Mr Chesstty M Muntanga

Preliminary matters:

1. Mr Foxsmith made an application to amend allegation 2 by substituting the word “Radiographer” for “Radiologist” so that the allegation would read “Whist registered as a Radiographer, you…”. The Registrant did not object to the proposed amendment, of which he had been notified in advance by letter dated 12 June 2019. The Panel was satisfied that the purpose and effect of the proposed amendment was to correct a typographical error and that the Registrant would not be prejudiced thereby. The Panel therefore granted the application to amend.

2. During the evidence of witness HW, Mr Foxsmith applied to amend particular 5a by substituting the word “artery” for “vein” so that the wording of the particular was consistent with the evidence of HW. The Registrant did not object to the proposed amendment. The Panel was satisfied that it could be made without undue prejudice to the Registrant and that it would be desirable to amend the particular so that the Panel was not prevented from determining a factual issue as a result of the use of an incorrect word. Accordingly, the Panel granted the application to amend.

Background:

3. The following background information is based on unchallenged evidence adduced before the Panel in the course of the hearing from documentary and oral evidence.

4. The Registrant is registered with the HCPC as a radiographer.

5. On the Registrant’s evidence, he qualified as a radiographer in Zambia in 1979 by obtaining a diploma in radiography, which was subsequently recognised in the United Kingdom. He further stated that he had obtained a BSc degree in radiography at Kingston University and held a number of senior posts as a radiographer.

6. Between 26 March 2013 and 10 April 2013 the Registrant was employed at Norfolk and Norwich University Hospitals Foundation Trust in some capacity relating to his registration as a radiographer. There were concerns about the Registrant’s performance in that capacity which led to fitness to practise proceedings before the HCPC. On 7 May 2013 the HCPC sent a letter to the Registrant informing him that an allegation had been made against him, which was being investigated. On 30 August 2013 the HCPC sent a letter to the Registrant informing him that the allegation was being passed to an Investigation Committee Panel to consider whether there was a case for him to answer.

7. By letter dated 10 September 2013 the Registrant confirmed to the HCPC that he had received their letter dated 30 August 2013.

8. During the HCPC investigation proceedings referred to above, the Registrant applied for work as a Band 7 sonographer at North Middlesex University NHS Trust. The application form which the Registrant completed online asked whether he was currently subject to any fitness to practise investigations by a licensing or regulatory body.  To that question, the Registrant selected the answer “no”. It is alleged by the HCPC that the Registrant’s answer was untrue and dishonest. This is the subject of Allegation 2.

9. The HCPC investigation referred to above resulted in fitness to practise proceedings and a substantive hearing before a panel of the Conduct and Competence Committee between 28 September 2015 and 2 October 2015. An appropriately redacted record of that decision was before the Panel. The Panel was unaware of the particulars of allegation, save that that they resulted in findings that the Registrant’s fitness to practise was impaired by reason of misconduct and lack of competence. The panel on 2 October 2015 imposed a Suspension Order for a period of 12 months.

10. In his evidence to the Panel, the Registrant stated that he continued to be subject to a Suspension Order until August 2017.

11. In or about September 2017 the Registrant submitted an application online for a position as a Band 7 Sonographer with Salford Royal NHS Foundation Trust (the Trust). The application form did not specifically ask whether he was, or had been, subject to any fitness to practise proceedings. However it did ask about his previous employment history.

12. In completing the application form, the Registrant stated that he was employed by Sonographers Medical Ltd between November 2015 and June 2017. This statement was factually incorrect as the Registrant was continuously subject to a Suspension Order throughout this period. The HCPC alleges that the Registrant’s statement was untrue and dishonest. This is the subject of particulars 7 and 8 of Allegation 1.

