Mrs Jean M Kelly

Profession: Radiographer

Registration Number: RA20366

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 17/03/2020 End: 17:00 18/03/2020

Location: Health and Care Professions Tribunal Service

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

While registered as a Radiographer with the Health and Care Professions Council and whilst in employment with Birmingham Community Healthcare NHS Foundation trust, you:

1. On 11 September 2018, struck a colleague by hitting or slapping them around the face.

2. The matter set out in paragraph 1 constitutes misconduct

3. By reason of your misconduct your fitness to practice as a Radiographer is impaired.

 

Finding

Preliminary Matters

Service

1. The Panel accepted the advice of the Legal Assessor. The Panel had sight of a letter dated 19 December 2019, sent to the Registrant at her registered address, giving notice of the hearing, and determined that service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003. The notice set out the time, date and venue of the hearing and also advised the Registrant of the Panel’s power to proceed in her absence in the event that she chose not to attend.

Proceeding in absence

2. The Panel heard and accepted the legal advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of the Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented.

3. The Panel noted that, in the Response Pro-Forma and Pre-Hearing Information Form completed by the Registrant, she indicated that she would not be attending this hearing. She stated that she had retired from work after 41 years and had no intention of returning to practice in the future. In light of this response, the Panel concluded that the Registrant had voluntarily and deliberately absented herself from the hearing and thereby waived her right to attend. She had not asked for an adjournment and the Panel saw no reason why she would attend on another occasion were the matter to be adjourned. There was a clear public interest in the matter being dealt with expeditiously. Two witnesses were participating in the hearing and the Panel took into account fairness to them and also the effect of delay on their memories.

4. The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inferences from the Registrant’s non-attendance and take into account any documents within the papers that furthered her case.

Application to amend the Allegation

5. Ms Sheridan made an application to amend the Allegation so that it more accurately reflected the evidence of Colleague A, so that Particular 1 read “struck a colleague by hitting and/or slapping them around the face.” The Registrant had been notified in advance of the application and had not raised any objection. Ms Sheridan also applied to correct some minor typographical errors.

6. The Panel accepted the advice of the Legal Assessor. It could see no injustice in allowing the amendments and noted that the Registrant had not raised any objection. It was important that the matters alleged accurately reflected the evidence and that typographical errors were corrected. The Panel therefore decided to allow the amendments requested save for the addition of the word “and”, since there was no suggestion that there was more than one contact. It was either a hit or a slap, but not both.

Application for parts of the hearing to be in private

7. Ms Sheridan made an application that parts of the hearing be in private when they dealt with matters relating to the health or personal life of the Registrant. The Panel accepted the Legal Assessor’s advice that, although the general rule is that hearings are to be in public, it is open to a Panel to go into private session when dealing with matters relating to the health and/or personal life of a Registrant. Accordingly, when and if such matters were raised they would be heard in private.

Application for witness LB to give evidence by telephone

8. Ms Sheridan made an application for the evidence of LB to be given by telephone. It had been hoped that her evidence would be given over a live televisual link, but for technical reasons this was not possible. LB was not a direct witness to the incident involving the Registrant and Colleague A, but rather conducted an investigation into the incident. She had provided a signed witness statement containing a declaration of truth. She could not attend the hearing physically due to health reasons, which were supported by a medical certificate.

9. The Registrant had been notified of the initial application for LB to give her evidence by live televisual link and had not objected. Following the technical issues, mentioned above, she was contacted on the day of the hearing and asked if she objected to LB giving her evidence over the telephone. She responded saying it was fine.

10. The Panel heard and accepted the advice of the Legal Assessor and decided to allow LB to give her evidence over the telephone. It noted that LB’s evidence was not the sole and decisive evidence since she was not an eye-witness to the alleged event, for that the Panel had the evidence of Colleague A. Her role was to carry out the subsequent investigation and to exhibit documents. She had provided a signed witness statement containing a declaration of truth. The Registrant did not object to her evidence being given in this way. Furthermore, since the Registrant was not participating in the hearing LB would not be subject to cross-examination by her, however she could still be asked questions by the Panel for the purpose of clarification. Once it had heard her evidence the Panel would then decide what weight to attach to it and whether her evidence was in any way diminished as a result of having been given over the telephone.

