Ms Nicola Davison

Profession: Radiographer

Registration Number: RA35908

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 13/09/2019 End: 13:00 13/09/2019

Location: Health and Care Professions Tribunal Service

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as a Radiographer and employed by South Tees Hospitals NHS Foundation Trust, you:

 

1. On or around 26 October 2015 x-rayed Person A’s foot in the neuro- radiology department using a mobile x-ray unit without formal medical referral for so doing.

 

2. On 11 November 2015, performed a CT scan on Patient B;

a. without a formal referral.

 

3. The matters described at particulars 1 and 2 constitute misconduct.

 

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

Finding

Preliminary matters
Service
1. The Panel was provided with documentation which showed that notice of today’s hearing dated 16 August 2019 was sent to the Registrant’s registered address on the same date by first class post. The Panel accepted the advice of the Legal Assessor and was satisfied that service had been effected in accordance with Rules 3 and 6 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in absence
2. Ms Simpson on behalf of the HCPC applied for the Panel to proceed today. She informed the Panel that the Registrant has not corresponded or engaged with regard to today’s hearing, nor had she been in contact since the review hearing almost a year ago.

3. Ms Simpson informed the Panel that in addition to the notice of hearing, sent on 16 August 2019, the HCPC had sent the Registrant a further letter, dated 6 September 2019, asking her whether she intended to attend, and warning her that the HCPC intended to submit to the Panel that it was open to them to make a Striking Off Order.

4. Ms Simpson reminded the Panel that the order expires on 13 October 2019 and in light of that imminent expiry, it is in the public interest to proceed.

5. The Panel took into account the HCPTS Practice Note entitled “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor, who reminded the Panel of the guidance given in the cases of R -v- Jones [2003] 1 AC 1, Tait -v- The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC -v- Adeogba [2016] EWCA Civ 162. The Panel was aware that the discretion to proceed in the absence of a registrant should be exercised with the utmost care and caution. The Panel concluded from this that she had absented herself deliberately from the proceedings. There was no indication that an adjournment would secure the Registrant’s attendance at a future date; she had not requested an adjournment, she had absented herself from the substantive hearing and the first review, and she had not responded to either of the two attempts to communicate with her since the last review. The Panel took into account the potential disadvantage to the Registrant if it were to proceed. However, the Panel was satisfied that it is in the public interest to proceed expeditiously.

6. Accordingly, the Panel decided to proceed in the absence of the Registrant.

Background
7. The Registrant was employed by the South Tees NHS Foundation Trust (“the Trust”) between March 2000 and May 2016 by which time she was a Senior Band 6 Radiographer in the Neuroradiology Department.

8. The incidents which are the subject of the allegations came to light in late 2015. On or about 26 October 2015, a mobile x-ray machine was found in the department’s plain film room, positioned as if an extremity radiograph had been taken. Subsequent enquiries as to who had used the machine established that on 24 October 2015, the Registrant had come into the department off duty, with Person A, a minor who had a foot injury which the Registrant felt needed to be x-rayed. The Registrant was later overheard admitting to a colleague that she had used the machine.

9. On 12 November 2015, it was discovered that Patient B, a suspected stroke patient, had been scanned twice on 11 November 2015. The substantive panel found that:
“by taking the CT Scan of Patient B without a formal referral and entering her details on the system manually, the Registrant had again bypassed the legal requirements. The absence of a formal referral meant that she had not verified the identity of Patient B and because the CT scan did not link to Patient B on the electronic system, Patient B had to undergo a second CT scan later in the day, exposing her to a further dose of radiation. This, as Dr Farley explained, in the case of a CT scan may be a high dose. As further described by Dr Farley, the Registrant’s actions also risked the patient not being treated in a timely manner and potentially delayed her diagnosis. The delay meant that Patient B was put at serious risk of harm.”

10. The Trust had to report the incident to its regulator, the Care Quality Commission (CQC) as a reportable incident.

11. The Trust conducted an investigation into the incidents. Dr RF, Consultant Clinical Scientist and Head of the Medical Physics Department at the Trust, was appointed as the investigating officer. In the course of his investigation he interviewed the Registrant and other members of the Trust’s staff. The Registrant accepted responsibility for the two incidents which had occurred on 24 October and 11 November 2015. She admitted deleting the images relating to Person A. In relation to both incidents she admitted that she had known that what she had done was wrong.

Decision
12. Ms Simpson submitted that, in light of the lack of any evidence from the Registrant to address the concerns found, and the lack of evidence of insight before the Panel, the Registrant remains impaired. Ms Simpson submitted that, while sanction is a matter for the Panel, a Striking Off Order is now necessary to protect the public and uphold the wider public interest, as the Registrant had not adhered to Conditions of Practice imposed by the substantive panel and had not engaged with the HCPC since the imposition of the Suspension Order by the first reviewing panel.

13. There were no submissions from the Registrant before the Panel.

14. The Panel accepted the advice of the Legal  Assessor.

15. The Panel was aware that its purpose today was to conduct a comprehensive review of the Registrant’s fitness to return to unrestricted practice and considered the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”.

16. The Panel must exercise its own independent judgement with regard to impairment.

17. The Panel first considered whether the Registrant’s fitness to practise is currently impaired and took into account the HCPTS Practice Note on Impairment.

