Fiona E Morrison
Allegation: (As amended at the Hearing on 15 March 2017)
Whilst Registered with the Health and Care Professions Council (HCPC) as an Operating Department Practitioner:
1. On 7 April 2014, at Glasgow Sheriff Court, you were convicted of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath was 109 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath; Contrary to the Road Traffic Act 1988, Section 5 (1)(a).
2. During your employment by NHS Greater Glasgow & Clyde, you attended work smelling of alcohol and /or under the influence of alcohol on:
a) 23 December 2014; and/or
b) 24 August 2015.
3. Your actions described in paragraph 2 amount to misconduct.
4. By reason of your conviction described in paragraph 1 and/or your misconduct described in paragraphs 2 - 3, your fitness to practise is impaired.
Service of Notice of Hearing
1. The Panel was informed by the Hearings Officer that notice of this hearing was sent to the Registrant’s registered address by letter dated 23 November 2016. An email containing the Notice of Hearing was also sent to the Registrant’s email address on 23 November 2016.
2. The Panel was satisfied that the service of the letter of 23 November 2016 had satisfied compliance with the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).
Proceeding in absence
3. Mr Kewley for the HCPC applied for the hearing to proceed in the Registrant’s absence. Mr Kewley submitted that it was in the public interest to proceed and that he had four witnesses present today. The alleged events are now over two years ago and memories fade.
4. The Panel received and accepted the advice of the Legal Assessor who advised that the Panel’s discretion to proceed in the Registrant’s absence should only be exercised with the utmost care and caution.
5. The Panel noted the history of this case and the lack of any request for an adjournment by the Registrant. It noted that the Registrant had stated in her Pre Hearing Information form, that she did not plan to attend the hearing or to have a representative attend on her behalf. Having given careful consideration to the Registrant’s interests, and the factors cited above, including public protection, the expeditious disposal of the case, the attendance of the four witnesses today and the possible deterioration in their recollection of events which occurred over two years ago, the Panel decided that the Registrant had voluntarily absented herself from today’s hearing, and it was in the interests of justice to proceed with the hearing in the absence of the Registrant.
Decision on application to amend Particulars
6. Mr Kewley applied to amend particulars 1 and 2 of the allegation. He applied to amend particular 1 of the allegation by (i) deleting the words “24 November” and substituting with “7 April” and (ii) amending the word “micrograms” to “microgrammes”. He applied to amend the stem of particular 2 by adding the words “smelling of alcohol and/or” immediately after the words “you attended work”.
7. Mr Kewley submitted that the amendments were necessary to clarify the case against the Registrant. The proposed amendments had been notified to the Registrant on 20 December 2016 and no observations in respect of the proposed amendments have been received from the Registrant. However, the Panel noted that by an email dated 19 September 2014, the Registrant notified the HCPC that her conviction in relation to particular 1 took place on 7 April 2014.
8. The Panel received and accepted the advice of the Legal Assessor that an amendment to the allegation could be made, provided no injustice was caused. The Panel noted that the Registrant had been made aware of the proposed amendments and had made no observations.
9. The Panel considered that the proposed amendments did not alter the nature of the case against the Registrant but merely clarified the allegation and corrected some typographical errors.
10. Accordingly the Panel was satisfied that the amendments would not cause any prejudice to the Registrant and determined they should be allowed.
Proceeding in Private
11. Mr Kewley made an application under Rule 10(1)(a) of HCPC (Conduct & Competence) (Procedure) Rules 2003 for the hearing to proceed in private where any personal or private matters relating to the Registrant may be heard in evidence .
12. The Panel received advice from the Legal Assessor. The Panel considered the submission made by Mr Kewley and determined in the exercise of its discretion that the hearing would proceed in public except where the evidence related to health matters which would be heard in private.
