1. This is a mandatory review under Article 30(1) of the Health Professions Order 2001. The Panel has read the 30-page HCPC bundle and heard submissions from the Presenting Officer, Miss Louisa Simpson and from the Registrant (via telephone).
Hearing partly in private
2. Miss Simpson made an application for the hearing to be conducted partly in private to protect the private and family life of the Registrant where reference is made to such matters. The Registrant did not object to that application.
3. The Panel accepted the advice from the Legal Assessor to consider the HCPTS Practice Note on “Conducting Hearings in Private”. The Panel had regard to the reasons for the application which was limited to a small number of private health-related matters.
4. The Panel decided that the hearing should be heard partly in private to protect the private and family life of the Registrant.
5. The Registrant is an HCPC registered Radiographer. She volunteered to work in the Community Radiology Department of the Fraserburgh Hospital from July to August 2017, working on Monday’s only. MA informally supervised the Registrant during this period. The Registrant was working voluntarily in order to complete ‘return to work’ sessions to assist her to obtain a full-time role as a newly qualified Radiographer.
6. Shortly after the Registrant had started working at the Fraserburgh Hospital, MA noted that she was unable to conduct basic examinations, which a qualified Radiographer would be expected to conduct. MA had to largely teach the Registrant basic radiography skills.
7. After seeing no improvement in the Registrant’s practise, on 21 August 2017, MA documented her observations and the errors that the Registrant had made. MA later raised her concerns about the Registrant’s practice with SI, who subsequently referred the matter to the HCPC.
8. LS, a Senior Radiographer, also worked with the Registrant at the Fraserburgh Hospital on one occasion. LS produced a statement detailing her observations, and she had similar concerns to those MA had expressed. They both considered that the Registrant lacked basic radiography skills, with regard to patient positioning and the appropriate use of equipment. This was not based on isolated incidents and the Registrant’s errors were repeated, despite advice being given on correct procedures.
Substantive hearing on 22 to 23 January 2019
9. Particulars 1a to 1d inclusive were found proved at the substantive hearing. The original panel had no concerns in relation to the reliability of either witness for the HCPC. The panel also heard oral evidence from the Registrant which was honest about her abilities. The Registrant recognised she had made mistakes. She demonstrated insight, a willingness to remediate her failings and she admitted Particulars 1a to 1d inclusive. Her admissions were taken into account, but the panel also found these particulars were each proved, based upon the evidence of MA and LS and the documentary evidence. The panel found there was no case to answer in respect of Particular 2.
10. The Registrant’s errors were not isolated, and she demonstrated a lack of knowledge throughout her work. She repeatedly made the same mistakes, despite being corrected and guided through the process. In some instances, she would make the same mistake again, immediately after being corrected. As a qualified Radiographer she was expected to know the basics of imaging, but she did not appear to have that knowledge. The Registrant stated that she was aware of her failings with regard to practical radiography skills and that she is in need of a return to practice course and / or a practical placement and retraining. However, since her case was referred to the HCPC, in September 2017, she has been unable to obtain employment as a Radiographer with a supervisor.
11. The original panel found the Registrant had failed to meet HCPC Standards of Proficiency for Radiographers: 13, 14.1, 14.18 and 14.24. She had fallen short of the standards of proficiency, to be expected of a newly qualified Band 5 Radiographer, giving rise to a finding of a lack of competence. The Registrant had made basic errors repeatedly and there was a risk of repetition. The panel found the Registrant’s fitness to practise was impaired under the personal and the public components. However, she had demonstrated insight and her impairment was capable of being remedied. The Registrant recognised the need for supervision of her work, and she had voluntarily undertaken supervised work. She had shown improvements over an eight-day period and was willing to undertake further training. Also, she had spent time carrying out CPD and private study, engaged in the regulatory process and admitted all the proved facts. Therefore, Conditions of Practice could adequately address the risk (given the proactive way in which the Registrant had engaged with the HCPC). This would enable a reviewing panel to determine whether the required period of supervised practice, had been successfully completed.
12. The original panel decided a Suspension Order would be disproportionate and unduly punitive, in the circumstances. The reviewing panel was likely to be assisted by a written reflective piece on how the Registrant’s practice had developed.
Review hearing on 15 April 2019
13. This case was listed for an early review, at the request of the HCPC, to seek clarification of the practical operation of the conditions and to review progress. This panel carried out a comprehensive review of the Order and was encouraged by the Registrant’s continued engagement and attendance at the review. However, there was very little evidence of remediation and the Registrant’s fitness to practise remained impaired. She had not undertaken a period of supervised practice and thus was unable to demonstrate that she is safe to return to unrestricted practice.
14. A Conditions of Practice Order continued to be the appropriate and proportionate sanction. A more severe sanction was considered to be disproportionate, given the remedial nature of the failings and the Registrant’s commitment to remedy them. The reviewing panel decided to vary and extend the existing Order for 12 months, to allow the Registrant sufficient time to comply with the Conditions.
15. Miss Simpson submitted that in view of the Registrant’s current circumstances, an extension of the Conditions of Practice for a further 12 months was appropriate. This would allow the Registrant time to engage with the supervised practice conditions and to demonstrate that she is able to safely return to unrestricted practise. Her fitness to practise remains impaired due to the failure to remediate her lack of competence for reasons which she has explained. Her consistent engagement and commitment to the HCPC process, suggests that to impose a Suspension Order would be disproportionate at present.
