Mr Winston Abebrese

Profession: Radiographer

Registration Number: RA67756

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 10/06/2019 End: 17:00 13/06/2019

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst employed by Brighton and Sussex University Hospitals NHS Trust, in the capacity of Radiographer, on 20 December 2017, you:

1. obtained a service user's personal contact details from their imaging referral form;

2. sent two personal messages to the service user via the WhatsApp application.

3. The conduct described in particulars 1 and 2 was sexually motivated.

4. The matters alleged in particulars 1 - 3 constitute misconduct.

5. By reason of your misconduct, your fitness to practise as a Radiographer is impaired.

 

Finding

Background
1. The Registrant is a registered Radiographer with the HCPC.

2. The Registrant was employed as a Band 6 Radiographer by Brighton and Sussex University Hospital Trust from 1 February 2016. He was responsible for patient facing activities and undertaking imaging requests such as X-rays and CT scans.

3. On 20 December 2017, Patient A attended Hove Polyclinic for a plain chest X-ray. The Registrant performed a chest X-ray. He had never met Patient A before.

4. On 21 December 2017, Patient A made a complaint to the hospital that she had been contacted on WhatsApp messenger by the Registrant following her X-ray on the previous day.

5. The content of the two messages were as follows:
a) “Hey”;
b) “I’m wyn the guy that did your x-ray this morning. I really fancy you and wanted to chat but was bit busy. Just wanted to know if u single and fancy chatting more?”; 

6. The Registrant as part of his role had access to Patient A’s Imaging Referral Form. This form sets out the reason for the imaging request and also the patient’s personal details, including their phone number.

7. Following the complaint made by Patient A, an internal investigation commenced. The Registrant was interviewed and was shocked and upset when informed about the allegations. He made full admissions from the outset and apologised for his actions which he admitted at the time were highly inappropriate and unprofessional.  The Registrant was given a final written warning by the Trust and the Trust imposed conditions on when and where he could work.

Decision on facts
8. In coming to its decision on facts the Panel had regard to all the evidence both oral and documentary. It noted that it is for the HCPC to prove its case and that there was no burden on the Registrant to prove anything. The standard of proof to be applied to the allegations is that of the balance of probabilities i.e. whether it is more likely than not to have occurred.

9. The Panel took into account the submissions made on behalf of the HCPC and those of the Registrant. It had regard to the advice of the Legal Assessor.

10. The Panel heard oral evidence from the following witness on behalf of the Council:

Mr RS - Imaging Services Manager at the Trust at the relevant time, who undertook the Trust investigation.

The Registrant also gave evidence to the Panel.

11. The Panel found Mr RS to be a credible and honest witness and accepted his evidence.

12. At the outset of the hearing the Registrant admitted the facts of the case. In evidence, the Registrant fully accepted the facts of the case. He explained the personal background to events on that day. Shortly after sending the WhatsApp messages he deleted Patients A’s contact details from his telephone. The Panel found him to be an open and honest witness who did not seek to minimise his conduct or to blame others. He was deeply apologetic and accepted full responsibility for his actions.


Particulars 1 and 2 – found proved
13. The Panel had regard to the evidence of Mr RS and the Panel had sight of the WhatsApp messages. During the Trust’s Investigation the Registrant admitted obtaining Patient A’s contact details and that he had used his personal mobile telephone to contact her.

14. The Panel also took into account the Registrant’s admissions to Particulars 1 and 2.

15. These Particulars are proved.

Particular 3 – found proved
16. The Panel had regard to the content of the text messages. Further, the Registrant at the outset of this hearing admitted this Particular. In evidence he told the Panel he accepted that he sent the messages in the hope of establishing a relationship with Patient A. The Panel considered that the nature of the communication and its content demonstrate that the conduct was sexually motivated in that it was in pursuit of a future sexual relationship.