13. At the material time the Registrant was an Operating Department Practitioner (ODP) at NHS Greater Glasgow & Clyde.
14. On 7 April 2014, at Glasgow Sheriff Court, the Registrant was convicted of driving a motor vehicle after consuming alcohol which caused the proportion of it in her breath to measure 109 microgrammes of alcohol in 100 millilitres of breath. The prescribed limit, as specified in the Road Traffic Act 1988 at that time, was 35 microgrammes in 100 millilitres of breath.
15. On 20 December 2014, Witness 2, Theatre Staff Nurse, was working with the Registrant completing their usual duties. Witness 2 gave evidence and made the following observations: she noticed that the Registrant was “acting erratically”, walking in and out of the theatre and in and out of cupboards “as if she was hyperactive”. Witness 2 also noticed that the Registrant seemed unable to carry out some of her standard and regular tasks.
16. Witness 2 reports that she could smell alcohol on the Registrant’s breath and that when she spoke, she slurred her speech and was incoherent.
17. Witness 1, Lead Nurse, NHS Greater Glasgow and Clyde, was informed that staff suspected that the Registrant was under the influence of alcohol. Witness 1 attended the theatre where the Registrant was located and held a meeting with her in Witness 3, Theatre Co-ordinator’s office, with Witness 3 also present. Witness 1 recalls smelling a “distinct odour of alcohol” when the Registrant spoke. The Registrant admitted that she had been drinking alcohol. Witness 1 cannot recall if the Registrant specified when she had been drinking.
18. On 24 August 2015, Witness 4, Senior Charge Nurse, NHS Greater Glasgow and Clyde was holding a staff meeting in her office. Witness 1 was in attendance. From the office, both individuals noticed the Registrant enter the department. Witness 4 noted she was staggering and “hit the walls” a couple of times. Witness 1 followed the Registrant into the changing rooms. Witness 4 and Witness 3 Theatre Coordinator followed shortly after the staff meeting ended.
19. In the changing rooms, the Registrant appeared upset, was crying and was apologetic. Witness 4 could not smell alcohol, but was under the impression, due to the Registrant’s presentation, that she was under the influence of something. Both Witness 3 and Witness 1 could smell the odour of alcohol. The Registrant denied being under the influence of alcohol.
20. Witness 1 tried to call Occupational Health for an emergency appointment, but they were unavailable. Witness 4 returned to theatres. Witness 1 and Witness 3 took the Registrant to Accident and Emergency, where they stayed for a few hours before the Registrant was released home.
Decision on Facts
21. The Panel is mindful that the burden of proving the allegations rests throughout on the HCPC and the standard of proof is the civil standard based upon the balance of probabilities. There is no burden on the Registrant to prove anything and the Panel has drawn no adverse inference from the Registrant not attending this hearing. Individual particulars of the allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities. The Panel has given the words and phrases contained within the allegation their ordinary English meaning.
22. The Panel heard submissions on behalf of the HCPC from Mr Kewley. He also noted points in the Registrant’s favour, given that the Registrant was not there to make them. It has accepted the advice of the Legal Assessor.
23. The Panel had the benefit of oral evidence from four witnesses.
• JC - Lead Nurse (Witness 1)
• CD - Theatre Staff Nurse (Witness 2)
• SL - Theatre Coordinator (Witness 3)
• IM - Senior Charge Nurse (Witness 4)
24. The Panel found all of the witnesses to be open, honest and credible in their evidence. The witnesses had been genuinely concerned at the Registrant’s condition and had been conscientious in acting on their concerns. The Panel found the witnesses’ accounts to be fair and balanced.
25. The Panel also had the benefit of seeing the extract certificate of conviction in relation to particular 1. In relation to particular 2(a) and 2(b) the Panel had the benefit of hearing from Witness 1, 2, 3 & 4 in person as well as documentary material exhibited by these witnesses in the HCPC bundle together with the Registrant’s emails and her signed Pre Hearing Information Form. Although the Registrant was not in attendance, the Panel noted that there was documentary evidence in the bundle giving her account of events. In particular, there was an email from the Registrant in respect of particular 1 and investigatory interviews in respect of both particulars 2(a) and 2(b).
