Mr Kenneth R Hall

Profession: Radiographer

Registration Number: RA63897

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 14/07/2020 End: 17:00 14/07/2020

Location: This hearing is being held virtually.

Panel: Conduct and Competence Committee
Outcome: Restored with Conditions of Practice

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Allegation

While employed as a Radiographer at Worcestershire Acute Hospitals NHS Trust (WAHT), you:
 
1. Between March 2014 and July 2014, worked at Nuffield Hospital in Wolverhampton while receiving paid sick leave from your employment with WAHT on the following dates:
 
a. 17 March 2014;
b. 27 May 2014;
c. 28 May 2014;
d. 24 July 2014.
 
2. Your actions described in paragraph 1 were dishonest.
 
3. The matters described in paragraphs 1 and 2 constitute misconduct.
 
4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters:
1. The hearing was convened to consider an application by Mr Kenneth Hall (the Applicant) to review, under Article 30(7) of the Health and Social Work Professions Order 2001, a striking off order made by a Panel of the Conduct and Competence Committee (CCC) on 7 December 2016. 
2. In considering the application, the Panel had reference to guidance in the HCPTS Practice note “Striking Off Reviews: New Evidence and Article 30(7)” (the Practice Note).
3. The Panel accepted the advice of the Legal Assessor.
4. At this hearing, the burden was upon the Applicant to satisfy the Panel that the striking off order made on 7 December 2016 should be reviewed under Article 30(7).
Documents
5. The Panel received a hearing bundle of 999 pages, which comprised email correspondence, documents relating to previous hearings and the Applicant’s Bundle of documents in support of his case, and a skeleton argument from the HCPC of 24 pages. Transcripts of the previous hearing on 5-7 December 2016 were provided to the Panel during the first day of this application. A further 32 page bundle of documents that were produced on the first day of the 2016 hearing was also provided on the second day of this application. The purpose of the latter was to enable the Panel to understand which documents were before the 2016 panel.
Hearing in private
6. The Applicant applied for any part of the hearing that related to his health to be heard in private. This was not opposed by Ms Eales on behalf of the HCPC.

7. The Panel accepted the advice of the Legal Assessor that Rule 10(1)(a) of the Conduct and Competence Committee Rules enabled the whole or part of the hearing to be held in private for the protection of the private life of the Applicant. The Panel therefore determined that any part of the hearing that concerned his health should be held in private.


Late service of documents

8. The Applicant raised a preliminary issue about the late service of documents. He stated that he had not received the HCPC’s hearing bundle until Friday 29 May 2020, which was five days before the hearing, although he accepted that the bundle was comprised of documents which he had seen before, so he made no application for an adjournment on that ground. He also told the Panel that he had not yet received the HCPC’s skeleton argument, which was a 24 page response to his application. The Panel accepted the advice of the Legal Assessor and gave the Applicant further time to read and consider that document before making his oral submissions on the first day of the hearing.

Background:
9. The Registrant was employed as a Radiographer at Worcestershire Acute Hospitals NHS (WAHT) from 1 June 2013 to 1 August 2014. He has two regulatory findings against him. He was made the subject of a Conditions of Practice Order of 12 months duration on 12 February 2016 as a result of the first case.

