Mrs Yogini Rajoo

Profession: Radiographer

Registration Number: RA25894

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 24/10/2016 End: 16:00 26/10/2016

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Between 1 November 2013 and 16 May 2014, during the course of your employment as a radiographer by Barking, Havering and Redbridge University Hospitals NHS Trust, you:

 

1.     On 8 November 2013:

 

a.     Behaved in an unprofessional manner when communicating with Patient A and Person A, in that you:

 

i.         Demanded to see Person A's identification and/or demanded to be given Person A's name;

 

ii.        Said to Person A 'Maybe I should just call you lucky' or words to that effect;

 

iii.       Accused Person A of influencing Patient A's decision to refuse a trans-vaginal scan;

 

iv.       Said to Person A 'she (Patient A) didn't seem confused to me! Maybe you just weren't listening' or words to that effect.

 

 

2.     On 9 May 2014, spoke in a rude and/or unprofessional manner when communicating with Patient B and her family, in that you:

 

a.     Said to Patient B's husband 'Why don't you use your common sense and stand over there' or words to that effect';

 

b.     Said to Patient B '...now put your head down. Do you want me to do the scan or not' or words to that effect.

 

c.     Said 'Stop this childish behaviour all three of you' or words to that effect.

 

3.     On 15 May 2014, in relation to Patient C:

 

a.     Spoke in a rude and/or unprofessional manner when communicating to Patient C and/or her Person C, in that you said 'You need a hearing aid if you can't hear people', or words to that effect.

 

b.     Did not explain the procedure of the scan to Patient C and/or Person C.

 

4.     The matters described in paragraphs 1-3 constitute misconduct and/or lack of competence.

 

5.     By reason of your misconduct and/or lack of competence, your fitness to practise is impaired

Finding

Preliminary Matters

Service of Notice

1.             The Panel had evidence that a letter, giving notice of today’s hearing, had been sent in sufficient time in advance of the hearing date, by the correct postal means, and to the address that is shown on the Register for the Registrant. That letter set out the full and accurate details of the hearing date, time and place. The Panel therefore accepted that there had been good service.

Proceeding in the Registrant’s Absence

2.             The HCPC made an application to proceed in the Registrant’s absence. In her submissions, Ms Sheridan highlighted the following issues:

               The Registrant had stated that she would not be attending;

               Good service has been proved and there is evidence before the Panel that the Registrant is aware of this hearing;

               There was no application for an adjournment;

               No indication has been given by the Registrant as to whether she would be more willing to attend at a future date;

               There has been no engagement in the HCPC process by the Registrant until very recently and it was limited to her response to the service of the documentation;

               The Registrant has given no reasons for her non-attendance;

               There is therefore nothing to suggest that the Registrant’s absence is anything other than voluntary;

               There is public interest in this matter proceeding without further delay.

3.             The Panel noted that the Registrant has stated that she will be away for several months from this November, which indicated that any adjournment, if granted, would be a long one.

4.             Given the factors identified by Ms Sheridan and the fact that there is nothing before this Panel to give a reason for the Registrant’s absence at this hearing other than she has made an informed decision not to attend. This being the case, the Panel considers that nothing would be gained by adjourning this matter and so decided to proceed in the Registrant’s absence.

Amendment of the Allegation

5.             The HCPC made an application to amend the Allegation in two respects: the deletion of 1(a) and 3(b). It was submitted that this was appropriate as there was no evidence to support these matters.

6.             The Panel noted that the Registrant had been given notice by way of a letter of the proposed changes and she had not made any representations in response. In that letter the proposed amended Allegation had been renumbered to take into account the two deletions.

7.             The Panel received legal advice which included reference to the fact that there was no statutory power to amend. The Panel accepted that it was relying upon an inherent common law principle to amend the allegation and could only do so to the extent that it was fair and reasonable and would not result in any prejudice to the Registrant’s interests or her ability to present her case.

8.             There is public interest that matters are not pursued which are insupportable. In the Panel’s view, the deletion of the two particulars was in fact in the Registrant’s best interests. The Panel therefore approved the removal of particulars 1(a) and 3(b) from the Allegation and it’s renumbering accordingly.

