Mr Abiodun M Oloyede

Profession: Radiographer

Registration Number: RA34468

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 15/10/2018 End: 16:00 22/10/2018

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

During the course of your employment as a Lead Computerised Tomography ("CT") Radiographer with Nuffield Health Brentwood Hospital on 14 January 2016:
1. Following an unsuccessful CT Deep Inferior Epigastric Artery Perforator ("DIEP") scan, carried out by you, you repeated the CT DIEP scan but did so:
a) without completing any quality assurance testing to ensure that there had not been a fault with the scanning equipment prior to repeating the scan;
b) without re-justification and/or authorisation from a Radiologist and/or consultant;
c) without informed consent from the patient;
d) in breach of Ionising Radiation (Medical Exposure) Regulations (IRMER) specifically regulations:
i. 5(1) and/or;
ii. 5(4) and/or;
iii. 6(1)(a) and/or;
iv. 6(5).
2. When asked by Colleague A whether the matters set out in Paragraph 1 should be reported, replied "no", or words to that effect.
3. Following the matter described in Paragraphs 1 and/or 2, you did not:
a) record what happened as a Patient Safety Incident.
b) record what happened as a Radiation Safety Incident.
4. The matters set out in Paragraphs 1 - 3 constitute misconduct and/or lack of competence.
5. By reason of that misconduct and/or lack of competence, your fitness to practise is impaired.

Finding

Preliminary matters:
1. The HCPC was represented by Ms Shardi Shameli. The Registrant was present and was not represented. The Panel was provided with a Final Hearing Bundle which included the witness statements of the HCPC witnesses, numbered pages A1 – C28 and an Exhibits bundle numbered pages D1 – D420. The Panel also received a bundle from the Registrant which was unpaginated but was divided into sections numbered 1 – 23.

Background:
2. At the relevant time the Registrant was employed as the lead CT Radiographer for Nuffield Health Brentwood Hospital [the hospital]. On 14 January 2016, the Registrant was working with a colleague (RS) and conducted a CT DIEP scan on a patient. The patient had breast cancer and would have had previous treatment. A CT DIEP is a scan that looks at the blood vessels at the lower part of the abdomen. The scan is taken prior to a patient receiving surgery whereby a flap is taken from their lower abdomen in order to reconstruct a breast. The CT DIEP scan is therefore to aid the impending surgery rather than being a diagnostic scan.

3. The Registrant was the named first Radiographer and operated the scanning machine whilst RS took the role of second Radiographer monitoring the patient. The scan for this patient was unsuccessful and the decision was made by the Registrant to repeat the scan without any steps being taken to seek permission from a Radiologist or completing any quality assurance checks of the scanner to ensure that it was working properly. The Registrant then completed the second CT DIEP scan of the patient immediately after the first without obtaining consent from the patient.

4. Following investigation by the Hospital, the Registrant self-referred to the HCPC by email dated 11 March 2016.

Fact finding stage:
5. The Panel heard oral evidence from two witnesses called on behalf of the HCPC. Witness DM who is a registered Radiographer, was the Imaging Manager at the Hospital and the Investigating Officer. Witness RS is also a registered Radiographer and was working with the Registrant at the time of the alleged incident. The Panel also heard oral evidence from the Registrant.

6. In relation to the witnesses called on behalf of the HCPC, the Panel found them to be credible, open, honest and reliable. Both witnesses attempted to assist the Panel. Witness RS gave evidence by video link in circumstances where she was not feeling well. The Panel considered that her evidence was compelling, thoughtful, consistent and reliable. RS’s credibility was also bolstered by the fact that she had made contemporaneous notes in her diary.

7. In relation to the Registrant’s oral evidence, the Panel took into account the obvious stress of appearing before a Conduct and Competence Panel. However, the Panel found the Registrant’s evidence was evasive and unclear. The Panel considered that the Registrant obfuscated the facts by relying on and misinterpreting documents and by not answering questions in a straightforward manner. For example, the Registrant misinterpreted some text in his employer’s procedures on incidents involving greater than intended exposure to patients caused by a procedural error. The text relied upon by the Registrant was quite clearly only relevant to circumstances where an incident is reportable to the Care Quality Commission (CQC) and not, as the Registrant repeatedly claimed, to the need to obtain justification for carrying out a second scan. The Panel considered that the Registrant was deliberately trying to cloud the issues.

