Miss Miriam Butler

Profession: Radiographer

Registration Number: RA66052

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 02/03/2020 End: 17:00 05/03/2020

Location: Radisson Blu Hotel Belfast 3 Cromac Place, The Gasworks, Ormeau Road Belfast, Co. Antrim, BT7 2JB

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered with the Health and Care Professionals Council as a Radiographer and employed with Kingsbridge Private Hospital, you:

1. On 16 February 2018, clocked on at approximately 09:45AM but immediately left the hospital:

2. On 17 February 2018, clocked on at approximately 09:15AM and left the hospital but returned to clock off at approximately 17:15PM.

3. Did not undertake your role on either 16 February 2018 and/or 17 February 2018 or any part of these days.

4. Between 16 February 2018 and 28 February 2018 recorded on a signed, handwritten timesheet that you had worked on:

a) 16 February 2018; and
b) 17 February 2018.

5. Your actions at particular 1, 2, and 4 were dishonest.

6. The matters described at particulars 1 to 5 constitute misconduct.

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

Finding

Preliminary Matters

Service

1. Notice of the hearing was served by post on the Registrant’s registered address on 18 December 2019. On the same date, the notice of hearing was sent to the Registrant’s registered email address. The Panel, having heard and accepted independent legal advice, was satisfied that the Registrant had been given the required notice and that service had been effected in accordance with rules 3 and 6 of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).

Application for part of the hearing to be held in private:

2. The Panel heard a submission by Mr Foxsmith for those parts of the proceedings that concerned the Registrant’s health to be conducted in private. The Panel, having heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note, ‘Conducting Hearings in Private’. The Panel considered that it would convene in private when matters connected to the Registrant’s health were raised.

Proceeding in absence:

3. The Registrant was neither present nor represented. The Panel heard a submission from Mr Foxsmith to proceed with the hearing in her absence. Mr Foxsmith told the Panel that, in a written pro-forma response sent to her in advance of the listing of the case, the Registrant had indicated to the HCPC that she did not intend to attend the hearing or be represented. Further, in a letter dated 25 January 2020 to the HCPC, the Registrant stated: ‘I…wish to confirm that I will be unavailable to attend the hearing in person or via the telephone as I will be out of the country and I will remain unrepresented as I am not a member of a trade union. I do not wish for this hearing to be postponed.’ In a subsequent letter dated 11 February 2020, the Registrant stated: ‘I write to clarify…that I will not be attending the hearing in person, via video or telephone and I am voluntarily absenting myself from this planned hearing. I do not wish for this hearing to be postponed or adjourned to an alternative date. I will be unrepresented, and I intend to rely upon my written submissions and supporting documents. I will be leaving the UK on 20th February.’

4. In light of the clear and unambiguous correspondence received from the Registrant, Mr Foxsmith submitted that the Panel should proceed in the Registrant’s absence.
 
5. The Panel heard and accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note, ‘Proceeding in the Absence of the Registrant’.

6. The Panel agreed with Mr Foxsmith’s submission that the Registrant, in her written exchanges with the HCPC, had made an informed and unequivocal decision not to attend the hearing. She had expressly confirmed that she had absented herself voluntarily from the proceedings. She further stated that she did not wish for the hearing to be adjourned or postponed to enable her to attend or be represented at a future date. The Panel was entirely satisfied that the Registrant had voluntarily absented herself and that adjourning the proceedings would serve no useful purpose.

7. The Panel noted that proceeding in the Registrant’s absence could cause some disadvantage to her. However, the degree to which the Registrant would be disadvantaged in the course of the hearing would be offset by the detailed and extensive written submissions (with attached exhibits) made by the Registrant on the substance of the Allegation which she faced. The Panel would attach such weight to those submissions as it considered appropriate during the various stages of the adjudicative process as the hearing unfolded.

8. The Panel also considered the other factors which weighed in favour of the hearing proceeding in the Registrant’s absence. The allegations were serious, and the Panel noted the HCPC intended to call three witnesses. The Panel was satisfied that it was necessary to decide the facts of the case while the memories of the witnesses were still relatively fresh.
9. For all of the reasons advanced, the Panel considered that it was fair and appropriate to proceed in the Registrant’s absence. In so deciding, the Panel was careful not to draw any adverse inference against the Registrant in relation to her decision not to attend.

Allegation:

Whilst registered with the Health and Care Professionals Council as a Radiographer and employed with Kingsbridge Private Hospital, you:

8. On 16 February 2018, clocked on at approximately 09.45 am but immediately left the hospital.

9. On 17 February 2018, clocked on at approximately 09.15 am and left the hospital but returned to clock off at approximately 17.15 pm.

