Miss Anesu Dodzo

Preliminary Matters:

Service

Proceeding with the hearing on the papers in the absence of the Registrant.

1. This review is being carried out “on the papers” in accordance with the procedures adopted by the HCPTS to deal with reviews during this period of the Covid-19 pandemic.  There has been no amendment to the rules relating to review hearings. Nevertheless, the HCPC has adopted this procedure to ensure that it continues to protect the public while giving a registrant a reasonable opportunity to put their case before a panel, in particular by informing them how to make written submissions to the panel.

2. At the hearing, the Registrant was neither present nor represented and had not made any written submissions to the Panel.

Submissions

3. In her written submissions to the Panel, Ms. Ktisti on behalf of the HCPC, submitted that the Panel should nonetheless proceed in the absence of the Registrant or any submissions from her.  She helpfully drew the Panel’s attention to the relevant Articles of the Health and Social Work Professions Order 2001 and the rules set out in The Health and Care Professions Council (Health Committee) (Procedure) Rules 2003 (The Rules).

4. She divided her submissions into 2 parts.  She first submitted that the Panel could proceed in the absence of the Registrant because all reasonable steps have been taken to serve the Notice of Hearing on the Registrant. 

5. Secondly, she submitted that the Panel should exercise its discretion to proceed in the absence of the Registrant because the evidence showed that the Registrant had voluntarily absented herself from the hearing and waived her right to attend or make written submissions. She reminded the Panel that this is a mandatory review of an order due to expire on 2 May 2020 and it was both in the Registrant’s interests and in the public interest for a review of the statutory order to take place as scheduled.
Material before the Panel

6. The Panel received documentary evidence (including un-redacted copies of the correspondence to the Registrant and an extract from the Register showing the Registrant’s address) that Notice of these proceedings was posted to the Registrant at the address held for her on the Radiographer part of the register maintained by the HCPC on 2 March 2020 and that, on the same date, a copy was emailed to her at her email address. That notice set out the powers of the Panel when reviewing the Registrant’s suspension and told her that the hearing would take place at an oral hearing at 13.00 on 1 April 2020.  The Panel saw evidence in the bundle of documents that all letters sent to the Registrant at that address have been returned.

7. The Panel also saw an email dated 26 March 2020, sent to the Registrant at the same email address, by the HCPTS advising that her hearing would be rescheduled to take place on the papers. In light of this, an Amended Notice of Hearing was sent to the Registrant’s email address on 01 April 2020 advising her that the Hearing had been rescheduled to take place on the papers on 24 April 2020.  That notice also set out in full, the powers of a panel at a review hearing and told the Registrant “the HCPC will notify you separately if they are planning to apply to change the order that is currently in place”.

8. That notice also set out in detail the material that the Registrant could submit in writing to the Panel, informed her this should be done by 13 April 2020, gave her the email address to which to send the material she wished to submit and contained a warning that, if she did not do so, “the HCPC…will invite the Panel to make a decision in the absence of this”.

9. In her written submissions, Ms. Ktisti informed the Panel that no communication has been received from the Registrant in relation to this matter, nor has the Registrant been in communication with the HCPC since December 2017. She drew the Panel’s attention to an email from the HCPC dated 12 March 2020 informing the Registrant that all letters to her registered address had been returned – “undelivered” and inviting her to update the register accordingly.

10. The Panel received the advice of the Legal Assessor, which it followed, and which is incorporated in its determination set out below.

The Panel’s decision on whether all reasonable steps have been taken to serve the notice of the hearing under rule 6(1) on the Registrant

11. The Panel first considered whether the Registrant had been served with notice of the hearing and/or it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6(1) on the Registrant.

12. The Panel had regard to Order 30 (9) which provides that: (9) Before exercising its powers under paragraph (1), (2), (4), (6), (7) or (8), a Practice Committee shall give the person concerned the opportunity to appear before it and to argue his case in accordance with rules made by the Council ….”

