Mr Sathish K Moses

Profession: Radiographer

Registration Number: RA52110

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 30/01/2017 End: 17:00 01/02/2017

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

(as amended at the Final Hearing)

During the course of your employment as a Radiographer for the Lewisham and Greenwich NHS Trust, you:

1.             On an unknown date you bought car parking permit from Colleague A for £90.00.

 

2.             The parking permit referred to at paragraph 1 above was unauthorised.

 

3.             Used the parking permit referred to at paragraph 1 above to park your vehicle at Queen Elizabeth Hospital car parks from an unknown date to 13 May 2014.

 

4.             Your actions described in paragraphs 1, 2 and/or 3 were dishonest.

 

5.             The matters described in paragraphs 1 - 4 constitute misconduct.

Finding

Preliminary Matters

 

Application to amend the allegation

 

1.             Ms Sharpe made an application to amend the particulars of the Allegation in various respects. Notice of the proposed application to amend was sent to the Registrant by letter dated 31 August 2016. Mr Bromley, on behalf of the Registrant, did not oppose the application. In the Panel’s judgment the proposed amendments served to clarify the particulars of the Allegation without materially altering its substance. No injustice would be caused to the Registrant by making the amendments. The application was therefore granted. The particulars as amended are set out above.

 

Background

 

2.             The Registrant was employed as a Band 7 Radiographer at Lewisham and Greenwich Hospital Trust (“the Trust”) from 28 October 2013. He was based at the Trust’s Queen Elizabeth Hospital site. On 13 May 2014, the Registrant was found by a parking attendant to be using an unauthorised parking permit for the purpose of parking his car in the hospital car park. The incident was reported to the Trust and investigated by MH, who was employed as the Assistant Director of Service Delivery at the Trust. MH ascertained that the permit used by the Registrant was not a genuine permit. MH interviewed the Registrant on 17 November 2014. In the course of that interview, the Registrant stated that he was unaware of the procedure for purchasing a parking permit, and that he had heard from a colleague, RS, that another colleague, AA, had a parking permit that he was willing to sell. Thereafter, the Registrant met AA, who said that he had a parking permit which was valid until November 2014 and AA agreed to sell it to the Registrant for £90. In fact the permit was a counterfeit and the means by which the Registrant had acquired the permit, even had it been genuine, were unauthorised. The investigation led to a disciplinary hearing on 28 April 2015.

 

3.             The matter was reported by the Trust to the HCPC, resulting in these proceedings.

 

Decision on Facts

 

4.             At the start of the hearing the Registrant admitted particulars 1, 2 and 3 but denied that he was dishonest as alleged in particular 4.

 

5.             The HCPC presented a Core Bundle totalling 35 pages and an Exhibits Bundle totalling 91 pages. In addition, the HCPC called the following three witnesses to give evidence in support of the allegation:

 

     MH (Witness 1), who was appointed by the Trust to investigate the incident;

 

     AA (Witness 2), a Band 6 Radiographer employed by the Trust, who sold the parking permit to the Registrant;

 

     RS (Witness 3), a Senior Radiographer employed by the Trust, and the colleague who informed the Registrant that AA had a parking permit that he was willing to sell.

 

6.             The Registrant submitted a witness statement dated 27 January 2017 and a number of testimonials.

 

7.             The relevant statutory ground relied on by the HCPC in this case is misconduct.

 

Burden and standard of proof

 

8.             The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so that the particulars of the Allegation must be proved on the balance of probabilities. The Panel took into account submissions by Ms Sharpe on behalf of the HCPC and Mr Bromley on behalf of the Registrant. The Panel accepted the advice of the Legal Assessor.

 

9.             With regard to the allegation of dishonesty, the Panel applied the following legal principles:

 

     the test in relation to dishonesty is a two part test (R v Ghosh [1982] QB 1053, as modified by Twinsectra Ltd v Yardley [2002] UKHL 12):

 

     on the balance of probabilities, whether, according to the ordinary standards of reasonable and honest members of the Registrant’s profession, what was done by the Registrant was dishonest; and, if so,

 

     on the balance of probabilities, whether the Registrant himself must have known that what he was doing was dishonest by those standards;

 

     dishonesty requires consciousness that one is transgressing ordinary standards of honest behaviour: When considering an allegation of dishonesty, therefore, it is crucial that the Panel considers specifically the Registrant’s state of mind.

