Mrs Ilsa K Bailey

Profession: Radiographer

Registration Number: RA31333

Interim Order: Imposed on 16 Feb 2017

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/02/2018 End: 17:00 22/02/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 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 Radiographer for University Hospital North Midlands NHS Trust:


1. On or around 12 August 2016, you:
a) Brought alcohol to work;
b) Consumed alcohol at work;
c) Were under the influence of alcohol whilst at work;
d) Failed two sobriety tests.


2. On or around 25 May 2016, whilst at work, you:
a) Appeared to be under the influence of alcohol;
b) Smelled of alcohol.
3. The matters described in paragraphs 1 – 2 constitute misconduct.
4. By reason of that misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Management of the hearing

1. The Registrant informed the Panel she was unable to attend the hearing for the whole scheduled period. She was only available on the phone from 11am to 3pm for the first three days of the hearing. She gave the reason for this limited time frame as her need to ring her elderly parents each day at set times before 11am and after 3pm. She was also unable to attend on the telephone on Thursday, again because of a family commitment. She told the Panel that her frail elderly parents did not know about this hearing and that she had gone to great lengths to ensure that they were not further distressed by finding out about it.


2. Mr Dite objected to the hearing being curtailed in this way and pointed out that the Registrant had been on notice of the proposed hearing dates and times since last October. He said that it was important that the scheduled hearing time was used efficiently, including the time of the HCPC witnesses, who were here today and expected tomorrow.


3. The Legal Assessor advised that the management of the hearing was a matter for the Chairman and that the Panel should balance the Registrant’s right to attend the whole of the hearing against the efficient use of the time allowed. In this regard they should take into account the reason provided by the Registrant for her limited participation in the proceedings. She reminded the Panel that the terms of the Allegation were already on the HCPC website; that this was a public hearing and may be attended and reported by journalists; and, the outcome of the hearing would be placed in the public domain in accordance with the HCPC Publicity Policy.


4. The Panel gave this matter careful consideration. The Panel accepted that the Registrant had been given sufficient time to consider her participation in this hearing and had made an informed and personal decision on the extent of that participation. Whilst the Panel was not prepared to restrict the proceedings as requested, it would, so far as it was able, through good time-management, ensure that the Registrant participated as fully as possible and the opportunity to question and challenge witnesses on matters that were in contention.  The Panel accepted that there was public interest in this matter being heard and reported. This being the case, there was nothing it could do to ensure anonymity.


Matter referred to in private session


5. Mr Dite made an application for matters relating to health, be referred to in private session.


6. The Panel took advice on this application and came to the decision that it would hear information relating solely to the issue of the Registrant’s health in private.


Voluntary removal from the Register


7. In her written representations the Registrant had expressed her wish for this matter to be dealt with by her removal from the Register. She restated that she wished to leave her profession and confirmed that she had not taken steps to renew her registration. This being the case, she did not understand why there had to be a hearing.


8. The Legal Assessor confirmed that once a complaint had been laid a Registrant’s registration remained in place until there had been a determination of the matter, either through a decision that there was no case to answer; a hearing; or, a Voluntary Removal Agreement which required a registrant to accept the truth of an allegation.


9. The Registrant confirmed that she was not prepared to admit to the facts as alleged and so was unwilling to enter into a Voluntary Removal Agreement.


10. The Chairman explained that this hearing was taking place within a legal framework and there was no way to grant the Registrant’s wish to ‘quietly leave the profession’.


Background


11. The Registrant qualified as a Radiographer in 1990 and was employed by the University Hospitals of North Midlands NHS Trust (‘the Trust’) for 26 years, having been a student for three years before then. At the material time, her position at the Trust was that of a Band 6 MRI Radiographer. She has been working within MRI for the last 15 years.


12. The concerns, which are reflected in the terms of the Allegation set out above, were brought to the attention of the HCPC by the Trust following the Registrant’s dismissal for gross misconduct.


Decision on Facts


Evidence


13. The Panel had before it a supporting bundle of documents which included sworn statements from the HCPC’s witnesses and the Registrant’s representations and supporting evidence.


14. The HCPC witnesses were:


• RV, Investigating Officer. Ms Viggars had worked within the same environment as the Registrant for one year. She also had relevant experience. She was therefore able to carry out this arms-length investigation dispassionately.


• RM, Radiographer, had been working alongside the Registrant on the 12 August 2016. She had known the Registrant since they trained and qualified together.