10. Did not undertake your role on either 16 February 2018 and/or 17 February 2018 or any part of these days.

11. Between 16 February 2018 and 28 February 2018 recorded on a signed, handwritten timesheet that you had worked on:

c) 16 February 2018; and

d) 17 February 2018.

12. Your actions at particular 1, 2 and 4 were dishonest.

13. The matters described at particulars 1 to 5 constitute misconduct.

14. By reason of your misconduct your fitness to practise is impaired.
 
Amendment to the Allegation:

10.  Mr Foxsmith made an application to amend the Allegation as follows:

• Particular 1: to delete ‘5’ from ‘09:45 AM’ and insert ‘2’ to read ‘09:42 AM’ and to delete the word ‘immediately’;
• Particular 2: to delete ‘15’ from ‘09:15 AM’ and insert ‘11’ to read ‘09:11 AM’ and to delete ‘15’ from ‘17:15 PM’ and insert ‘13’ to read ‘17:13 PM’;
• Particular 3: to delete the word ‘either’.

11. The Panel heard and accepted the Legal Assessor’s advice in relation to the correct approach to be adopted when considering applications by the HCPC to amend the Allegation. 

12. The Registrant had been put on notice in advance by the HCPC in respect of the proposed amendments. She had not raised an objection to them. The Panel could identify no injustice or prejudice to the Registrant and considered that the proposed amendments were minor in character. The Panel agreed with Mr Foxsmith’s submission that they were designed to better reflect the evidence which the Panel was required to consider. The Panel granted the application to amend the Allegation.

Allegation as amended:

Whilst registered with the Health and Care Professionals Council as a Radiographer and employed with Kingsbridge Private Hospital, you:

15. On 16 February 2018, clocked on at approximately 09.42 am but left the hospital.

16. On 17 February 2018, clocked on at approximately 09.11 am and left the hospital but returned to clock off at approximately 17.13 pm.

17. Did not undertake your role on 16 February 2018 and/or 17 February 2018 or any part of these days.

18. Between 16 February 2018 and 28 February 2018 recorded on a signed, handwritten timesheet that you had worked on:

e) 16 February 2018; and
f) 17 February 2018.

19. Your actions at particular 1, 2 and 4 were dishonest.

20. The matters described at particulars 1 to 5 constitute misconduct.

21. By reason of your misconduct your fitness to practise is impaired.
 
Registrant’s application to amend the Allegation:

13. The Panel was told by Mr Foxsmith that the Registrant had, in advance of the hearing, written to the HCPC on 4 February 2020 to request that the Panel consider her application to amend the Allegation. In that letter, the Registrant applied to amend the Allegation in the following manner:

 ‘While registered with the Health and Care Professions Council as Radiographer and employed with Kingsbridge Private Hospital, you:

1. On 16th February 2018, utilized the hand scanner at 09:45am but left the hospital.

2. On 17th February 2018, utilized the hand scanner at 09:15 but left the hospital. You returned at 17:15 and utilized the hand scanner once again.

3. Did not undertake your role on either 16th 2018 and/or 17th February 2018 due to unconfirmed sick leave.

4. Between 16 February 2018 and 28 February 2018 recorded on a signed timesheet your original rostered hours and did not confirm sick leave documentation had been completed.’

14. The Panel decided that it could not consider the Registrant’s application as it was not a matter for the Registrant to propose amendments to the Allegation. The burden rested with the HCPC to prove the case against the Registrant at the fact-finding stage. The Panel considered that it would be fairer to the Registrant to treat her letter dated 11 February 2020 as part of the case which she wished to make on the facts. Careful consideration would be given by the Panel to the Registrant’s letter and the other written submissions and materials furnished by her in advance of the hearing. 

Background

15. The Registrant was employed as a radiographer at Kingsbridge Private Hospital (‘the Hospital’) between 1 September 2014 until 16 March 2018, when she resigned.

16. The Registrant was investigated by her employer in respect of a claim for hours worked at the Hospital on two dates, namely, 16 and 17 February 2018. It was alleged that the Registrant submitted a timesheet for payment for hours worked on the two dates in question when she had, in fact, not worked the hours stated.

17. The Hospital instigated an investigation into the Registrant’s actions on 6 March 2018. She attended an investigatory meeting on 12 March 2018 and resigned on 16 March 2018 from her position at the Hospital. On 12 March 2018 the Hospital made a referral about the Registrant to the HCPC.