Anonymity

9.             The Panel had been provided with redacted documentation from which it was not apparent whether the Patients and/or Complainants had agreed to their identity being disclosed within these proceedings. The Panel was therefore supplied with unredacted copies of the witness statements of Person A and Person C. Both statements had been prepared on the bases that they would be referred to in these proceedings as Person A and Person C, who would be giving live evidence. The Panel noted that the Registrant had been provided with unredacted documentation and was aware of the witnesses’ identity. In these circumstances, the Panel agreed that this wish for anonymity remained in place within the hearing.

 

Background

10.           Between 1 May 2012 and 27 August 2015, the Registrant was employed as a Sonographer in the Radiology Department at King George Hospital NHS Trust (the Trust).

11.           On 8 November 2013, the Registrant conducted an appointment with Patient A at which Person A (her partner) was present. Following this appointment, Person A submitted a complaint in relation to the Registrant’s unprofessional and inappropriate comments during the appointment.

12.           On 14 March 2014, DT, from the Trust, was appointed to conduct an internal investigation into this incident.

13.           Further incidents on 9 and 15 May 2014 led to complaints being submitted by Persons B and Patient C. These complaints also related to the Registrant’s unprofessional and inappropriate behaviour. DT was then asked to investigate these two further patient complaints.

14.           Following the Trust’s internal investigatory process, a Trust Disciplinary hearing was held on 27 August 2015, which the Registrant attended.

15.           The matters set out in the Allegation were subsequently brought to the HCPC’s attention.

 

Decision on Facts

Evidence

16.           The Panel had before it a body of documentation which had been produced for, and relied upon, by the Trust as part of its investigatory process into the three patient complaints. The Panel also heard live evidence from three HCPC witnesses. These were:

               DT, the Investigating Officer. His report and supporting documentation was before the Panel. He gave live evidence of the limitations of his investigation and his findings which were based upon a review of documentary evidence and interviews with staff, including the Registrant; he had not interviewed the Patients and Complainants. He gave his testimony in clear terms that were consistent with his sworn statement and his Investigatory Report.

               Person A, the partner of Patient A, and an eye witness to the incident on 8 November 2013, gave live evidence. He confirmed that he had initiated the complaint which had been sent by email on 11 November 2013. He stated that he found out to whom to send this complaint from the Trust’s website on his immediate return home from the hospital appointment. He gave clear, confident, persuasive and compelling evidence which was consistent with the written contemporaneous evidence. 

               Person C, the husband of Patient C, and an eye witness to the incident on 15 May 2014, also gave live evidence. The letter of complaint had been sent by his wife, Patient C, but Person C was able to confirm the accuracy of the events detailed in that letter. His evidence was powerful in that he portrayed the impact of these curt exchanges on his expectations, as well as those of his wife, in respect of this first scan of their first baby. His evidence was consistent with the written evidence and given in a calm, clear way.

17.           Within the documentation was the complaint lodged by Patient B and Person B in relation to a third incident on 9 May 2014. This complaint was exhibited by the Investigating Officer, DT. Efforts to contact these two individuals with a view to them participating in this hearing had been unsuccessful. A member of staff from Kingsley Napley has provided a sworn statement detailing the steps taken to contact these individuals.

18.           Within the various documents are responses made by the Registrant to the complaints in which she accepts contextual details and accepts using some of the wording in the particulars. However, there are no admissions to the HCPC Allegation. In the formal response received from the Registrant dated 8 October 2016, on the “HCPC Response Proforma: Service of Papers” document, she states ‘Facts are inaccurate and obtained by harassment, stalking and intimidation to date’ and ‘I was not given the opportunity for the above reasons to have witnesses and those who may have assisted were treated as above, re: bullied, intimidated and harassed’. The Panel has therefore taken the view that the factual basis of all particulars are in dispute.

19.           The Panel explored with all three live witnesses whether the Registrant had any language barriers. All witnesses stated that language was not an issue and there was no difficulty in being understood by or in understanding her.

