Dr Emmanuel I O Ehiwe

Profession: Radiographer

Registration Number: RA45633

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/02/2018 End: 16:00 04/05/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as a bank sonographer whilst working at Liverpool
Women's Hospital NHS Foundation Trust;

On 26 April 2012, you performed a 20 week anatomy scan for Patient A. In relation to this
scan:

1. The images taken by you were of suboptimal quality.

2. You did not identify the images at paragraph 1 as suboptimal and/or follow the process
required to obtain complete images.

3. You did not identify a myelomeningocele which was identifiable on two images.
An audit was completed of the ultrasound images taken by you on 26 and 27 April 2012,
and:

4. In relation to Service User B's anatomy scan on 26 April 2012 you;

(a) Took the head circumference measurement in the incorrect plane;
(b) Did not show the complete cerebellum in your images which meant that it was not
possible to ensure an accurate Transcerebellar Diameter (TCD) measurement;
(c) Spent insufficient time obtaining the images;
(d) Took an excessive number of images;
(e) Did not store any diagnostic cardiac images;
(f) Did not measure the femur length correctly;
(g) Incorrectly reported a low lying placenta.

5. In relation to Patient C's dating scan on 27 April 2012 you;

(a) Took the Nuchal Translucency (NT) measurement in the oblique view;
(b) Did not ensure that the nasal bone was visible in the images;
(c) Did not magnify the images sufficiently;
(d) As a result of your actions in (a), (b) and (c) could not ensure an accurate NT
measurement;
(e) Spent an insufficient amount of time obtaining the images.

6. In relation to Patient D's pelvic scan on 26 April 2012 you failed to identify and/or record
any information in your report relating to a black area on the scan.

7. In relation to Patient E's dating scan on 27 April 2012 you;

(a) Did not take a measurement of the fetal pole;
(b) Did not offer and / or did not record offering a trans-vaginal scan to the patient following
a Mean Sac Diameter (MSD) being recorded as 25 millimetres;
(c) Took images that were blurred and/or under magnified;
(d) Did not record in the report that a repeat scan was required.

8. In relation to Patient F's dating scan on 27 April 2012 you;

(a) Spent insufficient time obtaining the images;
(b) Failed to manipulate the scan sufficiently in order that you could record the Nuchal
Translucency measurement;
(c) Did not refer the patient for further tests/did not record that you had referred the patient
for further tests.

9. In relation to Patient G's dating scan on 27 April 2012 you;

(a) Spent insufficient time obtaining the images;
(b) Some of the images were of suboptimal quality in that they were blurred.

10. In relation to Patient H's dating scan on 27 April 2012 you inappropriately used a
Spectral Doppler to listen to the baby's heartbeat.

11. In relation to Patient I's dating scan on 27 April 2012 you;

(a) Did not magnify the images sufficiently;
(b) As a result of your actions in (a) could not ensure an accurate NT measurement.

12. In relation to Patient J's dating scan on 27 April 2012 you;

(a) Did not magnify the images sufficiently;
(b) As a result of your actions in (a) could not ensure accurate femur length measurements;
(c) Did not ensure the HC measurement in relation to twin 2 was accurate;
(d) Did not spent sufficient time obtaining the images.

13. In relation to Patient K's anatomy scan on 26 April 2012:

(a) you took the image of the stomach in the oblique view, thus making it appear as if the
stomach was adjacent to the heart;

(b) as a result of your actions in a you produced a potentially misleading image;
(c) Did not ensure the spine views were complete;
(d) Measured the HC at an incorrect section;
(e) Incorrectly measured the nuchal fold;
(f) Did not record a diagnostic image of the foetal lips.

An audit was completed of the ultrasound images undertaken by you on 12
and 13 April 2012, and:

14. In relation to Service User 1’s (REPW1180886) obstetric anatomy scan
on 12 April 2012, you;

a) Did not ensure that the head circumference (HC) was measured correctly;
b) Did not take any other images to clarify the normality of the fetal face
and/or any images of the true profile and/or the lips;
c) Did not ensure that the cerebellum was measured correctly;
d) Did not ensure that the head was imaged with the midline at 90 degrees to
the beam;
e) Measured the lateral ventricles incorrectly and/or did not ensure that the
walls of the ventricles were visible to assess and measure these structures.

15. In relation to Service User 2’s (REPW1213528) obstetric anatomy scan
on 12 April 2012;

a) You did not annotate any of the images to explain what you were
assessing;
b) The fetal spine views taken were of sub-optimal quality;
c) The focal positioning was poor and/or not altered throughout the
examination;
d) You did not document an examination of the spine in its entirety in the
three required plans (coronal, sagittal and/or axial);
e) The cervical fetal spine was not demonstrated on any of the images;
f) You spent insufficient time obtaining the images.

16. In relation to Service User 3’s (REPW1265968) obstetric anatomy scan
on 13 April 2012, you;

a) Did not ensure that the minimum requirement of images as recommended
by the Fetal Anomaly Screening Programme (FASP) was met;
b) Did not ensure that there was a consistent annotation of images to
document the anatomy assessed;
c) Did not ensure that the HC plane was correct and/or that the HC was
measured correctly;
d) The ventricular diameter was not performed at the correct level anteriorly;
e) Did not record an Abdominal Circumference (AC) image and/or images of
the sacral spine;
f) Did not use body mark icons on the image demonstrating the leading edge
of the placenta and/or the midline sagittal image of the lower uterus;
g) You took an excessive number of images;
h) You did not ensure the cerebellum was measured correctly;
i) You did not ensure the femur length was measured correctly.

17. In relation to Service User 4’s (REPW12567091) obstetric dating scan on
13 April 2012, you;

a) Did not ensure that the Crown Rump Length (CRL) was measured in the
correct sagittal fetal plane;
b) The focal positioning was suboptimal for Nuchal Translucency (NT)
measurements;
c) Images quality and/or the standard of examination was sub-optimal;
d) You did not spend sufficient time obtaining the images;
e) You took an excessive number of images.

18. In relation to Service User 5’s (REPW1385145) pelvic scan on 12 April
2012, you;

a) Did not ensure optimal magnification for TS endometrial measurements;
b) Did not ensure that the right ovary was measured correctly;
c) Did not demonstrate altered pre-set and/or frequency of the dense fibroid
uterus to accommodate better US penetration;
d) Did not ensure that the report recorded an accurate description of the size
and/or the multitude of fibroids seen within the uterus;
e) Took an excessive number of images;
f) Measured the endometrial thickness incorrectly.

19. In relation to Service User 6’s (REPW1000500) pelvic scan on 12 April
2012, you;

a) Recorded incorrect and/or misleading information in the scan report in that;
 i) The myometrial echo texture was indicative of diffuse disease and/or fibroid
 change but you record in the report ‘good myometrial echotexture’ which is
 suggesting normality;
 ii) The endometrium is incorrectly described as ‘the uterine cavity is empty
 with a thin lining = 9mms
 (LMP 9 months ago)’, yet a measurement of 9mms would not normally be
 considered thin.
b) Did not record uterine and/or ovarian measurements;
c) Images were of suboptimal quality and/or images were blurred;
d) Did not ensure that endometrial measurements were set to the correct
magnification factor to increase accuracy;
e) Did not ensure that either ovary had been demonstrated in more than one
plane;
f) Did not image the ovaries in longitudinal and transverse and/or did not
measure the ovaries correctly;
g) Took an excessive number of images.

20. In relation to Service User 7’s (REPW1388161) pelvic scan on 12 April
2012, you;

a) Did not record uterine measurements on TA approach and/or follicle size;
b) Did not ensure that the endometrial measurement was clearly defined and/
or did not use a Doppler in order to identify the case of focal thickening;
c) Did not ensure the right ovary was identified on TA or TV approach.

21. The matters described in paragraphs 1-20 constitute misconduct and/or
lack of competence.

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

Finding

Preliminary Matters:

1. The issues involved in the HCPC’s case against the Registrant, Dr Emmanuel Ehiwe, are both numerous and detailed.

2. The substantive hearing of the HCPC’s allegations commenced on 29 August 2017 when 10 days were allocated for the hearing.  That allocation was originally intended to be sufficient for the entire case to be concluded.  In the event, that expectation proved to be over-optimistic, as in the event, the case did not proceed beyond the HCPC’s case in that original allocation.

3. At the commencement of the hearing the Panel was informed that there had been three Preliminary Meetings held before different Panels.  It was not necessary for the present Panel to revisit all of the matters that had been decided at those Preliminary Meetings.  It was, however, necessary for the present Panel to return to some of them.  One such was the issue of expert witnesses.  When the case commenced, the HCPC intended to call four witnesses who were expected to comment on the quality of the Registrant’s work.  They were Mrs Butcher, Mr CD, Dr DR and Ms L-J.  Directions had been made at Preliminary Meetings that provided for the Registrant to be permitted to rely on expert evidence.  Those directions stipulated the minimum level of professional standing of a Sonographer to be relied upon by the Registrant to give this evidence.  It appeared that the Registrant had encountered difficulty in obtaining the assistance of a Sonographer who met the conditions laid down by the Preliminary Meeting Panel.  It was nevertheless apparent that the Registrant wished to rely upon the evidence of witnesses who would express opinions on the quality of his work, albeit that the Registrant may not have wished them to be described as “expert witnesses”.  On the first day of the hearing the Panel considered this matter.  The Panel concluded that in circumstances where the Registrant was representing himself in a case of some complexity, where he was not experienced in the conduct of such cases and where the resources available to him to obtain expert evidence would be likely to be limited, fairness dictated that the Registrant should be permitted to rely on evidence that, upon a proper construction of the Preliminary Meeting directions, it might not have been possible for him to rely upon.  The Panel was satisfied that it had the ability to assess the weight that should be attributed to opinion evidence from whomever it came.  The Panel delivered a ruling on this issue along with other preliminary points that were raised.  A copy of the ruling is appended to this decision as Appendix 1.

4. When invited to respond to the allegations at the commencement of the case, the Registrant indicated that there were some particulars he admitted, but that in relation to them there would be accompanying explanations.  As the hearing progressed the Panel became aware that matters that might originally have been included in those admitted were no longer admitted.  It became increasingly difficult to identify what was admitted.  The conclusion the Panel reached at the commencement of its private deliberations on the facts was that the only way in which the case could properly and fairly be decided was by ignoring any of the qualified admissions made at the commencement of the case.  It follows that the facts have been decided upon the evidence the Panel has received, which, of course, includes the oral evidence of the Registrant given in February 2018.

5. As has already been stated, the case did not proceed beyond the HCPC’s case during the original hearing allocation.  Three witnesses gave evidence for the HCPC during these days.  They were Mr CD, Dr DR and Mrs Tracy Butcher.  The role of these witnesses will be described below.  It had been intended by the HCPC additionally to rely on the evidence of Ms L-J.  However, in the event, the Presenting Officer informed the Panel that, having considered the matter, the HCPC did not intend to rely on the evidence of Ms L-J.  This was a decision that was taken in the light of the fact that the case was over-running to a very significant extent and in circumstances where the HCPC had already called two witnesses (Mrs Butcher and Mr CD) who had given evidence in support of the criticisms of the Registrant advanced by the HCPC.  The Panel carefully considered the HCPC’s proposal that it should not rely on the evidence of Ms L-J, acknowledging that if the Panel disagreed with the HCPC’s approach it could require that evidence to be given.  However, the Panel agreed that the HCPC’s intention with regard to Ms L-J was proper.  Somewhat surprisingly in the light of the fact that the written witness statement of Ms L-J submitted in advance of the hearing contained criticisms of the Registrant’s professional performance, his response to the HCPC’s proposal that they should not call Ms L-J was that he wished to apply for a witness order so that he could himself call her to give evidence.  The Panel considered this application and rejected it for reasons that were set out in a ruling delivered on 11 September 2017.  A copy of that ruling (redacted solely to remove Ms L-J’s full name) is appended to this decision as Appendix 2.

6. After the conclusion of the HCPC’s case the Presenting Officer informed the Panel that the HCPC had reviewed the evidence that had been given.  Upon instructions, the Presenting Officer informed the Panel that the HCPC did not consider that there was sufficient evidence for it to proceed upon the following particulars: 4(e), 7(b), 15(a), 15(d), 16(d), 16(f), 19(a)(i)&(ii), 20(a), a limb of 20(b), and 20(c).  The Panel approached this issue on the basis that it had a residual power to require the HCPC to proceed with the issues it proposed to abandon.  However, after considering the matter, the Panel agreed that the HCPC’s approach properly reflected the evidence that had been presented.  It follows that the Panel has not considered any of the identified particulars when making its decisions on the facts.  They will be included in those that are not proved against the Registrant.   In the allegation as it is set out at the head of this document, the particulars not proceeded with appear struck through.

7. At the conclusion of the last day of the original allocation, the Panel issued directions for the future conduct of the case.  These directions are appended to this decision as Appendix 3.  It can be seen that a further period of 10 days between 12 February 2018 and 23 February 2018, was allowed for the Registrant to present his case on the factual elements of the case.   During this period it was necessary for Mrs Butcher to be recalled for certain matters to be put to her by the Registrant which had not been put before.  The Panel decided that 5 days should be made available for its private deliberations on the facts.  In these directions it was provided that there would be 4 further days between Monday 30 April 2018, and 3 May 2018, for any remaining stages of the case to be dealt with.  However, during the hearing in February 2018, the Panel added 4 May 2018, to the final allocation to ensure that the case would conclude.


Background:

8. On 28 August 2012 Patient A gave birth to a baby with a spinal abnormality, a large myelomeningocele, a form of spina bifida.  This defect had not been identified before birth.  This event resulted in a review of the anatomy scan that had been undertaken in relation to Patient A’s pregnancy at approximately 20 weeks gestation at the Liverpool Women’s Hospital (“the Hospital”) on 26 April 2012.  That scan was undertaken by the Registrant, and it is the HCPC’s case in the present proceedings that he did not identify the myelomeningocele.

9. The Imaging Department at the Hospital was staffed by both employed Sonographers and locum Sonographers, the latter being provided by Diagnostic Healthcare.  The Registrant’s work was undertaken by way of Diagnostic Healthcare.  He worked as a locum Sonographer at the Hospital on 12, 13, 26 & 27 April 2012.

10. Following a review of the circumstances surrounding Patient A, a review of other work undertaken by the Registrant on 26 and 27 April 2012 was undertaken, and this review resulted in the criticisms that are advanced in relation to the patients described as B to K inclusive.  At a later stage, work undertaken by the Registrant on 12 and 13 April 2012 was subjected to an audit, and this audit resulted in the criticisms advanced in relation to the patients described as 1 to 7 inclusive.  It follows that the work done by the Registrant in relation to the 18 patients included in the HCPC’s allegations occurred over four working days in April 2012.

 

Decision:

11. In reaching its decisions on the facts, the Panel has throughout remembered that it is for the HCPC to discharge the burden of proof, the standard of that burden being the balance of probabilities.  Although the Registrant has advanced a positive case in answering the HCPC’s case, at no stage is it appropriate to consider whether he has disproved the criticisms made.
 
12.In order to have sufficient time to consider all of the evidence presented to it, the Panel had a period of five full days in order to reach its determination on the facts.  In addition to all of the documents, including witness statements and exhibits, presented during the case, the Panel had their own extensive notes of the evidence, a full transcript of all the evidence given during the oral hearings, as well as access to the images in the same manner as they had been available and viewed when the evidence was being given.  Furthermore, the very full closing submissions prepared respectively on behalf of the HCPC and the Registrant were available to the Panel.  In a case of this complexity it is, quite simply, impracticable for every aspect of the evidence and argument to be rehearsed in the written determination.  However, the Panel confirms, that in reaching its decision, every aspect of the evidence and argument was considered in reaching the decisions summarised in that written determination.

13. Before the Panel explains its decisions on the specific factual particulars, there are general matters that it is necessary for the Panel to explain.  They are:

• Its general assessment of the witnesses who have given evidence in the case.

• To explain in general terms the nature of the ultrasound scans being performed by the Registrant with regard to the patients in respect of whom criticisms are being advanced.  Associated with this explanation there will be given an outline of the guidelines and protocols the Panel has decided are relevant in assessing the Registrant’s performance.

• In general terms, an aspect of the Registrant’s defence which has involved him making extensive references to textbooks and other resources.

• Again, in general terms, to deal with a point made by the Registrant in respect of a significant number of criticisms advanced against him, to the effect that he should not be criticised because there was no specific requirement in any of the guidelines or protocols relied upon by the HCPC.

• The Panel’s approach to the Registrant’s argument, advanced in relation to a number of particulars, that his work fell within accepted or expected ranges.

• The Registrant’s submission that the quality and contrast of the images as presented to the Panel does not truly represent the quality and contrast of the images originally captured by him.

• The Registrant’s submission that the images presented to the Panel by the HCPC do not represent the full extent of the images captured and stored by him.

• The Registrant’s contention that a number of relevant documents are missing, for example, patient hand-held maternity notes, and Radiology referral forms.
General assessment of the witnesses.

14. The HCPC called three witnesses in support of its case.  They were:

• Mr CD, a Radiographer and the Trust’s Clinical Manager for Imaging.  The Panel found Mr CD to be an honest witness who was reliable and credible.  The Panel was also satisfied that he was very knowledgeable about the subject matter of the case and was comfortable in explaining technical detail that was grounded in evidence.  He was a robust witness, and at times his manner was confrontational when he appeared to be frustrated by the repeated questions asked of him by the Registrant in cross-examination.  However, the Panel did not conclude that he was motivated by malice towards the Registrant, on the contrary, being fair and making appropriate concessions.  The Panel was satisfied that it was appropriate to rely on his evidence.

