Mr Kalpesh Ellis

Profession: Radiographer

Registration Number: RA65132

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 04/01/2016 End: 17:00 08/01/2016

Location: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

During the course of your employment as a radiographer at James Paget University Hospitals NHS Foundation Trust:

 

1. You breached confidentiality in that you obtained Service User A’s

contact details from a Hospital database on or around 6 July 2014 without a work related reason to do so.

 

2. You contacted Service User A without professional justification:

a. On 6 July 2014 by telephone call, telephone text and/or by ‘Whatsapp’;

b. On 7 July 2014 by telephone text and/or by ‘Whatsapp’.

 

3. You sent Service User A inappropriate messages by telephone text

and/or ‘Whatsapp’:

a. On 6 July 2014;

b. On 7 July 2014.

 

4. Your actions as described at paragraph 3 were sexually motivated.

 

5. The matters set out in paragraphs 1 - 4 constitute misconduct.

 

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

Finding

Background
 
The Registrant was employed in the radiology department at the James Paget University Hospital NHS Foundation Trust (“the Hospital”) in 2007 as a student radiographer. He became a permanent employee within the Hospital in 2011 and was employed as a Band 5 radiographer responsible for a range of patients including outpatients, inpatients, GP patients and casualty patients.

On 3 July 2014 in the course of his employment at the Hospital, the Registrant carried out an x-ray on Service User A’s hand. On Sunday 6 July 2014 the Registrant called Service User A on his personal mobile, having obtained her personal mobile number from the Hospital database. In the course of the telephone conversation, he told Service User A that he had concerns that the x-ray of her thumb looked unusual. Thereafter, the Registrant also made contact with Service User A via Whatsapp, the mobile telephone messaging application.

Service User A was uncomfortable with the Registrant’s contact, and its content, and felt that it was inappropriate. She forwarded the messages to her mother, who is an employee at the Hospital, and a complaint against the Registrant was subsequently lodged at the Hospital.

Following an investigation, the Registrant was dismissed from his employment.

The matter was reported to the HCPC, which resulted in these proceedings.

Decision on Facts

The Panel was provided by the HCPC with a bundle of documents containing the HCPC witness statements and relevant documents.

The Panel heard evidence from four witnesses on behalf of the HCPC, namely: Service User A; RS, who was employed as Picture Archives and Communications System Manager at the Hospital;  DW, Head of X-Ray Department and Deputy to the Professional Head of Radiology, and RM, Senior Chief Cardiac Physiologist.

The Panel found each of these witnesses to be credible and their oral evidence consistent with their witness statements.

The Panel formed its own views as to any inference to be drawn from the factual evidence independently of opinions expressed by any of the witnesses. Additionally, the Panel has disregarded the conclusions made at any stage of the Trust’s internal disciplinary process.

The Panel took into account the witness statement of the Registrant dated 7 December 2015 and his earlier statements, which he had made to his employer. The Panel was able to attach limited weight to these statements which were unsworn and could not be tested by cross-examination due to his non-attendance.

The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so the particulars of the allegation must be proved on the balance of probabilities. The Panel accepted the advice of the legal assessor.

The Panel made the following findings of fact:

Particular 1 – Proved

The Hospital’s Patient Confidentiality Policy states that: “Patients entrust us with sensitive information relating to them and their health as part of seeking treatment. They do so in confidence that they have the expectation that Trust staff will respect their privacy and act appropriately. The key principle is that a patient’s records are made by the Trust to support the patient’s health care only.”

The policy goes on to state that: “The Trust must also ensure that it complies with the consent requirements of the common law duty of confidentiality. To comply, the patient must be informed of the uses or proposed uses to which their information will be put to and there must be some indication that the patient has agreed, either explicitly (in writing), or impliedly (by responding to questions orally).”