The first case

10. In respect of the first case, a panel of the Conduct and Competence Committee of the HCPC found that:-

• he behaved in an intimidating manner towards a colleague on or around 30 March 2014 in that he shouted at her and threatened to get her struck off
• he made rude and offensive comments to a nurse on the telephone on 2 April 2014
• he was aggressive and rude towards another colleague on 8 May 2014
• he was rude and threatening towards another colleague on 29 May 2014
• he was rude and threatening towards another colleague between 14 May and 26 May 2014
11. The panel at that hearing found that his actions amounted to misconduct and that his fitness to practise was thereby impaired. He was therefore made the subject of a Conditions of Practice Order of 12 months duration on 16 February 2016
The second case
12. It was alleged that between March 2014 and July 2014 he acted dishonestly by working at the private Nuffield Hospital in Wolverhampton whilst receiving paid sick leave from his NHS employment with WAHT on 17 March, 27 May, 28 May and 24 July 2014.  It is the outcome of this case that is now subject to Article 30(7) review.
The Substantive Hearing on 5-7 December 2016
13. The Registrant attended the hearing and he was legally represented by counsel. The panel in this case heard evidence from Witness 1, Head of Anti-Fraud Services for CW Audit Services, an investigator who did not know the Registrant, and from Witness 2, Business Manager of Occupational Health and Wellbeing Services at the Working Well Centre of WAHT. The then panel also read and considered the statement of Witness 3 who had conducted inquiries with the Registrant’s GP practice.
14. Witness 1 said in his written statement that he could not find any information on the Registrant’s job application or ‘new starter information form’ to the effect that he had other paid employment at the Nuffield Hospital. He produced the Trust’s Sick Leave Policy which stated an employee is not normally permitted to work whilst off sick and must seek authorisation from their line manager in advance if they wish to do so.
15. Witness 2 said in her written statement that she had interrogated the occupational health records and she had found no mention of the Registrant having additional employment outside the Trust and she had found no record of any member of staff from occupational health stating it would be acceptable to work for another employer whilst off sick.
16. The panel at the substantive hearing found Witness 1 had conducted a professional and independent investigation and that he was reliable and credible. The panel found Witness 2 to be similarly reliable and credible, albeit that her evidence was limited to a search of records.
17. The then panel heard evidence from the Registrant but made findings that he was evasive and that much of what he said was inherently improbable. He denied responsibility for the content of documents, including the New Starter Information Form, which seemed to originate from him. His line manager had completed the form on the basis of information which was provided by the Registrant himself and he had signed the form. The then panel did not accept that he would have colluded with his line manager to make a false record for his sickness if, as he alleged, he was being bullied and harassed by his managers for challenging other practices in his department. The then panel disbelieved the Registrant’s explanation for working at the Nuffield hospital on 17 March 2014. Where the Registrant’s evidence conflicted with apparently reliable documentary evidence, the then panel preferred the documentary evidence.
18. In relation to the allegation that the Registrant worked on four specific days (particulars 1(a)-(d)), the Registrant admitted that he had worked at the Nuffield Hospital on those dates whilst receiving sick pay from WAHT and that admission was supported by the documentary evidence.
19. The panel applied the test in R v Ghosh that then applied in relation to dishonesty (particular 2) and considered that a radiographer working for a private hospital, having self-certified that he was unfit for work for his NHS employer and receiving occupational sick pay from them, would be considered dishonest by the standards of reasonable and honest radiographers who are bound to act with integrity. The objective test was therefore met.
20. The panel then considered whether the Registrant in fact realised that what he was doing was dishonest by those standards. This is the second stage subjective test in R v Ghosh. The Registrant had maintained that he was being bullied and victimised by his managers because he had raised concerns about practices at the hospital and that this resulted in him being off work through stress. The panel considered a letter dated 14 August 2014 from the Registrant‘s GP practice which confirmed that the Registrant had consulted his doctor, Dr Z, over stress issues at work and that Dr Z had discussed the possibility of him working a few hours outside his job for the private sector and stated that Dr Z said this would be acceptable. However, a subsequent letter from another Doctor (Dr C), dated 10 November 2014, stated that he was not able to confirm this conversation and that this was not a matter on which medical practitioners were qualified to give advice. The 14 August 2014 letter had been written at the Registrant’s request when Dr Z was away. The panel also noted that fitness to work certificates for 29 May to 1 August 2014 stated he was not fit for work.
21. The then panel also considered a statement from Dr E, the lead consultant in occupational health at WAHT, dated 1 April 2015, in which he stated he did not advise the Registrant that he could continue to work for his secondary employer, not least because he was not aware of any secondary employment. There was no record on the occupational health notes that the Registrant ever worked for anyone else. The Panel did not accept the Registrant’s case that Dr E had told him he was permitted to work at the Nuffield Hospital whilst he was off sick. The Panel noted that the Trust’s policy was that it is not normally permitted for an employee to work whilst sick and that authorisation must be sought for this from a line manager in advance.
22. The Registrant claimed that WAHT should have been aware he was working for the Nuffield Hospital through his National Insurance, his tax code and through monitoring his radiation exposure, but it was not clear to the panel how any of this would have actually alerted his line managers at the relevant time. The panel’s attention was drawn to two electronically generated undated application forms but it was not clear to the then panel what they related or when they were created.
23. The panel at the 2016 hearing also found the Registrant’s oral evidence to be evasive on the issue of whether he knew he was being paid by WAHT during his sick leave and he stated that he would not have worked for the Nuffield Hospital if he knew he was being paid by WAHT. The Registrant’s apparent evasions on this issue demonstrated that he knew this would be dishonest. For this and the other reasons stated above, the Panel was therefore satisfied that he knew his actions were dishonest and the subjective test was met.
24. Having found the Registrant’s actions to be dishonest, the panel at the 2016 hearing found breaches in standards 3 and 13 of the applicable HCPC Standards of Conduct, Performance and Ethics that observed that honesty is a fundamental tenet of his profession. The Registrant’s conduct was serious and fell well below the standards expected of a registered health professional. Accordingly, the Panel concluded that the Registrant’s actions amounted to misconduct.
25. That panel then considered whether the Registrant’s fitness to practise was thereby impaired. The Registrant did not accept that he had acted dishonestly and he did not believe that what he did was wrong. He had not therefore demonstrated any insight or remorse and he blamed others. There was therefore a risk of repetition. The panel also considered the need to maintain public confidence in the profession and the regulatory process and found impairment on both personal and public interest grounds.
26. In relation to sanction, that panel identified the following mitigating factors:
• The Registrant had engaged fully in the process
• The allegation was somewhat historical and it was limited to four specific occasions over a short period when the Registrant had difficult relationships with colleagues.
27. The Panel identified the following aggravating factors:
• There was a previous regulatory finding of misconduct against the Registrant, albeit that it did not concern dishonesty
• Dishonesty is always a serious matter
• There was a continued lack of insight
• The Registrant only acknowledged his own responsibility for his own behaviour after he had read the Panel’s decision on impairment
28. That panel did not regard the Registrant’s belated expressions of insight and remorse to be genuine. He had had over two years to reflect on his behaviour and he had failed to do so. In the absence of proper insight, remorse or remediation, there was a risk of repetition.