26. In accordance with Rule 10(1)d of the Health and Care Professions Council (Conduct and Competence Committee)(Procedure)Rules 2003 the Panel relied on the evidence of the extract conviction as proof of the conviction in particular 1 and found it proved .
27. The Panel accepted the evidence of Witnesses 1, 2 and 3 who smelled alcohol from the Registrant’s breath. Witness 2’s attention had been drawn by the Registrant’s inability to participate in the process of checking controlled drugs. Such was the Registrant’s behaviour that Witness 2 was concerned that patient safety was at risk, particularly as the Registrant was planning to work with controlled drugs when she was clearly unfit to do so. The witnesses were consistent in their evidence that the Registrant smelled of alcohol. She was walking in and out of the room inappropriately, having difficulty pronouncing words, and appeared haggard and dishevelled in appearance. She was also very upset.
28. The Registrant’s explanation of her condition was that she had had a glass of wine the previous evening. This was not accepted as a defence to the allegation nor was it accepted as a credible explanation of her condition. The Registrant had attended for work despite her condition and this in itself suggested she had no insight into her condition.
29. The Panel accepted the evidence of Witnesses 1 and 3 who smelled alcohol from the Registrant’s breath and were with the Registrant for a longer period than Witness 4. Witness 4 had not detected the smell of alcohol from the Registrant’s breath but her attention had been drawn by the Registrant’s unusual behaviour as she had been “banging off the walls” and appeared to be under the influence of something. Accepting this difference in the evidence the witnesses were all consistent in their evidence that the Registrant was slurring her words, appeared unable to balance, dishevelled in appearance, very upset, crying, distressed and staggering. Accordingly the inconsistency was not considered materially significant by the Panel and did not detract from the credibility of the witness accounts.
30. The Registrant’s explanation of her condition was that she had had a glass of wine the previous evening. This was not accepted as a credible explanation for her condition the following morning on 24 August 2015 nor was it accepted as a defence to the same. The Registrant attended for work despite her condition and this in itself suggested she had no insight.
Decision on Grounds
31. The Panel heard submissions on behalf of the HCPC from Mr Kewley. He also noted points in the Registrant’s favour, given that the Registrant was not there to make them. It has accepted the advice of the Legal Assessor.
32. The Panel noted that all three incidents were consistent with alcohol misuse.
33. The Panel reminded itself that misconduct is a matter for its judgment. The Panel considered all the facts and circumstances giving rise to the facts found proved. No adverse inference was drawn from the absence of the Registrant from the hearing and account was taken of the information available that the Registrant was under pressure due to some serious personal issues she was continuing to suffer from around the time. On the other hand, the Registrant’s actions were deliberate and the behaviour continued over a protracted period of time. The incidents of misconduct occurred in the course of the Registrant’s employment. These incidents were within a relatively short period of time during which the Registrant had not been at work except for a few weeks.
34. The Panel considered the Registrant’s conduct in relation to Particular 2(a). The Registrant attended for work when she was under the influence of alcohol and unfit to do so. She was proceeding to check drugs and demonstrated that she could not do this safely hence putting patients at risk.
35. The Panel found this was a deliberate act by the Registrant. The Panel decided that this action was sufficiently serious to amount to misconduct.
36. The Panel next considered the Registrant’s conduct in relation to Particular 2(b). The Registrant attended for work when she was under the influence of alcohol and unfit to do so. She changed into her uniform and was proceeding to commence work hence putting patients at risk. The Registrant was already aware that she had attended work on an earlier occasion under the influence of alcohol and had attended a disciplinary investigation in respect of this. The Registrant had also been offered assistance with her alcohol problem. Despite this the Registrant attended her employment.
37. The Panel found this was a deliberate act by the Registrant. The Panel decided that this action was sufficiently serious to amount to misconduct.