The Panel was provided with evidence that the Registrant’s Information Governance Refresher Training was up to date. In the Information Governance Refresher Revision Notes it states: “Ensure confidential information is not accessed unlawfully or inappropriately” and “only use information for the purpose for which it was given. Use the information in an ethical way this means that personal information which was given for one purpose, for example, hospital treatment, should not be used for a totally separate purpose, e.g. research, unless the patient consents to the new purpose.”

There was undisputed evidence that on 6 July 2014 the Registrant accessed the Hospital’s CRIS system and obtained the personal telephone number of Service User A.

Service User A gave evidence, which the Panel accepted, that she neither requested the Registrant to contact her nor gave him permission so to do.

In his statement to his employer dated 22 July 2014 the Registrant suggested both through his Union representative and his own responses that Service User A had given implied consent to the Registrant to access her contact details by providing those details on her A&E form

He went on to suggest that his reason for accessing that information and contacting Service User A was that, when she had attended the hospital for examination on 3 July 2014, he was concerned that she was on her own, in a wheelchair, apparently disabled and had suffered a fall and hurt her back. He also expressed some concern about her x-ray, although he did not explain the nature of his concern.

However, in his statement dated 7 December 2015 the Registrant stated “I made the mistake of not consulting with my seniors or radiologists which I would normally do and contacted the patient at the end of my shift …”

DW gave evidence that it would not be appropriate for the Registrant to contact Service User A if he had any concerns about the x-ray; instead he should have discussed any concerns with a radiologist or other senior colleague. She stated that it was totally against Hospital policies for a member of staff to take a service user’s mobile information from the Hospital database and store the information on his personal mobile.

Likewise RS gave evidence that radiographers should only use a patient’s contact details in a booking capacity to give that patient an appointment, or when they had been expressly requested to contact a patient by a senior member of staff.

On the basis of all the available evidence, the Panel concluded that there was no work related reason for the Registrant to access Service User A’s contact details from the Hospital database and that he did so in breach of confidentiality. Particular 1 is therefore proved.

Particular 2 – Proved

There was undisputed evidence that the Registrant contacted Service User A by telephone call and Whatsapp text messaging on 6 July and by Whatsapp text messaging on 7 July 2014. As stated in relation to particular 1 above, there was no professional justification for his contacting Service User A on either date and accordingly particulars 2(a) and 2(b) are proved.

Particular 3 - Proved
The Registrant accepted that his Whatsapp text messages of 6 July 2014 were inappropriate. He did not accept that the Whatsapp text messages of 7 July 2014 were inappropriate.

The Panel was provided with screenshots of the Registrant’s Whatsapp text messages to Service User A on 6 July and 7 July 2014. These included the use of the letters “xxx” – commonly used to denote kisses -  at the end of three such texts, the words “Anytime darling xxx’ and the words “Gorgeous pic x” referring to the Service User’s Whatsapp profile photograph.

DW stated in her evidence that it is never appropriate, nor part of radiography process, for a radiographer to send a patient a text message. The Panel found that not only the fact of Whatsapp messaging Service User A, but also the content of the Whatsapp text messages, to have been wholly inappropriate. Particulars 3(a) and (b) are proved.

Particular 4 – Not proved

The Panel took into account the evidence of DW that, in her experience, the Registrant was friendly, helpful and pleasant to patients and had never known him to be unprofessional in his conduct towards them nor had she ever previously received any complaint to that effect. RM in her evidence said that she regarded the Registrant’s Whatsapp text messages as unprofessional but, in response to questions, it was clear to the Panel that it had not occurred to her that they could have been sexually motivated.

In the Panel’s judgment, the Registrant’s Whatsapp text messages were consistent with behaviour which was naïve, inappropriate and unprofessional without being sexually motivated. Whilst the Panel could understand why Service User A thought that the Registrant’s text messages might be sexually motivated and caused her anxiety, the Panel concluded that the evidence was ambivalent and that the allegation that the Registrant’s Whatsapp texts were sexually motivated was not proved on the balance of probabilities.