29. The substantive hearing panel noted the finding of the panel in the previous case in February 2016 to the effect that the Registrant did not take responsibility for his actions at that time and he had not learned from that finding. Taking all matters into account, it found that he had an attitudinal problem which resulted in an inability to address his behaviour. The panel had no confidence that the Registrant would remedy his shortcomings during any period of conditions or suspension and concluded that a Striking Off Order was the only sanction which was adequate to protect the public and to meet the wider public interest in terms of maintaining confidence in the profession and upholding proper standards of behaviour.
30. The Registrant appealed against this decision of 7 December 2016 to the High Court but his appeal was dismissed on 28 March 2017.
31. The Applicant (formerly the Registrant) now seeks to review the Striking Off Order on the basis of new evidence under Article 30(7) of the Health and Social Work Professions Order 2001.
This Article 30(7) Review Hearing
32. As stated above, the Panel at this hearing had regard to the HCPTS Practice Note on Striking Off Reviews: New Evidence and Article 30(7) and accepted the advice of the Legal Assessor.
33. Rule 13(10) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 provides that where the application is made by the former Registrant concerned, then the burden is upon the applicant to present his case first and for the HCPC to then respond to that case. This reflects the fact that the burden of proof is upon the applicant and that it is for the applicant to prove his case to the civil standard and it is not for the HCPC to prove the contrary.
The Legal Framework
34. The Panel considered the matter in three stages as set out in the Practice Note.
The first stage
35. The first stage is whether new evidence has become available which is relevant to the striking-off order which was made on 7 December 2016. The panel had in mind that ‘new evidence’ is any evidence that, for whatever reason, was not available to the Panel which made the original striking-off order, but which is relevant to the making of that order. Relevance is a matter for the judgment of the Panel. Evidence may be relevant if it is relevant to the respective findings that the allegations were proved, that fitness to practise was impaired, or the decision to impose the sanction of striking-off.
36. The Panel noted that the 2016 panel considered dishonesty on the basis of the two stage R v Ghosh test, namely the objective standard as to whether members of the public would regard what he had done as dishonest and then the subjective standard as to whether he actually realised that what he had done was dishonest. The Ghosh test has since been overruled and replaced with the test set out in Ivey v Genting Casinos [2017] UK SC 67. In this case, that meant considering all the circumstances in which the alleged dishonesty occurred, including what the then Registrant actually knew or believed to be the factual situation and have that in mind when asking whether, in light of his understanding of the situation, his conduct was dishonest by the standards of ordinary decent people.
The second stage
37. If there is new evidence, the Panel should then decide whether to admit that evidence. Whether to admit new evidence is a matter for the Panel’s discretion, but the Panel should consider the significance of the new evidence and (following Ladd v Marshall [1954] 1WLR 1489) whether with reasonable diligence the evidence could have been obtained and presented at the 2016 hearing, including whether there is a reasonable explanation for not doing so; whether the evidence is such that it could have an important influence on the result of the case; and whether the evidence is credible.
The third stage
38. If the evidence is admitted, having conducted a substantive review, the Panel has to decide whether or not to maintain the striking-off order.
39. In this hearing, the Panel decided to hear submissions from the parties in relation to the first and second stages together and to defer consideration of the third stage, should it be necessary, until after their determination on the first and second stages.
The new evidence presented by the Applicant: Stages 1 and 2
Bad relations with WAHT (grievance procedure / whistle blowing)
40. The Applicant submitted that his former employer held a grudge against him. He said there was a running issue between the Applicant and his managers. In his job interview in February 2013, the Applicant was given a commitment to assist him in qualifying as a reporting radiographer and that they went back on their word, resulting in a grievance process and a hearing that held in the Applicant’s favour in March 2014. Secondly, the Applicant reported a work backlog of over 25000 radiographic images to the Care Quality Commission (CQC). He stated that this provided a motivation to the Trust to attack him as a whistle blower. He submitted that the grievance procedure and whistle blower issues soured relations with his managers. There was documentation from the CQC, in the bundle, which indicates that they had found a very significant backlog of unreported radiographic images upon inspecting the department in the wake of the Applicant raising concerns to the CQC.
41. Ms Eales for the HCPC submitted that these issues were raised before the 2016 panel and did not amount to new evidence.
The Panel’s decision on the grievance procedure / whistle blowing
42. The Panel noted that there were multiple references to the grievance procedure between p.33-57 of the transcript of evidence of 5 December 2016 and there were references to whistle blowing at p.36 and p.43 of the same transcript. The Panel therefore determined that these issues were not new evidence.
Procedural issues at the previous hearing
43. The Applicant raised various procedural issues that were part of the 2016 hearing. His first choice of counsel was unavailable for the hearing date which left him having to instruct alternative counsel very late. He submitted that the refusal of an HCPC Panel Chair on 26 November 2016 to adjourn the hearing scheduled to start on 5 December 2016 put him at a disadvantage.
44. The Applicant further submitted that it was unfair that the HCPC were permitted to produce and rely on documents at a late stage, in particular the addition to the bundle on the first day of the hearing of an unsigned Starter Form relating to his new employment in 2013, a job application form and a secondary application form, all of which he said were relied on by the HCPC as showing that the Registrant had made no reference to his occasional work for the Nuffield Hospital when commencing employment for the Trust, on the first day of the hearing.
45. Ms Eales for the HCPC submitted that these were issues which had been heard and decided by the 2016 Panel and could not amount to new evidence. She explained that the documents produced at the start of the hearing had in fact been requested by the Applicant’s counsel at 10.20 am on the first day of the hearing. The HCPC had therefore obtained and disclosed the documents and both parties were free to rely on their content.
The Panel’s decision on the procedural issues
46. The Panel determined that the issues of adjournment and late disclosure of documents were heard and determined by the 2016 panel and that no new evidence had been presented in relation to either issue.
The low value of the fraud
47. The Applicant submitted that the value of the fraud was just £170 and that it was unlikely that he would have behaved dishonestly for such limited gain.
48. The Panel determined that whilst the exact value of the fraud was not before the 2016 Panel, it was clear to them that it was of relatively low value, so this was not new evidence.
Documents on the Applicant’s personnel file and an email
49. The Applicant made a freedom of information request on 23 January 2017 for his personnel file and a request for relevant emails from his line managers. He submitted that this request had produced three previously undisclosed documents that were not considered by the 2016 panel and that they contradicted the HCPC case that he had not disclosed his other employment at the Nuffield Hospital when applying for his position at WAHT in 2013.
50. The first document was an undated application form for the job at the Trust which referred to the Applicant’s occasional work as a Bank Senior Radiographer from June 2011 for the Nuffield Hospital. The leaving date was not filled in on the form because he had not left this employment.
51. The second document was a reference from PC, the Imaging Manager at the Nuffield Hospital, which stated that the Applicant had worked for them as a bank Radiographer since 2011.  It seems that this reference was obtained by WAHT when considering his application for his radiographer post in 2013. The Applicant submitted that it shows the Trust were well aware or should have been aware that his work for the Nuffield Hospital was continuing.