Evidence:

The Panel heard evidence from three witnesses employed by the Hospital:

1. Mr CC: Lead MRI Radiographer;
2. Mr AMK: Radiology Operations Manager; and
3. Ms HH: Group Human Resources Manager.

18. Mr CC was the first witness to give evidence to the Panel. He worked with the Registrant in the MRI department within the Hospital. Mr CC confirmed that the department was very small and that, at the relevant time, any MRI related issues would have been directed initially by the Registrant to him. Mr CC told the Panel that Mr AMK was the Registrant’s line manager.

19. Mr CC outlined that the MRI department was open between 8am and 8pm on weekdays and between 9am to 5pm on weekends. Radiographers were usually required to work for four long days per week on the rota between 8am and 8pm and on one shorter day at the weekend.

20. Mr CC was responsible for drawing up the MRI rota. There was also a main radiography rota that was drawn up by another staff member. Although Mr CC and the Registrant worked within the MRI department at the Hospital, an additional member of staff was being trained at the time and support was also utilised in the form of bank staff during busy periods. Working at weekends was not compulsory. When shifts at the weekend became available, members of the radiography team had the option of putting their name down for a weekend shift.   

21. Mr CC said that he had a good working relationship with the Registrant. He worked closely with her during her employment at the Hospital. Mr CC told the Panel that he had had a conversation with the Registrant at some point in December 2017 - January 2018 during which the Registrant had mentioned that she had been to see a doctor. No further detail was given to Mr CC by the Registrant, whom he described in his evidence, as a private person. The Registrant also told Mr CC that her mother was unwell and had been for some time. In order to accommodate visits by the Registrant to see her mother, who lived in Waterford, Mr CC stated that he would arrange the rota in such a way as to allow the Registrant to be off at least one long weekend per month for that purpose.
  
22. Mr CC gave evidence about the Registrant’s rostered hours for Friday 16 to Sunday 18 February 2018. Mr CC drew up the rota on the basis that the Registrant was scheduled to work on Friday 16 February between 8am and 8pm and on Sunday 18 February between 9am and 5pm. She was not required to work on Saturday 17 February.

23. Between one and two weeks before the rostered duties, Mr CC had a conversation with the Registrant in which she told him that she felt ‘burnt out’ and asked if she could reduce her hours. She did not elaborate on what she meant, other than to say that she had been working a lot and wanted some time off as Time Off In Lieu (‘TOIL’). Mr CC was unable to avail of bank staff for the Friday shift but, having looked at the patient lists, he told the Registrant on Tuesday 14 February 2018 that she could have the Friday off. This day would be taken by the Registrant as TOIL because of the number of hours she had worked the previous week. Mr CC said that, in permitting the Registrant to take time off, he was left on his own to undertake the work of the MRI department. Mr CC conceded that, in doing so, he was not adhering to best practice but felt sympathy towards the position in which the Registrant found herself. He described himself as a ‘soft touch’.

24. On Saturday 17 February, Mr CC saw that there was not much booked for the following day. He sent the Registrant a text message to let her know that she could take the Sunday off as well. This resulted in Mr CC working on his own on a second occasion. Mr CC was alive to possible complaints from other staff members by allowing the Registrant to take time off in a busy and sparsely staffed department. He sent the Registrant a further text message to confirm he had told other staff who queried her absence from a rostered shift, that the Registrant had phoned him to report that her non-attendance at work was due to being sick. This was untrue. Mr CC accepted in his evidence that he had not been sensible in his conduct but that his attempt to present an excuse for the Registrant’s absence was an effort, on his part, to keep the peace in the department.  
   
25. Mr CC gave evidence to the Panel about the manner in which staff recorded their hours of work at the Hospital and made claims for payment. The primary way in which hours worked were recorded was by means of an electronic hand scanner at the reception of the Hospital. Each staff member would clock in and out of work by inputting a unique three-digit code and placing their palm on the scanner as they entered for a shift and undertook the same process when they ended a shift.

26. Mr CC told the Panel that on occasion staff, at the end of their shift, sometimes forgot to clock off. In order to address human error and to avoid staff not being paid for hours worked, staff were also required to fill in a timesheet. The timesheets had a narrative to deal with days worked, days off, annual leave, TOIL or days off owing to sickness and that each staff member was required to fill in the timesheet, each month, and accurately record their duties at the Hospital. Mr CC also told the Panel that the timesheets were required to be sent by each employee to Mr AMK at the end of each month. Mr AMK would match the timesheet times to the hand scanner print outs. Mr AMK would check for any anomalies and Mr AMK would then send the checked timesheets to payroll for processing.

