Ms Memory Z Madziva
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Allegation (As amended at Substantive Hearing):
Allegation (As amended at Substantive Hearing):
Whilst registered as a Radiographer:
1. On 4 December 2013, whilst engaged as an agency radiographer by United Lincolnshire Hospitals NHS Trust (ULHT) you attended Pilgrim Hospital on a day you were due to work, whilst under the influence of alcohol.
2. On 17 February 2014 whilst engaged as an agency radiographer by Surrey and Sussex NHS Trust at Horsham Hospital, you did not respond appropriately to Patient B’s requests for assistance during the clinical examination.
3. The matters described in paragraphs 1 and 2 constitute misconduct and/or lack of competence.
4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Service & Jurisdiction
1. The Registrant did not attend the hearing but she was represented by Mr Welch. There was no issue taken with the notification of the hearing. The available documents showed that the Hearing Notice was sent to the Registrant’s registered address on 2 February 2017 in accordance with the rules.
Application to amend the allegation
2. The HCPC applied to make two amendments. In relation to Particular 1 Ms Turner applied to delete ‘Radiology department’. In relation to Particular 2 the HCPC applied to delete the word ‘employed’. Ms Turner argued that these amendments were necessary so that the Particulars were accurate. The HCPC’s case was not that the Registrant had attended the Radiography Department but that she had attended the hospital. In relation to Particular 2 the Registrant was ‘engaged’ as an agency Radiographer rather than ‘employed’ by the Surrey and Sussex NHS Trust. Ms Turner submitted that there was no prejudice to the Registrant and that the amendments were minor and for clarification purposes only. There was no objection to the amendments from Mr Welch.
3. Further, of its own volition, the Panel amended the name of the Trust in Particular 1 to read ‘United Lincolnshire Hospitals NHS Trust (ULHT).
4. The Panel received and accepted the advice from the Legal Assessor regarding the power to amend.
5. The Panel acceded to the application. Both amendments were corrections of mistakes and were minor in nature and necessary so that the particulars were accurate. The Panel concluded that the amendments were for clarification and accuracy only. The Panel found that the amendments to Particular 1 and 2 could be allowed, without causing unfairness to the Registrant and that the amendments were in the interests of justice.
Response to Allegation
6. The Registrant did not attend the hearing but denied the allegations through her Counsel and provided a statement.
7. The allegations arise from two of the Registrant’s placements as an agency radiographer. In relation to allegation 1, the Registrant worked as a Locum Radiographer in the Radiology department at Pilgrim Hospital from 2 December 2013. It is the HCPC’s case that on 4 December 2013, the Registrant was seen falling out of a taxi and was not wearing shoes. She was assisted by Witness 1, a Housekeeping Assistant working at the hospital who smelt alcohol on her breath and noticed that her eyes were glazed and her speech slurred. She was unsteady on her feet and fell into some bushes.
8. The Registrant had been due to begin a shift that day at 1.00 pm at the Hospital. She was taken to A&E where members of the Radiology department were called to see her. She left the department before she could be examined.
9. The Registrant did not return to work at Pilgrim Hospital after this incident.
10. The second allegation related to an incident within the Surrey and Sussex NHS Trust where the Registrant had been working as a Locum Radiographer in the Radiology Department at Horsham Hospital from 3 February 2014. A complaint was received from Patient B on 24 February 2014. Patient B, a 79 year old lady complained that the Registrant had behaved inappropriately on the 17 February 2014 when she had attended for an X-ray. Patient B alleged that the Registrant did not help her to get up onto the X-ray bed, and did not give her a pillow on request prior to the X-Ray examination. Patient B also indicated that the Registrant was aggressive in positioning her foot on the X-ray cassette and spoke to her in an intimidating manner.
11. The Panel determined that rather than hearing Stage 1 (fact finding) and Stage 2 (impairment) together, these stages should be considered separately because the parties’ subsequent submissions would be better informed by knowing the factual findings, particularly as the Registrant had not attended the hearing and there had been no oral evidence from the Registrant.
12. The Registrant provided a statement at the end of the HCPC’s case. The statement was in line with the case put on her behalf by Mr Welch. In essence the Registrant accepted that she arrived at work in a taxi, that she might have smelt of alcohol as she had been drinking the night before. She stated that she had caught her foot in the door of the taxi as she was getting out and had fallen. She accepted that she was distressed but asserted that this was because Witness1 had pulled her to her feet. She stated that she was in a lot of pain because of the injury she had sustained and that she lost her footing and fell into a hedge. She stated that someone kindly offered her a wheelchair to sit down in. She stated that she was neither drunk nor slurring her speech.
