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During the course of your employment as a Radiographer for Spire Hartswood Hospital, on or around 08 January 2016, you:
1. Performed a CT abdomen with colonography on Person A without authorisation to do so;
2. Exposed Person A to radiation in breach of IR (ME) Regulations;
3. Input a false name for Person A onto the PACS/ RIS system;
4. Tried to delete the images from the patient system;
5. Your actions described in paragraphs 3 and 4 were dishonest.
6. The matters described in paragraphs 1 - 5 constitute misconduct.
7. By reason of that misconduct your fitness to practise is impaired.
1. Throughout this decision, Person A will be referred to as Patient A given that he was the patient referred to in this matter.
Proceeding in Private
2. The Panel heard that matters relating to Patient A’s health were to be discussed as part of this application.
3. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The Legal Assessor advised that Patient A was a former employee of Spire Hartswood Hospital (the Hospital) in a specific role and therefore would be identifiable by reference to that role. As such, it was right that the Panel consider whether it would be appropriate for matters relating to Patient A’s health to be heard in private.
4. The Panel determined that where reference was to be made to Patient A’s health or private life, it should be heard in private.
Application for evidence to be received by way of telephone evidence:
For the HCPC
5. Mr Millin applied for the evidence of Witness 2 to be received by telephone link. He informed the Panel that Witness 2 was unable to attend the hearing to give evidence in person due to a family emergency, which required him to accompany a family member to hospital. He would also not be able to give evidence in person on any other day during this hearing due to prior commitments in another part of the country. He had expected to give evidence in person and he was still willing to give evidence by way of telephone link.
6. The Registrant objected to Witness 2 giving evidence by way of telephone because he would rather the witness attended in person.
For the Registrant
7. The Registrant applied for the evidence of Witnesses 3 and 4 to be received by telephone link. He informed the Panel that the witness were unable to attend in person and the reason the application was being made now was because he did not know that it was possible for his witnesses to give evidence by way of telephone. Once he was made aware of this, he contacted his witnesses and informed them of this possibility; they indicated that they would like to give evidence by telephone if possible. The Panel heard that Witness 3 lived in Yorkshire and Witness 4 was a Consultant Radiologist who had prearranged clinics which he needed to attend.
8. The Panel accepted the advice of the Legal Assessor. Rule 10(b) sets out that the rules of evidence governing Civil Proceedings apply, and therefore the principles of relevance and fairness apply. The Panel bore in mind its over-arching objective is to protect the public and the wider public interest.
9. The Panel had sight of Witness 2’s statement and considered that the evidence of Witness 2 was relevant to the proceedings.
10. The Panel also determined that it was fair, and would not cause any injustice, to receive Witness 2’s evidence by way of telephone evidence. The Panel would be able to question the witness and to test his evidence, as would the Registrant. The circumstances leading to his inability to attend in person arose unexpectedly.
11. The Panel had sight of Witness 3’s interview which was part of the employer’s investigation. This was within the HCPC bundle. The Panel considered the evidence of Witness 3 was relevant to the proceedings. The Panel also, as part of the same bundle, had sight of notes of an interview between Witness 1 and Patient A (Witness 4). It determined that Patient A’s evidence was also relevant to these proceedings.
12. The Panel determined that it was fair, and would not cause any injustice, to receive the evidence of Witness 3 and Patient A by way of telephone evidence. The Panel would be able to question the witnesses and to test the evidence, as would Mr Millin.
13. It is alleged that in May 2016, the Registrant performed an unauthorised CT scan on Patient A, who was a former employee of Spire Health Care. It is alleged that as a result, the Registrant exposed Patient A to unnecessary radiation. It is further alleged that the scan was then saved under a false name.
14. The matter was initially investigated by the employer but was never concluded. The matter was referred to the HCPC.
Decision on Facts
15. The Panel considered all the evidence in this case together with the submissions made by Mr Millin on behalf of the HCPC, and by the Registrant.
16. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.
17. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:
• Witness 1, Matron Head of Clinical Services at Spire Hartswood Hospital (“the Hospital”).
• Witness 2, Imaging Manager at the Hospital, and the Registrant’s line manager from October 2014.