27. The Hospital gave Mr CC a short lesson on the use of the hand scanner as part of his induction. He stated that the process for the hand scanner and also the process for the timely submission of timesheets at the end of each month was straightforward and easily understood. He could not speak to any training on either the use of the hand scanner or the timesheets received by the Registrant as she had commenced employment at the Hospital before he did.

28. The Panel was told that the Registrant, in common with other employees at the Hospital, was contracted to work 40 hours per week. Hours worked in addition to the contracted hours were paid at an enhanced rate and were classed as overtime. Alternatively, Mr CC told the Panel that, provided a staff member worked in excess of their contracted weekly number of hours over the course of a week, fewer shifts could be worked in the following week. The time off was treated by the Hospital as TOIL and not as annual leave. Mr CC stated that the hospital had a flexible approach to such matters and that any request for TOIL needed simply to be raised verbally by the Registrant with him in advance.

29. In response to assertions made by the Registrant in her written submissions, Mr CC refuted her suggestion that he was responsible for the completion, accuracy or transmission to Mr AMK of the Registrant’s timesheet for February 2018. He was clear that the contents and sending of timesheets was the responsibility of each staff member at the Hospital personally and that he had no input into the timesheet for February 2018 submitted by the Registrant.

30. When pressed, Mr CC gave evidence that the Registrant’s likely motive in acting as alleged was probably financial. The Registrant clocked on and clocked off by means of the hand scanner at the Hospital. By filling in and signing a timesheet that she had worked on the dates in question when, in fact, she had not, Mr CC told the Panel that the Registrant would have been liable to have been paid overtime at an enhanced rate to which she was not entitled.

31. The Panel next heard evidence from Mr AMK. As Radiology Operations Manager at the Hospital he was the Registrant’s line manager.

32. Mr AMK gave evidence to the Panel concerning how the hand scanner and timesheets were used to record and authenticate claims for payment by staff at the hospital. Mr AMK confirmed that the Registrant was paid for hours worked as recorded on the hand scanner and the timesheet submitted. The Registrant, like other staff, was required to submit her timesheet at the end of each month. The timings recorded would be checked by Mr AMK against the print outs of the clocking on and off times produced by the hand scanner. Mr AMK stated that he would keep a look out for any anomaly between the timesheet recordings and those of the hand scanner. This would occur most frequently when staff forgot to clock off on the hand scanner at the end of their shift which would, if not rectified, often result in fewer hours being recorded than were actually worked. Mr AMK was responsible for collating the timesheets and, once any errors or anomalies had been corrected, for forwarding them to payroll for processing.

33. Mr AMK was clear in his evidence that timesheets were required to be submitted to him by email by each employee at the end of each month. It was the employee’s responsibility to ensure that the timesheet was appropriately and accurately filled in.

34. Mr AMK stated that he received the Registrant’s timesheet by email for February and that he submitted it for payment to payroll on 2 March 2018. On 6 March 2018, Mr AMK was made aware by Mr MR, the CEO of the Hospital, about an issue concerning the Registrant’s February timesheet. Mr AMK stated that the manner in which the Registrant had completed her timesheet gave the misleading impression that she had worked on both 16 and 17 February 2018. If the Registrant was off work or was not at work due to sickness, the timesheet ought to have been completed by the Registrant to accurately reflect this. The timesheet was not so completed. As a result of what she had submitted, Mr AMK stated that the Registrant would have been paid for work by the Hospital which she had not completed.

35. The Panel was told by Mr AMK that he had conducted an appraisal of the Registrant’s performance in January 2018. He confirmed his view, written on the appraisal document, that the Registrant was an ‘excellent’ clinician. He also confirmed that the Registrant had raised the level of staffing in the MRI department during the appraisal. This was recorded as, ‘Staffing to be looked at’. When pressed, however, Mr AMK denied the suggestion made by the Registrant in her written submissions that she had told Mr AMK during the appraisal that she was struggling at work due to the volume of hours worked. He also denied that the Registrant had told him that she was significantly stressed at work and felt continuously under pressure. Mr AMK said that while the MRI department had periods when it could be very busy, there was nothing unusual or abnormal about the hours which the Registrant worked when compared to her other radiologist colleagues.

36. When it was put to him, Mr AMK denied the Registrant’s account that, during a period a few days after 18 February 2018 when she was on annual leave, he had taken the Registrant’s timesheet from her desk, signed it and submitted it to payroll. Mr AMK stated that this was untrue for a number of reasons. First, the payroll cut-off at the Hospital was at the end of each month and not mid-month as indicated by the Registrant. Secondly, that it would have been entirely contrary to his function and the policy of the Hospital for him to sign a document which it was the responsibility of the Registrant to sign and verify
.

