Mr Jeslar Constancio D'Costa

: Physiotherapist

: PH107806

Interim Order: Imposed on 19 Jan 2018

: Final Hearing

Date and Time of hearing:10:00 17/01/2018 End: 17:00 19/01/2018

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Allegation (as amended at the substantive hearing):

Whilst registered as a Physiotherapist and employed by BOC Healthcare:

1. You attended your place of work whilst under the influence of or smelling of  alcohol on one or more of the following dates:

a) 2 December 2016;
b) 5 December 2016;
c) 6 December 2016;
d) 7 December 2016
e) 9 December 2016;

2. Your actions described at Particular 1 constitute misconduct.

3. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters

1. The Registrant was present and was not represented. The Panel was provided with a Final Hearing Bundle which included the witness statements of the HCPC witnesses, numbered pages 1 - 50 and an Exhibits bundle numbered pages 1 – 34. The Panel also received an opening note from Mr Paterson. It also subsequently received a copy of the Substance Misuse Policy for BOC healthcare.

Application to amend the Particulars of Allegation

2. Mr Paterson applied to amend the Particulars of the Allegation in the manner set out in a letter sent to the Registrant dated 12 July 2017.

3. Particular 1 of the allegation originally alleged that Mr D’Costa had attended work on the dates set out under 1a) – 1f) whilst under the influence of alcohol. The proposed amendment to Allegation 1 was to add the words, “your place of work”, after “you attended”, and also the words, “and/or smelling of alcohol” after the words “whilst under the influence of” on the various dates. The HCPC also proposed to offer no evidence in relation to one of the originally specified dates namely, 8 December 2016.

4. Following a question from the Panel as to whether the HCPC’s case was that the Registrant had been under the influence of alcohol and smelling of alcohol on the dates alleged, Mr Paterson, applied to delete the word “and”, so that the proposed amendment to Particular 1 would read, “You attended your place of work whilst under the influence of or smelling of alcohol on one or more of the following dates…”

5. Mr Paterson submitted that the proposed amendments were necessary to reflect accurately the evidence in the case. Given that the evidence was that the Registrant was not at work on 8 December 2016, he proposed to offer no evidence in relation to that date.

6. The Registrant told the Panel that he did not object to the proposed amendments and accepted he had been notified of them (save for the additional deletion of the word “and”) by letter dated 12 July 2017.

7. The Panel carefully considered whether by expanding the scope of the Particulars, such that Allegation 1 would now encompass smelling of alcohol, which had not previously been included, would cause any unfairness to the Registrant. The Panel considered the contents of the witness statements, which refer to the Registrant smelling of alcohol. It was also clear that the Registrant was undergoing induction training rather than working at the time. Taking into account that the proposed amendments had been sent to the Registrant on 12 July 2017 and that the Registrant did not object to them and the contents of the witness statements, the Panel concluded that no injustice would be caused by the proposed amendments, which it allowed.

Admissions

8. On the basis that he smelled of alcohol on the particular dates, the Registrant admitted Particulars 1a), 1b), 1c) and 1e), but denied Particular 1d). The Registrant did not admit that he was under the influence of alcohol on any of the alleged dates.

9. Given that the Registrant was unrepresented and in order to assist him understand the various stages of this hearing, the Panel determined to deal with only the facts and misconduct at the first stage of the hearing.

Background

10. The Registrant was employed as a Physiotherapist with BOC Healthcare on 1 December 2016. A number of the Registrant’s colleagues reported that the Registrant smelled of alcohol on a number of dates during the following week. On 9 December the Registrant was interviewed by Witness 1, (QS) as part of his investigation into these matters. During the interview, the Registrant provided an alcohol breath test. Witness 1 prepared a report regarding these concerns and the matter was subsequently referred by BOC to the HCPC.

