Mr Charles P Hill

Profession: Radiographer

Registration Number: RA21950

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 04/04/2016 End: 16:00 05/04/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. Whilst registered as a Radiographer:

 

(1) On 13 December 2012, you were suspended from the HCPC Register for 12 months, following a finding by the Conduct and Competence Committee that your fitness to practise is impaired by reason of your:

(a) misconduct (as set out in appendix A); and

(b) lack of competence (as set out in appendix B);

 

(2) On 11 December 2013, you were suspended from the HCPC Register for a further 12 months by the Conduct and Competence Committee which, upon review, found that your fitness to practise continued to be impaired based upon the misconduct and tack of competence specified in paragraphs (1)(a) and (b);

 

(3) On 10th January 2015, that suspension order lapsed in error but you have not:

(a) remedied the matters set out in Appendix A and B; or

(b) provided evidence to demonstrate that you are doing, or intend to do, so.

 

2. The matters described in:

(1) paragraph 1(1)(a), when taken with the matters set out in paragraph 1(3)(a) and (b) amount to misconduct; and (2) paragraph 1(1)(b), when taken with the matters set out in paragraph 1(3)(a) and (b) amount to a lack of competence.

 

3. By reason of that misconduct and lack of competence, your fitness to practise is impaired.

Finding

Preliminary Matters:

1. The Registrant was neither present nor represented.  Accordingly, there were preliminary matters on the question of service and on proceeding in the Registrant’s absence.  On each occasion the Panel heard submissions from Ms Thompson, considered the appropriate Practice Notes, and received advice from the Legal Assessor.

Service:

2. The Panel was satisfied that proper notice of today’s Hearing had been served on the Registrant. A Notice of Hearing containing all the specified information dated 21 January 2016 had been sent by first class post to the Registrant’s registered address, notifying him of today’s date. It contained all of the details of this hearing and had been sent within the appropriate time period under the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.  In addition, the Panel was advised that the Notice of Hearing had also been sent to the Registrant by e-mail on the same day.

Proceeding in the Registrant’s Absence:

3. Ms Thompson invited the Panel to exercise its discretion to proceed in the Registrant’s absence under Rule 11. The Panel was aware that its discretion to proceed in absence was one which was to be exercised with the utmost care and caution and in the interests of justice.  The Panel noted that the last communication from the Registrant to the HCPC was a letter from him dated 12 August 2015 in which he stated that since the expiration of his earlier suspension he had taken early retirement, although he might consider returning to practise as a Radiographer in the future. He advised that he had not worked since his suspension, but he had been “keeping up to date” by the means of “online tutorials” and a separate course of study in electronics and micro-electronics. He had also researched “material for a publication”. He went on to maintain that he wanted to continue with a conversion course in Radiography which would update his skills and knowledge. No corroborative evidence had accompanied that letter. 

4. The Panel further noted that there had been no response to the notice of hearing and also noted that no application had been made by the Registrant to adjourn the hearing. The Panel also observed that the Registrant had not attended the previous hearing when his original order was reviewed on 11 December 2013, but that he had sent in written representations, however nothing in relation to this hearing. The Panel therefore concluded that there was no reason to believe that the Registrant would attend any adjourned hearing and that he had chosen to absent himself from today’s hearing. It considered that these matters should be concluded without delay and, accordingly, the Panel decided to proceed in the Registrant’s absence, as it was satisfied that it was in the public interest to do so.

Background  

5. The Registrant was employed by Norfolk and Norwich University Hospitals NHS Trust (the “Trust”) as a Band 5/6 Radiographer from 13 December 2010. During the period in question, concerns about his standard of practice were raised by members of the Radiography team. Following an internal investigation in April 2011, a thorough induction programme was recommended and the Registrant was also issued with a 12 month Final Written Warning. On 7 November 2011 the Trust terminated the Registrant's employment due to incapacity.  On 11 to 13 December 2012 a Panel of the HCPC sat to hear the particulars against the Registrant and found the following allegations proved: 

“1. Did not demonstrate appropriate knowledge in several key areas, in particular;
(a) Diagnostic value of radiographic images;
(b) Standard radiographic views…
(d) Radiographic technique;
(e) Adapting techniques appropriately to suit the patient…
(g) Positioning of patients for radiographic examinations;
(h)Appropriate handling of trauma patients;
(i) Moving I positioning of radiographic equipment;

