Miss Maria-Paz Olivares Penroz

Profession: Radiographer

Registration Number: RA49958

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 01/09/2020 End: 17:00 07/09/2020

Location: Hearing taking place virtually

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst registered as a Radiographer and during the course of your employment as a Senior Radiographer with HCA Healthcare UK, you:

1. On or around 28 April 2018, accessed Colleague A’s patient record without her consent and/or when you were not actively involved in delivering care or related clinical services to her.

2. On or around 16 April 2018, carried out a CT Chest, Abdomen and Pelvis scan on Patient B instead of a CT Abdomen and Pelvis Scan.

3. On or around 24 April 2018, after identifying concerns about the functioning of the scanner malfuctioned during CT scan for Patient C, you

a. stopped the scan but carried out and/or caused a second CT scan to be carried out on Patient C;

b. did not test the equipment after the initial fault in the first scan before re-scanning Patient C.

4. Onor around 14 May 2018, for Patient D:
     a. did not adequately undertake the Stop and Pause Royal College of Radiologists    
        checks;
    b. carried out a CT scan on her right wrist rather than an MRI scan.

5. The matters set out in particulars 1 –4 above constitute misconduct and/or lack of competence.

6. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary Matters
Service
1. The Registrant, Ms Olivares Penroz, attended the hearing and was represented.  All parties accepted that service had been done correctly.

Amendment to the Allegation
2. The HCPC applied to amend Particular 4 of the Allegation to make the language clearer. The Registrant did not object and the Panel was satisfied that the changes could be made without unfairness.

Background
3. Between 21 March 2016 and 29 May 2018 the Registrant was employed by Hospital Corporation of America (HCA) as a Senior Band 1 Radiographer in the Radiology Imaging Department. 

4. In May 2018 Colleague A requested that the HCA IT department check if her medical records had been accessed. The IT report showed that the Registrant accessed Colleague A’s records on 28 April 2018. MW was appointed to investigate.

5. On 16 April 2018 the Registrant scanned Patient B. The referral form required a CT scan of the patient’s abdomen and pelvis. The Registrant incorrectly and unnecessarily scanned Patient B’s chest.

6. On 24 April 2018 the Registrant scanned Patient C despite being concerned that the scanner was not working correctly, contrary to the Standard Operating Procedure.

7. On 14 May 2018 Patient D was referred for an MRI scan of her wrist.  The Registrant carried out a CT scan instead of an MRI scan.

8. On 7 June 2018 HCA raised its concerns about the Registrant with the HCPC.

Decision on Facts
9. In advance of the hearing the Registrant’s representative, Mr Pembridge, submitted a document to the HCPC in which the Registrant admitted the factual elements of the complaint as set out in Particulars 1 to 4 of the Allegation. The Registrant formally admitted Particulars 1 to 4 of the Allegation when it was read to her at the start of the hearing. 

10. The Panel received and accepted advice from the Legal Assessor that the best evidence of the truth of the facts alleged is an informed admission by the person accused and that therefore it would be inappropriate to continue to test the facts as the Panel would do if the facts were denied.    

11. Although the facts were capable of being proved by the Registrant’s admissions on their own, two of the HCPC’s witnesses had attended the hearing remotely and so were available to give evidence to the Panel.  The Presenting Officer called both to give evidence so that the Panel and the Registrant could ask them any questions that they wished to.

12. The Panel had regard to all of the evidence contained in the witness statements submitted on behalf of the HCPC and to the written submissions made on behalf of the Registrant. Neither representative wished to add to their submissions on the facts during the hearing. The Panel was reminded by the Legal Assessor that the burden of proof is on the HCPC and that it must prove the facts to the civil standard which is the balance of probabilities. The Panel then adjourned the hearing for it to make a decision on the facts.