The Registrant’s Submissions
16. The Registrant informed the HCPC that, in February 2020 she had given birth and would be unable to secure employment, for maternity and childcare reasons. In an email to the HCPC dated 01 March 2020 the Registrant stated that she had written to “most of the hospitals in Aberdeen” requesting an internship but had not received any positive responses. She became pregnant in 2019, and due to her pregnancy was unable to pursue employment opportunities outside Aberdeen. She requested an extension of the current Order, to allow her further time to comply with it. She stated that she has never worked in the UK as a radiographer. She graduated in Nigeria where she undertook a 3 to 4-month internship but she then moved to the UK before completing her internship which would normally last for 12 months. Since the last review hearing she has received a response from only one hospital. They stated there was no space available for her to work as a volunteer Radiographer. She had not received a response from the other two Aberdeen hospitals she had contacted.
Advice of the Legal Assessor
17. The Legal Assessor advised the Panel that the purpose of this review is not to conduct a rehearing, or to go behind the previous panel’s findings. He advised that in carrying out a review, the Panel should have regard to the HCPTS Practice Notes on Article 30 reviews and on Finding that Fitness to Practice is Impaired.
18. If the Panel finds that the Registrant’s fitness to practise remains impaired, the HCPC Sanctions Policy (SP) should be considered, in relation to the available sanctions, starting with the least restrictive.
19. In determining whether fitness to practise is impaired, panels must take account of a range of issues which, in essence, comprise two components: The ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and the ‘public’ component: the need to protect service users, declare and uphold professional standards and maintain public confidence in the profession. The personal component includes the risk of repetition and to what extent any lack of competence has been remedied. In respect of the public component the Panel has to consider public policy issues, which include the need to: maintain confidence in the profession and to declare and uphold the HCPC standards of proficiency.
20. Under Article 30(1) of the Health Professions Order 2001, the Panel may—
a. Extend the current Order;
b. Make any order it could have made at the time of the original Order being imposed;
c. Replace the Conditions of Practice Order with a Suspension Order. The sanction of a striking off order is not available to the Panel today.
21. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Notes on Article 30 Reviews, ‘Finding that Fitness to Practice is Impaired and the SP’.
22. The substantive hearing panel stated that:
“18 The Registrant has not been working as a radiographer since August 2017 and she has taken some steps to remediate her impairment. She has engaged in private study, research and online courses and has insight as to the extent to which her lack of knowledge impacted upon her work. She states in her written submissions to the Panel that she would like to have an opportunity to retrain: “…because I know I still have a lot to offer”.
23. The first reviewing panel stated that:
"11The task for today’s Panel is to review what, if any, progress the Registrant has been able to make to address the impairment found by the last Panel and to comply with the conditions imposed and also to consider whether, if the Registrant is still found to be impaired, the current Order in its current form is appropriate and workable.
12 The Panel considered, with care, the parties submissions, together with the documentation provided. The Panel accepted the advice of the Legal Assessor and in reaching its decisions referred to the HCPTS Practice Note on ‘Finding Fitness to Practise is Impaired’. The Panel carried out a comprehensive review of the current order in light of the circumstances as they exist today.
13 The Panel first considered the issue of current impairment. The Panel took account of the principle set out in Abrahaem v GMC  EWHC 183 (Admin) that there is, in practical terms, a persuasive burden at a review hearing for the Registrant to demonstrate that he or she has “fully acknowledged why past performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”
24. The Panel today finds the Registrant’s fitness to practise is still impaired on personal and public policy grounds. There has been no significant change in the Registrant’s circumstances, and she concedes that her fitness to practise is still impaired. She has never worked as a radiographer and the current order is in her own interest and in the public interest. She has not yet been in a position to remediate her failings due to her personal circumstances and maternity leave.
25. The Panel has considered what the appropriate and proportionate sanction should be, if any; taking the available sanctions in order of severity, starting with the least restrictive. The Panel determined that taking no further action, mediation or imposing a caution would not be sufficient to protect the public or be in the public interest or the Registrant’s interest.
26. In the light of the Registrant’s circumstances and her continuing engagement with the HCPC, the Panel considered whether to extend or vary the current Conditions of Practice. The Registrant has engaged with the Panel in writing, in her oral submissions at the hearing and has insight into the matters giving rise to her current impairment. However, the Registrant has not provided documentary evidence of the attempts she has made to comply with the Conditions, or the reply received from one of the hospitals she has contacted.
27. The Panel concluded that the current Order remains appropriate to alleviate the risks to the public identified by the final hearing panel. Although there has been no significant or meaningful progress made by the Registrant since the final hearing, this has been through no fault of her own.
28. However, there has been a considerable lapse of time since this Allegation arose and therefore a further extension of the Order (as varied) for 12 months is appropriate. At the next review hearing all options will be available to the panel including a striking off order.
29. The next reviewing panel is likely to be assisted by documentary evidence of further attempts made by the Registrant to obtain a supervised placement; and by her continued active engagement with the HCPC process.