13. In relation to Particular 2, the Registrant denied in her statement being rude to Patient B. She stated that the bed was not at full height and was below Patient B’s bottom. She denied that the bed was at waist height as alleged by Patient B. The Registrant stated that Patient B asked for an additional pillow, which she did not have. The Registrant accepted that she asked Patient B to lie flat and to stay still so that she could obtain the diagnostic images but asserted that she did not do so rudely.
14. The Panel was aware that the burden of proving the facts lies with the HCPC. The Registrant did not have to prove anything and the allegations could only be found proved, if the Panel was satisfied, on the balance of probabilities that the HCPC had made out its case.
15. In reaching its decision the Panel took into account all of the evidence (oral, written and documentary, including the Registrant’s statement). The Panel has approached each of the allegations separately. The Panel also took into account the oral submissions from both parties.
Assessment of Witnesses Particular 1
16. The Panel found Witness 1 to be honest and credible and noted that she found the incident upsetting. The Panel accepted her evidence that she was asked to write only a brief statement in December 2013. During her evidence she acknowledged that there were inconsistencies between her first statement and later witness statement (March 2015) and her oral evidence. (The inconsistencies related to who called for help when the Registrant was trying to get out of the taxi and who she had asked to get a wheelchair). The Panel found that these discrepancies did not make her evidence unreliable. Witness 1 was consistent on the central issues which went directly to particular 1. The Panel accepted Witness 1‘s evidence that, as a Housekeeping Assistant within the A & E department, she had experience of identifying people under the influence of alcohol and that she could identify that the Registrant smelt of alcohol, her speech was slurred and that she was staggering.
17. Witness 2 is the Senior Services Manager at Pilgrims Hospital. He did not attend the hearing to give live evidence, but made himself available to give his evidence over the telephone. He attended A&E when notified by that department that they had a disruptive patient who was claiming to be a Radiographer. The Panel accepted his evidence and found him to be reliable, fair and balanced. He did not make assumptions and although he had some direct evidence he was clear that he did not get close enough to the Registrant to smell alcohol on her breath. He confirmed that the Registrant was due to begin a shift at 1.00pm and was not in a fit state to work. When he asked her questions she was unresponsive.
18. Witness 3 was the Registrant’s supervisor. She was not present at the time of the incident and could not give any direct evidence relating to the issues. There was no dispute about her evidence.
Findings on Particular 1
19. There was no dispute that the Registrant was due to work as a Radiographer and to begin her shift at 1.00pm or that she arrived for work in a taxi. The sole issue was whether the Registrant arrived to begin her shift under the influence of alcohol. The Registrant left A&E before she could be properly examined.
20. The only evidence that the Registrant arrived at work under the influence of alcohol came from Witness 1. The Panel found Witness 1’s evidence on the point to be clear and reliable. The Panel have taken into account the fact that she had experience working in A&E and often encountered patients who were under the influence of alcohol. The Panel accepted her evidence that the Registrant was in the taxi when she first heard her, had her shoes in her hand rather than on her feet, was hostile, fell out of the taxi and that she was staggering and subsequently fell into bushes, sustaining cuts to her head. The Panel further accepted that the Registrant’s gait was not consistent with someone who was hobbling as a result of an injury she had just sustained. The Panel noted that the Registrant left the hospital before she could be examined which is inconsistent with a recently sustained foot injury. The Registrant herself stated in her statement that Witness 1 might have smelt alcohol on her, from the previous evening and she admitted that she lost her balance, fell into a hedge and hit her head. Taking this together with the fact that the Registrant left A&E before she could be assessed, the Panel accepted on the balance of probabilities that Particular 1 was made out.
Decision on Grounds Particular 1
21. The Registrant was due to start work. The Panel accepted that there was no evidence that a service user suffered but this is because the Registrant was stopped before she began her shift. As a Radiographer the Registrant had a duty to ensure that she was in a fit state to work. Her work involved face to face contact with the public who needed assurance that their X ray would be carried out work by a competent and professional radiographer, rather than by someone under the influence of alcohol.
22. The Panel found clear breaches of the HCPC Standards of Conduct, Performance and Ethics 1, 3 and 13.
1) You must act in the best interests of service users;
3) You must keep high standards of personal conduct;
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;
23. The Panel also found breaches of the HCPC Standards of Proficiency for Radiographers 3.1 and 8.
3.1) understand the need to maintain high standards of personal and professional conduct;
8) be able to communicate effectively;
24. The Panel concluded that arriving at work under the influence of alcohol is so serious that it amounts to misconduct.