13. The Panel noted that the witnesses adopted the evidence set out in their signed witness statements and that there had been no challenge to the accuracy of any part of the evidence relied on by the HCPC. The Panel was satisfied that the admissions made by the Registrant were consistent with the evidence relied on by the HCPC and that the evidence was cogent and reliable. The Panel therefore found Particulars 1 to 4 of the Allegation to be proved.

14. The Panel then restarted the main hearing and invited both parties to make submissions on the Grounds and Impairment. 

Decision on Grounds
15. The HCPC submitted that the facts found proved in respect of Colleague A amount to misconduct and that in respect of Patients B, C and D that it amounts to either misconduct or a lack of competence. The Panel accepted the advice of the Legal Assessor that; “misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances.”

16. The Panel bore in mind that not every breach of the applicable standards would necessarily amount to misconduct and that the Panel was required to judge each case on its own facts. The Panel accepted the advice of the Legal Assessor that it was entitled to consider the cumulative effect of the incidents, taken together when deciding if the threshold for misconduct was reached.

17. The Panel accepted the advice of the Legal Assessor that a lack of competence refers to a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the practitioner’s work. The Registrant told the Panel that she qualified in 2005 and had been working for HCA as a Senior Radiographer. The Panel therefore decided that the Registrant had the knowledge and skills required to behave professionally and to carry out the tasks required of her and that her failure to do so was not as a result of a lack of competence. 

18. Therefore, the Panel went on to consider if the facts found proved amounted to misconduct.  

19. The Registrant told the Panel in her written submissions and during her oral evidence that she accepted that these incidents amounted to misconduct. The Panel reminded itself that whether the facts found proved amount to misconduct or a lack of competence is not a matter of proof or for an admission by a Registrant but for the Panel’s own judgement.

20. The Panel found that in respect of Colleague A, the Registrant breached Standards 1, 5 and 9 of the HCPC Standards of Conduct, Performance and Ethics (2016) and Standards 2, 3, 4 and 7 of the Standards of Proficiency for Radiographers (2013).

21. The Panel found that in respect of Patients B, C and D the Registrant breached Standards 1, 6 and 9 of the HCPC Standards of Conduct, Performance and Ethics (2016) and Standards 1, 2, 3, 4, 11, 14 and 15 of the Standards of Proficiency for Radiographers (2013).

22. The Panel was satisfied that the Registrant’s actions in respect of Colleague A, when taken on its own, crossed the threshold of misconduct. Unauthorised access of a patient’s personal medical records is behaviour which falls significantly short of what would have been proper in the circumstances. The Registrant acknowledged that she had realised she was crossing a line when she looked at Colleague A’s records and that she breached the trust placed in her by her colleague and her employer and that it was a very serious error.

23. The Panel decided that the Registrant’s conduct in respect of Patient C also amounted to misconduct. The Registrant identified concerns about the functioning of the CT scanner and was sufficiently concerned to call the engineer to attend but nevertheless she continued to use the machine to scan Patient C. The Registrant acknowledged that a phantom dummy should have been scanned to check the safety of the scanner before restarting the scan on Patient C. At that stage the Registrant could not exclude the possibility that a fault with the scanner might expose the patient to the risk of mechanical harm. The scanner was only confirmed not to be dangerous after the engineer had examined it. The Registrant also exposed the patient to the risk of unnecessary radiation by continuing to use a machine that she did not believe was working correctly. Fortunately, the scanner worked correctly at the second attempt, but the Registrant was not to know that it would and ought not to have continued the scan of Patient C in those circumstances. This was in breach of the standard operating procedure for scanner faults.

24. The Panel decided that the Registrant’s failings in respect of Patients B and D were examples of the Registrant’s failure to follow stop and check guidance and when taken together were sufficiently serious to amount to misconduct. Both patients were exposed to unnecessary radiation.

Decision on Impairment
25. The Panel went on to decide whether the Registrant’s fitness to practise is impaired. The Panel took account of the HCPTS Practice Note ‘Finding that fitness to practise is impaired’. It accepted the advice of the Legal Assessor that the test of impairment is expressed in the present tense and reminded itself that the purpose of fitness to practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. 

