Mr Julius B Odu
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During the course of your employment as a Radiographer with North Middlesex University Hospital:
1. Between 28th June 2013 and 11th July 2013, you breached Ionising Radiation (Medical Exposure) Regulations 2000 (IR(ME)R 2000) Regulations 5(1) and Trust protocols, despite your employer's previous warnings, in that you:
a) did not report that the image verification movie loop had been omitted on fraction 2 of the treatment whilst treating:
i. Patient A’s fraction 3; and
ii. Patient C’s fraction 3.
b) did not adhere to the department breast imaging protocol, in that on Patient B’s fracture 10 you did not repeat the image verification movie loop despite
the previous fraction’s loop being out of tolerance and an alert to repeat the fraction 10 being documented on the image analysis section of the patient’s treatment record.
2. You did not record and/or document the changeover in entitled operators and the complexity of the treatment set up on 28th June 2013, in Patient B’s treatment record.
3. Between 28th June 2013 and 30th August 2013, you:
a) did not maintain accurate and contemporaneous clinical records; and
b) did not ensure notes you made retrospectively were marked accordingly.
4. Between 24th July 2013 and 30th August 2013, you accessed medical records of patients and added notes retrospectively that concealed your actions as described in paragraphs 1a), 1b) and 2.
5. On 7th March 2012 you covered a patient’s tracheotomy site with cling film hence putting the patient’s life in danger.
6. On 5th and 7th March 2012 you did not follow the correct process for identifying patients.
7. On 5th March 2012 you did not follow imaging actions levels for a patient receiving radical radiotherapy to the head and neck regions.
8. On 6th March 2012 you refused to complete Multi Leaf Collimator (MLC) checks prior to treating a patient which could have potentially led to a non-recoverable error.
9. Your actions described in paragraph 4 were dishonest.
10. The matters described in paragraphs 4 and 9 constitute misconduct.
11. The matters described in paragraph 1 to 3 and 5 to 8 constitute misconduct and/or lack of competence.
12. By reason of that misconduct and/or lack of competence your fitness to practise is impaired.
1. The Registrant is an experienced radiographer with over 20 years’ experience. He joined North Middlesex University Hospital NHS Trust (the Trust) as a Band 6 radiographer in 2005.
2. In 2012 the Registrant was suspended from duties pending an investigation into allegations of misconduct, which resulted in the Trust issuing him with a final written warning. In 2013 he was again suspended from duties pending an investigation into allegations of misconduct. Following the Trust’s disciplinary hearing the Registrant was summarily dismissed in April 2014 for gross misconduct. The Registrant appealed against the Trust’s decision. His appeal was dismissed following an appeal hearing on 29 August 2014. The Registrant’s last day of service was 1 April 2014.
3. The Trust’s conduct and performance concerns were subsequently referred to the HCPC.
4. The Registrant was responsible for carrying out patient assessments, including their fitness for procedure through a formal review, updating medical staff with any changes, and assessing treatments as well as the delivery of radiotherapy treatment. He was also responsible for reporting incidents and any ‘near misses’. A patient is referred for radiotherapy by a doctor who prescribes a course of treatment; the appointments are known as fractions. Radiotherapy is a treatment used to destroy cancer cells. A beam of radiation is targeted on the cancer with the aim of shrinking it. Radiotherapy uses megavoltage x-rays which targets the cancer cells directly. In order-to ensure the radiotherapy treatment is delivered to each patient accurately, and does not put the patient in danger, there are a number of protocols and procedures in place that must be followed by the radiographer. If the protocols are not followed, the patient may be at risk of harm.
5. The allegations relate to the Registrant’s omitting to follow the protocols in various areas of his practise:
6. When the radiographer is carrying out treatment on a patient, movie loops are taken during the delivery of the treatment beam to help identify any change in position during the delivery of the treatment beam. This is to ensure that the beam is treating the correct area of the patient. An "image" is a picture acquired using x-rays that can be used to help verify the accuracy of the patient's set up position. There are three images acquired over the first three fractions to enable the average position of the patient set up to be determined more accurately as opposed to using a single image. Images are taken at weekly intervals once the patient set up position has been assessed. If the treatment set up is deemed to be stable and reproducible after the initial 3 fractions, then the patient will be monitored by imaging weekly.
7. It was alleged that Patient A and Patient C did not have an image verification movie loop on their fraction 2. The Registrant treated Patient A and Patient C for their third fraction and it was alleged that he did not report that their fraction 2 had been omitted which is contrary to the Clinical Incidents Procedure and/or the Department Breast Imaging Protocol. The reason for the image verification movie loop is to see whether an image is within tolerance. If an image is "out of tolerance", this means that the patient has aligned at a position deemed too far away from the original planned position, so corrective action may need to be applied to ensure the correct area of tissue is being treated.
8. Patient B's fraction 9 image verification movie loop was out of tolerance which means that it should have been repeated during their fraction 10. The Registrant treated Patient B’s fraction 10 but it was alleged that he did not repeat the image verification movie loop.
Head and Neck Imaging
9. When delivering radiotherapy to a patient's head and neck region, an imaging protocol must be followed. If the image shows that the beam is treating an area outside of the target field and therefore out of tolerance, then the radiographer should perform a couch correction to bring the target field into tolerance. It was alleged that the Registrant treated a patient whilst the target field was out of tolerance.
Multi Leaf Collimator Checks
10. A Multi Leaf Collimator - (MLC) is a device made up of individual leaves of a high atomic numbered material that can move independently in and out of the path of a beam in order to block it. The MLC is used to provide conformal shaping of the radiotherapy treatment machines.
11. According to protocol MLC's must be checked prior to a patient starting the treatment. It was alleged that on 6 March 2012, the Registrant refused to carry out MLC checks prior to treating a patient.