13. The Registrant was interviewed for the post by KH, the Lead Sonographer at the Trust, on 8 September 2017. The Registrant did not disclose during that interview, or during his employment by the Trust, that he had previously been subject to fitness to practise proceedings as a result of which he had been subject to a Suspension Order from October 2015 to August 2017. The HCPC alleges that his non-disclosure was dishonest. This is the subject of particulars 6 and 8 of Allegation 1. On the contrary, he gave an account of his qualifications and experience which led to him to achieve almost full marks by reference to the Trust’s criteria and a glowing feedback from  KH to her supervisor, JP.

14. The Registrant started employment with the Trust on 6 November 2017. On the first 2 days of his employment he underwent a Trust induction.

15. As a Band 7 sonographer, the Registrant worked with outpatients, inpatients and patients referred to the Trust by GPs. In his role, he was responsible for carrying out a wide range of ultrasound scans and issuing clinical reports on the same. He was expected to conduct scanning in three areas: general medical, gynaecological and vascular.

16. Within a matter of days into his employment, KH had serious concerns about the Registrant’s competence, particularly in relation to trans-vaginal scans and his apparent inability to report effectively.

17. On 10 November 2017, in the presence of another radiographer, SS, the Registrant conducted an ultrasound scan on Patient A in such a way as to cause Patient A to question his competence. This is the subject of particular 1 of Allegation 1.

18. KH had further cause for concern in relation to the Registrant’s scanning of Patient B on 9 November 2017 and Patients C and D on 15 November. These concerns are the subject of particulars 2, 3 and 4 of Allegation 1.

19. On 15 November 2015, KH received a telephone call from Patient A in which she complained about the way in which the Registrant had conducted the scan on 10 November 2017 and what she considered to be his inappropriate physical handling of her in various respects.

20. KH was so concerned about the Registrant’s apparent lack of competence that on 14 November 2017 she carried out a search of his name on the internet. She came across an article in relation to the Registrant’s lack of competence in gynaecology and trans-vaginal scanning on the website of the Society of Radiographers, which also stated that he had been suspended by the HCPC.

21. KH reported her concerns to JP. Together they discussed their concerns with the Registrant at a meeting on 17 November 2017. A decision was taken to undertake a formal supervision and audit of the Registrant’s work. This was carried out by KH and HW, a senior sonographer employed by the Trust. The procedure adopted was for KH and HW to observe and supervise the Registrant conducting and recording scans and to time how long it took him to complete the procedure. While he wrote up his reports electronically, his supervisor either KH or HW, rescanned the patient and checked the Registrant’s report. The record of observations by KH and HW were then recorded on an Ultrasound Competency Assessment Form, on which they would record whether they agreed, disagreed or partially agreed with the Registrant’s findings.

22. This audit demonstrated poor ultrasound skills and/or knowledge in relation to scans carried out by the Registrant in relation to 10 patients, identified as Cases 1-10. These are the subject of particulars 5a-5i of Allegation 1.

23. In addition to specific concerns relating to Cases 1-10, there was a common concern in relation to Cases 1, 5, 7 and 8 that the Registrant took too long to scan and/or complete the examination. This is the subject of particulars 5j(i), (ii), (iii) an (iv) of Allegation 1.

24. On 27 November 2017, KH and JP met with the Registrant to discuss their concerns arising from the audit. In the course of that interview the Registrant was asked whether any other Trust at which he had provided ultrasound previously had flagged concerns over his ultrasound skills. He replied that they had not. The HCPC alleges that his answer was untrue and dishonest. This is the subject of particular 6 and 8 of Allegation 1.

25. The Trust reported its concerns about the Registrant’s practice to the HCPC, resulting in the current proceedings.

The evidence in the case

26. The HCPC provided the Panel with a bundle of documents, including the statements and exhibits of the four witnesses referred to above, namely JP, HW, KH and Patient A, each of whom gave oral evidence. In addition the Panel received in evidence from the HCPC the witness statements of ZA, PH and MW, whose evidence was unchallenged.