52. The third document was an email dated 27 May 2014 from one Trust manager to another showing that the manager had filled in a sick form for the Applicant and that he or she knew about his secondary work and believed that he might not know he should not continue that work while off sick for the Trust: I am aware that KH also works for another employer and would suggest that we should remind him that if he is off sick he cannot work for anyone else, as he may not be aware. I am not sure who should do that but I am happy to assist with that if required. The Applicant submitted that this email contradicted the HCPC case that he had not informed the Trust of his other employer and undermined the HCPC case that the Applicant knew he should not work for them whilst off sick from the Trust.
53. Ms Eales for the HCPC submitted that the 2016 panel had considered a number of different application forms. She could not definitively say whether the first document was one of those forms. In relation to the second and third documents, she accepted that neither were considered by the panel in 2016, although she raised the question of whether those documents could with reasonable diligence have been obtained by the Applicant at the time.
54. Ms Eales also submitted that the 2016 panel’s finding of dishonesty was not limited to the issue of whether he had disclosed his previous employment or not and referred the Panel to their finding at paragraph 15 of their decision in 2016:
The Registrant has admitted, at the outset of this hearing that he was working for Nuffield Hospital on the four dates alleged when he was on paid sick leave from WAHT. However in his live evidence, again he was evasive about whether or not he knew he was being paid by WAHT at the time. He also stated clearly that if he knew he was being paid by WAHT during his sick leave, he would not have worked at Nuffield Hospital. This demonstrates to the Panel that the Registrant in fact realised that this would be dishonest and the Panel is therefore satisfied that the subjective test for dishonesty has been met. The Panel has therefore found that the Registrant’s actions in particulars 1(a) to 1(d) were dishonest.
The Panel’s decision on documents on the Applicant’s personnel file and the email
55. The Panel determined on the balance of probabilities that the application form, the reference and the email were not part of the evidence that was before the 2016 panel. The Panel then considered whether this new evidence was relevant to the findings that were made by the panel in 2016. The first document (application form) and the second document (the reference) showed that the Applicant had disclosed his employment at the Nuffield Hospital when applying for his position at WAHT and that WAHT employees would or should have been aware of this other employment.
56. The third document (the email) confirmed that at least two WAHT employees were aware of his other employment at the Nuffield. The content of the email went further in that it confirmed there was a real concern that the Applicant was unaware that he should not have been working for his other employer if he was off sick.
57. Whilst accepting the submission made by Ms Eales that the alleged non-disclosure of the Applicant’s other employment was not the only basis for the Panel’s finding of dishonesty, the Panel concluded that it was an important part of the HCPC’s case at the 2016 hearing. The HCPC had called evidence to show that there was no reference to the Applicant’s other employment in his job application documents and none was found in a comprehensive search of occupational health records. The HCPC had specifically relied on the absence of any reference to the Nuffield employment in the New Starter Information Form. The combined effect of the three new documents produced by the Applicant was to contradict the contention that he had not disclosed his employment at the Nuffield.
58. Furthermore, the content of the email raised a genuine issue as to whether the Applicant actually knew that he should not work in his other employment whilst off sick at the Trust. The Panel found that this was of direct relevance to the issue of dishonesty and that it could have assisted the Applicant’s case on that issue. The Panel noted that the new test in Ivey v Genting Casinos still required the Panel to have regard to the Applicant’s actual knowledge or belief when deciding whether what he did was dishonest by the standards of ordinary, decent people.
59. The Panel therefore concluded that the documents were relevant to the findings of fact, including dishonesty, that were made by the 2016 panel. Had the 2016 panel nonetheless concluded that the Applicant had acted dishonestly, the content of these documents might also have assisted in mitigating the gravity of that dishonesty, which would have had relevance to the issues of impairment or sanction. The documents could therefore have had an important influence on the outcome at any of the three stages.
60. Having determined that these documents amounted to new evidence that was relevant (the first stage), the Panel therefore considered the second stage, namely whether to admit the new evidence. The Panel found that the evidence was significant because it contradicted the HCPC’s case on the Applicant’s alleged non-disclosure of his employment at the Nuffield and the email was directly relevant to the Applicant’s state of mind and the issue of dishonesty. The content of the documents was credible. There was no suggestion that they were not genuine or contemporaneous documents.
61. In determining whether this evidence could have been presented in 2016 with reasonable diligence on the part of the Applicant, the Panel  found no evidence that he would have known that any of the documents were available on an examination of his personnel file or that he could conceivably have known of the existence of the email. A search of his health records was conducted by those investigating the case on behalf of the HCPC. It is presumed that the HCPC did not search his personnel file or other emails, because they would have been under a duty to disclose these documents to the Applicant had they come to their attention.
62. The Panel also noted that the Applicant had left his employment in difficult circumstances in 2014 and it would have been difficult for him to access his personnel file at the time, even if he had wanted to do so. He also had some difficulties with his legal representation at the 2016 hearing. The Panel noted that his new counsel was making late disclosure requests even on the day of the hearing. The Panel therefore determined that the Applicant did not know that this evidence was available and that it was unrealistic to expect him to have obtained this evidence during the period from the termination of his employment in 2014 to the hearing in 2016.
63. For all the reasons stated above, the Panel therefore determined that the Applicant had shown that the three documents were new evidence that was relevant, significant and credible and concluded that they should be admitted in the third stage of this application, namely a consideration of whether or not to maintain the striking off order.
The Applicant’s submissions on the law at stages 1 and 2
64. The Panel noted that the Applicant relied on examples of a case before the Medical Practitioners Tribunal (Dr Coffey) in 2017 and a review case before the Nursing and Midwifery Council (Worsley) in 2020 in order to submit that the sanction imposed in his case was disproportionate. The Panel determined that this was not a matter of new evidence. It was open to the Applicant to make that point at the third stage, but the Panel would be concerned primarily with whether he met the registration requirements and whether he was a fit and proper person to resume practice.
65. The Applicant also relied on a report of an employment law case (Perry v Imperial College Healthcare NHS Trust [2011] UKEAT/0473/10/JO) in which the Employment Appeal Tribunal (EAT) held that an employee who visited patients’ homes for one trust but who did a second different deskbound job for another trust was unfairly dismissed. She had a knee condition which prevented her from doing her duties at Imperial so she signed off sick and received sick pay from Imperial. She was able to continue the second job for Ealing because there was no stress on her knee. She was dismissed by Imperial but the EAT held her dismissal to be unfair. An employee can be medically unfit under one contract but capable of work under another. She was not paid twice and there was no overlap of hours.
66. The Legal Assessor advised that this was an unfair dismissal case that was decided on its own facts and that the key issues in this application concerned whether there was new evidence going to the 2016 panel’s decisions on the facts, impairment and sanction and whether that evidence should be admitted, and that the Panel should concentrate on those issues. The Panel accepted the Legal Assessor’s advice and determined this case law did not constitute new evidence.