8. The Registrant made a number of admissions at the outset of his evidence. Additionally, the Registrant produced two references from the radiology general manager and the lead CT Radiographer at Frimley Park Hospital where the Registrant currently works.  Both referees answered “No” to the question, “has the applicant been or is currently the subject of any fitness to practise proceedings by an appropriate licensing or regulatory body”. When asked whether he had informed his referees about the HCPC proceedings against him, the Registrant told the Panel that he had informed one of them by email dated 11 January 2018. However, her reference is dated 10 April 2017, nine months before the Registrant’s email to her and the other reference post-dates the disclosure. The Panel considered that the Registrant’s credibility was impacted by this evidence.

9. Witness DM gave her evidence on days 1 and 2 of the hearing (15 and 16 October 2018). Following the completion of her evidence she emailed the HCPC (on 17 October 2018) to raise her concerns about the veracity of some documents provided by the Registrant. As a result, Ms Shameli applied to recall witness DM and provided a copy of the email to the Panel in support of her application.

10. Having heard and accepted the advice of the Legal Assessor, the Panel refused Ms Shameli’s application. It considered that the documents in question were not relevant to the issues which it had to determine. The Panel recognised that the contents of the email were potentially prejudicial to the Registrant and determined to disregard the email and any matters raised in it. As an experiences Panel, it was satisfied that it was able to disregard the email and the Registrant would not be prejudiced by the Panel having seen it.

Decision on Facts:

11. Having carefully considered all of the evidence in the round, the Panel found all of the Particulars proved (being 1a), 1b), 1c), 1d) (i) (ii) (iii) (iv), 2, and 3a) and b)).

12. In relation to Particulars 1a) and 1b), the Registrant, when giving evidence, admitted that he repeated the CT scan without completing any quality assurance testing and without authorisation from a Radiologist. The Registrant’s evidence thereafter was confusing and unclear as to why he had he had acted in that way. The Registrant speculated as to whether the problem was caused by a technical or a human error. The Registrant also misinterpreted his employer’s policy and claimed that he did not require any re-justification or authorisation to repeat the scan as the original Consultant’s referral permitted reasonable repeat scans. The Panel had regard to the clear guidance to CT radiographers that there had to be justification for every scan and considered that the Registrant was seeking to minimise the significance of his error. The Panel was therefore satisfied, to the required standard, that Particulars 1a) and 1b) were proved.

13. In relation to Particulars 1c) and 1d), the Registrant, in the course of his evidence, admitted that he repeated the scan without informing the patient. The Panel rejected the Registrant’s subsequent evidence that he would be entitled to rely on the patient’s original consent for a scan when he repeated the CT scan. The Panel was satisfied that any patient would expect to be told about the problem and asked to consent to having a repeat scan, given the additional dosage of radiation which is involved in repeating a CT scan. The Registrant accepted that if he had carried out a repeat scan without justification or informed consent he would be in breach of the Ionising Radiation (Medical Exposure) Regulations 2000 (IRMER). The Panel was therefore satisfied, to the required standard, that Particulars 1c) and 1d)(i) – 1d)(iv) were proved.

14. In relation to Particular 2, the Panel accepted the clear evidence of witness RS as to the words used by the Registrant. The Registrant denied saying “No” and disputed RS’s version of events and maintained that he said “Yes”. The Panel prefers RS’s evidence to that of the Registrant. The Panel considered that the Registrant’s evidence was disingenuous in relation to this Particular. The Panel was therefore satisfied, to the required standard, that Particular 2) was proved.

15. In relation to Particulars 3a) and 3b), in the course of his oral evidence, the Registrant admitted that he did not record what happened as a patient safety incident or as a radiation safety incident. The Panel rejected the Registrant’s subsequent evidence that he believed that RS was going to complete the required DATIX report about the incident for two reasons; firstly RS kept a contemporaneous note in her diary about her conversation with the Registrant; secondly, in her interview with the Matron, RS, suggested to the Registrant that they ought to complete the DATIX report at the end of the day, to which the Registrant replied that it was not necessary to do so. The Panel was therefore satisfied, to the required standard, that Particulars 3a) and 3b) were proved.

Decision on grounds:

16. In relation to misconduct, the Panel was satisfied that the Registrant’s actions were serious and had the potential to cause actual harm to the patient. The Panel also considered that the Registrant had not, to date, taken full responsibility for his actions. He appeared not to have appreciated the potential adverse effects of his actions on his patient and subsequent patients, if indeed the scanner had been faulty, as well as on the reputation of his profession.