26. The Panel reminded itself that it is necessary to distinguish between cases where misconduct is, of itself, likely to lead to a finding of impairment and cases where misconduct does not necessarily lead to a finding of impairment, because of other factors to be taken into account. Such factors usually comprise events between the date of misconduct and the date of the panel hearing, such as a one-off event of misconduct followed by the passage of substantial time, an otherwise unblemished record, or subsequent retraining. 

27. The HCPC informed the Panel that the Registrant had one previous HCPC finding recorded against her. On 15 May 2017 the Registrant had been made subject to a Caution Order, by consent, for three years. The Caution Order was imposed in relation to misconduct over two days in October 2015, when the Registrant was employed as a Senior Radiographer with Alliance Medical Limited. The Registrant was also a Site Radiation Protection Supervisor. On 22 September 2015, the Registrant carried out a CT scan on Patient R. On later inspection, the images of the scan appeared to be partially missing from the system. As a result, the Registrant called Patient R back to be rescanned on 28 October 2015. Prior to recalling Patient R, the Registrant did not obtain the required documentation, nor consult the relevant people in relation to reconstructing the images of the scan and the risk of over-exposure of radiation to Patient R. The Registrant also failed to advise Patient R of the risk of over-exposure prior to rescanning him.

28. The Panel considered the two elements to impairment; the personal element which includes the Registrant’s current conduct and performance and the public element which includes the protection of members of the public and the public interest.

Personal Components
29. The Panel considered the Registrant’s past acts in order to establish whether her fitness to provide radiography services is currently below acceptable standards and whether she may pose a risk to those who may need to use her services in the future. In assessing the likelihood of the Registrant causing harm in the future the Panel has taken into account the extent of any harm caused by her to the individuals referred to in the Allegation and her culpability for that harm. 

30. The Panel was impressed with the evidence that the Registrant gave at the hearing; it was obvious that she is a caring and committed radiographer. However, the Panel decided that the Registrant’s insight into the causes of her misconduct may not be fully developed in respect of Patients B, C and D. The Panel felt that it had to press quite hard to establish from the Registrant a clear account of why she had decided to act as she did. It bore in mind that Patients B and D had received unnecessary ionising radiation doses and that Patient C had been scanned on a machine that the Registrant believed may have been faulty.

31. The Panel considered the impact of the 3-year Caution Order imposed in 2017 and decided that it could not be satisfied that the Registrant had fully taken on board the lessons to be learned. Whilst her error in respect of Patient B on 16 April 2018, viewed in isolation, was relatively minor, it was within the period of her previously imposed Caution Order. The Panel was concerned that the Registrant was not being more careful, less than one third of the way through the Caution Order. The Registrant was informed of the mistake she made on 16 April 2018 that same day, but eight days later she made the error of judgement in respect of Patient C. Four days after that she made the serious mistake of accessing Colleague A’s records and just over two weeks later made a mistake in respect of Patient D.   

32. As a result, the Panel decided that it would have to give less weight to the Registrant’s promises to Panel that such misconduct will not happen again.

Public Components
33. The Panel next considered the need to protect service users and the collective need to maintain confidence in the profession by declaring and upholding proper standards of conduct and behaviour. The Panel reminded itself that it is highly relevant in determining if a practitioner’s fitness to practise is impaired that: the conduct which led to the allegation is easily remediable; second it has been remedied; and that it is highly unlikely to be repeated. 

34. The Panel accepted that the Registrant has in the past shown that she can be a proficient radiographer because she has provided a positive annual appraisal from her previous line manager and several positive testimonials about her professional practice from well qualified professional colleagues. The Registrant’s evidence is that since her dismissal from HCA she has done between 1500-2000 scans without complaint.

35. The actions and omissions by the Registrant did cause harm, albeit limited, and any repetition might place the public at risk and undermine public confidence in the profession. Whilst no complaints were made by the individuals involved, had they done so it could have resulted in reputational damage and financial loss to HCA and undermined public confidence in the profession. 