12. It was also alleged that Patient B was imaged on 28 June 2013 and it appeared to be out of tolerance. There was a second image on Patient B's electronic file that was in tolerance. As there were two images on the same date it appeared to indicate that the Registrant carried out a couch correction. A couch correction is when the treatment couch is adjusted to a better angle to ensure the beam penetrates the required target. This should be documented on the patient's file to notify the radiographer who carries out the next fraction what adjustments need to be made. It was alleged that the Registrant did not record this information on Patient B's file.
13. Subsequent to being notified about the investigation, it was alleged that the Registrant entered the electronic file of Patient B and added comments to the appointment history. It was also alleged that the Registrant entered the electronic record of Patient C and added retrospective information to the appointment history.
14. There was a Patient Identification Protocol at the Trust. It was alleged that the Registrant did not follow protocol on two occasions when treating patients on 5 and/or 7 March 2012.
15. It was also alleged that whilst treating a patient with a colleague on 7 March 2012, the Registrant obstructed the patient's airway by putting cling film over their tracheostomy tube.
Application for Witness Orders
16. At the outset of the hearing the Registrant made an application for five Witness Orders. The Registrant originally made the application in writing to the HCPC on 17 June 2016. The HCPC wrote to the Registrant on 21 June 2016 setting out the points that he would need to address. There was further correspondence between the HCPC and the Registrant, however, given the imminence of the Final Hearing a decision was taken that the application should be considered by the Panel.
17. The Registrant submitted that his former colleagues at North Middlesex Hospital, namely individuals AL, SB, RB, AH and SC will be able to provide evidence relevant to his case.
18. The Registrant submitted that AL’s evidence is relevant to Allegation 6 because they both treated the patient. The Registrant informed the Panel that he met AL by chance in a shopping centre and asked him to attend the hearing as a witness. AL stated that he would have to ask his manager. The Registrant emailed AL and was informed that AL had been advised by management not to attend.
19. The Registrant submitted that SB’s evidence is relevant to Allegation 2 and relates to the changeover. He submitted that he does not have access to the system and did not make the changeover. The Registrant indicated that SB would be able to assist in this regard. He stated that he sent SB an email with a view to her attending to give evidence on his behalf, but has received no reply.
20. The Registrant submitted that if RB were called as a witness she would be able to provide evidence relevant to Allegation 2. He stated that he was not the person who did the changeover. The Registrant informed the Panel that he sent RB an email with a view to her giving evidence on his behalf. In RB’s reply she stated that she was sick.
21. The Registrant submitted that AH would be able to provide evidence with regards to the working conditions, systemic problems at the hospital and the protocols that were in force at the time of the alleged incidents. The Registrant informed the Panel that he had asked AL to forward an email to AH but had not made any direct contact with her.
22. The Registrant submitted that SC would be able to provide evidence with regards to the internal Investigation. He informed the Panel that he had received information that SC had cried for three days because her manager had cajoled her into changing her statement. The Registrant informed the Panel that he has been told that she now works for Queens Hospital but has not been able to make contact with her.
23. The Registrant confirmed that apart from SC, all of his other prospective witnesses continue to work at North Middlesex Hospital. He also confirmed that he is unable to provide the Panel with copies of the emails he sent to AL, SB and RB.
24. Ms Alexis, on behalf of the HCPC, made the following observations:
· There are several witnesses due to be called by the HCPC who can give evidence with regards to the protocols at the North Middlesex Hospital at the relevant time.
· The Registrant can cross examine the HCPC witnesses to elicit any information relevant to his case.
· The Registrant could give evidence to address the issues he has raised.
· Although SC’s whereabouts are unknown, her hearsay statement is within the hearing bundle and may provide sufficient information.
25. The Legal Assessor advised the Panel that the starting point for consideration of the Registrant’s application for a witness summons is the HCPC Practice Note entitled Requiring the Production of Information and Documents and Witness Summons. She advised that the Registrant is required to provide the following information in support of his application:
· the name and address of the person concerned;
· the terms of the Witness Order sought;
· details of any information being sought;
· the steps which the applicant has taken to secure the attendance of (and production by) that person on a voluntary basis; and
· evidence to show why the attendance of (and production by) that person is likely to support the case of the applicant.
26. The Legal Assessor further advised the Panel each witness must be considered separately, and in doing so, the Panel should ask itself whether the Registrant has provided sufficient information to justify making the witness order. It will only be appropriate to require the attendance of a particular witness if the Panel is satisfied that he or she will be able to provide evidence relevant to the allegations in this case or is likely to be able to do so.
27. In assessing the merits of the application the Panel was advised to take into account the following:
· extent to which the relevant evidence can be provided by other witnesses who will be attending the hearing.
· the extent to which the Registrant can cross examine the witnesses who are already scheduled to attend.
· the fact that the Registrant is unrepresented.
28. The Panel took into account the Registrant’s application, the submissions made on behalf of the HCPC and the advice of the Legal Assessor. The Panel accepted the Legal Assessor’s Advice.
29. The Panel refused the Registrant’s application for a witness order in respect of each witness for the following reasons:
· The whereabouts of SC is unknown. The Registrant’s indication that he heard that SC is working at ‘Queens Hospital’ is too vague and imprecise. The Panel concluded that without a location this does not amount to an address. Furthermore, the Panel was satisfied that SC’s hearsay evidence is in the hearing bundle and the Registrant will be able to use it to assist his case.
· The Panel was satisfied that there are other witnesses (Witness 7 and Witness 4) who will be called to give evidence that can address the issues the Registrant believes AL would be able to provide. The Registrant can cross examine these witnesses to elicit evidence that will support his case or undermine the HCPC’s case.
