Mrs Dawn McIntosh

: Operating department practitioner

: ODP10179

Interim Order: Imposed on 28 Jun 2017

: Final Hearing

Date and Time of hearing:10:00 26/01/2018 End: 17:00 26/01/2018

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

: Conduct and Competence Committee
: Struck off

Allegation

Whilst registered as an Operating Department Practitioner with the Health and Care Professions Council:

1. On 24 May 2017 at Derby Crown Court, you were convicted of dishonestly making false representation to make gain for self/another or cause loss to other/expose other to risk;

2. By reason of your conviction, your fitness to practice is impaired.

Finding

Preliminary Matters


Proof of Service


1. On 14 November 2017, notice of this hearing was sent by first class post to the Registrant’s registered address by letter. It contained the required particulars. A copy was also sent to her by email on the same date.

2. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied, on the documentary evidence provided, that the Registrant had been given appropriate notice of this hearing in accordance with the Rules.

Proceeding in absence of the Registrant


3. Ms Royer, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

4. The Panel had regard to the chronology of events. On 25 May 2017, the Registrant’s employers made a referral to the HCPC, informing it that the Registrant had been convicted of fraud and had received an 18 month suspended prison sentence, and that they were in the process of suspending her pending an internal investigation. On 30 May 2017, the Registrant wrote to the HCPC, to inform it that she had received a suspended prison sentence, and that her letter was following a telephone call to the HCPC on 25 May 2017 when she was advised to put the information in writing.

5. On 2 November 2017, the Registrant’s representatives at Unison, sent an email to the HCPC to inform it that the Registrant would not be attending the hearing, and indicated that Unison’s policy was not to represent Registrants in their absence, and so no representative would be attending either. On 24 January 2018, the case officer telephoned the Registrant and was able to speak to her. The Panel had a copy of the file note recording the matters discussed in the call. In this call, the Registrant confirmed that she would not be attending the hearing. Neither the Registrant, nor her Unison Representative on her behalf, has sought an adjournment.

6. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve notice on the Registrant in accordance with the Rules.

7. The Registrant was convicted in May 2017 and the Panel was mindful of the public interest in hearing matters expeditiously.

8. In light of the above, the Panel was satisfied that the Registrant had been provided with the means of knowledge as to when and where her hearing was to take place. The Panel concluded that the Registrant had taken the decision not to attend the substantive hearing, thereby waiving her right to attend. The Panel also considered that there was a public interest in the hearing taking place expeditiously. The Panel therefore granted the application of the HCPC to proceed in the Registrant’s absence.

Background


9. The Registrant is an Operating Department Practitioner (ODP), registered with the HCPC. She was employed by Derby Teaching Hospitals NHS Foundation Trust (the Trust), as a Senior Theatre Practitioner and had worked for the Trust since 4 January 1982.


10. On 24 May 2017, the Registrant appeared at Derby Crown Court and pleaded guilty to dishonestly making a false representation to make gain for herself/another or cause loss to other/expose other to risk. She was sentenced to 18 months’ imprisonment suspended for 24 months. The requirements of the suspended sentence were to undertake a rehabilitation activity requirement programme for a maximum of 15 days. She was also ordered to pay compensation of £9,000.


11. The circumstances of the offence were that the Registrant, between September 2012 and September 2015, withdrew money from her step father’s two bank accounts. On 5 September 2012, the Registrant had been registered as Power of Attorney for his property and finances, and, in that role, she had possession of her step father’s paying in books, bank cards and PIN numbers. The Registrant had withdrawn a total of £17,958 from the two bank accounts and she used that money for her personal gain.


12. The operational period of the suspended sentence of imprisonment is due to expire on around 23 May 2019.


Decision on Facts


13. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that the burden of proving the facts rests on the HCPC and that the HCPC will only be able to prove a fact, if it satisfies the required standard of proof, namely the civil standard, whereby it is more likely than not that the alleged incident occurred.


14. The Registrant did not attend the hearing, nor was she represented in her absence. The Panel did not hold her non participation against her.


Particular 1


On 24 May 2017 at Derby Crown Court, you were convicted of dishonestly making false representation to make gain for self/another or cause loss to other/expose other to risk.


15. The Panel found particular 1 proved.

16. The Panel had regard to Rule 10(d) which states: 'where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction ... shall be admissible as proof of that conviction and the finding of fact upon which it was based'.


