Mrs Che Elizabeth Smith
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1. On or around 16 May 2017, you:
a) Accessed medical records of a patient when not involved in his care
b) Discussed information contained within the patient’s medical records with a colleague also not involved in the patient’s care
2. Between 8 August 2017 and 9 August 2017, you worked as a Radiographer whilst not registered with the Health and Care Professions Council ("HCPC")
3. You did not declare on your Readmission Application for Registration form dated 10 May 2017 to the HCPC that you had been disciplined by your employer
4. The matter set out at paragraph 3 was dishonest
5. The matters set out in paragraphs 1-4 constitute misconduct
6. By reason of your misconduct your fitness to practise is impaired
1. The Registrant qualified as a Radiographer and Mammographer in 2005. At the time of the events set out in this hearing, the Registrant was a Band 6 Radiographer/Mammographer and was working at the Queen Alexander Hospital within the Portsmouth Hospitals NHS Trust (“the Trust”) in the Breast Services Department.
2. On 16 May 2017, the Breast Screening staff at the Trust were informed by the Consultant Radiologist of the serious illness of a colleague, Colleague 1; namely, a brain tumour, but no details were provided, other than a general diagnostic description. On 16 May 2017, the Registrant accessed Colleague 1’s medical records without any clinical justification. On 16 May 2017, the Registrant is alleged to have revealed that the size of Colleague 1’s tumour was 4 centimetres to an Administration Officer, JD, who then passed on that information to three others working in the Breast Services Department. This information had not been revealed at the briefing by the Consultant Radiologist. JD was asked by one of the three people, VF, how she knew that information and she said that the Registrant had informed her during a conversation on 16 May 2017. The Programme Manager of the Department (J He) informed the Superintendent Radiographer, SS and, on 18 May 2017, SS was appointed as Investigating Officer into the matter by the Imaging Services Manager, JH.
3. On 12 June 2017, KH, then the Deputy Superintendent Radiographer at the Trust (now Superintendent Radiographer) took over from SS as Investigating Officer when SS retired on 9 June 2017. KH completed her investigation on 10 July 2017 and provided a Report dated 10 July 2017 to JH and to the Trust’s Human Resources Department. The matter went to a Disciplinary Hearing on 1 August 2017 and the Registrant received a Final Written Warning for three years. A letter from the Trust to the Registrant dated 7 August 2017 and received by her, confirming the outcome of the disciplinary hearing of 1 August 2017. It was silent on the need for the Registrant to inform the HCPC of the contents of the letter.
4. On 9 August 2017, at approximately 10.00 to 10.30 hours, KH received a letter from the HCPC, dated 8 August 2017, stating that the Registrant had been removed from the Register. No reason was given. The Registrant’s shift had commenced at 08.30 hours on that day. KH immediately telephoned the Registrant and informed the Registrant that she had to re-register; she could not continue to work as a Band 6 Radiographer as it was an unsupervised role. KH immediately demoted the Registrant to a Band 4, a non-registered assistant practitioner role and informed the Registrant she was doing this. On KH’s calculation, the Registrant had worked as an unregistered Radiographer for two or two and a half hours (excluding the delay from 8 August 2017, when the HCPC had de-registered the Registrant, to 9 August 2017, when KH had read the HCPC’s letter at or about 10.30am and temporarily demoted her). On 10 August 2017, the Registrant completed a written re-application form for the HCPC re-application process. The box containing the statement “Have you been disciplined by a professional or regulatory body or your employer?” was not ticked.
5. Due to the Registrant’s annual leave, KH could not interview the Registrant about the matter until 15 August 2017. The Registrant told KH that the reason for the de-registration was that the direct debit she had set up to pay her HCPC Registration fee had not gone through. The Registrant did not know for sure why not, but thought that it might have been an insufficiency of funds in her account. She denied having received three prior warning letters from the HCPC, sent to her registered address, about the issue, and the Registrant told KH that her (the Registrant’s) mother-in-law may have picked up her post. KH then asked the Registrant if she had declared the previous disciplinary hearing of 1 August 2017 and its outcome to the HCPC on the re-admission form, which she had completed on 10 August 2017. The Registrant said that she had not done so because she thought it was an “internal matter” and there was no need for her to do so. KH advised the Registrant to contact the HCPC immediately about the previous disciplinary matter. The Registrant emailed the HCPC on 15 August 2017 informing the HCPC of her previous disciplinary matter and the outcome. KH understood that the Registrant telephoned the HCPC to inform them of her previous disciplinary matter. The Registrant was told to inform the HCPC’s Fitness to Practise team, which KH also understood that the Registrant had done.