• GH, Team Leader for MRI. She had worked with the Registrant over many years. There was a period between 2009 and 2015 when she had been working within another location. She had noted on her return to the team in 2015 a discernible change in the Registrant. GH had gone with the Registrant on 12 August 2016 to Occupational Health and observed the sobriety tests being conducted.


• JW, Superintendent for General Radiography, gave evidence on the events of the 12 August 2016. She had been a colleague for many years and had become a personal and family friend over time. She stated that she had, along with other colleagues, noticed during 2015/2016 a change in the Registrant and her abilities. This had been a matter of comment and the connection between alcohol and personality and performance had slowly been realised by her and colleagues.


• PA, MRI Superintendent and the Registrant’s line manager, who gave evidence relating to the 25 May 2016 incident. He stated that up until this point in May 2016 he, and others, had been suspicious of the Registrant’s changed behaviour and its possible connection with alcohol.


15. The HCPC witnesses’ evidence accorded with the terms of their contemporaneous notes and sworn statements. In the Panel’s view they all presented as credible, balanced and fair witnesses. The four colleagues who had known, and worked with the Registrant for many years, described the Registrant as having been well organised, focused and an exceptional, experienced practitioner. They had individually attempted to identify underlying causes for the change in the Registrant’s professional behaviour and personal demeanour. They expressed sympathy and empathy with her personal situation at that time in 2016. They described the steps they had taken to give support and guidance. Their suggestions that the Registrant required independent help had, they said, been dismissed, and enquiries as to whether the Registrant had been drinking denied.  These witnesses displayed genuine concern and discomfort when providing their testimony.


16. The Registrant’s testimony was consistent with the statement she had recently prepared for this hearing. The statements in this document and the Registrant’s testimony were inconsistent with the earlier statements made by the Registrant in the Trust’s investigation. The notes of the Trust’s investigatory interview, which the Registrant had made some alterations to, had been signed on each page as being a true reflection of the interview. The responses made by the Registrant in this document were at variance with her current position. It was clear to the Panel that over time the Registrant’s recollection had changed and crystallised into a different reflection of the events.


Particular 1(a) and (b) – admitted and supported by the evidence – found proven

On or around 12 August 2016, you:
(a) Brought alcohol to work;
(b) Consumed alcohol at work;

17. The Panel heard from RM that throughout the morning of the 12 August 2016 she had observed that the Registrant was working in a disorganised fashion which had resulted in the inefficient management of the patient list and unfilled gaps in the service.

18. RM stated that the Registrant had returned after lunch and placed two small plastic water bottles next to the scanning machine. It was normal to have a bottle near to hand, but she considered that two was unusual. At this time RM identified that the Registrant smelt strongly of alcohol and her face was red and flushed. When the Registrant left the MRI unit RM had taken the opportunity to open and smell the contents of the two bottles. The contents of one bottle smelt like alcohol. RM had then poured some of this liquid into a clean thermal cup. This sample of the liquid was then taken by her to JB, MRI team leader. JB considered that this was alcohol and contacted GH for her opinion who agreed it smelt of alcohol.  JB and GH had then taken the sample to JW.


19. JW, JB and GH went to the MRI unit and confronted the Registrant with this evidence. JW took the bottles away from the Registrant however the Registrant attempted to get the bottles back and stated that it was two different types of water, still and sparkling, and that she would throw the liquids away.


20. The Registrant at the time, in conversation with JW, and during this hearing accepted that she had in ‘an act of defiance’ decanted gin into a small water bottle and put it in her bag. She said that this was a reaction to previously being falsely accused of smelling of alcohol at work. Her logic was that if she was going to be unfairly accused of drinking she might as well do the deed. She stated that this bottle had remained in her bag and she had ‘unwittingly’ taken the water bottle containing gin with her to work. 

21. Whilst the Registrant accepts that she had taken a few sips of neat gin during her lunch break on 12 August 2016, this she maintained had been done accidentally. She had intended to take a sip of water to remove the unpleasant taste which a soup had left in her mouth. She said that she had been surprised that it was gin as she had forgotten that she had this bottle in her bag. She stated that she had taken one mouthful and a second small sip. She maintained that she always had two bottles of water next to her when working, one with sparkling water and the other still water.  The Registrant was unable at this hearing to explain why she had taken a second sip of the gin. The Registrant had emphasised that she had drunk this alcohol during ‘her own time’ in her lunchbreak and maintained that this was a one-off incident.


22. The HCPC drew the Panel’s attention to the fact that the Registrant’s description of how much alcohol had been drunk, and how many mouthfuls or sips taken, had varied over time. The signed and dated note of the Trust’s investigatory interview recorded the Registrant as confirming that she had taken several more sips of the gin after her initial sip, for, as the Registrant stated, it had been effective in taking away the taste of the soup.