17. The Panel had before it a copy of the Certificate of Conviction, dated 6 June 2017, from Derby Crown Court, which recorded the offence to which the Registrant had pleaded guilty. The Panel was satisfied to the required standard, that the Registrant had been convicted of the offence itemised within particular 1.


Statutory Ground


18. Having found the facts proved, the Panel was satisfied that, by its nature, it amounted to the statutory ground of a conviction.


Decision on Impairment


19. The Panel next went on to consider whether the Registrant’s fitness to practise is currently impaired as a consequence of the conviction.


20. Ms Royer, on behalf of the HCPC, submitted that the Registrant’s fitness to practise is currently impaired by reason of her conviction. She submitted that the Registrant had breached standard 9 of the  HCPC’s Standards of conduct performance and ethics for Registrants and her conduct had fallen far below the standards to be expected. She submitted that a finding of impairment was required in order to uphold public confidence in the profession.


21. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Note entitled “Conviction and Caution Allegations”. It also had regard to the HCPTS Practice Note entitled “Finding that Fitness to Practise Is Impairment”, and in particular its reference to the case of Cohen v GMC, which identified the ‘critically important public policy issues’ as:


‘The need to protect the individual [patient] and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect… and that public interest includes amongst other things the protection of [patients] and maintain public confidence in the profession’.

22. The Panel was of the view that the case was serious. The Registrant had pleaded guilty to an offence of dishonesty. She had abused the position of trust in which she had been placed, namely to act as the Power of Attorney for her vulnerable step father who lacked the capacity to manage his own affairs and finances. The offending had taken place over some three years and the Registrant had withdrawn in excess of £17,000 from two of her step father’s bank accounts.


23. The Panel considered the HCPC Standards of conduct, performance and ethics, duties as a Registrant. It was satisfied that the Registrant’s conduct had been in breach of standard 9, which is to “Be honest and trustworthy”, and in particular standard 9.1: “You must make sure that your conduct justifies the public’s trust and confidence in you and your profession”.

24. In considering the personal component, the Panel noted that the Registrant had pleaded guilty to the offence at the Crown Court. However, in respect of these proceedings, the Panel was of the view that there had been minimal engagement from the Registrant. The Panel was mindful that it had not received any evidence from the Registrant to demonstrate any insight, remorse or remediation. In the absence of any such information, the Panel was unable to conclude anything other than that there remained a risk of repetition.


25. Accordingly, in respect of the personal component, the Panel found that the Registrant’s fitness to practise is currently impaired.


26. In considering the public component, the Panel bore in mind the need to protect the individual patient and the collective need to maintain public confidence in the profession and the HCPC as its regulator, as well as to declare and uphold proper standards of conduct and behaviour.


27. Given the Panel’s view of the serious nature and circumstances of the offence of dishonesty when placed in a position of trust in managing her step father’s finances, it concluded that a well informed member of the public would expect the regulatory body to act. In the Panel’s view, the Registrant’s conduct had brought the profession into disrepute and would undermine public confidence in the profession. In light of this, the Panel was of the view that not to find current impairment would have a significant detrimental reputational effect on the Regulator, and would undermine public confidence in the profession. The Panel was also of the view that a finding of impairment was required to declare and uphold proper standards of conduct and behaviour.


28. Accordingly, in respect of the public component, the Panel found that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction


29. Having determined that the Registrant’s fitness to practise is currently impaired by reason of her conviction, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on her registration by way of the imposition of a sanction.

30. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. The Panel had regard to the Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

31. The Panel considered the main mitigating and aggravating factors in this case.

32. The Panel considered that the only mitigating factor in this case was the fact of the Registrant’s guilty plea to the offence at the Crown Court.

33. The Panel considered the following to be the main aggravating factors in this case:

i. The Registrant’s abuse of her position of trust, as Power of Attorney;


ii. The vulnerable nature of the victim;

iii. The significant sum of money taken over a sustained period of three years;


iv. The lack of evidence of any insight, remorse or remediation.

34. The Panel was of the view that the seriousness of the case meant that some form of sanction was required, and so the options of taking no further action, or mediation were inappropriate. The Panel therefore considered the alternative sanctions available, beginning with the least restrictive.

35. In considering whether a Caution Order may be appropriate, the Panel had regard to paragraph 22 of the Policy, which states: ‘A caution order is an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.’

36. The Panel was of the view that none of these factors which might indicate that a Caution Order was appropriate were present in this case. The offending was not an isolated, limited or relatively minor lapse, rather it was a sustained period of dishonesty, in which a large sum of money had been taken from a vulnerable victim for personal gain. Further, in light of the absence of evidence of insight, remorse or remediation, the Panel had earlier concluded that there remained a risk of repetition.

