Miss Joanne Caborn

Profession: Radiographer

Registration Number: RA35856

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 17/02/2020 End: 17:00 21/02/2020

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst employed as a Band 7 Sonographer by Derby Teaching Hospitals NHS Foundation Trust (“the Trust”), and registered as a radiographer with the Health and Care Professions Council, you:

1. On one or more occasions between June 2016 and February 2018, including the dates set out in Schedule 1, behaved in a rude and/or unprofessional manner towards patients, contrary to the Trust’s C.A.R.E Policy.

2. On one or more occasions between August 2016 and October 2016, as set out in Schedule 2, failed to:

a. take sufficient time to scan patients; and /or

b. obtain images of optimal quality; and /or

c. obtain an image of the cervix.

3. On one or more occasions, including those set out in Schedule 3, used unnecessary force and /or caused pain to patients whilst scanning.

4. On or about 29 September 2016, during a transabdominal ultrasound scan, failed to identify:

a. focal liver lesions; and /or

b. an enlarged spleen; and /or

c. the extent of free fluid in the abdomen and / or pelvis.

5. Following an ultrasound scan of Patient S on or about 24 June 2016, mistakenly reported that a cyst was located in the right adnexa whilst it was in fact located in the Pouch of Douglas.

6. On one or more occasions, including 11 May 2017 whilst scanning Patient T, failed to visualise either one or both ovaries during a transvaginal and / or transabdominal ultrasound scan.

7. Following an ultrasound scan or about 1 February 2017, failed to include Patient U’s full clinical history in your report and / or make reference to relevant previous imaging reports.

8. Your actions at particulars 1-7 constitute misconduct and / or lack of competence.

9. By reason of your misconduct and / or lack of competence, your fitness to practise as a Radiographer is impaired.

Schedule 1
22 June 2016 – Patient A
4 August 2016 – Patient B
5 August 2016 – Patient C
11 August 2016 – Patient D
5 January 2017 – Patient E
31 January 2017 – Patient F
10 May 2017 – Patient G
11 May 2017 – Patient H

Schedule 2
4 August 2016 – Patient I
5 August 2016 – Patient J
8 August 2016 – Patient K
9 August 2016 – Patient L
25 August 2016 – Patient M
6 September 2016 – Patient N
7 September 2016 – Patient O
3 October 2016 - Patient P

Schedule 3
10 May 2017 – Patient G
11 May 2017 – Patient H

Finding

Preliminary Matters

Service
1. The HCPC was represented by Mr Stephen Ferson of Counsel. The Registrant was not present and was not represented.

2. Notice of Hearing was sent to the Registrant’s registered address by first class post dated 12 November 2019 and was also sent to her email address on the same date. The bundle was served on her on 30 December 2019 and she was also contacted by HCPC by email and letter on five further occasions. The Panel was satisfied that service had been served in accordance with the rules.

Proceeding in Absence
3. Mr Ferson applied for the hearing to proceed in the Registrant’s absence. He informed the Panel that the Registrant had not engaged in the process and had not replied to the Notice of Hearing. Mr Ferson submitted that the Registrant had voluntarily absented herself and that there was no reason for the hearing not to proceed in her absence, applying the guidance in R v Jones and GMC v Adiogba.

4. The Panel received and accepted advice from the Legal Assessor. It had regard to the HCPTS Practice Note on Proceeding in Absence.

5. The Panel noted that the Notice of Hearing had been sent to the Registrant by post and email on 12 November 2019 and that she had not engaged with the process. The Panel concluded that the Registrant had voluntarily absented herself. Further, the Registrant had not applied for an adjournment nor had she provided any reason for her non-attendance. The Panel had regard to the public interest in the hearing proceeding expeditiously and weighed that against the Registrant’s interests. In all the circumstances, the Panel concluded that it was in the interests of justice and in the public interest for the hearing to proceed in the Registrant’s absence.

Background

6. The Registrant is a registered Radiographer and was employed by Derby Teaching Hospitals NHS Foundation Trust (the Trust) from 22 January 2007. The Registrant was employed as a Band 7 Sonographer responsible for carrying out high quality patient-focused ultrasound musculoskeletal and gynaecological examinations.

7. The Registrant took a period of protracted sick leave between January 2015 and December 2015. A review was completed by occupational health and some necessary adjustments were made upon the Registrant’s return to work in December 2015.

8. Between June 2016 and February 2018, a number of complaints were received regarding the Registrant’s communication, attitude and behavior. These included an allegation of causing pain whilst carrying out an examination. Later, following an audit of her work, clinical concerns were identified with the Registrant’s practice, in respect of producing scans that were completed in too brief a timescale and images and reports of a poor quality.