17. The Panel was satisfied that the Registrant’s actions fell seriously below the standards required of a registered Radiographer set out in the HCPC Standards of Conduct, Performance and Ethics (2012) as follows:

• 1 - “You must act in the best interests of service users”.

• 7 - “You must communicate properly and effectively with service users and other practitioners”

• 9 - “You must get informed consent to provide care or services (so far as possible)

• 10 - “You must keep accurate records”

• 13 - “You must behave with …integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession”.
.
The Panel was also satisfied that the Registrant had breached several Standards HCPC Standard of Proficiency for Radiologists:
• 1 - “Be able to practise safely and effectively within their scope of practice”
• 2 - “Be able to practise within their legal and ethical boundaries of their profession”
• 4 - “Be able to practise as an autonomous professional, exercising their own professional judgement”
• 8 - “Be able to communicate effectively”
• 9 - “Be able to work appropriately with others”
• 10 - “Be able to maintain records appropriately”
• 12 - “Be able to assure the quality of their practice”
• 13 - “Understand the key concepts of the knowledge base relevant to their profession”.
• 14 - “Be able to draw on appropriate knowledge and skills to inform practice”
• 15 - “Understand the need to establish and maintain a safe practice environment”
18. The Panel considered that as a Lead CT Radiographer and the person responsible for drafting policies and procedures for CT scanning, the Registrant should have been a role model. The Panel was satisfied that the extent of the Registrant’s breaches of the Standards, amounted to misconduct.

Decision on Impairment:

19. The Panel next considered whether, as a result of the misconduct found, the Registrant’s fitness to practise is currently impaired. The Panel paid careful regard to the Registrant’s written and oral evidence. It also had regard to the submissions by Ms Shameli on behalf of the HCPC and those of the Registrant. The Panel received and accepted the advice of the Legal Assessor.

20. The Panel carefully considered the HCPC practice note on ‘Finding that Fitness to Practise is Impaired’ and the references therein to the factors to be taken into account, as set out in the case of Cohen v GMC [2008] EWHC 581 (Admin). In particular, whether the misconduct was remediable, had been remedied and was highly unlikely to be repeated.

21. The Panel considered that the Registrant had demonstrated little insight in relation to the matters found proved, in particular in respect of the importance of adhering to the Ionising Radiation Regulations, designed to protect patients from being subjected to unnecessary or excessive radiation. Whilst the Registrant, in the course of his evidence made some admissions, he did so on the basis that his admissions were limited to whether the facts occurred.

22. Although the Registrant had made admissions in his evidence, he did not take full responsibility for his actions and he appeared not to understand the importance of being open and frank about mistakes and taking immediate action to limit any potential harm to patients. The Registrant also expressed some regret but showed little remorse for his actions and has not yet demonstrated that he has taken sufficient remedial steps to ensure that his conduct will not be repeated. The Registrant told the Panel that he had learned from what had happened and would act differently in the future. This included completing a Datix himself and seeking approval for repeat scans. The Panel noted that he had not taken additional steps, such as written reflection, seeking guidance or re-training.

23. The Panel considered that the Registrant has some attitudinal issues, having not, to date, accepted full responsibility for his actions and not having remedied his mistakes.

24. The Panel considered that there remains a risk of repetition and that   the Registrant’s fitness to practice is currently impaired in relation to the personal component of impairment.

25. The Panel was also mindful of the wider public interest considerations in this case, particularly the need to declare and uphold proper standards of conduct and behaviour and maintain confidence in the reputation in the Radiography profession.

26. The Panel had regard to the judgement of Mrs Justice Cox in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and the test which she identified to assist Panels as follows:

“Do our findings of fact in respect of the [practitioner’s] misconduct show that his/her fitness to practise is impaired in the sense that s/he:

a) Has in the past acted and/or is liable in the future to act so as to put patient or patients at unwarranted risk of harm; and/or

b) Has in the past brought and/or is liable in the future to bring the 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 profession and/or

d) (Not relevant)

27. The Panel was of the view that the first three limbs of the case of Grant were engaged. The Registrant had in the past put a patient at risk of harm by exposing her to an additional dose of radiation, and was liable in the future to do so again, having not yet remediated his practice through reflection or training.