36. For all the reasons set out above, the Panel is satisfied that the Registrant’s current fitness to practise is impaired and as a result the Panel finds the Allegation well founded.

Decision on Sanction
37. The Panel then invited submissions on what sanction, if any, should be imposed. The Panel had regard to the HCPTS’s Sanctions Policy (March 2019) and accepted the advice of the Legal Assessor. The Panel was reminded that it is not obliged to impose a sanction and that in appropriate cases may decide that no further action is required. The Panel is satisfied that a sanction is proportionate in this case because no further action is only appropriate in cases involving minor isolated lapses where the registrant has apologised, taken corrective action and fully understands the nature and effect of the lapse. For the reasons already referred to by the Panel in its decision on impairment, the misconduct found proved in this case cannot be described as an isolated incident or as a minor lapse.    

38. The Panel was reminded that a sanction may only be imposed in relation to the facts which have been found proved and cannot be imposed on a wider basis than that revealed by the facts found proved. The Panel is aware that it is not reviewing the Caution Order imposed in 2017 or imposing a further sanction in respect of that misconduct. 

39. The Panel has borne in mind that the purpose of fitness to practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The primary function of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who need to use his or her services. The Panel is aware that it must also give appropriate weight to the wider public interest which includes: the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process. 

40. The Panel has borne in mind that the Registrant made immediate admissions to her employer when challenged about her access of Colleague A’s records. She explained that her motivation was to view the images because her family members had a similar condition and that from a personal point of view she wanted to understand the difference between two conditions. She accepted that it was an error in judgement and apologised. 

41. The Panel was able to see and hear the Registrant give evidence and to ask her questions. She told the Panel that she had viewed the scan images for between one and three minutes and had soon felt very uncomfortable and had stopped. She had not downloaded or shared any part of Colleague A’s records. Nevertheless, she recognised how her behaviour is likely to have made her colleague feel. The Panel was sure that the Registrant’s remorse and apologies were genuine and that she showed meaningful insight into this misconduct. The Panel found that the Registrant showed a genuine recognition of the concerns raised, an understanding of the impact or potential impact of her actions and demonstrable empathy for her colleague. 

42. Although unauthorised access of a colleague’s records is serious, the Registrant’s misconduct in this case falls at the lower end of the scale of such behaviour because Colleague A was not vulnerable, the Registrant accessed the records for a very short period of time (between one and three minutes) and she did not retain the scans she viewed or share them with anyone else. Whilst mitigating factors do not excuse or justify poor conduct, they may be useful indicators of a reduced ongoing risk posed to service user safety. The Panel was satisfied that the Registrant is very unlikely to do the same thing again. The Panel bore in mind that in some cases a breach of trust will require a severe sanction but is mindful that each case must be decided on its own facts. The Panel decided that a severe sanction would not be proportionate in this case because the breach was out of character, it arose in unusual circumstances and because of the low risk of repetition. 

43. The Panel was also satisfied that the Registrant showed genuine remorse for the errors that she made in respect of Patients B, C and D, and some insight albeit that her insight was not yet fully developed. The Registrant’s genuine remorse, apologies and insight means that the risk of repetition, and therefore the risk to service users, is significantly lowered and the risk of damage to public confidence in the profession is reduced. The Panel was satisfied that the Registrant would comply with any training requirements and that she will comply with any restrictions imposed on her practice, either by the HCPC or locally. 

44. The Panel had regard to the principle of proportionality and considered the sanctions starting with the lowest first. The Panel rejected mediation because it would not address the public interest and service user safety concerns resulting from the Registrant’s misconduct. 

45. The Panel went on to consider whether a further Caution Order was appropriate. The Panel decided that would not be appropriate because the Caution Order imposed in 2017 had not prevented the Registrant’s further wrong doing which started less than a year into the three year Order. The Panel concluded that a Caution Order would not protect the public or maintain confidence in the profession and the regulatory process. 