• Dr DR, a Consultant Obstetrician, who was the Trust’s Imaging Lead for the Maternity and Imaging Executive.  The HCPC relied upon the evidence of Dr DR solely in relation to the particulars concerning Patient A.  The Panel found her to be very knowledgeable, appropriately experienced and reliable.  The Panel kept in mind the fact that Dr DR is not a Sonographer or even Radiographer, although as the Imaging Lead she was experienced in assessing images.  The Panel concluded that it could safely rely on her evidence.

• Mrs Tracey Butcher, a Consultant Sonographer.  Mrs Butcher was advanced by the HCPC as an expert witness.  She had not had any contemporaneous involvement with the Trust or the Registrant, but was simply asked to give her opinion on the matters that were referred to the HCPC.  Mrs Butcher had over 23 years full-time experience in all areas of medical ultrasound.  The Panel found her to be an impressive witness.  As a Consultant Sonographer she undertakes ultrasound scanning, and so her experience is both direct and up-to-date.  Further, she has experience of setting work protocols and national guidelines, and routinely audits the work of other practitioners.  This had the consequence that she was used to assessing images in line with relevant standards.  However, a feature of her evidence that was important, given the fact that the events had occurred over five years before she gave evidence to this hearing, was her knowledge of the development of sonography and of the guidelines relating to it.  Quite apart from the fact that she was highly professional, she was balanced and fair, readily acknowledging when credit was due to the Registrant.  Although robust in her views, she gave her evidence in a calm, measured and articulate manner.  She was calm and courteous during the lengthy sessions of cross-examination undertaken by the Registrant.  The Panel found it refreshing to consider the evidence of a witness who was not only able to explain what their opinion was, but also able to explain in comprehensible terms why they offered that opinion.  The Panel had no hesitation in relying on the evidence of Mrs Butcher.

15. The Registrant conducted his own case and gave evidence.  The Panel acknowledges the difficulties that any registrant will face when representing themselves in a complex case.  The Panel’s recognition of this fact during the hearing resulted in the Panel allowing the Registrant a considerable amount of time and flexibility in the conduct of his case.  This resulted in the Panel agreeing to the re-calling of Mrs Butcher after the Registrant’s evidence so that he could put to her matters not put when she gave her evidence in September 2017.  It could not be expected that the Registrant would be familiar with the accepted process, but even allowing for that, after explanations given, he continued to act in an overassertive manner.  For example, despite being told many times that he should not interrupt the examination of HCPC witnesses and the cross-examination conducted by the Presenting Officer of Dr CO, he continued to do so.

Having carefully considered his evidence, and given due allowance for his lack of familiarity with the process, the Panel found him to be inconsistent.  An example of inconsistency was the stark difference between his own corrected version of what he said in the investigation meeting on 17 October 2012, and the case he advanced before the Panel.  Also, in the conduct of his case, there was significant shifting in the case he advanced, particularly with regard to the allegations concerning Patient A.
There were aspects of the case advanced by the Registrant that the Panel can only characterise as deceitful.  A prime example of this concerns the evidence introduced by the Registrant concerning the ultrasound scan of Patient A that appears at R1, page 30, and the conversation he had with Ms LK (a director of Diagnostic Healthcare) on 20 June 2016.  The Registrant acknowledged that this conversation was recorded by him without the knowledge of Ms LK and therefore without her consent.  In the judgement of the Panel it is clear that in this conversation the Registrant harangued Ms LK, not having received from her the answer that suited him.  This accorded with his attitude towards witnesses who gave evidence in this case against him (and even the Presenting Officer) in that it appeared that the Registrant was unable to accept that anyone could honestly hold an opinion against the case he was seeking to advance.  He repeatedly alleged collusion and improper motive.  For example, he alleged that Mr CD deliberately deleted images, a contention the Panel finds not only to be unfounded but also unsupported.  Furthermore, the Registrant selectively quoted from texts.  All of these matters resulted in the Panel viewing the Registrant’s evidence with a significant degree of caution.

16. Additionally, the Registrant called two witnesses to give evidence.  They were:

• Mr OO.  The Registrant advanced Mr OO, a Radiographer, as a character witness.  The Panel found him to be an honest and professional person who did his best to assist the Panel.  Although a Radiographer, Mr OO had limited experience of sonography, his area of expertise being in MRI.  The Registrant and Mr OO had never worked together, their connection being of an academic and cultural nature.  This factor resulted in his evidence being of limited value when the Panel came to consider its decision on the facts.

• Dr CO.  The Registrant advanced Dr CO as a “witness of opinion”, and he did indeed give his opinion on a number of the factual issues arising in the case.  Despite the experience the Registrant attributed to Dr CO in his written closing submissions, the evidence of Dr CO given to the Panel was that his experience in the area of obstetric ultrasound was limited.  Of greater significance, however, was the Panel’s assessment of Dr CO’s motivation in giving evidence.  He had not seen all of the scans on which he purported to comment in his witness statement, and in significant respects that statement was in identical terms to statements from other witnesses submitted by the Registrant.  When cross-examined by the Presenting Officer he was evasive, quite simply not answering straightforward questions he was asked.  On one occasion, in declining to answer a question which he was quite clearly able to answer, he suggested that the Presenting Officer should return to the question in 10 minutes’ time.  In short, the Panel found that Dr CO lacked independence and was trimming his evidence in a manner that he believed would assist the Registrant.  When reaching its decisions, the Panel considered the points made by him, but, such were the Panel’s reservations about him as a witnesses, the Panel did not feel able to accept his evidence in the absence of a reliable supporting factor.
The nature of the ultrasound scans undertaken by the Registrant and associated guidelines and protocols.

17. It will be seen from the wording of the principal paragraphs of the factual particulars that the nature of the procedure undertaken by the Registrant is stated.  They are “anatomy scans”, “dating scans” and “pelvic scans”.

18. “Anatomy scans” are sometimes referred to as “fetal anomaly scans”.  The Panel finds that in undertaking scans of this nature, the Registrant was obliged to comply with the requirements prescribed by the national standards contained in the NHS Fetal Anomaly Screening Programme (“FASP”) document, the relevant edition of which for the purposes of this case being that issued in January 2010.  The Panel paid particular regard to Standard 6 of FASP because this standard is relevant to actual image acquisition. The rationale of FASP Standard 6 is expressed in the following terms, “The 18 to 20 weeks ‘ultrasound scan base menu’ has been devised to provide consistency in the ultrasound procedure in terms of specifying techniques to be used to obtain fetal measurements and defining what anatomical structures should be assessed by professionals during the examination”.

The FASP guidance provided that during this scan a minimum of six prescribed images should be captured and stored.  The required images are:

• head circumference demonstrating HC measurement and measurement of the atrium of the lateral ventricle;

• suboccipito-bregmatic demonstrating measurement of the transcerebellar diameter;

• coronal view of lips with nasal tip;

• abdominal circumference demonstrating AC measurement;

• femur length demonstrating FL measurement;

• sagittal view of spine including sacrum and skin covering.

 

Furthermore, FASP Standard 6 required:

• S6.3  All women should be offered a single further scan at 23 weeks of pregnancy to complete the screening examination if the image quality of the first examination is compromised by one of the following ………… Sub-optimal fetal position.

• S6.4  Where an adequate assessment of the fetal anatomy remains compromised after the second scan, all women should be told that the screening is incomplete and this should be recorded in all formats.

• S6.5  Where the first examination is sub-optimal and the sonographer is suspicious of a possible fetal abnormality, a second opinion should be sought as soon as possible.  This should be recorded in all mentioned formats.
Appendix 2 to the FASP Guidelines, headed, “Ultrasound images and schematic drawings” provides, in both ultrasound image format and schematically, examples of the six required images.

19. “Dating scans” are performed at an earlier stage of pregnancy than anatomy scans, and, as undertaken by the Registrant in April 2012, were required to be undertaken in accordance with the April 2011 Dating Scan Protocol of the Liverpool Women’s NHS Foundation Trust (“the Liverpool Protocol”).  The aims of the dating scan as identified in that document are:

• To confirm the presence or absence of an intrauterine pregnancy.

• To confirm the presence or absence of fetal heart activity.

• To measure the fetus in order to assign a gestational age to the pregnancy.

• To determine the number of fetuses present.  For multiple pregnancies the chorionicity should be established before 14 weeks gestation.

• To assess the pelvis for any coexisting uterine or adnexal pathology.


The Panel also finds that in performing dating scans the Registrant was obliged to follow the guidance contained in “The 11 – 13 weeks scan” document issued by The Fetal Medicine Foundation in 2004 (the “FMF guidelines”).

20. “Pelvic scans” were undertaken in connection with investigations of a gynaecological nature.  The Panel finds that in this work the Registrant was obliged to heed the guidelines issued by the United Kingdom Association of Sonographers entitled “Guidelines for Professional Working Standards – Ultrasound Practice” issued in October 2008 (“UKAS”).  Section 2.3, entitled “Guidelines Relevant to Gynaecological Examinations” and Section 3.4, entitled “Gynaecological Ultrasound” are of particular significance in this respect.


Materials introduced by the Registrant in advancing his case.

21. During the course of the hearing, the Registrant produced a number of textbooks, articles and images.  He did not advance a case that he was influenced by any of these resources in doing, or not doing, that which is criticised by the HCPC.  Rather, his purpose in introducing them was to mount an ex-post facto justification of images taken by him on the basis that they were comparable with those produced.  The HCPC advanced a number of criticisms of the materials produced, including the contention that textbooks were out of date even by the standards of 2012 and that the quality of the photocopied documentary images as provided by the Registrant was poor.  The Panel has taken the view that, whatever might have been printed in books or produced on the internet, none of these materials should be permitted to detract from the clear requirements of the guidelines and protocols already described. The Registrant’s contention that no criticism can be made when the guidelines and protocols are silent.

22. As already indicated, in a number of instances the Registrant has sought to answer the HCPC’s case by contending that criticisms of his work are not supported by specific provisions of relevant guidelines and protocols.  An example of this can be found in the Registrant’s response to allegations that he stored an excessive number of images.  He has stated that although a minimum number of images can be found (for example, the FASP minimum of six already described) there will not be found a requirement as to the maximum.  Again, the Registrant has stated that no explicit requirement will be found stating that blurred images should not be stored.  The same point has been made by the Registrant in relation to the criticisms of the time he took in performing patient scans.

23. The Panel is not able to accept the general point advanced by the Registrant.  It cannot be expected, in the context of professional work, that every requirement demanded to achieve safe and effective performance will be explicitly stated.  The Panel is satisfied that if there is a well-understood requirement in the profession that something should be done (or not done), and that there is a cogent reason for that requirement, then the criticism can be advanced without the HCPC being able to point to a specific, published document in which that requirement is set out.
The Registrant’s submissions relating to accepted or expected ranges.

24. The Panel has unhesitatingly accepted that in undertaking any professional work there will be a range of performance, and the mere fact that some professionals perform to a different and even higher standard than others does not justify criticism in the context of fitness to practise proceedings of those whose performance is different or undertaken to a lower standard.  When considering a range of performance, the Panel would only consider it appropriate to make a finding against a professional in these circumstances if the performance is to an unacceptably low standard, in other words below the acceptable range of performance.  It follows from this acceptance that, for example, in the case of a Sonographer making a measurement from a scan, two competent practitioners might make different measurements.  In that sense, the “range” argument is a valid one.

25. However, the Registrant has advanced an argument that his measurements are within an acceptable or expected range of fetal developmental measurements and are therefore correct.  The Panel rejects this as an acceptable approach because the manner in which the measurement was taken is critical to the issue. The Registrant’s case that the quality and contrast of the images presented to the Panel does not accord with the quality  and contrast of the images originally captured by him.

26. The Panel considered this point, but concluded that the quality and contrast of the images presented to the Panel was not significantly degraded.  When the Registrant sought to justify the argument by showing a slide show in relation to Patient A, the Panel did not consider there to be a significant difference between the quality and contrast of the images disclosed.  In relation to a great number of criticisms advanced by the HCPC, the point is potentially adverse to the Registrant because the case is advanced against him on the basis of the images that are allegedly degraded.  For example, if the myelomeningocele is clearly visible on an image the Registrant contends is degraded, it would have been all the more visible on those he contends were better.
The Registrant’s case that the Panel has not been presented with all of the images captured and stored by him.

27. This contention was advanced by the Registrant in evidence, but the questions raised by him can be most conveniently understood by reference to Exhibit 42 entitled “Dr [CO’s] Report on Lost Ultrasound Images in FTP26015”.  With regard to each particular in respect of which this contention is advanced, the Panel considered whether the HCPC’s case was being advanced on an incorrect or incomplete basis.  The Panel did not find that the generality of this contention assisted the Registrant.  In some respects the contentions advanced were simply incorrect, for example where it was said that there was no slide of a particular number, but there was.  With regard to other particulars, the sequencing of stored images suggested that, in undertaking the scans, the Registrant had moved away from the anatomical area relevant to the HCPC’s criticism.  Furthermore, the Panel’s general assessment of the credibility of the witnesses who gave evidence on behalf of the HCPC encouraged the Panel to believe it inherently unlikely that there would have been deliberate manipulation of the evidence presented.


The Registrant’s contention as to missing documents.

28. The Panel concluded that in a case in which the substantive hearing takes place over five years after the relevant events, it could be expected that there would be some documents that would no longer be available to be disclosed.  However, the Panel rejects any suggestion that there has been deliberate destruction or withholding of documents in order to damage the Registrant’s case.  At each stage in its decision-making, where there has been a suggestion by the Registrant that a document is missing, the Panel has carefully considered the matter.  If the Panel concluded that there was a realistic prospect of there having been a document that would have assisted the Registrant’s case, then the Panel would apply that finding to consideration of whether the HCPC had discharged the burden of proof.

29. With these introductory findings explained, the Panel will now turn to explain its findings on the specific criticisms advanced by the HCPC.


Particulars 1 to 3 inclusive, Patient A’s anatomy scan on 26 April 2012


1. The images taken by you were of suboptimal quality.

2. You did not identify the images at paragraph 1 as suboptimal and/or follow the process required to obtain complete images.

3. You did not identify a myelomeningocele which was identifiable on two images.

30. The evidence advanced by the HCPC as to the alleged sub-optimal quality of the scans undertaken by the Registrant was provided by Mrs Butcher, Mr CD and Dr DR.  As this was an anatomy scan the FASP requirement as to the minimum of six prescribed images applied.  In her written report dated 1 October 2015, Mrs Butcher accepted that the femur length, abdominal circumference, lateral ventricles in the brain and face views were acceptable.  However, it was her opinion that the fetal head circumference measurement was over-measured with incorrect calliper placement exceeding the fetal skull bones; and that the image of the posterior fossa showed the nuchal fold to be under-measured and did not include the outer skin line.  The assessment of the fetal spine was incomplete as the lumbar and sacral spine could not be identified on a longitudinal view.  Her conclusion was that although many images had been stored, the majority of them did not meet the required quality standard when benchmarking them against the FASP criteria.  In her oral evidence, Mrs Butcher maintained these criticisms, adding that parts of the brain were measured in the incorrect plane, images were fuzzy with the same setting being used for each image, there was inadequate movement of the focal zone and easily removable artefacts were in the way of some of the images.

31. At the Trust’s investigation meeting on 17 October 2012 the Registrant accepted that the stored images for this patient’s examination were sub-optimal.  In the hearing before the Panel, the Registrant agreed that these images were sub-optimal, but contended that they were consistent with images to be found in textbooks and were of diagnostic quality.  The Registrant then said in his evidence in chief that they were only sub-optimal in respect of the lumbar spine. 

32. It must also be mentioned that, with regard to the absence of an image of the lower spine, it is the Registrant’s case that he did indeed take such an image, but that the image has been deliberately deleted.  This is not a contention he made when interviewed on 17 October 2012, when it might have been expected that his recollection would have been better than later.

33. Having carefully considered all the evidence, the Panel concludes that the evidence of Mrs Butcher is to be accepted.  For reasons already explained, the Panel rejects the Registrant’s defence based upon comparable images apparently appearing in textbooks, the simple issue being whether they were FASP compliant.  They were not.  The Panel also rejects the contention that an image of the lower spine has been deliberately deleted.

34. The result of these findings is that particular 1 is proven.

35. With regard to particular 2, the issue is whether the Registrant identified the sub-optimal nature of the images taken by him on 26 April 2012 and followed the process required to obtain complete images.

36. The FASP requirements when images are recognised to be sub-optimal have already been described, and are clearly set out in S6.3 to S6.5 of the guidance.  The HCPC’s case is simply that the Registrant did not contemporaneously recognise that the images he had taken and stored were sub-optimal, and accordingly, did not take any action.

37. It is the Registrant’s case that he advised that Patient A should be recalled for a repeat scan, recording that advice on the patient’s hand-held maternity notes available to him at the time.