18. The Panel also heard evidence from the Registrant, and the following witnesses called on his behalf:
• Witness 3 – Consultant Radiologist with the Hospital and who was present and supervised the scan of Patient A on 8 January 2016;
• Witness 4 – Patient A – on whose behalf, and on whom, the Registrant carried out the scan on 8 January 2016. Patient A was also the former Imaging Manager at the Hospital and the Registrant’s previous line manager.
19. The Panel found Witness 1’s evidence to be consistent and credible. Witness 1 admitted when he could not recall details in evidence.
20. The Panel also found Witness 2 to be credible. However, he did not always answer the questions put to him and as a result, despite best efforts, his answer lacked clarity at times.
21. The Panel found the Registrant to be consistent and believable. He was consistent with what he previously had said had occurred at the time and there was no reason to doubt his evidence.
22. The Panel found Witness 3’s evidence to be limited, in that he confined his evidence to his role on 8 January 2016, and to the role of a supervising Consultant Radiologist. At times, he was not able to recall details of the events on 8 January 2016 which he attributed to the passage of time.
23. The Panel found Witness 4 (Patient A) to be clear and credible. He had a good recall of events and his evidence was clear and detailed.
1. Performed a CT abdomen with colonography on Person A without authorisation to do so;
24. In determining this particular, the Panel interpreted "authorised" to mean in this case, having a request form or referral from an appropriate clinician.
25. The Panel took account of the Hospital’s local policy rules that incorporated the Ionising Radiation (Medical Exposure) (IR(ME)) Regulations”. Rule 8.4.3 states:
All medical exposures within the Hospital are ‘authorised’ with an appropriate initial or signature on the request form or by electronic signature on a computerised administration system. Those that authorise exposures are Operators for that purpose and are trained accordingly, particularly where the operator is not also acting as practitioner and authorisation is according to guidelines from the practitioner (see below where appropriate).
26. There is an inherent presumption in Rule 8.4.3 that there is a request form submitted by an appropriate “referrer”. Rule 8.3.1 sets out the list of referrers as:
Referrals for examination involving radiation exposure are accepted from the following:
i. Registered doctors and dentists.
ii. Registered osteopaths / chiropractors.
iii. Registered nurses / physiotherapists or other health care professional referrers by special arrangement and local protocol.
iv. Radiographers / nurses for bone densitometry (if appropriate).
v. Radiographers for well woman screening.
vi. Customs Officers by special arrangement and local protocol.
27. Witness 1, on behalf of the HCPC, told the Panel that for a Radiographer to carry out a CT scan, which was a complicated scan, authorisation would come in the form of a referral from the Radiologist. This would normally be as a result of a request from a GP or a consultation with the Radiologist. He told the Panel there had not been a referral form completed by a Radiologist nor had there been a request from a GP at the time of the scan.
28. The Registrant told the Panel that, at the time he arranged the appointment for the scan, he thought Patient A would get a referral from his GP and would bring that with him. At the appointment he admitted he did not check if Patient A had done so. The Registrant however provided evidence of a subsequent request form from Patient A’s GP dated 9 February 2016. Nonetheless, the Registrant accepted that he did not have a request form at the time he carried out the CT scan on Patient A.
29. As there was no referral from a Radiologist or appropriate clinician at the time, nor a request for a CT scan from a GP, the Panel found Particular 1 proved on the balance of probabilities. It recognised that the Registrant had admitted this during his oral evidence.
2. Exposed Person A to radiation in breach of IR (ME) Regulations;
30. This particular flows directly from Particular 1. The IR(ME) Regulations were locally adapted by the Hospital to govern the procedures relating to CT scans. It sets out the referral, justification and authorisation procedures before a patient can be exposed to radiation. The Panel determined that the Registrant exposed Patient A to radiation in breach of the IR(ME) Regulations as no prior referral or request form had been provided prior to the CT scan being carried out. Witness 1 told the Panel that the CT scan carried out on Patient A was the appropriate scan and properly carried out, but it was classed as an “unintended radiation exposure” because a prior request form had not been obtained.
31. The Panel noted that Witness 2 told the Panel that “if a CT scan of a patient is required, a Consultant must justify this request by completing a Request Form. Once this has been completed, the Radiographer is then able to perform the requested procedure”.
32. However it was clear from the evidence of all the witnesses, including the Registrant that this procedure was not strictly adhered to. The protocol for undertaking scans was clearly set out in the IR(ME) Regulations. All the witnesses apart from Patient A stated that there were some occasions when scans would be carried out on the basis of a verbal request with an understanding that the Request Form would follow soon after. Witness 3 told the Panel that there have been occasions when he could not report on scans undertaken because the request forms had not be forwarded as promised. Witness 1 said that receiving a referral form from the GP a month after the scan was unacceptable.