46. The Panel next considered whether conditions of practice were proportionate and workable and concluded that a Conditions of Practice Order was appropriate. The conditions that the Panel have imposed are designed to act as a reminder to the Registrant of the importance of confidentiality, data protection and the need to follow the Stop and Pause Royal College of Radiologists checks at all times.

47. The Panel today tested whether a Conditions of Practice Order was proportionate by going on to consider the next most punitive sanction, a Suspension Order, but concluded that this case does not justify removing the Registrant’s ability to practise. The Panel reminded itself that whilst these were not isolated errors, it was a period of misconduct over a period of less than one month in a career spanning 15 years. The Panel is satisfied that a right-minded member of the public, in possession of all the facts, would consider the imposition of a Conditions of Practice Order as a proportionate restriction on the Registrant’s ability to practise. 

48. The Panel has decided that the appropriate and proportionate sanction is a Conditions of Practice Order for one year. The Panel decided that a longer order was not necessary bearing in mind that the Allegation relates to misconduct committed almost 2 ½ years ago and that the Registrant has been working effectively without further problems throughout that time. The Panel decided that the current conditions on the Registrant’s registration are workable and proportionate. The Panel gave serious consideration to imposing additional conditions in respect of educational supervision or mentoring but decided that would not be practicable as the Registrant is currently working as a locum.

49. Article 30(1) of the Health Professions Order 2001 (the Order) requires all Conditions of Practice Orders and Suspension Orders to be reviewed before they expire.

Order

The Registrar is directed to annotate the HCPC Register to show that for a period of 12 months from the date that this Order takes effect, being 1 October 2020 (“the Operative Date”), you, Maria Paz Olivares Penroz must comply with the following conditions of practice: 

1. Within six months of the Operative Date you must provide the HCPC with a reflective piece addressing;
(i) the findings of misconduct in respect of Colleague A and Patients B, C and D and
(ii) how you would approach the situation if you find yourself in a similar position in the future.

2. Within nine months of the Operative Date you must satisfactorily complete training in General Data Protection and/or maintaining patient confidentiality and forward a copy of your results to the HCPC.

3. Within nine months of the Operative Date you must satisfactorily complete training in radiation protection and forward a copy of the results to the HCPC.

4. Before the Article 30(1) review of this Order you must submit at least two references to the HCPC which must be from your employer, agency and/or line manager.
5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

6. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any healthcare agency you are registered with or apply to be registered with (at the time of application); and
C. any healthcare prospective employer (at the time of your application).

7. You must supply any Healthcare employer with a copy of each page of this decision. 

Notes

Decision on interim order
The Panel considered the HCPC’s application for an Interim Conditions of Practice Order, pending the coming into force of the Conditions of Practice Order. The Registrant did not object to an interim order in the same terms being imposed. 

The Panel has found that the Registrant is currently unfit to practise without restriction but without an interim order she would theoretically be able to do so pending an appeal and the Panel has decided that it would not be appropriate to leave that possibility open. The Panel has borne in mind that it is more than two years since the period of misconduct took place and that during that time the HCPC did not apply for an interim order restricting the Registrant’s ability to practise. Therefore she has been free to practise without restriction until now and the Panel has no evidence of any further episodes of misconduct during that time. However, the Panel’s findings of fact and decision on misconduct and impairment represent a significant change in circumstances. Therefore the Panel has decided that an Interim Conditions of Practice Order is necessary to protect members of the public and the public interest and that the appropriate period is 18 months to ensure that an order is in place during the during the appeal period and any subsequent appeal proceedings which may take longer than usual during the global pandemic.

Interim Order
The Panel makes an Interim Conditions of Practice Order (in the same terms) 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 Miss Maria-Paz Olivares Penroz

Date Panel Hearing type Outcomes / Status
01/09/2020 Conduct and Competence Committee Final Hearing Conditions of Practice
03/02/2020 Conduct and Competence Committee Final Hearing Adjourned