Mr Ervin Kristof

Profession: Radiographer

Registration Number: RA75313

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 24/06/2019 End: 17:00 25/06/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation


Whilst employed at Portsmouth Hospital's NHS Trust in the capacity of a Radiographer

1. On or around 14 March 2018, in relation to Patient A you:

a. Asked Patient A if she was married and/or if she was single, as she was a ‘Miss’, or words to that effect,

b. Obtained Patient A's telephone number from her records:
    I. Without Patient A's knowledge and/or consent.
    II. Without a work-related reason to do so.

c. Sent Patient A a text stating "You look like a really interesting women (sic) :) I hope I meet you soon! ;)" or words to that effect.

2. Your actions as set out in paragraph 1 were sexually motivated.

3. The matters set out in paragraphs 1-2 constitute misconduct.

4. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters:

Amendment

1. At the commencement of the hearing, Mr Bridges on behalf of the HCPC applied to amend the Allegation so as to more accurately reflect the evidence that he intended to adduce. Mr Bridges told the Panel that the Registrant had been informed of the nature of proposed amendments, by a letter dated 12 February 2019 sent to his registered address. However, Mr Bridges informed the Panel that the amendment in that letter differed in a minor respect from that which was set in the Case Summary, which had also been sent to the Registrant. Mr Bridges stated that the amendment which he was seeking to make was that set out in the Case Summary. He stated that the proposed amendments did not change the substance of the case. It made a minor change to particular 1 (a) of the Allegation. He submitted that the amendment, was necessary to ensure that the matters alleged in the Allegation accorded with the evidence which the HCPC proposed to call. He submitted further that the amendment could be made without unfairness to the
Registrant. The Registrant did not object to the proposed amendment. The Panel heard and accepted the advice of the Legal Assessor. He advised that the amendment could be made without unfairness to the Registrant.  The Panel having determined that the amendment could be allowed without unfairness to the Registrant, determined that the Allegation should be amended in the terms set out above.

Admission by the Registrant

2. The Panel noted that in his response to the HCPC Pro-forma and Pre Hearing Information Form, the Registrant admitted allegations 1(a)- (c) and 3 “the Registrant’s admissions” but denied allegations 2 and 4. The Registrant’s admissions though relevant are not conclusive and the Panel determined to hear the entirety of the evidence.

 

Background:

3. The Registrant was a Radiographer employed with Portsmouth Hospital’s NHS Trust [the Trust]. He was first employed on 01 April 2017 as a band 6 CT/MRI Radiographer. He was responsible for scanning patients, dealing with patient care and checking the images.  The Registrant continued in that employment until March 2018. 

4. The allegations in this case relate to an incident which is alleged to have occurred on 14 March 2018. It is alleged that the Registrant asked a patient whom he was treating [Patient A], whether she had a partner or was single or words to that effect. The alleged words are those set out in particular 1(a) of the Amended Allegation. It is alleged that the Registrant had obtained Patient A’s contact details from the Trust’s database. This is the allegation in particular 1 (b) i and ii of the Amended Allegation. It is further alleged that later on 14 March 2018, he sent Patient A a text message in the terms set out in particular 1 (c) of the Amended Allegation.

5. Patient A made a formal complaint to the Trust. Her complaint was set out in an email dated 19 March 2018. In addition she supplied a copy of the text message which the Registrant had sent her. The Panel has seen both documents. The complaint led to an investigation conducted by NW. NW interviewed both Patient A and the Registrant. The Panel has seen the written record of both interviews. A disciplinary hearing was conducted on 27 April 2018. For the purposes of the hearing on 27 April 2019 the Registrant prepared a formal written statement. In addition the Registrant has prepared a further written statement which he has submitted to the Panel. The Panel has read both documents. The Registrant is currently working as a CT/Radiographer with the Salisbury NHS Foundation Trust. He commenced that employment in April 2018. He is employed on a locum basis.

 


Submissions:

6. The HCPC case was supported by the oral evidence of NW and Patient A. Both have made written statements which the Panel has seen.