Stage 3
Preliminary issue in relation to stage 3
The Applicant’s objection to inclusion of documents in the hearing bundle
67. The Applicant objected to the inclusion in the hearing bundle of various email communications between himself and employees of the HCPC (p.4-53) on the basis that  these concerned arrangements for the hearing and did not relate directly to the issue of new evidence. He also submitted that the facts of the first case in 2016 were not relevant to the issues in this application.

68. Ms Eales for the HCPC contended that both the tone and content of the emails in 2020 and the facts of the first case in 2016 in relation to how the Applicant dealt with colleagues were relevant to the Panel’s assessment of whether the Applicant is a fit and proper person to practise the profession at this stage of the process. The HCPC had submitted in their skeleton argument that Rule 10 (1)(b) of the Procedure Rules permits the admission of any evidence which would be admissible in civil proceedings and that this evidence was relevant because it demonstrated that he lacked insight or remorse.

69. The Panel determined that the emails in 2020 and the evidence relating to the first  case in February 2016 had potential relevance to the issues of insight and remorse and the fit and proper person test that was an essential part of stage three. Both the emails and the previous case concerned issues of communication with colleagues and acting in a professional manner. The Panel therefore determined to admit this evidence because it was relevant to the issues at this stage of the process.

Legal framework
70. Once the third stage is reached, as with a restoration application, Article 33(5) provides that a person must not be restored to the Register following an Article 30(7) review unless the Panel is satisfied that the Applicant meets the general requirements for registration and that he is a fit and proper person to practise the relevant profession, having regard to the particular circumstances that led to the striking-off.

71. Having reached this stage, the Panel may therefore be assisted by the Practice Note on Restoration to the Register and the considerations that apply in determining restoration issues, namely:-
• The matters which led to the striking off and the reason given by the original Panel
• Whether the applicant accepts and has insight into those matters
• Whether the applicant has resolved those matters, has the willingness and ability to do so, or whether they are capable of being resolved by the applicant
• What other remedial and rehabilitative steps the applicant has taken
• What steps the applicant has taken to keep his or her professional knowledge up to date.
72. The Panel should also consider the public interest, specifically whether public confidence in the profession would be undermined by restoring the Applicant to the Register (GMC v Chandra [2018] EWCA Civ 1898).
73. If the Panel determines that a person is to be restored to the Register following an Article 30(7) review, restoration may be unconditional or conditional, or  alternatively, the Panel may exercise its power under Article 33(7) to replace the original striking-off order with a conditions of practice order.