· The Panel was satisfied that there are other witnesses (Witness 1 and Witness 6) who will be called to give evidence that, can address the issues the Registrant believes SB and RB would be able to provide. The Registrant can cross examine these witnesses to elicit evidence that will support his case or undermine the HCPC’s case.
· The Panel was satisfied that all seven of the HCPC witnesses who will be called to give evidence, can address the issues the Registrant believes AH would be able to provide. The Registrant can cross examine these witnesses to elicit evidence that will support his case or undermine the HCPC’s case.
Application to Amend
30. Ms Alexis made an application for Particulars 1, 2, 3, 4, 5, and 6 of the Allegation to be amended. Other than the proposed amendment to Particular 6, the Registrant had been put on notice of all the proposed amendments in advance of the hearing and had raised no objection at that time. The Registrant did not object to the proposed amendments following Ms Alexis’ oral application.
31. The Panel determined that Particulars 1, 2, 3, 4, and 5 should be amended. The Panel was satisfied that these amendments:
· provide helpful clarification;
· avoid ambiguity;
· do not alter the substance or meaning of the Allegation as originally drafted and do not widen the scope of the HCPC’s case.
32. The Panel was also satisfied that no injustice would be caused by making these amendments as they accurately reflect the HCPC case. In forming this view the Panel took into account the fact that the Registrant had been put on notice of the HCPC’s application in advance and had made no representations with regard to the proposed amendments.
33. The Panel was also determined that Particular 6 should be amended by inserting ‘on or around’ before the date. The Panel was satisfied that the amendment was minor and does not alter the substance of the HCPC’s case. The Panel was satisfied that no injustice would be caused.
34. At the end of the HCPC’s case, Ms Alexis made an application for the typographical error in Particular 1 to be amended. The error appeared only in the Panel’s copy of the Allegation. The Registrant *raised no objection.
35. The Panel was satisfied that no injustice would be caused by replacing the word ‘fracture’ with ‘fraction’ as it was clearly a typographical error.
36. At the resumed hearing the Registrant made a number of postponement applications.
Postponement to Read Transcripts
37. On the first day of the resumed hearing, the Registrant made an application for a postponement until the following day. The transcripts of the hearing in July 2016 had been sent to the Registrant by email on 17 January 2017. The Registrant confirmed that the email had been sent to the correct email address. He requested the remainder of the day to read the hard copy of the transcripts which were provided to him at the resumed hearing. Ms Alexis, on behalf of the HCPC, did not object to the application.
38. The Panel acceded to the Registrant’s request. Ms Alexis, on behalf of the HCPC, and the Panel had had the opportunity to read the transcripts in advance of the hearing. The Panel was satisfied that it was fair and reasonable to give the Registrant the same opportunity to re-fresh his memory based on the transcripts.
Postponement to secure attendance of witness
39. The Registrant confirmed on Day 1 of the resumed hearing that he had not been able to contact his proposed witnesses SB and RB. However, he anticipated that he would be able to make contact with witness AL. On Day 4, of the resumed hearing, after the conclusion of his evidence, the Registrant requested overnight to contact his witness AL. Ms Alexis, on behalf of the HCPC, did not oppose the application.
40. The Panel refused the Registrant’s application and took into account the following:
· At the conclusion of the hearing in July 2016, the Panel directed that by 21 November 2016, the Registrant should serve any witness statements he intended to rely upon. The Registrant did not comply with this direction and had still not complied with it by the time the hearing resumed.
· Accordingly, the Registrant was reminded every day from Day 1, by the Panel Chair, of the resumed hearing to make contact with his witness and obtain a witness statement.
41. The Panel was satisfied that the Registrant had been given ample time to secure the attendance of his witness. The Panel concluded that it was not in the interests of justice to delay the hearing as the Registrant had made no progress in securing the attendance of his witness in almost 6 months. In these circumstances, the Panel had no confidence that postponing the hearing until the following morning would serve any useful purpose.
Postponement to prepare Closing Submissions on Facts
42. Having refused the Registrant’s application to postpone for the purposes of making contact with his witness AL, the Registrant made an application for a full day to prepare his written submissions on the facts, based on the transcripts. If the Panel granted the Registrant’s application the consequence would be a non-sitting day (Friday) with the hearing resuming on the following Monday. Ms Alexis, on behalf of the HCPC, was neutral as to whether the application should be granted.
43. The Panel granted the Registrant’s application to postpone, but only until the following afternoon. The Panel directed that Ms Alexis, on behalf of the HCPC, should make her closing submissions and that the Registrant would then have the remainder of the afternoon and the following morning to prepare his closing submissions. In reaching this conclusion the Panel took into account the following:
· A full non-sitting day was not reasonable given that the Registrant had been in possession of the transcript for four days;
· The Registrant had the benefit of hearing the evidence of the HCPC witnesses in July 2016 and in normal circumstances, would not have received transcripts of their evidence.
Postponement due to Health Reasons
44. On Day 5 (Friday 3 February 2017) of the resumed hearing the Registrant did not attend. The HCPC received an email from the Registrant and his wife requesting a postponement until the Monday on the grounds that he was unwell. A signed medical certificate was also sent to the HCPC which stated that the Registrant was ‘unfit to attend work’ until 19 February 2017.
45. The Panel noted that the Registrant had made no mention of being unwell the previous day. However, the Panel granted the application to postpone the hearing.
Assessment of Witnesses
46. The Panel heard live evidence from seven HCPC witnesses who were all either current or former employees of the Trust: Witness 1 – Former Trainee Assistant Practitioner, Witness 2 – Band 7 Radiographer, Witness 3 – Band 7 Radiographer (Skin Unit), Witness 4 – Former Band 6 Radiographer, Witness 5 – Former Head of Radiotherapy, Witness 6 – Former Radiology Manager, Witness 7 - Technical Manager of Clinical Biochemistry and Sample Reception.