7. NW works for the Trust as a Superintendent Radiographer. She has been in this role since October 2004. At all material times NW was the Registrant’s line manager. NW received Patient A’s complaint from the Trust’s Patients Advice and Liaison Service [PALS] to which it was initially sent. She then spoke to Patient A on the telephone. NW was asked by the Trust’s Human Resources Department to undertake the investigation.  This she duly did. She conducted an interview by telephone with Patient A on 29 March 2018.  She interviewed the Registrant on 3 April 2018. NW prepared a written record of both interviews. NW supplied both Patient A and the Registrant with a copy of the written record of their interview. Each approved that record and both written records form part of the bundle produced by the HCPC. NW made a written statement dated 19 February 2019.

8. Patient A made written statement dated 4 February 2019. In both her oral evidence and in her written statement she describes the events of 14 March 2018. She recounted the clinical procedure that was undertaken by the Registrant. She said that his clinical behaviour during the scanning was professional.  However, both prior to and after the imaging procedure she said that she thought that he was being flirtatious and “over friendly”. She told the Panel that the Registrant used the words that are set out in particular 1 (a) of the Amended Allegation.  She said that she thought that it was a strange question for somebody to ask and “it was weird”.

9. Patient A described to the Panel how later on 14 March 2018 she received the text message referred to in particular 1(b) of the Amended Allegation. She told the Panel that on receipt of the message she was “completely shocked”. She said that she could not believe that the Registrant had sent such a message. She had not provided the Registrant with any of her contact details. 

10. In responding to questions put by Mr Bridges, Patient A denied that she had done anything to encourage the Registrant to make the remarks that he had made. In particular, she denied saying to the Registrant, when they first met, “oh nice guy”. She denied that she had flirted with the Registrant or that she had put an arm on the Registrant’s shoulder or that she had asked him if she was in a relationship. These questions arose out of allegations made by the Registrant in the written statement that he prepared for the Disciplinary Hearing which took place on 27 April 2018. Patient A emphasised that she was at the hospital to undergo a medical procedure. She robustly denied that her conduct was in any way flirtatious.

11. The Panel was greatly assisted by the evidence of NW. The Panel considered that she was credible, fair and honest. She readily acknowledged when she could not recall a fact or a detail. She reflected before responding to questions. She showed no animosity towards the Registrant. In the opinion of the Panel, NW had carried out a thorough investigation.

12. The Panel was also greatly assisted by the evidence of Patient A. She was credible and consistent in her evidence. There was no substantial differences between her oral and written account of the events of 14 March 2018. She was fair in her responses. She was prepared to accept that some aspects of the Registrant’s remarks could be open to misinterpretation; for example the reference by the Registrant  to her having “good veins”, could have been a reference to the fact that they were suitable for the insertion of a needle, rather than a flirtatious remark. However she stood firm in her recollection of the essential facts and the Panel concluded that she lodged her complaint because she was genuinely concerned to protect others rather than to obtain any personal redress. The Panel accepted her account of the events of 14 March 2018.

13. The HCPC has produced and relied upon an extensive bundle of documents. This bundle included documents which were produced in the course of the internal investigation by the Trust. Within the bundle was the complaint email dated 19 March 2018 from Patient A, the written statement from the Registrant prepared for the Disciplinary Hearing on 27 April 2018 and the records of the interviews with both the Registrant and Patient A. Also included were a number of other documents referred to in the hearing.

14. The Registrant made oral submissions to the Panel. He responded to detailed questions from Panel members. In addition he produced a bundle of documents, which included a number of testimonials from fellow Radiographers, references from his current employers, the Salisbury NHS Trust and certificates to establish training that he has undertaken in 2019. The bundle also comprised a written statement addressed to the Panel regarding the allegations which he presently faces.

15. In summary the Registrant told the Panel as follows;

• That he accepted that he made the remarks that are set out in particular 1 (a) of the Amended Allegation. He said that he had made those remarks in the context of the words and actions of Patient A as he had described in the written statement that he had prepared for the Disciplinary Hearing on 27 April 2018. In that document, he suggested that Patient A had been flirtatious in her contact with him; had said “oh nice guy” when she first saw him; had asked him if he was in a relationship and had put her arm on his shoulder.