33. During his evidence, the Registrant accepted that, because no prior referral or request had been given for the CT scan, he had exposed Patient A to radiation exposure in breach of the IR(ME) Regulations.
34. The Panel determined that Particular 2 was proved on the balance of probabilities and recognised that the Registrant had admitted this particular when giving evidence.
3. Input a false name for Person A onto the PACS/RIS system;
35. Witness 2, on behalf of the HCPC, stated that having discovered a patient sitting in the control room after hours on 8 January 2016, he went to his office and checked the PACs system. He found results for a patient with an unknown name. He found that this patient’s name did not exist on the hospital system. Following further interrogation of the scanning system, he was able to identify that the scan related to Patient A but had been saved under a false name.
36. The Registrant admitted this particular at the start of the hearing. The Registrant stated that he had inputted a false name onto the scanning system to protect the identity of Patient A. Patient A stated that he had asked the Registrant to use his discretion as to his identity as he was known at the Hospital as a former employee and he wanted his privacy maintained.
37. The Panel determined that Particular 3 was proved on the balance of probabilities and recognised that the Registrant had admitted this particular at the start of the hearing.
4. Your actions described in paragraphs 3 were dishonest.
38. Mr Millin submitted that the Registrant’s actions were dishonest because he was deliberately seeking to hide the true identity of Patient A, and that would be considered dishonest by reasonable and ordinary people.
39. The Panel’s attention was drawn to the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67 which overruled the use of the Ghosh test when determining dishonesty. The Panel noted the change in the test to be applied for dishonesty. The Panel took particular note of paragraph 74 of their Lordships’s judgment:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest."
40. The Panel accepted the evidence of the Registrant:
a. that he intentionally inputted a fictitious name into the scanner;
b. that the reason he did so was to protect the privacy and dignity of Patient A who was a former employee;
c. that Patient A was known to the staff at the radiology department (as well as hospital departments) as he was the previous Imaging Manager of the department;
d. that Patient A had requested that the Registrant “use his discretion” to maintain Patient A’s privacy (Patient A stated this in his evidence);
e. that the images on the scanner could be browsed by a variety of staff (and would likely be browsed through in order to decide whether to delete them, as there was limited memory capacity in the scanner itself)
f. that the images would also automatically be copied over to the PACs system, and the Registrant had intended to change the name on that system in order that Consultant AK could report on them;
g. that there had not been any attempt to conceal the false name used from Patient A or Witness 3 who supervised the scan; and
h. the Registrant had nothing to gain from his actions.
41. The Panel accepted that the Registrant was sincere in his desire to maintain the privacy and dignity of his former line manager. The Panel was aware that the scan carried out was a detailed and embarrassing procedure. The Panel also noted that the Registrant’s loyalty to his former line manager, Patient A, may have caused him to act in the overzealous manner that he did. The Panel took into consideration that the Registrant was of good character and found the Registrant to be believable when giving evidence.
42. The Panel determined that ordinary and decent people, who were aware of all the above circumstances, would not consider the Registrant’s actions to be dishonest.
43. Therefore the Panel determined that Particular 4 is not proved on the balance of probabilities.
Decision on Grounds
44. The Panel then went on to consider whether the factual particulars found proved amounted to misconduct and/or lack of competence. The Panel heard the submissions of Mr Millin and the Registrant.
45. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:
a. Nandi v GMC  EWHC 2317 (Admin)
b. Roylance v GMC (2000) 1 AC 311
c. Hindmarsh v NMC  EWHC 2233 (Admin)
46. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”. It is not just any professional misconduct, which will qualify.
47. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:
a. The Registrant was an experienced senior Radiographer.
b. There were no issues raised regarding the Registrant practice prior to these matters.
c. The Allegation related to a single incident of a single CT scan.
48. The competence of the Registrant was not an issue in this case. It was clear from the evidence of all the witnesses that the Registrant was a competent Radiographer. This is further evidenced by the fact that the Registrant was one of three named Radiation Protection Supervisors for the Hospital. Named Radiation Protection Supervisors are a requirement under the IR(ME) Regulations.