37. Finally, the Panel heard evidence from Ms HH. As the Group Human Resources Manager at the Hospital, Ms HH was charged to ensure that the investigation into the Registrant’s actions was conducted in accordance with the applicable disciplinary process. Ms HH had an oversight role. She was not involved in the fact-finding process or the investigation into the Registrant’s actions.

38. Ms HH confirmed that the Registrant had made a declaration in relation to her health when she commenced her employment. In that declaration, the Registrant confirmed that she had previously experienced  illness but that, with medication, she was being appropriately treated and that she did not feel inhibited in any way from working. Ms HH told the Panel that she was unaware of the Registrant’s declaration until March 2018, when the investigation into her conduct was started.

39. Ms HH had assumed her role after the Registrant had been employed by the Hospital and there had been no reason, during that time, to suppose that the Registrant had any adverse issue with her health. She had never raised it, or made any further declaration, to Ms HH or her line manager. The Registrant was considered as ‘exemplary’ in her timekeeping and was otherwise well regarded as a member of staff at the Hospital.

40. Ms HH stated the likely explanation for her actions was that the Registrant had been motivated by financial gain.

41. In his submissions to the Panel, Mr Foxsmith stated that the Panel could find the Allegation proved in its entirety on the balance of probabilities. He submitted that the evidence presented by the HCPC by way of CCTV of the Registrant’s movements as recorded at the Hospital on the dates in question, together with the written and oral evidence presented at the hearing was consistent and reliable. The Registrant had acted dishonestly and had used her underlying health difficulties as an excuse to cover up her dishonest actions. If the Allegation was proved, Mr Foxsmith submitted that the Panel might have no difficulty in determining that the Registrant’s actions amounted to misconduct. Mr Foxsmith also addressed the Panel on the question of current impairment of the Registrant’s fitness to practise. He submitted that the Registrant had demonstrated no insight and had not remedied her dishonest conduct. Further, Mr Foxsmith submitted that public trust and confidence would be undermined if a finding of current impairment was not made. Accordingly, Mr Foxsmith submitted that there was a proper basis, both in terms of the personal and public component, on which the Panel could conclude that the Registrant’s fitness to practise was currently impaired.
 
Decision on the facts

42. Before retiring to consider its decision on the facts, grounds and impairment the Panel heard and accepted the Legal Assessor’s advice.

43. The Panel was reminded that the burden of proof required the HCPC to prove each element of the Allegation on the balance of probabilities. The Panel could only be satisfied that a fact was proved if it was satisfied that it was more likely than not to have occurred. The Panel also had due regard to the HCPTS Practice Note, ‘Finding that Fitness to Practise is “Impaired”’. The Panel exercised its independent judgement on whether the grounds were made out by the HCPC and, in consequence, whether the Registrant’s fitness to practise was currently impaired.

44. At the outset of its deliberations, the Panel undertook an assessment of the witnesses from whom it had heard evidence. To the Panel’s mind, the witnesses called in support of the Allegation by the HCPC were reliable and consistent. The Panel considered that they gave their evidence in a straightforward and honest manner. The witnesses made appropriate concessions in the course of their evidence. This was best illustrated by Mr CC’s acceptance that his efforts to ensure that the Registrant had time off work during the relevant dates were not well judged nor best practice. The Panel also noted that there was no history of animosity between the Registrant and the witnesses and indeed the evidence given demonstrated a good working relationship between the Registrant and Mr CC.

45. The Panel then turned to consider the Allegation.

Particulars 1,2 and 3 proved:

46. The Registrant accepted in her submissions that she had clocked on at the Hospital on 16 February 2018 at 09:42 AM and, on 17 February 2018 at 09:11 AM she clocked on and returned on the same date and clocked of at 17:15 PM. On both occasions the Registrant accepted that she left the Hospital after clocking on and thereby did not undertake her role on either date. These facts were also established by the evidence given by Mr CC and Mr AMK, together with the CCTV footage taken from the Hospital on both dates which was viewed by the Panel during the course of the hearing.

The Panel found Particulars 1,2 and 3 proved on the balance of probabilities.
Particular 4 proved:

47. In her written submissions, the Registrant admitted that she had filled in the February timesheet. Against the dates 16 and 17 February 2018, the Registrant recorded ‘MRI’ to signify that she was at work.

