Miss Elizabeth J Hodges

Preliminary Matters

Service and proceeding in absence

1. The Registrant did not attend the hearing. The Panel first considered whether it ought to exercise its discretion to continue with the hearing in the absence of the Registrant. The Panel concluded it was in the public interest to do so, having considered the HCPC Practice Note on “Proceeding in the Registrant’s Absence,” having taken the Legal Assessor’s advice, and considered the guidance in R v Jones [2003] 1 AC 1 HL and GMC v Adeogba and Visvardis [2016] EWCA Civ 162, for the following reasons:

• The Panel is satisfied that the Registrant had notice of the hearing and that the rules on service had been complied with;

• The Registrant has not sought an adjournment;

• Unlikely that the Registrant would attend any future hearing;

• The Panel determined that the Registrant had chosen not to attend the hearing and voluntarily waived her right to appear;

• There is a general public interest in the expeditious disposal of this matter as the Allegation is serious and dates back to 2017. In addition, there are witnesses in attendance and any delay would inconvenience them and have an adverse effect on recollection.

Application to Amend the Allegation

2. At the outset of the hearing Mr Foxsmith on behalf of the HCPC sought to amend the Allegation to remove the duplicated words of the Allegation in Appendix A. It was proposed that the wording in Schedule A at paragraph 1 “Your fitness to practise as a Radiographer is impaired by reason of your mental and or physical health in that you have mental health issues including:” was deleted as it was a repetition of the Allegation “By reason of your mental health, as described in Schedule A, your fitness to practise as a Radiographer is impaired.”

3. Mr Foxsmith submitted that the removal of the duplicated words served to clarify the Allegation and were trivial in nature. He submitted that the proposed amendments did not alter the nature of the case against the Registrant.

4. The Panel was mindful of the issues of fairness and natural justice. The Panel noted that the Registrant had not had any notification of the proposed amendment. The Panel considered that it was fair to allow the application to amend the Particulars of the Allegation as they did not alter the case against the Registrant and ensured that the wording of the Allegation was clear. There was no prejudice to the Registrant and the Panel considered the amendment could be made without injustice.

Background

5. The Registrant is a registered Radiographer. On 20 September 2011 the Conduct and Competence Committee of the HCPC determined that the Registrant’s fitness to practice was impaired and imposed a one year Suspension Order. At a review of that Order on 1 October 2012 the Suspension Order was extended for a further 12 months on the basis of the Registrant’s lack of engagement. On 25 September 2013 the Suspension Order was again reviewed and was substituted with a Conditions of Practice Order for two years. On the 23 February 2016 at a review of the Conditions of Practice Order, it was revoked and the Registrant was able to resume unrestricted practise.

6. The Registrant completed a return to work programme with Worcestershire Acute Hospitals NHS Foundation Trust (the Trust). On 18 January 2016 the Registrant secured employment as a Band 6 Radiographer with the Trust working across two sites in Redditch and Bromsgrove.

7. During the course of her employment the Registrant had a number of lengthy absences from work totalling 225 days. A disciplinary hearing under the Trust’s sickness absence policy was held in November 2017. The Registrant appealed the outcome of this hearing and an appeal hearing was held in the afternoon of the 21 March 2018.

8. On 5 April 2018 the HCPC received a referral from Mr David Hill who was a member of the panel hearing the appeal.

9. In June 2019 the Registrant provided consent to allow the HCPC to access her medical records but did not consent to undergo any other examination. The HCPC instructed Dr Carnwath to provide a paper-based review of the Registrant’s medical records and comment on her fitness to practise.

10. At the outset of the hearing there were no admissions to any of the factual elements of the Allegation.

Decision on Facts

11. On behalf of the HCPC the Panel heard live evidence from David Hill who was present at the appeal hearing and raised concerns about the Registrant, the Panel also heard live evidence from Dr Carnwath who had reviewed the Registrant’s medical records. The Panel was provided with a bundle of documents together with closing submissions on facts from the HCPC.

12. The Panel heard and accepted the advice of the Legal Assessor. In respect of the disputed facts, the Panel understood that the burden of proving each individual fact is on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the Registrant has the health condition alleged.

13. The Panel considered the evidence of all of the witnesses. It considered the evidence of Mr Hill to be straightforward and he was able to give a clear account of the matters relating to what he observed of the Registrant at the appeal hearing. Mr Hill was balanced and fair. The Panel also accepted his character evidence that the Registrant’s work was of a high standard. The Panel accepted his evidence.

14. The Panel considered the evidence of Dr Carnwath. He gave evidence regarding the conclusions he was able to draw following a review of the Registrant’s medical records. The Panel considered that he was a helpful and credible witness. Dr Carnwath recognised the limitations of his conclusions on the basis that he had not had an up to date review of medical records and had not had the ability to examine the Registrant. The Panel accepted the evidence he gave.