38. The patient’s hand-held maternity notes are no longer available.  The Panel rejects the Registrant’s contention that they have been deliberately destroyed or withheld.  The Panel also rejects the Registrant’s case that he recognised at the time he undertook the scans that they were of a sub-optimal nature and advised the recall of the patient, and it rejects his case that he recorded a recall in the patient’s hand-held maternity notes.  The reasons for the Panel’s rejection of this case are as follows:

• There is a clear tension between the Registrant’s case that his images were of a diagnostic quality and included (withheld from the Panel) an image of the lower spine, on the one hand, and the need to recall the patient on the other hand.

• When the Registrant was interviewed on 17 October 2012, he said nothing about advising the recall of Patient A.  He made significant amendments to the record of this interview made on behalf of the Trust, but did not amend it to include any such contention.

• The electronic report prepared by the Registrant included the entry, “Spine Sagittal: NAD [no abnormality detected]”, and was silent as to recall.  There is no reason why the Registrant should not have recorded the need for a recall on the electronic record, as indeed he did with regard to Patient B on the same day when he advised that Patient B should be re-scanned at 34 weeks.

• There is no evidence, or other indication, that the Registrant advised the recall of Patient A apart from his contention advanced after 17 October 2012 that he did so.  In this regard, the Panel finds that the scan reported at page 160 of the HCPC’s exhibits was conducted on 22 August 2012 (that date being consistent with a presentation scan at around 36 weeks, but not with the June admission date also shown on the report).  The Registrant produced an unidentified scan (page 30 of exhibit R1) which he asserted was the further diagnostic scan of Patient A’s baby produced as a result of his recall.  The clear evidence of Mrs Butcher, supported by the edited document introduced by the Registrant purporting to record a conversation he had with Ms LK, was that this scan was not a recall follow-up diagnostic scan, but was simply a souvenir image presented to the patient.  It was not a FASP-compliant scan of the sort which would have been undertaken had the Registrant followed the prescribed steps contained within FASP.

• The Panel finds that it is inherently unlikely that the Registrant would have the specific recollection he claims to have of the scan of Patient A on 26 April 2012, the more so when he clearly did not have that recollection six months after the event.  His evidence to the Panel was that in 2012 and subsequent years he was working, on average, 50 weeks a year, 4 days a week and scanning 26 patients a day.  Up until October 2012, when the problem was brought to his attention some six months after he undertook the scan, there was no reason why Patient A would have been any more memorable than the estimated 5,200 patients he was scanning each year.

39. It follows from these findings that the Panel finds particular 2 to be proven.

40. Particular 3 is concerned with the Registrant’s alleged failure to identify a myelomeningocele in two images.  There is no suggestion that the Registrant identified a myelomeningocele, and so the sole issue is whether it was visible on the relevant images.

41. The relevant images, as viewed by the Panel, were numbered 42 and 43.  These are not longitudinal images of the lower spine, as required by FASP, there being no such image recorded.  Nevertheless, it is said that the myelomeningocele can been seen in these two images, albeit taken from a different angle.  The written and oral evidence of Mrs Butcher, supported by the written and oral evidence of both Mr CD and Dr DR, is that these images show a clear and obvious myelomeningocele.  It was the evidence of Mrs Butcher that it was a “really classic appearance of a myelomeningocele”.

42. The Registrant’s case is that what is said to be the myelomeningocele is an artefact.  This case is in conflict with the account he gave at the interview on 17 October 2012 when he is recorded as having agreed that the images showed a NTD [neural tube defect].  He did not amend the record of the interview in this regard.

43. In considering the HCPC’s case that the myelomeningocele was there to be seen by the Registrant notwithstanding the fact that he did not take the FASP-required image of the lower spine in longitudinal position, the Panel has been careful to examine whether it was the knowledge of the baby’s defect when born that has resulted in the degree of certainty expressed by the HCPC’s witnesses.   The Panel considered the evidence of Mrs Butcher that the myelomeningocele was obvious to be particularly powerful.  She formed her view upon examination of the scans before she knew of the defect that had become apparent on the birth of the baby.  The Panel has concluded that the evidence of the HCPC witnesses is not based on wisdom after the event, and that their evidence should be accepted.

44. The Registrant relied upon a passage in a textbook published in 2006 (Exhibit E9) to support an argument that a myelomeningocele would not be visible on a scan image until after 22 weeks gestation because of the stage of ossification of the sacral spine.  The Panel rejected this argument, as it accepted the evidence of Mrs Butcher that a myelomeningocele can be detected from between 15 to 16 weeks gestation before ossification is complete.

45. The consequence of these findings is that particular 3 is proven.

Particulars 4(a) to (d), (f) & (g) – Service User B’s anatomy scan on 26 April 2012.

(a) Took the head circumference measurement in the incorrect plane;

(b) Did not show the complete cerebellum in your images which meant that it was not possible to ensure an accurate Transcerebellar Diameter (TCD) measurement;

(c) Spent insufficient time obtaining the images;

(d) Took an excessive number of images;

(f) Did not measure the femur length correctly;

(g) Incorrectly reported a low lying placenta.

46. The HCPC’s case in relation to particular 4(a) is based upon image 25 and the contention that the measurement of the head circumference was undertaken at too low a level.

47. The HCPC’s case is supported by the evidence of Mrs Butcher and Mr CD.  The evidence of Mrs Butcher and Mr CD is supported by the fact that image 26 is in the same plane and was used to record the transcerebellar diameter (“TCD”) and nuchal fold (“NF”).  The FASP guidelines clearly require different planes for the measurements the Registrant was undertaking by images 25 and 26.

48. The Registrant stated in evidence that he used the correct plane.  He referred the Panel to other guidance/documents that he said supported his case.  In particular, he produced a document produced by Birmingham City University, and relied upon the evidence of Dr CO.  As to the former, the Panel accepted the observation of Dr DR when the document was put to her by the Registrant, that it is difficult to comment without seeing the accompanying narrative.  It might, after all, state that this is how not to undertake the measurement.  As to Dr CO’s evidence, the Panel prefers that of Dr Butcher to his evidence.  However, the point remains that the FASP guidelines are very specific about how this measurement should be undertaken, and image 25 is not compliant with those guidelines.

49. The Panel rejected the Registrant’s approach as it was inconsistent with FASP.  The Panel accepts the evidence that the plane in which the measurement was taken was incorrect.

50. Particular 4(a) is proven.

51. The HCPC’s case in relation to particular 4(b) is based upon image 26 and the contention that an accurate TCD measurement was not recorded because the complete cerebellum was not shown in the image.

52. The evidence of Mrs Butcher was that she could not see the lower part of the cerebellum.

53. In his defence the Registrant stated that image 26 showed the complete cerebellum.  Accordingly, he contended that he could measure the TCD and that it was a correct measurement.  Further, Dr CO stated that the Registrant took a correct measurement.

54. The Panel preferred the evidence of Mrs Butcher for the reasons already expressed in its general assessment of the witnesses.

55. For these reasons, particular 4(b) is proven.

56. Particular 4(c) is concerned with the time taken in obtaining the images.  Some 40 images were recorded.  The appointment time for the scan was 20 minutes.  The evidence of both Mrs Butcher and Mr CD was that the period of less than 8 minutes was insufficient for obtaining the images.

57. With regard to this criticism, the Registrant has made the point already dealt with generally that the HCPC is not able to rely upon a specific, established requirement as to the minimum time to be taken.  The Panel has already stated that it rejects this argument as being, in itself, an answer to the criticism as professional expertise must be considered.

58. The Panel accepts within the overall appointment period there would be issues to be dealt with other than the obtaining of the scans.  Nevertheless, the Panel accepts the HCPC’s case that a period of less than 8 minutes was insufficient for obtaining the images.

59. The consequence of this finding is that particular 4(c) is proven.

60. Particular 4(d) alleges that an excessive number of images was taken.  As already mentioned, the number was 40.

61. The Panel accepts that FASP requires a minimum number of diagnostic images, and does not prescribe a maximum.  Nevertheless, the Panel accepts that sound professional practice can impose a requirement without it being explicitly stated in a protocol or guidance document.

62. The Registrant in his evidence stated that FASP only referred to the minimum required images, and stated that it was good clinical practice to document, for example, face and hands.

63. In the context of this specific case the Panel accepts the evidence of both Mrs Butcher and Mr CD that the number taken was excessive as there was no apparent diagnostic reason for that number.

64. Particular 4(d) is proven.

65. Particular 4(f) alleges that the femur length was incorrectly measured.

66. It was suggested by Mrs Butcher that the left calliper might have been slightly off the bone, and if that was the extent of the HCPC’s case, the Panel would have concluded that the Registrant should not be criticised for a marginal mis-placement.

67. In evidence the Registrant stated that if what you measure is within range, then it is acceptable.

68. The Panel is satisfied, having reviewed the image during its deliberations, that Mrs Butcher’s oral evidence that the right calliper was “quite far off the bone”, is correct.  For the reasons already expressed in its general comments on “range”, the Panel rejects the Registrant’s case.  It follows that a measurement based upon the mis-placed right calliper was incorrect.

69. Particular 4(f) is proven.

70. Particular 4(g) alleges that the Registrant incorrectly reported a low-lying placenta.

71. The report produced by the Registrant undoubtedly reported a low-lying placenta.  Upon reviewing images 1, 4 and 6 it was the opinion of Mrs Butcher that what was observable was a posterior placenta that did not appear to be low-lying.

72. The Registrant’s case was that the placenta was low-lying and relied upon the evidence of Dr CO.  For reasons already stated in its general comments on the witnesses, the Panel prefers the evidence of Mrs Butcher.

73. Particular 4(g) is proven.

Particulars 5(a) to (e) – Patient C’s dating scan on 27 April 2012.


(a) Took the Nuchal Translucency (NT) measurement in the oblique view;

(b) Did not ensure that the nasal bone was visible in the images;

(c) Did not magnify the images sufficiently;

(d) As a result of your actions in (a), (b) and (c) could not ensure an accurate NT measurement;

(e) Spent an insufficient amount of time obtaining the images.

74. Particular 5(a) alleges that the Registrant took the Nuchal Translucency (NT) measurement in the oblique view.

75. The FMF guidelines require that the fetus should be in a neutral position.

76. The Registrant’s case was that there was no scoring profile and/or peer review guidance tool for the audit undertaken.

77. The Panel accepts the evidence of both Mrs Butcher and Mr CD that the image is oblique and that the baby is not in a true sagittal position.

78. Particular 5(a) is proven.

79. Particular 5(b) alleges that the nasal bone was not visible in the images.  It is to be noted that the criticism is that the nasal bone is not visible in the images, not in the specific image numbered 5 that was used to measure the NT.  The Panel has concluded that although the required view of the nasal bone is not visible in image 5, it is visible in image 3 which was relevant for the crown rump measurement, and that accordingly particular 5(b) is not proven.

80. Particular 5(c) alleges that images were not sufficiently magnified.

81. The FMF guidelines provide that the magnification should be as large as possible.

82. The Registrant’s case was that there was no specific guidance as to magnification.

83. The Panel has accepted the evidence of Mrs Butcher that the image of the baby was not magnified to the extent that it could and should have been.

84. Particular 5(c) is proven.

85. Particular 5(d) alleges that as a consequence of the criticisms advanced by the foregoing particulars, the Registrant could not ensure an accurate NT measurement.

86. As a result of the Panel finding that particular 5(b) is not proven, it is necessary to consider whether the findings that the measurement was taken in an oblique view and that they were insufficiently magnified had the alleged consequence.

87. The Registrant’s submission was that this particular was, “yet another example of the prosecution trying to mislead the panel with personal opinions which they have presented as charges in this case.  This is not right.”

88. The combination of the oblique view and the insufficient magnification had the consequence that the Registrant could not ensure an accurate NT measurement.

89. Paragraph 5(d) is proven in respect of 5(a) and 5(c).

90. Particular 5(e) alleges that an insufficient amount of time was spent obtaining the images.

91. The images were taken during a period of approximately 6 minutes.

92. The Registrant’s case was that the patient was scanned using the “twice on the couch” practice and that there was nothing in the guidance that would dictate how long he should have taken.

93. The Panel accepts the evidence of Mrs Butcher that 6 minutes was an insufficient time for these scans to be undertaken to an acceptable standard.  There was no evidence before the Panel that “twice on the couch” practice was applied.

94. Particular 5(e) is proven.

Particular 6 – Patient D’s pelvic scan on 26 April 2012.
You failed to identify and/or record any information in your report relating to a black area on the scan.

95. In relation to Patient D the criticism is that the Registrant failed to identify and/or record any information in his report relating to a black area on the scan.

96. Mr CD was of the opinion that a black area visible on the scan should have been noted as it could have indicated that there was a small amount of fluid in the Pouch of Douglas, which in turn could have been caused by an infection.  Mrs Butcher did not support the criticism of the fact that the Registrant did not report this black area.  The basis on which she departed from Mr CD was because she considered that Sonographers sometimes have to exercise their professional judgement as to whether something is simply a normal variant.  She said that she was not concerned by what might have been a small amount of fluid in the Pouch of Douglas not being reported.

97. The Panel accepts that some Sonographers might have reported the black area, but in the light of the evidence of Mrs Butcher, the Panel does not consider that it would be appropriate to criticise the Registrant for not doing so, finding that the absence of the report fell within the acceptable responses of a competent Sonographer.

98. Particular 6 is not proven.


Particular 7(a), (c) & (d) – Patient E’s dating scan on 27 April 2012.

(a) Did not take a measurement of the fetal pole;

(c) Took images that were blurred and/or under magnified;

(d) Did not record in the report that a repeat scan was required.

99. Particular 7(a) alleges that the Registrant did not take a measurement of the fetal pole.

100. The report prepared by the Registrant does not contain a measurement of the fetal pole.  He reported that there was no fetal pole present.  The real issue with regard to this particular, therefore, is whether there was present in the image a fetal pole that he could have measured.

101. The evidence of Mr CD was that there was a fetal pole which could and should have been measured.  The evidence of Mrs Butcher, however, was less certain.  She said that there was what she described as an “echo” on image 7, a trans-abdominal image, that could have been something within the sac, but equally she acknowledged that it could have been debris or an artefact.  Her evidence was that a trans-vaginal scan would be necessary to establish whether there was present or not a fetal pole.  Consistent with his contemporaneous report, the Registrant’s case was that there was no fetal pole for him to measure.

102. The Panel resolved the conflict in evidence between Mrs Butcher and Mr CD by preferring the evidence of Mrs Butcher.  In the light of that preference, the Panel concluded that the HCPC had not discharged the burden of proving the required positive contention that there was present a fetal pole that the Registrant could have measured.

103. Particular 7(a) is not proven.

104. Particular 7(c) alleges that the Registrant took images that were blurred and/or under-magnified.

105. It was the evidence of Mrs Butcher that the images were blurred and under-magnified, with the machine settings not being optimised.

106. It was the case of the Registrant that there were no guidelines that blurred images should not be stored because these could still be diagnostic.  As to magnification, as previously recorded, he contended that there was no guidance on this.

107. The Panel preferred the evidence of Mrs Butcher.

108. Particular 7(c) is proven.

109. Particular 7(d) alleges that the Registrant did not report that a repeat scan was required.

110. The criticism stems from the fact already mentioned in relation to particular 7(a), namely that what could be seen in the scans taken by the Registrant disclosed something that could have been a fetal pole.  Mrs Butcher was of the view that the report produced by the Registrant that there was no fetal pole and no fetal heart beat was too vague, and could have resulted in a clinician taking steps that would not have been appropriate.  Mrs Butcher was of the opinion that what should have been done by the Registrant was to require a re-scan a week later to see if there were any developments that were indicative of pregnancy.

111. The Registrant’s evidence was that this referral for a scan came from the Termination of Pregnancy Clinic, and a repeat scan was not required as the question had already been answered that the pregnancy was not viable.

112. The Panel accepted the opinion of Mrs Butcher.  The Registrant did not advise a re-scan.

113. Particular 7(d) is proven.

Particular 8(a) to (c) – Patient F’s dating scan on 27 April 2012.

(a) Spent insufficient time obtaining the images;

(b) Failed to manipulate the scan sufficiently in order that you could record the Nuchal Translucency measurement;

(c)  Did not refer the patient for further tests/did not record that you had referred the patient for further tests.

114. Particular 8(a) alleges that the Registrant spent insufficient time obtaining the images.

115. The evidence discloses that the images of Patient F taken by the Registrant were undertaken in approximately 5 minutes.  In the judgement of the Panel the time taken has to be considered not only in the context of the number of images taken, but also having regard to the quality of the images and what else the Sonographer might have done, for example, whether more time should have been taken in manipulation to achieve better images.

116. The evidence of Mrs Butcher was that the time taken by the Registrant was an unacceptably short period of time for the images to be taken.

117. The Registrant’s case was as has been previously described, namely that there was no criteria by which an acceptable time could be judged.

118. Having also considered the criticism advanced by 8(b) which will be considered next, the Panel has concluded that Mrs Butcher’s evidence is to be accepted.

119. Particular 8(a) is proven.

120. Particular 8(b) alleges that the Registrant failed to manipulate the scan sufficiently in order that he could record the NT measurement.

121. In his report the Registrant wrote “NT not performed due to fetal position”.   The issue to be decided in relation to particular 8(b) is therefore whether it has been factually established that the NT measurement could have been taken by further manipulation of the probe.  Both Mr CD and Mrs Butcher believed that it could have been achieved.  The oral evidence of the latter was particularly considered.  She looked at the images when giving evidence and said, “The first three images the baby is in quite a good position, so I think with the right magnification and just angling to actually clear that nuchal translucency and get the better profile view of the baby, I think that it would have been achievable.”  When viewing image 4, Mrs Butcher said, “It just doesn’t look like the worst position for measuring the nuchal translucency.  I think it would have been achievable.”