17. This Particular is proved.

Decision on grounds
18. On the basis of the facts found proved, the Panel went on to consider whether those facts amounted to misconduct. It took into account the submissions made by Ms Mond Wedd on behalf of the HCPC and it had regard to the oral evidence of the Registrant and his submissions. The Registrant accepted that the facts amount to misconduct. The Panel also had regard to the advice of the Legal Assessor.

19. In considering this matter the Panel exercised its own judgement. The Panel also took into account the public interest which includes protection of service users, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

20. The Panel had regard to the HCPC standards of proficiency for Radiographers in force at the time and it considers that the Registrant breached the following standards: 

Registered Radiographers must:
• 2 be able to practise within the legal and ethical boundaries of their profession.

• 2.1 understand the need to act in the best interests of service users at all times.

• 2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing.

• 3.1 understand the need to maintain high standards of personal and professional conduct.

• 7 understand the importance of and be able to maintain confidentiality.

• 10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines.

21. The Panel also considered that the Registrant breached the following HCPC Standards of conduct, performance and ethics:

•  1 Promote and protect the interests of service users and carers.

• 1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.

• 1.7 You must keep your relationships with service users and carers professional.

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

22. The Panel considered that the findings in this case are a serious falling short of the standards of conduct expected of a registered Radiographer. The Registrant breached Patient A’s confidentiality by obtaining her contact details from her patient record using his own telephone to contact her. This was entirely inappropriate, amounting to a breach of the fundamental tenets of his profession.

23. Patient A was very concerned to learn that the Registrant had accessed her personal records and obtained her personal contact details. On the following day she reported the matter to the Trust.

24. The Registrant knew that it was highly inappropriate to communicate with a patient in this way. The realisation of what he had done was apparent to him very quickly, as shortly after sending the messages he deleted Patient A’s contact details from his telephone. His conduct undermined the trust that patients are entitled to hold in Radiographers who hold sensitive information about them. His conduct caused concern to Patient A, it failed to uphold proper standards of conduct and it undermined public confidence in the Radiography profession.

25. The Panel had no hesitation in concluding that the Registrant’s behaviour referred to above was serious and amounted to misconduct.

Decision on impairment 
26. The Panel has taken into account that the purpose of these proceedings is to protect the public against the acts and omissions of those who are not currently fit to practise. In approaching this task, the Panel applied its own professional judgment. The Panel had regard to the practice note issued by the HCPTS. The Panel took account of the case of the CHRE v Grant [2011] which reminds Panels of the need to consider the public interest. In particular the Panel noted paragraph 74;

“In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant Panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”

27. The Panel also considered the case of Cohen-v- GMC [2008] EWHC 581 (Admin). At paragraph 65 of Cohen Silber J. states “it must be highly relevant in determining if a doctor’s fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated”.

28. The Panel first considered the personal component of impairment. The Registrant was apologetic and expressed remorse. He explained the background to the event which arose from a period of personal stress, however he did not seek to diminish his responsibility for his conduct. He fully accepted that what he did was totally unacceptable. He told the Panel, that he has received counselling, he now has coping strategies in place and he has learnt to manage his personal problems without them affecting his professional work. The Panel noted that this was a one off impulsive act and considered that the risk of repetition was low given the Registrant’s insight and the efforts that he has made to ensure that such misconduct would not happen again.

29. The Panel took into account the information from the Trust’s Lead Superintendent Radiographer to the effect that, since the events which led to this Allegation, the Registrant has worked without further incident.

30. In respect of the public component, the Panel was of the view that the public would be very concerned to know that the Registrant behaved in the way that he did. His misconduct undermined public confidence in the profession and failed to uphold proper standards of conduct and behaviour.

31. The Panel concluded that a finding of current impairment was required to uphold public confidence in the profession and the Regulator, by sending a clear message to the profession and the public that the misconduct found in this case was unacceptable, and undermined the public’s trust in the Radiography profession.

32. The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired on the public component of Impairment.

Decision on sanction
33. In considering what, if any, sanction to impose, the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor. It also took into account the submissions of both parties.

