution order may be deemed appropriate where:
a. the issue is isolated;
b. there is a low risk of repetition;
c. the registrant has shown good insight; and
d. the registrant has undertaken appropriate remediation
17. As outlined by Mr Wigg, there is no suggestion that R’s impairment relates to his clinical practice.
18. R agrees that, given the factual circumstances here, a conditions of practice order may not be suitable, and that a suspension of practice order would be disproportionate.
F. CONCLUSION
19. For the reasons above, R invites the Committee to endorse the attached draft consent order.”

Oral Submissions
8. Mr Wigg adopted his written skeleton arguments and emphasised a number of points, particularly about the suggested sanction of a Caution Order for 12 months. Mr Wigg maintained that such a sanction adequately allayed any public interest concerns particularly when bearing in mind that the Registrant self-referred and admitted all the allegations, so that there were no outstanding factual issues to be determined. A Caution Order was consistent with the expected outcome. There was no suggestion that the Registrant's clinical practice was lacking and therefore a Conditions of Practice Order was unsuitable. This was an isolated and uncharacteristic incident with a low risk of repetition and therefore a Suspension Order would be disproportionate. Consequently, nothing was to be gained by proceeding to a full substantive hearing, which would only cause further delay and potentially add to the Registrant’s health concerns.

9. Ms Meek adopted her written submissions and also emphasised a number of matters, particularly in relation to the Registrant’s health issues and insight. She highlighted how the Registrant had continued to cooperate with the HCPC, and had voluntarily brought a different issue about his health to the HCPC as he was concerned that this might affect his ability to practise, which the HCPC agreed demonstrated insight. Accordingly, the Registrant was fully aware of his obligations to cooperate with his regulator.

10. In addition, the Registrant had cooperated with his employer during its disciplinary process during which he showed insight, took responsibility and demonstrated his remorse. It was clear that his efforts at remediation were an attempt to rebuild his employer’s, and the public’s, confidence in him and therefore had demonstrated clear insight and recognition particularly regarding his dishonesty. He had also demonstrated that he understood the issues about dishonesty affecting public perception of the profession and of himself. He had outlined steps to manage his health and well-being as he had developed coping strategies. In addition, he had taken significant steps to remediate his behaviour so that he did not catastrophise any issues which he had had a tendency to do in the past.

11. Ms Meek went on to say that, although the Registrant had been issued with a warning by his employer, he had also been promoted and was a valued member of the team. On this last point, Ms Meek referred to the reference from his line manager, Morven McClelland, dated 2 April 2024 which stated:
“Nigel is an incredibly valued member of staff here in our Occupational Therapy Service. Despite the challenges he has faced over the last 2 years he has continued to work hard, maintain his health and fitness. He also is very well able to recognise any signs of stress and has coping strategies in place to deal with these.
Nigel has excellent work ethics, he meets all his targets and works really well under quite considerable pressure. I have no concerns about his work and am delighted he is still able to work with us here in East Lothian. He is a real asset to the team and would be a real loss to the service should he be no longer able to work with us.”

12. Finally, Ms Meek asked the Panel to find that the suggested outcome of a Caution Order for 12 months was in line with the Sanctions Policy. This stated that a Caution Order was appropriate if a case involved an isolated incident, there was low risk of repetition, and the Registrant had insight. She submitted that the Registrant satisfied all of these criteria and reminded the Panel that this incident had taken place over three years ago, which had enabled him to develop significant insight.

Decision

13. In reaching its decision, the Panel accepted the advice of the Legal Assessor who commended to it the HCPTS Practice Note entitled “Disposal of Cases by Consent”. The Panel was aware that, before considering a draft Consent Order, a Panel should satisfy itself that the HCPC:
• has provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and
• has made clear to the registrant concerned that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

14. If the Panel is so satisfied, it must then be satisfied that the Registrant’s admissions, including the proposition that his fitness to practise is impaired by reason of the matters alleged, are in order. Finally, the Panel has to be satisfied that a Caution Order for a period of 12 months would provide a proper degree of public protection; and that there are no other public interest considerations that would require the hearing to proceed to a final or substantive hearing.

15. Besides considering the Practice Note on consensual disposal referred to above, the Panel also took account of the Practice Notes entitled “Conviction and Caution Allegations”, “Fitness to Practise Impairment” together with the Sanctions Policy.

