Mr Jason Mariah

Profession: Radiographer

Registration Number: RA69825

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 16/10/2019 End: 17:00 16/10/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

The following Allegation was considered by a Panel of the Conduct and Competence Committee at the substantive hearing on 3 - 7 April 2017 and 9 - 10 October 2017:

Between 29 December 2014 and 21 April 2015, during the course of your employment as a Radiographer by Buckinghamshire Healthcare NHS Trust, you:

1. On 23 January 2015, left the department during working hours and/or during a theatre case.

2. On or around 16 February 2015:

a) Were verbally abusive and/or made threats of violence towards a member of the public in the hospital.

b) Were verbally abusive and/or made threats of violence on approximately two occasions towards a member of staff.

3. The matters described in paragraphs 1 - 2 constitute misconduct.

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

At the substantive hearing the Panel found all of the particulars in paragraphs 1 - 2 of the Allegation were proved. There was a finding of misconduct in respect of paragraphs 1 - 2 of the Allegation and there was a finding that the Registrant’s fitness to practise was thereby impaired.

 

 

Finding

Preliminary Matters:

Proceeding in Private

1. Ms Lyon submitted that any material that related to the health and to the private life of the Registrant should be received in private, but otherwise the hearing should be conducted in public. The Panel heard and accepted the advice of the Legal Assessor and directed that the entirety of the hearing should be conducted in private as the substance of the case related to the Registrant’s health.


Background:

2. The Registrant worked as a Band 5 Radiographer at Wycombe Hospital, Buckinghamshire Healthcare NHS Trust (‘the Hospital’) between 29 December 2014 and 21 April 2015.

3. On 16 February 2015 the Hospital had cause to conduct an investigation into the Registrant’s behaviour as a result of concerns raised.

4. One of the concerns was that on the 23 January 2015 the Registrant was reported to have arrived late in theatre where he was due to shadow another Radiographer. It was also reported that he was later missing for approximately an hour before he returned to the main department.

5. The other concerns related to incidents on 16 February 2015. The first incident involved the Registrant and a member of the public who was a vagrant and was known to some of the Hospital staff. Colleagues of the Registrant gave evidence, to the panel at the substantive hearing that the Registrant had informed them that he would “knock him out”.

6. There were also additional reports of two further incidents on the afternoon of the 16 February 2015 involving the Registrant and a senior colleague. The Registrant admitted making a cheeky comment to the colleague which was inappropriate and intended to rile her.

7. At the Substantive Hearing on the 3-7 April and then the 9-10 October 2017, the panel found as follows:

i. Particular 1 – proved. The panel found that the Registrant was late to theatre. They also found that by leaving theatre while the radiography was required on the case, his work was not complete.

ii. Particular 2(a) – proved. The panel found that the Registrant was verbally abusive and that he did threaten violence towards the vagrant.

iii. Particular 2(b) - proved. The panel found that the Registrant was verbally abusive on two occasions and made a threat of violence on one occasion.

8. The substantive hearing panel went on to consider whether the proven facts constituted misconduct or a lack of competence on the Registrant’s part. The panel decided that in respect of particulars 1 and 2 that the Registrant’s conduct was in breach of HCPC Standards of Conduct, Performance and Ethics (1, 3, 7 and 13) and that both amounted to misconduct.

9. Prior to making a decision on impairment the panel adjourned proceedings so that the Registrant could obtain medical evidence regarding his health.

10. The panel reconvened on 9 and 10 October 2017 and was provided with medical evidence by the Registrant.

11. After the Registrant’s suspension from work, there was a deterioration in his health. In March 2015 the Registrant crashed his car on a journey to work.

12. The Registrant gave evidence to the substantive hearing panel. He gave account of his health difficulties. He also gave evidence that he took the view that his health was a factor that contributed to his behaviour. However, he also stated that his behaviour was due to the circumstances in which he was placed. He said that the situation with the vagrant was unique and he described his colleague as a “horrible person”.

13. The Registrant informed the substantive hearing panel that he had been working since July 2017 in a reception role at Loughborough University. The Registrant stated that he was doing well in his current position, although he did not provide any evidence of this. He also did not provide any references from present or previous employers or any testimonials.

14. The substantive hearing panel considered the level of the Registrant’s insight. The Registrant had acknowledged that in relation to the incidents outlined at particular 2 that he overreacted on both occasions. However, the panel found that the Registrant continued to blame others and did not take full responsibility for his actions.