27. The Registrant provided the Panel with a detailed written response to the allegations and also gave oral evidence.

28. The first witness to give evidence was JP. The Panel found him to be a credible and reliable witness who gave his evidence clearly and in a straightforward manner. However, his evidence had little direct bearing on the issues of fact which the Panel had to determine.

29. The Panel found HW to be an honest witness. However, she had little recollection outside her witness statement and was vague in her recollection when pressed on details.

30. The Panel found KH to be an honest witness. She gave the impression of being extremely competent and well qualified. In conducting the audit, her priority was patient safety and, in consequence, she altered the Registrant’s recording of his scans to provide a correct assessment to the patients’ GPs, thereby inadvertently destroying first-hand evidence in support of particulars 5a-5i of Allegation 1. It was also unfortunate that, prior to carrying out the audit, she had discovered through an internet search that the Registrant had previously been found by an employer to lack competence. In these circumstances, it was difficult for her to give the appearance of impartiality when conducting the audit, even if she was in fact objective in her findings.

31. The Panel found Patient A to be an honest and credible witness. Her account of what took place on 10 November 2017 was corroborated by her almost contemporaneous account to KH. This was entirely consistent with her evidence to the Panel.

32. The Panel found the Registrant’s evidence to lack coherence, consistency or credibility. He was frequently evasive in his answers to questions from Mr Foxsmith and the Panel. Where his evidence differed from that of the HCPC witnesses, the Panel preferred the latter.

Burden and standard of proof

33. The Panel was mindful that the burden of proof was on the HCPC and that the civil standard of proof applied, so the particulars of the allegation must be proved on the balance of probabilities.

34. The Panel took into account submissions of Mr Foxsmith on behalf of the HCPC and the Registrant’s submissions. The Panel accepted the advice of the Legal Assessor.

Particulars 5a-5i of Allegation 1: No case to answer

35. At the close of the HCPC’s case, the Panel considered, of its own initiative – as the Registrant was unrepresented - whether the Registrant had a case to answer in relation to particulars 5(a)-(i) of the allegation. The Panel was concerned as to the reliability of the evidence adduced by the HCPC in support of those particulars and whether it could be relied upon to support findings of fact.

36. The Panel had the following concerns:

• Particulars 5a-i were based on an audit of the Registrant’s practice carried out by HW and KH in November 2017. HW audited the Registrant’s ultrasound scans on two patients: Cases 1 and 2. KH audited the Registrant’s ultrasound scans on Patient Cases 3-10 inclusive;

• Prior to being appointed to carry out the audit, KH ascertained by means of an internet search that the Registrant had been disciplined by a previous employer for lack of competence as a sonographer;

• On 15 November 2017, prior to carrying out the audit, KH recorded in a document generated by the Trust’s disciplinary procedures a record of a complaint about the Registrant which she had received by telephone from Patient A;

• HW and KH each made witness statements dated May 2019 in which they respectively relied on patient records as evidencing contemporaneously alleged errors by the Registrant in carrying out and recording ultrasound scans on patients;

• On close examination, the patient records did not in fact evidence these alleged errors. In fact, they appeared to show that scans had been correctly carried out and recorded. KH’s explanation for this was that she had altered the records to correct the Registrant’s errors when he made them, so that the records no longer showed his original mistakes, However, the “corrected” records appeared under the Registrant’s name, rather than KH’s name;

• HW and KH also relied on a table which summarised the results of the audit. They both stated that this table had replicated handwritten notes which they had made at the time of carrying out the audit. However, the handwritten notes no longer existed. The Registrant had not been asked to verify this table.

37. Mr Foxsmith acknowledged that the patient records did not corroborate the evidence of HW and KH, However, he submitted that the Panel could disregard these records and rely on the oral evidence of the witnesses as corroborated by the table which summarised the result of the audit.

38. The Panel considered that the reliance placed by HW and KH in their witness statements and oral evidence, as demonstrating the Registrant’s alleged failures in conducting ultrasounds and recording the results, was undermined by the records themselves.

