Phillip F Hopkins

Preliminary Matters
Service
1. The Panel noted that the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’) provide at paragraph 3(1)(b) that notice may be served on a registrant by posting it to their address as it appears in the register, or sending it to an electronic mail address provided by the registrant for communications. Paragraph 6(2) of the Rules confirms that at least 28 days notice of a hearing must be provided to a registrant.

2. The Panel was provided with a 7 page Service Bundle which contained a notice of hearing, sent to the Registrant on 14 March 2023 via email at 15:15, and an extract of the Register, showing the contact details provided by the Registrant and held by the HCPC. It also received legal advice from the Legal Assessor, which it accepted, and was referred to the HCPTS Practice Note in relation to ‘Service of Documents’.

3. The Panel was satisfied that the notice of hearing had been duly served upon the Registrant via his email address more than 28 days before the hearing. It was therefore content that the HCPC had discharged its duty to ensure that the Registrant had been afforded an opportunity to appear before it and be heard, as set out at Article 31(15) of the Health Professions Order 2001. In these circumstances, the Panel determined that good service of notice of the hearing had been effected.

Proceeding in Absence
4. The Presenting Officer invited the Panel to proceed with the hearing in the absence of the Registrant. She summarised the case law relevant to the issue to be determined by the Panel and submitted that the Registrant had engaged sporadically with his regulator until October 2023 but had not since then responded to any communication. The Presenting Officer reminded the Panel of the numerous occasions that the HCPC had contacted the Registrant about the proceedings and confirmed that he had not requested an adjournment or to have representation at the hearing. He also had not provided any indication that he was unable to attend the hearing due to ill health or any other reason. The Presenting Officer noted that the allegation related to 2022 and submitted that delaying the hearing of the allegation further would have a detrimental impact upon the memory of witnesses to the allegation. She confirmed that the HCPC was ready to proceed with the hearing and had one witness in attendance to give evidence to the Panel. In the circumstances, the Presenting Officer submitted that the Panel was entitled to find that the Registrant had voluntarily absented himself from the proceedings and therefore that the hearing should proceed in his absence.

5. The Panel received advice from the Legal Assessor, which it applied, and had regard to the practice notes provided by the HCPTS in relation to proceeding in the absence of the Registrant. It noted that the last communication from the Registrant appeared to have been by way of email on 19 October 2023.

6. Having determined that good service of notice of the hearing had been effected by the HCPTS, the Panel carefully considered all of the circumstances of the case to inform its assessment of the fairness to the HCPC, the public and the Registrant in respect of whether to proceed with the hearing in the absence of the Registrant.

7. The Panel was satisfied that the Registrant was aware of the date, time, location and purpose of the meeting as required by the Rules as a consequence of the good service of the notice of hearing. It was also satisfied that the HCPC had taken all reasonable steps to engage the Registrant in the proceedings. The Panel found that the Registrant had not maintained consistent or meaningful engagement with the regulator since referring himself to the HCPC in March 2022. There had been no request for an adjournment by the Registrant, nor had he expressed an interest in being represented at the hearing. There was no information before the Panel to suggest why the Registrant was unable to attend the hearing, and no indication that he would attend the hearing on a future date in the event that the hearing was adjourned. The Registrant appeared to have comprehensively disengaged from the regulatory process since November 2023.

8. In considering fairness to the HCPC and the public when making its decision whether to proceed with the hearing or not, the Panel noted that the HCPC attended the hearing and had one witness on standby to give evidence to it. The steps it had taken to secure the Registrant’s attendance were reasonable in all the circumstances and the Panel had no reason to think that the Registrant would attend any future hearing date.

9. The Panel gave careful consideration to the prejudice that may be caused to the Registrant by the matter proceeding in his absence but was content that it would test the HCPC’s case in any event when forming any judgement and therefore minimise this disadvantage as much as possible. It was mindful of the practice note issued by the HCPTS in respect of ‘Unrepresented Registrants’ and the fact that registrants should not be able to frustrate the efficient administration of regulatory matters by simply not engaging in the proceedings. It was satisfied that it could provide the Registrant with copies of its determination at each stage of the proceedings so that the Registrant could re-engage with the proceedings at any point in the hearing.

10. In the circumstances, the Panel determined that the public interest favoured the proceedings continuing in the absence of the Registrant given the age of the allegation, the fact that the HCPC was in a position to proceed with a witness in attendance and that the Registrant provided no indication as to why he was unable to attend. It was satisfied that the hearing could proceed in the absence of the Registrant.

Proceeding in Private
11. The Presenting Officer applied for part of the hearing to be conducted in private to protect information to be provided to the Panel in respect of the Registrant’s health. She told the Panel that it was required to protect the Registrant’s private information when considering the regulatory matters, but proposed this could be achieved by hearing the majority of the matter in public, and only moving into private to receive private information about the Registrant.

12. The Panel received legal advice, which it applied, and was referred to both the practice note – Conducting Hearings in Private – and the provisions of Article 6(1) of the European Convention on Human Rights. The Panel was content that it was appropriate and in the interests of justice for consideration of matters relating to the Registrant’s health to be considered in private, but that the rest of the hearing should be conducted in public.

Background
13. The Registrant is a registered Radiographer who was employed by Alliance Medical Limited (‘Alliance’) from 2018.