47. The Panel found all seven HCPC witnesses to be credible and reliable. The Panel had no reason to doubt that they all tried their best to assist the Panel and that the evidence they provided was their genuine recollection of the interaction they had with the Registrant and/or involvement in the internal Trust investigation.
48. The Registrant raised particular concerns about the evidence of Witness 2, Witness 5 and Witness 7. He invited the Panel to conclude that Witness 2 had lied during her oral evidence (although this was not put to her), that Witness 5 was hostile and aggressive towards him and that Witness 7 conducted a substandard investigation. The criticism of Witness 7 was partly based on the fact that he is not a Radiographer and that the Registrant believed he lacked objectivity. The Panel was unable to identify any evidence to substantiate these assertions.
49. The Registrant chose to give evidence. The Panel recognised that giving evidence is a stressful event, that the Registrant was representing himself and that English is his second language. The Panel made appropriate allowances for these factors. However, the Panel concluded that the Registrant was a poor witness who did himself no favours in the manner of his evidence.
50. At times there may have been a genuine misunderstanding of the question that had been put to him, but on numerous occasions the Panel concluded that the Registrant was being deliberately evasive. He frequently gave long rambling answers to straightforward questions. The Registrant's frequent digressions whilst giving his evidence demonstrated a serious lack of rigour and focus, and an inability to concentrate on issues, even in the formal atmosphere of the hearing room. At times the Panel found it difficult to understand his evidence which resulted in numerous interventions to seek clarification.
51. The Panel had no hesitation in finding that the Registrant was a thoroughly unreliable witness. For example, there were a number of occasions when the Registrant raised new lines of defence for the first time during cross examination, which undermined his credibility as a whole.
52. When the evidence of the Registrant conflicted with the evidence of the HCPC witnesses, the Panel preferred the genuine, unembellished account by those witnesses. The Panel found that on the key issues, it could not accept the Registrant's evidence, in the face of reliable evidence to the contrary.
Decision on Facts
53. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.
54. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, and the written and documentary evidence, including the notes of the investigation meetings undertaken on behalf of the Trust. The Panel also took into account the oral submissions of Ms Alexis, on behalf of the HCPC, and those made by the Registrant.
55. The Panel accepted the advice of the Legal Assessor. She advised that the witnesses of fact are not entitled to give opinion evidence. Therefore the Panel disregarded any opinions expressed by the HCPC witnesses.
Particular 1 (a) (i) - Found Proved
a) did not report that the image verification movie loop had been omitted on fraction 2 of the treatment whilst treating:
(i) Patient A’s fraction 3;
56. There was no dispute between the parties that the Registrant was employed by the Trust during the relevant period or that he treated Patient A fraction 3 on 11 July 2013.
57. The Panel accepted the evidence of Witness 6 that, as Patient A was receiving breast treatment, the Breast Imaging Protocol and the Ionising Radiation (Medical Exposure) Regulations 2000 (IR(ME)R 2000 which outlines safety measures for the emission of ionising radiation, should have been followed. The Protocol requires a Movie Loop to be taken and recorded for the first three fractions. The Movie Loop record for Patient A made it clear that a Movie Loop was omitted on fraction 2 on 10 July 2017. The Panel noted that the record states in the relevant column ‘not taken please repeat next fraction’.
58. The Panel also accepted the evidence of Witness 6 that, the Registrant should have read Patient A’s treatment card prior to treatment. The Registrant indicated in his written statement and in his oral evidence that he had very little time to review the treatment card. When asked directly during his evidence, the Registrant stated that he reviewed the treatment note, albeit briefly, prior to treatment. Therefore, the Panel was satisfied that the Registrant knew that the Movie Loop had been omitted and needed to be taken when he treated Patient A on 11 July 2013.
59. Witness 6 informed the Panel that the breach of the Breast Imaging Protocol should have been reported as a clinical incident under the Clinical Incidents Procedure and should have completed a Datix form. The Clinical Incidents Procedure clearly states: ‘The individual who discovered the error or near miss or who makes the mistake must report it to the appropriate line manager…and report the incident on Datix on the same day.’ The Panel rejected the Registrant’s argument that he did not ‘discover’ the error, but accepted that he was not the only practitioner that had a duty to report the error; at the very least the person who made the error and the person who made the note on 10 July 2017 should have reported it. However, because there were others that shared the duty to report, did not absolve the Registrant of responsibility.
60. The Panel concluded that even if there had been a culture of non-compliance within the department, as asserted by the Registrant, he was put on notice in November 2011 that he had to follow the Clinical Incidents Procedure. The Registrant had a ‘conversation of concern’ with the Head of Radiotherapy on 16 November 2011, following a failure to report an error in radiotherapy treatment delivery upon discovery. As a consequence of that incident the Registrant was allocated administrative duties and asked to re-read the Clinical Incidents Procedure. The Registrant was required to assure the Head of Radiotherapy that he fully understood and agreed to be bound by the policy before being permitted to return to clinical duties.
61. The Panel was satisfied that the Registrant did not report the error to his line manager immediately, nor did he complete a Datix form. The Registrant stated in cross examination that he reported the error to his line manager. The Panel rejected this assertion as there was no mention of it in his written statement, no mention of it during his evidence in chief and no mention of it during his interview with the Trust. The Registrant raised it for the first time under cross examination. The Panel also rejected the Registrant’s assertion that the completion of multiple Datix forms by more than one practitioner was ‘bad practice’. The Panel preferred the evidence of Witness 6 who stated that he would prefer to receive 10 Datix forms than none at all.
62. Accordingly, Particular 1(a)(i) was found proved.
Particular 1 (a)(ii) - Found Proved
a) did not report that the image verification movie loop had been omitted on fraction 2 of the treatment whilst treating:
(ii) Patient C’s fraction 3.