15. The substantive hearing panel, in October 2017, considered that there had been an improvement in the Registrant’s demeanour and the level of his insight since the hearing began in April 2017, but the panel still had concerns that he did not take the Allegation sufficiently seriously.

16. The substantive hearing panel decided that the Registrant’s health concerns were a contributory factor in his misconduct. However, the panel considered that there were other contributory factors. The substantive hearing panel considered that there was and continued to be a lack of maturity in the Registrant’s attitude. The panel reached its conclusions about the Registrant’s attitude from the contents of his answers. The panel indicated that the Registrant did not appear to have the understanding the panel would expect of the requirements of basic courtesy and respect for colleagues and members of the public.

17. The substantive hearing panel also considered the wider public interest considerations and determined that members of the public would not expect to see a Radiographer behaving as the Registrant did, even if health reasons were a contributory factor. The panel therefore determined that the Registrant’s fitness to practise was impaired on the basis of the personal and public components.

18. In terms of sanction, the substantive hearing panel decided that the aggravating features included:

i. the Registrant’s conviction for driving while unfit to do so through drugs in March 2015, after the events concerned in the Allegation, which led to the imposition of a Caution Order by a panel of the Conduct and Competence Committee;

ii. the Registrant’s misconduct involved the risk of harm to patients and colleagues;

iii. the Registrant’s misconduct cannot be described as an isolated incident;

iv. the risk of repetition; and

v. the Registrant’s limited insight and limited remorse.

19. The panel decided that the mitigating features included:

i. the admissions made by the Registrant; and

ii. matters relating to the Registrant’s health.

20. The substantive hearing panel decided that the appropriate and proportionate sanction was a Suspension Order for 12 months.

21. The substantive hearing panel stated that a Reviewing Panel may be assisted by the following:

i. up to date medical evidence such as reports from healthcare professionals;

ii. a written reflective piece focussing on the decision of the Panel and the impact of the Registrant’s actions on others;

iii. evidence of how the Registrant is managing stressful or confrontational situations, this might include evidence of relevant training courses, the Registrant’s reflection on any training courses, descriptions of any coping strategies, and examples of situations in which he has applied his learning and/or coping strategies;

iv. evidence that the Registrant has kept his skills and knowledge up to date such as any continuing professional development courses undertaken;

v. and references or testimonials which may be from employment, voluntary work and/or the Registrant’s private life.

Hearing of the first review of the order on 9 October 2018

22. At the hearing on 9 October 2018 the Registrant was present at the hearing and represented himself.

23. The Registrant gave evidence on oath, provided documents and made submissions.

24. This first review panel determined that the Registrant’s fitness to practise remained impaired on the grounds that he did pose a real and on-going risk to the public and also on the grounds that public confidence would be undermined if he was permitted to return to practise without restriction. The first review panel expressed its reasons for these conclusions in the following terms:

The Panel considered that the Registrant demonstrated good evidence of developing insight when he explained that the “penny had dropped” in terms of reflecting on his previous conduct after the Substantive Hearing. The Panel recognised the Registrant’s genuineness in his evidence and found that he has made good progress regarding his insight and demeanour since the Substantive Hearing.

The Panel also recognised that the Registrant had undertaken some courses and whilst not all of these were relevant, or specific to him, they went some way to his remediation. The Panel were satisfied that the Registrant had taken the time to complete the courses, outside of working hours.

However, notwithstanding these steps, the Panel found that there was a lack of independent evidence before them regarding the Registrant’s current health.

The Panel also noted that there was a lack of information or evidence regarding the Registrant’s ability to manage confrontational situations and whilst he had provided some examples of how he was attempting to apply his theoretical knowledge to these situations, there was a lack of evidence to independently verify this. A reference or testimonials from his current employer would also have been of assistance to the Panel, but, as the Registrant explained he had not told his employer of these proceedings and had felt embarrassed to ask for a reference.

The Panel considered that they could not yet be confident that the Registrant has the required insight and that he has remediated his failings and therefore could not be confident that the behaviour would not be repeated. The Panel is not satisfied that in all the circumstances the Registrant did not still pose a real and on-going risk to the public and that public confidence in the profession would not be undermined should the Registrant be permitted to return to unrestricted practice.

Accordingly, the Panel concluded that the Registrant’s fitness to practise remained impaired.

25. Having determined that the Registrant’s fitness to practise remained impaired the first review panel considered what Order should be made. It concluded that the appropriate and proportionate Order was to extend the existing Suspension Order for a further period of 12 months. The first review panel expressed its reasons in the following terms:

The Panel considered the option of a Caution Order however, decided that it would not provide adequate protection for the public. It would not address the on going risk to the public identified by the Final Hearing Panel.

