Mrs Catherine M Birnie

Preliminary Matters

1. The Panel has been convened to undertake a review of a substantive Conditions of Practice Order that was imposed by another panel of this Committee on 10 August 2018.

Background

2. The Registrant is a Radiographer.  At the relevant time the Registrant was employed as a Superintendent Ultrasound Sonographer at the Princess Elizabeth Hospital, Guernsey (“the Hospital”).  The Hospital submitted all sonographers’ scan results to the Down’s syndrome Quality Assurance Support Service (“DQASS”) for audit in October 2013. The first such audit covered the period October 2013 to April 2014. The results indicated that the Registrant would be required to improve in order to achieve a green standard as she had been rated as amber.  In June 2014, an internal investigation was carried out into an allegation that whilst applying for accreditation with the Foetal Medicine Foundation (“FMF”) to undertake nuchal translucency scans, the Registrant had submitted images that were not of her own taking.

3. On 27 June 2014, the Registrant self-referred to the HCPC in relation to this allegation. A disciplinary hearing was held by the Hospital with respect to this matter. During the investigation, other alleged matters came to light. The Registrant subsequently left the employment of the Hospital.

4. The final hearing of the HCPC’s allegations against the Registrant took place on 9 to 13 January 2017 and 23 to 24 October 2017.  At the final hearing the Registrant explained that in 2003 she moved to Guernsey to undertake a post involving Radiography and Ultrasound. In 2009, the Registrant became a full time Senior 1 Radiographer in Ultrasound. In 2012, obstetric ultrasound scanning conducted in Guernsey was moved from the Consultant Obstetricians to the Radiology department. As none of the sonographers had recent experience of obstetric scanning, this new service required them to undertake additional training. As there was no sonographer within the organisation to lead the service or oversee the relevant training, a locum sonographer was brought over from Australia to assist. The Registrant undertook formal university training in obstetric ultrasound, which she successfully completed in 2013. Following the training, the Registrant said that she conducted scans independently without any supervision, tuition or peer review. The Registrant stated that she had received no adverse feedback on her work until the Allegation was brought against her.

5. The final hearing panel concluded that the following particulars were proved and amounted to misconduct:

• Particular 1 - that the Registrant had submitted at least one image, which she did not take, to the Foetal Medical Foundation, when applying for accreditation to undertake Nuchal Translucency measurements for screening Downs syndrome and;

• Particular 5(b) – that on 22 October 2013, in relation to Service User B, the Registrant performed a 12-week scan and only saved one image.

6. The final hearing panel found that the remaining proved particulars, namely 2, 3, 4(a)(ii), 5(a)(i). 5(a)(iii), 5(a)(iv), 8(a) and 8(b) amounted to a lack of competence on the part of the Registrant.

7. The Registrant expressed remorse for what had occurred. She informed the Panel that she had not worked as a sonographer since November 2014, and that for financial reasons she had been unable to undertake any relevant training. She assured the Panel that if any of these same situations arose in the future, she would ask for help. The final hearing panel concluded that the Registrant had shown developing insight in relation to her actions, but that her insight had not at that time fully matured. That panel concluded that whilst the Registrant’s misconduct and lack of competence were, in theory, capable of remediation, there was no evidence before the Panel that they had in fact been remediated.

8. Accordingly, the final hearing panel found the Registrant’s fitness to practise to be impaired and imposed a Suspension Order for a period of three months.

9. The final hearing panel concluded that the Suspension Order would mark the seriousness of the misconduct and would provide the Registrant with the opportunity to prepare the ground for addressing her lack of competence, should she later be permitted to return to practice. The Panel determined that a three-month Suspension Order was the minimum period necessary to achieve these twin aims.  That panel concluded that a future review panel would be assisted by:

a. the Registrant’s attendance at the hearing;

b. a reflective piece of writing compiled by the Registrant, detailing her insight into the consequences of her actions on service users and the profession;

c. evidence of CPD and a plan of action in preparation for a return to practice course, should the review panel see fit to allow the Registrant to resume practice.