13. The Panel also had regard to Rules 3, 6 and 11 of the Rules. Rule 11 provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”

14. It also had regard to rule 13 which provides that, “Where the Committee proposes to  (a) review an order in accordance with article 30 of the Order…it shall send a notice ….informing him of his right to appear and be represented, before the Committee to argue his case”.

15. The Panel was satisfied that up until the point when the notice dated 2 March 2020 was posted to the address held for the Registrant by the HCPC, the HCPC had served notice in accordance with the Rules 3, 6 and 13 of the Rules.  The notice informed the Registrant of the place and time of the hearing on 1 April and informed her that she was entitled to attend and be represented. It was sent to the correct address.

16. When it became apparent that a normal hearing would no longer be possible because of the Covid-19 pandemic, the HCPC emailed the Registrant on 26 March 2020 informing her of the procedure that would be followed and served formal notice on the Registrant by email on 1 April 2020 informing her that her case would be considered by a Panel “on the papers” and inviting written submissions as set out above. 

17. It is apparent from the documents that the letters sent to her registered address were returned.  It is also apparent from the determination of the substantive panel that the Registrant has previously contacted the HCPC by email and the Panel has concluded from the text of the emails that the HCPC and HCPTS have sent emails to the address from which the Registrant emailed. 

18. The Panel has seen that the notice of 1 April 2020 does not comply with Rule 13 because it does not inform the Registrant of her “right to appear and be represented, before the Committee to argue his case”. On the contrary, it informs the Registrant that she cannot attend or be represented but can only make written submissions.  However, that only reflects the reality of the emergency procedures adopted.

19. The Panel has considered with care whether the procedure followed is sufficient to satisfy it “that all reasonable steps have been taken to serve the notice of the hearing under rule 6(1) on the registrant.”, in accordance with Rule 11 of the Rules. The Panel concluded that in the exceptional circumstances that currently prevail, all reasonable steps have been taken, not least because the Panel cannot see what else the HCPC could have done in the circumstances.

The Panel’s decision on whether it should exercise its discretion to proceed in the absence of the Registrant

20. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence.

21. The Panel had regard to the guidance given in the HCPTS Practice Note “Proceeding in the Absence of the Registrant” (dated September 2018) and to the decision of the House of Lords in R v Jones [2002] UKHL 5 and the further guidance given to panels by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care and caution.

22. It first considered the impact of the procedure adopted to consider this case “on the papers.”  Having considered the advice of the Legal Assessor, the Panel accepts that it does not comply with article 30 (9) set out above because it does not give the Registrant an opportunity to attend and be represented.

23. It has also accepted the advice of the legal assessor that not every breach of a procedural requirement will automatically result in a panel being unable to hear a case.  It will depend on the presumed intention of the rule maker in all the circumstances of the case, and in particular whether the breach results in any unfairness.  Juliana Dorairaj v The Bar Standards Board [2018} EWHC 2762 (Admin). 

24. It also considered Maitland-Hudson v. Solicitors Regulation Authority [2019] EWHC 67 (Admin) in which the High Court gave guidance on the fairness of hearings in the following terms:

“the right to a fair trial is enshrined under the common law and article 6 of ECHR.  The content of procedural fairness is infinitely flexible; it is not possible to lay down rigid rules to be applied identically in every situation.  What is necessary to meet the requirements for a fair trial in any given case will depend on the specific facts, including for example the nature of the proceedings, the stage reached by the proceedings and the overall procedural history.  So, for example, a “fair” hearing does not necessarily mean that there must be an opportunity to be heard orally.”

25. The Panel decided that there were many circumstances in which it would be grossly unfair to proceed at a hearing that a registrant could neither attend nor be represented at.  However, there are circumstances where it would not.  Accordingly, the Panel went on to consider all the circumstances.