6. On 14 September 2017, KH had been appointed as Investigating Officer for this matter. On 7 September 2017, she had already asked the Registrant to provide a written statement about the incident. In her written statement dated 15 September 2017, the Registrant stated that the reason she had not declared the previous disciplinary matter was because she thought the Trust would inform the HCPC as the disciplinary hearing had been an internal matter. She also stated that she had telephoned and emailed the HCPC informing them of her previous disciplinary matter, indicating that she had done so of her own volition. However, the Panel heard evidence that this was further to a prompt from KH.
7. KH prepared an Investigation Report into this matter dated 29 September 2017. As a result of a Disciplinary Hearing on 26 October 2017 about the re-registration matter and that it occurred within the three year final written warning period imposed on 1 August 2017, the Registrant was summarily dismissed from the Trust.
8. The Registrant’s direct debit for payment of her Registration fee was rejected by her paying organisation on 3 July 2017. It is alleged that the HCPC sent three payment rejection letters on 5 July 2017, 25 July 2017 and 8 August 2017. All three went to the Registrant’s last known registered address, but the Registrant claimed not to have received them. The Registrant had confirmed her address was correct. It is the HCPC’s case that it is the duty of all Registrants to keep the HCPC informed of any change in their address. The Registrant was removed from the Register for the non-payment of her Registration fee on 8 August 2017 and was re-admitted on 14 August 2017. Nevertheless, from 8 August 2017 to 9 August 2017, the Registrant had practised as an unregistered Radiographer.
9. On 16 August 2017 the HCPC received a referral from the Trust in relation to the 16 May 2017 matter.
10. It is alleged by the HCPC that the information about the Registrant’s previous disciplinary matter at the Trust was not declared on the Registrant’s formal application for re-admission dated 10 August 2017 and that, by so omitting to complete the relevant section on the form, the Registrant was dishonest.
Decisions - The Facts stage
11. The Panel heard from KH, at the time Deputy Superintendent Radiographer at the Trust, about all the matters alleged in the Particulars of Allegation and her involvement in them. It also read her written witness statement dated 14 December 2018. The Panel paid regard to the written witness statement dated 3 April 2019 of AJ, Registration Team Leader at the HCPC in relation to Particulars 2 and 3.
12. The Panel also heard from the Registrant and took note of her bundle of supporting documents. These consisted of the following:
1) An undated personal statement from the Registrant;
2) 3 referees’ letters as follows:
i) dated 4 June 2019 from NC, the Assistant Operational Manager CSCD and Programme/Administration Manager of the Breast and Surgical Unit at the Isle of Wight NHS Trust;
ii) dated 28 May 2019 from Dr PW, Consultant Radiologist at the Isle of Wight NHS Trust;
iii) dated 30 May 2019 from JS, Superintendent Radiographer in the Breast Screening Unit at the Isle of Wight NHS Trust.
3) An undated CPD document from the Registrant pertaining to the development of unrelated clinical competencies;
4) Examples of the Registrant’s CPD dated December 2018, January 2019, February 2019, March 2019, April 2019, May 2019 and an undated one;
5) A document entitled Learning Objectives listing achievement of a range of competencies dated May 2019;
6) A Core Competency Review dated May 2019 relating to the Registrant;
7) A Mammographic Image Assessment dated 3 December 2018.
13. The Panel noted that the Registrant had commenced employment with the Isle of Wight NHS Trust as a Radiographer in October 2018 and that she had informed the interview panel at the Isle of Wight NHS Trust of the detail of all matters concerning this hearing.
14. At the Facts’ stage, the Panel also heard from JS, Superintendent Radiographer in the Breast Screening Unit at the Isle of Wight NHS Trust as a witness for the Registrant. The Panel heard from her about the Registrant’s character in relation to the allegation of dishonesty and it also heard from this witness about the Registrant’s working practices.