23. The Panel accepts the Registrant’s admission that she had drunk some alcohol whilst in the workplace. This is supported by the evidence produced by the HCPC. On the evidence before the Panel it considers that the bringing of the alcohol into work was intentional and that the consumption was not accidental for, as the Registrant indicated, it was either two sips or one mouthful and a second sip, but there had been no reason to mistakenly take more than one.  The Panel therefore does not accept the Registrant’s evidence of the reasons as to how this accidental imbibing had happened.


Particular 1(c) Were under the influence of alcohol whilst at work – found proven

24. In reaching its conclusion that the Registrant had been under the influence of alcohol at work the Panel had taken into account the following:


• The evidence of RM that she had formed her concerns about the Registrant’s performance being impaired in the morning.


• That the Registrant had been described by three of her colleagues as smelling very strongly of alcohol.

• The Registrant’s behaviour was demonstrably agitated in that when confronted by JWs and GH the Registrant had become defensive, irritated, denied that the liquid was alcohol but two different forms of water, and tried to retake possession of the two bottles.

• The assessment of the Occupational Health Department that day, that there was a level of debility brought about by the consumption of alcohol, and that the Registrant was unable and unfit to continue her duties.


(d) Failed two sobriety tests – found proven


25. GH told the Panel that she had been in attendance when the Registrant had undertaken the three sobriety tests in the Occupational Health Department. The Registrant was able to touch her nose with her finger, however unable to complete the two other tests. This failure to complete the tasks had led to Mr H, Occupational Health Advisor offering to undertake a blood test (CDT) which would give an indication of the level of alcohol in her blood at that time. This was declined by the Registrant.


26. The Registrant has maintained that she was unable to complete the heel to toe walking in a straight-line test because of a naturally unsteady gait following breaking an ankle and two toes. She said that she had not brought these factors to the attention of Occupational Health on the day as OH would have this information to hand. In her written representations the Registrant had stated that these sobriety tests were not scientifically based. The Registrant has also stated that she had declined to have a blood test as this would have left a bruise on her arm which she would have to explain to her husband and family.


27. Mr Dite had reminded the Panel that undertaking the blood test would have avoided further escalation of the matter and supported the Registrant’s contention that she was not under the influence of alcohol.


28. The Panel accepted the evidence of GH and the supporting documentary evidence from the Occupational Health Advisor, that when requested the Registrant had been unable to successfully complete the two sobriety tests.


Particular 2(a) and (b) – found proven


On or around 25 May 2016, whilst at work, you:
(a) Appeared to be under the influence of alcohol;
(b) Smelled of alcohol.


29. At 08.40 hours on 25 May 2016, JB had alerted PA that the Registrant had not arrived at work that morning on time. At 11.00 hours JB asked to see PA and at this meeting she was accompanied by DA, one of the Imaging Department Assistants. They told him that the Registrant smelt of alcohol and was not fully concentrating on her job.     

                                                                
30. PA went to the department to observe the Registrant working and identified that she was experiencing difficulty entering information on the computer diary system. He had then helped her with these tasks. When finished, the Registrant, PA and JB went to PA’s office and on route PA noted the Registrant being a little unsteady on her feet. When in the office he noted that the Registrant smelt strongly of alcohol.


31. The note of the incident records that the Registrant had been asked to stay in PA office with DA and not return to the MRI unit. He stated that the Registrant had disobeyed this instruction and returned to the MRI unit with a view to continue working.


32. PA in his note of this event, his sworn statement, and in his testimony, acknowledged that he was fully aware of the personal issues which the Registrant was experiencing in 2016.


33. Prior to this event, PA had concerns about the reasons why the Registrant’s performance had deteriorated in recent months. He had harboured suspicions that it was due to the use of alcohol but had no evidence that this was the case.  He had not up until this time recorded the conversations which he had with the Registrant around this issue of drinking as he wanted to deal with it informally but after this incident he included reference to this in his contemporaneous notes relating to these discussions.


34. The Registrant’s account is at odds with this information. She maintained that she had not disobeyed and returned to the MRI unit, that she had not smelt of alcohol or been drinking alcohol and had been fully able to drive home safely. She maintained that there had not been informal conversations about drinking or offers of support extended to her prior to this event. The Registrant had also stated that she had felt unsupported by PA, a manager who had not fully taken into account her personal situation at that time and had, in one conversation, taken the opportunity of reminding her that there was a service to run. The Registrant stated that no account had been taken of her normal unsteady gait which was a result of her previously broken ankle and broken toes. She had not been unsteady on her feet as he asserted and was capable of working her shift and had not understood why she had been sent home.