 

The witnesses

 

10.           The Panel found the evidence of MH to be consistent, reliable and credible. However, as the Investigating Officer, she was unable to give any direct evidence as to the circumstances in which the Registrant acquired and used the parking permit.

 

11.           The Panel found the evidence of AA, the colleague who sold the permit to the Registrant, to be evasive and unreliable. Where his evidence differed from that of the Registrant, the Panel preferred the latter.

 

12.           The Panel found the evidence of RS to be reliable but limited in relevance to the fact that he had informed the Registrant that AA had a parking permit that he was willing to sell.

 

13.           The Panel found the Registrant to be a credible witness.

 

Panel’s Decision

 

14.           The Panel found particulars 1, 2 and 3 proved on the basis of the undisputed evidence provided by the HCPC and the admissions of the Registrant.

 

15.           With regard to particular 4, the Panel found that in applying the objective test, the act of purchasing and using an unauthorised parking permit was dishonest.

 

16.           However, in the particular circumstances, the Panel found that the Registrant was not aware at the time that his purchase and use of the permit was dishonest for the following reasons:

 

     the Registrant was reassured by the fact his colleague, RS, had informed him that AA had a parking permit to sell. RS did not suggest to the Registrant that there would be anything untoward in obtaining a permit in this way. Having seen RS give evidence, the Panel considered that he would have impressed the Registrant as a person of integrity, who would not have suggested to the Registrant that he should engage in a dishonest course of action.

 

     The Panel accepted the Registrant’s evidence to the effect that AA had sought him out at work and led the Registrant to understand that he had a genuine parking permit, valid until November 2014, which he was willing to sell to the Registrant.

 

     The Panel accepted the Registrant’s evidence that he believed that, having paid AA £90 for the parking permit, he was thereby entitled to use it.

 

     The Panel accepted the Registrant’s evidence that he saw nothing on the face of the parking permit, which led him to believe that it was not genuine or that he was not allowed to use it.

 

     The Panel accepted the Registrant’s evidence that, when confronted by the parking attendant on 13 May 2014, he protested that he had paid for the parking permit and was therefore entitled to use it. The Panel considered that the Registrant’s spontaneous reaction was consistent with his belief that the permit was genuine and that he was entitled to use it.

 

     MH’s investigation notes confirmed that, immediately after the Registrant had been confronted by the parking attendant, he went to see PP, his line manager, who was the Radiology Services Manager, to explain what had happened and that he had purchased the permit from a colleague in good faith. When PP told the Registrant that he should not have done so, the Registrant did not accept her view and went to see a more senior colleague who confirmed to the Registrant that he should not have purchased a permit from a colleague. The Panel considered that the evidence of the Registrant’s spontaneous reaction of shock and surprise to the revelation that the permit was not genuine, and that he was not entitled to use it, lends credence to his evidence that he did not believe that he had done anything wrong.

 

     The Panel also took into account the fact that the Registrant had only worked for the Trust since 28 October 2013, that he had not previously been employed by the NHS, and had not taken the time or trouble to acquaint himself with the policies relating to the correct procedure for acquiring a parking permit.

 

17.           Whilst the Panel considered that the Registrant was both careless and naïve in believing that it was permissible to buy the unexpired term of a parking permit from a colleague, the Panel was not satisfied, on the balance of probabilities, that he realised that his actions were dishonest. Accordingly, particular 4 is not proved.

 

 

Decision on Grounds

 

18.           The Panel went on to consider whether the facts found proved amounted to misconduct, as alleged in particular 5.

 

19.           The Panel carefully considered the submissions by Ms Sharpe on behalf of the HCPC and Mr Bromley on behalf of the Registrant. The Panel accepted the advice of the Legal Assessor.

 

20.           The Panel was mindful that this is a matter for the Panel’s professional judgment, there being no standard or burden of proof.

 

21.           The Panel took into account that misconduct was defined in Roylance v General Medical Council (no 2) [2001] 1 AC 311 as:

 

“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 medical practitioner in the particular circumstances”.