Submissions by the Applicant
74. The Applicant relied on the following documents in support of his application to be restored to the register:-

• a professional resume which set out details of his employment from 2014 to 2020
• testimonials from colleagues from 2016 to 2019
• 13 pages of Gibbs reflective statements dating from June-September 2016, which he had originally submitted for a review of his Conditions of Practice Order in relation to the first case in March 2017. In fact, no review ever took place because the conditions were superseded by the striking off order in relation to the second case in December 2016

75. The Applicant set out his employment history since leaving the employment of WAHT in 2014 and since the Striking Off Order in December 2016. He relied on his history of continuous employment as evidence that he had continued to work in the field of radiography, if not as a Radiographer after 2016, and that he had been entrusted with responsible positions that required technical expertise and knowledge and the ability to train and work with others.

76. He worked as a Senior CT Radiographer from September 2014 to February 2017 at Alliance Medical Limited, in which he undertook scans and trained staff. He relied on various testimonials from his then colleagues to the effect that he was reliable, punctual, honest and worked well with others. He had disclosed his ongoing fitness to practise proceedings to the company. He had had to relinquish any aspect of his employment that involved him working as a Radiographer after the Striking Off Order on 7 December 2016.

77. He then worked for RIS/PACS (radiology systems) as a Business Analyst from February to July 2017 in which he directed company projects and liaised with clients. This was a five months placement with University College Hospital (UCH) in London in which he reconfigured systems over eight hospital sites and helped to write training packages for consultants and other medical staff.

78. He was then employed as an MRI Applications Specialist for Perspectum Diagnostics in Oxford from September 2017 to September 2018, in which role he trained radiographers and MRI technicians on the company’s products, set up an online training package, and acted as the company’s point of contact with UK companies and the NHS. This involved travel in the USA and Europe, setting up MRI systems and implementing protocols and training. He developed the UK marketplace for the company and undertook work with the Royal College of Radiologists.

79. He next worked for Boston Scientific (Space OAR) and was involved in the training of NHS consultants, nurses and radiographers in the company’s products. He was employed as a Clinical Specialist from November 2018. This involved travel to the USA and dealing with the treatment of prostate cancer and associated complications. He relied on a reference dated 31 August 2019 which confirmed that he was certified to mentor senior doctors and specialists in the use of company products, training senior doctors and medical staff. He was made UK Clinical Lead for a programme with NHS England. In relation to working with others, he was described as follows: ‘Ken has demonstrated himself to be a supportive team player who establishes very good working relationships with internal and external stakeholders. Having worked closely with Ken I can confirm that he is dedicated to all he undertakes, works very well with all clinical customers as required by his Clinical Specialist role, accepts challenges willingly and with enthusiasm and is a great colleague to have on any team.’

80. The Applicant stated that he eventually left his employment at Boston Scientific in October 2019 because he was offered a better role at MIS Healthcare, where he continues to work in the field of radiography. He has recently started an MBA at Aston University. As stated above, the Applicant relied on his ability to maintain employment in the same or a similar field as evidence of his fitness to return to practice and as evidence of an ability to work with other professional colleagues. He had not completed a professional return to work course, because that would have been premature pending the outcome of this application, but he was prepared to do so as a condition of his restoration. He had read articles and attended online webinars in relation to radiography as part of his work in any event.

81. The Applicant told the Panel that he regretted the matters that had led to his fitness to practise proceedings in 2014. He stated that losing his professional registration was the worst thing that had happened to him. He continued however to blame his former managers, although not radiographers, for matters arising from the whistle blowing episode whilst employed at WAHT in 2013-14.

82. He stated that he wished to return to the profession and submitted that he had progressed significantly since 2014 in relation to working with colleagues. He acknowledged that the evidence of his conduct towards others in the first case was unacceptable. He also accepted that he had shown irritation in his emails and general dealings with the HCPC in relation to this case.

83. He was asked by the Panel how he would deal with setbacks or problems if he encountered them again, especially if he had to accept an outcome at work that he did not like. He replied. ‘I am learning to live with it. Me getting angry is not helping and shows me in a bad light. I have to accept a decision that has been made. The system is what you do not agree with – not the people. At the first sign of conflict, I walk away, that is my coping mechanism.’ He said that he was willing to attend an Anger Management course.

84. In relation to working as a bank radiographer whilst receiving sick pay on four occasions in 2014, he maintained his case, as he had done in relation to stages 1 and 2, that this was not dishonest, although he accepted that he was not entitled to any overpayment. He stated that he had offered to repay the money, believed to amount to £170, but that no-one would accept the payment from him.

85. He submitted that the sanction of striking-off was disproportionate to the offence and relied on the outcome of other regulatory cases to support that contention (see paragraph 70 above). He also relied on a passage in Muscat v HCPC [2009] EWCA Civ 1090 as follows: ‘It is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off the professional register.’