26. It bore in mind that:

(1) the Registrant has not had any contact with the HCPC since she emailed in 2017 to say she would not attend the substantive hearing;

(2) the Registrant did not attend the substantive hearing or either review hearing;

(3) it appears that the Registrant has left her registered address and provided no other address to the HCPC;

(4) the Registrant did not respond to a notice giving her the opportunity to attend a hearing on 1 April 2020;

(5) the Registrant did not respond to 2 requests for written material or submissions to be put before the Panel;

(6) the Registrant has not sought an adjournment nor is there any evidence that an adjournment would secure the Registrant’s attendance or that she would wish to be represented at any future hearing;

27. The Panel had regard to the inevitable disadvantage to the Registrant in not attending to put her case.

28. The Panel also had regard to the public interest in proceeding with this hearing because this hearing is a mandatory review hearing under Article 30 of the Health Professions Order 2001 and there is a public interest in such reviews being dealt with promptly before the substantive order expires on 2 May 2020.

29. The Panel also had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba that, “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”

30. Having regard to all these matters, the Panel found that the Registrant had completely disengaged from the regulatory process; that by proceeding, no unfairness would be done to the Registrant, who had demonstrated she would not attend if given the opportunity to do so and had not taken the opportunity to make written submissions; that no purpose would be served by adjourning the proceedings and there was a strong public interest in hearing this review.

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

Proceeding in Private

32. In her written submissions, Ms. Ktisti, applied to the Panel under rule 10(1) (a) of the Rules for this review to be conducted in private because the case relates to the Registrant’s health.

33. The Panel took into account the HCPTS Practice Note entitled “Conducting Hearings in Private” and accepted the advice of the Legal Assessor, which it accepted and incorporated into the decision set out below.

34. The Panel noted that this review was being heard in private in any event because of the procedure that has been adopted.  Nevertheless, the Panel was aware that the publication of its decision is likely to be affected by a formal decision to hold the hearing in private.
35. For the avoidance of doubt, the Panel decided to allow the application pursuant to Rule 10(1)(a) of the Health and Care Professions Council (Health Committee) (Procedure) Rules 2003, because the Registrant’s health touches upon every aspect of its decision and directed that the whole of the hearing should be held in private.

This Review Hearing

36. The Panel read the written submissions of Ms Ktisti and Ms Simpson that the HCPC had received nothing from the Registrant since the last review hearing and, in fact, since 2017.  Accordingly, the HCPC submitted that there was no evidence that the Registrant had addressed any of the concerns giving rise to the finding of impairment and the Panel should find that her fitness to practise remained impaired. With regard to sanction, the HCPC submitted that, although a striking off order was available to the Panel on this occasion, they should continue the suspension order in the interests of fairness because of the arrangements that had to be made for a hearing due to the Covid-19 pandemic.

37. The Panel received the advice of the Legal Assessor, which it incorporated into the decision set out below.

38. First, it reminded itself of its powers under Order 30(1) of the Health and Social Work Professions Order 2001 to extend the period for which the order has effect or impose any order the first panel could have imposed.

39. It reminded itself of the importance of a review hearing, described by the Supreme Court in Khan v GPhC [2016] UKSC 64 as “the ‘teeth’ behind the sanctions other than erasure and should focus the doctor’s mind on the need to undertake any necessary remediation”.

40.  It followed the ordered sequence of decision making set out by Blake J in Abrahaem v General Medical Council 2008 EWHC 183:

i. address whether the fitness to practice is impaired before considering conditions.

ii. whether all the concerns raised in the original finding of impairment have been sufficiently addressed to the Panel's satisfaction.

iii. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.

41. It bore in mind the guidance given to Panels by the Supreme Court in Khan (above), to focus on the Registrant’s current fitness to practice:

“The guidance therefore makes clear that the focus of a review is upon the current fitness of the registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The review committee will note the particular concerns articulated by the original committee and seek to discern what steps, if any, the registrant has taken to allay them during the period of his suspension.”

42. The Panel had regard to the over-arching objective of protecting the public which involves the pursuit of the following objectives:

i. to protect, promote and maintain the health, safety and well-being of the public;

ii. to promote and maintain public confidence in the professions regulated under this Order; and

iii. to promote and maintain proper professional standards of conduct for members of those professions.