18. The substantive hearing panel stated that it accepted that the Registrant acknowledged her past conduct and had apologised and expressed remorse, and concluded that the risk of repetition was “low”. However, that panel went on to state:
“…the Panel had residual concerns that in her responses to the allegations, the Registrant has stated she acted as she did in the best interests of the two patients, whereas in fact the Panel has concluded that her actions put the patients at potential risk of harm. The Panel also observed that the Registrant continued to excuse her actions by referring to the common practice of other staff at the Trust and did not appear to take full personal responsibility for her own actions.”

19. The substantive hearing panel stated that it had “limited information” about the Registrant’s practice since the events or her efforts to maintain her clinical skills since leaving the Trust in 2016. That panel decided that the Registrant had shown only “limited insight”.

20. In addition, the substantive hearing panel found that the Registrant’s:
“actions consciously breached statutory requirements and procedures relating to the safe use of ionising radiation….public confidence in the profession of radiography would be undermined if a finding of impairment were not made in this case.”

21. The reviewing panel on 6 September 2018 concluded that:
 “There has been no evidence before today’s Panel from the Registrant demonstrating the level of her insight since the substantive hearing. Further, there is a lack of any evidence that she has taken any steps to address the misconduct found proved or of any evidence about steps taken to maintain her professional skills and knowledge since the substantive hearing. In addition, the Registrant has not complied with the Conditions of Practice Order. While some of those conditions only apply if the Registrant works as a radiographer, other conditions, namely 1, 2 and 3 apply regardless of whether she is working in her profession. The lack of compliance with these in particular, compounded by the lack of remediation demonstrates either an unwillingness or inability to comply with them. These factors led the Panel to conclude that her insight remains limited, for the same reasons as decided by the previous panel at the substantive hearing.
 
With regard to the wider public interest which includes public confidence in the profession, the Panel was of the view that in light of the concerns which have not been addressed, the lack of engagement in the regulatory process, and the lack of compliance with conditions 1, 2 and 3, the Panel was satisfied that a fully informed and fair minded member of the public would be gravely concerned if the Registrant were returned to unrestricted practice. The Panel was therefore satisfied that the need to maintain public confidence in the profession and to uphold proper standards, would be undermined if a finding of impairment were not made in the particular circumstances of this case.

The Panel therefore found that the Registrant’s fitness to practise remains impaired.”

22. This Panel had received no information since the last review hearing. There was no evidence of remediation, insight or engagement. The Panel concluded that the Registrant’s fitness to practise remains impaired, for the reasons set out by both the substantive panel and the previous reviewing panel, compounded by the fact that some two years had now passed since the original hearing, such that confidence in the regulator would be diminished if a finding of impairment were not made in the light of the total lack of engagement from the Registrant over that period of time.

23. The Panel concluded that whilst the risk that the Registrant posed to the public if permitted to practise unrestricted was low, nevertheless public confidence in the profession and its regulator, and the declaring of proper standards of conduct and performance, demanded a finding of impairment in light of the seriousness of the misconduct, and the lack of insight, remediation, and engagement of the Registrant with her regulator.

24. The Panel next went on to consider sanction and took into account the HCPC’s Sanctions Policy.

25. The Panel considered whether to make no order or to impose a Caution Order but concluded that this would be inappropriate and insufficient. The misconduct was not minor in nature, and the Registrant had not demonstrated that she had taken any of the steps required to address that misconduct.

26. The Panel considered a Conditions of Practice Order but concluded that this was inappropriate in light of the fact that conditions had been imposed by the substantive panel, but the Registrant had not complied with three of the conditions imposed. The Panel therefore decided that conditions would be unworkable, and also that they were insufficient in light of the lack of insight and remediation.

27. The Panel considered a Suspension Order but concluded that this was insufficient and inappropriate as at today’s date. Some two years had now passed since the original sanction, and despite being given the opportunity to demonstrate remediation and insight, the Registrant had failed to engage with the HCPC. The Panel concluded from this that she had limited insight, and was either unable or unwilling to resolve or remedy her failings. The Panel accepted that the risk that the Registrant would repeat her behaviour was low, which the reviewing panel had taken that into account when deciding to impose a Suspension Order on the last occasion. However a full year had now gone by since that decision, in which time the Registrant had done nothing to demonstrate either her insight or her willingness and ability to remediate her failings, and in those circumstances the Panel concluded that a Suspension Order was no longer sufficient to satisfy the public interest.

28. In those circumstances the Panel concluded that a Striking Off Order was both the appropriate and proportionate sanction. The Panel appreciated that this was the most serious of orders, and it took into account the mitigating factors identified in the substantive hearing, together with the fact that the misconduct related to only two incidents in an otherwise unblemished career of some 20 years, together with a  low risk of repetition. However it was the judgement of the Panel that the Registrant had not remediated her failings, nor had she engaged with her regulator to demonstrate insight, despite having been afforded two years in which to do so.

29. Accordingly the Panel concluded that a Striking Off Order was needed to maintain public confidence in the profession and its regulator and to declare and uphold proper standards of conduct and behaviour. 

 

Order

The Registrar is directed to strike the name of Ms Nicola Davison from the Register on the date this order comes into effect.

Notes

The order imposed today will take effect from the expiry of the current order on 13 October 2019.

Hearing History

History of Hearings for Ms Nicola Davison

Date Panel Hearing type Outcomes / Status
13/09/2019 Conduct and Competence Committee Review Hearing Struck off
06/09/2018 Conduct and Competence Committee Review Hearing Suspended
14/09/2017 Conduct and Competence Committee Final Hearing Conditions of Practice