Mrs Catherine M Birnie

Profession: Radiographer

Registration Number: RA27601

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 10/08/2018 End: 11:30 10/08/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

The below was considered by a Substantive Hearing panel on 24 October 2017:

 

1. In or around June 2013, you submitted at least one image which you did not take, to the Foetal Medicine Foundation, when applying for accreditation to undertake Nuchal Translucency measurements for screening Down’s syndrome.

 

2. You prepared around 8/10 foetal images that were of a poor quality.

 

3. You prepared 9 paired images that were scanned poorly.

 

4. In relation to Person A, a baby born with Down’s Syndrome:
a) your antenatal scans were inadequate in that:
i) you did not detect that the baby had abnormal heart vasculature
ii) you did not detect renal abnormalities until the 32 week scan
5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and:
a) incorrectly reported:
i) that the pregnancy had failed;

ii) that the gestation sac was empty.
iii) that the measurements of the gestational sac measured 1.4mm
b) you only saved one image
6. In relation to Service User E, your report of the image scans taken on 20th February 2014 was inaccurate, in that:
a) you indicated that the service user had an enlarged ovary in-keeping with polycystic ovaries when this was not the case;
b) you inadvertently measured the service user’s uterus instead of her ovaries.
7. The matters set out in paragraphs 1-8 constitute misconduct and/or lack of competence.
10. By your reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

 

The substantive hearing panel decided that the following above particulars were proved:  1;2; 4a) ii, iii; 5a) i, iii, iv; 5b); 8a); 8b). That they amounted to Misconduct (in relation to 1 and 5(b)) and Lack of Competence (in relation to 2, 3, 4(a)(ii), 4(a)(iii), 5 (a)(i), 5(a)(iii), 5(a)(iv), 8(a) and 8(b)). The panel tehrefore found impairment.

 

Finding

Background


1. At the relevant time the Registrant was employed as a Superintendent Ultrasound Sonographer at the Princess Elizabeth Hospital, Guernsey (“the Hospital”).


2. The Hospital adopted the practice of submitting all sonographers’ scan results to the Down’s syndrome Quality Assurance Support Service (“DQASS”) for audit in October 2013. The first such audit covered the period October 2013-April 2014. In respect of the Registrant, the results indicated that improvement would be required to achieve a green standard, as she had been rated as amber.


3. In June 2014, an internal investigation was carried out into an allegation that when applying for accreditation with the Foetal Medicine Foundation (“FMF”) to undertake nuchal translucency scans, the Registrant had submitted images that were not of her own taking.

4. On 27 June 2014, the Registrant self-referred to the HCPC with regard to Particular 1. A disciplinary hearing was held by the Hospital with respect to this matter. During the investigation, other alleged matters came to light. The Registrant subsequently left the employment of the Hospital.

5. The substantive HCPTS final hearing took place on 9-13 January 2017 and 23-24 October 2017. Having made factual findings, the final hearing panel concluded that the Registrant’s submission to the FMF and the saving of only one image in respect of Service User B amounted to misconduct and that the remaining proved facts amounted to lack of competence. The final hearing panel found the Registrant’s fitness to practise to be impaired and imposed a 3 month Suspension Order. The Panel concluded that a future review panel would be assisted by:
• the Registrant’s attendance at the hearing;
• a reflective piece of writing compiled by the Registrant, detailing her insight into the consequences of her actions on service users and the profession
• evidence of CPD and a plan of action in preparation for a return to practice course, should the review panel see fit to allow the Registrant to resume practice.

6. The first review hearing took place on 24 January 2018. That Panel found the Registrant’s fitness to practise remained impaired and imposed a further Suspension for a period of 6 months. That Panel concluded that a future reviewing Panel may be assisted by the following:
• A completed and comprehensive reflective piece of writing compiled by the Registrant, detailing her insight into the consequences of her actions on service users, the profession and the public;
• Documentary evidence of CPD activities which specifically address the Registrant’s misconduct and lack of competence and compliance with the HCPC Return to Practice requirements
• A clear plan of action which sets out a route by which the Registrant might return to practice as a Radiographer;
• Any references and testimonials from paid or unpaid work with regards to skills and/or knowledge relevant to Radiography;
• Any other evidence or information which the Registrant considers would be of assistance.