Decision

20.           The Panel appreciated that at this stage in the proceedings the burden of proof lay on the HCPC. It accepted the advice of the Legal Assessor and the submissions made on behalf of the HCPC.

21.           The Panel accepted the Legal Assessor’s advice that it had to find each and every element of each particular and its limbs and to pay particular attention to where the facts are termed as being collective or alternatives as indicated by the use of “and/or”.

Particular 1 - proved in full, including the alternatives

22.           The Panel considers the live evidence of Person A and his contemporaneous letter of complaint provide evidence of all the matters identified within this particular. Person A’s account is further supported by the evidence in an email sent by FG (a witness to Patient A’s scan) to the Ultra Sound Manager in which he corroborates some of the detail of the complaint.

23.           The Panel noted that in her initial interview with DT, the Registrant had stated that she had asked Person A for his ID “to shock him”, a reason which DT stated as surprising and confusing. However, the Registrant retracted this reason in a later disciplinary interview. The Registrant’s view of Person A’s demeanour as being domineering and aggressive was not supported by the evidence of the Ultra Sound Manager and, when put to Person A, he said categorically that he was calm and had not wished to take issue and make matters worse for his partner.

24.           Person A described the Registrant’s tone, manner and demeanour as being rude and unprofessional. An analysis of the wording used supports the fact that the use of these terms would be considered unprofessional. In particular, the corruption and distortion of Person A’s name into ‘Lucky’ was disrespectful and rude.

Particular 2 – proved in full, including the alternatives

25.           The Panel had before it the email from the Departmental Midwifery Sister which recounted the discussion she had with Person B (husband of Patient B) immediately following the incident on 9 May. The matters set out in this email are further supported by the detail within the written complaint which was subsequently sent in by Patient B. This evidence supports the position that Person B and Patient B had been upset by the incident.

26.           The Panel appreciated that there is no live supporting evidence for this interpretation of events; however, there is consistency between these two documents. Further, the Registrant accepts that she did in fact use these terms; however, that they were not made with the intent or tone identified by the complainant – her representation gave a different slant on the words used.

27.           The Panel prefers the evidence of Patient B and Person B that the language employed by the Registrant had been delivered in a rude and unprofessional manner.

Particular 3 – proved in full, including the alternatives

28.           Person C stated that he considered the Registrant’s comment in relation to the need for a hearing aid had been said in a “really patronising way”, as if to indicate that he was stupid. The Panel considers that on any basis this reference to a hearing aid was inappropriate and unprofessional.

29.           Person C described how unpleasant the experience was due to the Registrant’s apparent angry and intimidating demeanour, which was exemplified by the Registrant’s unwillingness to respond to the enquiries from Patient C and Person C during the scan. His evidence was consistent with his wife’s detailed written complaint.

30.           He stated that the experience was “totally ruined”. His view of the Registrant’s lack of care was brought into stark contrast when a repeat scan was conducted later in the day by another practitioner.

 

Decision on Grounds

31.           At this stage in the proceedings there is no burden on the HCPC. The decision as to whether the facts found proved, individually or collectively, amounted to misconduct and/or lack of competence was a matter for the Panel’s judgment. In reaching its decision the Panel has accepted the advice of the Legal Assessor and has made reference to the relevant HCPC guidance and the standards of conduct and proficiency relevant to the Registrant’s area of practice.

32.           The Panel considered that the three complaints, whilst very similar in nature, were insufficient evidence of a consistent approach adopted by the Registrant such as to lead to a finding of lack of competence. Further, there is no evidence of the Registrant’s experience or abilities that would assist in a finding of lack of competence. In the Panel’s view, the Registrant’s rudeness cannot be explained as being accidental or a result of misinterpretation.

33.           The Panel has noted that in relation to at least two complaints, action was required by colleagues to undertake re-examination/rescanning and, in all three instances, investigation of these complaints.

34.           In relation to Particular 1, the language used was rude, confrontational and delivered in front of a colleague. The two young adults, one of whom was anxious about an exploratory assessment, were distressed by this experience.

35.           In relation to Particular 2 and the incident involving Person B and Patient B, the Registrant’s behaviour was again threatening and challenging. The Registrant’s language was intimidating, rude and insulting, but also disrespectful.  Patient B was reduced to tears in front of her partner and young child.