38. The Panel considered the behaviour in each of the particulars 2(a) and 2(b) to be deplorable conduct by the standards of Operating Department Practitioners. The Registrant was putting patients’ lives at risk by attending work under the influence of alcohol. It was particularly serious given that on the 23 December 2014 occasion the Registrant attended work to deal with a local anaesthetic list. This would have resulted in the Registrant caring for conscious patients and looking after their wellbeing.
39. The Panel identified a breach of: the following provisions of the HCPC Standards of conduct, performance and ethics (2012 version)
• 3 You must keep high standards of personal conduct
• 12 You must limit your work or stop practising if your performance or judgement is affected by your health
• 13 You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
40. The Panel identified a breach of the following provision of the Standards of proficiency: for Operating Department Practitioners (May 2014):
• 3 Be able to maintain fitness to practise
• 3.1 understand the need to maintain high standards of personal and professional conduct
• 3.2 understand the importance of maintaining their own health
41. The Panel was satisfied the proven facts do amount to the statutory ground of misconduct.
Decision on Impairment
42. The Panel decided that the Registrant’s fitness to practice is currently impaired.
43. The Panel has heard submissions from Mr Kewley, on behalf of the HCPC. He submitted that the Registrant had maintained her behaviour over a period of time. He submitted there was evidence the Registrant may now be developing some very limited insight. However there was no evidence of a recognition of the seriousness of what had occurred and what might have occurred.
44. Mr Kewley submitted that a finding of impairment was necessary to maintain confidence in the profession, to protect the public and was in the wider public interest.
45. In reaching its decision on current impairment, the Panel has considered both the personal component and the public component and has accepted the advice of the Legal Assessor. The Panel has also had regard to the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.
46. The Panel reminded itself that a finding of impairment was a matter for its judgment and that it must consider whether the Registrant’s fitness to practise is currently impaired.
47. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.
48. The Panel considered both the mitigating and the aggravating circumstances surrounding this case at the time of the misconduct.
49. The Panel was aware that the Registrant had been experiencing some serious personal issues prior to and during the time of these incidents. The Panel had limited information as to the impact that these personal issues may have had upon the Registrant. It noted from the Pre Hearing Information sent by the Registrant on 16 November 2016 that she was now developing some insight into her addictive behaviour. She stated she was now receiving treatment and attending a recovery programme. There was no documentary evidence in respect of this nor the Registrant’s current drinking habits. There was limited information about her motivation to abstain from addictive habits.
50. In terms of the personal component, the Panel has found serious failings in the Registrant’s conduct which left very vulnerable service users and Registrant colleagues at risk of harm. The Panel was concerned that it had no current information from the Registrant demonstrating any training or development activity undertaken by her, any reflection on the incidents or any development of insight. The Registrant demonstrated no insight into the risks associated with the behaviour which resulted in her conviction, nor was there any full explanation of the circumstances which led to the conviction. The Panel noted the discrepancy between the Registrant’s account of her sentence for the conviction of 7 April 2014 and the summary on the extract of conviction. The Registrant stated a driving ban of 18 months however the extract of conviction stated 22 months.
51. In respect of particular 2 and the misconduct found by the Panel in relation to this particular, the Panel found no evidence of the Registrant’s recognition of her own culpability and the potential consequences of her behaviour on the Service Users, her colleagues and the profession. While accepting that in some circumstances such failings may be remediable, in the Registrant’s case, the Panel did not find evidence that she has taken sufficient steps to address those failings. Taking these matters into account, the Panel has concluded that there is a real risk of repetition.
52. Having considered the seriousness of the incident, the risk to the public and the reputation of the profession, the need to declare and uphold public standards and the wider public interest, the Panel found the Registrant’s fitness to practice to be currently impaired.
Decision on sanction
53. The Panel heard submissions from Mr Kewley, who submitted that a sanction was necessary for public protection and in the public interest. He reminded the Panel of the mitigating and aggravating factors which the Panel had already identified in its finding on impairment. These factors were also relevant to sanction. The Panel accepted the advice of the Legal Assessor and took account of the Indicative Sanctions Policy. It was conscious of the need to apply the principle of proportionality in balancing the Registrant’s rights against the need to protect the public and the wider public interest.
54. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.
55. The Panel considered the available sanctions in ascending order starting with the least restrictive sanction. The Panel has found that the Registrant’s fitness to practise is currently impaired due to her misconduct and that she has failed to demonstrate sufficient insight or to remediate her fundamental failings. Taking no action or imposing a caution would therefore be inadequate, given the seriousness of the misconduct and the real risk of repetition.
56. There are no workable conditions of practice that might be imposed, as there are no conditions which would sufficiently address the Registrant’s misconduct, the need to protect the public and the wider public interest. Workable conditions could not be drafted to address the risks caused by the Registrant attending for work whilst under the influence of alcohol. The Panel has in any case received no information from the Registrant as to any current employment, nor whether she is currently practising as an ODP, or the degree of rehabilitation she has achieved in respect of her addictive behavior.
57. The Panel considered whether suspension might be the least restrictive means of adequately protecting the public from any repetition of the Registrant’s irresponsible actions and her other misconduct found in this case. The Panel considered, in the context of sanction, whether the Registrant’s conduct was capable of remediation and decided that it was.
58. In assessing the Registrant’s risk of repetition of her previous misconduct, the Panel noted that the Registrant has begun to develop some limited insight into her addictive behaviour as is demonstrated by her completion of an alcohol awareness course, ongoing attendance at her General Practitioners, weekly ‘one to one coaching’ as well as twice weekly ‘Self Motivated and Recovery Training’.
59. The Panel then went on to consider a Suspension Order. It is satisfied that a period of suspension would protect the public to the extent that the Registrant would be temporarily removed from the Register. The Panel is satisfied that a Suspension Order would be the proportionate and appropriate sanction in this case. It has decided on a period of 12 months as this would protect service users and would otherwise be in the public interest, maintain confidence in the profession and trust in the regulatory process. A Suspension Order would provide an opportunity for the Registrant to demonstrate to a reviewing Panel whether she has developed an understanding and insight into her actions. It may also have a deterrent effect upon the Registrant and the profession at large. It would also allow the Registrant time to reflect on the findings of this Panel.
60. At any Review it would assist the Panel reviewing this suspension before the end of the twelve month period to see evidence that the Registrant is engaging with the process.
61. Any reviewing Panel would be assisted by the following:
1) The Registrant’s attendance at any Review Hearing. This would allow her to give evidence in person if she so chooses.
2) Reports or reviews from specialists treating the Registrant for alcohol awareness or alcohol misuse, or from any courses or rehabilitative programmes she is, or has been attending.
3) Medical evidence regarding the Registrant’s use of alcohol currently and since the events of the allegation.
4) Information about any work she has undertaken, paid or voluntary, since the events forming the subject of these proceedings.
5) Evidence as to how the Registrant now perceives her actions and their impact, for example a reflective statement demonstrating the Registrant’s insight into the events, risks to Service Users by her conduct and how the Registrant proposes to avoid the repetition of such conduct in the future.
6) Information on how she is keeping her practice up-to-date through CPD courses or other relevant training.
62. The Panel did go on to give serious consideration to a Striking Off Order, in light of its findings. However, in the particular circumstances of this case, weighing up the aggravating and mitigating features, the Panel is satisfied that a Striking Off Order would be disproportionate. In light of the Registrant’s personal issues which the Panel heard about, it is the Panel’s view that an otherwise competent Operating Department Practitioner should be allowed the ability to demonstrate insight and remediation.
63. In the circumstances the Panel is satisfied that the only appropriate and proportionate order that it can make is one of suspension for a period of 12 months.
The Panel imposed an Interim Order of Suspension to cover the appeal period.
History of Hearings for Fiona E Morrison
|Date||Panel||Hearing type||Outcomes / Status|
|15/03/2017||Conduct and Competence Committee||Final Hearing||Suspended|