Witnesses:

11. The Panel heard from two witnesses called on behalf of the HCPC:

• Colleague A - a colleague of the Registrant and the alleged victim

• LB - General Manager at Birmingham Community Healthcare NHS Foundation Trust

12. The Registrant did not attend. She had, however, provided various responses during the investigation and completed the Response Pro-Forma and Pre-Hearing Information Form.

Background:

13. The Registrant is a registered Radiographer with the HCPC. At the time of the allegations she was employed as a Superintendent Radiographer working in the X-Ray department at the Sandwell and West Birmingham NHS Trust (‘the Trust’). Colleague A worked at the same Trust, as an ICT Systems and Training Officer. Whilst he held a non-clinical role, he would cross paths with the Registrant if she encountered any IT issues within her department. At the time of the matters alleged they had known and worked with each other over a period of nearly ten years.

14. On 11 September 2018, Colleague A received a telephone call from the Registrant who reported that the encryption on her work laptop was not accepting her password. Colleague A attended her office to try and resolve the issue. This required him to enter certain codes, phone another IT specialist, and resulted in the Registrant’s password appearing on his screen. He then had to check with the Registrant what she believed her password to be in order to cross-reference it to the one on screen, to see if she was getting it right. Colleague A said that the Registrant’s password was in two parts and that the Registrant said the second part and he responded by saying the first part. Colleague A said that out of nowhere and without warning, the Registrant then slapped him across the face with her palm. Colleague A’s account was that the Registrant’s explanation for slapping him was on account of him saying her password out loud. Colleague A said that he thought this slap was deliberate.

15. Colleague A immediately left the Registrant’s office, repeatedly shouting words to the effect of “You have hit me” and reported the incident to his line manager. He attended a fact-finding meeting with the Divisional Director of Nursing and Therapies on the same day. During that meeting he confirmed:

“She slapped me with her right hand on the left side of my face- over my eye and cheek with the palm of her hand. I don’t recall if she was stood up or sat down. I yelled at her ‘you just hit me’ ‘you physically assaulted me’. JK said ‘but you said my password out loud’. I said quite loudly ‘you’ve actually hit me and you shouldn’t have done that. I said this four or five times. As I walked out KS [sic] said ‘sorry.’’

16. When asked if he thought the slap was deliberate, Colleague A said:

‘“It was not an accidental lash out- definitely deliberate”

17. On 10 October 2018, Colleague A was interviewed. He again confirmed:

“[The Registrant] slapped me on my face, palm to face. It was the top left of my face across the eye and top of my left cheek…JK was to the right of me, I think I was at a slight angle, she said the second part of her password, I said the first part of her password. That triggered her to slap me across the face.”

18. The Registrant was interviewed on 17 September 2018 and 17 October 2018. She never denied hitting Colleague A but she maintained that it was not deliberate, describing it as an accidental contact with the side of his head. She said:

“[Colleague A] asked me to enter my password into the laptop. I stepped towards the laptop and leaned in to enter the password. As I did [Colleague A] said it ‘I know your password’ and said it out loud. I said ‘[Colleague A] you’ve told everyone my password.’ As I did I brought my arms down and my right hand hit the parietal region of [Colleague A’s] skull on the top left of his head.”

19. In the latter interview she said:

“I was standing in front of drawer (pedestal) between the two desks; I then leaned in to input the password. Obviously [Colleague A] must have moved whilst I was inputting the password as he was not where I remembered him to be which is how I ended up ‘clipping’ the side of his head. It was never intentional. There was no intent at all; it was just accidental.”