36.           In relation to Particular 3, the Panel considered that the language used was not only rude and insulting; in relation to the issue of a hearing aid, this comment was completely inappropriate in any situation.

37.           Turning to the terms of the Standards of Conduct, Performance and Ethics (2012). The Panel considers that the Registrant’s conduct was in breach of provisions 1, 7 and 13, which state:

1 You must act in the best interests of service users … including treating service users with respect and dignity.

7 You must communicate properly and effectively with service users and other practitioners.

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.

38.           In addition, in relation to the Standards of Proficiency for Radiographers, the Panel considered that the Registrant’s actions were in breach of the following:

2.4 Recognise that relationship with service users should be based on mutual respect and trust and be able to maintain high standards of care even in situations of personal incompatibility.

3.1 Understand the need to maintain high standards of personal and professional conduct.

5.2 Understand the emotions, behaviours and psychosocial needs of people undergoing radiotherapy or diagnostic imaging, as well as that of families and carers.

5.3 To be able to provide appropriate information and support service users throughout their radiotherapy treatment and care or diagnostic imaging examinations.

8 to be able to communicate effectively, in particular by the means set out in sub paragraphs 8.1, 8.3, 8.4, 8.5, 8.7 and 8.9.

9.3 understand the need to build and sustain professional relationships as both an independent professional and collaboratively as a member of the team.

9.4  be aware of the need to empower services users to participate in the decision making processes related to their radiotherapy or diagnostic imaging examination.

39.           The Panel appreciates that breaches of these provisions do not automatically amount to misconduct. However, in these three incidents, the Registrant’s conduct was unprofessional, rude and inappropriate such that, individually and collectively, it amounts to misconduct.

 

Decision on Impairment

40.           The Panel adopted the Legal Assessor’s advice and considered both the personal and public components of its decision.

41.           The Panel has considered the Registrant’s responses to the complaints and those made within the disciplinary and HCPC processes. Within these responses the Registrant has attempted to move culpability onto the Complainants. The Registrant’s position had been that the exchanges had been open to interpretation and had been intentionally construed pejoratively. In relation to the investigation, the Registrant had questioned and challenged whether the investigation had been robust and impartial.

42.           The Panel considered that the Registrant’s use of rude and inappropriate language was a matter that was capable of being remedied.  There is no evidence from the Registrant of insight, apology, remorse or regret for her actions. There was no evidence of her taking any steps to amend her behaviour. The Registrant’s stated attitude to the matters that resulted in the complaints demonstrated a lack of concern for the Patients involved and her responses to date showed no change of attitude. There is therefore no evidence that there would be no repetition. Indeed, her most recent responses show that there is still a total lack of culpability. Given this lack of remedial action, and the risk of repetition, the Panel considers that there is impairment on the personal component.

43.           The Panel has evidence that the Registrant’s conduct had a detrimental impact on the Patients involved and their families. This type of professional conduct towards individuals who are looking for compassionate and sensitive treatment during an intimate assessment procedure would undermine the confidence which the public has in this profession, such as to warrant a finding of impairment in the public interest.

44.           In the Panel’s view, the Registrant’s fitness to practise was and remains impaired on both the personal and the public components.

 

Decision on Sanction

45.           In reaching its decision, the Panel took into account the terms of the HCPC Indicative Sanctions Policy, the advice of the Legal Assessor and the representations made on behalf of the HCPC by Ms Sheridan.

46.           The Panel appreciated that it was required to balance the interests of the Registrant with those of services users and the wider public interest. In deciding which level of sanction to impose, the Panel started its deliberations at the bottom of the scale and worked up until it found the least restrictive sanction that will protect service users and uphold and maintain the public’s confidence in the profession and the regulatory process.

47.           In undertaking its task, the Panel identified the following mitigating and aggravating factors.

Mitigating:

               The Registrant worked within a busy department where there was a rapid throughput of patients;

               No further matters had been notified to the HCPC;

               There is no criticism of her clinical abilities.