28. The Panel considered that the Registrant had brought the profession into disrepute and breached a fundamental tenet of the profession, in failing to follow the appropriate safety protocols in place. Again, in the absence of sufficient insight into his failings, and remediation of his practice, the Panel concluded that he was liable in the future to do so again.

29. The Panel also concluded that public confidence in the Radiography profession and in the HCPC as the regulator would be undermined were a finding of impairment not made on public interest grounds. The public would be concerned if the Registrant was allowed to continue to practise unrestricted given his misconduct, limited insight and remediation.

30. For all of the above reasons, the Panel found that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction:
31. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.

32. The Panel had regard to the submissions of Ms Shameli, who referred the Panel to the HCPC Indicative Sanctions Policy (the Policy). She also identified a number of mitigating and aggravating factors which the Panel may wish to consider.

33. The Registrant addressed the Panel. He said that he had reflected on the Panel’s written determination thus far, and realised that he should not have repeated the CT scan. He accepted that he should have told the patient, taken full responsibility and discussed it with the patient, to give her the choice of whether to repeat the scan or not. He accepted that he should have reported it straightaway and said that he would make sure that if such a situation were to recur he would speak to a Manager. He said that for this he was sorry. He had re-read the Regulations overnight and recognised that he had misinterpreted them to allow for a repeat scan, and for this he felt bad.

34. The Registrant explained that he had been working for 21 years as a Radiographer, and there had been no other referrals against him. He described the impact on his family and dependents if a sanction were imposed which meant he could not work. He accepted that the purpose of a sanction is to protect the public, and it was for the Panel to decide, but he invited the Panel to impose conditions which would allow him to work while reflecting on the matters.

35. The Panel accepted the advice of the Legal Assessor and exercised its independent judgement. The Panel had regard to the Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

36. The Panel first identified what it considered to be the principal aggravating and mitigating factors in this case.

37. Aggravating factors:

• The Registrant had not taken full responsibility for his actions;

• He had appeared not to understand the importance of being open and frank about mistakes and taking immediate action to limit potential harm to patients;

• He had demonstrated little insight, in particular in respect of the importance of adhering to the safety protocols.

38. Mitigating factors:

• The Registrant has no previous fitness to practise referrals to the HCPC;

• He made some admissions;

• This was a single incident in January 2016;

• He has engaged with the HCPC process; and

• In his latest address to the Panel, he appeared to be capable of developing insight.


39. The Panel considered the sanctions available, beginning with the least restrictive. The Panel did not consider the options of taking no further action, mediation, or the sanction of a Caution Order to be appropriate or proportionate in the circumstances of this case. None of these options would address the risk of repetition which the Panel had previously identified nor would they reflect the seriousness of the case. 

40. The Panel next considered the imposition of a Conditions of Practice Order. The Panel considered that the Registrant’s misconduct was potentially remediable. The Panel was mindful that up until the sanction stage, it had not been confident that the Registrant was capable of developing sufficient insight or remediating his practice. In respect of its earlier findings of impairment, it had regard to the fact that the Registrant had not taken full responsibility for his actions; and therefore had limited insight.

41. The Panel asked itself whether, in light of the Registrant’s submissions at the sanction stage, a Conditions of Practice Order would provide sufficient public protection. The issue was whether, if something went wrong during clinical practice, the Panel could be reassured that the Registrant would take the appropriate steps. The Panel was of the view that the Registrant’s whole demeanour had changed in addressing the Panel on sanction. Previously he had been somewhat defensive, and minimised the severity of his actions, which had led the Panel to conclude that he appeared not to understand the importance of being open and honest about mistakes and taking immediate action to limit potential harm to patients. The Panel considered that it was significant that the Registrant had stated that he had re-read the Regulations and former employer’s guidelines and accepted that his interpretation of them was wrong. The Panel considered that the Registrant was now developing insight into his actions.

42. The Panel concluded that a Conditions of Practice Order would be sufficient to protect the public while allowing the Registrant to remediate his practice and continue to develop his insight.

43. In Order to satisfy itself that a Conditions of Practice Order was the appropriate and proportionate response, the Panel went on to consider a Suspension Order. It had regard to the significant impact on the Registrant and his family, if he were not permitted to practise. Given that the Panel was satisfied that conditions would sufficiently protect the public, the Panel concluded that a Suspension Order would be unduly punitive.