15. The Panel agreed to an amendment to the Allegation sought by the HCPC at the end of its case. The Registrant did not oppose it. The Panel accepted the Legal Assessor’s advice. The amendment was to add to Particular of Allegation 3 the following words:
“…on your Re-admission Application for Registration form dated 10 August 2017.”
16. The Panel accepted that this was to reflect the fact that the case, in written and oral form to that point, had been clear on Particular 3 of the Allegation; namely, that the Registrant had not completed the Re-admission Application for Registration form so as to declare the previous disciplinary action against her, although she had done so in an email to the HCPC at a time after she had completed the form. The HCPC, the Registrant and the Panel had all understood the Particular of Allegation to refer only to the said form. Indeed, the Registrant had admitted this Particular of the Allegation on that basis. Hence, in the Panel’s judgement, there was no injustice to her by this technical amendment and better particularises the available evidence.
Decision on facts
17. In reaching its decisions on the facts, the Panel took into account that the HCPC brings the case and that it is for the HCPC to prove it on the balance of probabilities. The Panel accepted the Legal Assessor’s advice.
18. The Panel also took into account that the Registrant admitted Particulars of Allegation 1(a), 1(b), 2 and 3.
19. The Panel found the HCPC witness, KH, a fair, consistent, reliable and credible witness.
20. It found the Registrant’s witness, JS, credible, fair and transparent.
21. The Panel found the Registrant gave oral evidence with minor inconsistencies and contradictions, but the Panel concluded that they did not undermine her credibility as a witness. Overall, the Panel found her narrative to be consistent and genuine.
22. The Panel’s findings and reasons for the Particulars of Allegation, are as follows:
Particular 1(a) – found proved
23. The Panel accepted the Registrant’s admission and noted that this was supported by the HCPC’s evidence of the internal investigation report, PACS System access audit and the internal investigatory notes.
Particular 1(b) – found proved
24. The Panel accepted the Registrant’s admission and noted that this was supported by the KH’s oral and written evidence, as well as the internal investigation report and the Trust’s interview notes of the witnesses involved.
Particular 2 – found proved
25. The Panel accepted the Registrant’s admission and noted that this was supported by the HCPC evidence. The Panel found that the period of time that the Registrant practised as a Radiographer whilst unregistered with the HCPC was for two and a half hours on 9 August 2017. The Panel concluded that there was no evidence to show a longer period; namely, from 8 to 9 August 2017. KH’s written and oral evidence also confirmed this.
Particular 3 – found proved
26. The Panel accepted the Registrant’s admission and noted that this was supported by the HCPC evidence; namely, the Readmission Application for Registration form and the evidence of KH and the financial history information detailing rejection of the direct debit payment. However, the Panel also noted that the Registrant had informed the HCPC by email on 15 August 2017 of the previous disciplinary matter. This took place 5 days after 10 August 2017 when she completed the Readmission Application for Registration form and at a time when she had been strongly urged to inform the HCPC by KH, her then line manager.
Particular 4 – found not proved
27. The Panel noted that, although the Registrant demonstrated an overall lack of awareness, her evidence before this Panel led the Panel to conclude that her action in not marking the Application form correctly was a careless, negligent and reckless act, rather than a deliberate and dishonest one. She already had one disciplinary matter recently resolved and about which she had just received a letter. Yet she failed to pay careful regard, just days later, as to how to complete the re-application form. The Panel also concluded that, if she was in doubt about what to do, she could have asked KH or another senior member of staff and she did not do so. The Panel found her act and omission in this respect to be that of a careless person who did not pay sufficient attention to detail. However, the Panel could not find, from her answers to questions put to her in cross examination and from the Panel, that she had a motive for being dishonest. The Panel accepted her submission about her state of mind at the time not being dishonestly driven and not having a dishonest motive at the time (that she had nothing to gain from being dishonest). The Panel accepted this to be to be credible and entirely consistent with her character at the time, as portrayed to the Panel in her oral evidence; namely, a person who simply had not appreciated the seriousness of her situation at the time, either when the events took place or during the internal investigation.