HCPC submissions in response
86. Ms Eales for the HCPC referred the Panel to  the findings of the December 2016 panel. Whilst accepting that new evidence had been admitted in relation to material showing that the then Registrant had disclosed his employment as a bank radiographer at the Nuffield Hospital, she reminded the Panel that the alleged non-disclosure of his other employment was not the only reason for the 2016 panel’s finding of dishonesty. The finding was also based on the then panel’s view that he had given evasive answers in relation to whether he knew he was being paid by both employers at the time (see paragraph 60 above). Ms Eales also referred to the WAHT policy that it was not permitted to work for another employer on sick leave without permission. The 2016 panel had found that the misconduct was serious and fell well below the standards to be expected of a radiographer and had made findings of impairment on personal and public interest grounds. She also referred to their finding in 2016 that he had an attitudinal problem.

87. Ms Eales submitted that the concerns about the Applicant’s offensive communications with others that were highlighted in the first case in 2016 had been reinforced by the tone and content of his emails with those working for the HCPC in the period leading to this hearing in March to May 2020. She submitted that this showed there was a risk of repetition of such behaviour towards others and that he was unable to learn from or to remedy past misconduct. This showed that he lacked insight and he was too ready to blame others or blame the system. There was no reassurance that he would not behave in a similarly unprofessional manner again if he were subject to stress or pressure. He had not therefore shown that he was a fit and proper person to resume practice at this stage.

Decision
88. The Panel read and had regard to the HCPTS Practice Note on Article 30(7) Reviews which reminds Panels that the third stage of the Article 30(7) process requires consideration of whether the Applicant meets the general requirements for registration and whether he is a fit and proper person to practise the relevant profession, having regard to the particular circumstances that led to the striking off. The Panel accepted the advice of the Legal Assessor.

89. The Panel also read and had regard to further guidance on this issue in the HCPTS Practice Note on Restoration to the Register. The latter note reminds panels that they should consider the factors that are addressed below. The Panel therefore considered each factor as it applied in this case.

The matters which led to striking off and the reasons given by the original Panel for imposing that sanction

90. The nature of the Article 30(7) review process can pose a difficult exercise for a Panel. Having found that there was new evidence and having decided to admit that evidence because it was relevant, significant and credible in the sense that it might have affected the findings of the 2016 panel in relation to the facts or impairment or sanction, the Panel could not then disregard or ignore that new evidence at the third stage in its consideration of the matters which led to the original striking off order and the reasons given by the then panel. It follows inescapably from this Panel’s decision to accept and to admit new evidence that such evidence was of sufficient weight that it might have changed or mitigated the original findings.

91. The Panel accepted that there was another basis for the finding of dishonesty, namely the 2016 panel’s view that the Applicant answered questions in an evasive manner, but it has also determined that the new evidence presented at this hearing would have rebutted an important aspect of the HCPC’s case in 2016; namely that he had not disclosed his other employment to those working for WAHT. Additionally, the email from a manager which cast doubt as to whether, in her view, the Applicant was aware, at the relevant time, that he should disclose his continued bank work to WAHT was of significance in relation to the test for dishonesty. This Panel cannot say now whether this evidence would have altered the decisions of the 2016 panel in relation to dishonesty, impairment or sanction, but the new evidence would at the very least have provided significant additional mitigation to the effect that he had been open about his other employment when he worked for WAHT and that there was some doubt in the mind of at least one of his managers as to whether the Applicant was aware that he should disclose the bank shifts he was undertaking while on sick leave.

Whether the Applicant accepts and has insight into those matters;
Whether the Applicant has resolved those matters, has the willingness and ability to do so, or whether they are capable of being resolved by the Applicant.

92. The two questions above are so inter-related that the Panel has considered them together. The Applicant maintained his defence that he was not dishonest in relation to working for another employer in 2014 and relied on new evidence in support of that case. The Panel has admitted that evidence and, in so doing, accepted that the evidence might have altered or mitigated the findings of the panel in 2016 for the reasons already outlined above.

93. The Panel noted that the Applicant has since worked in responsible and skilled positions for other companies in a similar field over the last six years. He has produced positive references from those with whom he worked in 2016 and 2019. There is no suggestion of any repetition of dishonesty or other misconduct in relation to his working life since 2014.

94. The Panel therefore found that an episode of dishonesty can be remediated by the passage of time and general good conduct. The Panel noted the observations of Mr Justice Jay in GMC v Chaudhary EWHC 2561 (Admin) 2017 as follows: …dishonesty does not have to be an all pervading or immutable trait. A person can be dishonest just on one occasion. In this case, the amount involved, £170, was relatively small, the Applicant had offered to repay it, and there had been no other episode of this kind since 2014. Furthermore, the new evidence established that he had in fact been open about his other employment, which was a mitigating factor at the very least. The Panel determined that he was very unlikely to work for two employers in similar circumstances again and there was no suggestion of dishonesty in the Applicant’s working life since that time. The Panel therefore found the risk of repetition to be low in his case.

95. In relation to the Registrant’s continued denial that he was dishonest in 2014, the Panel did not regard his denial as determinative of whether he is now a fit and proper person to resume practice in 2020. The Panel had regard to the case of Yussuf v GMC EWHC 13 (Admin) 2018, a case that is cited in a footnote to the HCPTS Practice Note on Reviews of Article 30 Orders, to the effect that denial is a relevant factor, but that it does not by itself indicate a lack of insight.

What other remedial or rehabilitative steps the Applicant has taken

96. The Panel had greater concerns about the Applicant’s ability to maintain his self-control in dealing with colleagues when presented with obstacles, frustrations or an outcome with which he did not agree. The concerns highlighted in the first case were reinforced by the tone and content of his emails in dealing with employees of the HCPC in the period before this hearing in 2020 and on occasion by statements made by the Applicant during the course of this hearing. The Panel found that he was too ready to blame others, in particular those working for or representing the HCPC, for his current predicament.