20. In the HCPTS Response Pro-Forma and Pre-Hearing Information Form, the Registrant said:

“This incident was an accidental contact between the side of my right palm (5thMC) and [Colleague A’s] Parietal region of his head as I turned and brought my hands down.”

21. She said it would have been impossible for her to slap Colleague A because she was standing with her back to him and he was sitting down. She said that in order to come into contact with his face she would have needed to have been kneeling on the floor.

Decision on Facts:

22. In reaching its decisions on the facts the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence. The Panel also took into account the submissions made by Ms Sheridan on behalf of the HCPC. The Registrant was not present, however the Panel did take into account her responses during the investigation and also in the HCPTS Response Pro-Forma and Pre-Hearing Information Form. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case on the balance of probabilities. It was not for the Registrant to disprove the allegation.

23. The Panel considered Colleague A to be a credible and clear witness. His account was consistent in most respects and in the one area where there was some inconsistency, namely whether the Registrant was sitting or standing at the time of the strike, he deferred to his account given much closer to the time when his memory would have been more accurate. This tended to add to his credibility as a witness. He was consistent, fair and credible when challenged on details. He was calm and sincere and clearly wanted to give an accurate and honest answer. He had a very clear recollection of the issue with the password and his task in sorting it out and the Panel was satisfied that he had not asked the Registrant to type her password into the laptop since that would have been a futile circular exercise. He was balanced in his evidence, did not appear to have any axe to grind and, notwithstanding this incident, spoke positively of the Registrant. Overall, the Panel was satisfied that it could rely on Colleague A’s evidence.

24. LB’s evidence was of limited assistance to the Panel in that she was not present at the actual incident between Colleague A and the Registrant and much of her evidence was hearsay. However, she was professional in her approach to the investigation and in giving her evidence and she had prepared a careful report which the Panel found helpful. The Panel considered her to be an honest and balanced witness with no axe to grind and her report provided clear, well documented evidence of Colleague A’s reaction to what happened in the office. LB was also helpful on the differing accounts provided by the Registrant at various stages of the investigation and also on the mechanics of the interaction as described by the Registrant. LB gave clear evidence and insofar as she was of assistance her testimony was credible, straightforward and clear.

25. The Registrant did not attend. However, there were a number of accounts given by her at the various stages of the Trust’s investigation and also in the Pro-Forma and Pre-Hearing Information Form. The Panel noted the inconsistencies in those accounts and the number of different ways in which the Registrant described her contact with Colleague A. These included contact with Colleague A’s face with the back of her left hand as she turned in a sweeping motion from a standing position to his right; a slap motion with the palm of her right hand; a gesture with her hands going up and out; on one account she said she was sitting and on another that she was standing. She had a motive for denying she had deliberately struck Colleague A, namely to try and avoid responsibility for her actions, and a reason for why she would react as alleged when not happy, in that he had said her password out loud.

26. The Panel believed Colleague A’s account that he had been hit or slapped by the Registrant. His account was consistent, given on affirmation, clear and credible. The Panel could see no motive for him to lie. He gave a balanced account and spoke well of the Registrant, with whom he had had a good working relationship for many years. It was apparent that he had no axe to grind and he was sincere in his account of what had happened. The Registrant, on the other hand, provided a number of inconsistent accounts during the investigation process. She was annoyed because Colleague A had said part of her password out loud and she had a motive to deny the assault to try and avoid responsibility for her actions. There was some supporting evidence provided during the investigation by a number of colleagues who reported that Colleague A left in outrage shouting that he had been hit. In the interview between the Divisional Director of Nursing and Therapies and LB, as part of LB’s investigation, the Director stated that shortly after the incident, the Registrant said to her and the Divisional Director - Dental Services, “I’ve hit Colleague A I am so sorry. If you want me to leave my job I will.” The Registrant was said to have been very distressed, emotional and in tears. These reactions were not consistent with an accidental hit and the two accounts were too far apart for them both to be right and for this to be a case of misunderstanding.