49. The Panel considered Particulars 1 and 2 together as they are intrinsically linked and cannot be separated one from another.
50. Any exposure to radiation can have severe consequences for the person exposed. That is why the IR(ME) Regulations are in place, so as to ensure that only intended exposure to radiation that is justified takes place. By the Registrant’s actions, he disregarded these mandatory safeguards in the case of Patient A. Whilst Patient A did ultimately obtain a referral from his GP, that was one month after the scan, and did not justify the Registrant’s actions. It is an aggravating feature that the Registrant was not only a very experienced and senior Radiographer, but was also one of the three Radiation Protection Supervisors at the Hospital, and their title sets out their role. Adherence to the IR(ME) Regulations is a requirement of any Radiographer.
51. The Panel noted the circumstances surrounding this incident. It noted the Registrant’s motivation was to help and assist a former colleague who was very worried about his health at the time. Nonetheless, this did not mean he could disregard his duties and the IR(ME) Regulations.
52. In the circumstances, the Panel considered that the actions of the Registrant set out in Particulars 1 and 2 are sufficiently serious that they amount to misconduct.
53. In relation to Particular 3, the Registrant intentionally entered the wrong name for Patient A. Whilst errors do occur and can be corrected, the intentional act of entering a fictitious name undermines the integrity of the system. Furthermore, whilst the Registrant had intended to correct the name on the PACs system, the wrong name would remain on the actual scan image as it is recorded as part of the image. The Panel was concerned that if for any reason the Registrant was not able to amend the name, there would have been no trace of a scan on the system under the name of Patient A. As a consequence, there was the risk that Patient A could be subject to further unnecessary exposures to radiation. Patient A also told the Panel that when he saw that a false name had been used, he was “dismayed” and thought that it would invariably lead to disciplinary action and possible referral to the HCPC. The Panel determined that the action of the Registrant, set out in Particular 3, taken in the above light is sufficiently serious that it amounts to misconduct.
54. Accordingly the Panel finds that the facts found proved amounted to the statutory ground of misconduct.
Decision on Impairment
55. The Panel went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct.
56. The Registrant gave further and compelling oral evidence at this stage of proceedings.
57. The Panel accepted the advice of the Legal Assessor. The Legal Assessor drew the Panel’s attention to the test set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and advised the Panel that there were personal and public grounds when considering whether the Registrant’s fitness to practise is currently impaired.
58. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the radiographer profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the radiographer profession?”
59. The Panel considered the submissions made by Mr Millin on behalf of the HCPC as set out above and also those made by the Registrant. The Panel also took into account the evidence before it.
60. The Panel was aware that any finding as to impairment was for the independent judgement of the Panel and that what is to be assessed is the Registrant’s current fitness to practise.
61. The Panel took into account the factors mentioned above in its determination on Misconduct. The Panel considered the following matters to be worth repeating as the significant factors to its determination on the Registrant’s fitness to practice:
a. The Registrant demonstrated some insight by admitting Particular 3 at the outset of the hearing and also by admitting Particulars 1 and 2 during the course of the hearing.
b. The Registrant demonstrated further insight into his misconduct, albeit that the insight was gained as the hearing developed. This is evidenced by the Registrant’s acceptance of his misconduct during his evidence;
c. There has been no repetition of the Registrant’s misconduct, nor has there been any other concerns about his practice before or since these matters arose;
d. The Registrant gave clear evidence as to what he would do if presented with a similar situation in the future in that he would now always follow protocols and procedures, and would not do favours for friends that would breach these protocols and procedures, thus demonstrating remediation;
e. The Registrant demonstrated remorse for what he had done. He recognised how his conduct at the time had fallen below the standards expected of a professional Radiographer;
f. The Panel heard how these proceedings have been a salutary lesson to the Registrant and as a result the risk of repetition is very low;
g. The Registrant had not gained in any way from his actions;
h. These matters arose out of a single incident.
62. The Panel accepted that these matters represented an isolated incident involving a single lapse of judgement on the part of the Registrant when overtaken by the circumstances at the time. The Panel was satisfied that the Registrant is not liable in future to put the public at risk of harm, nor is he liable in future to bring the profession into disrepute, nor is he liable to breach a fundamental tenet of the profession.
63. Therefore the Panel determined that the Registrant’s fitness to practise is not impaired on the personal component of the test.