39. The contemporaneous handwritten records were no longer available.

40. As a result, the HCPC could only rely on the evidence of the HW and KH. The Panel noted that their witness statements were made in May 2019, some 18 months after the events in question.

41. The Panel found HW to be unconfident as a witness. She appeared to have little recollection of events outside her witness statement and tended to become vague when challenged.

42. The Panel considered that it would be unsafe to rely on KH’s evidence without corroboration, given that, prior to carrying out the audit, she had ascertained that the Registrant had been disciplined for lack of competence by a previous employer and that she had already recorded Patient A’s complaint in the format of a Trust disciplinary statement. In the circumstances she was not the ideal candidate for carrying out an objective and unbiased audit of the Registrant’s case work.

43. In all the circumstances , the Panel concluded that it would be unsafe to rely on the HCPC’s evidence in relation to particulars 5(a)-(i) inclusive. Accordingly, the Panel found that the Registrant had no case to answer in relation to those particulars.

The Panel’s findings of fact in relation to the other particulars of Allegation 1 and Allegation 2

Particular 1

On 10 November 2017 whilst attending to Patient A, you:
a. Inappropriately touched her, in that you rested your arm on her breasts during the examination;    
Proved

b. Applied significant and/or unreasonable pressure on Patient A’s arm when transferring her from the chair to the ultrasound couch;
Proved

c. Applied significant and/or unreasonable pressure to her neck whilst scanning.
Proved

44. With regard to particular 1a, Patient A gave evidence that, when carrying out the scan, the Registrant leant over her, so that the weight of his body rested on her upper body. This made her feel extremely uncomfortable. She said that when SS, the other locum sonographer, did the same scan, he avoided touching her chest. The Registrant in his evidence said that he was unaware of having done this but said that it was difficult to avoid.

The Panel accepted Patient A’s evidence and found this particular proved.

45. With regard to particular 1b, Patient A said that, when escorting her from the chair to the ultrasound couch the Registrant grabbed her upper arm, causing her pain. She stated that she had no need any assistance in walking from the chair to the couch. The Registrant gave evidence that he had taken Patient A by the arm because she appeared “wobbly” and unsteady on her feet. He denied using undue pressure. The Panel preferred the evidence of Patient A and found this particular proved.

46. With regard to particular 1c, Patient A gave evidence that, when carrying out the scan on her neck, the Registrant applied significant pressure, thereby causing her much pain. She said that, when SS carried out the same scan, he had kept her left arm elevated and used very light pressure while scanning. KH in her evidence said that this procedure should not have caused any pain at all and that, if unnecessary pressure was applied, there would be a risk of bruising and pain. The Registrant asserted in his evidence that he only applied such pressure as was necessary to carry out the scan.

The Panel preferred the evidence of Patient A and KH and found particular 1c proved.

Particular 2

On 9 November 2017, whilst scanning Patient B with an Acute Kidney Incident (AKI) you incorrectly reported that the kidneys were normal.

Proved

47. KH gave evidence in support of this particular. She had observed the Registrant carrying out the scan on Patient B, who had suffered an acute kidney incident. The Registrant reported that the kidneys of this patient were normal, whereas in fact they were plainly abnormal. Patient B had to be rescanned by a radiologist who reported lobar Nephronia, which is a focal area of infection. KH stated that the Registrant should have recognised an abnormality and recommended a referral to a renal specialist so that additional tests could be performed.  The Registrant gave evidence that he was unable to obtain a proper image because of the presence of severe bowel gas. However, he referred the Panel to the patient’s notes in which he claimed, initially, that he had correctly recorded the abnormality appearance of the patient’s kidneys. However, on being pressed, he acknowledged that these notes had been altered by KH to record the abnormal appearance of the Patient B’s kidneys, which he had neither observed nor recorded.

The Panel found this particular proved.

