1. The Registrant was sent a Notice of Hearing on 30 March 2020 by email.
2. In line with the Government’s recommendations in relation to the COVID-19 pandemic, the HCPC made the decision to use email to serve its’ Notices of Hearing, as their offices are currently closed.
3. The Panel accepted the advice of the Legal Assessor.
4. The Panel determined that the email dated 30 March 2020 was delivered to the Registrant by email to his registered email address. The Panel therefore find that there has been good service.
Proceeding on the papers in the Registrant’s absence
5. The HCPC applied to have this application heard in the Registrant’s absence under Rule 11 of the Health Professions Council (Conduct and Competence Committee) Rules 2003.
6. The Registrant was served with the notice of hearing which informed him that the hearing would be on the papers. In light of the government’s recommendations on containing the current COVID-19 pandemic, this hearing which would ordinarily have taken place with both parties present is being dealt with on the papers, to ensure that as a regulator, the HCPC can continue to perform its’ statutory duties of protecting the public and maintaining the integrity of the register. The Notice identified the date for the hearing and confirmed that the matter would be considered ‘on the papers’.
7. The Panel accepted the advice of the Legal Assessor.
8. The Panel determined that the Registrant had had notice of the intention to proceed to hear this application ‘on the papers’. In light of the current COVID-19 pandemic, the Panel accepts that the HCPC has had to adapt the procedure and that currently all applications are heard on the papers. The Order is due to expire on 5 June 2020. This is a mandatory review hearing and if no review takes place the order would lapse without an assessment of the risk factors. The Panel find that it is both in the Registrant’s interests and in the public interest for a review of the statutory order to take place as scheduled, so that a proportionate decision can be made, as to whether a further order is necessary.
9. The Registrant obtained a Bachelor of Science in Radiologic Technology in 1994 and worked as a Band 5 Diagnostic Radiographer for the Chest Diseases Hospital in Kuwait from March 1996 until March 2001.
10. In June 2013, he applied for a role as a Band 6 Radiographer in the X- Ray department at the Alexandra Hospital in Redditch. He attended an interview for the position on 10 July 2013. The interviewers found that the Registrant was unable to answer questions on a number of basic and essential topics which they would expect a qualified Radiographer to be able to answer. For questions relating to key skills and knowledge, they gave the Registrant scores between ‘0’ and ‘2’ out of a possible ‘10’ marks.
11. The panel at the substantive hearing (the substantive panel) accepted that the Registrant’s answers were unsatisfactory and that this had caused the interviewers to be concerned about the Registrant’s competence as a Radiographer. The areas of questions, as identified at (a) to (f) in the allegation, dealt with basic and essential areas of radiography practice, which all radiographers should be able to answer. The Registrant was unable to give adequate answers, even when prompted. The Registrant seemed confident and unaware that his answers were inadequate and it was the view of one of the interviewers, DT that the Registrant presented a potential danger arising from his lack of knowledge and lack of awareness. DT had conducted many interviews and had never had concerns following an interview before, nor had she ever referred anyone to the HCPC. She referred the Registrant to the HCPC on 15 July 2013.
12. The substantive panel found that, on his application form for the position at the Alexandra Hospital, the Registrant had stated that he had worked as a Band 5 Diagnostic Radiographer at the Royal Orthopaedic Hospital in Birmingham between December 2012 and December 2013. KJ, Superintendent Radiographer at the Royal Orthopaedic Hospital NHS Trust, confirmed that in fact he was employed as a Healthcare Assistant on the wards at that hospital. He had only undertaken two days as a bank Band 5 Radiographer in November 2012 and was found to lack experience and needed supervision. He had not been asked to work any further bank shifts.
First review hearing 01 November 2018
13. The Registrant did not attend the first review hearing nor did he place any submissions before it to evidence any further training. The first review panel adopted the findings of the substantive panel referring to the evidence set out above and to the evidence of Dr VG. She was employed at The Faculty of Health and Applied Sciences at the University of the West of England. She was instructed by the HCPC to conduct a Test of Competence in respect of the Registrant. Dr VG’s conclusion was that the Registrant appeared to possess a basic level of radiography. She noted his language skills were “fairly rudimentary”. She stated in her report,
“it was noted that his understanding of the English language was not good and some sentences had to be repeated to him in order for him to understand. Likewise, it was sometimes difficult to understand his responses, and clarification had to be sought from him on several occasions to ensure appropriate understanding”.
14. The first review panel noted that Dr VG described the Registrant’s level of diagnostic radiography as rated at just below the level of a graduating radiography student. She concluded that the assessment findings and results indicated that the Registrant would benefit from a period of supervised practice in order to ensure that his knowledge and skills were of the required standard to practise as a Radiographer in the UK.
