Mrs Catherine M Birnie

Profession: Radiographer

Registration Number: RA27601

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 24/01/2018 End: 17:00 24/01/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(Allegation (as found proved at final hearing)


During the course of your employment as a Radiographer at Princess Elizabeth Hospital between January 2013 and 11 November 2014:


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

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

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

4. In relation to Person A, a baby born with Down’s Syndrome:
a) your antenatal scans were inadequate in that:
i) [Found Not Proved]
ii) you did not detect that the baby had abnormal heart vasculature
iii) you did not detect renal abnormalities until the 32 week scan
b) [Found Not Proved]
5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and:
a) incorrectly reported:
i) that the pregnancy had failed;
ii) [Found Not Proved]
iii) that the gestation sac was empty.
iv) that the measurements of the gestational sac measured 1.4mm
b) you only saved one image
6. [Found Not Proved]
7. [Found Not Proved]
8. In relation to Service User E, your report of the image scans taken on 20th February 2014 was inaccurate, in that:
a) you indicated that the service user had an enlarged ovary in-keeping with polycystic ovaries when this was not the case;
b) you inadvertently measured the service user’s uterus instead of her ovaries.
9. The matters set out in paragraphs 1-8 constitute misconduct and/or lack of competence.
10. By your reason of your misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Background

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


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


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


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


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


6. The first review hearing was scheduled to take place on 4 January 2018 but was adjourned as the Registrant was unable to attend. 

HCPC Submissions


7. Ms Brzezina, on behalf of the HCPC, outlined the history of this case. She acknowledged the Registrant’s difficulty in not feeling able to return to work at the Hospital at the present time and the difficulty in moving from Guernsey to find work elsewhere. However, she expressed concern that the Registrant has not provided clear evidence of insight, remediation and no evidence of the CPD she has undertaken to indicate that she has updated her skills and knowledge. Ms Brzezina invited the Panel to conclude that the Registrant has not demonstrated that she would be capable of functioning safely and effectively and that as a consequence her fitness to practise remains impaired.  She drew to the Panel’s attention the letter that the Registrant had written to the HCPC for the purposes of requesting an adjournment of the hearing that took place on 4 January 2018. In that letter the Registrant stated that for personal reasons she did not envisage being able to return to the UK until September 2018 at the earliest in order to secure employment other than at the Hospital in order to secure employment other than at the Hospital. On that basis Ms Brezezina invited the Panel to consider extending the current Suspension Order for a period of 12 months.


Registrant’s Evidence


8. The Registrant chose to give evidence. She informed the Panel that she had not anticipated that her letter regarding the adjournment request would be used in evidence. However, she confirmed some of the details outlined in that letter with regards to her current circumstances. The Registrant said that she feels that she is in a ‘Catch 22’ situation, in that she cannot provide evidence of practical CPD whilst she is suspended and feels unable to return to the Hospital whilst the management that she had difficulties with, remain in post. She informed the Panel that she has considered various options, including returning to the UK to undertake a voluntary placement, and agency work, but confirmed that she had not gone beyond the stage of making preliminary enquiries. 


9. The Registrant informed the Panel that she had undertaken online CPD (although no evidence of this was provided) and stated that she had reflected on what had happened ‘every day.’ She stated that she had prepared a reflective piece, but it was not yet complete. However, she acknowledged that she had not fully appreciated the purpose of the review hearing and had expected the Panel and the HCPC to guide her in returning to work. The Registrant informed the Panel that she now appreciates that she should have been more proactive. She stated that she is committed to the profession and would like to return to practice as a Radiographer and/or Sonographer. The Registrant was clear that she would not return to practice as an Obstetric Sonographer.


Panel’s Approach


10. In undertaking this review, the Panel took into account the documentary evidence and the submissions made on behalf of both parties.


11. The Panel accepted and applied the advice it received from the Legal Assessor as to the proper approach it should adopt. In particular that:


• The purpose of the review is to consider the issue of impairment based on the previous panel’s findings of fact, the extent to which the Registrant has engaged with the regulatory process, the scope and level of her insight and the risk of repetition.

• In terms of whether her previous misconduct and lack of competence has been sufficiently, and appropriately remedied relevant factors include whether the Registrant:

(i) fully appreciates the gravity of the previous panel’s finding of impairment;
(ii) has maintained or updated her skills and knowledge;
(iii) is likely to place service users at risk if she were to return to unrestricted practice.

• The Panel should have regard to the HCPTS Practice Note: Finding that Fitness to Practise is impaired and must take account of a range of issues which, in essence, comprise two components:

(i) the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and

(ii) the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

• It is only if the Panel determine that the Registrant’s fitness to practise remains impaired, that the Panel should go on to consider any sanction by applying the guidance as set out in the HCPC Indicative Sanctions Policy (ISP), and the principles of proportionality which require the Registrant’s interests to be balanced against the interests of the public.