2. On a number of occasions, produced radiographic images of poor quality;

3. As a  result  of  2  above, compromised  patient  safety in that images  had  to  be repeated, exposing patients to elevated radiation levels;

4. were unable to remember key information;

5. were unable to practise without supervision;

6. failed to ask for assistance when you needed it;

7. failed to follow or carry out instructions;

8. failed to act on advice from senior staff…”

6. That Panel, on 13 December 2012 also found a number of particulars not proved.

7. That Panel found misconduct in respect of the particulars set out in 6 and 7 of paragraph 5 above. The misconduct related to the Registrant's repeated and reckless failures to seek assistance and his deliberate failure to follow or carry out instructions, all of which put patients at risk.

8. That Panel also decided that the Registrant fell below the minimum acceptable level of proficiency in professional service in respect of the particulars at 1a, 1b, 1d, 1e, 1g, 1h, 1i, 2, 3, 5 and 8 of paragraph 5 above, and therefore decided that these particulars constituted lack of competence.

9. That Panel also found that the Registrant's fitness to practise was impaired by reason of his misconduct and lack of competence. That Panel decided that impairment was well founded on personal as well as public policy grounds. As part of that Panel’s reasoning, it was found that the Registrant had displayed a profound lack of insight into his significant failings, which had occurred over a short period of time. It further found that the Registrant had taken no adequate steps to remedy the deficiencies arising from the allegation, and accordingly imposed a suspension order for a period of 12 months. In addition, that Panel suggested that the reviewing Panel would be assisted by evidence of the Registrant’s reflection and insight into the “serious deficiencies which have been identified”. 

10. That order was reviewed on 11 December 2013.  The Registrant did not attend but did send in written representations which stated that he had been re-educating himself and that his GP was now closely monitoring his health condition (the HCPC having accepted that he had such a condition). However, the reviewing Panel noted that no corroborative evidence had been provided by him or any independent assessment of his current clinical skills had been carried out. The reviewing Panel therefore concluded that the Registrant continued to demonstrate a lack of insight into his deficiencies in relation to “core skills and standards” and found that he remained impaired by reason of his misconduct and lack of competence.

11. That Panel went on to consider Sanction. It declared that it was initially attracted to the submission that, having regard to the Registrant’s failure to take verifiable steps to remedy his failings, the only appropriate course was to impose a striking-off order on the basis of his impairment by misconduct. The reviewing Panel noted that the earlier Panel had regarded the Registrant’s misconduct as being reckless and endangering patient safety and that it would have been open to that Panel to have imposed a striking off order irrespective of the other allegations of lack of competence. However, due to the fact that it considered that the notice of hearing did not make it sufficiently clear that a striking off option was available to it, that reviewing Panel decided to re-impose a suspension order for a further 12 months. This would give the Registrant the opportunity to demonstrate: that he had taken steps to address his deficiencies in clinical practice; that such was corroborated by independent evidence; and that he had attended a return to practice programme as he stated was his intention.  However, that Panel also emphasised that any future reviewing Panel would have the power to strike off the Registrant not only on the basis of his misconduct but also because of his lack of competence should his failings not be remedied.

Decision on Facts

12. In considering this case today, the Panel bore in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the evidence presented to it, namely the written evidence of the HCPC’s Case Officer, Witness 1, together with the documentary evidence provided by the HCPC. It has also considered the submissions of Ms Thompson, and has accepted the advice of the Legal Assessor.

13. The Panel accepted the evidence of the HCPC’s Case Officer, Witness 1. The Panel noted that, although the witness had not appeared before it, and therefore that his evidence was hearsay, that evidence had not been challenged by the Registrant and was corroborated by documentary evidence in the form of the previous determinations of the Panels on 13 December 2012 and 11 December 2013, together with copies of the relevant correspondence between the parties. Moreover, the Panel could find no discrepancies or unexplained anomalies in the evidence before it.  In addition, there was no evidence from the Registrant to set against that provided by the HCPC.