14. On 24 February 2022, the Registrant was working for Alliance at a mobile scanning unit at the Durham Diagnostic Treatment Centre (‘DDTC’). During his lunch break the Registrant purchased and drank from a bottle of wine before returning to the DDTC and resuming work. His colleagues noted a change in his behaviour through the afternoon and suggested that he go home. When the Registrant left the DDTC, he dropped the bottle of wine, which smashed on the ground.

15. The Registrant spoke with his manager on 24 February 2022 and again on 25 February 2022, when he admitted buying and consuming alcohol before returning to work at the DDTC. He was suspended on medical grounds pending attendance at an occupational health assessment.
16. On 4 March 2022 the Registrant notified the HCPC of the incident and his suspension.

17. A disciplinary investigation was commenced by Alliance which resulted in a disciplinary hearing being conducted on 7 April 2022. The outcome of the hearing was that the Registrant’s employment was terminated with immediate effect. Alliance notified the HCPC of its concerns about the Registrant via a referral dated 9 May 2022.

18. The Registrant provided the HCPC with consent to access his medical records on 8 June 2022. He was asked to provide an updated consent form in July 2023 and confirmed he would do so via an email dated 19 July 2023 but did not.

19. On 3 April 2023, a panel of the Investigating Committee determined that the Registrant did have a case to answer and confirmed the allegation as set out above, notice of which was sent to the Registrant on 12 April 2023.

Decision on Facts
Submissions
20. The Presenting Officer confirmed that the burden and standard of proof in this matter rests with the HCPC. She summarised the caselaw in relation to the burden of proof and confirmed it was for the HCPC to prove factual particulars. She referred the Panel to the four witness statements provided in the bundle and the supporting documents as well as the evidence the Panel heard from the investigating officer in respect of Alliance’s disciplinary investigation. The Presenting Officer reminded the Panel that the Registrant attended work on 24 February 2022 under the influence of alcohol. His colleagues noticed that he was not himself and thought he may be unwell. His condition deteriorated after lunch. They did not smell alcohol on him but said one colleague was with the Registrant when he agreed to go home early and said that he dropped a bottle of wine on the ground, causing it to smash. The Presenting Officer reiterated that the Registrant spoke with his manager that day and admitted drinking alcohol then attending work, which he also confirmed to her on 25 February 2022 and during the disciplinary investigation meeting on 31 March 2022. The Registrant expressed his remorse on each occasion and explained his personal circumstances at that time.

21. In respect of the allegation relating to the Registrant’s health, the Presenting Officer summarised the information available to the Panel. She referred the Panel to the health documents before it.

22. In respect of the statutory ground, the Presenting Officer invited the Panel to find that attending work under the influence of alcohol amounted to misconduct as defined within the case of Roylance. She reminded the Panel that the HCPC has adopted standards of conduct, performance and ethics it expects from all registered professionals, and specific standards of proficiency for radiographer registrants. She listed a number of standards from each which she said had been breached by the Registrant. She invited the Panel to find that the Registrant’s conduct as set out at Particular 1 amount to misconduct, being a serious falling short of what would be expected of a registered health care professional.

Deliberations
23. Having regard to the above submissions, the Panel considered allegation 1, taking account of the documentary and oral evidence, the submissions made to it and the legal advice provided by the Legal Assessor, which it accepted and applied. It also had regard to the practice notes available to assist it and a guidance note issued in respect of dual allegations. It was conscious that it was obliged to approach the consideration of allegations sequentially, deciding firstly whether the facts set out in allegation 1 are proved, then whether those facts amount to the statutory ground set out in the charge and if so, whether the Registrant’s fitness to practise is impaired.

24. The Panel bore in mind the advice from the Legal Assessor that if it considered that there was evidence that the allegation should more properly be dealt with by a Health Committee, it would need to receive further submissions before deciding whether to make a cross referral to a Health Committee. Therefore, applying the guidance issued by the HCPC on dual allegations, while the Panel would be entitled to have regard to health issues in considering the alleged misconduct, it would not be dealing with the health allegation (i.e. Particular 2) at this point in the proceedings. Any further directions concerning the health allegation would await the disposal of the misconduct allegation.

25. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide firstly whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden to the civil standard of proof, that is that it is more likely than not that the alleged conduct took place.

Witnesses
26. The Panel heard from SL, who was the Registrant’s manager at the time, and gave evidence to it under affirmation. Her evidence was that she spoke with the Registrant on 24 and 25 February 2022 and 18 March 2022, and on each occasion he admitted attending work under the influence of alcohol and was remorseful for his conduct. The Panel considered the evidence of SL to be fair, straightforward and balanced. It had no questions for her.

Untested evidence
27. The Panel was provided with three further witness statements, attested by statements of truth but which had not been tested on behalf of the Registrant or by the Panel. The Panel therefore approach this evidence with caution:
a. KO – a radiographer registered with the HCPC who was working with the Registrant on 24 February 2022 as a senior radiographer. He reported the Registrant cannulating patients all day. He said that when the Registrant left the DDTC, he was followed by a clinical assistant. When she returned to the DDTC, she told him that as she talked to the Registrant, a bottle of wine fell from his bag and dropped on the floor. As a result, witness KO left the DDTC and viewed the smashed bottle, which sat in some liquid. The clinical assistant informed the manager (witness SL) of what had happened. The statement of KO was signed and dated 5 July 2023.
b. UJ – a radiographer registered with the HCPC who was working with the Registrant on 24 February 2022 as a senior radiographer. He noted that the Registrant was not his normal self on that day, looking fatigued, unable to walk straight and unsure in his decision making. He thought that the Registrant may be unwell, have problems at home or was taking medication. He stated that he and KO “tried to do the majority of the work, so that Phil could have a lighter day”. He reported the Registrant’s mood being worse after lunch, being unable to concentrate and not able to talk normally, but did not consider that any patient was impacted due to his colleague and him managing the work. When the Registrant left the DDTC, UJ said he heard glass breaking, went outside to investigate and saw a broken bottle. He reported not seeing who broke the bottle, or whether the Registrant had drunk from it. He confirmed he had not smelled alcohol on the Registrant that day and that the clinical assistant reported the matter to their manager. His statement was signed and dated 19 July 2023.
c. CR – an assistant solicitor preparing the Registrant’s case for presentation to the Panel on behalf of the HCPC. She exhibited a number of documents in respect of the preparation of the matter of hearing, including the extent of contact with the Registrant in relation to obtaining information about his health.