• He admitted that he had sent the text message referred to in particular 1(c) of the Amended Allegation. He admitted that he had obtained Patient A’s contact details from the Trust’s data base. He admitted that it was wrong to obtain her contact details from the Trust’s data base and he that knew that at the time.

• He denied that his fitness to practise was currently impaired. He accepted that his behaviour at the time was wrong and amounted to misconduct but maintained that he would never act in such a manner again. He stressed that he was now in a stable relationship. He stated that he undertaken the training evidenced in the certificates comprised within the bundle that he had submitted, namely ‘Sexual Harassment Training for Employees’ and General Data Protection Regulations.

• He denied that his words or his action in sending the message were sexually motivated. He explained that he was lonely. He had hoped to see Patient A again and to get to know her. However he emphasised that he was not necessarily seeking to establish a sexual relationship with Patient A. He emphasised that when Patient A did not respond to his message he did nothing to pursue a relationship. He emphasised that there had been no recent complaints as regards his conduct.

16. The Panel took into account the difficulties that the Registrant had in expressing himself in English, which was not his first language. However the Panel was satisfied that the Registrant was sufficiently competent to understand and express himself in English. The Panel were not convinced by the Registrant’s account of the events that occurred on 14 March 2018. Where there were differences between the recollection of Patient A and the Registrant, the Panel preferred the recollection of Patient A. The Panel was also not convinced by the Registrant’s explanation of his motives in sending the message identified in particular 1 (c)   of the Amended Allegation.

17. The Panel received a detailed submission from Mr Bridges in respect of the facts, misconduct, and impairment. In summary, he submitted as follows:

• That on the evidence that it had received, the Panel was entitled to find all the particulars in the Amended Allegation proved.

• That Registrant’s conduct as set out in the particulars of the Amended Allegation was sufficiently serious as to amount to misconduct.

• That by reason of the facts as set out in Amended Allegation, the Registrant’s fitness to practise is currently impaired.

18. The Panel took into account all the material that had been produced by the Registrant, his oral submissions to the Panel, his responses to questions from Panel members, his two written statements identified above and what he had said in the interviews conducted by NW. The Panel also took into account the testimonials and other documents produced by the Registrant and the Registrant’s closing submissions which were subsequently reproduced in writing.

19. The Panel heard and accepted the advice of the Legal Assessor as to facts, misconduct, and Impairment.

20. The Panel was aware that on matters of fact the burden of proof rests on the HCPC and that the standard of proof is the civil one, namely on the balance of probabilities.

 


Decision on Facts:

21. Having considered all the evidence that it has received and the submissions that it has heard, the Panel makes the following findings;

Particulars 1(a), 1(b) and 1(c); Proved

22. The Panel is satisfied that all these particulars has been proved. In coming to this conclusion, the Panel has noted:

• The “Registrant’s admissions”, which amounted to a clear acceptance of the accuracy of the allegations set out in particulars 1(a)-(c) inclusive.

• The Registrant’s admissions in his responses to questions put by NW, in her interview with the Registrant and in his subsequent written submissions to the Trust. These also amounted to a clear admission to all the facts alleged in these particulars.

• The Registrant’s responses to questions from Panel members and in his oral submissions to the Panel. He accepted that he had acted in the manner alleged in all paragraphs of Particular one.

• The oral and written evidence of Patient A, which the Panel accepts.

• The image of the text message which the Registrant sent Patient A and which is included in the bundle of documents. This contains the words alleged in particular 1 (c) of the Amended Allegation.

• With regard to particular 1 (b); the clear evidence of NW, which the Panel accepted. She stated that there was no work related reason for the Registrant to access Patient A’s contact details from the Trust database and that to do so was contrary to written Trust Policy, of which the Registrant was aware according to the evidence of NW.