63. There was no dispute between the parties that the Registrant treated Patient C on 10 July 2013.
64. The Panel accepted the evidence of Witness 1 and Witness 6 and took into account its findings in relation to particular 1(a)(i) . The Panel was satisfied that the Registrant read the treatment card of Patient C, and so, he was aware that a Movie Loop had been omitted on fraction 2. The Registrant confirmed under cross examination that he did not report the error to his line manager nor did he complete a Datix form.
65. Accordingly, Particular 1(a)(ii) was found proved.
Particular 1 (b) - Found Proved
‘on Patient’s B’s fraction 10 you did not repeat the image verification movie loop despite the previous fraction’s loop being out of tolerance.’
66. There was no dispute between the parties that the Registrant treated Patient B’s fraction 9 and fraction 10 on 9 July 2013 and 10 July 2013 respectively.
67. The Panel accepted the evidence of Witness 1 and Witness 6. Witness 1 carried out a check of the image taken on fraction 9 and found it to be out of tolerance by 1cm. In accordance with the Breast Imaging Protocol the maximum tolerance level is 5mm. Fraction 9 should have been checked prior to the next treatment fraction and on discovery that it was out of tolerance a subsequent Movie Loop or pre-port should have been taken to determine whether a correction would have brought the volume back into tolerance. The evidence of Witness 1 was corroborated by Witness 6.
68. The Panel accepted the evidence of Witness 6, who stated that, he was unable to find any evidence that the Movie Loop image had been taken during the fraction 10 despite the record showing that the previous image was out of tolerance. At one point during his evidence the Registrant stated that another practitioner failed to record the offline Movie Loop record and therefore he did not know it needed to be repeated. However the Panel accepted the evidence of Witness 1 that even if the treatment card had not been filled out the Registrant should have checked the image offline before proceeding with treatment.
69. Accordingly, Particular 1(a)(ii) was found proved.
Particular 1 (c) - Found Proved
‘your acts and/or omissions at 1(a)(i) and (ii) above occurred further to a direction to re-read the Clinical Incidents Procedure in November 2011.’
70. The Panel took into account its findings in relation to particular 1(a)(i) and (ii). The Panel was satisfied that, the Registrant’s acts and/or omissions occurred after he was served with the letter from the Head of Radiotherapy, dated 16 November 2011, requiring him to re-read the Clinical Incidents Procedure.
71. The Registrant accepted, under cross examination, that he saw the 2011 letter and read it. He denied this particular only because he disputed that he had made omissions in relation to Patient A and C’s fraction 3 treatments. As the Panel had already found particulars 1(a) (i) and (ii) proved and having accepted that the Registrant was directed to re-read the Clinical Incidents Procedure, it was satisfied that particular 1(c) was proved.
Particular 2 - Found Proved
‘You did not record and/or document the changeover in entitled operators and/or the complexity of the treatment set up on the 28 June 2013, in Patient B’s treatment record.’
72. There was no dispute between the parties that the Registrant treated Patient B on 28 June 2013. The Panel accepted the evidence of both Witness 1 and Witness 6.
73. Witness 6 informed the Panel that the Registrant should have documented the change of operator on the treatment card and the progress report. The Registrant in his oral evidence stated that he was not responsible for documenting the changeover because he did not know why his colleagues had decided to swap. However, the Panel was satisfied that, irrespective of the reasons for the changeover, the Registrant was required to ensure that the documentation was accurate to aid communication with other practitioners for the benefit of patients. The Panel concluded that even if others were under a similar duty it did not absolve the Registrant of responsibility.
74. The Registrant stated in his witness statement and oral evidence that the treatment of Patient B was not complex and therefore documentation was not required. He also stated that he was not responsible for documentation. However, the Panel preferred the evidence of Witness 1 and Witness 6 that the image was out of tolerance by 0.84cm, and a second image was taken, which indicated that there had been a couch correction. If no couch correction had been done, as asserted by the Registrant, and a second image was taken, the reason for the second image should also have been documented on the treatment card and/or on the imaging software (iView), because otherwise it would give the false impression that a couch correction had been applied which could have implications for the patient.
75. As the first attempt at set up resulted in a significant out of tolerance measurement advice was sought and Patient B was removed the treatment room, subsequently brought back in, re-positioned and re-imaged on the advice of a Band 8 Radiographer. The Registrant agreed that this had occurred. The Panel was satisfied that this represented a complex set-up which should have been documented.
76. Accordingly, particular 2 was found proved in its entirety.
Particular 3 - Found Proved
‘Between the 24 July 2013 and 30 August 2013, you accessed medical records of patients B and C and added notes retrospectively in an attempt to conceal your actions as described in paragraphs 1a)(ii), 1b) and 2.’
77. There was no dispute between the parties that the Registrant accessed the medical records of Patients B and C during the relevant period and made retrospective entries. The Panel noted that the Health Records Management Policy requires all health professionals to ensure that any entries made retrospectively must be identified as such. The Panel was not provided with any evidence that the Registrant was put on notice of this policy however, in any event it concluded that it was a matter of common sense. A health professional, particularly a health professional with 20 + years’ experience ought to know the importance of making contemporaneous notes and know why it is necessary to make it clear in a patient’s records if an entry has been added retrospectively.
78. The Registrant stated in his written and oral evidence that he was asked by a superintendent to complete end of treatment checks, correct any errors and then print and send the treatment information to the consultant secretary, GP and hospitals where the patient was first seen by the cancer specialist. He stated that this task was required because of an anticipated Care Quality Commission inspection and described the process as ‘harmonisation’ of the paper records with the electronic record. The Registrant stated in his oral evidence that he had not been taught how to complete end of treatment checks and as a consequence made a number of errors on other patient records, in not making clear that certain entries had been made retrospectively.