28. The Registrant did not attend the hearing and provided no evidence to the Panel for its consideration. The Panel therefore carefully considered the information available to it in relation to the Registrant’s position on the allegation. It considered his self-referral form, in which he stated that he had been placed on medical suspension following an incident on 24 February 2022 while on shift. It noted that the Registrant had not objected to the witness statements provided to it by the HCPC, or offered any comment upon them. The statement of witness SL provided details of conversations she had with the Registrant on 24 and 25 February 2022, in which she said the Registrant admitted purchasing and consuming alcohol on the lunchtime of 24 February 2022 and then returning to the DDTC and continuing to work. She noted that he was unable to recall details of what happened that afternoon. She exhibited notes from the investigatory meeting she had with the Registrant on 18 March 2022, accompanied by a human resources representative. The Registrant was neither represented nor accompanied to that meeting and signed the notes of the meeting as a true record on 23 March 2022.

Particular 1 – Found Proved
29. The Panel was conscious it should not simply accept an admission by the Registrant as proving the particular. It appeared to the Panel that the Registrant had at no point made any comment about the allegation to the HCPC. It was required to satisfy itself as to whether the HCPC had discharged the burden of proof in relation to Particular 1.

30. Although the Registrant was not in attendance, the Panel was satisfied that there was no evidence that he disputed the information put forward by the HCPC in support of the allegation. He self-referred to the HCPC after the incident and co-operated with Alliance’s disciplinary investigation process. He attended an occupational health assessment arranged by Alliance in relation to his health between the incident and the disciplinary investigation meeting, which resulted in a report exhibited by witness SL which confirmed:
a. “The reason for this referral is due to suspension from work after appearing to be under the influence of alcohol at work”:
b. “He informed me that on the said day he had purchased a bottle of red wine during his lunchtime and consumed most of the bottle then returned to work”;
c. The Registrant reported his health deteriorating in the weeks before the incident.

31. The Registrant had sporadically engaged with his regulator, signing one medical consent form and agreeing to update this, though no such updated report was received. The evidence from witnesses was not inconsistent with his referral and he had not used any of his contacts with his regulator to dispute what had happened.

32. Having regard to all of the above factors, the Panel was satisfied that it was more likely than not that the Registrant attended work on 24 February 2022 under the influence of alcohol. It therefore found this allegation proved on the balance of probability.

Decision on Grounds
Primary Allegation - Particular 1
33. The HCPC submitted that whether the proven fact amounts to the statutory ground of misconduct is a matter of judgement for the Panel. The HCPC stated that the conduct proved established that the Registrant exhibited conduct which fell seriously short of that expected of a registered professional. The Presenting Officer directed the Panel to standards 6 and 9 of the HCPC Standards of Conduct, Performance and Ethics (2016) and paragraphs 1, 2 and 3 of the Standards of Proficiency for Radiographers (pre-2023). She submitted that the Registrant’s conduct was clearly misconduct by reason of the breaches of the professional standards.

34. Having found Particular 1 proved, the Panel was required to judge whether it amounted to a statutory ground as advanced by the HCPC. It was conscious that deciding the issue of misconduct was a matter for its own judgement.

35. The Panel took into account the oral submissions, accepted and applied the advice of the legal adviser, and had regard to the guidance issued by the HCPC. It noted that misconduct usually involves some act or omission falling short of what is considered proper in the circumstances. Standards of propriety are often set out for regulated professionals, and in this instance the Standards of Conduct, Performance and Ethics (2016) adopted by the HCPC were of relevance, as well as the Standards of Proficiency for Radiographers. The Panel was also aware that breach of the professional standards alone does not necessarily constitute misconduct. The standards the Panel believed were engaged, and breached, by the Registrant in this matter were:
6 - Manage risk
Identify and minimise risk
6.1 - You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
6.2 - You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
9 - Be honest and trustworthy
Personal and professional behaviour
9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

36. In respect of the Standards of Proficiency for Radiographers, the Panel did not agree with the Presenting Officer that Standard 1 was engaged. It determined that the following Standards were engaged in this matter:
2. Be able to practise within the legal and ethical boundaries of their profession
2.1 Understand the need to act in the best interests of service users at all times
2.2 Understand what is required of them by the Health and Care Professions Council
2.8 Be able to exercise a professional duty of care
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

37. The Panel was satisfied that there was a risk of harm to service users, carers and colleagues because:
a. The Registrant accepted that he purchased and drank a substantial quantity of wine on 24 February 2022 and then returned to work;
b. KO and UJ both observed a deterioration in the Registrant’s performance on 24 February 2022, which they attributed to him being unwell, having problems at home or reacting to medication;
c. The Registrant was unable to recall the events of the afternoon and was therefore highly likely to have been experiencing the influence of alcohol consumption upon his return to work after lunch.