Decision on Facts

11. The Panel heard oral evidence from five witnesses called on behalf of the HCPC. Witness 1 (QS), Regional Medical Affairs Manager and Investigating Officer; Witness 2, (BM), Regional Lead and line manager; Witness 3, (CC) Technical Instructor; Witness 4, (DN) a Respiratory Nurse; and Witness 5, (ST) a Physiotherapist. The Panel also heard oral evidence from the Registrant.
12. In relation to the witnesses called on behalf of the HCPC, the Panel found them to be generally credible and reliable. Witness 1 (QS), was credible and straightforward. He attempted to assist the Panel. The Panel was satisfied that the essential aspect of QS’s evidence, that the Registrant smelled of alcohol, was credible.

13. Witness 2 (BM), gave a good clear account of his involvement with the Registrant.  The Panel found that he was honest in his responses and was also complimentary about the Registrant.

14. The evidence of Witness 3 (CC), was limited to a very short period of time on 2 December 2016 consisting of one observation and comment which was credible.

15. Witness 4 (DN), displayed understandable nervousness whilst giving evidence. English is not her first language. However, she also gave positive evidence about the Registrant’s knowledge and professionalism and did her best to assist the Panel.

16. Witness 5 (ST), whilst showing some inconsistencies between her oral and written evidence, did her best to assist the Panel, given the passage of time between the events and her making her witness statement.

17. In relation to the Registrant’s oral evidence, the Panel took into account that he was not represented and the obvious stress of appearing before a Conduct and Competence Panel. Whilst the Registrant began giving generally credible evidence as to his background and qualifications, the Panel considered that, as his evidence progressed, the Registrant became unfocussed and less credible. The Panel found difficulty in accepting the Registrant’s evidence of being seriously ill over the weekend of the 3 and 4 December 2016 or 7 December, given his failure to mention that to any of his colleagues and his failure to produce any medical evidence in support. The Panel found it hard to accept that the Registrant, who is highly intelligent, would not have realised the importance of providing medical evidence, if putting forward an alternative medical reason for smelling of alcohol.

18. The Registrant admitted all of the factual Particulars regarding him smelling of alcohol except Particular 1d), and stated that he did so because of all of the witnesses’ evidence that he smelled of alcohol. Nevertheless, the Panel looked carefully at the HCPC evidence in deciding whether any of the factual allegations were proved.

Smelling of alcohol

19. Having carefully considered all of the evidence in the round, the Panel found Particulars 1a), 1b), 1c), 1d) and 1e) proved in relation to the Registrant attending his place of work smelling of alcohol on these dates.

20.  In relation to Particular 1a) the Panel heard clear evidence from both BM and CC that the Registrant’s breath smelled of alcohol on 2 December 2016. CC’s evidence was that, “Whilst Jeslar D’Costa was standing near me I smelt alcohol on him.  I could not tell if it was stale or fresh but it was noticeable.  I jokingly said something to BM along the lines of “did you two stop off at the pub on the way?”  This was my way of indicating to BM that I could smell alcohol.” 

21. Further, on Sunday 4 December 2016, BM sent the Registrant a text message which included the words, “Also I could smell alcohol on your breath on Friday from the night before, please ensure it doesn’t happen again. Last thing we need is a patient complaint or for you to have an accident”. The Registrant replied to that text on Monday 5 January and said, “Oh B I’m sorry….I hope I made a good impression today..I start at 8 tomorrow.”

22. The Panel was satisfied on the above evidence that Particular 1a) was proved.

23. In relation to Particular 1b), DN, who was supervising the Registrant on 5 December 2016, stated in her statement that, On 5 December 2016 when I was providing the introductions, I noted that Jeslar D’Costa smelt very strongly of what I would describe as perfume containing alcohol and cigarettes.  I did not want to say that the smell was pure alcohol straight away as I wanted to give Jeslar D’Costa a chance.  I could not say whether he smelt of perfume containing alcohol or alcohol itself initially as I am aware that some people prefer cologne type of perfumes that can have a strong alcohol smell”.