37. In considering whether a Conditions of Practice Order may be appropriate, the Panel was mindful that it had no information about the professional or personal position of the Registrant, and so no indication as to whether she would be willing or able to comply. In any event, the seriousness of the conduct was such that the Panel was of the view that there were no conditions which could be formulated which were appropriate, realistic, verifiable or workable to satisfactorily protect the public and safeguard the wider public interest. The Panel concluded that a Conditions of Practice Order would neither reflect the seriousness of the case nor satisfy the high public interest aspect of this case, namely the need to maintain public confidence in the profession.

38. The Panel next considered a Suspension Order. It took account of the fact that it had no evidence of any insight, remorse or remediation on the part of the Registrant. Further, given the serious nature of the Registrant’s sustained dishonesty when in a position of trust, the Panel concluded that a Suspension Order was insufficient to mark the nature and gravity of the offending.

39. The Panel considered a Striking Off Order and concluded that this was the only appropriate and proportionate sanction in this case. It was of the view that there was no other way to protect the public, maintain the reputation of the profession and public confidence in the regulatory process.

40. The Panel had regard to paragraph 47 of the Policy which states:

Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as … dishonesty ….


41. For the reasons earlier identified, the Panel was satisfied that this was a case which fell into this identified category.

42. The Panel also had regard to paragraph 49 of the policy, which states:

Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process…


43. For the reasons previously given, the Panel was of the view that the nature and gravity of the Registrant’s offending are such that a Striking Off Order is required. It was clear to the Panel that any reasonably well informed member of the public would be profoundly concerned if an ODP, convicted of such an offence, were not removed from the Register.

44. In terms of the principle of proportionality, the Panel noted that the Registrant would be prevented from working in the profession by this Order. However, it was of the view that the high public interest of maintaining public confidence in the profession outweighs her own interests.

Order

Order: The Registrar is directed to strike the name of Mrs Dawn McIntosh from the Register on the date this order comes into effect.


The order imposed today will apply from 23 February 2018.

Notes

Interim Order following Imposition of Sanction

Proceeding with the application in the Registrant’s absence

45. Ms Royer made an application for the Interim Order hearing to proceed in the Registrant’s absence. She submitted that the Registrant had been given notice that the HCPC may make such an application within the notice of hearing dated 14 November 2017.

46. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to proceed in the Registrant’s absence. It was satisfied that the Registrant had been given notice in the notice of hearing, dated 14 November 2017, of the HCPC’s intention to apply for an Interim Order if conditions, suspension or strike off were imposed as a sanction.

47. The Panel considered that the same factors applied as for its decision to proceed in absence in respect of the substantive hearing, namely that the Registrant had voluntarily waived her right to attend and it was unlikely that an adjournment would secure her attendance.

Interim Order Application


48. Ms Royer made an application for an Interim Order of Suspension for 18 months to cover the appeal period of 28 days before the Striking Off Order comes into effect, or if the Registrant were to appeal, the period of the appeal.

49. The Panel heard and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders, in that it must undertake a comprehensive review of the available information in order to conduct a risk assessment.

50. The Panel considered whether an Interim Order was necessary to protect the public and concluded one was necessary. The Panel has found current impaired fitness to practise on both the personal and public components, in respect of a sustained fraud committed upon a vulnerable victim and in breach of trust. The Panel has found that in the absence of any evidence of insight, remorse or remediation it was unable to conclude anything other than that there remains a risk of repetition. The Panel, therefore, concluded that an Interim Order was necessary to protect the public.

51. The Panel considered the wider public interest. The Panel concluded that, having found that the Registrant’s fitness to practise is currently impaired, and that the only appropriate sanction is one of a Striking Off Order, the public would be concerned if the Registrant were permitted to practise during any appeal period. It therefore concluded that an Interim Order was required to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour.

52. Accordingly, the Panel concluded that an Interim Order is necessary to protect the public and is otherwise in the public interest.

53. The Panel considered an Interim Conditions of Practice Order, but in light of the Strike Off the Panel was of the view the case was too serious to be dealt with by way of conditions for the same reasons as set out in the substantive hearing.

54. In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.


Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing history

History of Hearings for Mrs Dawn McIntosh

Date Panel Hearing type Outcomes / Status
26/01/2018 Conduct and Competence Committee Final Hearing Struck off