Particular 2; Proved

23. The Panel has found this particular proved. The Panel was greatly assisted by the decision of Mr Justice Mostyn in the case of Basson v The General Medical Council [2018] EWHC 505 (Admin). The Panel considered the Registrant’s state of mind at the time that he acted in the manner found proved. The Panel took into account the reaction of Patient A both to the words spoken by the Registrant and to the text message that the Registrant sent her. So far as the former is concerned; the Panel noted that Patient A regarded the words spoken by the Registrant as being weird and inappropriate. So far as the text message is concerned, the Panel noted that Patient A was shocked, thought that the Registrant was seeking a date and that the message was sexually motivated.  She described the experience to the Panel as “horrible”.

24. The Panel concluded that the Registrant’s conduct was sexually motivated in that when acting as set out in particulars 1 (a) - (c) of the Amended Allegation, the Registrant had in mind the possibility of establishing a sexual relationship with Patient A. In the opinion of the Panel there is no other credible explanation for the Registrant sending the message set out in particular 1 (c) of the Amended Allegation. That conclusion is reinforced by the words that the Registrant used to Patient A as set out in particular 1 (a) of the Amended Allegation. These words were wholly inappropriate in the context of a medical procedure being conducted by a Radiographer and were suggestive of a sexual motive.

25. The Panel also noted that the Registrant in his interview with NW admitted that in March 2018 that he was lonely and was seeking a girlfriend.  This state of mind is supported by the Registrant’s continued insistence that his behaviour was partly in response to Patient A being flirtatious with him. The Panel concluded that the Registrant was courting Patient A with the possibility of a sexual relationship in mind.

26. All of the above considerations were reinforced by the comment from the Registrant that he would not repeat the conduct not only because it was unprofessional, but also because he was now in a stable personal relationship.

27. The Panel also noted the comment from the Registrant to the effect that he would have wanted to get to know Patient A before contemplating a sexual relationship with her.

28. In all the circumstances the Panel concluded that the potential of a sexual relationship was a motivation behind the conduct of the Registrant 

 


Decision on Grounds:

29. The Panel next considered whether the matters found proved amount to Misconduct; if so, whether the Registrant’s fitness to practise is thereby impaired. The Panel took into account the submissions made by Mr Bridges. The Panel also took into account the submissions made by the Registrant and all the material that he has produced.

30. The Panel heard and accepted the advice of the Legal Assessor. The Legal Assessor referred the Panel to relevant case law. The Panel is aware that any finding of Misconduct, and Impairment are matters for the independent judgement of the Panel and that, in respect of both issues, there is no burden or standard of proof. 

The codes of Practice

31. Having heard the submissions of Mr Bridges the Panel found that the Registrant was in breach of the provisions set out in paragraphs 1.1, 5.1 and 9.1 of the HCPC Standards of Conduct, Performance and Ethics (the 2016 version);

• Provides that you must treat service users and carers as individuals, respecting their privacy and dignity.

• 5.1 provides that you must treat information about service users as confidential.

• 9.1 provide that you must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

32. The Panel concluded, having regard to the guidance given by the courts in the relevant authorities, that the facts that have been found proved, are a serious departure from the standard of conduct that is properly to be expected of a Radiographer. The Registrant’s actions which were sexually motivated, albeit at a low level, were an abuse of his position of trust and of the duty of care that he owed to Patient A. These actions also transgressed professional boundaries in a manner that was unprofessional and wrong. The Registrant used the Trust’s database to obtain the contact details of Patient A. To do so was clearly wrong and unprofessional, as the Registrant has himself acknowledged. The Registrant’s conduct caused Patient A to be shocked and upset. She was seriously concerned as to how the Registrant might conduct himself to future patients. The Panel accepted that it was this concern that caused her to make a complaint to the Trust. The Registrant was also in breach of the Standards of Conduct identi
fied above. The Panel has therefore determined that the facts found proved are sufficiently serious as to amount to Misconduct on the part of the Registrant.