35. The Registrant had also taken issue with the fact that this May 2016 incident had not been pursued by the Trust as part of the disciplinary process, and so challenged it being part of the HCPC Allegation.

36. The Panel prefers the evidence of PA and accepts that on this date, he and two other colleagues, had formed the view that the Registrant appeared to be under the influence of alcohol and had smelt of alcohol.


Decision on Grounds


37. The Panel appreciated that at this stage in the proceedings there is no burden on the HCPC and that it is a matter for the Panel’s professional judgment. The Panel at this stage has to decide whether the matters found proven amount to misconduct: in other words, conduct unbecoming of a professional radiographer.


38. Mr Dite argued that these are very serious matters. Taking alcohol into the workplace was unprofessional and unacceptable behaviour. The drinking of alcohol at work may not only have resulted in the incorrect performance of the Registrant’s duties but could have seriously impacted on the health, safety and wellbeing of her patients.


39. Mr Dite drew the Panel’s attention to the relevant paragraphs within the HCPC’s Standards of Conduct, Performance and Ethics (2016) (Standards 6 and 9), and the Standards of Proficiency for Radiographers (2013) (Standards 2, 3, 8, 12, 14 and 15). These he said had been clearly breached by the Registrant’s actions.


40. The Registrant had admitted that it was wrong that she had, on 12 August 2016, taken alcohol into the workplace and mistakenly and accidentally drunk some. She appreciated that this was unacceptable. She stressed however that it was one incident and that she had not been under the influence of alcohol whilst at work.


41. Taken together, the four limbs of particular 1 demonstrate that the Registrant had been exercising poor professional judgment. Her behaviour was not what is expected of an experienced practitioner. On her admission she had prepared the water bottle of gin to go with her to work as an act of defiance. This was, in the Panel’s view, intentional premeditated misconduct.


42. In relation to particular 2, the fact that the Registrant had been challenged by her line manager about smelling of alcohol and had been sent home should have been sufficient to indicate to her the seriousness of her actions and a deterrent to further such behaviour. It was therefore a matter of great concern to the Panel that the Registrant had been identified on a further occasion in August 2016 of being under the influence of alcohol within the workplace.


43. The Panel considers that the Registrant’s behaviour is in breach of standards:


Standards of Conduct, Performance and Ethics (2016):
• Standard 6 Manage risk
• Standard 9 Be honest and trustworthy


Standards of Proficiency for Radiographers (2013):
• Standard 2 be able to practise within the legal and ethical boundaries of their profession
• Standard 3 be able to maintain fitness to practise
• Standard 8 be able to communicate effectively
• Standard 14 be able to draw on appropriate knowledge and skills to inform practice
• Standard 15 understand the need to establish and maintain a safe practice environment


44. Whilst the Panel accepted that breach of the standards does not alone indicate that the matter amounts to misconduct in this instance the Panel has concluded that the Registrant’s behaviour does constitute misconduct. Collectively the matters found proven amount, in the Panel’s view, to serious misconduct.


Decision on Impairment 


45. The Panel appreciated that a finding of misconduct did not automatically amount to a finding of impairment. It was a matter for the Panel to assess whether the Registrant’s fitness to practise is currently impaired taking into account all information before it relating to past and current abilities.


46. In relation to the personal component, the Panel noted that the Registrant did not consider that the events identified in the Allegation arose from her use of alcohol but from a one-off mistake. This being the case, she did not consider that there was a behavioural issue which needed to be addressed and remedied.


47. Throughout the hearing the Registrant has shown a lack of understanding of the actions taken by her colleagues, either to help her identify and then deal with her behaviour issues, or steps taken to protect her and her patients from potential harm.


48. In line with her colleagues who noticed a change in her behaviour over a period of at least 12 months, the Panel are also considering the Registrant’s conduct over a period of time with a view to inform their decision as to whether there is a likelihood of repetition. The Registrant’s documented problems undoubtedly had an impact on her judgment and ability over many months and there is no evidence that she has taken any steps to adopt coping strategies. 

49. Her lack of insight into her own behaviour and her apparent inability to cope with personal stressors was noted in the following observation:


• In the Occupational Health Report of the 22 August 2016 the advisor has noted that the Registrant was unable to explain why she had chosen to decant the gin into a water bottle.