25. The evidence in relation to Particular 2 came from Patient B and from Witness 4. Patient B is an elderly lady. She wrote a letter of complaint to the hospital three days after the incident. A witness statement was prepared in March 2016 which Patient B signed. Patient B gave her evidence via video link. By the date of the hearing Patient B was 82 years old. There was a file note from March 2016 which stated that a member of the Scheduling Team from HCPC had telephoned Patient B. Patient B stated that she had memory problems and was on medication for this. However, during her evidence Patient B denied memory problems. The Panel have approached Patient B’s evidence with caution. She became confused over the witness statement that was taken in March 2016 and denied making it, even though she accepted that the signature was hers. Patient B was clear that she could remember the events of February 2014 and writing a letter of complaint. Her evidence in relation to the events of the 17 February 2014 was consistent with her account given at the time of the incident. The Panel found that she had capacity and that she was reliable on the key issues. In reaching a decision the Panel has attached significant weight to the letter of complaint written at the time of the incident but has disregarded completely the account contained in the statement prepared in March 2016 because Patient B did not recall making it.
26. The Panel found Witness 4 to be honest, professional and credible. Her evidence was that she checked the records and found that Patient B had not complained before. When Witness 4 spoke to Patient B shortly after receiving the complaint she said Patient B gave a clear account, consistent with the letter of complaint and seemed genuine.
Findings on Particular 2
27. The Panel found Particular 2 proved. In reaching this conclusion the Panel have relied heavily on the complaint letter written by Patient B, three days after the incident. She repeated the complaint to Witness 4. Whilst the Panel approached Patient B’s evidence with caution, the Panel noted that her evidence of the events of the day have remained largely consistent. Whilst Patient B did get confused during her oral evidence, the Panel noted that she may have had difficulty hearing over the video-link and became muddled partly because counsel for the Registrant, Mr Welch, referred to her complaint letter as her ‘first statement’. Patient B was clear that she had not drafted a statement and referred continuously to her letter. The Panel has disregarded the witness statement. The Panel noted that when approached at the time of the incident the Registrant stated that she could not remember the incident, was apologetic and offered to write a letter of apology. This is inconsistent with the detailed recollection which appeared in the Registrant’s statement prepared for this hearing which amounted to a complete denial of the particular.
Finding on Grounds Particular 2
28. The Panel found the Registrant’s failure to offer assistance to an elderly lady breached the following HCPC Standards of Proficiency for Radiographers.
2.1) understand the need to act in the best interests of service users at all times;
2.3) understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing;
2.4) recognise that relationships 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;
2.8) be able to exercise a professional duty of care;
8) be able to communicate effectively.
In addition the Panel found the Registrant’s behaviour breached 1 and 7 of the HCPC’s Standards of Conduct, Performance and Ethics in force at the time, namely:
1) You must act in the best interests of service users;
7) You must communicate properly and effectively with service users and other practitioners.
29. The Panel concluded that the Registrant’s behaviour on the 17 February 2014 fell short of these standards and was not good practice. However, the Panel was not satisfied that this single episode was so serious as to amount to Misconduct. The Panel was of the view that had the Registrant been employed in a substantive post rather than working for an agency, this incident might have been dealt with internally. In the circumstances the Panel found that although the facts of Particular 2 were proved, the Registrant’s conduct did not amount to a statutory ground.
30. The Panel received an application from Mr Welch to consider additional material in private because it related to health issues. There was no objection from Ms Turner. She agreed that these were matters relating to the private life of the Registrant. The Panel accepted the advice of the Legal Assessor. The Panel took into account that in principle hearings should be held in public, but concluded that this was a case where the Registrant’s right to a private life outweighed that principle. The Private decision contains the full details of the information before the Panel.
31. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct arising from the findings in relation to particular 1. The Panel heard the submissions from Ms Turner and Mr Welch, and have read a further reflective statement prepared by the Registrant and have considered the health matters referred to by the Registrant.