Particular 3

On 15 November 2017, whilst scanning Patient C, you:

a. Did not measure the pancreatic duct;

Proved

b.  Incorrectly concluded that the examination was normal.

Proved

48. KH gave evidence that she had observed the Registrant carrying out a scan on Patient C. This patient was suffering from abdominal pain and therefore the pancreas was the prime area of concern. She stated that the Registrant failed to measure the pancreatic duct. Whilst he correctly reported that the dilation of the intrahepatic duct, he incorrectly concluded in his report that the examination was normal. The Registrant in his evidence accepted that he had not measured the patient’s pancreatic duct but claimed that it was not plainly visible due to bowel shadowing. He sought to rely on the patient records as indicating his conclusion that the results were not normal. However, when pressed, he acknowledged that the notes had been altered by KH to record the correct results. The Panel found particular 3a and 3b proved.

Particular 4

On 15 November 2017, whilst scanning Patient D, you incorrectly recorded the following:
a. That hydronephrosis was in the transplant kidney.

Proved

b. That there was a cyst in the left kidney when it was within the transplant kidney.

Proved

49. With regard to particular 4a KH gave evidence that she had observed the Registrant scanning Patient D, who had undergone a kidney transplant. She stated that the Registrant had incorrectly concluded that that there was hydronephrosis in the transplant kidney. This is a condition where the kidney becomes swollen and stretched due to the build-up of urine.

50. With regard to particular 4b, KH stated that the Registrant also reported a cyst in the other kidney, whereas the cyst was in fact located in the transplant kidney.

51. The Registrant asserted in his evidence that these were typographical errors in his report which he then corrected. He relied on the patient record as evidencing that he had corrected these errors. However, when questioned, he admitted that KH had corrected the record.

The Panel accepted the evidence of KH and found particulars 4a and 4b proved.

Particular 5j

You took an inappropriate length of time to scan and/or complete the examination in relation

to the following Cases:
i. Case 1;      Proved
ii. Case 5;     Proved
iii. Case 7;     Proved
iv. Case 8.      Proved

52. HW gave evidence that she had observed the Registrant conducting the scan in relation to Case 1. She stated that the Registrant was expected to complete the process within 30 minutes, whereas it took him 90 minutes. She recorded the start and finish times contemporaneously.

53. KH gave evidence of observing the Registrant conducting Cases 5, 7 and 8. She stated that it had taken the Registrant 41 minutes to scan and report on the patient in Case 5, 58 minutes to scan and report on the patient in Case 7 and 46 minutes to scan and report on the patient in Case 8.

54. The Registrant in his evidence asserted that the times recorded by HW and KH respectively were incorrect and exaggerated.

55. The Panel preferred the evidence of HW and KH and found each of these sub-particulars proved.

Particular 6

You failed to disclose to Salford Royal NHS Trust during and/or before commencement of your employment that you had previously been the subject of fitness to practise proceedings by the HCPC.

Proved

56. The Registrant admitted this particular. His admission was consistent with the documentary evidence. The Panel found this particular proved.

Particular 7

You stated in your application form to Salford Royal NHS Trust that you were employed by Sonographers Medical Ltd between November 2015 – June 2017 and this was not correct.

Proved

57. The Registrant admitted this particular. His admission was corroborated by the application form. The witness statement of ZA confirmed that the Registrant had not been been employed by Sonographers Medical Ltd during this period. The Panel found this particular proved.

Particular 8

Your actions described in paragraphs 6 and 7 were dishonest.

Proved

58. With regard to Particular 6, the Panel noted that the job application form which the Registrant completed did not specifically ask whether he was or had been subject to any fitness to practise proceedings. There was no evidence that he was asked about this when he was interviewed for the position. However, at a meeting with JP and KH on 27 November 2017, the Registrant was specifically asked if any other Trust at which he had provided ultrasound previously had flagged concerns over his ultrasound skills. He replied that that they had not.