14. Accordingly, the Panel concluded that all the allegations set out in particulars 1 (1) (a) and (b); 1 (2) and 1 (3) (a) and (b), as set out above, had been proved to the required standard by the HCPC.  In particular:

1 Whilst registered as a Radiographer:
(1) On 13 December 2012, you were suspended from the HCPC Register for 12 months, following a finding by the Conduct and Competence Committee that your fitness to practise is impaired by reason of your:
(a) Misconduct (as set out in appendix A); and
(b) Lack of competence (as set out in appendix B);

Found Proved
The Panel relied upon the determination of the HCPC’s Panel dated 13 December 2012 which made the findings detailed above.
(2) On 11 December 2013, you were suspended from the HCPC Register for a further 12 months by the Conduct and Competence Committee which, upon review, found that your fitness to practise continued to be impaired based upon the misconduct and lack of competence specified in paragraphs 1 (a) and (b);

Found Proved
The Panel relied upon the determination of the HCPC’s Panel dated 11 December 2013 which made the findings detailed above.
(3) On 10 January 2015, the suspension order lapsed in error but you have not:
(a) Remedied the matters set out in Appendix A and B; or
(b) Provided evidence to demonstrate that you are doing, or intend to do, so.

Found Proved
15. The Panel noted the Registrant’s lack of engagement and the fact that he had failed to take the opportunities provided to him, both in December 2013 and today, to provide evidence that he had remedied his failings. On the basis of such non-engagement, and noting that the Registrant had failed to provide any evidence on this occasion (which automatically proved allegation 3(b)) the Panel considered that it was more likely than not that he had not remedied the matters detailed in allegation (3)(a).

Decision on grounds and impairment

16. Having found the above facts proved in this matter, the Panel went on to consider whether the facts found proved, individually or collectively, amounted either to misconduct or to a lack of competence and if so, whether his fitness to practise was currently impaired. The Panel took account of the HCPC Practice Notes entitled “Fitness to Practise, What does it Mean” and “Finding that Fitness to Practise is Impaired”. The Panel noted that misconduct must be serious and amount to a Registrant falling far below the standards expected of a Registered Radiographer.       As for lack of competence, the Panel noted that this can be described as a standard of professional performance which is unacceptably low and which, (save in exceptional circumstances), had been demonstrated by reference to a fair sample of a Registrant’s work. The benchmark by which to gauge impairment was the standard required of a competent Registered Radiographer.

17. The Panel also noted the Legal Assessor’s advice which was that it would be entitled to rely upon the findings of the previous Panels on 13 December 2012 and 11 December 2013, and use them as the starting points, and therefore would be entitled to presume misconduct, lack of competence and impairment and see whether there had been any changes in the Registrant’s situation since.  Today’s Panel was then to decide whether his fitness to practise remained impaired as a result of that misconduct and/or lack of competence and to focus on the question of whether his fitness to practise is, as of today, impaired. 

18. The Panel has accepted that advice.  It notes in particular that two previous Panels found that the Registrant’s fitness to practise was impaired on both the ground of misconduct and also the ground of lack of competence. In addition, the Registrant has not only failed to engage with the HCPC in any meaningful way since December 2013 (and not at all since August 2015) but has also failed to provide any evidence that he has either reflected on his failings or remedied them.  Accordingly the Panel is left with little option but to conclude that the Registrant’s fitness to practise remains impaired at a basic and fundamental level on both grounds, namely of Misconduct and of Lack of Competence.    

The Panel therefore finds allegations 2 and 3 set out below Proved
 
2 The matters described in:
(3) Paragraph 1 (1) (a), when taken with the matters set out in paragraph 1 (3) (a) and (b) amount to misconduct; and
(4) Paragraph 1 (1) (b), when taken with the matters set out in paragraph 1 (3) (a) and (b) amount to a lack of competence.
3 By reason of that misconduct and lack of competence, your fitness to practise is impaired.

Decision on Sanction:

19. In reaching its decision on sanction the Panel has taken account of the Indicative Sanctions Policy document (“the Policy”) dated September 2015 (appreciating that it is a guide and no more) and the advice of the Legal Assessor, which it has accepted.  The Panel is mindful that the purpose of sanctions is not to be punitive, although they may have that effect.  It appreciates that the primary purpose of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who use or need his or her services. It notes, however, that in reaching their decisions, panels must also give appropriate weight to the wider public interest, which includes: the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process.  In addition, the Panel notes that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the registrant.

20. The Panel has also taken account of the submissions of Ms Thompson. It appreciated that it was not bound by the decisions or the opinions of previous panels.

21. In deciding what sanction, if any, to apply, the Panel has taken account of the following mitigating factor: the fact that the Registrant had a long and unblemished career as a Radiographer prior to 2012. 

