Miss Miriam Butler

Profession: Radiographer

Registration Number: RA66052

Hearing Type: Other

Date and Time of hearing: 10:00 07/05/2021 End: 17:00 07/05/2021

Location: This hearing took place virtually

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst registered with the Health and Care Professionals Council as a Radiographer and employed with Kingsbridge Private Hospital, you:


1. On 16 February 2018, clocked on at approximately 09:45AM but immediately left the hospital:


2. On 17 February 2018, clocked on at approximately 09:15AM and left the hospital but returned to clock off at approximately 17:15PM.


3. Did not undertake your role on either 16 February 2018 and/or 17 February 2018 or any part of these days.


4. Between 16 February 2018 and 28 February 2018 recorded on a signed, handwritten timesheet that you had worked on:


a) 16 February 2018; and


b) 17 February 2018.


5. Your actions at particular 1, 2, and 4 were dishonest.


6. The matters described at particulars 1 to 5 constitute misconduct.


7. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Application for part of the hearing to be held in private

1. The Panel heard a submission by Mr Lavery, on behalf of Miss Butler, for those parts of the proceedings that concerned the Miss Butler’s health and family life to be conducted in private. The application was not opposed by Mr Lloyd. The Panel heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note, ‘Conducting Hearings in Private’. The Panel considered that it would convene in private when matters connected to the Miss Butler’s health and family life were raised.

 

Background

2. Mr Lloyd set out the background which had resulted in the hearing before the Panel.

3. In summary, a hearing before a panel of the Conduct and Competence Committee took place between 2 and 4 March 2020. Miss Butler did not attend. In advance of the hearing, Miss Butler corresponded with the HCPC to advise that she would be out of the country and would be unable to attend the hearing. She made it plain in her correspondence that she did not wish for the hearing to be postponed on grounds of her non-attendance. She asked that written documentation contained in the hearing bundle be considered in her absence.

4. Miss Butler was employed as a Radiographer at Kingsbridge Private Hospital (‘the Hospital’) between 1 September 2014 until 16 March 2018, when she resigned.

5. Miss Butler was investigated by her employer in respect of a claim for hours worked at the Hospital on two dates, namely, 16 and 17 February 2018. It was alleged that Miss Butler submitted a timesheet for payment for hours worked on the two dates in question when she had, in fact, not worked the hours stated.

6. The Hospital instigated an investigation into Miss Butler’s actions on 6 March 2018. She attended an investigatory meeting on 12 March 2018 and resigned on 16 March 2018 from her position at the Hospital. On 12 March 2018 the Hospital made a referral about the Registrant to the HCPC.

7. At the substantive hearing, the panel heard evidence, called in support of the Allegation by the HCPC, from three witnesses who had been employed by the Hospital at the material time. Those witnesses were: Mr CC: Lead MRI Radiographer; Mr AMK: Radiology Operations Manager; and Ms HH: Group Human Resources Manager.

8. The panel found the evidence given by the witnesses to be credible and reliable.

9. Miss Butler’s case, in her written correspondence which was considered at the hearing, was that she had not acted dishonestly. She made the case that she had not been responsible for submitting a timesheet for February 2018 to claim for hours worked which she had not undertaken. She suggested that the timesheet had been completed by her line manager, Mr AMK, and submitted by him on her behalf for payment.

10. The panel did not accept Miss Butler’s version of events. It preferred the evidence given by the witnesses called by the HCPC. The facts of the Allegation, which included a Particular that Miss Butler had acted dishonestly, was found proved in its entirety. The panel further found that Miss Butler had acted in a manner that amounted to misconduct. The panel further determined, applying the personal and public components, that Miss Butler’s fitness to practise was currently impaired by reason of her misconduct.

11. The panel, at the sanction stage of the proceedings, determined that the only proportionate sanction to impose was to strike-off Miss Butler from the Register. Miss Butler, in the panel’s view, had attempted to shift the blame for her actions onto her professional colleagues. The panel, in its reasoning, laid emphasis on the absence of evidence on her part that Miss Butler had insight into her wrongdoing and that she had not advanced evidence of remediation. As a consequence, the panel found, there was a risk of repetition that Miss Butler could repeat her misconduct.

12. In making its decision on sanction, the panel also considered that the nature and seriousness of Miss Butler’s misconduct required, in the public interest, no lesser sanction than a Striking-Off Order. Her actions were considered to be fundamentally incompatible with remaining on the Register. Further, the panel determined that to allow the Miss Butler to practise would not protect the public, would undermine public confidence in the profession and the HCPC in its regulatory function and would not uphold proper standards of conduct and behaviour.

13. Miss Butler, in accordance with article 38 of the Health Professions Order 2001 (‘the Order’), appealed the decision of the substantive hearing panel to strike her name off the Register. In her appeal, no challenge was brought to the factual findings made by the panel or to its decision that Miss Butler’s fitness to practise was currently impaired by reason of her misconduct.