59. The Registrant’s explanation for his omission to disclose the fact that he had been subject to fitness to practise proceedings when interviewed for the job was that he was under the misapprehension that he was not required to disclose any fitness to practise proceedings which had been resolved. He did not deny that, at the meeting on 27 November 2017, he was asked directly whether any other Trust had flagged up concerns about his ultrasound skills. He claimed that he had denied this because he was in “deep shock” at being questioned, so that the fact that he had been subject to a Suspension Order from October 2015 to August 2017 had escaped his mind.

60. The Panel found the Registrant’s explanation of his failure on 27 November 2017 to disclose that he had previously been subject to fitness to practise wholly implausible. The Panel found that his reply when directly questioned was untrue and deliberately misleading. The Panel concluded that the Registrant was dishonest in not disclosing during the course of his employment that he had previously been subject to fitness to practise proceedings.
61. With regard to particular 7, the Registrant claimed that he had inadvertently stated on his application form that he had been employed by Sonographers Medical Ltd between November 2015 and June 2017, whereas he had in fact been continuously subject to a Suspension Order during this period. The Panel did not believe the Registrant’s explanation. The Panel was satisfied that the Registrant had intended to mislead the Trust by giving false information about his employment record in order to conceal the fact that he had been subject to a Suspension Order during the relevant period. Accordingly, the Panel found his actions in relation to particular 7 to have been dishonest.

Allegation 2

Particular 1

When asked in an application for work as a Band 7 Sonographer at North Middlesex University Hospital NHS Trust if you were currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK of in any other country, you answered ‘No’.

Proved

62. The Registrant admitted this allegation. His admission was corroborated by the witness statements of PH and MW and documentary evidence.

Accordingly, the Panel found particular 1 of Allegation 1 proved.

Particular 2

Your actions as set out at particular 1 were dishonest.
63. The Registrant claimed that he had made an unintentional error when stating on his application form that he was not currently subject to any fitness to practise investigation or proceedings. The Panel noted that at the time of his application, the Registrant was in correspondence with the HCPC about the fact that he was subject to a fitness to practise investigation. The Panel found that the Registrant intended to mislead his prospective employer in his application form in order to improve his chances of getting the job for which he was applying. In the Panel’s judgement, the Registrant’s actions in relation to particular 1 were dishonest as alleged in particular 2 of Allegation 2.
 
Statutory Grounds

64. The Panel went on to consider whether the facts found proved in relation to particulars 1, 2, 3, 4 and 5j, or any of them, amounted to misconduct and/or lack of competence, as alleged in particular 10 of Allegation 1.

65. The Panel was mindful that the question whether the proven facts constituted misconduct or lack of competence are matters for the Panel’s professional judgement, there being no standard or burden of proof.

66. The Panel noted that, when applying for employment as a Band 7 sonographer with the Trust, the Registrant had held himself out in his cv as a well qualified and experienced radiographer who had undergone training in all relevant areas of ultrasound scanning and had held a number of senior posts as a radiographer. He also indicated in his cv that he had recently been in continuous employment as a sonographer. The Registrant had asked to be considered for a higher pay band in recognition of his qualifications and experience.

67. In fact, the Registrant had been continuously subject to a Suspension Order by the HCPC between October 2015 and August 2017 following findings that his fitness to practise was impaired by reason of his misconduct and lack of competence. On the Registrant’s own admission in the course of his evidence, his practice was “rough around the edges” as a result of his period of suspension and the consequent period of unemployment as a radiographer.

68. In the full knowledge that his skills were not up to date and that he lacked basic competencies in conducting ultrasound scans, the Registrant put himself in a position where he was required as an autonomous practitioner to undertake scans on vulnerable patients whose safety was thereby put at risk of significant harm.

69. The Panel accepted the evidence of HW and KH that the failures identified in each of the particulars 1 to 4 were very basic shortcomings in the competencies required of a Band 7 sonographer.

