Kenneth R Hall

Profession: Radiographer

Registration Number: RA63897

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 05/12/2016 End: 17:00 08/12/2016

Location: etc.venues, Maple House, 150 Corporation Street, Birmingham, B4 6TB

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

While employed as a Radiographer at Worcestershire Acute Hospitals NHS Trust (WAHT), you:

 

1. Between March 2014 and July 2014, worked at Nuffield Hospital in Wolverhampton while receiving paid sick leave from your employment with WAHT on the following dates:

 

a. 17 March 2014;

b. 27 May 2014;

c. 28 May 2014;

d. 24 July 2014.

 

2. Your actions described in paragraph 1 were dishonest.

 

3. The matters described in paragraphs 1 and 2 constitute misconduct.

 

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

Finding

Preliminary matters
1. The case for the Health and Care Professions Council was presented by Ms Hannah Eales of Kingsley Napley. The Registrant was present and represented by Ms Soraya Pascoe of Counsel. The Registrant admitted the facts of Particulars 1 (a) to (d) and denied Particulars 2, 3 and 4.

Background
2. The Registrant was employed as a Radiographer at Worcestershire Acute Hospitals NHS (WAHT) from 1 June 2013 and it is alleged that between March 2014 and July 2014 he worked at Nuffield Hospital in Wolverhampton while receiving paid sick leave from his employment with WAHT on the 17 March 2014, 27 May 2014, 28 May 2014 and 24 July 2014.

Decision on facts
3. The Panel heard oral evidence from two witnesses on behalf of the HCPC:  Witness 1, Head of Anti-Fraud Services for CW Audit Services and Witness 2 Business Manager of Occupational Health and Wellbeing Services at the Working Well Centre of Worcestershire Acute Hospitals NHS Trust (WAHT). The Panel considered the statement of Witness 3. The Panel also heard evidence from the Registrant.

4. The Panel found Witness 1 conducted a straightforward and professional investigation and was clearly independent in terms of his approach. The Panel found that the material he produced was reliable and found him to be a credible witness. The Panel also found Witness 2 to be a credible and reliable witness, although her evidence was very limited in its scope and related mainly to her search of the Occupational Health Department records to establish if there was any reference to the Registrant’s work with the Nuffield Hospital.

5. The Panel did not find the Registrant to be credible or reliable in his evidence. The Panel found that he was evasive and found much of his evidence to be inherently improbable. The Panel found him to be evasive in his continual denials of any responsibility for material which, on the face of it, came from him, including the New Starter Information Form, which although completed by his line manager, would have been completed on the basis of information provided by the Registrant himself; and the self-certification form in relation to his absence on 17 March 2014 which he stated was inaccurately completed by his line manager but was subsequently signed by the Registrant. The Panel found it to be very unlikely that he would have colluded with his line manager to make a false record of the reason for his sickness if, as he claimed, he was being bullied and harassed by his managers for challenging practices in the department. The Panel did not believe the Registrant’s explanation that he told his line manager that he was “stressed out and sick to the stomach” so then she put down that he had an upset stomach. In the Panel’s view it was much more likely that he simply reported that he had an upset stomach.  

6. The Panel also finds that the Registrant’s explanation in relation to his working at the Nuffield Hospital on that occasion to be wholly incredible. He has advised that he called in sick to his line manager at 7.10am on 17 March 2014. He claimed that he did not expect to be working at Nuffield Hospital that day but having called in possibly to sign a timesheet, was asked to work and did so from 8.30am to 5pm. The Panel found that the Registrant’s explanation lacked any credibility.

7. Accordingly, where the Registrant’s evidence has conflicted with apparently reliable documentary evidence the Panel has preferred that documentary evidence.