48. The Registrant stated in her submissions that she had left the timesheet on her desk when she was on annual leave and that it was signed by Mr AMK, some days after the relevant dates, before being submitted to payroll. This was denied by Mr AMK in his evidence. He stated that the timesheet for February had been completed and signed by the Registrant and submitted by her by email for Mr AMK’s attention. Having the benefit of observing the witness and considering his evidence carefully, the Panel preferred Mr AMK’s evidence over the written account given by the Registrant. It was satisfied that the timesheet had been completed and signed by the Registrant whereby she recorded that she had worked on 16 and 17 February 2018 at the MRI department.

49. The Panel found Particular 4 proved on the balance of probabilities.
Particular 5 proved.

50. In relation to this Particular, the Panel reminded itself of the test for dishonesty as set out in Ivey v Genting Casinos Ltd t/a Crockfords [2017] UKSC 67.

51. The Registrant stated that on both 16 and 17 February 2018 she attended for work at the Hospital. She clocked on using the hand scanner. On both occasions, the Registrant described feeling anxious, fatigued and overwhelmed. The Registrant decided to leave the Hospital shortly after clocking on as she felt that she was not in a fit state to work. On 17 February 2018, the Registrant returned to the Hospital to speak with Mr CC about her difficulties, but, by the time she had arrived, Mr CC had left work for the day. In the days following, the Registrant stated that she assumed that Mr CC would have communicated the difficulties that she was having with her health to management at the Hospital.

52. In reaching its decision in relation to dishonesty, the Panel took careful account of the health and personal circumstances put forward by the Registrant as an explanation for her actions. Having carefully considered the evidence and submissions made to the Panel by the Registrant, the Panel concluded that the Registrant’s underlying health issues and personal circumstances were not the cause of her actions on the dates when she claimed to be at work at the Hospital when she was not. She had made an appropriate declaration about her health difficulties when she commenced employment with the Hospital in September 2014. From that point onwards, however, the Registrant did not raise her health as an ongoing issue with either her work colleagues, her line manager or management at the Hospital. The Registrant made a self-referral about her  health to her GP in April 2018, subsequent to the investigation into her conduct and resignation from her position.

53. The Panel, on the evidence presented, could identify no basis on which to conclude that the Registrant would have felt deterred from raising problems with her health with her colleagues. Instead, the Panel formed the view that a high degree of trust was placed by the Hospital in employees and that such issues could be raised freely and openly.

54. The Registrant, as a longstanding member of staff, was familiar with the purpose of the hand scanner system. She had used the hand scanner in a manner that would give the impression that she was at work when she was not. Further, she had completed the relevant entries in her timesheet for the dates in question to make it appear that she was engaged in MRI duties. The Registrant had sought to place the blame on her colleagues for signing and submitting the timesheet. She had failed to accurately record against the dates to indicate that she was, in fact, off work on those dates. The Panel did not accept her evidence that Mr AMK had signed her timesheet and submitted it to payroll. It preferred Mr AMK’s evidence which made it clear the Registrant was responsible for the completion, signature and submission of her timesheet.

55. The Panel was satisfied that the Registrant’s actions on 16 and 17 February 2018 were an attempt by her to take advantage of the largely self-regulated system that was in place at the Hospital to record hours worked and to convey a false and misleading impression that she was at work when she was not. The Panel concluded, on the balance of probabilities, that the Registrant’s actions were dishonest and that her actions would be viewed as dishonest according to the ordinary standards of honest and reasonable people.

The Panel found Particular 4 proved on the balance of probabilities.

Decision on grounds

56. Having decided that Particulars 1 to 4 were proved, the Panel next considered whether, in consequence, the Registrant’s actions amounted to misconduct. The Panel heard and accepted the Legal Assessor’s advice.

57. The Panel concluded that the Registrant had fallen significantly below the standards to be expected of her. She had acted in a manner so as to dishonestly convey that she was at her place of employment when she was not.

58. The Panel determined that the Registrant had breached the following provision of the ‘Standards of conduct, performance and ethics’ issued by the HCPC:

‘9. Be honest and trustworthy

Personal and professional behaviour:

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.’

59. There was no evidence to demonstrate that she had gained financially from her actions. Further, the Registrant had acted in the manner alleged over a relatively short period of time. Nonetheless, the Registrant had behaved in a calculated and deliberate manner to take advantage of the system that operated at the Hospital for the recording of hours worked, to create a false picture that she had presented for work. The Panel was satisfied that the Registrant’s actions were reprehensible, serious and amounted to misconduct.

Decision on Impairment 

59. The Panel considered, in consequence of its finding that the Registrant’s actions amounted to misconduct, whether her fitness to practise was currently impaired. The Panel bore in mind that the test was expressed in the present tense. A finding of impairment could only be sustained where the Panel was satisfied that, as of today, the Registrant’s fitness to practise is impaired. The Panel reminded itself that impairment comprised a personal and a public component.