70. The Panel also found the Registrant to have been in breach of the following standards of HCPC Standards of Conduct, Performance and Ethics (2016):

• Standard 1: You must promote and protect the interests of service users;
• Standard 2: You must communicate appropriately and effectively;
• Standard 3: You must work within the limits of your knowledge and skills;
• Standard 9: You must be honest and trustworthy.

71. The Panel found that the proven facts in relation to particulars 1,2, 3, 4 and 5j constituted misconduct.

72. With regard to particulars 6, 7 and 8 of Allegation 1 and particulars 1 and 2 of Allegation 2, the Panel found that the Registrant had been  dishonest in failing to disclose that he had been subject to fitness to practise proceedings and in falsifying his employment record in order to improve his prospects of obtaining employment. Each of these particulars constituted misconduct.

Decision on impairment

73. At this stage the Panel was presented by Mr Foxsmith with the record of hearings in previous fitness to practise proceedings to which the Registrant was subject, namely:

• The substantive hearing before a panel of the Conduct and Competence Committee held 28 September 2015 to 2 October 2015, which resulted in the imposition of 12 months Suspension Order;
 
• The first substantive review hearing of the Suspension Order on 22 September 2016, when the Suspension Order was extended for a further period of 6 months;

• The second substantive review hearing on 30 March 2017, when the Suspension Order was replaced by a Conditions of Practice Order for 6 months;

• The third substantive review hearing on 4 August 2017, when the Conditions of Practice Order was revoked with immediate effect, so that the Registrant was free to practise without restriction.

74.  The Panel took into account the training certificates and testimonials produced by the Registrant.

75. The Panel took into account the submissions of Mr Foxsmith and the Registrant. The Panel had regard to the HCPTS Practice Note on Finding that Fitness to Practise is Impaired and accepted the advice of the Legal Assessor.

76. In determining whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel took into account both the “personal” and “public” components of impairment. The “personal” component relates to the Registrant’s own practice as a radiographer, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

77. With regard to the “personal” component of impairment, the Panel noted with concern that that the incidents to which the current proceedings related occurred within 3 months of the Registrant’s discharge from a Conditions of Practice Order. The original allegations to which that order related bore a marked resemblance to the allegations in the current proceedings, as did the Registrant’s defence to those allegation. The Panel was drawn to the conclusion that the Registrant had failed to learn lessons from the previous proceedings and had failed to remediate his practice in any significant respect. This would tend to suggest that he was either unable or unwilling to take such steps as were necessary to raise his practice to a safe and adequate level.

78. It was a cause for concern that within a very short time of the revocation of the Conditions of Practice Order, the Registrant applied for the position of a Band 7 sonographer with the Trust, when he knew or ought to have known that he was not safe to practise autonomously. By his own admission, his practice was “rough around the edges”, and he was not confident to perform scans without support.

79. It was even more concerning that the Registrant acted dishonestly by fabricating details of his employment history to secure his position with the Trust, for which he knew himself to be unfit and that he lied in his cv and at interview about his competence to perform gynaecological and vascular scans. He thereby put patients at risk of serious harm by subjecting them to his incompetence.

80. The Panel gave the Registrant credit for:

• The fact that he had apologised to Patient A and shown some remorse for the pain and distress which he had caused by his rough handling during the ultrasound scan;

• That he had undertaken some relevant training since the date of the incidents;

• His engagement with the HCPC in these proceedings;

•  His admissions to some of the particulars of allegation.

81. However, what was lacking on the Registrant’s part was any insight into the negative impact on patient safety and his willingness to subject them to his clinical incompetence and inadequate recording of assessments throughout the short period of his employment by the Trust.

82. Further, the Registrant’s repeated acts of dishonesty in:

• denying that he was subject to a fitness to practise investigation when applying for work as a Band 7 sonographer in 2013;

• falsifying his employment record when applying to the Trust in September 2017;

•  denying in the course of his employment by the Trust that there had been previous concerns about his practice.