Decision on Facts

9. The Panel heard oral evidence from three witnesses called on behalf of the HCPC. Witness AF is a registered Radiographer who is the Ultrasound Clinical Manager for the Trust and was the Registrant’s line manager for the last few years of the Registrant’s employment with the Trust. Witness CW is a Band 7 Radiographer and was a colleague of the Registrant. Witness JW is the Ultrasound Clinical Manager at the Trust and was the Registrant’s line manager for approximately one year between 2011 and 2012.

10. The Panel found that Witness AF was a helpful witness, whose evidence was clear and consistent. AF assisted the Panel with evidence as to the Registrant’s performance and demeanour throughout the Registrant’s employment at the Trust. As well as giving evidence in support of Particulars 1, 2 and 4, AF told the Panel that when she first started working with the Trust the Registrant interacted well with her colleagues and would join in social activities with them. Even after her return from a protracted absence due to illness, the Registrant did not give any cause for concerns. AF’s evidence was that there came a time when the Registrant’s behaviour and demeanour began to change in that she became withdrawn and reserved. AF was obviously concerned about the Registrant’s difficulties and deteriorating health.

11. Witness CW was also a credible witness. She was called to give evidence only in relation to Particular 3. Although her recollection of matters was incomplete, CW was prepared to make concessions in respect of that Particular which assisted the Panel.

12. Witness JW, gave evidence in respect of Particulars 4, 5, 6 and 7. Whilst the Panel found her evidence regarding the factual matters to be reliable, JW seemed reluctant to agree that there were any positive aspects to the Registrant’s demeanour and practice throughout the Registrant’s employment with the Trust. JW’s evidence did not accord with the evidence, in particular, of AF. In respect of the Registrant’s overall behaviour, the Panel relied upon AF’s assessment of the Registrant rather than that of JW.

13. The Panel carefully considered all of the oral and documentary evidence and exhibits. At the conclusion of AF’s evidence, the Panel gave consideration as to whether to transfer this case to a Health Committee. The Panel invited Mr Ferson to make submissions in relation to that and sought the advice of the Legal Assessor.

14. The Panel received further evidence from Mr Ferson comprising a letter from the Registrant’s GP dated 17 August 2018 to which were attached historical reports relating to the Registrant’s health. These included reference to her withdrawn demeanour in December 2017 when attending outpatients. They also related to her serious injuries, their impact on her physical health and potential impact at work.

15. Mr Ferson made submissions to the effect that the Panel should not transfer the case to a Health Committee. He submitted that there was a lack of evidence that the matters alleged occurred as a result of any health condition. He further submitted that the public interest required the matters to be dealt with expeditiously.

16. Having considered the further evidence and submissions, the Panel decided not to transfer the case to a Health Committee. The Panel had evidence that the Registrant had numerous complex health conditions which the Panel believe could have seriously undermined her ability to function in the way expected of her. However there was insufficient evidence to show that all the matters alleged were wholly the result of her mental and / or physical health. Her doctor had suggested that she might return to work following an occupational health review to “help her as best as reasonably possible to help her maintain some semblance of work / employment”. The Registrant herself, in her statement for her capability hearing, said that she was getting better. However, notwithstanding that the Panel believes that her fitness to practise may have been impaired because of her health conditions, as the Panel considered that a Striking Off Order was a possibility in this case and having had careful regard to the HCPTS Practice Note on Health Concerns, it decided that the matter should remain with the Conduct and Competence Panel in accordance with the case law.

17. The Panel made the following findings of fact:

Particular 1 – Proved
18. The Panel found Particular 1 proved in respect of all of the patients listed in Schedule 1. The Panel took into account that the evidence in support of Particular 1 consisted largely of hearsay evidence which comprised three written complaints made directly to the Trust or complaints made to other radiographers which were contemporaneously recorded by them.

19. The Panel was able to give weight to the hearsay evidence. It considered that all of the complaints concerned the Registrant’s communication with patients. The fact that there were a number of complaints of a very similar nature increased the reliability of the hearsay evidence.

20. Patient A complained by email to AF dated 23 June 2016, in which she stated that the Registrant had “no communication skills” and “had pushed her legs apart without telling her”. Patient B on 4 August 2016, complained to JW that the Registrant was “not very pleasant, no smile or anything certainly did not put me at ease”. Patient C made a direct complaint on 5 August 2016 that the experience (being scanned by the Registrant, “seemed like I was a cow being visited by veterinarian, and as a result I was left feeling violated and uncomfortable”. Patient D complained to a friend that the Registrant’s manner was “disgraceful”. Patient E sent a handwritten letter to another radiographer dated 14 June 2017 complaining that the Registrant was rude, unwelcoming and spoke in a voice “like edged barbed wire”. Patient F reported to her friend that the Registrant, “did not seem happy or engaged…, didn’t reassure and, in summary made the patient feel like crap”. She added that Patient F was concerned for the Registrant as an individual because she did not seem well or content. Patient G complained that the Registrant did not explain what she was going to do and was lacking in bedside manner. Patient H was left in tears due to the way she had been treated by the Registrant.