22. However, the Panel also notes the aggravating features and in particular: the fact that there were serious and wide-ranging failings which risked harm to service users; the Registrant’s persistent failure to engage with these proceedings and with the HCPC; his failure to provide any evidence that he has reflected upon his basic and fundamental failings; his apparent complete lack of insight into his actions; and his lack of remediation despite being given, in the words of Ms Thompson, “more than ample opportunity” to do so.

23. The Panel first considered the sanction of mediation and noted that it was recommended in cases where the only other appropriate course was to take no action.  In the circumstances of this case, which involved not only misconduct but also a lack of competence and no discernible insight, the panel decided that such a sanction was inappropriate.

24. The Panel next considered a Caution Order, which is deemed to be appropriate “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...A caution order is unlikely to be appropriate in cases where the registrant lacks insight.” The Panel felt that, in the absence of any demonstration of insight into his failings, such a sanction would be insufficient to address the Panel’s concerns and to provide adequate reassurance to the public.

25. The Panel then considered the next most onerous sanction, that of a Conditions of Practice Order. It noted that
 “Conditions of practice will be most appropriate where a failure or deficiency is    capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm.”  

26. Moreover, the Panel observed that the Policy stated
 “Before imposing conditions a Panel should be satisfied that:
• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.”

27. In addition, the Policy continues:
 “The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:
• where there are serious or persistent overall failings;
• the registrant lacks insight or denies any wrongdoing; or
• involving dishonesty, breach of trust or the abuse of service users.”

28. The Panel considered that, although there were issues which were capable of correction with further training, the Registrant had been given two opportunities to demonstrate that he was willing and capable of remediating his failings (for which he had not provided any evidence) and further observed that such a sanction was unlikely to be suitable where a Registrant lacked insight, as is the case here. In addition, the Registrant had already demonstrated a lack of engagement with these proceedings and with the HCPC so the Panel had considerable doubts about whether he would be committed to such a sanction. Accordingly, the Panel could think of no conditions which would be proportionate, realistic or workable.

29. The panel next considered imposing a Suspension Order. It noted that Suspension:
“should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”

30. In addition,
If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.

31. The Panel noted that such a sanction might enable the Registrant to reflect further upon his practice and demonstrate that he had done so by, for instance, providing a reviewing panel with a reflective piece and any other evidence that he had developed insight into his failings and had set about remediating them. However, the Panel took account of the fact that he had already been made the subject of two suspension orders but had failed to engage fully with the review process or with this Panel. He had not provided any evidence that he had used the time given to him to reflect upon his significant and basic failings, develop any insight or improve his skills.  Consequently, the Panel believed that giving the Registrant additional time to reflect would not be of any benefit to him and doubted that it would enable him to address his failings. 

32. The Panel next considered a Striking Off Order. It noted that the Policy stated:


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

Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.”

33. The Panel is extremely concerned about the persistent nature of the Registrant’s non-engagement and lack of commitment to a process designed to enable him to address his failings and to remedy and improve his practice. His failings continue to be present and, in the Panel’s opinion, his persistent non-engagement demonstrates an unwillingness or inability to resolve matters. 

34. The Panel therefore considers that there is no other way to protect the public or to bolster confidence in the profession or the regulatory process other than making a striking off order. This is a registrant who has been given ample opportunities to address his basic and fundamental failings and who apparently still does not, and is on the evidence before the Panel unlikely to, appreciate fully the true extent of his deficiencies. The Panel is also mindful that a lesser sanction would not act as a deterrent in the particular circumstances of this case given the persistent lack of engagement.

35. The Panel appreciates that a striking off order will deprive the Registrant of the ability to work as a Registered Radiographer but notes that his commitment to the profession is not readily apparent. The Panel has reminded itself that it must act proportionately, which requires it to strike a balance between the interests of the public and those of the registrant, but in this case considers that the persistent nature of the Registrant’s inability and unwillingness to address his failings, coupled with his lack of any apparent insight and the ability to develop such, means that the interests of the public outweigh those of the Registrant on this occasion.

Order

That the Registrar is directed to strike the name of Mr Charles P Hill from the Register on the date this order comes into effect.

Notes

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 Mr Charles P Hill

Date Panel Hearing type Outcomes / Status
04/04/2016 Conduct and Competence Committee Final Hearing Struck off