79. The Panel rejected the Registrant’s explanation. The Panel noted that this was not the explanation the Registrant provided when he was interviewed by the Trust and was not put to Witness 6. During the interview he gave a number of contradictory explanations including a suggestion that his login details had been used by someone else to ‘persecute’ him. The Panel was satisfied that the Registrant by inserting ‘review the image please’, ‘pi rpl pl was stressed couldn’t reboot imager’ and ‘image not done pt uncomfortable’ in the records of Patients B and C many weeks after the relevant event, sought to cover up his omissions and failings.
80. Accordingly, particular 3 was found proved.
Particular 4 - Found Proved
‘On 7 March 2012 you covered a patient’s tracheotomy site with cling film.’
81. There was a clear factual dispute between the evidence of Witness 2 and the Registrant. The Panel accepted the evidence of Witness 2 that whilst in the treatment room she noticed that the patient was ‘waving both of his hands in the air frantically’. When she looked at the patient it was apparent that cling film was covering his tracheostomy site and effectively obstructing his airway, which she removed. The incident was reported to the manager and a Datix form was completed.
82. The Registrant invited the Panel to conclude that Witness 2 had lied in her statement, and there she had made up the whole ‘cling-film’ event with malicious intent. The Panel noted that the Registrant did not put this to Witness 2 when she gave evidence, did not mention it in his written statement and made no mention of it when he was interviewed by the Trust. The first time the Registrant stated that Witness 2 had made the whole event up was under cross examination. When the Registrant questioned Witness 2 he suggested that the cling film was perforated, in his witness statement he extoled the virtues of cling film to protect the patient and by the time he came to be cross examined he asserted that there had been no attempt to use cling film on the patient at all and only gauze was used.
83. The Panel rejected the Registrant’s assertion that the cling film incident did not happen at all. The Registrant based this assertion on the fact that had the patient been so distressed and was suffering from the effects of asphyxiation this would have required his colleague to seek assistance and intervention from a healthcare professional such as a nurse or a doctor, which did not happen. However, Witness 2 told the Panel that such an intervention was not required because once the cling film has been removed the patient made a swift recovery.
84. The Panel rejected the Registrant’s assertion that Witness 2 had an ulterior motive. The Panel noted that Witness 2 stated that the Registrant was a good working colleague and that after the incident on 7 March 2012, the friendliness between the two of them did not diminish. Witness 2 also wished the Registrant luck at the end of her live evidence. Witness 2’s oral evidence was unambiguous and consistent with her written statement. Furthermore, she made it clear during her evidence that the Registrant’s action would not have been intentional objectively and that the Registrant simply lost concentration.
85. Accordingly, particular 4 was found proved.
Particular 5 - Found Proved
‘On 5 and/or 7 March 2012, you did not follow the correct process for identifying patients in that you called up the details of a different patient on the Record and Verify system to the patient who was set up in the treatment room.’
86. There was no dispute between the parties that on 7 March 2012, the Registrant was Operator 2 and that there was a discrepancy between the details of the patient who was called up and the patient in the treatment room.
87. The Panel accepted the version of events outlined by Witness 2 in her evidence. She stated that as Operator 2, the Registrant was responsible for calling up the patient on the Record and Verify system and was also responsible for calling that patient from the waiting room. Witness 2 informed the Panel that although the correct patient was called into the treatment room, the Registrant called up another patients treatment details on the Record and Verify system. The Panel had also had regard to the Patient ID procedure policy which confirmed the roles and responsibilities of Operator 2. Witness 2’s explanation of the process was corroborated by Witness 3 and Witness 7.
88. The Registrant described the incident as a team error. However, the Panel accepted that it was the practise within the department that as Operator 2, the Registrant had the responsibility to call up the correct patient details.
89. Accordingly, particular 5 was found proved.
Particular 6 - Found Proved
‘On 5 March 2012 you did not correctly follow imaging action levels for a patient receiving radical radiotherapy to the head and neck regions in that you treated them out of tolerance by 4mm or thereabouts.’
90. There was no dispute between the parties that the parties that the Registrant treated a patient with radical radiotherapy to the head and neck region on 5 March 2012.
91. The Panel accepted the evidence of Witness 4 that when she checked the offline reviews on 6 March 2012 she noticed that the Registrant and his colleague miscalculated the image on the left side. The left image was out of tolerance by over 2mm and therefore there should have been a couch correction prior to treatment. The Registrant and his colleague did not make the necessary adjustment and the patient was treated on the left side 4mm out of tolerance.
92. The Registrant claimed during his evidence that the Panel had been provided with an imaging policy that was not in operation at the time of the incident. The Registrant stated, when questioned by the Panel that, the correct policy had a 3mm tolerance. The Panel noted that even based on the Registrant’s version of events the image was out of tolerance. The Registrant’s assertion that the policy relied on by Witness 4 was not the correct policy was raised during his oral evidence and written statement. The Registrant in his witness statement [and in the Trust interview] stated that he sought permission to treat the patient out of tolerance from a Band 7 radiographer. However, the Panel accepted the evidence of Witness 4 that the Head and Neck Imaging Protocol in the exhibits bundle was the protocol in force at the relevant time.
93. Accordingly, particular 6 was found proved.
Particular 7 - Found Proved
‘On or around 6 March 2012 you refused to complete Multi Leaf Collimator (MLC) checks prior to treating a patient which could have potentially led to a non-recoverable error.’
94. The Panel accepted the evidence of Witness 7. The Panel had regard to the MLC policy which clearly states that it should be checked prior to treatment. The Panel noted that the contemporaneous record confirmed that the MLC check was not done before treating the patient. There was also evidence in the treatment logs that the checks were carried out post treatment.
