Mr Yamani Bourak

: Operating department practitioner

: ODP12416

: Final Hearing

Date and Time of hearing:10:00 03/07/2017 End: 17:00 03/07/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Caution

Allegation

On 9 August  2016 at Guildford Magistrates' Court you were convicted of:

 

1. Failure to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.

 

2. By reason of your conviction as set out at paragraph 1 your fitness to practise as an Operating Department Practitioner is impaired.

Finding

Preliminary matters

1. Ms Hill applied to amend the allegation. The proposed amendment related to the date of the conviction. The Registrant had pleaded guilty and therefore been convicted on 9 August 2016. He had been sentenced on 15 September 2016. This was the date which had incorrectly been stated in the allegation and the correct date should be the date of conviction. Mr Carey on behalf of the Registrant made no objection. The Panel considered the advice of the Legal Assessor which was that an amendment could be made provided the Panel was satisfied that no injustice was caused.

2. The Panel accepted the application and allowed the amendment. In making this decision the Panel noted that the proposed amendment made no substantial difference to the case alleged against the Registrant.

Background

3. The Registrant is an Operating Department Practitioner who is registered with the HCPC. On 25 July 2016, the Registrant was apparently seen by a member of the public to be drinking wine from a bottle whilst sitting in his car in a supermarket car park. This member of the public alerted the Police. The Police attended the Registrant’s home address where the vehicle was registered, and they observed the Registrant driving his car onto his driveway. A Policemen spoke to the Registrant and smelt intoxicating liquor. The Registrant was asked to provide a specimen of breath. He refused to do so and was arrested. Once arrested and at the Police Station the Registrant again refused to provide a specimen of breath.  

4. The Registrant appeared at Guilford Magistrates Court on 9 August 2016. He pleaded Guilty to a charge of failing without reasonable excuse to provide a breath test contrary to section 7(6) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offender’s Act 1888. He was remanded until 15 September 2106 to Staines Magistrates’ Court in order for that Court to consider if there were special reasons for not ordering an endorsement or disqualification. On 15 September 2016, he was sentenced to a fine of £530, disqualified from driving for 16 months. He was also order to pay a victim surcharge of £53 and Crown Prosecution Service costs of £85.

Decision on facts

5. The allegation was read out. The Panel bore in mind the burden and standard of proof and considered the single particular. The HCPC relied on the documents produced, including the Memoradum of Conviction, as to the existence of the conviction. The Registrant gave evidence and his wife was called to give details of his arrest.

Particular 1

6. The Panel found this particular proved, in making this decision it relied on the Memorandum in Conviction dated 9 August 2016.

Decision on grounds

7. Having found the conviction proved, the Panel was satisfied that it amounted to the statutory ground.

 Decision on impairment 

8. Having found that the matter found proved amounted to a conviction. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. It bore in mind the evidence given by the Registrant and his wife, the submissions made by Ms Hill and Mr Carey, the advice of the Legal Assessor and the practice note of ‘Finding that Fitness to Practise is impaired’.

9. The Panel considered the two component parts relating to impairment, the ‘personal’ component and the ‘public’ component. It first considered the ‘personal’ component, whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

10. The conviction was a single conviction. The Registrant was not on duty and there is no suggestion of any harm caused to the public or patients as a result of that conviction. The Panel considers that the Registrant has shown a lack of insight into the consequences of his behaviour and subsequent conviction. He has not demonstrated any understanding of the effects of what the conviction might have upon his profession and the standards of behaviour that must be upheld. The Registrant did not accept that his conviction could bring the profession into disrepute or cause any reduction in confidence of the profession.  When answering questions in this regard, the Registrant’s focus was entirely on his ability as an ODP.  When asking colleagues for references to present at this hearing, the Registrant told the Panel that he had asked for character references and had not provided them with the detail of his arrest and conviction. He only reported this matter to the HCPC late in the day, after his sentence on 15 September 2016. Although he has shown insight by his admission and remorse, he has failed to demonstrate his understanding of the effect and potential effect on the profession and the way in which the public would regard his behaviour. The Panel does therefore consider that the behaviour which led to the conviction has not been fully remediated despite completion of a drink driving awareness course.   Full remediation can only be demonstrated by comprehensive insight which has not been evident during this hearing.  The Panel therefore finds that the Registrant’s fitness to practise is impaired on the basis of the ‘personal’ component of impairment.