Particular 1(a) – (d)
8. The Panel heard evidence from Witness 1 and Witness 2 in support of this allegation and had sight of the extracts from the Nuffield Payroll System, the Registrant’s Self Certification Forms and WAHT weekly Rotas. In addition, the Registrant has admitted that he worked at the Nuffield Hospital, Wolverhampton on the four dates contained within the allegation while he was receiving paid sick leave from his employment with WAHT. In her closing submissions, Ms Pascoe made reference to a discrepancy in the table produced by Witness 1 in relation to 28 May 2014 in that one column records that the Registrant would have had a day off and another column states that he was due to work from 9am to 5pm. This point wasn’t put to the Witness. However this date fell within a period of sickness absence running from 23 May 2014 to 1 August 2014 and the Registrant remained on sick leave throughout this period and this was paid sick leave. The Panel is therefore of the view that the Registrant’s admissions are supported by the evidence and documentation produced by the HCPC and the Panel is satisfied that the facts of Particulars 1(a) to (d) are proved to the requisite standard. 

Particular 2
9. The Panel next considered the issue of dishonesty and has applied the two stage test. The Panel has first considered whether what was done was dishonest by the standards of reasonable and honest radiographers and then if the Registrant in fact realised that by those standards what he was doing was dishonest. The Panel has found that a radiographer working for a private hospital, having self-certified that he was unfit to work for his NHS employers and being paid occupational sick pay by his NHS employers would be considered dishonest by the standards of reasonable and honest radiographers who, by virtue of their profession, are bound to act with integrity and honesty. The Panel considered that the first stage, objective test, has therefore been met.

10. The Panel next considered whether the Registrant in fact realised that what he was doing was dishonest by those standards.  The Panel has heard evidence from the Registrant that he was being bullied and victimised by his managers as a result of having raised concerns about practices at the hospital and that this resulted in him being off work suffering from stress. The Registrant has also advised that he was told by his own GP and by Dr E, from Occupational Health that he was permitted to work for another hospital while he was off sick.

11. The Panel has had sight of a letter dated 14 August 2014 from the Registrant’s GP Practice in which it is confirmed that the Registrant had been consulting with Dr Z over stress related to issues at work and that Dr Z had discussed with the Registrant the prospect of him working a few hours outside of his NHS job, as he had always done a few hours for the private sector. It is confirmed that Dr Z said that this would be acceptable, although a subsequent letter dated 10 November 2014 states “it is my understanding from the patient that he was advised that he may be able to continue to do his part-time job, although I am not able to confirm this, but indeed this is not a matter that we, as medical practitioners, are qualified to give advice on”. The subsequent letter noted that the earlier letter had been written at the Registrant’s request and at a time when Dr Z was away. It appeared to the Panel that the content of the letters reflected what the author had been told by the Registrant. The Panel also noted that each of the three “Statement of Fitness for Work Certificates” from his GP Practice covering the whole period 29 May 2014 to 1 August 2014 stated unequivocally “you are not fit for work”.

12. The Panel has also had sight of a statement from Dr E, the Lead Consultant in Occupational Health at WAHT, dated 1 April 2015, in which he states that he did not advise the Registrant that he could continue to work for his secondary employer and that the reason he was so certain of this fact was because he was not aware that the Registrant had any additional employment. The Panel has also accepted the evidence of Witness 2, that Dr E used to make extensive notes and that she could not find any record on the COHORT System, where all of the Occupational Health Records were kept, making reference to the Registrant working for anybody else. The Panel has also considered the Occupational Health Report dated 25 June 2014 produced by Dr E. This is a detailed report and makes no reference to the Registrant working at Nuffield Hospital or any advice given to the Registrant in this regard. In this respect it is notable that by the time of this appointment the Registrant had already worked at the Nuffield Hospital on three occasions whilst off sick.