The Panel next considered the option of replacing the existing Suspension Order with a Conditions of Practice Order. However, the Panel decided that conditions would not be appropriate or sufficient because of the Registrant’s failure to provide independent evidence of his health, nor independent evidence of how he now responds to conflict and confrontation. Further, the Panel noted the Registrant’s own evidence when he indicated that he felt that his skills and knowledge were now “not up to speed”.

The Panel next considered extending the current Suspension Order versus imposing a Striking-off Order. The Panel noted the Registrant’s mitigating factors, as identified by the Substantive Hearing panel and also noted the Registrant’s progress.

The Panel considered a Striking-off Order, but decided that this would be disproportionate, taking into account all the reasons and circumstances outlined by the Substantive Hearing panel. The Panel decided that in the circumstances the Registrant should be afforded an opportunity to satisfy a future panel that his fitness to practise is no longer impaired.

The Panel therefore decided that the appropriate and proportionate Order is to extend the current Suspension Order. The Panel decided that this should be for the maximum period of twelve months to allow the Registrant time to reflect further and to demonstrate remediation of his misconduct. The Registrant may apply for an early review of the Order if his circumstances allow him to demonstrate that remediation before the expiry of the Suspension Order.

26. The first review panel set out what in its opinion might assist a subsequent review panel. It stated as follows:

The Panel also considered that a review panel may be assisted by the following:

I. up to date medical evidence;

II. a written reflection piece that he can submit to the panel focussing on the decision of the Panel and the impact of the Registrant’s actions on others;

III. evidence of how the Registrant is managing stressful or confrontational situations, this might include evidence of the Registrant’s reflection on any training courses, descriptions of any coping strategies, and specific examples of situations in which he has applied his learning and/or coping strategies;

IV. evidence that the Registrant has kept his skills and knowledge up to date such as any continuing professional development courses undertaken; and

V. evidence concerning any voluntary work undertaken within a hospital or healthcare environment; and

VI. references or testimonials which may be from employment, voluntary work and/or the Registrant’s private life, particularly testimonials reporting how he has coped with conflict.

Submissions at the review hearing today (16 October 2019):

27. Ms Lyon summarised the relevant facts and the conclusions of the previous panels. In summary she submitted that the Panel should find that the Registrant’s fitness to practise remains impaired. She said that there was no independent medical evidence to show that the Registrant’s present state of health was such as to enable him to practise safely and effectively. She further submitted that there were no Conditions of Practice which could be formulated which would adequately address the ongoing risk to the public which the Registrant posed.  She submitted that in all the circumstances a continuation of the Suspension Order for a further 12 months was the appropriate and proportionate order for the Panel to make.

28. The Registrant gave evidence under affirmation and made submissions. In brief summary he said as follows;

• That he was deeply sorry and ashamed of the conduct which had been found proved.

• He described the employment that he had undertaken since the substantive hearing. He had worked for about a year and a half at Loughborough University in the reception area, concluding that employment in June 2019. He was presently working with Amazon in a warehouse. In addition he was acting as a volunteer in Leicester Hospital for several hours a week. That voluntary work includes feeding and talking with patients. He also did other voluntary work in the health sector.

• He confirmed that he was still taking medication and that as a consequence of that medication the condition was under control.

• He described the efforts that he had made to maintain his professional skills but he acknowledged that he would have to undergo some re-training before he could practise safely and effectively.

• He assured the Panel that he had developed techniques, which he described, which would enable him to deal with stressful circumstances. He felt confident that he would be able to deal with all the stressful conditions which he would encounter as a radiographer.  He said that if the stress became “too much” he would go outside and take a breather. 

Documents produced by the Registrant

29. The Registrant has produced a number of documents for the consideration of the Panel. These are as follows:

• Two statements from the Registrant.

• A letter from the Registrant’s brother.

• A Certificate from “the digital college” dated 10 July 2019 showing that the Registrant has completed a course in “handling and resolving conflict”.

• A certificate from the University Hospitals of Leicester NHS Trust dated 23 August 2019 entitled “Certificate of attendance Volunteer Mealtime Assistant Training and a further certificate from the same hospital trust dated 29 August 2019 entitled “Volunteer Induction Training”.

• A letter dated 12 August 2019 from the Hall Manager from Loughborough University.