11. The Panel is aware that it must also look to the ‘public’ component of impairment. It notes the passage in the practice note of ‘Finding that Fitness to Practise is impaired’ it is it is important for Panels to recognise that the need to address the “critically important public policy issues” identified in Cohen V GMC [2008] EWHC (Admin)  - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that they cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, the registrant has corrected matters or “learned his or her lesson”.

12. The Panel considered the HCPC’s Standards of conduct, performance and ethics and in particular:
“Paragraph 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

13. The Registrant failed to comply with this standard. For the matters identified in the Panel’s finding on the ‘personal’ component the Panel considers that the Registrant has not demonstrated any understanding of the effects of what the conviction might have upon his profession and the standards he must uphold. The Panel considers that the public, knowing the facts and findings in this case would be concerned and their confidence in the profession would be undermined if a finding that the Registrant’s fitness to practise was impaired was not made. The Panel therefore also finds that the Registrant’s fitness to practise is impaired on the basis of the ‘public’ component.

Decision on sanction
 
14. Having found that the Registrant’s fitness to practise is currently impaired by reason of his conviction and misconduct, the Panel went on to consider the question of sanction. It heard submissions from Ms Hill and Mr Carey and evidence from the Registrant. Before reaching its decision, the Panel considered the HCPC Indicative Sanctions Policy and accepted the advice of the Legal Assessor.

15. The Panel considered the gravity of the matter found proved and identified the following aggravating and mitigating factors.

16. The mitigating factors are the admissions. The Registrant has admitted his conviction. He pleaded guilty at the Magistrates’ Court. It was a one off incident. The circumstances of that conviction had placed the Registrant under some added stress because of his inability to attend an unwell member of his family. There are no previous regulatory or criminal findings made against him in the course of 30 years that he has been practising. He has made expressions of regret and apology for his behaviour. The Panel considers that the Registrant has shown some, albeit limited, insight into the consequences of his actions. He has started his remediation by completing a course for Drink-Drive Offenders. He has continued to engage with the process. He has demonstrated by his behaviour and statements that he has a continuing commitment to his profession.

17.The aggravating features are the seriousness of the conviction.

18. In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

19. The Panel has concluded that in the light of the seriousness of the allegation a sanction is required. To take no action would undermine the profession and the regulatory process and not act as a deterrent to others in the profession.

20. The Panel then considered a Caution Order. The Panel considers that such an order is the appropriate sanction in this case. The conviction has not affected the Registrant’s work and practice. The testimonials produced on his behalf demonstrate his commitment to his profession. The Panel is satisfied that, although the Registrant has not fully demonstrated insight, this hearing his heightened his awareness of the necessity of upholding proper standards. This was demonstrated by his action in stepping down as the Principal Operating Department Practitioner at work after his conviction. The Panel considers that his action in doing this gives a solid demonstration of his insight and is more reliable than the way in which he presented himself in this hearing in the course of his evidence. The Panel therefore considers that the Registrant is gaining insight, albeit it is still under development.

21. The Panel did consider whether an appropriate sanction was a Conditions of Practice Order however there is no issue as to the Registrant’s capability or competence and therefore no condition could be drafted in order to deal with the matter of a single conviction. A Suspension Order would not be proportionate and would, in the Panel’s view, be merely punitive.

22.The Panel has therefore determined, in this case to impose a Caution Order. In making this order the Panel has noted in the Indicative Sanctions Policy that the ‘benchmark’ period of time for a caution order is three years. As the Panel has already observed, the Registrant is developing insight although it is not yet fully developed and the Panel sees no reason therefore why it should depart from that period of time and makes the caution order for three years.


 

Order

That the Registrar is directed to annotate the register entry of Mr Yamani Bourak with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.
 

Notes

The order imposed today will apply from 31 July 2017 . 

Hearing history

History of Hearings for Mr Yamani Bourak

Date Panel Hearing type Outcomes / Status
03/07/2017 Conduct and Competence Committee Final Hearing Caution