38. The Panel then considered whether this was serious misconduct. The Panel was mindful that in the Privy Council case of Roylance v GMC (No.2) [2000] 1 AC 311 it was stated that: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

39. The Panel noted the observation of J Collins in Nandi v GMC [2004] EWHC 2317 (Admin) that: “The adjective ‘serious’ must be given its proper weight and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners.”

40. The Panel concluded that attending under the influence of alcohol did amount to serious professional misconduct. Accordingly Particular 1 was well founded on the statutory ground of misconduct.

Secondary Allegation (Particular 2)
41. Having disposed of Particular 1, the Panel turned to the outstanding secondary allegation in the distinct category of health. The Presenting Officer invited the Panel to determine Particular 2 in the light of the Practice Note in respect of handling dual allegations.

42. The Panel received advice from the Legal Assessor which reflected the content of the Practice Note that:
a. Health allegations must be addressed by Health Committees operating under the Health and Care Professions Council (Health Committee) (Procedure) Rules 2003, therefore the Panel cannot determine that the Registrant has the health condition set out at Schedule A;
b. Rule 4(1) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 allows the Panel to suspend consideration of Particular 2 and cross-refer it to the Health Committee;
c. In deciding whether to refer an allegation to the Health Committee, the factors which should be taken into account include:
i. the extent to which physical or mental health is the cause of the allegation;
ii. the overall seriousness of the allegation; and
iii. the sanctions which are available to the Health Committee, including, in particular, that striking off is not an option.
d. The case of Crabbie v GMC [2002] UKPC 45 confirmed that the power to refer to a health committee is discretionary and that in exercising that discretion, it should take into account all the circumstances of the case;
e. The discretion to cross refer an allegation is limited as a result of the findings in R (Toth)Toth v GMC [2003] EWHC 1675 (Admin), which found that a committee cannot lawfully refer to a health committee if the case is one where a sanction of erasure is likely to be required in the public interest. Only once erasure is discounted as a possible sanction will the power to transfer arise, and it is for the Panel to weigh the considerations for and against exercising that power
f. The allegation sent to the Panel by the Investigating Committee specifically limits consideration of misconduct to Particular 1 and Particular 2, as drafted, cannot be considered as misconduct, therefore Particular 2 remains undetermined.
g. If the Panel consider there is no information before it to suggest that the Registrant may have the health conditions set out at Schedule A, the Panel may be able to re-constitute itself as a Health Committee solely for the purposes of discontinuing Particular 2.
h. However, if the Panel consider that there is information which should be further considered in terms of the Registrant’s health, it should cross refer Particular 2 and 4, to a Health Committee.

43. The Panel accepted the advice of the Legal Assessor and had regard to the practice note issued by the HCPC entitled “Health Allegations” as well as the guidance note provided by the HCPC “Approach to dual allegations” and relevant legislation.

44. The Panel was mindful that the Investigating Committee considered the prospect of conduct and health and as a result approved the allegations before it. It had careful regard to the health issues in this case when considering the misconduct allegation.

45. Given the information identified above when the Panel considered the factual circumstances of Particular 1, the Panel was satisfied that there was insufficient evidence before it to determine that health was a primary factor in the misconduct it found proved. It was therefore content to progress the consideration of Particular 1 to its conclusion. At that point, the Panel would receive further submissions from the Presenting Officer as to the disposal of Particular 2.

Decision on Impairment
46. The Presenting Officer addressed the Panel, encouraging it to consider the issue of impairment in the present tense as indicated in the case of Meadows v General Medical Council [2007] 1AER 1. She reminded the Panel that the purpose of the proceedings was not to punish the Registrant but to ensure the protection of the public. In doing this, the Panel would need to look forward not back, but would need to take account of the Registrant’s past actions when determining how he is likely to act in future. The Presenting Officer drew the Panel’s attention to the Practice Note issued in respect of impairment.

47. The Panel was invited to consider the two limbs of impairment – personal and public – when considering how the Registrant acted at the time and whether his ability to practise is currently compromised. The Presenting Officer highlighted the questions the Panel should consider in reaching a decision on impairment, as outlined in the impairment practice note: whether the actions are remediable, have been remedied, and whether they are likely to be repeated. In determining the personal component of impairment, the Presenting Officer encouraged the Panel to consider the level of insight demonstrated by the Registrant. He self-referred to the HCPC and admitted his actions during the Alliance disciplinary investigation and did not hide what had happened. He also expressed remorse and recognised the steps he needed to take to address the “underlying factors” in existence. The factors had been features of the Registrant’s life for some time, which she suggested was relevant to the issue of remediation and remedial action.

48. There was no evidence of the Registrant addressing the factors impacting him in the Presenting Officer’s submission. There was also no information before the Panel as to whether the Registrant had addressed the misconduct it identified. She reminded the Panel of the Registrant’s sporadic involvement with the regulatory process and encouraged the Panel to consider these issues in relation to current impairment and the extent of remediation by the Registrant. The absence of information in respect of remediation was relevant to the Panel’s consideration of the risk of repetition, in the Presenting Officer’s submission, as attending work under the influence of alcohol was of the utmost seriousness. The Registrant was employed in a patient focused role, and his compromised state had the potential to put patients at risk.

