Ms Nicola Davison

Preliminary Matters

Service of Notice

1. The Panel had information before it that notice of today’s hearing dated 7 August 2018 was sent to the Registrant’s address on the Register on the same date by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

Proceeding in the Registrant’s Absence

2. Ms Wills, on behalf of the HCPC, applied for the Panel to proceed today. She informed the Panel that the Registrant has not corresponded or engaged at all with regard to today’s hearing or been in contact since the final hearing almost a year ago. She has not therefore made any request for an adjournment and has voluntarily waived her right to attend.

3. Ms Wills referred to a number of attempts by the HCPC to contact the Registrant. On 16 May 2018 a letter reminded the Registrant of the current Conditions of Practice Order, requested an update from the Registrant as to her compliance, and referred to the powers of the reviewing Panel. A further follow-up letter dated 18 June 2018 was sent to the Registrant. On 28 August 2018 a call was made to the telephone number of the Registrant which is to be found on the Register, but the Registrant could not be reached, and on the same date an email was sent reminding the Registrant of the date of today’s hearing. On 3 September 2018 a further call was made to a number provided by the Registrant prior to the final hearing, and a voice message was left asking for a call back. No response was received. 

4. Ms Wills reminded the Panel that the order expires on 13 October 2018 and in light of that imminent expiry, it is in the public interest to proceed.

5. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was aware that the discretion to proceed in the absence of a registrant should be exercised with the utmost care and caution. The Panel was of the view that there is no indication that an adjournment would secure the Registrant’s attendance at a future date on the basis of the absence of a request for an adjournment from the Registrant, the lack of a response to several attempts to communicate with her, and noting that she did not attend the substantive hearing and has not engaged with the HCPC since. The Panel took into account the potential disadvantage to the Registrant if it were to proceed. However, taking into account the lack of  a response or request for an adjournment from the Registrant, the Panel was satisfied that it is in the public interest, as well as being fair, for today’s review to proceed expeditiously.

6. The Panel therefore decided to proceed today.

Application to hear part of the hearing in private

7. Ms Wills stated that at the substantive hearing there was specific reference to aspects of the Registrant’s health, and submitted that if any such reference was made today, those matters should be held in private.

8. The Panel accepted the advice of the Legal Assessor and decided that if such matters are referred to, they should be in private, in order to protect the Registrant’s private life, pursuant to Rule 10(1)(a) of the Rules. 

Background

9. The Registrant was employed by the South Tees NHS Foundation Trust (“the Trust”) between March 2000 and May 2016 by which time she was a Senior Band 6 Neuroradiographer in the Neuroradiology Department.

10. The incidents which are the subject of the allegations came to light in late 2015. On or about 26 October 2015, a mobile x-ray machine was found in the department’s plain film room, positioned as if an extremity radiograph had been taken. Subsequent enquiries as to who had used the machine established that on 24 October 2015, the Registrant had come into the department off duty, with Person A, a minor who had a foot injury which the Registrant felt needed to be x-rayed. The Registrant was later overheard admitting to a colleague that she had used the machine.

11. On 12 November 2015, it was discovered that Patient B, a suspected stroke patient, had been scanned twice on 11 November 2015. The previous panel found that:

“by taking the CT Scan of Patient B without a formal referral and entering her details on the system manually, the Registrant had again bypassed the legal requirements. The absence of a formal referral meant that she had not verified the identity of Patient B and because the CT scan did not link to Patient B on the electronic system, Patient B had to undergo a second CT scan later in the day, exposing her to a further dose of radiation. This, as Dr Farley explained, in the case of a CT scan may be a high dose. As further described by Dr Farley, the Registrant’s actions also risked the patient not being treated in a timely manner and potentially delayed her diagnosis. The delay meant that Patient B was put at serious risk of harm.”

12.    The Trust had to report the incident to its regulator, the Care Quality Commission (CQC) as a reportable incident.

13. The Trust conducted an investigation into the incidents. Dr Robert Farley, Consultant Clinical Scientist and Head of the Medical Physics Department at the Trust, was appointed as the investigating officer. In the course of his investigation he interviewed the Registrant and other members of the Trust’s Staff. The Registrant accepted responsibility for the two incidents which had occurred on 24 October and 11 November 2015.

Decision

14. Ms Wills submitted that, in light of the lack of any evidence from the Registrant to address the concerns found, and the lack of evidence of insight before the Panel, the Registrant remains impaired. Ms Wills submitted that, while sanction is a matter for the Panel, a Suspension Order would be the minimum order necessary to protect the public and uphold the wider public interest. 
 
15. There were no submissions from the Registrant before the Panel.

16. The Panel accepted the advice of the Legal Assessor.

17. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”.

18. The Panel must exercise its own independent judgement with regard to impairment.

19. The Panel first considered whether the Registrant’s fitness to practise is currently impaired and took into account the HCPTS Practice Note on Impairment. 