 


Decision on Impairment:

33. Having determined that the Registrant’s conduct, as found proved, amounts to Misconduct, the Panel proceeded to consider whether the Registrant’s fitness to practise is thereby impaired. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise. In considering this issue, the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin]. The Panel considered whether there was a risk that the Registrant would in the future act in a way similar to that found proved. In this context the Panel also considered the case of Cohen v General Medical Council [2008] EWHC 581 (admin). The Panel further considered whether public confidence in the profession, in the HCPC as its regulator and the need to maintain proper standards of conduct, would be undermined if a finding of current impairment was not made. In addressing the question of impair
ment the Panel also took into account the guidance that has been issued by the HCPTS.

34. The Panel first considered whether there was a risk that the Registrant would repeat the conduct that it had found proved. The Panel came to the conclusion that the risk of repetition was low. Accordingly the Panel did not find impairment on this ground, sometimes referred to as the “personal component”. In coming to this conclusion the Panel noted and took into account the following; 

• The reference from the Registrant’s current line manager at Salisbury Hospital. The manager stated that the Registrant “is professional in his manner when speaking to and engaging with his patients”. The Panel did note that there was no evidence that the author of the reference was aware of the precise nature of the allegations made against the Registrant.

• There was no suggestion of any similar conduct by the Registrant either before or after March 14 2018.

• The supportive nature of the testimonials from fellow Radiographers which had been produced by the Registrant. The Panel again noted that there was no evidence that the authors were aware of the precise nature of the allegations made against the Registrant.

• The Panel noted the steps taken by the Registrant to address the concerns in the allegation. The Registrant had undertaken two courses in February 2019 with regard to the General Data Protection Regulations and Sexual Harassment for Employees. The Panel was prepared to accept this as some evidence of both insight and remediation although the sexual harassment would appear to relate to employees and not patients.   

• The Panel placed considerable weight on the evidence of the Registrant himself. He was vehement that he would never repeat the conduct and that he had learnt his lesson. Whilst the Panel did not think that the Registrant had developed full insight, it noted his early admissions of the facts and expression of remorse. From his oral and documentary the Panel accepted that the Registrant was now aware that he had acted in a way that was thoroughly unprofessional and damaging to the reputation of his profession. He also said that he was sorry that he hurt Patient A. The Panel did not think that he would repeat his conduct.

35. However the Panel has concluded that public confidence in the profession of a Radiographer and in the HCPC as its regulator, would be undermined if a finding of impairment was not made. The Panel also concluded that the need to maintain proper standards within the profession required a finding of impairment. Accordingly and for these reasons, sometimes referred to as the “public component” the Panel has concluded that the Registrant’s fitness to practise is presently impaired. The Panel’s considerations  include the following;

• Sexually motivated behaviour of the kind established in this case, breaches fundamental tenets of the profession of Radiographer, namely to maintain appropriate professional boundaries and to ensure that conduct justifies public trust and confidence in the profession.

• A patient was caused considerable distress and was concerned by the possible conduct of the Registrant to future patients.

• The Registrant’s behaviour was a serious departure from the Codes of Conduct identified above.

• A failure on the part of the Panel to hold that the Registrant’s conduct as found proved, did not amount to present impairment, would undermine public confidence in the profession and in the HCPC as its regulator. A finding of no impairment would not be compatible with the need to uphold proper standards of conduct on the part of Radiographers.

36. Accordingly the Panel find the amended Allegation to be well founded.

 


Decision on Sanction:

37. Having concluded that the Registrant’s fitness to practise is impaired, the Panel proceeded to consider what, if any Order, is appropriate and proportionate, having regard to its findings as set out above and in particular, to address the public interest that is engaged in this case.

38. Mr Bridges made submissions on behalf of the HCPC. He emphasised that the decision as to the appropriate sanction to be imposed was a matter for the judgement of the Panel and the HCPC did not intend to make any specific submissions as to the appropriate sanction. He reminded the Panel of the principle of proportionality. He said that the Panel should have regard to the Indicative Sanctions Policy [ISP] published by the HCPC in March 2017. He reminded the Panel that it should have regard to both aggravating and mitigating factors. The Registrant also made submissions to the Panel and the Panel gave careful consideration to what he said. The Registrant emphasised that there would be no repetition of his conduct in “any way or form”, his remorse at what had happened, the fact that it was an isolated incident and he asked the Panel to give serious consideration to the making of a Caution Order.