49. In respect of the public component of impairment, as set out in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), confirmed in the case of Cohen v General Medical Council [2008] EWCH 581 (Admin), the Presenting Officer told the Panel that it was required to consider what was necessary to declare and uphold the standards of the profession, and maintain public confidence in the profession and the regulator. She observed that the conduct was a single incident, but it occurred when the Registrant was working and must therefore be decried and the seriousness marked to maintain confidence in the profession. The Presenting Officer then addressed the Panel in respect of the approach recommended by Dame Janet Smith in the Shipman enquiry, namely that the Panel should consider whether the Registrant has, or could, put patients at risk, has brought the profession into disrepute, or has breached fundamental tenets of the profession. She submitted that, based on the information before the Panel, both the personal and public components of impairment were made out in relation to the Registrant.

50. The Panel received advice from the Legal Assessor in relation to the issue of impairment, which it accepted and applied. It had regard to the practice notes to which it had been referred, particularly that entitled ‘Finding Impairment’, the submissions it received in respect of impairment and the evidence available to it. It was conscious that the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, and that this cannot be achieved without taking account of the way a person has acted or failed to act in the past. It also recognised that the purpose of the regulatory proceedings is not to punish the Registrant but to protect the public.

51. The Panel was mindful that a finding of impairment does not automatically follow a finding that a Particular has been found proved and to amount to the statutory ground of misconduct. It could properly conclude the misconduct was an isolated incident and that the chance of repetition in the future is remote. The Panel also noted the guidance in the case of Cohen v General Medical Council - that it must be highly relevant when determining impairment that the conduct leading to the allegation is remediable, has been remedied and is highly unlikely to be repeated as well as the “critically important public policy issues” identified in that case.

52. The Panel observed that the Registrant has:
a. provided no information as to his current professional or personal circumstances; and
b. offered no information as to his level of insight, remediation or remorse; and
c. not confirmed to the Panel the steps he has taken since 24 February 2022 to maintain his professional competence; and
d. failed to engage meaningfully with his regulator in respect of these proceedings to November 2023, and thereafter has failed to engage at all.

53. In the absence of the above information, the Panel is constrained to considering the self-referral, employer referral and information provided to it, which consists of:
a. a brief but prompt self-referral made on 4 March 2022 by the Registrant following the incident;
b. prompt and consistent admissions by the Registrant to his manager that he purchased and consumed alcohol before returning to work at the DDTC on 24 February 2022;
c. the explanations offered through the Registrant’s participation in the Alliance disciplinary investigation;
d. the reported expressions of remorse for his actions;
e. his recognition of the underlying factors in relation to his health.

54. The Panel consider that the misconduct identified may be capable of remediation if a registrant demonstrates willingness to address the misconduct found by the Panel. However, in the light of the Registrant failing to engage in the proceedings, and the consequent lack of current information as to his personal circumstances and health, the Panel was unable to find that the misconduct in this matter had been remediated.

55. Having carefully considered the limited information provided to it, the Panel concluded that there was a substantial risk of repetition of the behaviour. No meaningful explanation had been offered to the Panel as to why the Registrant bought and consumed alcohol and then returned to work. There was no apparent insight on the Registrant’s part as to the impact of his actions on his colleagues, or the impact upon patients. There was no evidence that the Registrant understood the extent to which his misconduct had the potential to undermine public confidence in the profession. There was however recognition of the consequences of his actions upon himself.

56. The Panel found that attending work under the influence of alcohol is a particularly concerning matter and is serious. Whilst it was mindful that the Registrant suggested his desire “not to let people down” was behind him attending work on 24 February 2022, and then returning to the DDTC having consumed alcohol, this could not be condoned by the Panel. The Panel consider it a fundamental tenet of the profession that a registrant attending work is fit to do so. Further, a registrant, as set out in the Standards of Conduct, Performance and Ethics, has a fundamental duty to ensure that they manage any adverse impact upon their practice. Attending work in an unfit state puts patients at risk and has the potential to adversely affect the colleagues he worked with personally as well as the confidence of the wider profession in him. Whilst appreciating that the Registrant’s inability to deal appropriately with his state of health on 24 February 2022 may have been due in part to his health, the Panel could not ignore the fact that the Registrant told the occupational health adviser that he remained of the opinion that he was fit to attend work on the afternoon of 24 February 2022 and that he mitigated risk to patients by having a colleague cannulate patients.

57. The Panel did not draw inferences from the Registrant’s non-attendance at the hearing but would have been greatly assisted by the ability to explore these issues with him. It found that the Registrant’s fitness to practise is currently impaired on the personal component of impairment.

58. In considering the public component of impairment, the Panel had regard to the important public policy issues, particularly the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. It considered that members of the public and members of the profession, knowing all of the facts, would be extremely concerned to learn that a registered professional attended work whilst feeling unwell and then proceeded to buy and consume alcohol on his lunch break before returning to work and exhibiting signs of impaired professional performance. The Panel determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made in the circumstances. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the private component.

Decision on Sanction
59. The Presenting Officer addressed the Panel in relation to sanction, confirming that all sanctions are available to the Panel. She referred to the Sanctions Policy adopted by the HCPC and encouraged the Panel to determine the least restrictive sanction that would afford an appropriate level of protection to the public. She reminded the Panel that the sanction imposed must be proportionate.