34. Ms Mond Wedd identified to the Panel its powers and referred the Panel to the guidance. The Registrant asked the Panel to give him the opportunity to remain in practise as a Radiographer. He said he intended never to repeat his misconduct and he realised the negative impact his conduct has had on so many people. He invited the Panel to impose no order or a Caution Order.

35. The Panel notes that the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not currently fit to practise. It is part of the public interest not to permanently deprive the public of an otherwise competent practitioner.

36. In considering the appropriate sanction if any, the Panel had regard to the aggravating and mitigating factors in this case.

37. In respect of the aggravating features of the case, the Registrant had abused his position of trust as a Radiographer and in so doing he breached the fundamental tenets of his profession. Further, Patient A was reported to have been “upset and frightened by the unsolicited message”.  He breached the boundaries of the appropriate relationship between a healthcare professional and their patient.

38. In mitigation the Panel noted that the Registrant admitted the Allegation at the outset of this case and he was fully engaged with his employer throughout its investigations. The Registrant had expressed remorse and shown insight into the effect of his misconduct on others. He wrote letters of apology to his employer and to Patient A. The Panel also accepts that there are no previous findings against the Registrant and no suggestion that he was not in every other respect an able Radiographer. He fully accepted that what he did was totally unacceptable. He told the Panel, that he has received counselling, he now has coping strategies in place and he has learnt to manage his personal problems without them affecting his professional work. The Panel noted that this was a one off impulsive act and considered that the risk of repetition was low given the Registrant’s insight and the efforts that he has made to ensure that such misconduct would not happen again. The Panel also took into account the information from the Trust’s Lead Superintendent Radiographer to the effect that the Registrant has “cooperated fully and acted in a professional manner at all times since the incident”, also noting that “Winston does appear remorseful for his actions and has learnt from the incident”.

39. The misconduct in this case was a one off impulsive act. The Registrant admitted fault immediately to his employers and he had made full admissions to the HCPC. The Panel is of the view that the misconduct identified is highly unlikely to be repeated.

40. The Panel considered whether it would be appropriate to take no action. It concluded that to take no action would be inappropriate given the serious falling short of the standards of conduct expected of a registered Radiographer. He breached the trust that Patient A was entitled to expect of him and his misconduct undermined public confidence in the profession.

41. The Panel therefore went on to consider the available sanctions in ascending order.

42. The Panel next considered whether a Caution Order would be sufficient. The Panel noted that the ISP 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 remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.

At the Panel’s discretion, a caution order may be imposed for any period between one and five years. In order to ensure that a fair and consistent approach is adopted, Panels should regard a period of three years as the ‘benchmark’ for a caution order. However, as Panels must consider sanctions in ascending order, the starting point for a caution is one year and a Panel should only impose a caution for a longer period if the facts of the case make it appropriate to do so. A Panel’s decision should specify the duration of any caution order it imposes and its reasons for setting that duration.

43. The Panel concluded that a Caution Order for a period of three years was the appropriate and proportionate sanction in this case. It considered that this was the appropriate sanction as there was a minimal risk of repetition and the Registrant has coping mechanisms in place to deal with his personal issues. He fully accepts that what he did was wrong. The Panel determined that the period of three years will send out a clear message to the public and the profession that such misconduct is unacceptable.

44. The Panel went on to consider the imposition of a Conditions of Practice Order; however, it concluded that such an order would be disproportionate. The Panel also took into account that the Registrant has been working under his employer’s imposed conditions since the misconduct was identified by the Trust. His conduct had been appropriate and professional during this period. The Panel was also of the view that the imposition of a Suspension Order would be inappropriate and disproportionate given the Registrant’s level of insight.

45. The Panel imposes a Caution Order for a period of three years.

Order

That the Registrar is directed to annotate the register entry of Mr Winston Abebrese with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Winston Abebrese

Date Panel Hearing type Outcomes / Status
10/06/2019 Conduct and Competence Committee Final Hearing Caution