Decision on Grounds

The Panel is aware that findings as to misconduct are matters for its professional judgement, in respect of which neither the burden nor the standard of proof applies. The Panel took into account the guidance of the Privy Council in the case of Roylance v General Medical Council (no.2) 2000 1 AC 31 to the effect 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 …”

The Panel finds the Registrant to have been in breach of the following provisions of the HCPC Standards of Conduct, Performance and Ethics, in particular standards:
1 – You must act in the best interests of service users;
2 - You must respect the confidentiality of Service Users; and
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.

In addition, the Registrant was in breach of the following provisions of the HCPC Standards of Proficiency for Radiographers, in particular standards:
1 – be able to practise safely and effectively within the scope of your practice
2 – be able to practise within the legal and ethical boundaries of your profession;
7 – understand the importance of and be able to maintain confidentiality; and
8 - Be able to communicate effectively.

In the Panel’s judgment these were serious breaches of professional standards - in particular the duty to respect and maintain the confidentiality of service users – and constitute misconduct.

Decision on Impairment

The Panel applied the guidance contained in the HCPC Practice Note on “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the ‘personal’ and “public” component. The personal component relates to the Registrant’s own practice as a radiographer, including any evidence of insight and remorse and efforts to remediate his practice. The ‘public’ component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

The Panel was referred by Mr Chalmers to, and adopted, the following questions as set out in the case of Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927 (admin):

Do our findings of fact in respect of the misconduct…show that his/her fitness to practise is impaired in the sense that he/she:

a) Has he/she in the past acted and/or is liable in the future to act in a way so as to put service users at unwarranted risk of harm;
b) Has he/she in the past brought and/or is liable in the future to bring the profession into disrepute;
c) Has he/she in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

The Panel acknowledged that this was a single incident over a short period of time involving one patient and there had been no previous clinical concerns or significant issues in respect of the Registrant.

With regard to question (a), the Panel found that by contacting Service User A inappropriately and in breach of confidentiality, the Registrant caused her anxiety both about her physical condition and about the nature and purpose of his contact with her.

In his statement dated 7 December 2015, the Registrant acknowledged that the language of his Whatsapp text messages was not appropriate but then sought to minimise the relevance of what he had done and to criticise and blame Service User A for exaggerating its significance. By way of example, he stated “I have a happy, friendly personality which most people I come into contact like about me. I also find her statement somewhat immature. She goes into great detail trying to qualify her dress attire throughout her statement as being appropriate and considers every man finds her irresistible …”. 

In the Panel’s judgement the Registrant has only shown limited insight into the nature and effect of his misconduct and the impact it might have had on Service User A, on his reputation and the reputation of the profession. He appears primarily concerned with the consequences to himself over what he describes as “a single mishandled incident”. His understanding of the importance of maintaining proper professional boundaries and of respecting a service user’s confidentiality appears to be seriously deficient. Despite having had 17 months to reflect on the incident, the Registrant’s most recent statement of 7 December 2015 does not reflect full insight, particularly into his responsibilities for initiating uninvited and inappropriate communication in breach of a Service User’s confidentiality and which caused totally unnecessary anxiety for the Service User.  Given his lack of insight, the Panel considered that there is a risk of misconduct of a similar nature in the future.

With regard to question (b), the Panel has already stated in its finding of misconduct that the Registrant’s misuse of confidential information to make inappropriate contact with Service User A, brought his profession into disrepute. Given his lack of insight, there is a risk that similar misconduct might cause further reputational damage in the future.

With regard to question (c) above, the Registrant’s breach of confidentiality constituted a breach of a fundamental tenet of the profession. Until he has developed full insight into the importance of maintaining proper professional boundaries and confidentiality, there will remain a risk of repetition.

Whilst the Panel considered that the Registrant’s misconduct is remediable, there is no evidence that it has yet been remedied. The Panel concluded that the personal component of impairment has not yet been addressed by Registrant and continues.