60. The Panel accepted the advice of the Legal Assessor and had regard to the Sanctions Policy adopted by the HCPC in addition to the evidence and submissions it received. It was mindful that each case must be determined on its own facts and merits and therefore the Sanctions Policy is not a tariff of sanctions but rather guidance issued to aid panels to make fair, consistent and transparent decisions. The Panel was aware that clear and cogent reasons should be given if it decided to depart from the guidance. It also appreciated that the purpose of fitness to practise proceedings is not to punish but to:
a. protect the public by ensuring that registered professionals practise to a minimum universal standard;
b. maintain public confidence in the regulatory process and protect the reputation of the regulated profession;

61. The sanctions available to the Panel are contained within the Health and Care Professions Order 2001 at paragraph 29(5):
a. make an order directing the Registrar to strike the person concerned off the register (a "striking-off order");
b. make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a "suspension order");
c. make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a "conditions of practice order"); or
d. caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall be not less than one year and not more than five years (a "caution order").

62. Sanctions should not punish a registrant but rather protect the public and promote the wider public interest, though they may be punitive in effect. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator by upholding proper standards of conduct and behaviour.

63. When determining the appropriate level of sanction, the Panel is expected to ensure that the sanction is proportionate to the circumstances, protects the public in the least restrictive manner and takes account of the wider public interest, striking a proper balance between the interests of the Registrant, the public and the profession.

64. The Sanctions Policy encourages panels to identify aggravating and mitigating features to aid them in making decisions on the appropriate sanction to impose. Aggravating factors are features which increase the seriousness of the concerns and are likely to lead to stronger sanctions in order to protect the public, while mitigating factors do not excuse or justify poor conduct but can indicate a reduced ongoing risk posed to patient safety and therefore reduce the severity of the sanction required. In this matter, the Panel identified the following aggravating features:
a. the Registrant was an experienced professional expected to model good practice for his colleagues;
b. attending and remaining at work under the influence of alcohol posed a serious risk to patients cared for by the Registrant;
c. the Registrant was aware of, and sought treatment for, his health conditions but still chose to attend work on 24 February 2022 and then return to work after consuming alcohol at lunchtime. His conduct was therefore attitudinal in nature.
and the following mitigating features:
a. the Registrant readily and consistently expressed remorse for his conduct on 24 February 2022 and thereafter his actions in the Alliance disciplinary process in which he appeared to have participated fully; and
b. he apologised for his conduct;
c. the misconduct related to one shift, which the Registrant eventually left early as a result of his deteriorating condition;

65. The Panel was troubled by the likelihood of the misconduct being repeated given the limited insight identified to date by the Registrant and his apparent medical history. The Registrant supplied no reflection to the Panel, no evidence of the steps he had undertaken since 2022 to address his health or maintain his professional competence, and no assurance as to how his practice had evolved since the incident. The lack of information adversely impacted upon the Panel’s ability to make a robust assessment of the Registrant’s current fitness to practise.

66. Given the Panel’s reservations as to the Registrant’s current situation and the serious nature of the misconduct identified, the Panel did not consider that it was appropriate to take no further action or issue a Caution Order. It therefore moved on to consider whether a Conditions of Practice Order would provide sufficient protection for the public given the concerns identified.

67. The purpose of a Conditions of Practice Order is to restrict a professional’s practice to protect the public while requiring them to take remedial action. Imposition of a Conditions of Practice Order means that the Panel is satisfied that the registered professional may be capable of practising safely and effectively, beyond the conditions, provided those conditions are remedial or rehabilitative in nature. The sanctions guidance provided by HCPC does however provide that conditions are most commonly applied in cases of lack of competence or ill health and are less likely to be appropriate in cases of character, attitudinal or behavioural failings.

68. The Panel considered carefully whether any conditions could be drafted in this case to adequately protect the public from the misconduct it identified. Whilst it found the misconduct to be potentially remediable, it was also attitudinal in nature. The Panel noted that paragraph 107 of the Sanctions policy provides that “Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or where there are serious or persistent failings”. It recalled that the Registrant told the occupational therapist after the incident that, notwithstanding his consumption of alcohol and subsequent return to work, he mitigated the risk by ensuring that a colleague cannulated the patients. There was no information before the Panel to suggest that the Registrant’s opinion had altered in this regard, which was of considerable concern to the Panel. The Panel was not aware of any adverse regulatory findings in respect of the Registrant, who appeared to have had a previously unblemished career. The Panel also noted that witness UJ reported the Registrant supporting him to “learn the protocols and procedures of CT” following his move to the country from the US – he said the Registrant shared his knowledge. Other than the incident in question, there was no suggestion to the Panel that there were any concerns about the Registrant’s practice as a radiographer.

69. Given all of the above, the Panel could not formulate workable conditions which it considered would adequately protect the public without being tantamount to a suspension. It also could not formulate any conditions which would sufficiently mark the serious nature of, and protect the public from, a registered professional failing to appropriately manage their conduct and health condition adequately, or at all, contrary to standards of practice set by his regulator. Accordingly, the Panel found that a Conditions of Practice Order was not an appropriate sanction to impose in this case at this time.

70. The Panel therefore proceeded to consider whether a Suspension Order would provide the appropriate level of protection to the public. It was mindful that the Sanctions Policy highlights at paragraph 121 that:
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
i. the concerns represent a serious breach of the Standards of conduct, performance and ethics;
ii. the registrant has insight;
iii. the issues are unlikely to be repeated; and
iv. there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings”

71. The Panel was conscious that the Registrant was an experienced professional with no reported previous concerns as to his conduct or performance. He appeared to be well regarded by his colleagues at the DDTC. The Panel was hopeful that he may be able to return to the profession at some point in the future, and considered that a period of suspension would afford him the opportunity to explore how this may be achieved, should he wish to do so.