122. The Registrant in evidence stated that in practice there are times when it is not possible to obtain the NT measurement.  His view was that the scan was adequately manipulated as required.

123. The Panel accepted the evidence advanced by Mrs Butcher and Mr CD that, with manipulation, the NT could have been measured.

124. Particular 8(b) is proven.

125. Particular 8(c) alleges that the Registrant did not refer the patient for further tests or did not record that they had been referred for further tests.

126. The Liverpool Protocol required (final paragraph on page 4), “If the nuchal translucency cannot be measured within the specified appointment time the woman is referred to the antenatal clinic to be counselled for second trimester screening.”  The evidence of Mr CD confirmed the terms of the Liverpool Protocol.  The rationale for the requirement to refer for further tests arises from the reason why NT measurements are taken.  The measurement undertaken is to screen for Down’s Syndrome, and so if the NT cannot be taken, the patient can be advised by the midwife about other test options.

127. The Registrant’s evidence was that he referred the patient for a further assessment by sending her back to the midwife, and that the referral would have been noted in the patient’s hand-held maternity notes that were not before the Panel.

128. The report prepared by the Registrant clearly stated “NT not performed due to fetal position”, but that statement was not accompanied by a statement that further tests were required or by a referral for further tests.  Had any such steps been taken by the Registrant they both should and would have been recorded in his report.  The Panel therefore rejects the Registrant’s contention that he referred Patient D for further assessment, and it also finds that there should have been such a referral made by the Registrant.

129. Particular 8(c) is proven.


Particulars 9(a) & (b) – Patient G’s dating scan on 27 April 2012

(a) Spent insufficient time obtaining the images;

(b) Some of the images were of suboptimal quality in that they were blurred.

130. Particular 9(a) alleges that insufficient time was taken in obtaining the images.

131. As has been stated with regard to the particulars concerning Patient F, the Panel has again considered the issue of the time taken in imaging in conjunction with the quality of the images.  The images were taken in approximately 4 minutes.  By particular 9(b) it is alleged that some of the images taken were of sub-optimal quality.

132. The evidence of Mrs Butcher contained in her written report was that the “four minute acquisition time demonstrated a lack of due diligence”.  In oral evidence Mrs Butcher stated that it was her opinion that the time taken was “unacceptable”.  The evidence of Mr CD was that it was his impression that the examination of the patient undertaken by the Registrant may have been rushed.

133. The Registrant’s evidence was, as has been summarised in relation to other similar allegations, that there were no criteria by which the time taken could be benchmarked.

134. The Panel accepted the evidence of Mrs Butcher and Mr CD.

135. Particular 9(a) is proven.

136. Particular 9(b) alleges that some of the images were blurred.  Again, this was stated by both Mr CD and Mrs Butcher.  The latter referred in particular, to images 1, 2, 3 and 7 as being blurred, stating in relation to image 7, “… it’s just not really giving anything at all.  Can’t even really decipher the legs here it’s that blurred.”  Furthermore, it was the evidence of Mrs Butcher that it would not have been difficult for less blurred images to have been obtained; for example, the Registrant could have waited for the baby to be still and he could have played back the images on the machine to make sure that he had obtained the best possible position.

137. The Registrant’s case was that simply because the image might be blurred, it did not mean that it was non-diagnostic.

138. The Panel accepted the evidence of Mrs Butcher and Mr CD.

139. Particular 9(b) is proven.


Particular 10 – Patient H’s dating scan on 27 April 2012.
You inappropriately used a Spectral Doppler to listen to the baby's heartbeat.

140. The sole criticism in relation to Patient H is that the Registrant inappropriately used a Spectral Doppler to listen to the baby’s heartbeat.

141. The evidence of both Mr CD and Mrs Butcher was that there was no clinical indication for a Spectral Doppler machine to be used, and, that being the case, it should not have been used.  The Panel was referred to both The British Medical Ultrasound “Guidelines for the safe use of diagnostic ultrasound equipment” (“BMUS”) and the Safety Statement published by the European Committee of Medical Ultrasound Safety (ECMUS) documents.  These documents supported the evidence of Mr CD and Mrs Butcher that a Spectral Doppler machine should not be used unless clinically indicated.  The reason why the use of such a machine in the first trimester of pregnancy is not advisable is because of the heating effect on the surrounding tissue.  This is especially increased in trans-vaginally conducted scans, as the probe is so near the adjacent fetus.  The fetus is known to be particularly sensitive during this early stage of its development and care is required to avoid unnecessary tissue heating.

142. The Registrant stated that he used the Spectral Doppler because the referral to him included a specific request made of him which necessitated the use of the machine.  The Panel rejects this case, finding that there is no evidence other than the Registrant’s assertion to support it, and, more particularly, that the report he produced contained no advice that he might have been expected to give had such a request been made.

143. It follows that the Panel accepted the HCPC’s case that the use of the Spectral Doppler was inappropriate.

144. Particular 10 is proven.
Particular 11(a) & (b) – Patient I’s dating scan on 27 April 2012.


(a) Did not magnify the images sufficiently;

(b) As a result of your actions in (a) could not ensure an accurate NT measurement.

145. Particular 11(a) alleges that the Registrant did not magnify the images sufficiently.

146. The evidence critical of the Registrant was given by Mr CD, who expressed the opinion that images 5 and 8 were insufficiently magnified.  Mrs Butcher was less critical of the magnification than Mr CD.  In oral evidence she stated that the baby’s face looked a little bit under-magnified, and there were other respects in which she considered that greater magnification could have been applied.  However, in relation to the issue of measurement of the NT (which was the reason why the images were taken), her evidence was that she thought that it had been quite well measured.  Having considered very carefully, the Panel has concluded that this is an instance where another Sonographer might well have applied a greater degree of magnification, but that nevertheless, the Registrant’s performance did not fall outside a permissible bracket of competence.

147. Particular 11(a) is not proven.

148. Particular 11(b) alleges that the Registrant could not ensure an accurate NT measurement because of the insufficient magnification.  As it is not alleged that the inability to ensure an accurate measurement resulted from any factor other than the degree of magnification, the fact that the Panel does not find proved the criticism relating to magnification necessarily has the consequence that particular 11(b) is also not established.

149. Particular 11(b) is not proven.


Particular 12(a) to (d) – Patient J’s dating scan on 27 April 2012.

a) Did not magnify the images sufficiently;

(b) As a result of your actions in (a) could not ensure accurate femur length measurements;

(c) Did not ensure the HC measurement in relation to twin 2 was accurate;

(d) Did not spent sufficient time obtaining the images

150. Particular 12(a) alleges that the Registrant insufficiently magnified images.

151. Mr CD expressed the opinion that the images taken by the Registrant were of reasonable quality, a view he qualified in relation to those of fetal biometry which he thought should have been magnified.  As a result of the insufficient magnification Mr CD expressed the further opinion that the femur length might not have been correctly measured.  He did not positively assert that it had been incorrectly measured.  Mrs Butcher was less critical of these scans than Mr CD.  She did not deal with them in her written report.  In oral evidence, when asked to consider the degree of magnification, she stated that they were “not great”.  In the light of this evidence, the Panel has concluded that it would not be appropriate to reach a finding that the HCPC had discharged the burden of proving that the Registrant’s performance with regard to these images fell sufficiently below an acceptable level so as to warrant a finding against him.

152. Particular 12(a) is not proven.

153. Particular 12(b) alleges that as a result of the lack of magnification, the Registrant could not ensure an accurate femur length measurement.  As the Panel does not find particular 12(a) to be established, it necessarily follows that particular 12(b) is not made out.

154. Particular 12(b) is not proven.

155. Particular 12(c) alleges that the Registrant did not ensure that the head circumference measurement of twin 2 was accurate.

156. Mrs Butcher’s evidence was that the callipers used to measure the head circumference of twin 2 in image 16 were way above the skull line.

157. The Registrant’s case was that his calliper position was comparable to FASP and the head circumference “measurement value” obtained was acceptable for twin 2.

158. Having carefully considered the matter, the Panel accepts the evidence of Mrs Butcher.  As the callipers were incorrectly positioned it necessarily follows that the Registrant could not ensure that the measurement was accurate.

159. Particular 12(c) is proven.

160. Particular 12 (d) alleges that the Registrant did not spend sufficient time obtaining the images. The patient was pregnant with twins is highly material to the length of time taken.  The image acquisition time was approximately 7 minutes.

161. Mrs Butcher was of the view in both her written report and in oral evidence that the length of time taken was unacceptably short.  Her oral evidence was that, given the number of features that should be looked for, it could take up to 45 minutes to scan a twin pregnancy at 15 weeks gestation.

162. The Registrant, as before, stated there was no criteria for image acquisition time and that 7 minutes was an acceptable time.

163. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

164. Particular 12(d) is proven.


Particulars 13(a) to (f) – Patient K’s anatomy scan on 26 April 2012.

a) you took the image of the stomach in the oblique view, thus making it appear as if the stomach was adjacent to the heart;

(b) as a result of your actions in a you produced a potentially misleading image;

(c) Did not ensure the spine views were complete;

(d) Measured the HC at an incorrect section;

(e) Incorrectly measured the nuchal fold;

(f) Did not record a diagnostic image of the foetal lips.

165. Particular 13(a) alleges that as a result of taking an image of the stomach in an oblique view, the image gave the appearance that the stomach was adjacent to the heart.

166. The HCPC’s case relates to image 17.  The evidence of Mrs Butcher was that the image of the fetal heart was sub-optimal, as it was oblique and that it appeared to show the fetal stomach at the same level as the heart.  However, from image 19 Mrs Butcher was able to conclude that the baby’s stomach and heart were in the correct positions.

167. The Registrant rejected the HCPC’s criticisms on the basis that the oblique images were a legitimate way of taking the image and that they were consistent, not only with the image in the FASP guidelines, but the image in the Anomaly Screening Standard of NHS FASP policy guidance.

168. The Panel preferred the evidence of Mrs Butcher to that of the Registrant, and accepted her criticisms relating to image 17.

169. Particular 13(a) is proven.

170. Particular 13(b) alleges the consequence of particular 13(a), namely that a potentially misleading image was produced by the Registrant.

171. It was Mrs Butcher’s evidence that the consequence of the appearance of the fetal stomach being at the same level as the heart was that it would give rise to a suspicion of a diaphragmatic hernia.

172. The Registrant contended that in the images he took, the diaphragm could be clearly seen and was distinct.

173. The Panel has already noted that it was possible to conclude from image 19 that the stomach and heart were in the correct position.  The issue relevant to this particular, however, is whether image 17 provided a potentially misleading impression of their relative anatomical positions.  The Panel accepted the evidence of Mrs Butcher that it did.

174. Particular 13(b) is proven.

175. Particular 13(c) alleges that the Registrant did not ensure that the spine views were complete.

176. The relevant images are those numbered 1, 2 and 3.  Mrs Butcher’s evidence was that the images revealed an insufficient amount of the lower part of the baby’s lower spine  In oral evidence she said, “You can see the cervical area but, again, we cannot see the key area of this spine, this baby’s bottom part, where a myelomeningocele could potentially be.  We can’t see it clearly on that image.”

177. The Registrant’s response to this allegation was that there were lost or withheld images.  His closing submissions contended, “…. This represents an evidence of a consistent pattern of image loss in all of the patients which amounts to tampering of evidence.”

178. The Panel rejected the Registrant’s contention as to absent images for the reasons set out at the beginning of this decision section of the determination.  The Panel, being satisfied that it was not being presented with selected images, accepted Mrs Butcher’s evidence that those the Registrant did take resulted in there being incomplete spine views.

179. Particular 13(c) is proven.

180. Particular 13(d) alleges that the Registrant measured the head circumference in an incorrect section.

181. The relevant images are those numbered 10 and 11, the two images showing the head circumference in the same plane.  The evidence of Mrs Butcher was that the head circumference had been measured at the level of the cerebellum.  Her evidence was that this was an inappropriate level for the head circumference as the cerebellum should not be on the image.  In addition to the wrong section being used for the measurement, Mrs Butcher also contended that the callipers exceeded the bone, resulting in over-measurement.

182. In his written submissions the Registrant refers to the evidence of Mrs Butcher accepting that in certain circumstances, namely when there are thalamic bodies on the image, it could be FASP acceptable to measure in a manner that did not accord with the approach she had been contending.  The Panel rejected this argument as not being relevant to the images of this particular baby, since the ordinary FASP requirements applied.  The Panel is satisfied that, based on these requirements, Mrs Butcher’s criticisms are valid.

183. Particular 13(d) is proven.

184. Particular 13(e) alleges that the Registrant incorrectly measured the nuchal fold.

185. The relevant image is image 12.  The evidence of Mrs Butcher was that it is necessary to measure to the back of the skin line, and that had not been done by the Registrant.

186. The Registrant contended that his measurement was correct.  He submitted, “The images gave all the appropriate information so that a proper analysis of the nuchal fold area could be undertaken and no additional ultrasound scan was necessary.  The measurement was within the expected range…..”.

187. As to the points of measurement, the Panel accepts the evidence of Mrs Butcher and rejects that of the Registrant.  As to the “expected range” argument advanced by the Registrant, the Panel applies its general comments on that recurring submission and finds that it is irrelevant to whether the measurement was correctly measured.

188. Particular 13(e) is proven.

189. Particular 13 (f) alleges that the Registrant did not record a diagnostic image of the fetal lips.

190. The HCPC’s case was that a diagnostic image of the fetal lips was not recorded by the Registrant as required by FASP.  Mrs Butcher noted that image 8 was labelled “NOSE/LIPS”, but she said of that image, “I can’t see them clearly on there at all”, having earlier noted that the whole scan appeared to have been undertaken on a cardiac setting.

191. In relation to this particular the Registrant has relied upon the argument that there are lost images, adding, “It is not clear if the fetal lips images are amongst the lost images.”

192. The Panel rejects the Registrant’s case based upon lost images, and accepts the evidence of Mrs Butcher.

193. Particular 13(f) is proven.

Particulars 14(a) to (e) – Service User 1’s anatomy scan on 12 April 2012.

a) Did not ensure that the head circumference (HC) was measured correctly;

b) Did not take any other images to clarify the normality of the fetal face and/or any images of the true profile and/or the lips;

c) Did not ensure that the cerebellum was measured correctly;

d) Did not ensure that the head was imaged with the midline at 90 degrees to the beam;

e) Measured the lateral ventricles incorrectly and/or did not ensure that the walls of the ventricles were visible to assess and measure these structures.

194. Particular 14(a) alleges that the Registrant did not ensure that the head circumference was measured correctly.

195. The scan being undertaken by the Registrant was a repeat scan, and the relevant scan is number 3.  The evidence of Mrs Butcher was that the section was not ideal because the cerebellum was coming into view.  She also noted that she considered that the image was not ideal because the midline was not at 90 degrees. However, her more significant criticism was that the callipers were off the fetal skull at the back, resulting in over-measurement.

196. The Registrant contended that the head circumference was measured correctly and that the callipers were positioned as demonstrated in the FASP-required position.  He also relied upon his “range” argument.

197. The Panel preferred the evidence of Mrs Butcher.

198. Particular 14(a) is proven.

199. Particular 14(b) alleges that the Registrant did not take any other images to clarify the normality of the fetal face and/or any images of the true profile and/or the lips.

200. That no images of the nature identified in the particular were taken by the Registrant is not in dispute.  The Panel has decided this particular on the basis of whether it has been proved by the HCPC that the Registrant was under an obligation to take such images.  As has already been stated, this was a re-scan.  The report made by the Registrant of the procedure recorded only limited examination, for example, cerebellum size, head circumference, CRB.

201. Mrs Butcher’s evidence was that she would have re-scanned those areas the HCPC has criticised the Registrant for not scanning.  She said, “The profile not as much but the fetal lips I would have definitely taken on a repeat view of the head just to make sure I’d seen anything.”

202. The Registrant contended that he was not required to re-scan the areas relevant to this particular.

203. The referral to the Registrant for the purposes of the scan on 12 April 2012 was not available to be examined by the Panel, and in those circumstances the Panel does not consider that it would be appropriate to conclude that the referral explicitly requested him to scan any area other than those he reported upon.  As to whether there was a duty on his part to scan those areas absent an explicit request, although the Panel accepts that some, perhaps many, Sonographers would do as Mrs Butcher said she would do, the Panel has concluded that the evidence produced by the HCPC fell short of proving that he was under the relevant duty.

204. Particular 14(b) is not proven.

205. Particular 14(c) alleges that the Registrant did not ensure that the cerebellum was measured correctly.

206. The relevant images are numbered 1 and 5.  The evidence of Mrs Butcher was that the Registrant had not captured a transverse section (demonstrated by soft tissue of the neck being visible) and, further, in image 1 that the callipers had been placed too high up, off the top of the cerebellum.

207. The Registrant contended that the measurement was consistent with the FASP requirements, and he also relied upon his “range” argument.

208. The Panel preferred the evidence of Mrs Butcher.

209. Particular 14(c) is proven.

210. Particular 14(d) alleges that the Registrant did not ensure that the head was imaged with the midline at 90 degrees to the beam.