27. In all the circumstances, the Panel was satisfied that the Registrant did strike Colleague A by either hitting or slapping him around the face and found Particular 1 proved.

Decision on Grounds:

28. The Panel next considered whether the facts found proved amounted to misconduct. In so doing it took into account all the evidence and the submissions made by Ms Sheridan. The Panel accepted the advice of the Legal Assessor.

29. The Panel found the Registrant to be in breach of the following parts of the 2016 Standards of Conduct, Performance and Ethics applicable to all HCPC Registrants:

• 2 - communicate appropriately and effectively.

• 6.2 -You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

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

30. The Panel found the Registrant to be in breach of the following parts of the 2013 Standards of Proficiency applicable to Radiographers, which states that Registrant Radiographers must:

• 2.2 - understand what is required of them by the Health and Care  Professions Council

• 3.1 - understand the need to maintain high standards of personal and professional conduct

• 9 - be able to work appropriately with others

31. The Registrant appeared to have reacted spontaneously, in a violent way striking a colleague who had done something she was annoyed by. This fell seriously short of the behaviour expected of a Registrant Radiographer. It is the sort of behaviour that brings the profession into disrepute and would be considered deplorable by the public and other members of the profession. The Panel was in no doubt that it amounted to misconduct and accordingly found Particular 2 proved and the statutory ground made out.

Decision on Impairment:

32. Having found the statutory ground of misconduct to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that misconduct. In doing so it took into account the submissions made by Ms Sheridan and accepted the advice of the Legal Assessor.

33. In a fit of pique, the Registrant struck a fellow colleague who was trying to help her. The Panel found that this was a deliberate act and not the result of some accident. During the Trust’s investigation the Registrant denied that she intended to strike Colleague A and she maintained that denial in an attempt to avoid responsibility for her actions. She has demonstrated no insight into her behaviour and expressed no remorse for Colleague A, who was clearly deeply affected by the Registrant’s actions. The Panel considered that this lack of insight, together with the lack of control she exhibited, meant that there was a very real risk that if faced with a similar situation in the future she might respond in a similar way. The Panel therefore concluded that her fitness to practise was impaired on public protection grounds. The Panel noted her stated intention not to return to the profession and that she had retired, however, she could always change her mind.

34. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made, given the nature and seriousness of the Registrant’s misconduct in striking a fellow colleague in the workplace.

35. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection and public interest grounds and that the allegation of impairment is well founded.

Decision on Sanction:

36. In reaching its decision on sanction, the Panel took into account the submissions made by Ms Sheridan, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Indicative Sanctions Policy (“ISP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

37. The Panel considered the aggravating factors in this case to be:

• a complete lack of insight and remorse

• deliberate violence against a colleague

• actual harm caused to a colleague

38. The Panel considered the following mitigating factors:

• no previous fitness to practise history in a career spanning 41 years

• difficult personal circumstances at the time involving the health of the Registrant and her family

39. In the absence of the Registrant the Panel had no evidence before it of any other mitigating factors.

40. The Panel considered the sanctions beginning with the least restrictive. In light of the seriousness of the conduct, the Panel did not consider this was an appropriate case to take no further action, since this would not protect the public from the risk identified by the Panel or reflect the seriousness of the misconduct.

41. The Panel then considered whether to caution the Registrant. However, the Panel was firmly of the view that such a sanction would not reflect the seriousness of the misconduct in this case. The Registrant assaulted a colleague in the workplace. She subsequently denied her actions and demonstrated no insight or remorse for her behaviour, leaving Colleague A confused and hurt. The Panel has already concluded that there is a risk of such behaviour being repeated. A caution, therefore, would not protect the public from any such risk. The Panel was also of the view that public confidence in the profession, and the HCPC as its regulator, would be undermined if such behaviour were dealt with by way of a caution.