60. The Registrant had acted dishonestly and had taken advantage of a system with which she was very familiar to make it appear that she was engaged in her role at the MRI department when she was not. The Registrant had attempted to deploy her undoubted health issues as an explanation for her actions. She had attempted to place blame on her work colleagues to suggest that it was as a result of their actions, and not her own, which had resulted in a false and misleading timesheet being presented for payment by the Hospital.
 
61. The Panel reminded itself of the formulation set out in Cohen v GMC [2008] EWHC 581. First, the Panel considered whether the Registrant’s actions were capable of remedy. It noted that dishonesty was difficult to remedy but, in the circumstances of this case, the Panel considered that the Registrant’s actions were remediable. However, the Registrant had not produced evidence to demonstrate remediation. She had confirmed, in her submissions, that she had attended a fraud course but had not produced any further evidence in respect of her attendance, why she felt the need to attend such a course or what it entailed. The Panel had not received evidence from the Registrant of remediation. As a result, the Panel considered that it could not be said that the Registrant was highly unlikely to repeat her misconduct.

62. The Panel also had regard to the guidance given by Dame Janet Smith in her Fifth Report to the Shipman Inquiry and approved in CHRE v NMC and Grant [2011] EWHC 927. The Panel concluded that the Registrant had breached a fundamental tenet of her profession, had brought her profession into disrepute and had acted dishonestly. The Registrant has not demonstrated insight or remorse for her actions. In the absence of evidence of insight and remediation, the Panel considered that the Registrant was liable to act in a similar manner in the future.

63. For these reasons, the Panel considers that, applying the personal component, the Registrant is currently impaired and that a finding of impairment is required to protect the public.

64. The Panel also considered the public component. There was no evidence that patients were harmed as a direct result of the Registrant’s actions or that she had, in fact, gained financially. The Panel was also aware of the Registrant’s underlying health issues and personal circumstances. However, the Panel could not lose sight of the fact that the Registrant had acted dishonestly. She had not been honest and straightforward in her dealings with her employer.  She had acted in a deliberate manner to convey the impression to her employer that she had been in her place of work when she had not. As a result, she would have been liable to have been paid overtime pay to which she was not entitled. The Registrant had attempted to blame her work colleagues for her actions and had sought to rely upon her underlying mental health issues as an excuse for her actions.

65. The Panel considered that the public would find it unacceptable for a person in the Registrant’s position to act in this manner. The Panel considered that not to make a finding of impairment on the public component would undermine public trust and confidence in the health care profession and the HCPC in its regulatory function. To make no finding on public interest grounds, to the Panel’s mind, would also fail to declare and maintain proper standards of conduct and behaviour. 

66. The Panel is satisfied that, for these reasons and applying the public component, the Registrant’s fitness to practise is impaired.
 
Decision on Sanction

67. The Panel heard a submission from Mr Foxsmith on the question of what, if any, sanction to apply. Mr Foxsmith addressed the aggravating and mitigating factors in the case. He reminded the Panel of the need to impose a suitable sanction that would uphold and protect the public interest. In light of its findings in respect of dishonesty and impairment, taken together with the absence of insight or remediation, Mr Foxsmith submitted that, in reality, the Panel might be hard pressed to arrive at an appropriate sanction short of suspension. He stressed, however, that the question of the appropriate and proportionate sanction was for the Panel alone in the exercise of its independent judgement.

68. The Panel heard and accepted the advice of the Legal Assessor. The Panel, he advised, should exercise its judgement to arrive at a proportionate sanction that would adequately protect the public and be in the public interest. The Committee also had regard to the Sanctions Policy (‘the SP’) issued by the HCPC (Last updated March 2019).

69. The Panel first addressed the mitigating factors. These were:

• The Registrant had, until this point, an unblemished professional career and was a person of good character;

• The Registrant had engaged and cooperated in the regulatory proceedings brought against her by the HCPC.

70. The Panel then addressed the aggravating factors. These were:

• The Registrant had not demonstrated evidence of insight or remediation;
• The Registrant had failed to offer an apology or remorse for her actions. She had, instead, attempted to blame her work colleagues in relation to the completion and submission of the timesheet which contained dishonest information;

• The Registrant had attempted dishonestly to obtain payment from her employer of overtime to which she was not entitled.  She had acted in a deliberate and calculated manner.

71. The Panel first considered whether it was fair and appropriate to conclude the matter by taking no action or imposing a caution order. It looked at each of these in turn. In light of its findings and the seriousness of the misconduct identified, the Panel considered that taking no action or imposing a caution order were inadequate to protect the public.

