Juan C Martinez Zamorano

Preliminary Matters

Service

1. The Panel was satisfied on the basis of the documents before it that the Registrant had been properly served with Notice of this hearing. It had sight of the email sent to the Registrant’s registered email address on 18 March 2025 informing him of the date and time of the remote hearing. The Panel was aware, in view of the legal advice it received, that 28 days’ notice is required and that all that is required of the Regulator is to evidence that notice has been sent to the Registrant’s address as held on the register. The Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021 allow for the service of documents by email. The Panel had sight of the email delivery receipt and the Registrant’s Certificate of Registration, which confirmed his email address. Further, the Registrant had responded on 27 May 2025 to say he had received the documents and would not be attending due to work commitments. As such, the Panel determined that good service had been effected.

2. Mr Schofield made an application to proceed in the Registrant’s absence. He submitted that the Panel could be satisfied that the Registrant was aware of this hearing given the email response and that he had voluntarily absented himself.

3. The Panel was aware that in accordance with rule 11 of the Conduct and Competence Committee Rules it had a discretion to proceed in the Registrant’s absence. In determining whether in all the circumstances it was fair to do so, the Panel took into account the HCPTS Practice Note on Proceeding in Absence. It was aware, in view of the legal advice it received, of the factors which should inform its decision, as set out in R v Jones [2003] UKPC 34. It had regard to the case of General Medical Council v Adeogba [2016] EWCA Civ 162 where the Judge stated: “Where there is good reason not to proceed the case should be adjourned; where there is not however, it is only right that it should proceed”.

4. The Panel had regard to the Registrant’s email of 27 May 2025 in which he stated that he was unable to attend as he was working in the USA at the time of the hearing. He also said that he is currently living and working in Spain but would like to work in the UK again in the future. The Panel noted that no request for an adjournment had been made and considered that even if the matter were to be adjourned the Registrant was likely to prioritise work overseas over his remote attendance. The Panel determined that the Registrant had voluntarily absented himself. Whilst he may be disadvantaged as a consequence, this was a decision he had made in full knowledge of the hearing date. The Panel considered that there was no good reason to postpone the hearing and it was therefore in the public interest to proceed. The application to proceed in the Registrant’s absence was granted.

Background

5. The Registrant, a registered Physiotherapist, was arrested in the early hours of 31 December 2023 as police suspected he was driving over the legal alcohol limit after he turned into a road to which access was not permitted. He was breathalysed when he was stopped by police and again at the police station where his breath alcohol was over the legal limit for driving. The Registrant was charged with an offence accordingly. He informed his employer the same day as he could not attend work, having been in police custody overnight.

6. On 30 January 2024 the Registrant pleaded guilty at St Albans Magistrates Court of the offence with which he was charged: driving with a breath alcohol level of 48 micrograms in 100 millilitres of breath, exceeding the prescribed limit. He was disqualified from driving for 14 months, a period which would be reduced by 14 weeks with satisfactory completion of an approved course, and he was fined £1,000.

7. The Registrant informed the HCPC of his conviction in March 2024, when renewal of his registration was due.

8. The HCPC made enquires with the Registrant’s employer. In response, an email reference from the Head of Physiotherapy was sent to the HCPC. That confirmed that the Registrant had been employed for two years at Tottenham Hotspur Football Club as a physiotherapist and there were no concerns about his fitness to practise. However, the club was not in a position to renew his contract after its expiry on 30 June 2024. In a subsequent email from the Human Resources department, it was stated that the employer had carried out a risk assessment and the outcome was ‘low’ because the Registrant was not required to drive as part of his role.

9. The matter went to an Investigating Committee Panel on 4 September 2024 where it was determined that the Registrant had a case to answer.

Submissions

10. Mr Schofield, on behalf of the HCPC invited the Panel to accept the certified certificate of conviction as conclusive proof of the conviction and the facts it necessarily implied.

11. With regard to impairment, Mr Schofield referred the Panel to the Registrant’s guilty plea and that he had said to his employer that he would accept the consequences of his actions. In discussion with his employer he accepted that the matter was serious. However, the Registrant had provided the HCPC with no apology or evidence of remorse or reflection. Mr Schofield further submitted that the Registrant did not make a timely declaration of the conviction to the HCPC despite being advised to do so by his employer. He submitted that this indicated that the Registrant did not fully appreciate the seriousness of the conviction and was impaired on the personal component. There was, Mr Schofield submitted, also impairment on the public component because the criminal law deemed his behaviour serious and he had been sanctioned by the court. He submitted that the public would require a finding of impairment in the circumstances of the case.