28. In addition, the Panel accepted her own genuinely held belief from her oral evidence that she thought her employers would notify the HCPC and that she was not required to do it. She thought that, as an internal investigation, the employer would inform the HCPC if it thought it should do so. She stated that she truly believed this. The Panel accepted that oral evidence from her as a genuinely and reasonably held belief and that it was not an attempt on the Registrant’s part to obfuscate the facts. In fact, this explanation was borne out by the HCPC’s concession that Standard 9.5 of the HCPC’s Standards of Performance and Ethics (the Standards) does not require any HCPC Registrant to inform the HCPC of this type of disciplinary matter.
29. Therefore, for these reasons, the Panel determined that, subjectively, the Registrant had a genuinely held belief.
30. Objectively, in the Panel’s judgement, the reasonable and decent person would not consider the Registrant to be dishonest, as there was no HCPC evidence to demonstrate this. As set out above, the Registrant’s evidence was the only credible evidence on this point. JS, the Registrant’s current line manager, gave evidence of the Registrant’s trustworthiness and reliability.
31. Therefore, in the Panel’s judgement, a well-informed observer, objectively, would conclude that the Registrant had a genuinely held belief and that she had not been dishonest when she omitted to complete the re-application form correctly.
32. The Panel also concluded that this finding is consistent with the Registrant’s actions and omissions at the time as being reflective of her poor attention to detail with respect to her regulatory responsibilities.
Decision on grounds
33. In reaching its decision, the Panel exercised the principle of proportionality. it accepted the Legal Assessor’s advice and it paid regard to the Standards.
34. The Panel concluded that, as a trained Radiographer of some years’ experience, the Registrant should have known not to breach confidentiality principles; it was not acceptable to access private and sensitive health information. This was aggravated by the fact that the subject of the breach was a professional colleague, that the information was highly sensitive and confidential to him and it was also aggravated by the Registrant’s disclosure of it to a third party within the same department, who also knew Colleague 1. The Registrant should have appreciated that this risked information being spread quickly within a small department such as that in which she worked.
35. The Panel concluded that the public would be very concerned by this breach of confidential material. It breached the private and family life rights of the subject of the breach, Colleague 1. Indeed, the Panel noted that he, himself, may not have known of the details in the breached information. Hence, in the Panel’s judgement, Colleague 1’s dignity and right to privacy was severely compromised.
36. In the Panel’s view this was a serious breach of the standards expected of a professional Radiographer and the Registrant’s actions also breached the law of the UK. By her actions, the Registrant fell far below the standards expected of her as radiographer.
37. In the Panel’s judgement, practising when not registered was an act of reckless behaviour that a senior Radiographer of the Registrant’s experience should have known to avoid. Having insufficient funds in her bank account was not a good, professional or sound reason to avoid ensuring that her payment for registration went through smoothly. She had been registered for a number of years and should have known the consequences of failing to provide the HCPC with the means to draw the registration fee at the proper time. Her attitude to that at the time was reckless and without thought for the safety of the public, who require and would expect their professional Radiographers to be registered. In the Panel’s judgement, this was entirely avoidable and not the action the public would expect of any Registrant, let alone one of such experience as this Registrant.
38. The Panel concluded that, taken in the round, the facts found proved breached the following Standards of conduct, performance and ethics:
Standard 1 Promote and protect the interests of service
users and carers.
Standard 5 Respect confidentiality.
Standard 5.1 You must treat information about service users as confidential
Standard 5.2 You must only disclose confidential information if:
- you have permission;
- the law allows this;
- it is in the service user’s best interests; or
- it is in the public interest, such as if it is necessary to protect public safety or prevent harm to other people.
Standard 9 Be honest and trustworthy
39. The Panel concluded that, taken in the round, the facts found proved breached the following the Standards of proficiency for Radiographers:
Standard 2 be able to practise within the legal and ethical boundaries of their profession
40. For the reasons stated, the Panel found that the facts found proved amount to misconduct.
Decision on impairment
41. In reaching its decision, the Panel exercised the principle of proportionality, it accepted the Legal Assessor’s advice and it paid regard to the HCPC’s Practice Note on Fitness to Practise Impairment.