211. The relevant images are those numbered 1 to 5 and 8.  The evidence of Mrs Butcher was that if the midline is at 90 degrees a much more accurate measurement can be obtained.

212. The Registrant’s case was that image 1 showed the fetal head and that it was imaged with the midline at 90 degrees to the beam.  As to the storage of those images that were not taken with the midline at 90 degrees to the beam, he contended that there was no FASP requirement stating that they should not be stored.

213. The Panel accepted the factual proposition that image 1 was taken at 90 degrees to the beam.  Although the Panel accepted the criticism advanced by Mrs Butcher in relation to other images of the head, as image 1 was taken at 90 degrees to the beam, the Panel finds that the HCPC has not discharged the burden of proof in relation to this particular.

214. Particular 14(d) is not proven.

215. Particular 14(e) alleges that the Registrant measured the lateral ventricles incorrectly and/or did not ensure that the walls of the ventricles were visible to assess and measure these structures.

216. The relevant images are those numbered 4 and 8.  The evidence of Mrs Butcher was that the FASP-required measurement of the ventricular atrium was not performed correctly because the Registrant did not ensure that he had a midline and because of that, the images were not sufficiently clear to be able to ensure that the measurement was to the border.  Accordingly, she concluded that the measurement was not undertaken with sufficient precision to be a relevant measurement to meet the FASP criteria.

217. The Registrant contended that the measurement was undertaken correctly and he referred to an image reproduced in one of the resources to which he referred to justify the quality of the image he took.

218. The Panel preferred the evidence of Mrs Butcher and found both limbs of particular 14(e) proven.


Particulars 15(b), (c), (e) & (f) – Service User 2’s anatomy scan on 12 April 2012.

b) The fetal spine views taken were of sub-optimal quality;

c) The focal positioning was poor and/or not altered throughout the examination;

e) The cervical fetal spine was not demonstrated on any of the images;

f) You spent insufficient time obtaining the images.

219. Particular 15(b) alleges that the fetal spine views were of sub-optimal quality.

220. The relevant images are those numbered 1 to 14.  In her written report Mrs Butcher stated that none of these images were FASP-compliant so far as undertaking an assessment of the spine was concerned.  She advised that it was imperative that the spine should be assessed in an anterior longitudinal position with the skin line visible as shown in the example image contained in the FASP document.  In oral evidence Mrs Butcher said, “….. I’m not seeing images that would see the FASP standard in regards to imaging that baby’s spine which include looking at the full length of the spine from neck to base and seeing the skin line all the way down the baby.  And I can’t see that on any of those images.”

221. The Registrant’s written closing submissions accepted that some of the images were sub-optimal.  He said that they had been stored to show what had been done.

222. The Panel accepted the evidence of Mrs Butcher.

223. Particular 15(b) is proven.

224. Particular 15(c) alleges that the focal positioning was poor and/or not altered throughout the examination.

225. The images relevant to the focal zone issue are 11, 13 and 14.  In relation to images 13 and 14, it was the evidence of Mrs Butcher that the focal zone needed to be a lot higher as that would provide better clarity to the image by making it sharper.  When she considered image 11 she said that the image was below the region of interest.  Mrs Butcher’s oral evidence was also that the focal position had not been changed throughout the examination.

226. The Registrant contended that the focal zone was altered, and to demonstrate that it was he demonstrated to the Panel the difference between images 1 and 12.

227. The Panel accepted the point made by the Registrant when he compared images 1 and 12, and it follows that the Panel accepted that he altered the focal zone during the examination.  However, as to the focal positioning being poor, the Panel accepted the criticism advanced by Mrs Butcher.

228. Particular 15(c) is proved as to poor focal positioning, but not as to non-alteration.

229. Particular 15(e) alleges that the cervical fetal spine was not demonstrated on any of the images.

230. After examining the images that were presented to her, Mrs Butcher advised that the fetal spine had not been imaged in its entirety and for that reason the exercise was not FASP-compliant.

231.The Registrant has contended that this is an instance where there are lost or missing images.  However, when he cross-examined Mrs Butcher on 1 September 2017 he did not suggest to her that there were images that were missing.  Rather, the point he put to her in cross-examination was that he had struggled to get a good fetal position to take images.  He did not contend that the available images demonstrated the cervical spine.

232. The Panel carefully considered the lost/missing images issue, examining the images that were available to it when it made its deliberations.  It did so in the knowledge that at one stage it was apparent that the numbering of the images as being used by Mrs Butcher did not accord with the numbering that was being used during the hearing.  The conclusion of the Panel was that Mrs Butcher had examined all of the available images and that there were in fact no other images that were taken.  Accordingly, the Panel accepted the evidence of Mrs Butcher.

233. Particular 15(e) is proven.

234. Particular 15(f) alleges that the Registrant spent insufficient time obtaining the images.

235. It was the evidence of Mrs Butcher that the period of approximately 8 minutes spent by the Registrant obtaining the images was an unreasonably fast timescale, particularly as she contended that there were a lot of irrelevant images and they were of poor quality.

236. In relation to this particular, the Registrant repeated the point he had made in relation to earlier similar particulars.

237. The Panel preferred the evidence of Mrs Butcher.

238. Particular 15(f) is proven.

Particulars 16(a) to (c), (e) & (g) to (i) – Service User 3’s anatomy scan on 13 April 2012.

a) Did not ensure that the minimum requirement of images as recommended by the Fetal Anomaly Screening Programme (FASP) was met;

b) Did not ensure that there was a consistent annotation of images to document the anatomy assessed;

c) Did not ensure that the HC plane was correct and/or that the HC was measured correctly;

e) Did not record an Abdominal Circumference (AC) image and/or images of the sacral spine;

g) You took an excessive number of images;

h) You did not ensure the cerebellum was measured correctly;

i) You did not ensure the femur length was measured correctly.

239. Particular 16(a) alleges that the Registrant did not ensure that he obtained the minimum number of images required by FASP.

240. In her written report Mrs Butcher stated that none of the 38 images met the FASP standards.

241. The Registrant contended that he took FASP-compliant images, but that this case is another instance of lost or missing images.

242. The Panel carefully considered the Registrant’s case that there were missing images, but rejected that case.  It accordingly accepted the evidence of Mrs Butcher.

243. Particular 16(a) is proven.

244. Particular 16(b) alleges that the Registrant did not ensure that there was a consistent annotation of the images to document the anatomy scan.

245. Mrs Butcher made criticisms of the annotation of the images, one being that some were annotated, yet others not, a particular issue, she believed, because of the number of images made by him.  However, Mrs Butcher acknowledged that there is no obligation to annotate images, although she stated that if a Sonographer chose to annotate them, the annotation should be accurate.

246. The Registrant contended that it was not a FASP requirement to consistently annotate the images and that the annotations were guided by the provisions of an audit tool produced by the British Medical Ultrasound Society.

247. The Panel concluded that the evidence of Mrs Butcher that there was no obligation imposed by FASP to annotate images resulted in the Registrant not being under a duty to do so.

248. Particular 16(b) is not proven.

249. Particular 16(c) alleges that the Registrant did not ensure that the head circumference plane was correct and/or that it was correctly measured.

250. The relevant image is image 13.  It was the evidence of Mrs Butcher that the image was taken in a very angled plane so that the midline was not at 90 degrees to the beam.  She also stated that she suspected that the image revealed the cerebellum coming into the image, resulting in the scan being taken too low down in the brain.  Furthermore, the calliper placement was what she described as “way off” the skull at the front.

251. The Registrant contended that the scan was made in the correct plane and at the right level, that it was FASP-compliant and the calliper placement was correct.

252. The Panel preferred the evidence of Mrs Butcher.

253. Particular 16(c) is proven.

254. Particular 16(e) alleges that the Registrant did not record an abdominal circumference image and/or images of the sacral spine.

255. Mrs Butcher’s evidence was that the images presented to her did not include an image of the abdominal circumference.  As to the sacral spine, in relation to which issue the relevant images were 35 to 38, she stated that each of them were images of the spine, but not one of them demonstrated the base of the spine well enough to be FASP-compliant.  In relation to image 36 she said, that the image probably showed the lower part of the spine because of the tapering that was visible, but that it was not an acceptable image because it was not possible to see the skin line, it being necessary to have a space between the spine and the uterine wall.

256. The Registrant contended, in relation to the abdominal circumference, that this was a case of lost/missing images, and he referred to the fact that his report included a measurement of it.  So far as the sacral spine issue was concerned, he stated that the images were missing or lost.

257. The Panel acknowledges that the report the Registrant produced recorded a measurement of the abdominal circumference, but the issue is whether he recorded (i.e. stored) the image from which that measurement was taken.  On the basis of the evidence the Panel has accepted no such image was recorded, nor was there an acceptable image of the sacral spine.

258. Particular 16(e) is proven.

259. Particular 16(g) alleges that the Registrant took an excessive number of images.

260. The evidence of Mrs Butcher was that the 38 images were excessive.  In her oral evidence she acknowledged that a greater number than the 6 minimum might be recorded, particularly if the spine was imaged in a “jigsaw” manner.  But her evidence was that it would not be expected to see a practitioner going back over areas already imaged, because that would suggest that the better image is being attempted.  It was her view that it should be possible to get a good view and then move on.

261. The Registrant denied that he took an excessive number of images, contending the images of the fetal limbs were taken to confirm that the baby was screened for skeletal dysplasia.

262. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

263. Particular 16(g) is proven.

264. Particular 16(h) alleges that the Registrant did not ensure that the cerebellum was measured correctly.

265. The relevant images are 14 and 21.  In relation to the former, Mrs Butcher’s evidence was that the head was in an oblique position with the chin positioned upwards.  The midline was not at 90 degrees to the beam.  With regard to image 21 she stated that the upper calliper was off the top of the cerebellum, resulting in it being too high.  That the position was not correct was demonstrated, she said, by the fact that the nuchal fold could not be seen, which should have been in the same image.

266. The Registrant contended that the cerebellum had been measured correctly, the appearance of the image he took being comparable to that in an exhibit he produced.  He took issue with Mrs Butcher’s contention as to what was required to be FASP-compliant.

267. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

268. Particular 16(h) is proven.

269. Particular 16(i) alleges that the Registrant did not ensure that the femur length was measured correctly.

270. The relevant images are 12 and 30.  The evidence of Mrs Butcher was that the poor quality of these relevant images made it difficult to be confident that the callipers used to measure femur length had been placed in the correct position.  Her conclusion was that she suspected the femur had been over-measured.

271. The Registrant contended that the femur had been correctly measured, and he referred the Panel to a document published by Mid Essex NHS Trust in support of his case.  He contended that the images he stored gave all the information to enable a proper analysis of the femur length.

272. The issue to be decided is whether the Registrant had ensured that his measurement was undertaken correctly.  The Panel accepted the evidence of Mrs Butcher and as a result concluded that it had not.

273. Particular 16(i) is proven.

Particulars 17(a) to (e) – Service User 4’s dating scan on 13 April 2012.

a) Did not ensure that the Crown Rump Length (CRL) was measured in the correct sagittal fetal plane;

b) The focal positioning was suboptimal for Nuchal Translucency (NT) measurements;

c) Images quality and/or the standard of examination was sub-optimal;

d) You did not spend sufficient time obtaining the images;

e) You took an excessive number of images.

274. Particular 17(a) alleges that the Registrant did not ensure that the crown rump length was measured in the correct sagittal fetal plane.

275. The relevant image is image 3.  It was Mrs Butcher’s evidence that the image was not measured in the correct sagittal position because the head was in an oblique position with the chin too far down.  She said that the elements of the face she saw told her that the face was rotated.  Additionally the image was insufficiently magnified.

276. The Registrant contended that the crown rump length was measured correctly in the fetal sagittal plane.  He further contended that the images gave all the appropriate information so that a proper analysis of the crown rump length could be undertaken.

277. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

278. Particular 17(a) is proven.

279. Particular 17(b) alleges that the focal positioning was sub-optimal for nuchal translucency measurements.

280. The relevant images are 6 to 10.  Mrs Butcher’s evidence in both her written report and in her oral evidence was that in not one of those images was the focal zone parallel to the nuchal transparency measurement.  Her oral evidence was that these images are, “really, really poor”.  She further stated that the focal zone was too high, adding, “It’s not been moved ….. it’s not actually been moved I think through the examination.”

281. The Registrant contended that the focal positioning was correct and not sub-optimal.

282. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

283. Particular 17(b) is proven.

284. Particular 17(c) alleges that the quality of the images and/or the standard of the examination were sub-optimal.

285. All 9 images taken by the Registrant are relevant to this criticism.  It was the evidence of Mrs Butcher in her written report and subsequently supported by her oral evidence, that all of the images were sub-optimal.

286. In his closing written submissions the Registrant accepted that some of the images he obtained were sub-optimal, but contended that they were stored to show what was done.  He also argued that they were of diagnostic value and were comparable to those found in professional literature and in the FMF training manual.

287. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

288. Particular 17(c) is proven.

289. Particular 17(d) alleges that the Registrant did not spend sufficient time obtaining the images.

290. The time taken was approximately 5 minutes.  In both her written report and in her oral evidence, Mrs Butcher expressed the opinion that this was unacceptably fast.  In oral evidence she said, “…. I would need to spend a lot longer than five minutes to get an optimal nuchal translucency.  I know I would.  It would take me longer than that.”

291. The Registrant submitted that this patient was scanned using the “twice on the couch” procedure, and he advanced the argument that the five minutes he spent was “well beyond” the four minutes that had been suggested in a CPD training resource.

292. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

293. Particular 17(d) is proven.

294. Particular 17(e) alleges that the Registrant took an excessive number of images.

295. Nine images were taken.  In advancing the criticism of this number, Mrs Butcher related that number to the quality of the images.

296. The Registrant denied that nine images was an excessive number, again referring to the absence of any protocol or guidance as to a maximum number which could justify benchmarking.

297. In circumstances in which the Panel is considering factual particulars that properly separate out quality from number, the Panel has concluded that fairness to the Registrant requires consideration of those two issues separately.  When considering only the number of images, the Panel has concluded that the HCPC has not discharged the evidential burden on this issue.

298. Particular 17(e) is not proven.

Particulars 18(a) to (f) – Patient 5’s pelvic scan on 12 April 2012.

a) Did not ensure optimal magnification for TS endometrial measurements;

b) Did not ensure that the right ovary was measured correctly;

c) Did not demonstrate altered pre-set and/or frequency of the dense fibroid uterus to accommodate better US penetration;

d) Did not ensure that the report recorded an accurate description of the size and/or the multitude of fibroids seen within the uterus;

e) Took an excessive number of images;

f) Measured the endometrial thickness incorrectly.

299. Particular 18(a) alleges that the Registrant did not ensure optimal magnification for TS endometrial measurements.

300. In her written report, Mrs Butcher made a general criticism that images were over-magnified, and she also criticised the fact that the endometrial thickness was measured incorrectly in transverse section abdominally.  She developed these criticisms when she gave oral evidence on 5 September 2017.

301. The Registrant contended that the TS images were optimally magnified to ensure clarity of the endometrial outline.

302. When the Panel considered this particular it focused on whether the HCPC had produced evidence that specifically criticised the magnification in relation to a TS endometrial measurement.  However, the Panel was unable to find such evidence upon its review of all the relevant material, including the transcripts.  It followed that the Panel concluded that the HCPC had not discharged the evidential burden it carried.

303. Particular 18(a) is not proven.

304. Particular 18(b) alleges that the Registrant did not ensure that the right ovary was measured correctly.

305. The relevant image is image 2.  In her written report, Mrs Butcher stated that the right ovary had been incorrectly measured.  In her oral evidence on 5 September 2017 she expanded on this opinion by stating that in order to measure volume, three measurements are required, and in order to take these three measurements, two different planes are needed.  That this was required was supported by the UKAS Guidelines.  Mrs Butcher’s opinion was that the two images contained in the image numbered 2 were taken in almost the same plane.  In her oral evidence she said of the images, “…. This is absolutely not the transverse and the longitudinal section of the ovary.”

306. The Registrant contended that the right ovary was measured correctly in three different dimensions, having been demonstrated in more than two planes.  The Registrant also relied upon the evidence of Dr CO in support of his contention.

307. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

308. Particular 18(b) is proven.

309. Particular 18(c) alleges that the Registrant did not demonstrate altered pre-set and/or frequency of the dense fibroid uterus to accommodate better ultrasound penetration.

310. In her written report Mrs Butcher concluded that a lack of use of basic settings had been demonstrated by the images she saw.  In her oral evidence on 5 September 2017 she expanded on this criticism.

311. The Registrant submitted that different pre-sets were altered and demonstrated, contending that different pre-sets such as TVS and TAS could be seen recorded on the images.  He also contended that the different Hz values appearing on the images demonstrated that there had been changes of frequency.

312. The conclusion of the Panel is that the HCPC has not proved any element of this particular.  In his evidence the Registrant demonstrated that he changed pre-sets and frequencies.

313. Particular 18(c) is not proven.

314. Particular 18(d) alleges that the Registrant did not ensure that the report recorded an accurate description of the size and/or the multitude of fibroids seen within the uterus.

315. In her written report, Mrs Butcher wrote, “Attempts have been made to measure the fibroids poorly, these would be non-reproducible.  In view of the diffuse pathology whole uterine dimensions would have been more relevant or a measurement of the largest fibroid.”  In her oral evidence she said that the Registrant’s report did not record an accurate description of the size and/or multitude of fibroids seen within the uterus. 