16. The Panel first considered whether the HCPC has (i) provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and (ii) has made clear to the Registrant that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved. The Panel unhesitatingly finds that the HCPC has discharged its obligations in this regard. The skeleton argument (which is set out above) is very detailed and is cross referenced with a bundle of documents which totals 121 pages. Furthermore, the Registrant, through his representatives, has fully participated in the process and it is clearly apparent that he has been advised that the application will not automatically be approved.

17. On the question of admissions, the Panel was satisfied that the Registrant’s admissions to the factual allegations were appropriate and in line with the evidence provided. It was clear that he had been convicted for failing a roadside breath test and the documentary evidence showed that the Registrant had lied on two occasions to his employers and therefore had been dishonest. The Panel also noted that the Registrant had made these admissions with the benefit of independent legal advice.

18. The Panel was also satisfied that the two statutory grounds of conviction and misconduct were also made out. Drink driving is always a serious matter and dishonesty in a professional person is behaviour which falls far short of the standards expected of an Occupational Therapist.

19. In considering Impairment, the Panel was satisfied that the Registrant had done everything he could to remediate his behaviour. Furthermore, it was apparent that he had developed significant insight into why he had committed the offence of drink driving and why he had initially been dishonest about it. On this point, the Panel noted a passage from his reflection dated 22 February 2022 which it found to be particularly insightful, namely:
“I would also like to state that I have now also had the opportunity to discuss the situation with other senior practitioners within the team who know me well, and their take on the situation was I think summarised well by one manager who stated “Nigel you were not thinking”. I like to think that this captures the nature of the situation well. That is, I was not deliberately lying as such or trying to maliciously deceive, but rather was completely struggling , at that very unusual time, to cope emotionally and intellectually with the shear [sic] pressure, strain and stress that I was experiencing.”

20. Furthermore, the Panel noted that, during the course of the HCPC's investigation, the Registrant had presented three detailed and lengthy reflections and had clearly now developed coping strategies in respect of his health condition. The Panel had little hesitation is concluding that the risk of repetition was very low. Accordingly, the Panel was satisfied that the Registrant was no longer impaired in relation to the personal component.

21. However, the Panel was satisfied that a finding of impairment should be made in any event in relation to the public interest component. The Panel considered that that the Registrant’s conviction and subsequent dishonesty were sufficiently serious that the need to declare and uphold professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. Occupational Therapists have a responsibility to set an example and committing such an offence and acting dishonestly require a marker to be set down to remind the Registrant and other members of the profession that such behaviour is unacceptable. A right-minded member of the public, with full knowledge of all of the circumstances, would be concerned if a finding of current impairment were not made.

22. Having found impairment on public interest grounds, the Panel then moved on to consider whether a Caution Order for 12 months was the appropriate and proportionate sanction in this case. The Panel took full account of the submissions of the parties outlined above and noted their agreement to this course of action. The Panel also noted that this was a single and uncharacteristic isolated matter in the course of a long and unblemished career. The Panel further noted that the Registrant had significant insight into why he committed the offence and why he lied about it initially so that it was apparent that he had now remediated his behaviour in this regard. The risk of repetition therefore was very low. Finally, the Panel agreed with the submissions of both parties that, as there were no clinical concerns about the Registrant’s practice, a Conditions of Practice Order would not be appropriate. Furthermore, a Suspension Order, even for a very limited period of time, would be disproportionate in the circumstances where the Registrant had achieved such insight into his actions and had remediated his behaviour. Finally, given the very positive references from his employer, the Panel considers that the public interest would not be served by the imposition of a Suspension Order.

23. The Panel therefore went on to consider the final two matters about which it must be satisfied, namely that a Caution Order would provide a proper degree of public protection and that there are no other public interest considerations that would require the hearing to proceed to a substantive hearing.

24. The Panel is satisfied, for the reasons set out above, that a Caution Order provides a proper degree of public protection, particularly because of the Registrant’s insight and the very low risk of repetition. Indeed, the Panel considers that a right-minded member of the public, with full knowledge of all the circumstances, would not be concerned that a Caution Order had been made in this case.

25. The Panel was also satisfied that there are no wider public interest considerations that require the Panel to decline to agree to the consensual disposal. A finding of impairment has been made on public interest grounds, the case has been fully considered, this hearing has been conducted largely in public, and the published determination is a public document.

26. For these reasons, the Panel accedes to the application to make a 12-month Caution Order by consent.

ORDER: That the Registrar is directed to annotate the Register entry of Mr Nigel Murray with a caution which is to remain on the Register for a period of 12 months from the date this Order comes into effect.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

History of Hearings for Nigel M R Murray