Particular 2 – Proved in substantial part
21. The Panel relied on the credible evidence of AF and had regard to the screenshots of the relevant scans which AF produced. These included a record of the times at which images were taken and also the quality of the images which AF was able to comment upon. However, in respect of some of the patients listed on Schedule 2, AF did not make any comment regarding any failures to obtain images of the cervix. The Panel noted that this was not a requirement in respect of all the patients.

22. Accordingly, the Panel found the following proved: Patient I - proved in respect of 2(a) and 2 (b) but not 2(c). Patient J proved in respect of 2(a) and 2 (b) but not 2(c). Patient K proved in respect of 2(a) and 2 (b) but not 2(c). Patient L proved in respect of 2(a) and 2 (b) but not 2(c). Patient M proved in respect of 2(a) and 2 (b) and 2(c). Patient N proved in respect of 2(a) and 2 (b) but not 2(c). Patient O proved in respect of 2(a) and 2 (b) and 2(c). Patient P proved in respect of 2(a) and 2 (b) and 2(c).

Particular 3 – Not Proved
23. The Panel had regard to JW’s evidence both in her statement and orally. JW accepted that gynaecological scanning can be painful particularly where there is pathology present. She was also unable to say that the Registrant had used unnecessary force. Whilst one complainant felt that “it was almost as if the Registrant was hurting her on purpose”, JW’s evidence was that in her view this was due to the Registrant’s lack of responsiveness and communication with the patient rather than her consciously inflicting pain.

Particulars 4(a) and (b) Proved, Particular 4(c) Not Proved.
24. The matters alleged under Particular 4 were discussed at a meeting held by HR with the Registrant on 23 November 2016. It was pointed out to the Registrant at that meeting that she had failed to identify focul liver lesions, one of which measured 8.8 cm. She had also missed an enlarged spleen which may have been indicative of liver disease. The Registrant reported that the extent of free fluid was “mild”. AF said that she would have used the term “moderate”. Whilst the Registrant may not have utilised consistent language to indicate the extent of free fluid, the Panel considered that her description of the extent of free fluid was sufficient.

Particular 5 – Not Proved
25. Witness CW accepted in her witness statement and in her oral evidence that although she had found a cyst in the Pouch of Douglas (which is an area just behind the cervix), sometimes things can move and it can be hard to say exactly where something is. Further, the Registrant had scanned the patient in June 2016, whereas CW’s re-scan was not until May 2017, a significant time later and she conceded that “things could change”. 

Particular 6 – Not Proved
26. The Panel heard evidence from JW that following two previous scans which had been unable to identify one or both ovaries, neither of which appeared to have been carried out by the Registrant, the consultant gynaecologist requested that the next scan should be completed by a Radiologist, a doctor, who would have considerably greater expertise. However when the patient attended, she had not been put on to a Radiologist list and JW asked the Registrant to scan her although JW was far more experienced. There is no suggestion that Patient T was scanned by the Registrant other than on this one occasion. The Registrant was unable to visualise either ovary and referred the Patient to JW, who was able to visualise them. The evidence of the previous difficulties in this case offers a reasonable explanation of why the Registrant was unable to image the ovaries.  

Particular 7 – Proved
27. Patient U had previously been scanned by another sonographer on 2 July 2015. She was re-scanned by the Registrant on 1 February 2017. The report of the previous scan in 2015 was detailed and included the patient’s history. However, the clear evidence of JW was that the Registrant’s report of her scan in 2017 did not include the patient’s clinical history nor did it make a comparison with previous reports which was a clear expectation in practice.

Decision on Grounds

28. The Panel was satisfied that the matters found proved represent a fair sample of the Registrant’s work. Far more complaints were received about the Registrant than would be expected of a registered Radiographer or in comparison with her colleagues.

29. There were obvious communication issues between the Registrant and her colleagues and patients. The Registrant, in the complaints, was described as being cold, uncommunicative, abrupt, remote and detached. The Panel noted that this was dealt with at the time by way of the employer’s capability procedure, presumably with a view to improving the Registrant’s performance and competence.

30. Although the Registrant’s GP believed her to be able to work, he stated that she had “numerous complex … health conditions which may need to be taken into account in her return to work”.

31. It appeared to the Panel that these problems affected the Registrant’s ability to recognise that she did not communicate with patients to an acceptable standard. Although the Panel finds that the Registrant caused distress to patients, the Panel believes that her health conditions are likely to have had a significant detrimental impact on her competence.

32. The Panel was not satisfied that the Registrant deliberately or consciously fell below the standards required of a registered Radiographer. Taking into account all matters, the Panel concluded that the facts found proved amounted to lack of competence and not misconduct.