316. The Registrant relied upon the fact that the clinical issue he was requested to investigate related to the ovaries.  That being the case, he submitted that he was not under a duty to report on the size and number of the fibroids as this had already been done on a previous MRI scan.

317. Having carefully considered the matter, the Panel accepted the Registrant’s case.  The Clinical Indications section of the Registrant’s report stated, “FIBROIDS SEEN ON MRI SCAN BUT OVARIES NOT WELL SEEN”.  The Panel reminded itself of the oral evidence of Mrs Butcher by examining the transcript, and it noted that in her evidence Mrs Butcher said she would personally have reported that fibroids were “noted” throughout the uterus.  The conclusion of the Panel was that the HCPC had not discharged the evidential burden of establishing in circumstances where the Registrant was requested to undertake an ultrasound scan in relation to ovaries that he was under a clear and obvious duty to report on fibroids when they had been already observed in the earlier scan that had resulted in the referral to him.

318. Particular 18(d) is not proven.

319. Particular 18(e) alleges that the Registrant took an excessive number of images.

320. In her written report, Mrs Butcher described the 41 images taken by the Registrant as “excessive”.  In oral evidence she acknowledged that a reasonable number of images might be between 12 to 15 because representative images of the trans-abdominal and trans-vaginal scan might be recorded.  But she said that 41 images was a lot, especially when they were non-diagnostic.

321. The Registrant submitted that the scan was a “three in one” scan, and included TAS pelvic scan, TVS pelvic scan and Kidney or Renal scan.  He contended that images were required to be stored from each of these scans to show and prove that each procedure had been duly and fully undertaken.  He also relied upon the evidence of Dr CO.

322. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

323. Particular 18(e) is proven.

324. Particular 18(f) alleges that the Registrant measured the endometrial thickness incorrectly.

325. The relevant image is 14.  In her written report, Mrs Butcher stated that the endometrial thickness had been measured incorrectly in transverse section abdominally.  In her oral evidence Mrs Butcher expanded on this view by stating that the thickness had been recorded as 7 millimetres, but that measurement (even if what was being measured was indeed the endometrial thickness) was based on only a part of the endometrium being visible because it was not being seen coming into the fundus.

326. The Registrant contended that his measurement of endometrial thickness was correct and that he had used both TAS and TVS images, and that he had measured several times in both modes because of the distorted outline of the fibroids abutting the endometrial-myometrial border.  He also relied upon the evidence of Dr CO.

327. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

328. Particular 18(f) is proven.

Particulars 19(b) to (g) - Patient 6’s pelvic scan on 12 April 2012.

b) Did not record uterine and/or ovarian measurements;

c) Images were of suboptimal quality and/or images were blurred;

d) Did not ensure that endometrial measurements were set to the correct magnification factor to increase accuracy;

e) Did not ensure that either ovary had been demonstrated in more than one plane;

f) Did not image the ovaries in longitudinal and transverse and/or did not measure the ovaries correctly;

g) Took an excessive number of images.

329. Particular 19(b) alleges that the Registrant did not record uterine and/or ovarian measurements.

330. So far as uterine measurements are concerned, in her written report, Mrs Butcher stated that there were no uterine dimensions.  In her oral evidence, when asked whether uterine measurements had been recorded, Mrs Butcher said, “They’ve not been recorded on the report and they’ve not been taken.  I would expect them to be taken…. I would expect to see measurements of the uterine dimensions just to make sure that they would be in normal range.  It’s not unusual for Sonographers to just report normal ultrasonic appearance of the uterus and not put measurements on.  But I would expect to see measurements within the images.”

331. In respect of an ovarian measurement, Mrs Butcher noted that it was, “not uncommon not to see ovaries.”

332. The Registrant’s case in relation to uterine measurements was that there was a measurement of the uterus and that it was sufficient for him to record the fact that the uterus was of normal size.  So far as ovarian measurements were concerned, he relied upon the statement in his report that he had not seen them due to bowel gas shadowing.

333. Having given the matter careful consideration, the Panel has concluded that the HCPC has not proved either aspect of this particular.  As to uterine measurements, the Panel viewed image 17 which appeared to contain a uterine measurement.  The Panel accepts that some, perhaps many, Sonographers would record measurements, at least on the images.  However, in the light of Mrs Butcher’s evidence about acceptable practice in this regard, as the Registrant’s report stated, “Anteverted normal size uterus with good myometrial echotexture”, the Panel does not consider that he can properly be criticised for not going further.  As to ovarian measurements, his statement that he had not seen them results in the Panel coming to the same conclusion in that regard.

334. Particular 19(b) is not proven.

335. Particular 19(c) alleges that images were of sub-optimal quality and/or were blurred.

336. In her written report, Mrs Butcher expressed the opinion that trans-abdominal images were too bright, a problem that would have been rectified if the Registrant had adjusted the contrast on the machine, something she described in her conclusion relating to this patient as basic settings.  In oral evidence, when asked to describe the quality of the images, she replied, adding that it was a criticism that applied to all of the images, “I think again it’s this basic use of equipment.  There’s ways to make these images a lot better.  I think the endometrium could have been made much clearer by using the ultrasound machine, doing techniques that we’ve already mentioned, using different frequencies.”  In the same session of her oral evidence, when she was asked about the blurring, she replied that in that respect they were not too bad.

337. The Registrant contended that the images were of diagnostic value and not sub-optimal, being comparable with those to be found in the textbook pages exhibited as Exhibit 39.

338. With regard to the contrast, and therefore the sub-optimal quality, issue, the Panel prefers the evidence of Mrs Butcher to that of the Registrant.  So far as blurring is concerned, the Panel finds that the HCPC has not discharged the evidential burden.

339. Particular 19(c) is proved as to sub-optimal quality, but not proved as to being blurred.

340. Particular 19(d) alleges that the Registrant did not ensure that endometrial measurements were set to the correct magnification factor to increase accuracy.

341. The relevant images are 14 and 15.  In her written report Mrs Butcher stated, “The endometrium cannot be identified clearly enough trans-vaginally to be measured adjusting the machine settings would have assisted the delineation of the endometrial borders.”  In her oral evidence, Mrs Butcher stated that these two images were definitely under-magnified, adding that the uterus was not big enough and the endometrium was not clear enough.  She was emphatic about the lack of magnification, stating, “Those two views are definitely not big enough to accurately assess that endometrium transvaginally.  And the discrepancy for me arises in that that is just so different to what we were seeing transabdominally where I feel we were getting a better view of the endometrium.”

342. The Registrant contended that the endometrial measurement was set to the correct magnification, and that the images provided all the appropriate information for a proper analysis to be made.  He also referred to the absence of any “literature evidence” as to what the magnification should be.

343. The Panel preferred the evidence of Mrs Butcher to that of the Registrant.

344. Particular 19(d) is proven.

345. Particular 19(e) alleges that the Registrant did not ensure that either ovary had been demonstrated in more than one plane, and particular 19(f) alleges that the Registrant did not image the ovaries in longitudinal and transverse and/or did not measure the ovaries correctly.  The Panel agrees with the approach of both the HCPC and the Registrant that these particulars should be taken together as there is no discernible difference between them.

346. The relevant images are images 10 and 11.  In her written report Mrs Butcher stated, “The ovaries have been imaged in the same plane not in longitudinal and transverse and are not measured correctly.”  In her oral evidence, she was critical of the fact that what appeared to be two images of the same, right, ovary imaged in the same plane, and not being rotated through 90 degrees.

347. The Registrant contended that the planes had been changed from longitudinal to transverse, and relied upon the evidence of Dr CO.

348. In the light of the fact that the Registrant’s report clearly stated, “Neither ovaries are seen due to bowel gas shadows”, it would be unfair to criticise him by the standards that would undoubtedly be appropriate if he had tendered the images as being of diagnostic value.  For that reason the Panel finds that the HCPC has not discharged the burden of proof in relation to these particulars.

349. Both particular 19(e) and particular 19(f) are not proven.

350. Particular 19(g) alleges that the Registrant took an excessive number of images.

351. In her written report, Mrs Butcher referred to the 23 images taken as being excessive.  In her oral evidence she stated that she would probably expect a maximum of 10 images to be taken.  She continued, “But we’ve got a lot of repetitive images.  We’ve got a lot of non-diagnostic images.”

352. The Registrant denied that 23 images was excessive, claiming that it was a personal choice and repeating his general point that there was no established guidance specifying a maximum number.

353. The Panel preferred the evidence of Mrs Butcher to that of the Registrant, basing that finding on the number of repetitive and non-diagnostic images.

354. Particular 19(g) is proven.


Particular 20(b) - Patient 7’s pelvic scan on 12 April 2012

b) Did not ensure that the endometrial measurement was clearly defined.

355. Particular 20(b) alleges that the Registrant did not ensure that the endometrial measurement was clearly defined.

356. In her written report Mrs Butcher wrote, “It concerns me …. that the endometrial thickness has been measured at 9.8mm without clear delineation of the borders.”  In oral evidence she said, “…… we’ve got callipers here.  I personally do not think that you can see the borders of that endometrium to measure it clearly enough.”  Her evidence was based upon an examination of image 10.

357. The Registrant denied the allegation and relied on the evidence of Dr CO who gave evidence on the issue.

358. The Panel has noted that in his written report of the examination, the Registrant wrote, “Uterine cavity is empty with endometrial lining = 15mm”.  Had the Panel been satisfied that the only relevant image was that numbered 10, commented upon by Mrs Butcher, it would have accepted her criticism.  However, the fact that the report contained another measurement that was significantly different to the 9.8mm obtained from image 10 has resulted in the Panel not being satisfied that the HCPC has discharged the burden of proving that there was not an image of the endometrium that was clearly defined.

359. Particular 20(b) is not proven.

360. The Panel must now proceed to consider the issues of misconduct and/or lack of competence, and, if one of those grounds is made out, whether the Registrant’s fitness to practise is currently impaired. 


Decision on statutory grounds:

361. At the commencement of the hearing on Monday 30 April 2018, the Panel handed down the decision on the facts that had been sent to the parties in draft form in advance of the hearing.

362. In relation to the further conduct of the case, the Panel informed the parties that it considered that it would be sensible to decide the issue of the statutory grounds first, only deciding on the issue of current impairment of fitness to practise in the event of a finding that a statutory ground was made out.

363. The Legal Assessor gave his advice in advance of the submissions of the parties.  This was done to alert the Registrant to the points that he might wish to cover in his submissions.

364. The HCPC Presenting Officer then made submissions to the Panel on the issue of the statutory grounds.  He identified the statutory grounds alleged by the HCPC.  He concluded by submitting that all of the Panel’s factual findings were very serious and engaged either or both of the statutory grounds before the Panel.  He then referred the Panel to the potential breaches of the HCPC’s Standards of conduct, performance and ethics and the HCPC’s Standards of proficiency for Radiographers.

365. The Registrant addressed the Panel.  The Registrant set out some of the criteria which influenced his practice in 2012.  He reminded the Panel that at that time he was working as a locum.  He had a very long journey to work, travelling from Luton to Liverpool, a journey that required him to leave home at 4:00am.  He also said that, as he was working as a locum, he did not have time to fully familiarise himself with the machinery or the protocols at the Hospital.  He had a specific number of patients each day to scan.  He submitted that at the time ultrasound practice was changing, procedures at the Hospital were changing and there were no applicable audit guidelines available at the time.  He submitted that he was acting in the best interests of service users, maintained very high standards in his practice and tried to comply with the HCPC’s Standards of proficiency for Radiographers in doing his work.  He also submitted that all of his clinical reports met the clinical questions he was required to answer and he had not gone out to mislead anyone.  He also stated that there had been no complaints from colleagues or patients at the time he did the work.

366. The Registrant also submitted a bundle of documents running to 112 pages that he had prepared for the second stage of the final hearing.

367. The Panel accepted the advice it received from the Legal Assessor as to the proper approach to the consideration of the statutory grounds.  This included advice as to the proper approach to evidence that related to matters occurring after the incidents in respect of which there are factual findings, and as to what might be described as personal mitigation.  The Panel concluded that to avoid falling into error it was necessary not only to concentrate on the factual findings (discarding any matters that were not found proved), but also to only have regard to evidence insofar as it provided context to the circumstances in which the proven matters occurred over the four days in April 2012 on which the Registrant worked at the Hospital.

368. With this general approach in mind, the Panel reviewed the contents of the bundle of documents produced by the Registrant.  It concluded that the documents included in that bundle would not assist the Panel in its decision on the statutory grounds.

369. The Panel began its deliberations by considering two general matters, namely:


• Why the ultrasound scans undertaken in relation to the patients concerned were being undertaken, and the importance of the accuracy of the scanning procedures they underwent.

• The evidence given by the HCPC witnesses about acceptable performance by the Registrant.

370. In its decision on the facts, the Panel outlined what the fetal anatomy scans, the dating scans and pelvic scans were.  The Panel does not propose to repeat what was earlier explained, but it is necessary to underline their importance.  The importance, although not confined to obstetric cases, can be most clearly understood by understanding what competently undertaken scans provide.  They allow patients to make informed decisions.  For example, had the myelomeningocele been identified when Patient A’s scan been undertaken, the evidence received by the Panel was that she would have been able to seek a termination of her pregnancy.  Being unaware of what the scans revealed, Patient A was deprived of that choice.  In the case of Patient E, the shortcomings found proved meant that the patient was exposed to the risk of carrying a pregnancy she did not wish to carry.  It follows that failure to undertake tasks properly could have life-long consequences.  But it is not only patients whose decisions are compromised if care is not taken over scanning, because information obtained during scans should provide information for other practitioners to make informed decisions about the further care of their patients.

371. The evidence received by the Panel was that the Registrant was capable of undertaking scans competently.  To take some examples of scans Mrs Butcher identified as acceptable; in the case of Patient A, the views of femur length, abdominal circumference, lateral ventricles in the brain and face were all acceptable; in the case of Patient B, the abdominal circumference, face and the spine images were acceptable.  The acceptable imaging of the spine in the case of Patient B is important in view of the findings of the Panel in relation to the unacceptable imaging of the spine in the cases of Patients A, K, 2 and 3.  In his evidence before the Panel, the Registrant repeatedly stated that he knew how to undertake the required tasks.

372. With these matters in mind, the Panel first considered whether any of the facts proved were capable of amounting to misconduct.  It concluded that there were four particulars proved, 4(d), 16(g), 18(e) and 19(g), each of them a finding that the Registrant took an excessive number of images, that were not sufficiently serious to be included in a finding of misconduct.  In coming to this conclusion, the Panel did not overlook the HCPC’s case that the taking of an excessive number of images should be considered together with other findings; for example, not taking required images.  The Panel did not accept this approach as there were already specific allegations relating to matters on which the taking of excessive images might have had a negative impact.

373. However, with regard to all of the facts found proved excluding 4(d), 16(g), 18(e) and 19(g), the Panel found that they represented serious failings.  The reasons for this finding are as follows:


• The Registrant was an experienced Sonographer.  He came to the United Kingdom in 2005, and practised as a Sonographer for a period of approximately seven years before the matters being considered by the Panel.

• The Panel is satisfied that the Registrant knew what he should have been doing.  A lack of familiarity with local protocols does not excuse failing to follow national FASP or FMF guidelines.

• As it had been demonstrated that the Registrant had the ability to scan to an acceptable standard, it followed that in each instance in which the Panel has found that there was a shortcoming, he had failed to do what he was able to.

• The majority of the Panel’s findings are of omissions on the part of the Registrant – that is to say, failures to take required images or, for example, to record that the patient required a repeat scan or test.  However, in the case of Patient H, the use of the Spectral Doppler to listen to the baby’s heartbeat was a positive act that demonstrated, in this instance, a clear disregard for patient safety.

• The findings demonstrate repeated examples of failures to follow established national guidelines, poor technique and rushed acquisition times.

• Overall, the Panel finds that in relation to each and every one of the 15 patients included in the particulars found proved, there was a failure to act in the best interests of service users.  This constituted a breach of Standard 1 of the HCPC’s Standards of conduct, performance and ethics.

374. The Panel has come to the clear conclusion that the proven facts (excluding 4(d), 16(g), 18(e) and 19(g)) cross the threshold properly to be described as misconduct that was a serious falling short of what was expected of a Radiographer.

375. The Panel has approached the matter on the basis that a proven fact cannot at one and the same time be both misconduct and lack of competence.  It follows that the only facts that are relevant to be considered as potential lack of competence are 4(d), 16(g), 18(e) and 19(g).  They do not justify such a conclusion, being neither sufficiently serious nor wide-ranging to enable an inference of lack of competence to be drawn.

376. As the Panel has found misconduct, it follows that the Panel must go on to consider whether that misconduct is currently impairing the Registrant’s fitness to practise.

 

Decision on current impairment of fitness to practise:

377. After the Panel handed down its written determination explaining why it had made a finding of misconduct, the parties were given time to read the Panel’s decision before the case proceeded further.