95. The Registrant stated in his oral evidence that he did not follow the protocol because in practice there was an alternative method in use within the department. He informed the Panel that there had been meetings at the Trust in which the team were instructed patients should not be kept waiting in order to carry out MLC checks and that the pre-port method should be used instead. However the Panel accepted the evidence of Witness 7 that the Trust policy at the time of the incident was to check MLC’s and this had not been done.
96. Accordingly, particular 7 was found proved.
Particular 8 (Dishonesty) - Found Proved
‘Your actions described in paragraph 3 were dishonest.’
97. The Panel took into account its finding in relation to particular 3. The Panel was satisfied that the Registrant’s sole motivation for amending the patient’s records was to cover up the omissions and failings he had made.
98. In reaching this conclusion the Panel took into account the chronology of events. On 17 July 2013, the Registrant was made aware of the concerns regarding the treatment delivery of Patient A and Patient C. On 18 July 2013, the Registrant was made aware of concerns regarding the treatment delivery of Patient B. On 19 July 2013 the Registrant was informed via a letter that a formal investigation into his alleged conduct had been commissioned. The Registrant made the retrospective entry on Patient B’s records on 24 July 2013 in respect of the 9 July 2013 appointment, made a further retrospective entry on Patient B’s record on 29 July 2013, in respect of the 28 June 2013 appointment and made a retrospective entry on Patient C’s records in respect of the 11 July 2013 appointment. The Panel rejected the Registrant’s explanation that he was ‘harmonising’ the records and rejected his suggestion that he was unaware that a retrospective entry should make it clear that it was not made contemporaneously and that he made similar ‘errors’ on other patient records during the ‘harmonisation process’. The Panel concluded that the Registrant’s actions in attempting to cover up his failings were dishonest.
99. The Registrant stated in his oral evidence that he used his correct login details and invited the Panel to conclude that this indicated that his motive was ‘innocent’. The Panel rejected this. The Panel was satisfied that although the ‘cover up’ was not sophisticated it was still dishonest. The Panel concluded that it was reasonable to infer that the Registrant pinned his hopes on a reader being misled by the treatment timeline on Mosaiq and not interrogating the system to identify the input history.
100. Having considered the nature and overall context of the retrospective entries the Panel was satisfied that the Registrant’s actions were dishonest by the standards of reasonable and honest people and that he knew his actions were dishonest by those standards.
101. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2)  1 AC 311 where it was stated 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 by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”
102. The Panel took into account the oral submissions of Ms Alexis, on behalf of the HCPC and those made by the Registrant. Ms Alexis submitted that the Registrant’s conduct amounted to misconduct and/or lack of competence and that as a consequence his fitness to practise is currently impaired. The Registrant did not seek to go behind the Panel’s determination of the facts. He acknowledged that based on the Panel’s factual findings it may find both misconduct and impairment. The Registrant accepted that his fitness to practise is impaired on the basis that he has not practised as a therapeutic radiographer for 3 years.
103. The Panel accepted and followed the advice of the Legal Assessor.
Lack of Competence
104. The Panel noted that the concerns raised with regards to the Registrant’s work related to no more than 7 patients during a period of approximately 18 months. In the context of a busy radiotherapy department where the Registrant may have been treating up to 40 or 50 patients a day the Panel concluded that this did not represent a fair sample upon which the Panel could make a judgment as to the Registrant’s overall competence. In any event the Panel was satisfied that the Registrant knew what was expected of him as a radiographer and was capable of working to the required standard but did not do so.
105. The Panel concluded that the Registrant’s acts and omissions did not establish a lack of competence.
106. The Registrant failed to act in the best interest of service users during a period of approximately 18 months between March 2012 and August 2013, when he failed to follow Protocols, in various practise areas, in relation to up to 7 patients and sought to cover up some of those omissions. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that the Registrant’s conduct breached the following standards:
· 1 - You must act in the best interest of service users.
· 3 - You must maintain high standards of personal conduct.
· 7 - You must communicate properly and effectively with…other practitioners
· 10 – You must keep accurate records.
· 13 – You must behave with honesty and integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.
107. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner. The Registrant, despite 20+ years of experience as a radiographer, repeatedly failed to meet the standards expected of him for a significant period of time. The Registrant’s behaviour cannot be described as a momentary failure or a temporary lapse of clinical judgement. Although the Registrant was warned and made subject to an action plan, by the Trust in November 2011, for failing to follow the departmental Protocols, he went on to repeat these failings on several occasions. When the Registrant’s errors were brought to his attention rather than addressing his wrongdoing he sought to cover it up.
108. The Panel noted that no harm came to any of the patients as a direct consequence of the Registrant’s acts or omissions. However, in the Panel’s view his conduct and behaviour presented a significant risk of harm, which was unnecessary and avoidable.
109. In addition to patients, the Registrant’s conduct had the potential to adversely affect colleagues within his team, the wider profession and the reputation of the Trust. Confidence and trust amongst colleagues is extremely important; they should be able to expect that individuals within the team can be relied upon to work in accordance with established policies and act with honesty and integrity at all times.
110. The Panel was satisfied that the Registrant’s failure to follow the Protocols and his conscious and deliberate decision to dishonestly attempt to mislead the Trust when his failings were discovered amounts to serious misconduct as described in the Roylance case.
Decision on impairment
111. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.
112. In determining current impairment the Panel had regard to the following aspects of the public interest:
· The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and
· The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
113. The Panel took the view that its factual findings, in relation to the failure to follow the Protocols and dishonestly attempting to cover up his failings raise public safety concerns. The Registrant abused his position of trust, demonstrated a persistent lack of judgment and a complete disregard for the safety and wellbeing of those patients.
114. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.