39. The Panel has considered all the submissions and evidence that it has heard and read. It has accepted the advice of the Legal Assessor. It has taken account of the ISP. It kept in mind that the purpose of a sanction was not to be punitive but to protect the public and to sustain the public interest. The Panel was very conscious of the deterrent effect that an appropriate order could have on other registrants, the need to safeguard the reputation of the profession concerned and also the need to sustain public confidence in the regulatory process itself.

40. The Panel took into account the principles of proportionality, balancing the interests of the Registrant with the public interest.

41. The Panel also took into account the relevant aggravating and mitigating factors.

42. As regards the aggravating factors;  the Panel noted: 

• The Registrant’s conduct toward Patient A was a breach of trust and was unprofessional.

• In accessing Patient A’s contact details, the Registrant was acting contrary to the known policies of the Trust. 

• The Registrant sought to explain his actions with the suggestion that Patient A had acted flirtatiously toward him. The Panel rejected this explanation.

43. As regards mitigating factors; the Panel noted that:

• The incident on 14 March 2018 was isolated and has not been repeated.

• Whilst any misconduct by a registrant, which is of a sexual nature, is a serious matter, especially when it involves a patient of that registrant, the conduct in this case was at the lower end of the spectrum, did not involve any inappropriate touching and was not further pursued.

• The Registrant has made an early admission of the matters set out in particulars 1 and 3 of the Amended Allegation.

• The Registrant has accepted that his conduct was unprofessional and his actions were wrong. The Panel accepted the Registrant’s assurance that there would be no repetition “in any way or form”.

• There is evidence of insight and some remediation. The Panel was struck by the fact that toward the conclusion of these proceedings the Registrant has shown much greater insight than was apparent at earlier stages. In particular the Registrant acknowledged the serious impact that his actions had had on Patient A’s sense of personal privacy, on the reputation of the NHS and on that of his profession. The Panel accepted these manifestations of insight were genuine.

• The Registrant took no action to pursue his approach to Patient A after she had made no response.

• The Registrant was otherwise a man of good character and is well regarded by those Radiographers and employers who provided testimony.

44. The Panel has concluded that to take no action would be wrong. Such an outcome would be inappropriate having regard to the facts of the case. It would not protect the public or   maintain public confidence in the profession or in the HCPC as its regulator. It would not send the appropriate message to the public or to fellow practitioners.

45. The Panel next considered making a Caution Order. It has concluded that a Caution Order for a period of 18 months is the appropriate Order for the Panel to make. In coming to this conclusion the Panel kept in mind its previous findings that the risk of repetition was low. The Panel’s conclusion that the Registrant’s fitness to practise was impaired, was based on the wider public interest concerns previously outlined rather than on the need to protect the public. The Panel considered the guidance set out in the ISP. The Registrant’s misconduct was isolated, limited in nature and there is a low risk of recurrence. The Registrant has now shown increased insight and has also taken steps to remediate his failings.

46. Moreover because the Panel has concluded that the risk of repetition is low, Conditions of Practise are not appropriate. Furthermore the Panel has concluded that a period of suspension would be disproportionate.  Accordingly and balancing the relevant considerations and taking account of the principle of proportionality, the Panel makes a Caution Order for a period of 18 months. The length of the Caution Order is intended to underline the importance of all registrants, in particular this Registrant, adhering to the fundamental tenets of the profession and of avoiding the unprofessional conduct manifest in this case.

 

Order

Order: That the Registrar is directed to annotate the register entry of Mr Ervin Kristof with a caution which is to remain on the register for a period of 18 months from the date this order comes into effect

Notes

No notes available

Hearing History

History of Hearings for Mr Ervin Kristof

Date Panel Hearing type Outcomes / Status
24/06/2019 Conduct and Competence Committee Final Hearing Caution