Particular 1 Found Proved

1. By reason of your mental health as described in Schedule A, your fitness to practise as a Radiographer is impaired.
Schedule A

a) [Redacted]
b) [Redacted]
c) [Redacted]

15. In making this finding the Panel had particular regard to the oral and documentary evidence about the Registrant’s health and the periods of time that she was absent from work.

16. The Registrant had no underlying health condition that would account for such a significant period of absence.

17. The Panel had no up to date evidence from the Registrant that she had addressed any of these issues and there was nothing to suggest that the situation had improved.

Decision on Grounds and Impairment

18. The Panel went on to consider whether the mental health of the Registrant and the conditions found proved by the Panel were sufficient to impair her fitness to practise.

19. The Panel considered the submissions of the HCPC together with all of the evidence it had before it. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note ‘Finding that Fitness to Practice is Impaired’.

20. In determining current impairment, the Panel exercised its own professional judgement. The Panel considered that the Registrant hasn’t provided any up to date evidence of how she is managing her conditions and there was no evidence that the Registrant was currently working in a healthcare setting.

21. The Panel considered that during the time the Registrant had been working at the Trust she had put patients at potential risk of harm as she had left work without notice or not given notice that she was not attending. Her frequent and extensive periods of absence would have put her colleagues under pressure and likely caused disruption to patients.

22. In the absence of any evidence that the Registrant has taken steps to address these issues and is managing her conditions safely, the Panel considered that there is a significant risk that the Registrant will attend work whilst unfit to do so and place patients at risk of harm. The Panel determined that the Registrant’s fitness to practise is currently impaired on public protection grounds.

23. The Panel was also satisfied that, given the ongoing nature of the serious health concerns, a reasonable and well-informed member of the public would be concerned if no action were taken by the Regulator. The Panel was of the view that public confidence in the profession and the regulatory process would be undermined if the Registrant were permitted to continue to hold unrestricted registration in circumstances where there was an identified risk of patient harm. Therefore, the Panel concluded that it was otherwise in the public interest to make a finding of impaired fitness to practise.

Decision on Sanction

27.  The Panel considered the “Sanctions Policy” of the HCPC and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate.

28. The Panel considered that there were no aggravating features. In mitigation the Panel reminded itself that there had been no complaint about the Registrant’s work and there was no evidence that there had been actual patient harm. The Panel balanced this with the evidence that the Registrant had been absent for lengthy periods.

29. As the Registrant has not engaged in this process the Panel did not have any evidence that the Registrant had any insight into her health condition or the risk to service users and the wider public. The Panel reminded itself that it had previously determined that there was a significant risk that the Registrant could put patients at risk of harm.

30. The Panel determined that the risk it had identified as a result of the Registrant’s health was too significant to make no Order.

31. The Panel considered that similar considerations applied to a Caution Order, as this would not provide sufficient public protection.

32. The Panel considered that a Conditions of Practice Order was not appropriate because the Registrant had not engaged with the HCPC process or shown any willingness to comply with any conditions. The Panel did not consider it would be able to formulate conditions to address the Registrant’s health in the absence of this engagement.

33. The Panel went on to consider whether a Suspension Order would be a proportionate and appropriate measure and concluded that this would protect the public during the period that it was in force. The Panel was of the view that, to properly address the risks in this case, a Suspension Order was the appropriate and proportionate Order. The Panel had no specific information as to the potential financial and professional hardship on the Registrant of imposing a Suspension Order but considered that the public interest in this regard outweighed the Registrant’s interests.

34. In considering the period of suspension the Panel determined that it should be the maximum 12 months. This period would afford the Registrant an opportunity to address her health conditions and possibly seek professional input to assist her to manage the concerns identified.

35. This Order would be reviewed before expiry. On such a review the Panel considered that a future panel would be assisted by:

• The Registrant’s attendance and engagement;

• Evidence that the Registrant has taken steps to manage her alcohol issues such as evidence from support groups or other health professionals;

• Any alcohol testing results;

• References from any paid or voluntary work undertaken.

Order: The Registrar is directed to suspend the registration of Miss Elizabeth Hodges for a period of 12 months from the date this Order comes into effect.

Interim Order

1. The Panel considered the application by the HCPC for an Interim Order to cover the appeal period. The Panel was satisfied that the Registrant had been served with the appropriate notice of the Panel’s powers to consider an interim order in the email dated 1 July 2020.

2. The HCPC’s application is made on the 2 statutory grounds as follows:

• it is necessary for the protection of members of the public

• is otherwise in the public interest.

3. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition identified. 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 to cover the length of any appeal.

History of Hearings for Miss Elizabeth J Hodges