 

22.           It is clear from case law that misconduct must be serious.

 

23.           Misconduct can be of two principal kinds:

 

     misconduct in the exercise of professional practice which is so serious that it can be properly described as misconduct going to fitness to practice;

 

     conduct of a morally culpable or otherwise disgraceful kind which may occur outside the course of professional practice but which brings disgrace upon the practitioner and thereby prejudices the reputation of the profession.

 

24.           Mere negligence does not constitute misconduct but negligent acts or omissions can amount to misconduct if they are particularly serious.

 

25.           The Panel noted that the Registrant’s conduct was outside his professional practice as a Radiographer. However, it did take place in the course of his employment and at his place of work. It was to the detriment of his employer.

 

26.           In its findings of fact, the Panel considered that, judged by objective criteria, the actions would have been considered dishonest. In the Panel’s judgment, the Registrant’s conduct fell seriously below the standards to be expected of a Band 7 Radiographer. It was, at the very least, gross carelessness on his part not to apply his mind to the questionable circumstances in which he bought, what turned out to be, a false parking permit from AA, and which, by the standards of ordinary standards of reasonable and honest people, would be regarded as dishonest.

 

27.           In the Panel’s judgment the Registrant was in breach of paragraph 13 of the HCPC’s Standards of Conduct, Performance and Ethics, which provides that “You must behave with honesty and integrity and make sure that your behaviour your behaviour does not damage the public’s confidence in you or your profession.” Albeit that the Panel has found dishonesty not proved, this was a serious lapse of judgment on the part of the Registrant, which had the effect of damaging public confidence in the Registrant, as a Band 7 Radiographer, and his profession.

 

 

Decision on Impairment

 

28.           The Panel carefully considered the submissions by Ms Sharpe on behalf of the HCPC and Mr Bromley on behalf of the Registrant. The Panel took into account the HCPC Practice Note on Impairment of Fitness to Practise and accepted the advice of the Legal Assessor.

 

29.           In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the “personal” component 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 towards remediation. 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.

 

30.           With regard to the “personal” component, the Panel considered that the Registrant had shown some insight into his failure to exercise proper care but had not fully grasped the potential detriment of his behaviour in terms of how it would be viewed by his profession or the public. The Panel considered that the risk of repetition was low.

 

31.           With regard to the “public” component of impairment, the Panel took into account the need to declare and uphold proper standards of behaviour and considered that public confidence in the profession and the regulator would be undermined if there were no finding of impairment.

 

32.           Accordingly, the Panel found that the Registrant’s fitness to practise is impaired by reason of his misconduct.

 

 

Decision on Sanction

 

33.           The Panel took into account the submissions of Ms Sharpe for the HCPC and Mr Bromley for the Registrant.

 

34.           The Panel took into account the HCPC’s 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 of upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

 

35.           The aggravating factor in this case is that, as a Band 7 Radiographer, the Registrant should have known better than to act as he did and should have been aware of the poor example that his conduct might set, in particular to more junior colleagues.

 

36.           The mitigating factors are:

 

     this was an isolated incident in an otherwise unblemished career;

 

     there was no risk to patients and the Registrant’s professional practice is not in question;

 

     the Registrant has provided a number of supportive references and testimonials which speak well of his general character and professional conduct.

 

37.           The case is too serious for the Panel to take no further action.

 

38.           Mediation is not appropriate in a case where the Panel has decided that some sanction is required.

 

39.           The Panel has determined that a Caution Order for a period of one year is the appropriate and proportionate sanction by way of a deterrent and in order to send a message to the profession and the public that the Registrant’s misconduct was unacceptable.

 

40.           The Panel considered whether to impose a Conditions of Practice Order but concluded that such an order would not be appropriate in this case as the Registrant’s misconduct did not relate to his professional practice.

 

Order

That the Registrar is directed to annotate the register entry of Mr Sathish K Moses with a Caution which is to remain on the register for a period of one year from the date this Order comes into effect.

Notes

The Order imposed today will apply from 28 February 2017.

Hearing History

History of Hearings for Mr Sathish K Moses

Date Panel Hearing type Outcomes / Status
30/01/2017 Conduct and Competence Committee Final Hearing Caution