43. It also bore in mind that in deciding whether the Registrant’s fitness to practise is still impaired it should follow the approach of Dame Janet Smith endorsed by the High Court in CHRE v NMC and P Grant [2011] EWHC 927 (Admin):

"Do our findings of fact in respect of the (registrant’s) misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the …..profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the ……profession; and/or

d) has in the past acted dishonestly and/or is liable to act dishonestly in the future”.

44. The Panel considered first whether the Registrant’s fitness to practise remains impaired.  It bore in mind that there had already been a finding of impairment and asked itself whether the Registrant had demonstrated that she had taken sufficient steps to allay the concerns of the previous panels.

45. The Panel found that it had received no evidence or representations from the Registrant to reassure it that she had gained any insight into or taken any steps to remedy her health conditions. The Panel noted that this was in spite of the clear guidance given to the Registrant by previous panels as to what steps she needed to take to reassure future panels that it was safe to allow her to return to practice. Accordingly, it found that none of the concerns highlighted by the previous panels and summarised above, had been allayed.  In particular, there remained a significant risk to patient safety.

46. The Panel concluded that, with the personal and public interest components in mind, the Registrant's fitness to practise is currently impaired by reason of her health conditions.

The Panel’s decision on sanction:

47. The Panel next went on to consider sanction, taking into account the HCPC’s Sanctions Policy. The Panel is mindful that sanction is a matter for its own independent judgment, and that the purpose of a sanction is not to punish the Registrant but to protect the public. Furthermore, a sanction must be proportionate, so that any order that it makes should be the least restrictive order that would suffice to protect the public and the public interest.

48. The Panel first considered taking no action. The Panel concluded that, in view of the nature of the Registrant’s health conditions which remain unaddressed, and the ongoing risk to public protection, it would be inappropriate to take no action because that would be insufficient to protect the public.

49. Due to the continuing risk of harm presented by the Registrant, the Panel concluded that a caution order would be inappropriate and insufficient to protect the public.

50. The Panel next considered a conditions of practice order. Due to the Registrant’s non-engagement, there is no information about her current circumstances and her health status. As a result, there is no indication that she would be willing or able to comply with conditions, such as conditions relating to a treatment plan which would need to exist alongside conditions governing her return to work, if the public is to be protected. Therefore, the Panel was of the view no workable conditions could be formulated and such an order would not be appropriate.

51. The Panel next considered a suspension order. The Panel was satisfied that this would be sufficient to protect the public because such an order would prevent the Registrant from practising until there was compelling evidence that she had sufficiently addressed her health conditions.

52. Nevertheless, the Panel noted that a striking off order was available to it because the Registrant has been suspended for more than 2 years. The Panel gave careful consideration to imposing a striking off order in the wider public interest, because the Registrant has failed to engage with the Regulatory process since 2017 or put forward any evidence that she had addressed her health conditions.

53. Nevertheless, the Panel came to the conclusion that, although a striking off order would otherwise have been an appropriate sanction, it would not be in the interests of justice to impose a striking off order in the present circumstances, in particular because the correspondence sent to the Registrant on 1 April 2020 and the subsequent written submissions of the HCPC are likely to have left her with the impression that a striking off order would not be imposed on this occasion.

54. In those circumstances, the Panel decided that a further period of suspension will be imposed for a period of 6 months. A review prior to the expiration of the order would leave all options open to a future panel, by which time the Registrant would have been suspended for a period of nearly 3 years. Alternatively, it should provide sufficient time for the Registrant to engage with the HCPC and demonstrate progress in respect of her health condition.

55. The Panel does not purport to bind any future panel but, in fairness to the Registrant, she should understand that she was likely to have been struck off on this occasion, if it had not been because of the danger of unfairness arising from the procedures presently in operation and the form of the notice she was given.  She should note that a striking off order remains a possible sanction at the next review.

56. The Panel therefore decided to impose a further suspension order for a period of 6 months which will come into effect on the expiry of the current Order.

The Registrar is directed to suspend the Registration of Miss Anesu Dodzo for a further period of 6 months upon the expiry of the current order.

The Order imposed today will apply from 02 May 2020.

History of Hearings for Miss Anesu Dodzo