115. The Panel noted that the relevant events date back to March 2012 to August 2013. However, there was very little indication that he had reflected on his behaviour in any meaningful way or any clear expressions of remorse for the impact his behaviour had on others.
116. Although the Registrant has engaged with these proceedings there was no evidence before the Panel that he fully appreciates the gravity of his misconduct, there was no explanation as to how he would behave differently in the future and no assurance that such serious misconduct would not be repeated. There was also no evidence before the Panel that the Registrant has kept his clinical skills up to date. The Registrant informed the Panel that he has not worked in a clinical role as a radiographer for 3 years, although he has lectured at a University of Calabar, Nigeria and worked in a fellowship role at the International Atomic Energy Agency. In the absence of a sufficient level of insight and any steps he has taken towards remediation since the events of 2012/2013, the Panel concluded that there is a real risk of repetition. The Panel was particularly concerned by the pattern of behaviour over an extended period of time. As a consequence, the Panel has determined that there is a current and ongoing risk of harm to patients.
117. The Panel recognised that demonstrating remediation in a case involving dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. The Panel noted that the Registrant’s dishonest conduct relates to a discrete set of circumstances, which may have the potential to be remediated, provided that there is evidence of sincere and meaningful reflection that demonstrates that the dishonesty is firmly in the past and is not a deep seated attitudinal trait. However, the Registrant has provided no information that would assist the Panel in this regard. His dishonest conduct demonstrated a conscious and deliberate attempt to mislead colleagues and the Trust. As a consequence of the Registrant’s pattern of behaviour the Panel took the view that the risk of repetition is high.
118. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.
119. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
120. Members of the public would be extremely concerned to learn that a radiographer had delivered treatment to patient outside the relevant policies and Protocols and then sought to cover some of these omissions up, as this clearly has the potential to compromise the safety and well-being of patients. It is critically important that colleagues and service users can rely on the integrity of radiographers at all times. Candid and honest admissions, when things go wrong, are a vital part of that process.
121. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is not acceptable a radiographer to dishonestly attempt to mislead colleagues and his employer. The Panel takes the view that until the Registrant has remediated his wrongdoing, he poses a risk to patients. The Panel also concluded that the Registrant has also brought the profession into disrepute, breached a fundamental tenet of the profession by failing to act in the best interest of patients and on more than one occasion demonstrated a lack of integrity. There is a risk that all of these features are likely to be repeated in the future.
122. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.
123. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.
Decision on sanction
124. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.
125. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Ms Alexis, on behalf of the HCPC, and those made by the Registrant.
126. The Panel identified the following aggravating factors:
· length of time the failures to follow policies and procedure persisted;
· the dishonesty was repeated;
· absence of a sufficient degree of insight;
· absence of remorse and remediation.
127. The Panel identified the following mitigating factors:
· previous good character and previous unblemished career;
· absence of any further complaints.
128. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s repeated misconduct and dishonest behaviour and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.
129. The Panel went on to consider whether to impose a Caution Order and noted paragraph 22 of the ISP which states:
“A caution order is an appropriate sanction for cases, 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 action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”
130. In view of the Panel’s findings that the Registrant has demonstrated limited insight into his misconduct, provided no evidence of remediation, and that the possibility therefore remains his behaviour may be repeated, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.
131. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states:
‘conditions of practice are unlikely to be suitable in situations where problems cannot be overcome, such as serious overall failings, lack of insight, denial or matters involving dishonesty or the abuse of service users”.
132. The Registrant’s dishonest actions are not amenable to conditions, as the basis for this type of misconduct is an attitudinal failing. Furthermore, as the Registrant failed to comply with the policies and Protocols within the Trust, has demonstrated only limited insight into his failings and has not kept his clinical skills up to date, the Panel had no confidence that conditions are currently workable. In any event, the Panel concluded that conditions would not adequately address the serious nature of the Registrant’s misconduct and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.
133. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered radiographer. Although the Registrant has not worked as a radiographer for 3 years, he appears to remain committed to the profession. In the Panel’s view the Registrant should be given the opportunity to demonstrate that he can ‘redeem’ himself and noted that paragraph 31 of the Indicative Sanctions Policy states:
‘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 the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings then suspension may be appropriate.’
134. The Panel considered that the above paragraph may apply to the Registrant and that he should be given an opportunity to consider carefully the decision of this Panel and reflect on his previous conduct and behaviour.
135. In the Panel’s view the nature and seriousness of the Registrant’s dishonesty has the potential to undermine public confidence, however, in these circumstances a Suspension Order would be sufficient to maintain public confidence in the profession and the regulatory process and would have a deterrent effect on other registrants. The Panel balanced the wider public interest against the Registrant’s interests. In doing so the Panel took into account the fact that the Registrant has been unable to find full-time employment for a significant period of time and the consequential personal, financial and professional impact this has had upon him.
136. The Panel decided that the appropriate and proportionate order is a Suspension Order. A Striking Off Order would be disproportionate and punitive. The Panel determined that the Suspension Order should be imposed for a period of 12 months. The Panel was satisfied that this period would be sufficient for the Registrant to demonstrate an appropriate level of insight into his failings. If he is unable to demonstrate insight within that time frame it is highly unlikely that he will ever be able to do so.
137. This Order will be reviewed shortly before expiry. Although this Panel cannot bind a future reviewing panel, that panel is likely to be assisted by the following:
(i) A full and substantive reflective statement from the Registrant which addresses his understanding of the need to comply with policies and protocols as a healthcare professional;
(ii) Details of how the Registrant has kept his radiotherapy skills and knowledge up to date during the period that he has not been working as a radiographer, which may include up to date CPD.
(iii) Evidence of insight into the impact his conduct and behaviour has had on patient safety, the profession and public confidence;
(iv) Independent character references from individuals who are able to attest to the Registrant’s honesty and integrity.