13. The Panel does not accept that Dr E told the Registrant that he was permitted to work for Nuffield Hospital while he was on sick leave. The Registrant has suggested that in his view, Dr E is now “backtracking” in his statement of 1 April 2015. The Panel finds that it is inherently improbable that Dr E would deny having told the Registrant that he could work for Nuffield Hospital, if that was the case. In any event, regardless of what the Registrant claims he was told by his GP or by Occupational Health, the Panel has had sight of the Trust Policy from which it is clear that it is not normally permitted for an employee to work while off sick, and if an employee does so, authorisation must be sought from their line manager in advance on each occasion and the Registrant has not done so. The Panel does not consider it credible that anyone in the Registrant’s position would think it was acceptable to work for another employer whilst on sick leave without permission from their line manager.

14. The Registrant has claimed that the WAHT should have been aware that he was working for the Nuffield Hospital through his National Insurance Number, his tax code and through monitoring of his radiation exposure, but it was not clear how any of these would have alerted his managers. The Panel’s attention was also drawn to two electronically generated application forms. However in the absence of any clarity as to what they related to or the dates on which they were created the Panel could draw no relevant inferences from them.

15.  The Registrant has admitted, at the outset of this hearing that he was working for Nuffield Hospital on the four dates alleged when he was on paid sick leave from WAHT. However in his live evidence, again he was evasive about whether or not he knew that he was being paid by WAHT at that time. He also stated clearly that if he knew he was being paid by WAHT during his sick leave, he would not have worked at Nuffield Hospital. This demonstrates to the Panel that the Registrant in fact realised that this would be dishonest and the Panel is therefore satisfied that the subjective test for dishonesty has been met. The Panel has therefore found that the Registrant’s actions in Particulars 1(a) to 1(d) were dishonest.

Decision on grounds
16. The Panel next considered whether the Registrant’s actions in Particulars 1 and 2 amount to misconduct. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has also considered the advice of the Legal Assessor. The Panel has found that the Registrant has worked for another hospital while on paid sick leave from his main employer and did so dishonestly and for financial gain.  The Panel is of the view that the Registrant’s conduct in Particulars 1 and 2 fell far short of what would be proper in the circumstances and breached the following standards of the HCPC’s Standards of Conduct, Performance and Ethics in force at the relevant time :-
• Standard 3 – You must keep high standards of personal conduct.
• Standard 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

17. The Panel considers that honesty is one of the fundamental tenets of the profession, particularly for Registrants who are in a position of trust and dealing with vulnerable patients. The Registrant’s conduct was serious and fell well below the standards expected of a registered health professional. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in Particulars 1 and 2 amounts to misconduct. 

Decision on impairment
18. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that misconduct. In reaching its decision the Panel has considered both the personal component and the public component and the advice of the Legal Assessor.

19.  In terms of the personal component, the Panel has heard evidence from the Registrant that he does not accept that he has acted dishonestly and that he did not believe that what he did was wrong.  The Panel therefore considers that the Registrant has not demonstrated any insight into or remorse for his actions and denies any personal responsibility, continuing to blame other professionals. In the absence of any insight it is the Panel’s view that there must be a real risk of repetition of misconduct of this nature.

20. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.

21. The Panel has found that the Registrant has worked at a private hospital while receiving paid sick leave from his NHS Employer and has done so dishonestly and for financial gain. The Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession of radiographers and in the regulatory process, if a finding of impairment were not made in these circumstances.

22. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by his misconduct and the allegation is well founded.
 
Decision on sanction
23. The Panel has heard further submissions from Ms Eales and Ms Pascoe on the issue of sanction. The Panel has also heard further evidence for the Registrant in relation to the issue of sanction.  In that evidence the Registrant apologised for his behaviour and accepted that his conduct and standards had fallen at that time. He advised the Panel that he had reflected on the Panel’s findings and that he now fully understood the importance of acting with honesty and integrity.  He explained the issues had arisen at a time when he had personal difficulties as a result of the pressure he was under at WAHT. He advised that he had not had any issues prior to his period of employment at WAHT or since then. He stated that his current employers were fully aware of this issue and of the issues which led to the imposition of the Conditions of Practice Order and were fully supportive of him. The Panel has been provided with an email from his current employer confirming his employment with them since 1 September 2014.