Decision on impairment

7. Mr Mason, on behalf of the HCPC, submitted that the Registrant has shown an increased level of insight since the last hearing. However, he submitted that she is yet to demonstrate remediation of the matters found proved, and having been out of practice for more than 3 years is likely to be at a lower standard than she was when she last practiced. Mr Mason however submitted that a further suspension may not be necessary if workable conditions could be formulated, and reminded the Panel that it is difficult to remediate past concerns if a Registrant is suspended.

8. The Registrant gave live evidence before the Panel. The Panel found her to be open and honest.

9. The Registrant told the Panel that it has been difficult to keep her practical skills up to date. There is only one hospital in Guernsey, which is the same hospital at which the concerns with the Registrant’s practice arose. Having approached the hospital for supervised clinical experience, this was refused by letter dated 24 April 2018, on the basis of her previous record there. She intended to approach them again towards the end of this year to request an opportunity for either voluntary to work or as a healthcare assistant.

10. The Registrant expressed remorse for her actions. She told the Panel that she had had an emotional meeting with the mother of the baby with Downs Syndrome referred to in Particular 4 and that such a meeting had been important for her to have.

11. The Registrant informed the Panel that due to not having practised for 3 years she would have to do a return to practise course before she could be employed as a radiographer, and that she had already made enquiries about this. She informed the Panel that she felt it was
necessary to undertake a return to practise programme whether in a radiology department or university, before she could practise again in her own right. She was clear that she had no interest in, and would never undertake, obstetric ultrasound, a field in which she felt she was inexperienced. She had made some enquiries about the return to practise course, which she would not be able to undertake in the UK until 2020 due to family reasons.

12. The Registrant informed the Panel that she had undertaken some online training (although no evidence of this was provided), and that she had begun to do more reading and online research. The Registrant submitted that Conditions would assist her in returning to work.

13. The Panel read the Registrant’s reflective statement as well as all of the documentary information before it and considered the submissions of the parties.

14. At one point the Panel raised the issue as to whether the Registrant was legally required to undertake a return to practice course before she could return to practice as a registered radiographer. Mr Mason helpfully made some enquiries of the HCPC Registrations Department, which confirmed that the Registrant is not legally required to do so.

15. The Panel accepted the advice of the Legal Assessor and took into account the HCPTS Practice Notes on Finding Impairment and on Article 30 Reviews. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice. The Panel must exercise its own independent judgement with regard to impairment and sanction. The Legal Assessor reminded the Panel that it should take into account proportionality and have regard to the HCPC’s Indicative Sanctions Policy. She reminded the Panel that, by way of applying proportionality, any order that it makes should be the least restrictive order that would suffice to protect the public or is otherwise in the public interest.

16. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel noted that the previous Panel at the substantive hearing found impairment on the basis that there remains a risk to service users, and that public confidence would be undermined if no finding of impairment were made.

17. The Panel was encouraged by the Registrant’s attendance. Having read her reflective statement, and listened to her oral reflections, the Panel determined her evidence genuine and meaningful. The Panel was
satisfied that her insight into her actions had increased. It took account of her clear expressions of remorse and regret. In this regard the Panel particularly noted her evidence about meeting with the mother of the baby with Down’s syndrome. With regard to the other matters found proved, the Panel found that her insight in relation to her reflection of the impact of her lack of competence on patients was more generalised, both in her reflective statement and orally. The Panel was therefore of the view that whilst the Registrant had made good progress she had not yet developed full insight.

18. The Panel noted that the Registrant has not worked as a Radiographer for more than 3 years and that her knowledge and skills are highly likely to be compromised as a result. The Panel considered the Registrant’s oral evidence regarding her attempts to keep up to date with developments in the profession and to keep her knowledge and skills up to date. The Panel was of the view that these steps were limited. She had undertaken some online training which was on the Society of Radiographers website, but this was not extensive and there was no documentary evidence of it. Nor was any log presented of reading or research, and the Panel noted that in her evidence she stated she had “begun” to read more. The Panel was of the view that such steps could not be said to have been sufficient to remedy the deficiencies in the sense that the Registrant could be fit to practise safely without restriction.

