Victoria J Allen
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By reason of your physical health, your fitness to practise as a Radiographer is impaired.
1. The HCPC sent a Notice of Hearing to the Registrant’s registered address on 19 January 2016. The notice set out all the relevant information about today’s proceedings. The Panel was therefore satisfied that service had been effected in accordance with the Rules.
Proceeding in absence
2. Mr Mansell applied for the hearing to proceed in the Registrant’s absence. He referred the Panel to an attendance note dated 31 March 2016 from Kingsley Napley solicitors which recorded the Registrant as saying that she would not be attending this hearing. He submitted that the Registrant has not applied for an adjournment and there is therefore nothing to indicate that she would be likely to attend if the matter were to be adjourned.
3. The Panel had regard to the HCPC Practice Note on proceeding in absence and it has also accepted the advice of the Legal Assessor. The Legal Assessor referred the Panel to the Court of Appeal case of GMC v Adeogba  EWCA civ 162.
4. The Panel considered that it is appropriate to proceed in the absence of the Registrant in the particular circumstances of this case. The Panel considered that the HCPC represents the public interest in relation to standards of healthcare. It noted the comments of Sir Brian Leveson in the case of Adeogba:
“It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.
Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
5. The Registrant has partially engaged with the HCPC investigation. She stated on 31 March 2016 to Kingsley Napley solicitors for the HCPC, that she would not be attending this hearing. She explained that she had just moved house and had been extremely busy. The Panel concluded that the Registrant has voluntarily absented herself from these proceedings today. The Panel also noted that there are witnesses present today and it would be in the interest of justice and fair to proceed with the hearing.
Hearing in Private
6. Mr Mansell applied for the hearing to be held in private on the grounds that this was necessary to protect the Registrant’s private life. The Panel had regard to the HCPC Practice Note on proceeding in private and it accepted the advice of the Legal Assessor.
7. The particular circumstances of this case concern the Registrant’s health. In those circumstances the Panel has determined that the hearing should be held in private and that it would be inappropriate for such matters to be heard in public. As such this is a redacted version of a private decision.
8. The Registrant commenced employment as a Band 5 Therapeutic Radiographer at Norfolk and Norwich University Hospital Foundation Trust (the Trust) on 06 September 2004. On 01 February 2008 the Registrant became a Senior Therapeutic Radiographer. Her role involved supervising junior radiographers and students, as well as planning and treating patients with radiotherapy. At this stage she was a Band 6 Radiographer.
9. The Registrant’s employers had a number of concerns about how the Registrant’s ill-health was affecting her ability to practise.
10. The Registrant’s contract was terminated by the Trust on 17 February 2014.
Decision on facts/grounds
11. In coming to its decision on facts the Panel had regard to all the evidence both oral and documentary. It was reminded that it is for the HCPC to prove its case and that there was no burden on the Registrant to prove anything. The standard of proof applied when considering whether the allegations are made out is that of the balance of probabilities i.e. whether it is more likely than not to have occurred.
12. The Panel took into account the submissions made on behalf of the HCPC and the limited submissions of the Registrant. It had regard to the advice of the Legal Assessor.
13. The Panel heard oral evidence from the following witnesses on behalf of the council:
• MG- Registrant’s Line Manager at the Trust from 2011
• Two expert witnesses
• The Panel also read the statement of KM - Legal Assistant from Kingsley Napley LLP
14. The Panel accepted the evidence of MG.
15. The Trust took steps to assist the Registrant in her work, appointing mentors to help her regain her competences. The Registrant’s hours were reduced at her request to 18.5 hours per week on 04 October 2011. In January 2013 they were further reduced to 9.25 hours over two days as part of a phased return to work following a further period of long term sick leave. Redeployment was also discussed, but this was not an approach the Registrant wished to take.
16. The Panel took into account the evidence of the two experts. The Registrant refused to be examined by either expert so their reports were produced with reference to the Registrant’s medical notes. These reports dated May and April 2015 respectively were considered by the Panel.
Decision on impairment
17. On the basis of the Registrant’s health condition the Panel went on to consider whether that health condition impaired the Registrant’s fitness to practise. It took into account the submissions made on behalf of the HCPC, the limited responses from the Registrant and it had regard to the advice of the Legal Assessor.
18. The Panel has taken into account that the purpose of these proceedings is not to punish the Registrant but to protect the public against those who are not currently fit to practise.
19. In approaching its task the Panel applied its own professional judgement. The Panel had regard to the HCPC Health and Character Declarations Policy. The Panel also took into account the need to consider the public interest which includes protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.