• An Activity Record [summarised] 01/10/2019 to 31/10/19

• Two illegible copies of screen shots, described by the Registrant as his medical records.

• A document from a GP surgery entitled “Summary Patient Record” indicating the medication prescribed during the period 20 December 2018 to 10 October 2019.

• A document from Acas dated 7 October 2019 confirming that the Registrant has completed an Acas learning on line course on Conflict Resolution.

• A document entitled Learning Events identifying events in 2017 and 2018.

30. The Panel heard and accepted the advice of the Legal Assessor

31. The Panel is aware that it has all the powers that are set out in Article 30 [1] of the Health and Social Work Professions Order 2001 [The Order] and which are summarised in the letter dated 16 September 2019 sent to the Registrant and giving notice of this hearing.

32. This Panel is aware that the process under Article 30 [1] of the Order is one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise remains impaired and if so whether the Suspension Order under review remains appropriate and proportionate or should be varied or replaced by some other order.


Decision of this Panel on Impairment:

33. Having taking account of the submissions made by Ms Lyon and the evidence and the submissions of the Registrant, the Panel has concluded that the Registrant’s fitness to practise remains impaired. In coming to this conclusion the Panel recognises that the Registrant has endeavoured to meet the suggestions made by the previous panel as to what would assist a review Panel. However the Panel is deeply concerned by the lack of independent medical evidence as to the state of the Registrant’s present health. Moreover the Panel is not satisfied that the Registrant has developed full insight into his past conduct or present state of health or that he has fully remediated his failings. The Panel kept in mind the stressful nature of the work of a Radiographer employed in the NHS. In these circumstances the Panel has concluded that it cannot exclude the risk of repetition and therefore concludes that the Registrant does pose a significant and continuing risk to the public. Moreover the Panel also concludes that public confidence in the profession and in the HCPC as its regulator would be undermined if the Panel was to determine that the Registrant’s fitness to practise was not impaired and as a consequence the Registrant was permitted to return to unrestricted practice. 


Decision on Sanction:

34. In considering the appropriate order the Panel had regard to the HCPC’s Sanctions Policy [SP] published in March 2019 and the advice of the Legal Assessor.

35. The Panel has applied the principle of proportionality. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk the Registrant may pose to services users in the future and determine what degree of public protection is required.

36. The Panel has considered the sanctions available in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate as neither would afford the necessary public protection or address the public interest.

37. The Panel next considered whether a Conditions of Practice Order would adequately address the concerns identified. The Panel considers that it cannot formulate Conditions of Practice that which would sufficiently protect service users or address the public interest. Its reasons are the same as those expressed by the previous panels and in particular the risk of repetition.

38. The Panel next considered a continuation of the Suspension Order. The Panel has concluded that suspension for a further period of 6 months would be appropriate. This would enable the Registrant to obtain independent evidence from suitably qualified treating professionals to demonstrate that his health was such that he could practise safely and effectively in a stressful professional situation such as working as a Radiographer in the NHS. The Panel considers that a Striking Off Order would at this time be disproportionate.

39. The Panel was of the view that a future panel reviewing the Suspension Order would be assisted by the following:

i. The personal attendance of the Registrant at the review.

ii. Up to date medical evidence.

iii. Evidence that the Registrant has kept his skills and knowledge as a Radiographer up to date, including details of courses that he has completed.

iv. Recent evidence concerning any paid or voluntary work that he has undertaken including details of work undertaken in a hospital or health care setting.

v. Up to date references and testimonials from any paid or voluntary work and in particular addressing the Registrant’s ability to respond to stress and to circumstances of potential conflict.

40. The Panel would wish to emphasise that in the absence of appropriate medical evidence as to the ability of the Registrant to work safely and effectively in a high pressure environment and in respect of the other matters identified in paragraph 43 (ii) it is inevitable that a review panel would give serious consideration to making a Striking Off Order.

Order

The Registrar is directed to suspend the registration of Mr Jason Mariah for a period of 6 months from the date that this order comes into effect.

Notes

The Order imposed today will apply from the expiry of the current order of suspension, namely 07 November 2019.

This order will be reviewed again before its expiry.

Hearing History

History of Hearings for Mr Jason Mariah

Date Panel Hearing type Outcomes / Status
16/10/2019 Conduct and Competence Committee Review Hearing Suspended
09/10/2018 Conduct and Competence Committee Review Hearing Suspended
09/10/2017 Conduct and Competence Committee Final Hearing Suspended
23/02/2017 Conduct and Competence Committee Final Hearing Caution