32. The Panel accepted the advice of the Legal Assessor. The Legal Assessor reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired. The Panel took into account the following factors in considering the private component. In particular, the likelihood of repetition, whether the Registrant had insight and had remediated her misconduct. The Panel found:
i) This aspect of the Registrant’s case was dealt with in Private.
ii) The Registrant has shown some insight into the seriousness of the misconduct but her insight is not full. She has not accepted that she attended for work under the influence of alcohol, nor acknowledged the seriousness of turning up to work under the influence of alcohol. This is reflected in the fact that the Registrant contested these proceedings and the Panel were concerned that in her reflective statement, the Registrant stated that she had no intention of working on the day in question, despite the fact that she was wearing her uniform and was due to start a shift.
iii) The Panel is satisfied that the Registrant recognised that she used alcohol as a coping mechanism but note there is no independent evidence that the steps she has taken to address her concerns have been successful save her own assertion that she no longer uses alcohol as a crutch. The Panel cannot therefore be reassured that the Registrant has fully remediated her misconduct despite the significant insight she has demonstrated. Consequently there remains a risk of repetition albeit low.
iv) In October 2014 the Registrant completed CPD to keep her skills up to date. The CPD courses are now out of date.
v) There were no testimonials placed before the Panel relating to paid or unpaid work since 2014. The Panel understands the Registrant is not working at present.
33. In light of the facts summarised above, the Panel find that whilst the Registrant has taken significant steps to remediate her misconduct, she remains impaired on a personal level.
34. In relation to the public component, the breach found in Particular 1 is serious. Radiographers perform an important role in the diagnostic process. They have a duty of care to service users and need to maintain high standards of personal and professional care. They need to be able to assess situations quickly and make and record reasoned decisions. Although the Registrant did not see patients on the day, arriving at work under the influence of alcohol is incompatible with the judgment needed to perform such an important and difficult role. Service users and the public need to have confidence that Radiographers are fit to work when they are on duty. Were there not to be a finding of impairment in this case, public confidence in the profession and the regulatory process would be undermined. It is important for other Radiographers to understand from this case the standards of conduct and behaviour they are expected to meet.
35. The Registrant has breached a core tenet of her role as a Radiographer, namely to act in the best interests of service users, by turning up to work under the influence of alcohol and this impacts directly on the question of impairment. There is, therefore, a very significant public component in this case. The Panel accordingly finds that the Registrant’s fitness to practise is impaired on both the personal and public components.
36. The Panel heard the submissions from Ms Turner and Mr Welch with regard to sanction. The Panel accepted the advice of the Legal Assessor including that the primary function of any sanction is to protect the public, but also to give appropriate weight to the wider public interest. The Panel had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.
37. The Panel considered the aggravating factors in this case to be:
• The misconduct occurred in connection with her employment as a Radiographer.
• There was a potential for harm to be caused.
38. The Panel considered the following to be mitigating factors in this case:
• It has been more than three years since the incident occurred.
• This is a single incident.
• The Registrant took prompt action to seek help for the underlying concerns.
• No actual harm occurred.
39. In considering the matter of sanction, the Panel started with the least restrictive option, moving upwards.
40. The Panel first considered taking no action but concluded that the misconduct found was too serious to not impose a sanction. Further, taking no action would be insufficient to protect the public or satisfy the wider public interest concerns raised by the Panel.
41. The Panel then considered whether to make a Caution Order. The Panel noted that a Caution Order is an appropriate sanction where the risk arises from an isolated incident and there is a low risk of recurrence. The Registrant has shown insight and taken appropriate remedial action promptly of her own volition. The Panel further note that a Caution Order should be imposed where meaningful practice restrictions cannot be imposed. In this case the misconduct found did not arise from clinical failures. Appropriate, realistic and verifiable conditions could not be formulated which addressed the misconduct found and consequently a Conditions of Practice Order would not be appropriate. In light of the remedial steps taken, the risk of repetition is low and suspension from Practice would therefore be disproportionate.
42. The primary function of a sanction is to protect the public from a future risk that the Registrant might pose to those who use her services. However, appropriate weight must also be given to the wider public interest. In deciding to impose a Caution Order the Panel has taken into account the deterrent effect to other Registrants, the need to uphold the reputation of the profession and maintain public confidence in the regulatory process. The Registrant’s misconduct will be marked on the register and whilst the Registrant can return to unrestricted practice all potential employers will be able to view the register and take appropriate steps to manage any risks. The Panel has determined that a period of three years would be appropriate in light of the need to mark the seriousness of the misconduct and protect the public by identifying the basis for the finding. A Caution Order addresses the wider public interests acting as a marker that attending work under the influence of alcohol is not acceptable.
The Registrar is directed to annotate the register entry of Ms Memory Z Madziva with a Caution which is to remain on the register for a period of three years from the date this order comes into effect.
A Final Hearing of the Conduct and Competence Committee took place at 405 Kennington road, London from Monday 22 May to Thursday25 May 2017.
History of Hearings for Ms Memory Z Madziva
|Date||Panel||Hearing type||Outcomes / Status|
|22/05/2017||Conduct and Competence Committee||Final Hearing||Caution|