42. The Panel concluded that the Registrant had demonstrated in her written and oral evidence, remorse and shame. However, the Panel also concluded that her evidence showed limited insight into her acts and omissions, whether she understood the seriousness of her acts and omissions at the time or, fully, since, as well as the consequences of them. She stated that she knew that what she had done was wrong in relation to the breach of confidentiality, and the Panel accepted this, but, in its judgement, there was little evidence from her of relevant remediation so as to prevent recurrence in the future and, hence, to protect the public.
43. The Registrant was unable, when asked in questions from the Panel in her oral evidence, to expand on her knowledge of data protection generally and the need to protect the public from breaches of sensitive information, and why that is important. Whilst she acknowledged the existence of the Data Protection Act, she was unable, without prompting from the Panel, to identify the General Data Protection Regulations legislation, its impact on the community at large and how she would use them in practice and to avoid the failings in this case being repeated. This was despite mandatory data protection training she admitted that she had undertaken. The Registrant was unable to give any substance of the detail of her learning and what she would do differently in the future and its application to her practice, so as to avoid repetition of her breach of confidentiality.
44. With respect to the Registrant working as a Radiographer whilst unregistered with the HCPC, the Panel concluded that every Radiographer, especially with the experience of the Registrant, should have known to avoid this scenario and the public would be deeply concerned about the lack of protection for them in having an unregistered Radiographer caring for them. Thus, in the Panel’s opinion, this puts the public at risk of harm and it also undermines the confidence that the public is entitled to have in the Registrant, the profession of Radiography and in its regulator, the HCPC.
45. The Panel was more reassured with respect to the application form Allegation. The Panel, having heard her oral and read her written submissions on this, was able to conclude that this situation was unlikely to happen to the Registrant again in the future. In the Panel’s judgement, there was less risk of repetition, as she had appeared to have learned her lesson. The Panel accepted her oral evidence about how she would manage her re-registration and all other applications in the future so as to avoid this happening again. The Panel noted that the Registrant had actively contacted the HCPC about her new job in 2018 and it accepted that she had been completely open and transparent with her new employers about all aspects of this case.
46. Although the Registrant had a blemish-free career before these events took place, these were not isolated matters. In the Panel’s judgement, the concern it has for the risk of repetition with respect to data protection and the Registrant’s re-registration arrangements in the future overrides her good character before these matters took place.
47. The Panel concluded that, for these reasons, public confidence in the profession and the regulator as the body responsible for registration would be undermined by a finding of no impairment. Equally, the Panel concluded that the public would be still at risk of harm of a breach of confidentiality in the future and at risk of being cared for by the Registrant if she were to be unregistered in the future if the Panel were to find the Registrant not impaired today.
48. For these reasons, the Panel concluded that the Registrant’s fitness to practise is currently impaired.
Decision on sanction
49. In reaching its decision, the Panel exercised the principle of proportionality, it accepted the Legal Assessor’s advice and it paid regard to the HCPC’s Indicative Sanctions Policy.
50. In reaching its decision, the Panel noted that sanction should not be primarily punitive and that it should reflect the protection of the public and the upholding of public confidence in the profession. The Panel approached the range of sanctions available in ascending order.
51. The Panel identified the following mitigating and aggravating factors:
• A highly capable practitioner in the clinical field;
• A twelve year blemish free career, prior to the Allegation;
• The Registrant has been working since these events with no further complaints;
• She has produced excellent references and testimonials;
• She accepted responsibility for her actions at all times;
• She made full admissions to her employer and to the HCPC at the relevant early stages;
• She has fully engaged with this process;
• She has demonstrated remorse and contrition;
• She has shown some remediation in the intervening period since the events, in that the Registrant has recognised the need for further development in her practice;
• She gained a stronger understanding of the nature of the remediation required in her case during this hearing.
• Accessing a colleague’s confidential medical information without his consent;
• Disclosing that confidential information to another colleague in the same department in which the Registrant, the person she had told and the colleague affected by the disclosure all worked;
• The Registrant failed to identify the risk of that information being spread around the relatively small department;
• The colleague affected by the disclosure had to be informed that his fellow colleagues at work knew the detail of his medical condition;
• The colleague himself may not have known the detail of the information that the Registrant had extracted;
• She failed to ensure she had sufficient funds to pay her re-registration fee, despite having been registered for a number of years;
• She failed to appreciate that she was practising as an unregistered Radiographer and its implications for public protection;
• She lacks full insight into the consequences of her acts and omissions and the methods she could use to avoid such failings in the future.