19. The Panel was therefore of the view that a real risk of harm exists to service users, were the Registrant to practice in an unrestricted way. This is on the basis that the Registrant has not yet demonstrated full insight or sufficient remediation of her deficiencies clinical practice deficiencies. As a result, the Panel was of the view that public confidence in the profession and the need to uphold proper standards would be undermined if a finding of impairment were not made.

Decision on Sanction

20. Having determined that the Registrant’s fitness to practise is impaired the Panel went on to consider what sanction, if any, should be imposed. The Panel bore in mind that the purpose of a sanction was not to punish the Registrant but to protect the public.

21. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s lack of competence and misconduct which has not been remedied and in the
absence of exceptional circumstances, it would be inappropriate to take no action. Furthermore, it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.


22. The Panel then considered a Caution Order. The Panel noted paragraph 28 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.”


23. The Registrant’s inability to meet the standards required of a competent practitioner was not minor in nature and had the potential to have wide- ranging adverse consequences. Furthermore, the Registrant has not demonstrated that any of the skills or knowledge, specifically relevant to the Final Hearing Panel’s findings, have been addressed. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.


24. The Panel went on to consider a Conditions of Practice Order. The Panel noted the Registrant’s willingness to return to practise and undertake further CPD and training. The Panel took into account the insight which the Registrant has shown today, as well as her willingness to do voluntary work and her unwillingness to work without undertaking a return to practise course. The deficiencies found to exist in her practice are capable of correction, there is no persistent or general failure which would prevent the Registrant from addressing the concerns, and in light of the Registrant’s attitude and demeanour demonstrated to the Panel, she can be expected to comply with conditions.


25. The Panel was of the view that there are workable conditions which can protect the public and safeguard the public interest, while allowing the Registrant to develop her skills and safely return to the profession. It is thus the most proportionate outcome.


26. The Panel decided to impose a Conditions of Practice Order for the maximum period of 3 years to take effect on expiry of the current Suspension Order. A period of 3 years was decided on in order to take into account the Registrant’s plans to return to the UK from Guernsey in 2020 and to seek employment at that time. If she manages to find employment in Guernsey before that time, as she hopes, the Conditions will also allow her to practise.


27. Continued suspension will prevent the Registrant from taking steps to return to practise, and on the basis that her insight has improved, the Panel decided that further suspension would disproportionate at this stage, and has now served its purpose of sending a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Radiographer.

 

Order

ORDER: The Registrar is directed to annotate the HCPC Register to show that, for a period of 3 years from the date that this Order takes effect (“the Operative Date”), you, Mrs Catherine M Birnie, must comply with the following conditions of practice:


1. Within 3 months of beginning employment as a registered Radiographer,
you must undertake a return to practice course or programme in diagnostic radiography.


2. On completion of the return to practice course or programme, you must forward documentary evidence to show successful completion of this course to the HCPC.


3. On beginning employment as a Radiographer, you must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator for a period of 6 months and supply details of your supervisor to the HCPC within 1 month of employment. You must attend upon that supervisor as required and follow their advice and recommendations.


4. You must obtain from your supervisor a report at the end of the 6 month period outlining your progress.


5. You must forward a copy of this report from your supervisor to the HCPC at the end of the 6 month supervised period.


6. You must confine your professional practice to Diagnostic Radiography.


7. You must not carry out any gynaecological or obstetric ultrasound.


8. You must not carry out any other ultrasound procedure unless directly supervised by HCPC registered radiographer who has a post graduate qualification in ultrasound.


9. When in employment as a Radiographer:
a) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
b) You must promptly inform the following parties that your registration is subject to these conditions:
(i) any organisation or person employing or contracting with you to undertake professional work;
(ii) any agency you are registered with or apply to be registered with (at the time of application); and
(iii) any prospective employer (at the time of your application).


10.You will be responsible for meeting any and all costs associated with complying with these conditions.

Notes

The Order takes efect on 22 August 2018 and wil be reviewed before its expiry on 22 August 2021.

Hearing History

History of Hearings for Mrs Catherine M Birnie

Date Panel Hearing type Outcomes / Status
10/08/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
13/07/2018 Conduct and Competence Committee Review Hearing Adjourned
24/01/2018 Conduct and Competence Committee Review Hearing Suspended
23/10/2017 Conduct and Competence Committee Final Hearing Suspended
04/01/2017 Conduct and Competence Committee Review Hearing Adjourned