378. The Panel then heard submissions from the Presenting Officer.  After making submissions as to the matters the Panel should consider when considering the issue, the Presenting Officer addressed the issue of remediation.  He submitted that because the findings were numerous and serious, remediation could not easily be achieved, although with work it may be possible.  However, he submitted that reflection by the practitioner is a key element of achieving remediation, and that the Registrant had not sufficiently reflected.  He also submitted that there was an absence of targeted remediation and a profound lack of insight, factors that should result in a finding that the personal component of current impairment of fitness to practise was made out.  He also submitted that the wider public component required a finding of impairment as this was a case where the Registrant had made numerous failings.

379. The Registrant gave evidence before the Panel.  At this stage he referred to the bundle that he had prepared for the second stage of the final hearing and which he had produced during the stage when the statutory grounds were being decided.  He also referred to references he had submitted during earlier stages of the hearing.  He commenced by stating that he had not intended to fail to demonstrate insight, but he contended that, if this had been the perception, it resulted from the fact that he had not been represented.  He apologised to the Panel and to the Presenting Officer.  He then went on to say that he accepted the shortcomings found in this case and accepted the Panel’s findings as being fair, stating that they “couldn’t have been more fair”.  He then stated that in order to protect the public he had taken the decision not to practise in the area of obstetrics and that he acknowledged that he needed to be re-trained in this area.  He stated that he did not want to be a risk to patients.  In relation to the Panel’s criticism of the case he had advanced about images being deliberately deleted, he apologised if what he had said had come across in that manner, advancing an explanation not hitherto referred to that could explain images not being recorded.  The Registrant was cross-examined by the Presenting Officer on the evidence he gave at this stage.

380. The Legal Assessor gave advice that the Panel accepted, and the Panel had regard to the HCPTS’s Practice Note on impairment. 

381. In certain respects the Panel found the Registrant to be evasive in the replies he gave to the Presenting Officer.  For example, it took several repetitions of the straightforward question whether he had undertaken any re-training in obstetrics before the Registrant finally answered that he had not.  He said that in 2012 he had shadowed colleagues in obstetric work.  There was no supporting evidence of shadowing and in evidence the Registrant said that he could not name any colleagues because they were “not here”.  Furthermore, certain documents produced were incomplete or undated or missing elements; for example, there were emails in the Registrant’s bundle referring to pertinent attachments that were missing.  There were also inconsistencies, such as his purported acceptance of the Panel’s findings coupled with assertions that flatly contradicted elements of those findings.  This accorded with the submissions he advanced to the Panel in relation to the statutory grounds when he stated that he accepted the Panel’s findings but then asserted that he had recalled Patient A, a contention that had been explicitly rejected by the Panel.

382. The Panel commenced its decision on current impairment of fitness to practise by considering the personal component.  An important element of this decision was to decide to what degree the Registrant had developed insight into the shortcomings identified by the Panel’s findings.  The conclusion of the Panel was that the Registrant had no meaningful insight.  The reasons for this finding were as follows:

• In his evidence to the Panel at the stage of the consideration of current impairment of fitness to practise, the Registrant sought to address the Panel’s criticisms of the case he advanced by stating that he had not had the benefit of representation at the hearing.  Throughout the hearing the Panel was aware of the difficulties faced by a person in the position of the Registrant who was not experienced in fitness to practise hearings, and who did not have the resources that would be available to the HCPC or to a registrant with the benefit of external support.  For that reason the Panel allowed considerable flexibility in the conduct of the case.  However, whereas the Panel accepted that the absence of representation could impact on the manner in which the case was presented, it could not accept that it explained the substance of the Registrant’s case. 

• As to the substance of the case advanced by the Registrant, he had the professional and technical knowledge to know what he wanted to advance, and, by the time the case commenced, he had had a very long time to consider what he wished to put forward.  It was clear from the manner in which he cross-examined the HCPC’s witnesses and from his own evidence that he had mastered the detail of the case.  Despite this, as the Panel explained in its decision on the facts, the case the Registrant advanced shifted, and was, on occasions, deceitful.  Crucially, the Registrant sought to justify matters that were not justifiable, and his attempt at the present stage of the hearing to explain this by the absence of representation does not bear scrutiny.

• The Panel has had many days to assess the Registrant.  The Panel’s conclusion is that he is not a self-critical individual, and that he does not truly reflect on matters.  The purported reflections contained in the first section of the bundle prepared for the second stage of the hearing are out of date and inadequate. 

• The Panel was left with the impression that the Registrant understood that it was expected of him to say that he had insight, but that in truth genuine insight was missing.  This attitude accorded with the evidence given by Mr CD about the Registrant’s attitude when he attended the investigation meeting concerning Patient A on 17 October 2012.  When asked by the Presenting Officer whether the Registrant had shown any sort of remorse at the meeting about what had happened in the Patient A case, Mr CD replied, “The only recollection I have of the meeting was that at the end of the meeting, the Registrant showed some remorse because he didn’t want to be referred to the HCPC.”

384. Having concluded that there was an absence of meaningful insight, the Panel considered other factors that were relevant to the question of the personal component of current impairment of fitness to practise.  One such was whether there had been any steps towards remediation of the shortcomings identified.  The Registrant informed the Panel that since the events at the Hospital came to his attention in late 2012, he had not worked in obstetric ultrasound.  In relation to the work he has undertaken, the Registrant provided some limited and incomplete documents, including audits and references, which suggested that he had undertaken work to an acceptable standard.  The Panel accepts that there are elements of general ultrasound work, for example, magnification and frequency selection, that could properly be regarded as transferable to obstetric scanning.  However, as to whether there has been specific retraining in the area of obstetric scanning, the Panel has concluded that there has not.  Mention has already been made of the fact that the Registrant stated that in 2012 he had shadowed colleagues who were undertaking obstetric ultrasound scanning.  The Panel regrets to say that it did not believe the Registrant’s evidence in this respect.  He was evasive when answering the Presenting Officer’s questions on the topic, he declined to identify the colleagues he claimed to have shadowed and the Panel finds it inconceivable that the Registrant would not have sought to put before it some documentary confirmation of the shadowing if it had occurred.  The Registrant did not contend that he had undergone any other type of retraining that was relevant to obstetric ultrasound scanning.

385. The other matter considered by the Panel concerns the Registrant’s willingness to admit mistakes.  In his conduct of his case the Registrant failed to accept criticisms of his work despite the clear and obvious evidence with which he was presented.  That case involved him contradicting acknowledgments of sub-optimal images and of the presence of a neural tube defect he accepted at the investigation meeting on 17 October 2012.  Rather, in relation to many matters, day after day, and after he had had ample opportunity to examine and carefully reflect on the evidence presented, the Registrant sought to justify the unjustifiable.  The Registrant had five months to consider the case he wished to give after he had heard the evidence in chief of Mrs Butcher.  Mrs Butcher’s evidence was clear, compelling and each of her criticisms was accompanied by a cogent reason.  Even if the Registrant had not been able to understand why his work was being criticised before Mrs Butcher gave her evidence, he had ample opportunity to reflect on the matter between September 2017 and February 2018.  He heard her evidence, and in this lengthy period he had available the images and a transcript of her evidence.  Yet despite having the opportunity to accept criticisms of his work that were obviously justified, he continued to advance spurious reasons for challenging the evidence against him.  It is inevitable that every professional person will make mistakes from time to time.  What is crucial to the reliability of that professional person is his or her willingness to acknowledge that a mistake has been made.  The Panel’s assessment of the Registrant is that he has not been prepared to acknowledge mistakes, and there is no material available to the Panel that would enable it to conclude that he would change in that respect in the future.

386. The absence of meaningful insight, the absence of retraining and the Registrant’s propensity not to admit to mistakes, when taken together, led the Panel to conclude that there is a high risk of repetition of the type of shortcomings identified by the Panel were the Registrant to be permitted to return to practise unrestricted.  This has the inevitable consequence that the Registrant’s fitness to practise is currently impaired upon consideration of the personal component.

387. The Panel then considered the public component.  The Panel concluded that given the seriousness of the findings made, even if significant efforts had been made towards remediation, fair-minded members of the public would have significant concerns about the prospect of a practitioner in these circumstances being permitted to return to practise unrestricted.  Those concerns would escalate in circumstances where the remediation is as incomplete, and the risk of repetition as great, as the Panel has concluded in the present case.  A finding of current impairment of fitness to practise is therefore required to satisfy public confidence in the profession and the regulation of it.

388. The Panel applied the findings it had made in relation to current impairment of fitness to practise against the relevant elements of the factors identified by Dame Janet Smith in the Fifth Shipman Inquiry Report as being relevant to the issue of impairment of fitness to practise.  The Panel’s conclusions were that:

• The Registrant has in the past put patients at unwarranted risk of harm, and is liable to do so in the future.

• The Registrant has in the past brought his profession into disrepute, and is liable to do so in the future.

• The Registrant has in the past breached a fundamental tenet of his profession, namely to put the interests of service users first, and is liable to do so in the future.

These conclusions reassured the Panel that it was appropriate to reach a finding of current impairment of fitness to practise.

389. The finding that the Registrant’s fitness to practise is currently impaired has the consequence that the Panel is required to go on to consider the issue of sanction.

 

Decision on sanction:

389. After the Panel handed down its written determination on current impairment of fitness to practise, the parties were allowed time to digest the decision before making their submissions on the issue of sanction.

390.The Presenting Officer made submissions in which he highlighted elements of decisions already made by the Panel that might inform the sanction decision, and these included the Panel’s assessment that there was a high risk of repetition and that the Registrant had exposed patients to an unwarranted risk of harm in the past, and was likely to do so in the future.  He then made submissions as to the proper approach to the imposition of a sanction and highlighted sections of the HCPC’s Indicative Sanctions Policy relating to conditions of practice orders, suspension orders and striking off orders.  The Presenting Officer then identified mitigating and aggravating factors, and concluded his submissions by reminding the Panel of the importance of its decision being a proportionate response to the matters found, particularly having regard to the effect of any restriction on the Registrant.  The Presenting Officer did not submit on behalf of the HCPC that any particular sanction should be applied.

391. The Registrant made submissions to the Panel.  He apologised for the fact that the Panel had come to the conclusions it had about the level of his insight.  He reminded the Panel that he had taken steps to protect the public by not working in obstetric ultrasound scanning.  He requested that the Panel should afford him the opportunity to re-train in this area.  He urged the Panel to have regard to the fact that the effect of a suspension order would be that he would lose his job and be unable to support his dependent family.

392. The Panel received advice from the Legal Assessor, and accepted it.  It also paid close attention to the HCPC’s Indicative Sanctions Policy in reaching its decision.  Accordingly, the Panel proceeded on the basis that a sanction would not be imposed to punish a registrant against whom findings had been made.  Rather, a sanction would only be appropriate if the circumstances required it in order to provide public protection and/or to maintain a proper degree of confidence in the regulated profession and the regulation of it.  The first question to be answered was whether, applying that approach, any sanction was required.  If the answer to that initial question was that a sanction is required, then the available sanctions should be considered in an ascending order of seriousness until one that sufficiently addressed the factors already identified is reached.  Finally, the Panel accepted that any sanction tentatively decided upon by this process should not be imposed unless and until the Panel could be satisfied that it represented a proportionate response, having regard to all the circumstances, but in particular to the effect the sanction would be likely to have on the Registrant.

393. The Panel began by identifying the mitigating and aggravating factors of the case.

In the view of the Panel, the following were mitigating factors:

• That there were no previous fitness to practise proceedings against the Registrant.

• The findings against the Registrant related to events that occurred six years ago, and he has had the case hanging over him for most of that period.

• The Registrant has engaged in this fitness to practise process.

The aggravating factors identified by the Panel were:

• The fact that the misconduct was not isolated, but was repeated in respect of a number of patients.

• The unnecessary exposure of patients to the risk of harm.

•A very significant lack of insight.

394. The Panel then identified the crucial findings already made which would inform their decision on sanction.  They were:

• The absence of meaningful insight into the identified shortcomings.

• The absence of remediation, of which the absence of meaningful insight was one, but not the only, element.

• The fact that without remediation, patients would be exposed to the risk of harm by the Registrant being permitted to return to unrestricted practice.

• The continuing denial of criticisms of his work in the face of clear evidence presented to him and a full opportunity to consider and reflect upon those criticisms.  Hand in hand with this, was the presentation of a case that was at times selective and, on occasions, positively deceitful.

395. There are three distinct issues in relation to which the Panel should explain the approach it has taken.

• The first concerns the evidence it heard about the spina bifida with which Patient A’s baby was born in late August 2012.  In making his submissions to the Panel, the Presenting Officer referred to the impact on patient safety, and in particular so far as Patient A is concerned.  The HCPC did not allege against the Registrant that his failings resulted in the birth of the baby with very serious abnormalities, and the Panel has made no decisions that bear upon that causation issue.  In its decision on misconduct the Panel has already stated that the Registrant’s poor practice deprived Patient A of an opportunity to seek a termination; what the Panel has not been required to consider was whether there were subsequent opportunities that would have given her that choice.   In the Panel’s judgement, from the perspective of the present fitness to practise proceedings, the shortcomings that were proved in relation to Patient A’s anatomy scan are no more serious than the shortcomings that were found by the Panel in relation to the anatomy scans of other patients.  What the evidence about Patient A’s baby does demonstrate, however, is how important anatomy scans are, and how serious can be the consequences of not performing them safely and effectively.

• In its determinations already delivered, and most obviously in relation to impairment of fitness to practise, the Panel has been critical of the manner in which the Registrant has conducted his case.  The Panel does not resile from its criticisms.  Nor does it resile from its view that the criticisms are relevant to the finding of current impairment of fitness to practise.  However, it should be clearly understood that the Panel has not elevated this aspect of its finding to become a  free-standing matter meriting the imposition of a sanction; rather, it is a very important element of the Panel’s decision that the Registrant’s fitness to practise remains impaired as a consequence of the misconduct flowing from the findings of fact made in relation to the factual particulars the Panel was required to decide.

• The Panel has been informed of a referral made to the HCPC on behalf of Walsall Manor Hospital Trust in early February 2018 (“the Walsall referral”).  The referral was put to the Registrant in cross-examination in February 2018 in rebuttal of a contention he advanced about the absence of complaint about his practice.  The Registrant also introduced information concerning it in the bundle he prepared for the second stage of the final hearing by producing a copy of a decision of the Investigating Committee Panel on 27 April 2018 when it considered, and rejected, an application by the HCPC for an interim order.  The Panel was clear that the Walsall referral had no evidential weight when it made its decision on the facts.  The sanction decision to be made at the present time is one that is to be made on the basis that the Panel has found the Registrant’s fitness to practise is impaired as a result of proven particulars relating to work undertaken at the Liverpool Women’s Hospital in April 2012.  An unspecific, untested and unproven contention of poor work from another hospital that is said to have taken place at a later date cannot be relevant to the present sanction decision.  Accordingly, despite the fact that it might be considered surprising that the Registrant felt able to advance his submissions to the Panel in relation to sanction on the basis that there had been no concerns arising from other areas about his practice, the Panel was uninfluenced by the Walsall referral.

396. With these preliminary matters dealt with, the Panel turned to consider initially whether the circumstances required the imposition of any sanction.  The clear conclusion of the Panel was that a sanction is required.  The need to provide a degree of protection is a sufficient explanation why that is so.

397. Having decided that a sanction is required, the Panel then considered the imposition of a caution order.  The conclusion of the Panel is that the findings are far too serious to result in such an order, and a caution order would not provide the required degree of public protection.

398. When the Panel considered whether a conditions of practice order would be appropriate, it heeded the terms of paragraph 30 of the Indicative Sanctions Policy.  The Panel concluded that such an order would not be appropriate because it could not be satisfied that, even with conditions on his practice imposed, the Registrant would pose no risk of harm to patients.  In the judgement of the Panel, the risk of harm could not be removed by prohibiting the Registrant from working in the area of obstetric ultrasound scanning because his inability or unwillingness to admit to errors would make him an unsafe practitioner in all aspects of his professional work.

399. There are two elements of the guidance included in the Indicative Sanctions Policy that relate to suspension orders that the Panel concluded were relevant to the present case.  Paragraph 39 reads, “Suspension should be considered where the Panel considers that a caution or conditions of practice order would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”  Paragraph 41 is in the following terms, “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 there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate.”  The emphasis in these two passages has been added by the Panel to indicate why the Panel has concluded that the making of a suspension order would be inappropriate.  For the reasons already stated more than once, the Panel believes that repetition is highly likely, and that risk applies to all aspects of ultrasound work, not only to obstetric work.  If the factual matters had occurred very recently, and if the hearing had taken place soon after they occurred without affording a proper opportunity to the practitioner to reflect on the issues, the Panel might not have concluded that there was an inability to resolve matters.  However, in the present case, given the time that has elapsed and the opportunities the Registrant has had to accept and learn from criticisms, the Panel is driven to the conclusion that he is unable or unwilling to do so.  That being the case, no useful purpose would be served by the making of a suspension order because the risks presented by the Registrant would be as great at the conclusion of any such period as they are at the present time.  The Panel’s judgement is that those risks are considerable.

400. It follows from the rejection of all other sanction options that the Panel has arrived at the conclusion that a striking off order should be made.  It should not be thought that this is a conclusion to which the Panel has been reluctantly drawn by the exclusion of all other sanction options.  The findings of the Panel are of very serious and numerous acts and omissions.  There is an absence of insight and denial was persisted in.  The Registrant’s unwillingness or inability to resolve matters has the consequence that striking off is the only way in which the public can be effectively protected.  Furthermore, given the seriousness of the findings and their potential consequences, coupled with the absence of remediation, the Panel is satisfied that no other sanction would maintain a proper degree of confidence in the profession and its regulator.  Furthermore, no lesser sanction would serve to declare and uphold proper professional standards.