24. The Panel is aware that the function of fitness to practise panels is not punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing his services in the future. In reaching its decision, the Panel must also give appropriate weight to the wider public interest considerations, which include the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.  The Panel has considered the sanctions available to it in ascending order of severity and has had regard to the HCPC’s Indicative Sanctions Policy and considered the advice of the legal assessor. The Panel has also considered the submissions of the HCPC and the Registrant’s submissions.

25. The Panel has paid careful regard to the following mitigating factors:-
• The Registrant has fully engaged in the process.
• The allegation is somewhat historical and is limited to four occasions over a relatively short period during which the evidence suggests that the Registrant was working in an environment he found challenging in terms of relationships with colleagues. 

26. The Panel has also considered the aggravating factors as follows:
• There has been a previous regulatory finding of misconduct against him, albeit it did not involve dishonesty.
• Dishonesty of itself is always a very serious matter
• There is a continued lack of insight.
• The Registrant only acknowledged his responsibility for his own behaviour after he had read this Panel’s decision on impairment.

27. The Panel first considered whether to take no further action. It is of the view that this would not be sufficient to protect the public or to address the wider public interest considerations given the risk of repetition and the seriousness of the Registrant’s conduct, involving dishonesty.

28. The Panel next considered a Caution Order. In terms of the Indicative Sanctions Policy, a caution may be appropriate where the lapse is isolated or of a minor nature, there is a low risk of recurrence and the Registrant has shown insight and taken remedial action. The Registrant has not demonstrated insight and in the absence of evidence of remediation, there is a risk of repetition. In addition the Panel is of the view that a caution would be insufficient to address the critically important public policy issues or to protect the public.  In these circumstances, the Panel is of the view that a caution would not be an appropriate or proportionate sanction.

29. The Panel next considered a Conditions of Practice Order. Given the nature of the Registrant’s conduct, the Panel is of the view that conditions would not be an appropriate mechanism to address the issue of dishonesty. The Panel has therefore concluded that a Conditions of Practice Order would not be an appropriate sanction.

30. The Panel next considered a Suspension Order. In terms of the Indicative Sanctions Policy, this would be appropriate where the allegation is of a serious nature but there is a realistic prospect that repetition will not occur. The Panel considered the further evidence given by the Registrant prior to reaching its decision on sanction. However the Panel did not find the sentiments expressed by him in relation to insight and remorse to be genuine. The Panel does not accept that the Registrant has developed insight overnight, taking account of the evidence he had given before this Panel and his attitude to the allegations two days earlier. The Registrant has had a period of two and half years since the incident to reflect on his behaviour and he has failed to do so. In the absence of any insight, remorse and remediation, there is a risk of repetition.  The Panel also notes that in the finding of the previous Panel in February 2016, the Registrant did not take responsibility for his actions at that time and it does not appear to the present Panel that the Registrant has been able to learn from that finding. Taking all of these matters into account, the Panel has concluded that the Registrant has a deep seated attitudinal problem which has resulted in an inability to address his behaviour. Honesty and integrity are fundamental prerequisites for any health professional and as the Panel is unable to identify any basis on which it could have confidence that the Registrant would be likely to remedy his shortcomings during any period of suspension it does not consider that a Suspension Order is an appropriate sanction in these circumstances.

31. Accordingly given the nature and gravity of the allegation and having found that the Registrant is unable to resolve or remedy his failings, the Panel considers that a Striking Off Order is the only sanction which is adequate to protect the public and to address the wider public interest considerations in terms of maintaining public confidence in the profession and declaring and upholding proper standards.

Order

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

Notes

This outcome is under appeal to the High Court.

Hearing History

History of Hearings for Kenneth R Hall

Date Panel Hearing type Outcomes / Status
03/06/2020 Conduct and Competence Committee Review Hearing Adjourned part heard
05/12/2016 Conduct and Competence Committee Final Hearing Struck off