Aggravating

               Three patient experiences were seriously adversely affected and her actions caused patients and families increased anxiety and distress;

               Within the department her actions generated complaints, more work for colleagues in undertaking re-scanning, and the resultant investigation of the complaints;

               She has not shown any insight into the impact of her actions on her patients, her colleagues or the department;

               The Registrant has not given any apology for her conduct;

               She has not shown any regret or remorse for her actions and their impact;

               She has continually maintained that culpability lay with the patients or their families or the investigatory process;

               The Registrant has not engaged in the HCPC regulatory process except through her late response to the Proforma Response Form;

               The Panel has no information about her current employment or professional status;

               There are no testimonials or references, either personal or professional;

               The Registrant’s actions had a reputational impact on her, her employer and her profession.

48.           In view of this level of aggravating issues, the Panel considered that the matters were far too serious for the Panel to take no further action.

49.           In relation to the imposition of a Caution Order, the Panel considered the following. First, these are not isolated incidents. Secondly, these are not minor or limited matters. Thirdly, in the absence of any information to the contrary, there is a high risk of a recurrence. In addition, the Registrant has shown no insight whatsoever into her conduct or its impact, rather, she has attempted to blame others. In circumstances where the Registrant accepts no wrongdoing and she has taken no steps to remedy her misconduct, a Caution Order is not appropriate. Further, the Panel notes that a Caution Order does not restrict a Registrant’s ability to practise and therefore provides no service user protection. In light of this, the Panel came to the conclusion that a Caution Order was inappropriate and insufficient in this instance.

50.           The Panel considered what terms it could adopt in the imposition of a Conditions of Practice Order and came to the conclusion that it could not. It based this decision upon the fact that there is no commitment from the Registrant to resolve matters and no engagement to assure the Panel that the Conditions would be adhered to. The Panel noted that the Indicative Sanctions Policy identified that Conditions of Practice may not be appropriate where a registrant has shown no insight and there is a denial of any wrongdoing. The Panel has concluded that it is not able to construct Conditions of Practice that are workable, practicable or appropriate in these circumstances.

51.           In deciding whether to impose a Suspension Order, the Panel considered whether the Registrant’s misconduct is fundamentally incompatible with her remaining on the Register. In its consideration of this issue, the Panel took into account the fact that these matters are remediable through appropriate personal development and interpersonal skills training. The Panel considers that in terms of proportionality, these three patient complaints do not warrant the ultimate sanction of striking off because there is the potential for her to address her failings and to return to unrestricted practice. Further, the Panel has not completely discounted the fact that the environment within which the Registrant was working at that time may have influenced her behaviour or exacerbated her misconduct. However, there was insufficient evidence presented to support this.

52.           The Panel is therefore satisfied that a Suspension Order would provide the right degree of service user protection and is proportionate in all the circumstances. Further, this level of sanction will act as a deterrent to other practitioners and will uphold and maintain the public’s confidence in the profession and the regulatory process.

53.           Whilst this Panel cannot bind a future reviewing panel, such a panel may be assisted by evidence from the Registrant of the steps she has taken into gaining insight into her misconduct and to ensure that there is no likelihood of a repetition in the future. This may be achieved by: evidence of reflective practice; relevant training and professional development; and professional and personal references, including those from patients.

54.           In determining the length of the Suspension Order, the Panel took into account the fact that some of these matters took place nearly three years ago and to date the Registrant has not taken any steps to gain insight or remedy. This being the case, the Panel considered that it may take some time for her to address her attitudinal and communication failings. The Panel consider that with focused application the Registrant should be able to achieve some demonstrable progress within a period of six months.

Order

That the Registrar is directed to suspend the registration of Mrs Yogini Rajoo for a period of 6 months from the date this order comes into effect.

Notes

The order imposed today will apply from 22 November 2016 (the operative date).

This order will be reviewed again before its expiry on 22 May 2017.

Hearing History

History of Hearings for Mrs Yogini Rajoo

Date Panel Hearing type Outcomes / Status
21/04/2017 Conduct and Competence Committee Review Hearing Suspended
24/10/2016 Conduct and Competence Committee Final Hearing Suspended