Decision on Impairment 

33. The Panel considered both the personal and public components of impairment. It had regard to the HCPTS Practice Note on Finding that Fitness to Practise is impaired.

34. The Registrant demonstrated some insight in the statement she made for her employer’s capability hearing in which she stated, “I acknowledge that I have not always been operating at my best due to the consequences of dealing with some of the physical and mental challenges I have been through. I sincerely apologise for the complaints that have arisen during this time and for the upset caused to patients, colleagues and the Trust”.

35. However, taken as a whole the evidence demonstrated to the Panel a substantial lack of awareness and insight into the impact of her conduct with limited attempts to act upon feedback. Further, the Registrant has not engaged at all in these proceedings as a result of which the Panel has no information before it regarding her current level of insight or competence.

36. Whilst the Panel considered that the facts found proved are capable of remediation, there is no evidence that they have been remedied. Accordingly, the Panel concluded that there is a continuing risk of repetition and that the Registrant’s fitness to practise is impaired on both the personal ground of impairment and on the public ground of impairment given the damage to the reputation of her profession that could be caused and the need to uphold proper standards.

Decision on Sanction

37. The Panel considered the submissions made by Mr Ferson on behalf of the HCPC. The Panel received and accepted the advice of the Legal Assessor.

38. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour and to serve as a deterrent in relation to such behaviour.

39. The Panel had regard to the Sanctions Policy (March 2019). The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.

40. The Panel considered that the aggravating factors in this case were the sustained nature of the Registrant’s behaviour and her consistent defensive responses to feedback. The Panel also regarded the Registrant’s lack of insight and understanding of the potential consequences of poor quality imaging and reporting and her poor communication skills, the lack of any remediation and the risk of repetition as aggravating factors.  

41. As mitigating factors, the Panel took into account the lack of any previous regulatory history, the complex mental and physical health issues at play and the insight and apology, although limited, demonstrated by the Registrant in her statement during her employer’s capability proceedings.       

42. In determining the appropriate and proportionate sanction, the Panel had regard to its findings of fact. Having found that the Registrant’s fitness to practise is currently impaired, the Panel considered that it would be inappropriate to take no action or refer the matter to mediation or impose a Caution Order.

43. The Panel next considered whether a Conditions of Practice Order was appropriate and proportionate. The Panel was presented with no evidence that the Registrant would or could comply with any conditions of practice. The Registrant has a previous history of being unable to demonstrate improvements in her behaviour and has not engaged in her regulator’s fitness to practise process.

44. The Panel next considered a Suspension Order which is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a Conditions of Practice Order but which do not require the Registrant to be struck off the Register or where a Strike Off Order is not an available sanction as in this case.

45. Given all of the information available to the Panel, it concluded that a Suspension Order for a period of 12 months would be the appropriate and proportionate sanction which would adequately protect the public. The Suspension Order will be reviewed prior to its expiry and the future reviewing panel would be assisted by the following:
• Medical reports setting out the Registrant’s current physical and mental health status and the extent to which any condition could impact on her ability to practise.
• A reflective piece which demonstrates the Registrant’s current insight into her previous failings and how they could be prevented in the future.
• Evidence of Continuous Professional Development particularly in the areas of image optimisation, patient communication, required standards of report writing and being able to practise in accordance with current legislation / practice rules.
• An explanation from the Registrant regarding her current situation and how she might return to practice, preferably by the Registrant’s attendance in person.

Order

The Registrar is directed to suspend the name of Joanne Carbon from the Register for a period of 12 months from the effective date. 

Notes

Interim Order

1. Having announced its decision on sanction, the Panel indicated that it would hear submissions on an application for an interim order.

2. Mr Ferson applied for an Interim Suspension Order for a period of 18 months to cover the appeal period and any subsequent appeal. He submitted that in view of the Panel’s findings and the sanction imposed, an Interim Suspension Order was necessary to protect the public and was otherwise in the public interest.

3. The Panel received and accepted the advice of the Legal Assessor. The Panel had regard to its findings of current impairment and sanction and concluded that an interim order is necessary to protect the public and is otherwise in the public interest in order to cover the 28 day period during which the Registrant could appeal and any subsequent appeal period. The Panel noted that the Registrant was warned in the hearing notice that an interim order could be made after the sanction stage.

4. For the same reasons given in its determination on sanction, the Panel concluded that an Interim Conditions of Practice Order would not be appropriate. It concluded that the only proportionate interim order was an Interim Suspension Order for the period of 18 months to cover any appeal period.

5. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

6. 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, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Miss Joanne Caborn

Date Panel Hearing type Outcomes / Status
17/02/2020 Conduct and Competence Committee Final Hearing Suspended