20. The substantive hearing panel read the Registrant’s written submissions. That panel stated that it accepted that the Registrant acknowledged her past conduct and had apologised and expressed remorse, and concluded that the risk of repetition was “low”. However, that panel went on to state:

“…the Panel had residual concerns that in her responses to the allegations, the Registrant has stated she acted as she did in the best interests of the two patients, whereas in fact the Panel has concluded that her actions put the patients at potential risk of harm. The Panel also observed that the Registrant continued to excuse her actions by referring to the common practice of other staff at the Trust and did not appear to take full personal responsibility for her own actions.”

21. The substantive hearing panel had “limited information” about her practice since the events or her efforts to maintain her clinical skills since leaving the Trust in 2016. That panel decided that the Registrant had shown only “limited insight”.

22. In addition, the substantive hearing panel found that the Registrant’s

“actions consciously breached statutory requirements and procedures relating to the safe use of ionising radiation….public confidence in the profession of radiography would be undermined if a finding of impairment were not made in this case”

23. There has been no evidence before today’s Panel from the Registrant demonstrating the level of her insight since the substantive hearing. Further, there is a lack of any evidence that she has taken any steps to address the misconduct found proved or of any evidence about steps taken to maintain her professional skills and knowledge since the substantive hearing. In addition, the Registrant has not complied with the Conditions of Practice Order. While some of those conditions only apply if the Registrant works as a radiographer, other conditions, namely 1, 2 and 3 apply regardless of whether she is working in her profession. The lack of compliance with these in particular, compounded by the lack of remediation demonstrates either an unwillingness or inability to comply with them. These factors led the Panel to conclude that her insight remains limited, for the same reasons as decided by the previous panel at the substantive hearing. 

24. With regard to the wider public interest which includes public confidence in the profession, the Panel was of the view that in light of the concerns which have not been addressed, the lack of engagement in the regulatory process, and the lack of compliance with conditions 1, 2 and 3, the Panel was satisfied that a fully informed and fair minded member of the public would be gravely concerned if the Registrant were returned to unrestricted practice. The Panel was therefore satisfied that the need to maintain public confidence in the profession and to uphold proper standards, would be undermined if a finding of impairment were not made in the particular circumstances of this case.

25. The Panel therefore found that the Registrant’s fitness to practise remains impaired.

26. The Panel next went on to consider sanction, and took into account the Indicative Sanctions Policy (ISP). The Panel bore in mind that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public. Further, the sanction must be proportionate, so that any order that it makes must be the least restrictive order necessary to protect the public interest, including public protection. 

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

28. 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.”

29. The Registrant’s misconduct was not minor in nature, and furthermore, the Registrant has not demonstrated that she has taken any of the steps required to address that misconduct. Therefore, the Panel concluded that a Caution Order would be inappropriate and insufficient to protect the public and meet the public interest.

30. The Panel next considered a Conditions of Practice Order. Para. 33 of the ISP states that

“Conditions will rarely be effective unless the registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:

where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing…”

31. On the basis of the Registrant’s lack of engagement, there is no indication that she would be willing to comply with any further extension of the Conditions of Practice Order. The Registrant has not complied with conditions 1, 2, and 3 which apply regardless of whether she is working as a radiographer, nor has she responded to several communications since May 2018 reminding her of the need to show compliance, as well as reminding her of today’s review hearing. The Panel therefore decided that conditions would be unworkable and neither sufficient to protect the public, nor in the public interest.

32. The Panel next considered a Suspension Order and considered para. 39 of the ISP:

“Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited”.

33. Further para. 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.”

34. The Panel was of the view, in light of the Registrant’s continued silence in the face of regulatory proceedings, that she is either unable or unwilling to resolve her failings. However, the Panel also took into account that the previous panel at the substantive hearing assessed the risk of repetition as low, a finding which the Panel has no grounds upon which to disagree. In addition, the Panel has no evidence to suggest that there are psychological or other difficulties which prevent the Registrant from understanding and seeking to remedy the failings.

35. The Panel also took into account that it must act proportionately, and that any sanction must be the minimum necessary to protect the public interest and uphold the wider public interest. In this regard, the Panel noted the mitigating facts identified at the substantive hearing, the fact that the misconduct related to only two incidents in an otherwise unblemished career of some 20 years, the fact that the Registrant showed some insight, and the low risk of repetition. In coming to this decision, the Panel took into account the principle of proportionality and the impact that such a sanction will have on the Registrant’s right to practise her profession, as well as the likely reputational and financial impact. The Panel decided that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard. In light of all these factors, the Panel was satisfied that a Suspension Order was the minimum order necessary to protect the public and uphold the wider public interest. This includes maintaining confidence in the profession and regulatory process and in upholding the professional standards. The suspension also marks the seriousness of the Registrant’s failures.

36. The Panel did go on to consider whether a Striking Off Order would be appropriate but concluded that this would be disproportionate at this time as a Suspension Order would provide the necessary protection and address wider concerns in relation to upholding standards and confidence in the profession.

37. The Panel therefore decided to impose a 12 month Suspension Order. This will take effect on expiry of the current order.

The Registrar is directed to suspend the registration of Ms Nicola Davison for a period of 12 months on the expiry of the existing Conditions of Practice order.

The order imposed today will apply from 13 October 2018.
This order will be reviewed again before its expiry on 13 October 2019.

History of Hearings for Ms Nicola Davison