Decision  

12. The Panel was encouraged by the Registrant’s attendance. The Panel recognised that it is difficult to publicly acknowledge a lack of competence, which placed patients at risk of harm. However, although the Registrant acknowledged the impact of her previous conduct and behaviour on service users she emphasised the impact of the Fitness To Practise Proceedings have had on herself.  The Panel accepted that the Registrant had reflected on the circumstances, which had led to the finding of misconduct and lack of competence, but by her own admission, these reflections were not yet complete. The Panel noted that the Registrant has not worked as a Radiographer for more than 3 years and that her knowledge and skills are likely to be even further below the standard required of a registered Radiographer than when she resigned from the Hospital.


13. The Panel noted that the Registrant did not provide any of the information the substantive hearing panel indicated would be of assistance. Whilst the Panel accepted that the matters found proved were remediable, no evidence of remediation had been provided. The Registrant had not provided any evidence of any further training or CPD undertaken, any reflective piece, or any evidence of deep and meaningful insight. In the absence of any positive evidence of insight and remediation, the Panel concluded that there had been no material change in circumstances, since the substantive hearing took place, with regards to the risk to service users. Therefore, the Panel was led to the inevitable conclusion that the Registrant’s fitness to practise remains impaired on the basis of the personal component, by reason of her misconduct and lack of competence.   


14. The Panel went on to consider the wider public interest. The Panel concluded that the public would be concerned if the Registrant was permitted to return to the register unrestricted despite her fitness to practise being found to be impaired on the grounds of misconduct and lack of competence and despite failing to provide evidence that her deficiencies have been remedied. In these circumstances, the Panel was satisfied that public confidence in the profession would be undermined if there was no finding of impairment. As a consequence, the Panel determined that the Registrant’s fitness to practise is impaired based on the public component.


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


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


17. The Panel then considered a Caution Order.  The Panel noted paragraph 28 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate action.” 


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


19. The Panel went on to consider a Conditions of Practice Order.


20. The Panel noted the Registrant’s willingness to return to practise and undertake further CPD and training. However, there was insufficient information available to the Panel. There was no clear plan as to what type of return to work plan would be available or any detail about what it would entail. In these circumstances the Panel was unable to formulate conditions which would be appropriate, workable and measurable.


21. The Panel next considered extending the current Suspension Order for a further period of time. A Suspension Order would send a further signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Radiographer. The Panel noted that a Suspension Order would prevent the Registrant from practising during the extended suspension period, which would therefore protect the public and be in the wider public interest. A Suspension Order would also provide the Registrant with the opportunity to consider her future, develop the skills and knowledge required to return to practice and put specific plans in place.


22. The Panel took into account that paragraph 41 of the ISP states:
‘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.’


23. The Panel took the view that the above paragraph applies to the Registrant. The Panel determined that the Registrant should be given a further opportunity to consider carefully the decision of the Final Hearing panel and this Panel and properly focus on the issues that have been identified.


24. The Panel determined that the Suspension Order should be imposed for a period of 6 months. The Panel was satisfied that this period would be sufficient for the Registrant to demonstrate that she is committed to addressing the deficiencies in her practise and return to practise.


25. The Panel decided that the appropriate and proportionate order is a Suspension Order. A Striking Off Order, would be disproportionate as the shortcomings in the Registrant’s practise are capable of being remedied and there remains a possibility that the Registrant is able to demonstrate remediation.


26. The extended Suspension Order will be reviewed shortly before its expiry, or the Registrant may make a request for an early review. A future reviewing panel would expect the Registrant to attend the review hearing and to provide and document evidence that she has made significant steps towards a safe and effective return to practise, which may include:
• A completed and comprehensive reflective piece of writing compiled by the Registrant, detailing her insight into the consequences of her actions on service users, the profession and the public;
• Documentary evidence of CPD activities which specifically address the Registrant’s misconduct and lack of competence and compliance with the HCPC Return to Practice requirements
• A clear plan of action which sets out a route by which the Registrant might return to practice as a Radiographer;
• Any references and testimonials from paid or unpaid work with regards to skills and/or knowledge relevant to Radiography;
• Any other evidence or information which the Registrant considers would be of assistance.

Order

ORDER: The Registrar is directed to suspend the registration of Mrs Catherine Birnie for a further period of 6 months on the expiry of the existing order.

Notes

The Order imposed today will apply from 21 February 2018.


This Order will be reviewed again before its expiry on 21 August 2018.

Hearing History

History of Hearings for Mrs Catherine M Birnie

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