44. The Panel determined to impose a Conditions of Practice order for a period of 12 months. This is with a view to the Registrant demonstrating to the next Panel that he has remediated his practice and has developed sufficient insight into his failings. The Panel also considered that public confidence would be met by such a period.

Order

Order:
The Registrar is directed to annotate the HCPC Register to show that, for a period of 12 months from the date that this Order takes effect, you, Mr Abiodun M Oloyede, must comply with the following conditions of practice:
1) You must satisfactorily attend and complete a Radiation Protection Training course and forward a copy of your results to the HCPC.

2) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC and supply details of your supervisor to the HCPC within 3 months of the Operative Date. You must attend upon that supervisor as required and follow their advice and recommendations.

3) You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

5) You must inform the following parties that your registration is subject to these conditions:

A) any organisation or person employing or contracting with you to undertake professional work;

B) any agency you are registered with or apply to be registered with (at the time of application); and

C) any prospective employer (at the time of your application).

6) You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:
i. CT scanning:
ii. Quality Assurance testing;
iii. Justification and authorisation as appropriate with senior colleagues;
iv. Informed consent;
v. Relevant safety policies and regulations;
vi. Appropriately escalating problems and promptly reporting incidents.

7) Within three months of the Operative Date you must forward a copy of your Personal Development Plan to the HCPC.

8) You must meet with your workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.

9) You must allow your workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

10) You must provide a reflective piece demonstrating what you have learned from your misconduct including the impact on the patient, the profession, the regulatory process and identifying the steps you have taken and continue to take to ensure that there is no recurrence of such misconduct. You must provide this reflective piece in time for any review of this Order.

Notes

 Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.


European alert mechanism:
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been restricted.
You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.

 


Application for an Interim Order:

1. Ms Shameli made an application for an Interim Conditions of Practice for 18 months to cover the appeal period of 28 days before the Suspension Order comes into effect, or if the Registrant were to appeal, the period of the appeal. The Registrant did not object to an Interim Order.

2. The Panel heard and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders, in that it must undertake a comprehensive review of the available information in order to conduct a risk assessment.

Decision on Interim Order:

3. For the same reasons as set out in the substantive determination, the Panel considered that an Interim Order was necessary on public protection grounds, given the risk of repetition that it had identified.

4. The Panel went on to consider whether an Interim Order was otherwise in the public interest. For the same reasons as set out in its substantive determination, in order to uphold the reputation of the profession and the HCPC as its Regulator, the Panel was satisfied that an Order was required. The Panel was of the view that the public would be concerned if the Registrant were permitted to practise in the period before his Substantive Order took effect, in circumstances where the Panel found that there was a risk of repetition.

5. The Panel considered an Interim Conditions of Practice Order and for the same reasons as set out for the substantive hearing, it concluded that an Interim Conditions of Practice Order was the appropriate an proportionate response.

6. In all the circumstances the Panel determined to impose an Interim Conditions of Practice Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.

Interim Conditions of Practice Order:
The Registrar is directed to annotate the HCPC Register on an interim basis to show that, for a period of 18 months Mr Abiodun M Oloyede must comply with the following conditions of practice:
1) You must satisfactorily attend and complete a Radiation Protection Training course and forward a copy of your results to the HCPC.
2) You must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC and supply details of your supervisor to the HCPC within 3 months. You must attend upon that supervisor as required and follow their advice and recommendations.
3) You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.
4) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
5) You must inform the following parties that your registration is subject to these conditions:
A) any organisation or person employing or contracting with you to undertake professional work;
B) any agency you are registered with or apply to be registered with (at the time of application); and
C) any prospective employer (at the time of your application).
6) You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:
i. CT scanning:
ii. Quality assurance testing;
iii. Justification and authorisation as appropriate with senior colleagues;
iv. Informed consent;
v. Relevant safety policies and regulations;
vi. Appropriately escalating problems and promptly reporting incidents.
7) Within three months you must forward a copy of your Personal Development Plan to the HCPC.
8) You must meet with your workplace supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.
9) You must allow your workplace supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
10) You must provide a reflective practice demonstrating what you have learned from your misconduct, and identifying the steps you have taken and continue to take to ensure that there is no recurrence of such misconduct. You must provide this reflective piece in time for any review of this Order.

 

 

Hearing History

History of Hearings for Mr Abiodun M Oloyede

Date Panel Hearing type Outcomes / Status
15/10/2018 Conduct and Competence Committee Final Hearing Conditions of Practice