• showing a disregard for the truth when it conflicted with his self-interest.

83. For all these reasons, the Panel was not satisfied that the Registrant had remediated his practice. In the Panel’s judgement, there was a significant risk of repetition by the Registrant of his misconduct and, if permitted to practise without restriction, he would pose a continuing risk of serious harm to patients. Accordingly, the Panel found the Registrant’s fitness to practise to be impaired having regard to the “personal” component.

84. The Panel also found the “public” component of impairment to be satisfied in this case. A member of the public, knowing of the Registrant’s dishonesty in obtaining employment as a sonographer for which he was unfit, and his willingness to subject patients to the risk of harm by reason of his incompetence, would undoubtedly expect some restriction to be placed on his registration. Public confidence in the profession and in the regulator would be undermined if there were no finding of impairment.

Decision on sanction

85. The Panel took into account the submissions of Mr Foxsmith and the Registrant.

86. The Panel was guided by the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest in upholding proper standards and maintaining the reputation of the profession. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order.

87. The mitigating factors in this case are that :

• The Registrant has actively engaged with the HCPC in these proceedings;
• He apologised to Patient A and expressed regret at having caused her pain and distress;
• He has provided evidence of having undergone some relevant training;
• He has provided some supportive testimonials.

88. The aggravating factors in this case are that:

• The proven facts include incidents of gross clinical incompetence which mirror similar incidents for which the Registrant was made subject to a Suspension Order in October 2015. The incidents in the current proceedings occurred within a few months of his discharge from a Conditions of Practice Order;

• The Registrant’s incompetence appears to be of a persistent nature, which he seems unwilling or unable to remediate. He appears to have taken no effective steps to remedy the shortcomings in his practice which were identified in the previous fitness to practise proceedings;

• His misconduct in the current proceedings included repeated acts of dishonesty to obtain and hold onto employment as a sonographer, which he knew that he was not competent to perform and thereby put patients at serious risk of harm;

• He has shown either a lack of insight as to the harm he might cause patients by his lack of competence or a wilful disregard for their safety.

89.  The case is too serious for the Panel to take no further action.

90. Mediation is not relevant.

91. A Caution Order would not be effective to address the risk of repetition and would be insufficient to reflect the seriousness of the Registrant’s misconduct and dishonesty.

92. A Conditions of Practice Order would not be appropriate because the Panel was unable to formulate any conditions which would address the underlying concerns relating to the Registrant’s serious and persistent lack of competence and inability to be trusted.

93. The Panel considered whether to impose a Suspension Order. However, the previous Suspension Order failed to bring about any improvement in his conduct or clinical practice. Therefore, the Panel could have no confidence in the Registrant’s ability to avoid a future repetition and thereby put patients at risk of harm.

94. The Sanctions Policy provides the following guidance in relation to Striking Off Orders:

“A Striking Off Order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• Lacks insight
• Continues to repeat the misconduct
• Is unwilling to resolve matters

95. In the Panel’s judgement all the indicative criteria for a Striking Off Order are present in this case.

96. Whilst the Panel took full account of the financial and other hardship to the Registrant, the need to protect the public and the wider public interest must take priority over the Registrant’s interests. The Panel concluded that the appropriate sanction is a Striking Off Order.
 

Order:  The Registrar is directed to remove the name of Chesstty M Muntanga from the Register.

Interim Order

1. Mr Foxsmith made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period or until any appeal lodged has been determined.

2. The Panel noted Mr Foxsmith’s submissions and accepted the advice of the Legal Assessor.

3. Given the Panel’s findings that the Registrant’s actions are fundamentally at variance with remaining on the Register and a Striking Off Order has been imposed, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

4. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being in the public interest, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

5. 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. This Interim Suspension Order is made for the maximum period of 18 months.

History of Hearings for Mr Chesstty M Muntanga