24. In her oral evidence, DN clarified that the smell, whilst mixed, was predominantly of alcohol. ST also gave supporting evidence about 5 December 2016. The Panel was satisfied on the evidence that Particular 1b) was proved.

25. In relation to Particular 1c) which concerns the 6 December 2016 when the Registrant was accompanying both DN and ST. ST in her statement gave evidence that, “On Jeslar D’Costa’s second day with us DN asked me to take Jeslar D’Costa for a home visit.  I was driving and we went to a patient’s house for the visit.  During the consultation, the patient’s husband said that Jeslar D’Costa smelt strongly of garlic.  I had noticed a strong smell before this but I could not be certain what exactly the smell was.  It was hard to distinguish if it was alcohol or deodorant but it was a strong odour.  In terms of Jeslar D’Costa’s behaviour, there was nothing noticeable that stood out to me.  When the door was opened by the patient’s husband, personal space was minimal because the patient’s husband was right at the door when he was opening it and Jeslar D’Costa had to enter his personal space when walking through the door.  I think that is why the patient’s husband smelt it so strongly.  There was nothing that would have alarmed me about Jeslar D’Costa’s behaviour”.

26. In her oral evidence, DN stated that the Registrant’s smell of alcohol was stronger than the previous day. Additionally, both DN and ST raised their concerns about his smell with the Registrant. ST’s account in her statement was, “In response to the concerns that we raised, Jeslar D’Costa said that he drinks alcohol and that he drank the night before he came to work.  DN suggested that it was not appropriate because the alcohol might remain in his system if he was coming to work in the morning because it does not get cleared from his body. DN asked Jeslar D’Costa to consider the timings that he drinks before coming to work as it is not appropriate to drink a lot of alcohol the night before work.”

27. The Panel was satisfied on all of the above evidence, that Particular 1c) was proved.

28. In relation to Particular 1d), which concerns 7 December 2016 when the Registrant was again accompanying DN and ST, there was evidence from both these witnesses that the Registrant again smelled of alcohol. ST, having given the Registrant a lift to and from a patient’s house, noted, “After I had been on the visit with Jeslar D’Costa I had to leave the doors open of my car for about 10 minutes as the smell was so strong.  The residual smell in my car was a definite alcohol smell.  Jeslar D’Costa told me that it might be the smoke as he did not change his clothes.  I said to Jeslar D’Costa that he should, imagine how patients would feel. I felt that Jeslar D’Costa understood my concerns and he seemed to be upset”.

29. There is further undisputed evidence that later on 7 December 2016, the Registrant was told to go home by DN after ST had expressed her unwillingness to take him into a clinic additionally, BM had given separate evidence that DN had telephoned him that day about the smell of alcohol on the Registrant; and this led to BM suspending him.

30. On the basis of all of the above evidence, the Panel found Particular 1d) proved.

31. Particular 1e) concerns the meeting between the Registrant and QS on 9 December 2016. The Registrant had been suspended on 7 December 2016 and was therefore not at work on 8 December 2016.

32. The Panel heard clear and convincing evidence from QS that, as soon as the Registrant entered the room, there was a strong smell of alcohol.

33. Accordingly, the Panel was satisfied that Particular 1e) was proved.

Under the influence of alcohol

34. The Panel was not satisfied that the Registrant was under the influence of alcohol on any of these dates and therefore did not find it proved.

35. The Panel first considered the allegation of “being under the influence of alcohol”. It determined that in this allegation, it was a subjective test, because there was no reference in the allegation to any objective criteria.

36. The Panel was not provided with any evidence that the Registrant was under the influence of alcohol on any of the dates set out in Particulars 1a), 1b), 1c) or 1d).

37. At the investigation interview conducted by QS on 9 December 2016, the Registrant requested for QS to arrange a breath test which he undertook in QS’s office. The results of the breath test showed that at 13.04 hrs the Registrant’s breath contained 1.77% mg/l and at 13.24 hrs showed 1.79% mg/l. However, there was no subjective evidence from QS that he thought that the Registrant was under the influence alcohol at their meeting on 9 December 2016. Therefore, the Panel did not find proved Particular 1e) in respect of being under the influence of alcohol.