401. In reaching this decision the Panel acknowledged that the sanction of striking off is the sanction of last resort.  It arrived at the conclusion that it was required acknowledging the effect it is very likely to have on the Registrant and his family.  However, when the risks to the public of permitting the Registrant to practise are balanced against the adverse consequences to him being prevented from doing so, the Panel is satisfied that the balance falls in favour of the restriction.  For this reason the Panel is satisfied that the making of a striking off order is proportionate.

 

APPENDIX 1

RULING ON PRELIMINARY APPLICATIONS
AT THE COMMENCEMENT OF THE HEARING

1. At the commencement of the hearing the Registrant, Dr Ehiwe, raised a number of preliminary issues.  They related to:
a. Disclosure of documents, specifically:
i. an 11 week scan relating to Patient A;
and,

ii. Patient A’s “green folder”.
b. The HCPC’s unused material.
c. An objection to the HCPC’s witness, Ms Butcher.

In addition to the issues raised by the Registrant, at the suggestion of the Legal Assessor, the Panel agreed that it was sensible to consider the issue of opinion evidence generally.
d. A general consideration of opinion evidence both sides desire to introduce at the hearing.


Disclosure of documents

2. The same point applies to both the 11 week scan and the “green folder”.  The HCPC’s position is that neither it, nor its Solicitors, Kinglsey Napley, have ever been in possession of either document.  It is not appropriate for the Panel to order a party to the proceedings to disclose a document it does not have.  That is sufficient for the Panel to decide that no order will be made.

3. The Panel acknowledges that there are circumstances in which a party can apply for an order for disclosure of documents by a third party.  However, such a third party must be given an opportunity to object to such an order and time to comply with any order made.  Were such an application to be made in the present case an adjournment of the hearing would be required.  In the judgment of the Panel, any potential relevance of these documents to the issues involved in this case would not justify the adjournment of the hearing such an application would involve.

4. The Registrant is, of course, at liberty to cross-examine the HCPC’s witnesses concerning these documents and to make any submissions he considers to be relevant at an appropriate stage of the case.


Unused material

5. The panel that conducted the Preliminary Hearing on 19 December 2016 directed the HCPC to serve a schedule of unused material on the Registrant no later than 13 January 2017.  The Panel has been told that on 9 January 2017, the HCPC’s Solicitors served on the Registrant the documents to be relied upon at the hearing together with a single document that was described as “unused material”.

6. The Registrant has contended that there would be other documents that should have been disclosed as unused material.  The Presenting Officer has informed the Panel that his instructions are that there are no other documents held by either the HCPC or its Solicitors that have not already been disclosed to the Registrant.

7. The Panel is satisfied that the Registrant should be provided with all relevant unused material unless it is protected from disclosure as a result of being privileged communications.  However, in circumstances where it is said that everything has been disclosed, it is not possible for the Panel to direct further disclosure of unused material.


The objection to the HCPC’s expert witness

8. Dr Ehiwe has submitted that the report of Ms Butcher is deficient in that it does not provide details of all literature or other material which she has relied upon in preparing her report.

9. The Panel is not persuaded by the Registrant’s criticisms of the report, and it is satisfied that it would not be appropriate to refuse the HCPC permission to call the witness.  Again, this decision does not inhibit the Registrant from asking any questions of Ms Butcher he considers appropriate when he cross-examines her, or of his right to make submissions to the Panel as to the weight they should attach to the evidence of Ms Butcher.


Opinion evidence generally

10. At Preliminary Hearings, directions were made with regard to expert (opinion) evidence.  However, the Panel is satisfied that fairness to the parties requires a somewhat relaxed attitude to the number of witnesses expressing opinions of the Registrant’s professional performance as both parties wish to call evidence that would fall outside a strict construction of the directions hitherto made.

11. As already stated, the Panel is satisfied that fairness requires such an attitude to be taken, particularly as the Registrant is unrepresented.  The Panel is also satisfied that it has the ability to assess the weight that should properly be attached to any evidence the parties propose to call on the Registrant’s performance.
 
 


APPENDIX 2

THE PANEL’S RULING ON THE APPLICATION FOR A
WITNESS ORDER IN RESPECT OF MS LJ

1. This determination is in respect of the application by the Registrant, Dr Ehiwe, for a witness order to be made requiring the attendance of Ms LJ at the resumed hearing of the case.

2. The circumstances in which this application is made are unusual and it is necessary for the Panel to explain certain aspects of the background for its decision on the issue of the witness order to be fully understood.

• The HCPC’s case against the Registrant concerns his work as a bank Sonographer working at the Liverpool Women’s Hospital NHS Foundation Trust over four days in April 2012.

• The first concerns that were reported to the HCPC arose from work undertaken on 26 April 2012, and at that time it was understood that his work had been on two days, namely 26 and 27 April 2012.

• It was subsequently understood that the Registrant had worked for the same Trust for two days earlier in April 2012, specifically on 12 and 13 April 2012.

• In respect of the four days he worked for the Trust in April 2012, the Registrant worked through Diagnostic Healthcare.  Ms LJ was not working for Diagnostic Healthcare in April 2012, and apparently had no contact with or knowledge of the Registrant.  On 21 June 2014 (over two years after the scans were performed by the Registrant), Ms LJ, who by then was employed by Diagnostic Healthcare as Head of Ultrasound, undertook a retrospective audit of the scans performed by him on 12 and 13 April 2012.

• The results of Ms LJ’s audit are reflected in a number of factual particulars advanced by the HCPC against the Registrant.

• In April 2017 an application was made on behalf of the Registrant that a further Preliminary Hearing should be held for an application to be made for a witness summons to secure the attendance of Ms LJ.

• It had apparently not originally been the intention of the HCPC to call Ms LJ as a witness at the final hearing.  The Panel assumes that the reason for that is that the HCPC had already approached a Consultant Sonographer to give expert evidence with regard to all the relevant patients (including those covered by Ms LJ’s audit) and had already secured permission to call that expert evidence.  However, after the Registrant’s application with regard to Ms LJ was received, the HCPC’s response was to secure the attendance of Ms LJ to give evidence for the HCPC.  Accordingly, Ms LJ made a short witness statement dated 12 June 2017 explaining how her involvement in the case arose and stating that she had randomly selected nine patients seen by the Registrant at the Trust on 12 and 13 April 2012, ensuring that the selection included a mixture of gynaecological and obstetric patients.  As to the substance of her evidence with regard to the selected patients was concerned, she exhibited a copy of her audit report prepared on 21 June 2014.

• In the event, the HCPC did not call Ms LJ to give evidence.  She attended the hearing venue in order to give evidence on Monday 4 September 2017, but the decision made by the HCPC was based upon the facts that another witness (Dr DR, a Consultant Obstetrician) was also due to give evidence that day and it would neither be possible for them both to give evidence in one day, nor for the evidence of Ms LJ to be concluded within a day.  As the evidence of the HCPC’s independent expert was expected to continue for some days, the HCPC decided that it would base its case primarily on the evidence of that expert witness and not rely on the evidence of Ms LJ.  The Panel agreed that this was an appropriate and proper course for the HCPC to take, and agreed to Ms LJ not being called.  Accordingly, the Panel agreed that her evidence would no longer be considered, and consistent with that approach the Presenting Officer re-served his written opening in order to remove the references that there had been in the original version to the evidence of Ms LJ.

• Furthermore, following closure of the HCPC’s case, the Presenting Officer submitted that the HCPC wished no longer to pursue certain aspects of the factual allegations that had hitherto been advanced against the Registrant.  The Panel agreed with each element the HCPC proposed not to pursue, and so the consequence that these are not proved against the Registrant.  The reason why this is mentioned in this determination is that a number of the factual particulars not pursued had their origin in the audit undertaken by Ms LJ.

3. It will be clear from the summary of the background to this application that an unusual aspect of the present application is that the Registrant appears to be applying to call as a witness a person whose evidence to date has been adverse to him.  In advancing his application before the Panel, the Registrant relied upon the written submissions made by Crown Consult & Logistics on 25 April 2017.  When asked by the Legal Assessor why he considered that Ms LJ’s evidence would be likely to support his case, the Registrant stated that he wished her to give evidence so that the credibility of the witnesses upon whose evidence the HCPC does continue to rely can be assessed.  The Panel received legal advice from the Legal Assessor and was referred to the HCPTS Practice Note entitled, “Witness and Production Orders”.

4. The Panel has approached its decision on this application on the basis that the issuing of a witness order is a significant step.  The consequences of the order being made in the present case is that a professional person would be required to give up a significant amount of their time to perform a task they do not wish to perform.  The Panel accepts that Ms LJ has expressed reluctance in giving evidence for the Registrant on a voluntary basis.

5. In opposing the application, the Presenting Officer referred to the significant overrun the case has already experienced and the need for future expedition.  He also referred to the fact that the Registrant is already proposing to call a number of witnesses to give evidence.  The Panel accepts that these are relevant factors, but the Panel is equally clear that if it was satisfied that fairness to the Registrant required Ms LJ to give evidence, the order should be made despite the consequences to the future length of the case and despite the number of other witnesses the Registrant is proposing to call.

6. It is, however, as to whether fairness to the Registrant requires Ms LJ to be compelled to attend that the Panel is not persuaded by the Registrant’s arguments.  The evidence she has presented between June 2014 and June 2017 has been critical of the Registrant’s performance.  There is no evidence that she has advanced in the past that has been positive to the Registrant, and there is no suggestion that she would be likely to do so if she was required to attend the hearing in 2018.  The Registrant submitted to the Panel that it was for him to decide what evidence will support his case.  The Panel accepts the general proposition that a panel considering an application for the making of a witness order should be slow to second guess a registrant’s assessment of how their case should be conducted, but the Panel is also clear that the Registrant cannot remove from it the obligation to undertake an objective assessment of what could support his case.  In the present case there are absolutely no grounds for thinking that Ms LJ would give evidence supporting the Registrant’s case and every reason to think that she would give evidence that would be damaging to it.  The Registrant acknowledged in argument that speculation and assumption would be necessary to assume that Ms LJ would give evidence that would benefit him.  In any event, the Panel does not accept that negative evidence given by Ms LJ would be necessary for it to assess the credibility of other witnesses also giving negative evidence.  The Panel is capable of assessing the credibility of witnesses without evidence of the sort contemplated being given.

7. This finding is sufficient to result in the application for a witness order in respect of Ms LJ failing.

 


APPENDIX 3

Directions made on 11 September 2017

Background to the directions made:

1. The Panel adds this narrative introduction to explain why the final hearing is being adjourned and to ensure not only that its directions relating to the further conduct of the case are clear, but also so that the reasons why these directions are being made should be fully understood.

2. The final hearing of the HCPC’s allegations against the Registrant, Dr Ehiwe, was listed for ten days commencing on 29 August 2017.  It was expected that this allocation would be sufficient for the case to be concluded.  In the event, it has just been possible to conclude the HCPC’s evidence in the ten days allowed, and that with the HCPC deciding not to call one of the witnesses it had originally been intended to call to give evidence before the Panel.  The Panel mentions this fact not to criticize, but to explain why an adjournment is required, and also to underline the importance of the case being pursued expeditiously henceforth.

3. The Panel has concluded that in the light of the number of issues involved and the number of witnesses it is intended should give evidence on behalf of the Registrant, a further 10 days should be allowed for the completion of the evidence relating to the factual issues in the case.  Unfortunately, the first uninterrupted period of 10 days consistent with Panel availability and the availability of the Registrant’s witnesses is the two working weeks commencing on Monday 12 February 2018.  Accordingly, the Panel directs that these dates should be scheduled for the presentation and conclusion for the evidence the Registrant proposes to give and call on the factual issues.  Before the hearing concludes the Legal Assessor will give the Panel advice as to the approach it should take in reaching its decision on the facts.

4. With regard to submissions by the parties on the facts, the Panel has concluded that the number and complexity of the issues requires a direction that any submissions on the facts should be made in writing.  They are to be made sequentially, so the Registrant will not be required to prepare any submissions until he has seen those of the HCPC.  The dates by which written submissions are to be provided have been dictated by the next dates when the Panel will be required to convene.

5. With the benefit of any submissions in writing the parties wish to make, the Panel will meet in private for 5 days commencing on Monday 16 April 2018 in order to make its decisions on the facts and prepare its written determination on the factual issues.  This meeting will be private attended only by the Panel, and (subject to the Panel’s invitation) the Legal Assessor whose involvement will be limited to assistance with the drafting of the written determination.

6. Having concluded its deliberations on the facts and drafted the written determination (“the draft determination”), the Panel intends that the draft determination should be provided to the HCPC and the Registrant no later than Tuesday 24 April 2018 so that when the public hearing recommences for any remaining stages of the case to be considered, the parties will be in a position to prepare their submissions knowing what decisions on the facts have been made by the Panel.  If the draft determination is disclosed in this manner it is very important that the parties should understand the basis on which it is disclosed:

• The draft determination should be treated as confidential.  The parties can disclose the draft determination to persons whose involvement is necessary for the future conduct of the case, but there should be no further or wider publication of it unless and until it is handed down at the commencement of the next public hearing.

• The parties are at liberty to bring to the attention of the Panel any typographical and other errors (such as dates, names etc), but the disclosure of the draft determination should not be treated as an invitation to re-argue issues that have been decided by the Panel and recorded in the draft determination.

7. The public hearings will re-commence for 4 days commencing on Monday 30 April 2018 and ending on Thursday 3 May 2018.  These dates are for the following stages of the case:

• At the commencement of the hearing on Monday 30 April 2018 the Panel Chair will “hand down” the Panel’s decision on the facts.  This means that instead of reading out aloud what is likely to be a very lengthy determination, by handing it down, the Panel will ask that the written determination in the form in which it is then recorded is incorporated in the written record of the case and should be treated as having been read out.

• If there are any factual findings made against the Registrant, the Panel will then proceed to consider whether the statutory grounds of misconduct and/or lack of competence are made out, and, if a statutory ground is made out, whether there is current impairment of the Registrant’s fitness to practise.  The Panel will consider the issues of the statutory grounds and current impairment of fitness to practise separately and sequentially.  However, for the purposes of any evidence the parties intend to introduce in relation to these two stages and any submissions they wish to make in relation to them, the Panel will expect them to be dealt with in one segment of the case.

• If the Panel’s decision is that a statutory ground is established and that there is current impairment of fitness to practise, then the Panel will announce its decision and reasons on those issues in public and then proceed to consider the issue of sanction.  It is important to note that the issue of sanction will only be considered if there is a finding of current impairment of fitness to practise, and for that reason if sanction is to be considered it will be considered in a further segment of the case.

8. The Panel explains this background because it is important that it should be understood why this case, which is already very old, is being further delayed.  The future timetable provided for by these directions provide the most expeditious further conduct of the case consistent with existing diary commitments of necessary participants whilst ensuring that sufficient time is provided to enable the Registrant to advance his case.  However, it should be noted that these directions will result in the case being finally concluded seven months after the commencement of the final hearing and six years after the relevant events.  An important element of fairness and justice is that cases are resolved as expeditiously as possible, and for that reason the parties should expect that the Panel will be reluctant to countenance any suggestion that will result in this timetable not being adhered to.

 


Directions:

(1) The resumed final hearing is to be listed for 10 days commencing on Monday 12 February 2018 and ending on Friday 23 February 2018.  These dates are for the completion of the evidence relating to the factual elements of the case.

(2) If the HCPC wishes to make closing submissions on the facts, then the same are to be made in writing and made available to both the Registrant and the HCPTS no later than Friday 16 March 2018.

(3) If the Registrant wishes to make closing submissions on the facts, then the same are to be provided to the HCPTS no later than Friday 6 April 2018 (the Panel does not order the Registrant to serve his submissions on the HCPC or its Solicitors on the understanding that the HCPTS will make them available to the HCPC and its Solicitors).

(4) The Panel will meet in private for the purposes of making its decision on the facts and for drafting the written determination recording these decisions for 5 days commencing on Monday 16 April 2018.  For the avoidance of doubt, the parties will not attend on these dates.

(5) The public hearing will resume for 4 days commencing on Monday 30 April 2018 and ending on Thursday 3 May 2018.  This hearing will commence with the Panel “handing down” its decision on the facts, and the Panel will then proceed to consider any remaining issues in the case, namely the issues of the statutory grounds of misconduct and/or lack of competence, issues of current impairment of fitness to practise and sanction (as explained in paragraph 7 of the introductory background above).

(6) The Panel directs that transcripts in paginated and line numbered format should be provided as follows:

• of the evidence given to date are prepared, are available within one month and sent to the parties and to the Panel;

• of the evidence to be given at the hearing commencing on Monday 12 February 2018, to be available no later than Friday 2 March 2018, and sent to the parties and to the Panel.

 

 

 

Order

ORDER: That the Registrar is directed to strike the name of Dr Emmanuel I O Ehiwe from the Register on the date this order comes into effect.

Notes

The Panel imposed an Interim Suspension Order for a period of 18 months to cover the appeal period. 

Hearing History

History of Hearings for Dr Emmanuel I O Ehiwe

Date Panel Hearing type Outcomes / Status
12/02/2018 Conduct and Competence Committee Final Hearing Struck off