Legal Advice

12. The Panel accepted the Legal Assessor’s advice. It was aware that ‘conviction’ is a ground of impairment in accordance with Article 22 of the Health Professions Order and that rule 10(1)(d) of the Conduct and Competence Committee Rules provides that a certified copy of the certificate of conviction is admissible as proof of the conviction and the facts behind it.

13. As to impairment, this is a matter for the Panel’s independent judgment, based on the nature, circumstances and gravity of the offence. The Legal Assessor advised that the Panel may be assisted by adopting the approach formulated by Dame Janet Smith in the report into the Fifth Shipman Inquiry as set out in Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927, which emphasised the importance of having regard to the public interest when considering current impairment. In Ige v NMC [2011] EWHC 3721 (Admin) a case arising out of a fraud conviction with no suggestion that the registrant’s clinical abilities were impaired, on appeal the Judge confirmed that the panel was not confined to considering risk to members of the public, but entitled in criminal offence cases to determine whether public confidence in the profession would be undermined if a finding of impairment were not made in the circumstances.

Decision on Facts and Grounds

14. The Panel accepted the certified certificate of conviction as evidence that the Registrant had been convicted of the offence of drink driving. The facts at particular 1 of the Allegation were proved by this certificate. It followed that the statutory ground of impairment, ‘conviction or caution’ was established.

Decision on impairment

15. The Panel had regard to the relevant practice note and the ‘test’ set out in Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council and Grant. It began by considering whether the Registrant poses a risk to the public in his role as a Physiotherapist. It took into account the employer’s risk assessment which concluded that the risk was ‘low’ and that the Registrant’s line manager, also a registered Physiotherapist, had no concerns about the Registrant’s fitness to practise. The Panel noted that there had been no concerns raised about the Registrant’s clinical practice and that driving was not a part of his role with his UK employer. Indeed, driving is generally not a requirement of the role of a Physiotherapist, unlike, for example, Paramedics. The Panel concluded that the Registrant does not pose a risk of harm to patients or members of the public he will come into contact with in his professional role and therefore is not currently impaired on the basis of public protection.

16. The Panel then considered the wider public interest and whether a finding of impairment is required to uphold proper professional standards and maintain public confidence in the profession. The Panel’s starting point was that registered professionals are expected to abide by the law and the commission of a criminal offence is conduct that has significant potential to bring the profession into disrepute.

17. The Panel noted that the Registrant was invited by the HCPC to provide written representations for consideration by the Investigating Committee Panel and did not do so. He replied a few minutes after a reminder email was sent on 10 July 2024, saying he didn’t know what response was required, “everything was clear”. The Panel was concerned that the Registrant had not provided the Regulator with any evidence of insight, remorse or reflection. He had not demonstrated any recognition of the impact of the conviction, and his actions behind it, on the public’s view of and trust in Physiotherapists. The Panel determined that the Registrant did not recognise the seriousness of the matter and how convictions arising from conduct outside the work environment nevertheless impact on the reputation both of individual registrants and the profession more broadly. In view of the Registrant’s apparent attitude that the matter was concluded by the fact of the conviction and there was nothing more to say, he had brought the profession into disrepute. The Panel had no assurance that the Registrant would not act in a similar manner in the future, given his lack of insight. It found that he is currently impaired on the personal component.

18. In addition, the Panel considered that members of the public would expect the Regulatory process to mark the seriousness of drink driving convictions. They are inherently serious due to the associated risks, and the Registrant’s lack of judgment in deciding to drive home after a night in a pub fell below the standard of conduct that the public expects from registered professionals. Informed members of the public would expect a finding of impairment to be made in a case where there was an absence of recognition of this on the part of the Registrant, and his behaviour more generally, in delaying informing the Regulator (notwithstanding that he had been advised by his employer to report the matter at the time of the conviction). The Panel determined that the Registrant is currently impaired on the public component because a failure to make such a finding would seriously undermine public confidence in the profession and the regulatory process.

19. In conclusion, the Panel determined that the public interest required a finding of current impairment notwithstanding that there were no concerns relating to the Registrant’s clinical abilities and he does not pose a risk to members of the public in his role as a Physiotherapist.

Decision on Sanction

20. Mr Schofield invited the Panel to first identify any aggravating or mitigating factors. He submitted that there were only aggravating factors; the Registrants lack of insight, remorse or apology, and the lack of remediation meant that there was, as identified by the Panel, a risk of repetition.

21. Mr Schofield submitted that mediation and taking no action were not appropriate in the circumstances. He submitted that the Panel may not consider a caution order appropriate given the Registrant’s lack of insight. Conditions were more appropriate in clinical cases and the Registrant’s lack of engagement brought into question their workability. He submitted that a suspension may sufficiently mark the seriousness, albeit that the Registrant’s lack of insight remained an issue.