Decision on Grounds

38. In relation to misconduct, the Panel was satisfied that it had been proved that the Registrant had attended his place of work smelling of alcohol on five different days, three of which were successive days. The two days between the 2 December 2016 and 5 December 2016 covered the weekend. Even after being suspended from work on 7 December 2016, the Registrant attended an investigatory meeting with QS on 9 December 2016 still smelling strongly of alcohol.

39. The Panel was presented with evidence that the Registrant was very knowledgeable as a Physiotherapist. However, there was clear evidence that his conduct had caused concern to his colleagues and had interfered with their work. The Registrant was required to attend at patients’ homes and in clinic settings.

40. The Panel was under no doubt that the Registrant’s conduct was completely unacceptable. This was not just a single isolated incident. After the first date on which it had occurred, the Registrant had been warned about it by a text, which he had acknowledged. Nevertheless, there were four further dates on which the Registrant presented smelling of alcohol. In the Panel’s view, this was unprofessional conduct which could bring disrepute on the Registrant and his profession.

41. The Panel was further satisfied that the Registrant’s conduct fell seriously below the HCPC ‘Standards of conduct, performance and ethics’ 9.1 which states, “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

42. For all of the above reasons, the Panel was satisfied that the Registrant’s conduct amounted to misconduct.

Decision on Impairment

43. The Panel next considered whether, as a result of the misconduct found, the Registrant’s fitness to practise is currently impaired. The Panel paid careful regard to the further oral and documentary evidence given by the Registrant at this stage and to the submissions made by Mr Paterson on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.
 
44. The Panel carefully considered the HCPTS Practice Note on ‘Finding that Fitness to Practise is Impaired’ and the references therein to the factors to be taken into account, as set out in the case of Cohen v GMC [2008] EWHC 581 (Admin). In particular, whether the misconduct was remediable, had been remedied and was highly unlikely to be repeated.

45. The Panel considered that the Registrant had demonstrated remorse and some limited insight in relation to the matters found proved. The Panel noted the Registrant’s evidence, that at the time in question he was living apart from his wife, who was unable to come to the United Kingdom until March 2017; and that he would drink alcohol because he was lonely. The Panel also noted that the Registrant was now living at his parent’s house with his wife and is supported in his current approach to the consumption of alcohol.

46. The Panel was also given the chronology of the interim order history in this case. On 15 February 2017, the HCPC made an application for an interim order resulting in an Interim Suspension Order being imposed on that date. At the first review on 11 August 2017, the Interim Suspension Order was replaced with an Interim Conditions of Practice Order. There were standard conditions and a condition that he provide alcohol breath tests to the HCPC every six weeks. At the second review on 9 November 2017 the Interim Conditions of Practice Order was replaced with an Interim Suspension Order as the Registrant had not complied with the condition to provide alcohol breath tests.

47. The Panel was mindful of the wider public interest considerations in this case, particularly the need to declare and uphold proper standards of conduct and behaviour and maintain confidence in the reputation in the physiotherapy profession.

48. The Panel had regard to the judgement of Mrs Justice Cox in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and concluded that public confidence in the Physiotherapy Profession and in the HCPC as the regulator would not be undermined were a finding of impairment not made on public interest grounds.

49. On the personal element of impairment whilst the Panel was satisfied that the misconduct is remediable, it was concerned as to the extent of the Registrant’s insight, particularly in view of his non-compliance with the interim conditions of practice order. Further, the Registrant’s admissions to the Particulars of Allegation 1 were based on accepting the evidence of the witnesses, rather than insight into his own behaviour. In his evidence to the Panel, the Registrant failed to display insight into the link between his actions and how he appeared at his work.