The Panel also considered the public element which was described in the case of Cohen v GMC [2008] EWHC 581 as: “the critically important public policy issues which are: the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes amongst other things the protection of service users and the maintenance of public confidence in the profession.”

In the Panel’s judgment, given the serious breaches of professional standards by the Registrant, public confidence in the profession would be undermined if a finding of current impairment were not made in this case.

Decision on Sanction

The Panel considered the submissions of Mr Chalmers on behalf of the HCPC and the submissions by telephone of Mr Ellis on behalf of the Registrant.

The Panel noted that the Registrant has not provided any references or testimonials or other material in mitigation.

The Panel took into account the Indicative Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by upholding proper standards of conduct and behaviour and maintaining public confidence in the profession and the Regulator. Any sanction must be proportionate, balancing the public interest and the Registrant’s interests, and should be no more restrictive than is required to achieve the objectives of protecting the public and meeting the wider public interest.

The Panel first considered the aggravating and mitigating factors in the case.

The aggravating factors are:
• The breach of confidentiality and professional boundaries by the Registrant
• The anxiety which he caused to the service user by his inappropriate communications with her
• The fact that his breach of the service user’s confidentiality has undermined her confidence in health professionals
• The Registrant’s lack of insight into the nature and effect of his misconduct and the consequent risk of repetition
• The adverse impact of the Registrant’s misconduct on the reputation of the profession
• The absence of any remedial action on the part of the Registrant.

The mitigating factors are:
• This was a single incident over a short period of time involving one patient in the Registrant’s career as a radiographer, in which there have been no previous clinical concerns or significant issues.
• The Registrant has expressed regret that some of his communications with the service user were inappropriate and has said that he would not repeat such behaviour in future.

The Panel considered the various options by way of disposal in ascending order of seriousness.

The case is too serious for the Panel to take no action and there are public protection and public interest concerns which need to be addressed.

A Caution Order is not appropriate because of the serious nature of the Registrant’s misconduct, which, coupled with the lack of insight and remedial action, gives rise to a risk of repetition. A Caution Order would provide no safeguard against the risk of repetition, and it would not address the wider public interest concerns identified by the Panel.

A Conditions of Practice Order is not appropriate because of the Registrant’s lack of insight and the lack of any evidence of his willingness or commitment to resolve the deficiencies identified by the Panel. 

Taking into account that the Registrant’s misconduct related to a single incident in an otherwise unblemished career, and the Panel’s view that that his misconduct is remediable, the Panel concluded that a Suspension Order for a period of 9 months is the appropriate and proportionate sanction in all the circumstances. This will give the Registrant sufficient time to reflect on and address the deficiencies identified, and to act on the Panel’s recommendations as to what he should do prior to, and in preparation for, the review hearing of this Order.

The Panel considered that to impose a Striking Off Order at this stage would be disproportionate because the public can be protected by a Suspension Order.

The review panel is likely to be assisted by:
• The Registrant submitting to the HCPC a reflective piece of writing, based on an academic model, showing that he has reflected on and understood the fundamental requirements to maintain patient confidentiality and uphold proper professional boundaries;
• Evidence of continuing professional development, which should include updating his awareness of Information Governance requirements;
• Up to date references and testimonials relating to any work, whether paid or unpaid, since his dismissal from his employment at James Paget Hospital.

The Panel strongly advocates the Registrant’s attendance at any review hearing of this order.

Order

The Registrar is directed to suspend the name of Mr Kalpesh Ellis from the Register for period of 9 months from the date that this Order comes into effect (the Operative Date).

Notes

The order imposed today will apply from 3 February 2016.

This order will be reviewed again before its expiry on 3 November 2016.

Hearing History

History of Hearings for Mr Kalpesh Ellis

Date Panel Hearing type Outcomes / Status
15/09/2016 Conduct and Competence Committee Review Hearing No further action
04/01/2016 Conduct and Competence Committee Final Hearing Suspended