50. This lack of insight into her misconduct supports the Panel in finding that without such acknowledgement and remediation of the cause, there is a likelihood of repetition in the future. The Panel therefore finds that on the personal component there is current impairment.


51. Further, in relation to the public component, the Panel finds that there is current impairment. These matters are very serious involving as they do drinking alcohol within the workplace whilst carrying out scanning using highly sophisticated machinery which could, if not handled with care and professionalism, result in patient harm. The public, if made aware of such behaviour, would rightly be concerned and would expect that there was some mark of censure for such behaviour. In the Panel’s view a finding of impairment is therefore warranted in the public interest to ensure the upholding of the profession’s standards and reputation as well as maintaining the regulatory and disciplinary process.


Decision on Sanction


52. The Panel noted that at this stage the Registrant was not participating in the hearing. At the close of the hearing on Wednesday it was emphasised that the hearing would continue in the Registrant’s absence. The Registrant acknowledged that this was the case but confirmed that she would not be present today. She took the opportunity again to state her wish to voluntarily leave the Register.


53. In fairness to the Registrant, in her absence, Mr Dite drew the Panel’s attention to the Registrant’s written statement and supporting references, which he said reflected the testimony of the live witnesses, that the Registrant had been a respected and valued professional for the whole of her career until circumstances changed in the summer of 2015.


54. Mr Dite reminded the Panel of the Registrant’s stated desire to be removed from the Register. He maintained that whilst it was a matter of judgment for the Panel, these are serious issues which would warrant a sanction at the upper end of the range. Given the evidence of the Registrant the Panel may wish to consider whether the Registrant is unable and unwilling to resolve the underlying issues that led to her misconduct. In such a case, a strike off, as opposed to a period of suspension, may be the appropriate and proportionate measure. 


55. At this stage the Panel took into account the representations made by the HCPC, the advice of the Legal Assessor, and the terms of the current Indicative Sanctions Policy.


56. To assist it in its consideration of the appropriate and proportionate sanction to impose, the Panel identified the following mitigating and aggravating factors:


57. Mitigating:


• The Panel has evidence from a variety of sources that the Registrant had been, up until the time of the events which led to these proceedings, an exceptional practitioner.


58. Aggravating:


• Throughout this hearing the Registrant has maintained that the event of August 2016 (Particular 1) was the only one-off accidental incident of her being under the influence of alcohol at work. The evidence does not support this position.
• There is a total lack of insight.
• There is continued denial of the true state of events.
• There has been no expression of remorse.
• Her actions could have led to serious service user harm.
• Her actions of returning to work whilst under the influence of alcohol, having been instructed not to do so, showed a lack of professional judgment.


59. Given the above aggravating factors the Panel considered that a Caution Order was inappropriate as it provided no level of service user protection.


60. The Panel considered that a Conditions of Practice Order was, in a situation where there has been no insight, remediation or remorse, inappropriate and impracticable.


61. The Panel therefore considered whether a period of suspension would provide the Registrant with the opportunity to reflect and address her misconduct and the underlying conditions. However, a Suspension Order was not deemed appropriate as the Panel considered that there was such a serious risk of repetition of the Registrant’s misconduct and no indication of a willingness to acknowledge or remedy those failings.


62. In this regard the Panel noted that this matter may have come before it either as a capability process or as a health matter if the events in May and August 2016 had been resolved through another avenue. In those circumstances, this Panel would not have had the power to permanently remove the Registrant’s name from the Register.


63. The Panel is aware that by exercising its power to strike off the Registrant, the profession was going to lose an experienced and previously well-respected practitioner. However, the Panel considered that there was such a serious risk of repetition of the Registrant’s misconduct, which in the absence of any indication of willingness to acknowledge or remedy those failings, a strike off, as opposed to suspension was warranted in this instance. The Panel has therefore come to the decision that the appropriate and proportionate sanction is a Striking-Off Order. Such an order is for service user protection and to maintain the professions reputation and the public’s confidence in the regulatory and disciplinary process.

Order

Order: That the Registrar is directed to strike the name of Ilsa K Bailey from the Register on the date this order comes into effect.

Notes

Application for an Interim Order


Mr Dite made an application for an Interim Order. The Registrant was on notice that an application for an Interim Order was a possibility as reference was made in the Notice of Hearing sent to her on 31 October 2017. The Panel decided in order to protect the public, the wider public interest, and for the same reasons given above for the imposition of a Striking Off Order, an Interim Suspension Order was required.

Interim Order:


The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mrs Ilsa K Bailey

Date Panel Hearing type Outcomes / Status
19/02/2018 Conduct and Competence Committee Final Hearing Struck off