10. On the 24 January 2018 the first review hearing took place. The Registrant was present but not represented. The first reviewing panel noted that the Registrant had not provided any of the information which the substantive hearing panel indicated would be of assistance. Further, whilst the panel accepted that the matters found proved were remediable, no evidence of remediation had been provided. The Registrant had not provided any evidence of any further training or CPD undertaken, any reflective piece, or any evidence of deep and meaningful insight. In the absence of any positive evidence of insight and remediation, the panel concluded that there had been no material change in circumstances, since the substantive hearing took place, with regards to the risk to service users. Consequently, the panel concluded that the Registrant’s fitness to practise remained impaired and decided to impose a further period of suspension, on that occasion for six months.

11. In its decision the first reviewing panel stated that a future panel would expect the Registrant to attend the review hearing and to provide and document evidence that she has made significant steps towards a safe and effective return to practise. The panel listed the documentary evidence that it considered the Registrant might produce in this regard.

12. On 10 August 2018 the second review hearing took place. The Registrant was present but unrepresented.  Having read  a reflective statement produced by the Registrant and listened to her oral evidence, the second reviewing panel was satisfied that the Registrant’s insight into her actions had increased. The second reviewing panel took account of the Registrant’s clear expressions of remorse and regret. In this regard that panel particularly noted the Registrant’s evidence about meeting with the mother of the baby with Down’s syndrome.  Regarding the other matters found proved, the panel found that the Registrant’s insight in relation to her reflection of the impact of her lack of competence on patients was more generalised, both in her reflective statement and orally. The panel was therefore of the view that whilst the Registrant had made good progress, she had not yet developed full insight.

13. The second reviewing panel noted that the Registrant had not, at that time, worked as a Radiographer for more than 3 years and that her knowledge and skills were highly likely to be compromised as a result. The panel was of the view that the Registrant’s attempts to keep her knowledge and skills up to date were limited. There was no documentary evidence of the online training the Registrant said that she had undertaken on the Society of Radiographers website, nor was any log presented of reading or research. Therefore, that panel concluded that the Registrant had not sufficiently remedied her deficiencies such that she could be considered fit to practise safely without restriction.

14. However, the second reviewing panel noted the Registrant’s willingness to return to practise and undertake further CPD and training. The panel decided that the Registrant could be expected to comply with conditions. It was decided that a Conditions of Practice Order for the maximum period of three years was appropriate. The second reviewing panel took into account the Registrant’s plans to return to the UK from Guernsey in 2020 and to seek employment after her relocation. That panel considered that if the Registrant was able to find employment in Guernsey before that time, the Conditions would enable her to practise.

15. The conditions imposed by the order made on 10 August 2018 were in the following terms, and it is these conditions that the present Panel is reviewing.

(1) Within 3 months of beginning employment as a registered Radiographer, you must undertake a return to practice course or programme in diagnostic radiography.

(2) On completion of the return to practice course or programme, you must forward documentary evidence to show successful completion of this course to the HCPC.

(3) On beginning employment as a Radiographer, you must place yourself and remain under the supervision of a workplace supervisor registered by the HCPC or other appropriate statutory regulator for a period of 6 months and supply details of your supervisor to the HCPC within 1 month or employment.  You must attend upon that supervisor as required and follow their advice and recommendations.

(4) You must obtain from your supervisor a report at the end of the 6 moth period outlining your progress.

(5) You must forward a copy of this report from your supervisor to the HCPC at the end of the 6 month supervised period.

(6) You must confine your professional practice to Diagnostic Radiography.

(7) You must not carry out any gynaecological or obstetric ultrasound.

(8) You must not carry out and other ultrasound procedure unless directly supervised by HCPC registered Radiographer who has a postgraduate qualification in ultrasound.

(9) When in employment as a Radiographer:

a. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

b. You must promptly inform the following parties that your registration is subject to these conditions:

i. any organisation or person employing or contracting with you to undertake professional work;
ii. any agency you are registered with or apply to be registered with (at the time of application); and
iii. any prospective employer (at the time of your application).

(10) You will be responsible for meeting any and all costs associated with complying with these conditions.

16. The current order is due to expire on 21 August 2021.

Submissions at the present review

17. The Presenting Officer outlined the background to the fitness to practise proceedings.  With regard to the outcome of today’s review, the Presenting Officer submitted that it was important to record the fact that at some stage a conclusion to the fitness to practise proceedings will need to be achieved.  In that context she reminded the Panel that it has the power to make a Striking-Off Order.  Nevertheless, the Presenting Officer made clear that she did not urge the Panel to take that final step today, acknowledging that the Registrant has expressed a genuine desire to return to practice and remedy her deficiencies, yet has encountered difficulties in achieving those aims to date.  She therefore stated that the HCPC did not oppose the Registrant’s submission that the Conditions of Practice Order should be extended.