20. It is apparent from the background to this case that the extent of the Registrant’s sickness absence was significant. This is evidenced in MG’s Management Statement of Case presented to the Trust in February 2014. In particular there were increasingly lengthy periods of sickness absence, including from 2010 - 2013 periods of 107, 196, and 171 days. It is noticeable that there were 23 referrals to Occupational Health Department between August 2005 and November 2013. The Trust sought to implement strategies to assist the Registrant however, her employment was eventually terminated on the grounds of incapability due to ill health.
21. There was no up to date medical evidence before the Panel. The evidence of MG was that when she was provided with products, she did not use them and this evidence was supported by both experts who found that she did not sustain either the use of products or medication to assist her.
22. There is evidence that the Trust sought to make reasonable adjustments for the Registrant such as reducing her work hours.
23. There is no evidence that the Registrant has practised autonomously since 2013.
24. Further there has been a lack of engagement from the Registrant in this process in that the HCPC made numerous efforts to enable the Registrant to be assessed by the experts. On a number of occasions she gave different excuses as to why she could not meet the experts. In particular the Panel noted that in a telephone conversation with KM a Legal Assistant with Kingsley Napley on 25 March 2015 the Registrant is quoted as having said “she did not want to attend an assessment at this time and she thought the whole thing was ridiculous”. The Panel therefore remained concerned as to the Registrant’s level of insight into the impact of her health condition on her fitness to practise.
25. Further there is evidence that the Registrant fainted in front of patients, was unable to correctly position a patient and could not perform clinical and administrative tasks accurately. The Panel found that the Registrant’s health problems had adversely affected her ability to practise as a Radiographer as no current medical evidence was presented, the Panel concluded that these health problems remained. In all the circumstances of this case bearing in mind the critically important public policy issues the Panel considered that a finding of current impairment was necessary to protect patients, maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour.
26. In conclusion the Panel considered that the Registrant’s fitness to practise is currently impaired by reason of her physical health. Accordingly the allegation brought by the HCPC is well founded.
Decision on Sanction
27. Having determined that the Registrant’s fitness to practise is impaired by reason of her health the Panel next considered what, if any, sanction was necessary. In doing so the Panel took into account all the circumstances of the case. It had regard to the submissions on behalf of the Council and the Registrant submissions that could be gleaned from various documents. The Panel had regard to the HCPC ‘Indicative Sanctions Policy’. It accepted the advice of the Legal Assessor.
28. It is recorded in an attendance note by Kingsley Napley dated 25 March 2015 that the Registrant said “she is not currently practising and she did not anticipate practising in the next couple of years”. The Panel remains concerned as to the Registrant’s lack of insight into the impact that her health condition has on her fitness to practise. It was also a concern of the Panel that the Registrant refused to be examined by the HCPC’s medical examiners whose role was to assess whether she is safe to practise.
29. The Panel considered the available sanctions in ascending order of seriousness.
30. The Panel was satisfied that in view of the seriousness of her health condition, to take no further action, or to impose a Caution Order would be both inappropriate and insufficient to afford the necessary degree of protection to the public as neither would restrict the Registrant’s ability to practise.
31. The Panel next considered a Conditions of Practice Order. Whilst it may have been possible to formulate Conditions of Practice in this case, in the absence of up to date medical evidence or any submissions from the Registrant as to how she could practise with her health condition such an order would not be practicable. There is no evidence before the Panel as to the extent if any that the Registrant has kept her CPD up to date or that she would be willing to comply with such an order. In all the circumstances the Panel could not formulate appropriate, realistic or verifiable conditions that would be practicable in all the circumstances of this case.
32. In such circumstances the Panel considered that the only appropriate and proportionate order was one of suspension.
33. The Panel decided to impose a Suspension Order for a period of 12 months. Such an order will enable the Registrant to gain insight into her health condition and how it impacts upon her fitness to practise. The Panel also considered that this order could facilitate a staged return to practice for the Registrant if she were to engage in the regulatory process and demonstrate that she has taken appropriate steps to manage her health condition.
34. Whist this Panel cannot expect or compel the Registrant to attend any future reviewing panel, it may assist her case if she were to do so.
35. Before the expiry of this order it will be reviewed. The reviewing panel may be assisted by the following:-
• up to date medical evidence from her GP or other medical professionals;
• references or testimonials from anyone who has employed the Registrant, or for whom she has worked, whether in a paid or unpaid capacity, since the date of this Order; and
• evidence that the Registrant has kept her knowledge and skills up to date.