72. The Panel was satisfied that the nature of the misconduct was such that the public and the wider profession would consider anything less than a Suspension Order to be insufficient. It also considered that the Registrant may benefit from some time to address his health concerns and reflect on the Panel’s findings. It was satisfied that fellow professionals, colleagues of the Registrant and the public generally would, if aware of all of the circumstances of this case, recognise that a period of suspension was appropriate and proportionate to allow the Registrant to demonstrate reflection, insight and remediation whilst ensuring that the public were protected.

73. The sanctions guidance also advocates that “It’s good practice to test the appropriateness and proportionality of a proposed sanction by considering the next sanction up against each of the limbs of the overarching objective that were found to apply at the impairment stage.” The Panel therefore considered whether a Striking Off Order was more appropriate in the circumstances. It had careful regard to the non-exhaustive list of serious cases that could warrant a Striking Off Order being made and was satisfied that such an action would be disproportionate in the circumstances of this case – the Registrant had admitted what he had done, expressed remorse, self-referred to his regulator and engaged sporadically in the proceedings. Further, he is an experienced practitioner who had previously recognised when it was appropriate for him to reduce his work responsibilities. The Panel was mindful that the sanction of removal from the register should only be imposed when no other outcome would be enough to protect the public, maintain confidence in the profession or maintain proper professional standards. In this case, protection of the public would be achieved by the imposition of a Suspension Order and the public interest would be met by a period of suspension.

74. A Suspension Order does of course have the potential to have a substantial adverse impact on the Registrant, however it had no information from him as to his circumstances and could not speculate as to what the impact of the order, if anything, would be. Further, the Panel was content that a Suspension Order was necessary and proportionate in the circumstances for the protection of the public, and this consideration would outweigh any detrimental impact upon the Registrant.

75. Having determined that a Suspension Order is the appropriate and proportionate sanction to impose, the Panel then considered the length of time that the suspension should be in place, conscious that it was in the public interest to support the return to practise of a qualified professional when this can be achieved safely. It determined that suspension for anything less than 12 months would be insufficient to mark the serious nature of the misconduct or ensure that the Registrant could genuinely address the concerns identified by the Panel. Accordingly, the appropriate length of the Suspension Order is 12 months, though of course the Registrant may request an early review of the order if desired.

76. The Panel recognises that it cannot bind or influence a future reviewing panel, however it considered that any such panel would be greatly assisted if the Registrant:
a. engages fully in the regulatory proceedings in future;
b. attends future hearings;
c. provides the following information in advance of the review hearing:
i. detailed written reflective piece focusing on:
1. his insight of, and reflection on, the standards of proficiency for radiographers and the standards of conduct, performance and ethics;
2. The impact of his conduct upon the public generally, his patients and his colleagues;
3. The risks posed by working while under the influence of alcohol
ii. information on his current health, supported by medical evidence where appropriate, which sets out the nature and extent of any ill-health as well as the treatment and prognosis;
iii. information as to his personal circumstances insofar as this impacts upon his professional practice;
iv. evidence of relevant training undertaken in contemplation of a return to the profession.

The Registrar is directed to suspend the registration of Mr Phillip F Hopkins for a period of 12 months from the date this Order comes into effect.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order
Application
1. As the Panel found that the Registrant’s fitness to practise is currently impaired, the Presenting Officer applied for an Interim Order to cover the period until the Suspension Order imposed by the Panel takes effect. She reminded the Panel that it had carefully considered all of the information available to it before finding the Registrant’s fitness to practise impaired and imposing a 12 month Suspension Order. The Panel was aware that the Suspension Order does not take effect until the 28 day appeal period has expired, and that during this time, the Registrant could potentially practise notwithstanding the Panel’s findings. The Presenting Officer urged the Panel to exercise its power under Article 31 of the Health Professions Order 2001 to impose an interim order of suspension for a period of 18 months. She referred the Panel to the provisions of the Sanctions Policy in respect of interim orders at paragraph 133, reminding it that its decision was not automatic but would need to be necessary and proportionate in the circumstances of this case. She submitted that there was limited information provided by the Registrant as to his current circumstances and therefore an interim order was required to protect the public and maintain confidence in the profession and the regulator.

Decision
2. The Panel received advice from the Legal Assessor, which it accepted and applied, and had regard to the provisions of Article 31 of the Health Professions Order 2001 and the practice notes issued by the HCPTS in relation to Interim Orders and Proceeding in Absence, as well as the provisions set out in the Sanctions Policy in respect of the imposition of interim orders following the conclusion of a substantive hearing.

3. The Panel firstly considered whether it could proceed in the continued absence of the Registrant. It observed that the notice of hearing sent to the Registrant via email and post on 14 March 2024 specifically informed the Registrant that the hearing could proceed in his absence. At the start of the hearing the Panel found this notice of hearing was properly served upon the Registrant. During the course of the hearing the Registrant had been sent the drafted decisions as they were handed down by email and was therefore aware of the progress of the hearing but chose not to engage in the proceedings. He had not requested either an adjournment or to be represented in the proceedings. The Panel remained satisfied that his attendance would be unlikely to be secured if consideration of the Interim Order application was adjourned. Further, the Panel had now, having heard all the evidence, concluded that the Registrant’s fitness to practise is currently impaired. In these circumstances, the Panel considered that it was appropriate to receive and determine the interim order application.