15. Having considered all the material before it, the first review panel concluded that the Registrant’s fitness to practise remained impaired. It expressed its’ reasons finding that the Registrant lack of knowledge would impact on his ability to perform his role safely and that there was a potential risk of harm to the public arising from his lack of competence. The review panel went on to state:-
“In the absence of any information since the substantive hearing in respect of the Registrant’s remediation and insight, or evidence of any steps taken to improve his level of competence, such as further training and continuing professional development, this Panel has concluded that the Registrant’s fitness to practise remains impaired. Following the previous Panel’s finding of impairment, the onus is on the Registrant to demonstrate that he is no longer impaired. Having failed to engage with the HCPC, the Registrant has not done so.
The Panel has determined that if the Registrant were to be found unimpaired today, this would undermine public confidence in the profession and in the regulatory process. This is because, in the Panel’s judgement, the matters raised in this case have the potential to put members of the public at risk.
For these reasons, the Panel has determined, having considered carefully both the ‘personal’ component and the ‘public’ component, that the Registrant’s fitness to practise remains impaired by reason of lack of competence.”
16. Having reviewed all the sanctions available to it, the first review panel decided to make a Suspension Order for a further period of 12 months. It expressed its concern that the Registrant has not practised since 2013 and that he has displayed a lack of awareness of his deficiencies. The review panel concluded that those deficiencies, as identified by the previous panel, had not been addressed in any way by the Registrant. It found that a period of 12 months would give the Registrant the time and opportunity to engage in the process and to satisfy a future panel that he had remediated his deficiencies. The first review panel gave guidance as to what might assist a subsequent review panel:
“The Panel considered that a future panel would be assisted by the attendance of the Registrant and evidence of his reflection, learning and insight in respect of his deficiencies, with particular reference to any training and continuing professional development he may have undertaken. It would also be assisted by references or testimonials from any employers.”
17. The Registrant did not attend or submit any evidence of show that he had attended training or professional development courses. The second review panel found that the Registrant has not complied with any of the suggestions made by the first review panel.
Second Review hearing 12 November 2019
18. The Registrant did not attend or submit any evidence of show that he had attended training or professional development courses. The second review panel found that the Registrant has not complied with any of the suggestions made by the first review panel.
19. The review panel therefore found that nothing had changed and that the Registrant remained impaired.
20. The second review panel noted that the Registrant had not engaged with the HCPC since the last review hearing in November 2018. The panel concluded that the Registrant remained impaired and that a restriction on his ability to practise was still necessary in order to protect service users and also to sustain public confidence in the profession of Radiographer and in the HCPC as its Regulator. The second review panel was aware that a Striking Off Order was not available to it. The second review panel noted that any future panel would have the option to strike the Registrant off the register. The second review panel made it clear that a future panel would be assisted by the physical presence of the Registrant, that he would need to provide evidence of insight into his deficiencies and evidence of any training and Continuing Professional Development. It advised the Registrant that a future panel would be assisted by references and testimonials from any employers and evidence of any work, whether paid or unpaid.
Written submissions prepared for hearing 1 May 2020
21. The Panel has read the written submissions prepared by Ms Ktisi on behalf of the HCPC. Ms Ktisi invited the Panel to find that the Registrant remained impaired and that a further suspension order was proportionate. She submitted the Registrant had not engaged with the HCPC. He had not provided any information to show that he had undertaken any training, nor had he provided testimonials from past or present employers. She made it plain that had this been an oral hearing, that the HCPC would have requested that the Registrant be struck off the register for the reasons set out above, but she submitted that as the Registrant had been denied an oral hearing it was the HCPC’s position that a further suspension order was appropriate.
22. The Panel accepted the advice of the Legal Assessor.
23. Having reviewed all of the material the Panel determined that the Registrant remains impaired. There was no evidence that the failings and fundamental gaps in the Registrant’s knowledge, identified at the substantive hearing have been remedied. There was no evidence that the Registrant has completed any training. The risk to the public identified by the substantive panel and the two review panels has not altered.
24. The Panel concluded that a restriction on the Registrant’s ability to practise was still necessary in order to protect service users and also to maintain public confidence in the profession and in the HCPC as its Regulator.
25. The Panel first considered a Conditions of Practice Order. There was no evidence that the Registrant has worked as a Radiographer since 2012 and a Conditions of Practice Order would not be workable nor would it address the potential serious risks posed to the public by the Registrant’s lack of knowledge/competence.
26. The Panel next considered continuing the Suspension Order. The Registrant has not engaged in these proceedings for three years. He has not shown that he has taken steps to meet the significant gaps in his knowledge first identified in 2013. On the face of the papers a further suspension order serves little purpose. However, in light of COVID-19, the Panel accept that the Registrant has not had the opportunity to attend an oral hearing. English is not the Registrant’s first language [Para 13 above] and the Registrant is likely to be unrepresented. A Striking Off order is a measure of last resort and the Panel find that it is in the interests of justice and fairness to afford the Registrant the opportunity to attend an oral hearing before such an order is made. In light of COVID-19 this has not been possible.
27. The Panel determined that a further Suspension Order was therefore the proportionate order. Such an order will protect service users. It will also maintain public confidence in the profession of Radiographer and in the HCPC as its Regulator.
28. The Registrant now has one last opportunity to provide evidence of the steps he is taking to fill the gaps in his knowledge and to attend an oral hearing.