64. In considering whether the matters were such that a finding of impairment was required to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour, the Panel also took the following into consideration:
a. Patient A was an experienced Imaging Manager and was the Registrant’s previous line manager. As such Patient A was aware of the procedures required before a CT scan can be carried out, and also was aware of the exposure to radiation required for such a scan;
b. However, the Registrant was an experienced senior Radiographer who was also a nominated Radiation Protection Supervisor. As such he should have known better than “to do a favour for a friend” and take shortcuts with established protocols and procedures. The IR(ME) Regulations are statutory guidance which should be followed by all radiographers because they are there to protect the public;
c. The use of a pseudonym for Patient A’s scan would have given rise to some potential risk to Patient A, if something had happened to the Registrant that prevented him from changing the records back to Patient A’s name on the PACs system. Patient A may have then required another scan and therefore would have been exposed to a further dose of radiation.
65. In the light of the above, the Panel determined a right-minded member of the public, with full knowledge of all the circumstances of this case, would be concerned if a finding of current impairment were not made. This would be notwithstanding any sympathy such member of the public might have for the Registrant in the light of the circumstances at the time. The Panel determined that the public interest required a finding of impairment to mark the nature and seriousness of the Registrant’s misconduct.
66. Therefore the Registrant’s fitness to practise is currently impaired, on the public interest grounds alone.
Decision on Sanction
67. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of Mr Millin and the Registrant.
68. The Panel accepted the advice of the Legal Assessor. He advised the Panel that it should bear in mind its duty to protect the public and also the wider public interest, which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.
69. The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public interest. It should take into consideration the aggravating and mitigating factors in the case. The Panel also reminded itself that it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest.
Panel’s consideration and decision
70. The Panel had regard to all the evidence presented, and to the HCPTS’ Indicative Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be. It recognised that this was not a case where the Registrant’s competence is in question.
71. The Panel took into account the factors it had considered when deciding on the issue of current impairment as part of its decision on sanction. In addition, it took into account the following factors:
a. that the Registrant had fully engaged with this regulatory process;
b. that no actual harm was caused to any patient or service user;
c. that the Registrant has apologised and is clearly remorseful and regretted his actions;
d. that the stressful and protracted personal circumstances prevailing at the time and the toll that these proceedings have had on him;
e. the Registrant’s previous unblemished record; and
f. that this misconduct was at the lower end of the spectrum.
72. The Panel first considered taking no action but concluded that this was not appropriate in this case. This was because proper adherence to the protocols and procedures of IR(ME) Regulations needs to be declared and upheld.
73. The Panel then considered whether to make a Caution Order. It bore in mind that a Caution Order would not restrict the Registrant’s right to practise. The Panel was satisfied that the conduct of the Registrant was out of character. The Panel noted that the lapse was isolated and limited in nature. It was also mindful of its finding that the Registrant has demonstrated insight, and that he was unlikely to repeat his misconduct. The Registrant has been held to account, and that proper standards of practice and behaviour have been declared by the finding of misconduct and current impairment on public interest grounds alone.
74. The Panel determined that, in this case, the public interest would be met with the imposition of a Caution Order as a sanction. This would be in line with the HCTPS’ Indicative Sanctions Policy. The Panel determined that a member of the public who was fully informed of the above considerations, would countenance the Registrant’s return to unrestricted practice to continue his service to the public.
75. In these circumstances, the Panel concluded that a Caution Order would be sufficient to satisfy the wider public interest.
76. The Panel determined that the appropriate and proportionate period for which the Caution Order should be imposed is 12 months. That is the minimum period sufficient to maintain public confidence in the profession and also have a deterrent effect on the profession at large.
77. In order to self-moderate its decision, the Panel also considered whether a Conditions of Practice Order would be proportionate or suitable. As there were no identifiable areas of the Registrant’s practice, which could be addressed by conditions of practice, the Panel determined that a Conditions of Practice Order was not appropriate in this case. Furthermore, suspension of the Registrant’s practice as a sanction would be clearly disproportionate.
The Registrar is directed to annotate the register entry of Mr Gooroodev Matabudul with a Caution which is to remain on the Register for a period of 12 months from 26 June 2018 (the date this Order comes into effect).
This Order will expire on 26 June 2019.
History of Hearings for Gooroodev Matabudul
|Date||Panel||Hearing type||Outcomes / Status|
|21/05/2018||Conduct and Competence Committee||Final Hearing||Caution|