72. The Panel next considered whether it would be proportionate to impose a conditions of practice order. The Panel noted that the Registrant was not currently employed as a radiographer but concluded that, regardless of her employment position, a conditions of practice order would be an inadequate safeguard to protect the public. The Registrant had not shown insight into her dishonest conduct, nor had she produced evidence to the Panel of remediation. In light of its findings and in the absence of insight and remediation on the Registrant’s part, the Panel could not frame enforceable, verifiable and workable conditions that would adequately protect the public.
  
73. The Panel next gave careful consideration to the imposition of a suspension order. It paid particular attention to paragraph 121 of the SP. The Registrant’s actions were short lived and spanned two dates. There was no evidence that she had benefitted financially from her actions. She had, however, engaged in a deliberate act to attempt to obtain a financial advantage to which she was not entitled. In the Panel’s estimation, the public was right to think that a professional radiographer could be trusted, at all times, to act with honesty and integrity. The Registrant had failed in that regard. She had failed to acknowledge her wrongdoing and had not given an assurance or undertaking not to repeat it. Instead, she sought to shift the blame for what had happened to her professional colleagues. The seriousness of the misconduct was compounded, in the Panel’s judgement, by the absence of insight and the lack of evidence of remediation on the Registrant’s part. There remained, as a result, a risk that the Registrant would repeat her misconduct.

74. The Panel considered, in light of these factors, that the breach of professional standards was towards the higher end of the spectrum of seriousness. The Registrant had acted in a manner that was detrimental and damaging to the public’s trust and confidence in the profession of which the Registrant is a member. The Panel concluded that a suspension order would not be a sufficient, appropriate or proportionate sanction to mark the seriousness of the Registrant’s misconduct and particularly her dishonesty. 

75. As a result, the Panel concluded that the only appropriate and proportionate sanction to impose was a striking off order. The Registrant’s actions represented a serious breach of the fundamental tenets of the profession. The Registrant had also acted in a manner which was, to the Panel’s mind, fundamentally incompatible with remaining on a professional register. The Panel concluded that to allow the Registrant to practise would not protect the public, would undermine public confidence in the profession and the HCPC in its regulatory function and would not uphold proper standards of conduct and behaviour.

Order

ORDER: That the Registrar is directed to strike the name of Miss Miriam Butler from the Register on the date this order comes into effect

Notes

 
An appeal against this decision has been lodged. As per the Interim Order imposed, the Registrant will remain interim suspended until the appeal is disposed of.
 
 
Application for an interim order to cover the appeal period
 
76. The Panel heard an application from Mr Foxsmith for an 18-month interim suspension order to cover the appeal period. He submitted that such an order is necessary to protect the public and is in the public interest.

77. The Panel considered the HCPTS Practice Note entitled ‘Interim Orders’ as well as paragraphs 133-135 of the SP. The Panel heard and accepted the advice of the Legal Assessor.

78. The Panel decided whether or not to hear the application for an interim order in the absence of the Registrant. In deciding this issue, the Panel took into account that the Registrant had been informed, in the Notice of hearing dated 18 December 2019, that if the Panel found that the case against her was well founded and it imposed a sanction which removed, suspended or restricted her right to practise, the Panel may impose an interim order. In addition, the Panel took into account the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant. In the circumstances, and for the same reasons, the Panel determined that it would also be fair, proportionate and in the interests of justice to grant Mr Foxsmith’s application.

79. The Panel took into account its previous findings, and adopting its reasons, the Panel came to the conclusion that an interim order is necessary to protect the public. Further, an interim order is in the wider public interest to maintain public confidence in the profession and to uphold proper standards.

80. The Panel was mindful of its decision at the sanction stage that conditions were not appropriate. The Panel considered that not to impose an interim suspension order would be inconsistent with its finding that a striking off order is required.

81. The Panel recognised that the Panel must take into consideration the impact of such an interim order on the Registrant as part of the principle of proportionality, and must balance the impact on the Registrant with the need to protect the public and uphold the public interest. In the circumstances of the case, the Panel was satisfied that the need to protect the public and uphold the public interest outweighed the Registrant’s interests in this regard.

82. The Panel decided to impose an Interim Suspension Order for a period of 18 months, a duration which is appropriate and proportionate to allow any appeal which the Registrant may bring, to be concluded.
 
Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same is necessary to protect the public  and is  in the public interest.  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) upon the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Miss Miriam Butler

Date Panel Hearing type Outcomes / Status
02/03/2020 Conduct and Competence Committee Final Hearing Struck off