4. In considering the application for an interim order, the Panel reflected on the information which led it to find the Registrant’s fitness to practise is currently impaired and that an order of suspension was required to protect the public. The Panel had received no information which undermined its substantive findings and it therefore considered that it was appropriate and necessary to impose an interim order of suspension upon the Registrant to cover the period of time until the substantive order takes effect. The Panel was conscious of court delays and backlogs in determining appeals and therefore considered that the appropriate duration of the order should be 18 months. In the event that the Registrant does not appeal, the interim order will fall away after 28 days.

Discontinuance of Particular 2 (the health allegation)
Application
5. The Presenting Officer invited the Panel to consider the disposal of the outstanding Particular 2. She referred the Panel to the skeleton argument submitted on behalf of the HCPC in relation to the discontinuance of this particular, and reminded the Panel that it had accepted this particular was, as initially determined by the Investigatory Committee Panel, a secondary allegation on the grounds of health. It remained undetermined at this point.

6. The Presenting Officer submitted that it was open to the Panel to consider how this Particular should be disposed of given its findings in relation to the primary allegation. The options open to the Panel were set out within the ‘Discontinuance of Proceedings’ practice note and expanded upon in the HCPC ‘Guidance Approach to Dual Allegations’. The Panel was asked to consider the disposal of this Particular by determining whether there were any further health matters which warranted the Particular being transferred to a freshly constituted Health Committee for a further hearing and subsequent determination of it. If so, and the Panel was satisfied that proceeding in this way would not place the Registrant in double jeopardy, the Panel could cross refer Particular 2 to a Health Committee for the purpose of determining it.
7. However, if the Panel was minded to discontinue the Particular as a consequence of being satisfied that the interests of the public had been protected by its substantive finding and sanction, the Presenting Officer submitted that the Panel could transfer consideration of Particular 2 to the Health Committee and immediately reconstitute itself for the purpose of discontinuing the Particular, as set out in the HCPC guidance on cross referrals.

Decision
8. The Panel received advice from the Legal Assessor, which it accepted and applied. It had regard to the relevant practice notes and guidance provided to it and bore in mind its deliberations in respect of the primary allegation. The Panel was satisfied that its decision was appropriate to protect the public and in the public interest as:
a. Particular 1 was proved; and
b. amounted to the statutory ground of misconduct; and
c. had been disposed of by way of a Suspension Order for a period of 12 months.
The Panel had not considered the secondary allegation as it endorsed the view of the Investigating Committee that Particular 2 related to the health of the Registrant and the statutory ground of impairment of health.

9. Having concluded consideration of the primary allegation, the Panel was of the view that transferring the secondary allegation to a Health Committee for further consideration is unnecessary, disproportionate and an inappropriate use of regulatory resources. The Registrant had not assisted the HCPC to obtain health information about him, despite numerous opportunities to do so. He made no representations to his regulator in relation to his health, or indeed in respect of the conduct of the proceedings at all and he had disengaged from the regulatory process completely by November 2023. The Panel was of the view that it was unlikely the Registrant would re-engage in the regulatory process and provide access to his medical records if Particular 2 was cross referred. Even if he did re-engage, given the Panel’s finding in respect of misconduct and imposition of a sanction of suspension, the Health Committee would have no additional powers to those exercised by the Panel as a Conduct and Competence Committee. Accordingly, the Panel was satisfied that, as safety and interests of the public had been protected, it was appropriate to transfer the consideration of Particular 2 to a Health Committee for the purpose of discontinuing it and therefore draw the regulatory investigations and determinations to a close. The HCPC would then be able to work with the Registrant, if he chooses, in relation to his suspension and reintegration to the profession.

Reconstitution as Health Committee Panel.
10. The primary allegation having been concluded, the Panel reconstituted itself as a panel of the Health Committee to consider the discontinuance of the remaining health allegation.

11. The Presenting Officer submitted that it would be inappropriate to proceed with the health allegation given that the incident giving rise to the concern had been considered and determined as misconduct. The health allegation came to light as a consequence of that incident but the HCPC has been unable to secure any recent medical information as to the Registrant’s current health.

Decision
12. The Panel received advice from the Legal Assessor, which it accepted and applied. It had regard to the HCPTS Practice Note entitled ‘Discontinuance of Hearings’ (May 2023) and gave careful consideration as to whether there was a realistic prospect of a finding of current impairment of fitness to practise as a consequence of Health. It reviewed the decision of the Investigating Committee Panel which determined that conduct was the primary allegation with health being the secondary allegation and was mindful that it endorsed this position when sitting as the Conduct and Competence Committee. The Panel was satisfied that a Health Committee considering Particular 2 afresh would in all likelihood be restricted to considering the same information which was available to it.

13. Had the Registrant engaged with the regulator and provided comprehensive access to his medical records, the regulatory concerns may have proceeded with health as the primary concern, but he did not. In the circumstance, the Panel found that there is no longer a realistic prospect of establishing that the Registrant’s fitness to practise is currently impaired by reason of his health for the same reasons set out by the Conduct and Competence Panel in Paragraph 87 above. The Panel therefore decided to allow the application to discontinue the health allegation and conclude these proceedings.

Interim Order
14. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

15. 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.

History of Hearings for Phillip F Hopkins