18. In advance of the hearing the Registrant wrote stating that she would request that the Conditions of Practice Order should be continued.  In answer to a question from the Panel she indicated that it would be necessary for her to relocate to the mainland to effect a return to practice, but that it is likely that she will not be in a position to relocate before March 2022.

Decision

19. The Panel proceeded on the basis that the first decision it was required to make was whether the Registrant’s fitness to practise is still impaired as a result of the findings made at the final hearing that concluded on 24 October 2017.  If her fitness to practise is still impaired, the question of what should follow the expiry of the present order was one to be answered by the application of ordinary sanction considerations.

20. The Registrant freely acknowledged that she has not practised since 2014 and has not taken active steps to address the shortcomings in her knowledge and skills highlighted by the final hearing decision.  Accordingly, the Panel concluded that her fitness to practise is still impaired.  It also determined that a further sanction is required when the present order expires on 21 August 2021.

21. The Panel acknowledges that it is unusual for a fitness to practise process to be permitted to extend for as long as the present process has already, and rarer still to contemplate that it should be yet further extended.  This is a factor that the Registrant would be well advised to remember, and to heed the Presenting Officer’s submission to the Panel that the jurisdiction to make a Striking Off Order already exists.  Nevertheless, the Panel accepts that the Registrant has a real desire to return to practise Radiography and that there are genuine factors, some personal and others general, that have made it difficult for the Registrant to take the steps necessary for her to do so. Accordingly, the Panel has acceded to the Registrant’s request to make a further Conditions of Practice Order.  Given that it may very well be another nine months before the Registrant commences the steps she will need to take to return to practice and they will then take some time to achieve, the Panel has decided that it is appropriate to make the new order for a period of two years.  That said, if the Registrant considers that she has achieved everything that needs to be achieved well before the expiry of the new order, she will be able to seek an early review.

22. As to the conditions to be imposed, the Panel considers that they should be varied in some respects for the following reasons:

• To require the Registrant to satisfy the clearly established HCPC return to practice requirements, as opposed to an unparticularised “course” or “programme”.

• To require the Registrant to compile a diary recording her learning while undertaking the return to practice requirements, and to present the same so that it can be assessed by a future reviewing panel.

• To place the emphasis on “return to practice”, rather than on “employment”, the latter being a matter for the Registrant to arrange vis a vis any institution with which she is associated while the return takes place.

• The clarification of who may be the supervisor, and the requirement that the supervisor should remain in place for the duration of the order.

• The removal of former condition 6, which would appear to be in conflict with former condition 8.

Order: The Registrar is directed to vary the Conditions of Practice Order against the registration of Mrs Catherine M Birnie for a further period of 2 years upon the expiry of the existing Order. The conditions are:

(1) If you practise as a Radiographer, you must comply with the HCPC’s return to practice requirements.

(2) On completion of the HCPC’s return to practice requirements, you must send to the HCPC documentary evidence demonstrating your compliance.

(3) On returning to practice as a Radiographer, you must place yourself and remain under the supervision of a workplace supervisor who is a Radiographer registered with the HCPC and supply details of your supervisor to the HCPC within one month.  You must attend upon that supervisor as required and follow their advice and recommendations.

(4) While undertaking the required return to practice requirements, you must make and keep a reflective diary recording your learning as a result of that process, and you must forward a copy of it to the HCPC not less than 28 days before the date of any review of this Order.

(5) You must obtain from your supervisor, and forward to the HCPC not less than 28 days before the date of any review of this Order, a report outlining your progress.

(6) You must not carry out any gynaecological or obstetric ultrasound scans.

(7) You must not carry out any other ultrasound procedure unless you are directly supervised by an HCPC registered Radiographer who has a post-graduate qualification in ultrasound.

(8) When practising as a Radiographer you must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.
 
(9) 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 agency you are registered with or apply to be registered with (at the time of application); and

c. any prospective employer (at the time of your application).

(10) You will be responsible for meeting any and all costs associated with complying with these conditions.

This Order will be reviewed again before its expiry on 21 August 2023.

History of Hearings for Mrs Catherine M Birnie