52. The Panel first considered taking no action and mediation and rejected these outcomes. In the Panel’s opinion, they provide no protection for the public in light of the Panel’s determination on impairment, which requires the monitoring of the Registrant to ensure that in the future she can practise safely and effectively according to the standards expected of a registered Radiographer.
53. The Panel next considered imposing a Caution Order and rejected this sanction. The nature of a Caution Order does not require any Review of the Registrant’s progress, if any, on her insight and remediation. In the Panel’s judgement, a Caution Order would leave the public vulnerable to the risk of repetition of the Registrant’s failings as identified by this case and it would also undermine the public’s confidence in the profession and in the regulator.
54. The Panel considered imposing a Conditions of Practice Order and determined that this would be the most proportionate and appropriate sanction. The failings identified by this case relate to the Registrant’s poor standard of knowledge and skill within the remit of data protection and confidentiality of patients’ records. This case also identified the Registrant’s disorganised approach to her re-registration, both as to payment for it and as to completing the required forms. In the Panel’s judgement, these are all matters that can be addressed by relevant and workable conditions, monitored by her extremely supportive employer and reviewed by the HCPC. In the Panel’s opinion, this would ensure that these lacuna in the Registrant’s practice are addressed so as to complete her professional responsibilities fully and such as to ensure safe and efficient practice in the future.
55. In addition, the Panel noted that the Registrant was open to, and mindful of, improving her practice in these respects in the future. In the Panel’s view, this is helped considerably by her present supportive line manager JS, from whom the Panel heard oral evidence that, with appropriate guidance and supervision, the Registrant has the potential for a full, safe and effective practice in the future. From her helpful oral evidence to the Panel, JS clearly has a high opinion of the Registrant’s capabilities as a Radiographer to the extent that JS considered the Registrant ready for a more advanced role. In addition, the Registrant has produced very high standard references and testimonials that support that position. In the Panel’s judgement, this therefore enables any conditions to be realistic and to be fulfilled in practice as well as in principle.
56. The Panel concluded that the Registrant’s shortfalls identified in this hearing as to her lack of full insight in relation to her duty of confidentiality and in relation to her registration should also be addressed by a Conditions of Practice Order. Conditions framed in a certain way, such as a reflective piece, can ensure that the Registrant should identify what was wrong with her acts and omissions in 2017, why she did them, how they could have been avoided and the mechanisms she can use to avoid them in the future. Also appreciating the consequences of the failures identified by this case to patients and to the wider public.
57. The Panel paid regard to the next sanction available of a Suspension Order and determined that this was disproportionate and one that would clearly be punitive. She has worked successfully for 2 years since the events without further issues arising about the failings identified by this case. Her witness, JS, her present line manager, praised her abilities as a Radiographer and it is clear to the Panel, from JS’s evidence and from her references and testimonials, that this practitioner, with the right structure and guidance, would be of more value kept within the profession rather than excluded from it.
58. Therefore, for these reasons, the Panel determined that the proportionate sanction to protect the public and to uphold public confidence in the profession is that of a 9 month Conditions of Practice Order.
59. This Order must be reviewed before its expiry.
Order: The Registrar is directed to annotate the Register to show that, for a period of 9 months from the date that this Order comes into effect (“the Operative Date”), you, Mrs Che Elizabeth Smith, must comply with the following conditions of practice:
1. Successfully complete data protection training commensurate with your professional role.
2. You must work with your workplace supervisor to formulate a personal and professional development plan designed to address the areas for improvement identified during this process.
3. You must meet with your supervisor to review your progress.
4. You must submit a reflective piece to the HCPC demonstrating application of the data protection principles in practice.
5. Written evidence of completion of 1-4 above should be submitted to the HCPC no later than 14 days prior to the next review.
The Panel makes an Interim Conditions Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
History of Hearings for Mrs Che Elizabeth Smith
|Date||Panel||Hearing type||Outcomes / Status|
|01/07/2019||Conduct and Competence Committee||Final Hearing||Conditions of Practice|