42. The Panel next considered whether to place conditions on the Registrant’s registration. The ISP states that before imposing conditions a Panel should be satisfied that:

• the issues which the conditions seek to address are capable of correction;

• there is no persistent or general failure which would prevent the registrant from doing so;

• appropriate, realistic and verifiable conditions can be formulated;

• the registrant can be expected to comply with them; and

• a reviewing Panel will be able to determine whether those conditions have or are being met.

43. The Panel also noted from the ISP that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing.

44. The Panel considered the Registrant’s behaviour to be attitudinal and not readily addressed by the imposition of conditions. Furthermore, the Registrant has not attended the hearing, she denies any wrongdoing and lacks insight. In such circumstance the Panel could not be satisfied that she would be genuinely committed to correcting her behaviour. It was apparent, therefore, that a Conditions of Practice order would not be a suitable sanction in this case.

45. The Panel next considered whether to make a Suspension Order. It was of the view that, with time and appropriate reflection, the Registrant could develop the necessary insight into her behaviour and thereby be able to demonstrate to a reviewing panel that she had learned from her misconduct and how she would ensure such behaviour would not be repeated. A period of suspension would provide protection to the public for its duration. It would also be sufficient to maintain public confidence in the profession and the regulatory process and would send a clear message to the profession at large that violence in the workplace would not be tolerated.

46. The Panel went on to consider whether a striking-off Order was necessary in this case and concluded that such a sanction would be disproportionate for a single incident in an otherwise long and unblemished career. With the appropriate reflection the Panel was confident that the risk it had identified could be mitigated and that the Registrant’s behaviour was not fundamentally incompatible with continued registration.

47. The Panel therefore decided to impose a Suspension Order for a period of 12 months. This would be sufficient to mark the seriousness of the misconduct and allow the Registrant time to reflect and demonstrate insight and appropriate remorse for her behaviour. This Order will be reviewed before its expiry. A reviewing panel may be assisted by:

• the Registrant’s attendance at the review hearing;

• a reflective statement focused on the inappropriateness of her behaviour towards a work colleague and the impact of that behaviour on both Colleague A and the wider profession.

Order

That the Registrar is directed to suspend the registration of Mrs Jean M Kelly for a period of 12 months from the date this order comes into effect.

Notes

Application for an Interim Order:

1. The Panel heard submissions from Ms Sheridan on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress. The Registrant was not present and therefore the Panel had first to decide whether to proceed to consider the Interim Order application in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor.

2. The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion the Panel took into account the contents of the Notice of Hearing sent to the Registrant on 19 December 2019 where it is stated under the heading “Interim Orders”, “Please note that if the Panel finds the case against you is well founded and imposes a sanction which removes, suspends or restricts your right to practise, it may also impose an interim order on you (under Article 31 of the Health and Social Work Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied this meant the Registrant was on notice that this was a possible outcome at this hearing. The Panel remained satisfied that the Registrant had waived her right to be present at the hearing by her stated intention not to attend. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to attend on a later date because there was no indication that she would attend on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it was clearly in the public interest to consider the Interim Order application in the absence of the Registrant.

3. The Panel has found that the Registrant assaulted a colleague in the workplace. The Panel has already concluded that the Registrant represents a continuing risk to the public because there remains a concern that she would repeat the behaviour in the absence of any evidence to the contrary, particularly given her complete lack of insight and remorse. The Panel therefore concluded that an Interim Order was necessary to protect the public from the risk it had identified during the 28 day appeal period, or the time taken to conduct any appeal, in the event that one is made.

4. The Panel is also of the view that, given the nature and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order is otherwise in the public interest.

5. The Panel first considered whether a Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that conditions would not be appropriate in this case.

6. The Panel therefore decided to make an Interim Suspension Order.

Interim Suspension Order:

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

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mrs Jean M Kelly

Date Panel Hearing type Outcomes / Status
17/03/2020 Conduct and Competence Committee Final Hearing Suspended