Legal Advice

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

• Have regard to the sanctions policy and begin by considering whether there are any particular aggravating or mitigating factors;

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

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

• Impose the minimum sanction necessary to meet the regulator’s overarching objective, bearing in mind that the purpose of sanction is not to punish;

• Ensure that any sanction is proportionate, whilst bearing in mind that the interests of the profession take precedence; Bolton v Law Society (1994) 1 WLR 512, endorsed in the context of health regulation in The Council for the Regulation of Health Care Professionals v General Dental Council (Fleischmann) [2005] EWHC 87 (Admin). In this regard the case of Dad v General Dental Council [2000] 1 WLR 1538 may assist the Panel.

23. The Panel began by considering aggravating and mitigating factors. The mitigating factors were:

• This was, on the evidence, an isolated incident;

• The Registrant had made an early admission and been open with his employer;

24. Aggravating features were:

• Lack of insight, remorse or apology (to the Regulator);

• Lack of evidence of remediation.

25. The Panel then worked through the sanctions policy, starting with a caution order, accepting Mr Schofield’s submission that the nature of this case and the Panel’s findings at the impairment stage meant that taking no action and mediation were both inappropriate outcomes. The Panel bore in mind that the purpose of sanction is not to punish but to address the issues identified at the impairment stage.

26. The Panel had regard to the circumstances in which, according to the sanctions policy, a caution order may be appropriate. Guided by those, the Panel considered that whilst this was an isolated incident, drink driving convictions are not minor in nature. The risk of repetition was unknown because the Registrant had provided no reflection and hence assurance that he understood the seriousness of his actions and the impact of those on the public’s view of and confidence in the profession. The Registrant had not demonstrated good insight; the only evidence before the Panel was an acceptance of wrongdoing and the consequences, in discussion with his former employer. The Registrant had not undertaken remediation. The Panel was unaware of whether the Registrant had completed an approved course of the type that would reduce the period of disqualification from driving. In these circumstances the Panel determined that a caution order was insufficient to meet the public interest.

27. The Panel considered that a conditions of practice order was inappropriate as there were no clinical concerns and workable conditions could not be formulated which would mitigate the risks to public trust and confidence in the profession arising from the Registrant’s conviction and lack of insight and remediation.

28. The Panel then considered a suspension order. It was of the view that the Registrant’s conviction was a serious breach of the expected standard of conduct, but that this was a matter capable of remediation. Indeed, had the Registrant demonstrated insight and remediated, a caution order was likely to have been sufficient to mark the conduct and meet the public interest. However, having found impairment on the personal component, because the Registrant had not demonstrated that he understood the serious nature of the conviction, in terms of how members of the public would view it, and hence the risks such conduct poses to the reputation of the profession and the public’s trust in it, the Panel had no option but to impose a suspension order.

29. In reaching this decision, the Panel determined that the Registrant’s lack of demonstrated insight and remediation was not incompatible with continued registration, which would require a striking off order. The Panel, as stated above, considered that the matter is remediable. The Registrant must however take steps to do so, in order to satisfy a future panel that he is no longer impaired on the personal component.

30. The Panel determined that a suspension order will meet the public interest because it sends a clear message that the conduct behind the conviction will not be tolerated; it falls far short of the expected standards of conduct and risks bringing the profession into disrepute.

31. In determining the length of the suspension order, the Panel considered that it is primarily being imposed because the Registrant has not demonstrated insight and remediated, hence there was no assurance that he understands the serious implications of his conduct, nor was there assurance that he will not act in a manner liable to bring the profession into disrepute in the future. It followed that a short period of suspension would suffice to allow time for the Registrant to demonstrate insight and remediate. He has already been punished for the offence by the court. The Panel considered that there was unlikely to be anything that could be achieved in say six months that could not be achieved in three months. The Panel impose a three-month suspension order as this would meet the public interest (mark the gravity of the conviction and uphold public confidence, as well as sending a clear message to the profession) and allow sufficient time for the Registrant to reflect, demonstrate insight and remediate.

32. The Panel considered that a future reviewing panel may be assisted by:

• A reflective statement setting out the impact of drink driving on public confidence in the profession;

• Evidence of any remediation, such as developing an understanding of the role and importance of professional regulation and upholding standards;

• The Registrant’s attendance at the review hearing.

Order: The Registrar is directed to suspend the Registrant’s registration for a period of three months.

No notes available

History of Hearings for Juan C Martinez Zamorano