50. While the Panel was satisfied that the Registrant was remorseful and the matters giving rise to the Registrant’s misconduct were isolated, it remained concerned that he only has limited insight. As the Panel could not therefore be satisfied that the misconduct was highly unlikely to be repeated, it concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

51. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.

52. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

53. The Panel had regard to the Indicative Sanctions Policy which states,
 "Even if a Panel has determined that fitness to practise is impaired, it is not obliged to impose a sanction. This is likely to be an exceptional outcome but, for example, may be appropriate in cases where a finding of impairment has been reached on the wider public interest grounds identified above but where the registrant has insight, has already taken remedial action and there is no risk of repetition".

54. In deciding whether to impose any sanction, the Panel had regard to paragraph 14 of the Indicative Sanctions Policy which states,
 "The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant: 
• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.”

55. Having carefully considered the above paragraphs of the Indicative Sanctions Policy, the Panel concluded that given the seriousness of the misconduct and that his fitness to practise is currently impaired, a sanction was required to protect the public and was in the public interest, to mark the seriousness of the matter.

56. The Panel considered as aggravating factors the repeated nature of the Registrant’s misconduct, particularly after he had been advised that turning up at work smelling of alcohol was not acceptable. In addition, his subsequent failure to adhere to the previously imposed conditions of practice order calls in question his attitude to regulation.

57. In considering mitigating factors, the Panel took into account his remorse, the lack of any disciplinary record and his admissions.

58. The Panel considered the available sanctions in ascending order of seriousness and concluded that taking no action or imposing a Caution Order would not be appropriate to mark the seriousness of the matters for which the Registrant’s fitness to practise is found to be impaired. The nature of the misconduct was not of a limited or minor nature. The Panel did not consider this to be a suitable case for mediation.

59. The Panel next considered conditions of practice. The Panel had regard to the Registrant’s evidence that he was currently working as a shop/customer service manager. The Panel also had regard to the Registrant’s remorse and his willingness to remedy his misconduct.

60. In all the circumstances, the Panel concluded that workable and practical conditions could be formulated which would adequately protect the public and satisfy the public interest. The Panel considered that Conditions of Practice Order for a period of 4 months was sufficient and proportionate.

 

Order

The Registrar is directed to annotate the HCPC register to show that for a period of 4 months from the date that this Order takes effect, you, Jeslar Constancio D’Costa, must comply with the following conditions of practice:

1. You must provide to the HCPC prior to the review of this order, a reflective piece demonstrating your insight into the seriousness of the misconduct found proved and the importance of adhering to decisions made by your regulator. This should include your reflection on the impact of your misconduct on the public, your colleagues and your profession.

2. You must provide to the HCPC prior to the review of this order, a testimonial from your current employer and any new employer as to your conduct at work and professionalism.

3. Your must provide to the HCPC prior to the review of this order, an up to date portfolio of your Continuing Professional Development.

4. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

6. You must inform the following  parties that your registration  is subject to these conditions:

A.  any organisation or person employing or contracting with you to undertake professional work;

B.  any agency you are registered with or apply to be registered with (at the time of application); and

C.  any prospective employer (at the time of your application).

Notes

This order will be reviewed again before its expiry on 16 June 2018.

Interim Order Application

Mr Paterson on behalf of the HCPC applied for an interim order to cover the appeal period and thereafter if an appeal was lodged. Mr D’ Costa did not object to the application. The Panel received and accepted the advice of the Legal Assessor.

The Panel had regard to its findings of misconduct and impairment. The Panel concluded that an Interim Conditions of Practice Order in the same terms as the substantive conditions, was necessary for the protection of the public and was otherwise in the public interest. The Panel considered that the interim order should be for a period of 18 months to cover the possibility of an appeal. The Panel revoked the existing Interim Suspension Order.

Hearing history

History of Hearings for Mr Jeslar Constancio D'Costa

Date Panel Hearing type Outcomes / Status
17/01/2018 Conduct and Competence Committee Final Hearing Conditions of Practice