97. The Panel therefore found more limited insight in this regard but also found reassurance in the Applicant’s recognition that that behaviour was counter-productive, the evidence from his reflective statements, the testimonial of a colleagues who had worked well with him in 2019, and his own suggestion in oral submissions that he was willing to undertake an anger management course. There was some risk of repetition of the attitudinal problems that had been identified by the December 2016 panel, but the Panel found that the risk was reduced by the evidence that he had maintained good professional relationships in his recent working life.

What steps the Applicant has taken to keep his professional knowledge and skills up to date

98. The Panel had regard to the evidence of the Applicant’s history of continued employment for private companies supplying medical products or technology to the NHS and other health care providers since 2014, as set out in his oral submissions and written resume and summarised above. His employment was closely related to his own former profession of radiography and he had been entrusted with training programmes in relation to medical products or technology that required technical knowledge and the ability to adapt to new fields and to work with others. The testimonials confirmed that the Applicant is competent and capable of working professionally with others.

99. The Panel noted that the Applicant had maintained a keen interest in radiography and had continued to work in the same field, although not practising as a Radiographer, for several years, notwithstanding his loss of registration in 2016. The Panel was satisfied that the Applicant posed no risk to the public or to patient safety. His technical competence was never in issue.


100. The Applicant had not yet undertaken the mandatory return to work course that is required for Radiographers who have been de-registered for more than two years, but the Panel had no concerns about his competence for the role and noted that any restoration could be made conditional upon the completion of return to work requirements, as set out in the HCPTS Practice Note on Restoration to the Register.

Overview
101. Having considered the questions above in relation to whether the Applicant was a fit and proper person to resume practice in his profession, including the circumstances that led to his striking off, the Panel determined that:

• the risk of repetition of dishonesty was low in view of the passage of time, which included continuous employment in responsible positions, without further incident;

• he had substantially remedied his misconduct by demonstrating that he could work effectively with others in a professional manner, as evidenced by his testimonials and recent employment history;

• his insight into his conduct with others, including those working for or representing the HCPC was more limited, but that it could be remedied by a Conditions of Practice Order;

• he had maintained his skills and knowledge of radiography by working continuously in the same or similar fields in positions that required technical competence since 2014 and that he posed no risk to the public by reason of lack of competence, subject to completing the general requirements for registration;

• that he could meet the general requirements for registration by completing the mandatory return to work course by a Conditions of Practice Order.


102. The Panel also had regard to the broader public interest in permitting capable professionals to practise, provided that they do not pose a risk to the public and that previous concerns have been remedied or are capable of remedy by a Conditions of Practice Order. The Panel having determined that the Applicant was technically competent, that the risk of any further episode of dishonesty was low, that he posed no risk to patient safety, that he had worked well with professional colleagues in a similar technical field in recent years, and that such issues as remained were capable of remedy, was satisfied that it was in the public interest for him to resume practice in his profession following his completion of the appropriate return to practice course and other registration requirements. The onus will be on the Applicant to obtain a place and to complete the course.

Order

Order: The Registrar is directed to replace the existing Strike Off Order with a Conditions of Practice Order and to restore the name of Kenneth R Hall to the Register, subject to the Applicant having:

a. paid the prescribed restoration fee;

b. satisfied the Registrar that there is or will be in force appropriate cover under an indemnity arrangement;

c. provided evidence which satisfies the Registrar that the Applicant has successfully completed a period of professional updating (the appropriate return to practice course) in accordance with HCPC Standards for Return to Practice.

Further, the Registrar is directed to annotate the Register to show that, for a period of 12 months, from the date that the Applicant is restored to the Register, you, Kenneth R Hall, must comply with the following conditions of practice:


1. Once registration is complete, you must inform the following parties that your registration is subject to these Conditions of Practice:
i. Any organisation or person employing or contracting with you to undertake professional work as a Radiographer
ii. Any agency you are registered with or apply to be registered with (at the time of application) in relation to employment as a Radiographer; and
iii. Any prospective employer (at the time of application) in relation to employment as a Radiographer
2. Complete a course (in person or remotely) on managing conflict. This course must be at least 6 hours in duration. Provide evidence of satisfactory completion to the HCPC at least 21 days prior to the next review.
3. Complete a course (in person or remotely) on effective communication skills. This course must be at least 6 hours in duration. Provide evidence of satisfactory completion to the HCPC at least 21 days prior to the next review.
4. To write a reflective piece on the importance of good communication skills in relation to managers, the Regulator and colleagues when dealing with disputes or conflicts. This piece should include the Applicant’s reflection upon his communications which led to the original Conditions of Practice Order (FTP39226), his communications with the HCPC in the lead up to this Restoration hearing, and his communication during this Restoration hearing. This piece should include the Applicant’s reflections on the potential impact of his conduct upon others.

Notes

 

 

 

Hearing History

History of Hearings for Mr Kenneth R Hall

Date Panel Hearing type Outcomes / Status
14/07/2020 Conduct and Competence Committee Review Hearing Restored with Conditions of Practice
03/06/2020 Conduct and Competence Committee Review Hearing Adjourned part heard
05/12/2016 Conduct and Competence Committee Final Hearing Struck off