14. Miss Butler’s appeal was heard by the High Court in Northern Ireland on 2 February 2021. The High Court ordered, in accordance with article 38(3)(d) of the Order, that the matter should be remitted for reconsideration of sanction, by the same panel who had determined the matter substantively in March 2020, or by a differently constituted panel. The High Court ordered that the case should be remitted on the basis of the advices and directions of the HCPC’s legal advisers. Materially, one term of the advices and directions was that, in considering the question of sanction, the panel was precluded from making a Striking-Off Order. The High Court had expressed the view on the appeal that, given that no risk to patient safety had been identified, the decision to strike Miss Butler’s name off the Register had been disproportionate.

15. The hearing took place against the backdrop set out above.

16. The Panel was required to reconsider the question of what, if any, sanction to impose in respect of Miss Butler’s registration in accordance with the terms of the High Court appeal.

17. In addition to the documents considered at the substantive hearing, the hearing bundle contained documents in relation to the High Court appeal, together with character and professional references submitted on Miss Butler’s behalf.

 

Submissions

18. Mr Lloyd reminded the Panel that it could not make a Striking-Off Order. Other than that, the question of sanction was left by Mr Lloyd to the independent judgement of the Panel, having regard to, and applying, the principle of proportionality.

19. At the outset of his submissions, Mr Lavery addressed the Panel in relation to the circumstances in which Miss Butler had failed to attend the substantive hearing in March 2020. Miss Butler had regretted her failure to attend the hearing.

20. Mr Lavery stressed that, in acting as she did, Miss Butler meant no discourtesy to the Panel nor did she minimise the seriousness of the regulatory proceedings to which she was subject. Rather, Mr Lavery submitted, Miss Butler provided a compelling explanation for her actions.

21. In relation to the findings made by the panel at the substantive hearing, Mr Lavery confirmed that Miss Butler accepted the factual findings, that she had acted in a manner that amounted to misconduct and that she accepted that, at the time of the hearing, her fitness to practise was currently impaired by reason of her misconduct.

22. Miss Butler accepted that she had not acted appropriately. Miss Butler could have availed herself of leave but did not. She did not adequately raise her work difficulties with her employer. Instead, Miss Butler had acted in a “bizarre” manner by turning up for work, but leaving again before commencing her daily shift.

23. On the question of sanction, the Panel was asked by Mr Lavery to consider a number of matters. Miss Butler now accepted that, in February 2018, she had acted in an inappropriate manner. She now accepted the findings made at the substantive hearing in spite of having denied elements of them at the time of the hearing. This included the finding that she had acted dishonestly. Miss Butler’s actions, over a two-day period in February 2018, had to be looked at against the backdrop of an otherwise unblemished career. There had been nothing of a similar nature before, nor had there been a repetition of her misconduct. Miss Butler now had in place coping mechanisms and the support of her family. Mr Lavery submitted that there was no risk of repetition.

24. There was no actual or potential risk to patient safety. Mr Lavery referred the Panel to references contained in the hearing bundle which attested to the fact that, in his submission, Miss Butler was well regarded as a practitioner in a clinical setting.

25. Mr Lavery also addressed the question of Miss Butler’s insight. Miss Butler had lodged a sworn affidavit, in furtherance of her High Court appeal, which demonstrated that she had gained a full insight into the seriousness of her actions.

26. In that affidavit, Miss Butler averred, “…I wholly admit my wrongdoing. My actions on the 16th and 17th February 2018 and my later action of submitting a timesheet for work that I had not completed was wrong…My submission of the time sheets was solely to cover for my actions on the 16th and 17th of February 2018 when I should have notified my employers, I had not actually carried out any work and I understand that this put my employers at a risk of detriment…this episode can be considered as a one-off period. I now have better insight into my thinking and know when and how to seek help, vastly minimising the risk of any recurrence which was so out of character. I have and will take every available opportunity to ensure that my actions never again fall below the high standards to which I normally hold myself and the high standards that the health and care profession demand.”

27. Mr Lavery stated that the time during which Miss Butler had been unable to practise her profession, following the decision to strike her off and the appeal process during which she was suspended, had given Miss Butler time to reflect on the seriousness of her actions and how her actions would have the potential to undermine public trust and confidence in the radiology profession.

28. Mr Lavery submitted that, in addressing the proportionate sanction, the Panel could have regard to the effect which the suspension had had on Miss Butler. She had developed insight into her misconduct and had expressed regret and remorse for her actions. For these reasons, combined with her efforts to remediate and there being no risk to patients or the public, Mr Lavery submitted that a Caution Order would be sufficient to protect the public interest.

 

Decision on Sanction

29. The Panel heard and accepted the advice of the Legal Assessor. The Panel, he advised, should exercise its judgement to arrive at a proportionate sanction that would adequately protect the public and be in the public interest. The Panel was advised by the Legal Assessor that it should have due regard to the Sanctions Policy (‘the SP’) issued by the HCPC (Last updated March 2019). In particular, the Panel had regard to paragraphs 56-58 of the SP which dealt with the issue of dishonesty. First, the Panel should weigh up the seriousness of the misconduct by considering the aggravating and mitigating factors. Thereafter, the Panel needed to ensure that any sanction imposed upheld and protected the public interest.

30. The Panel needed to act proportionately. That meant that when the Panel identified a sanction which, in its judgement adequately protected the public, it ought not to consider a further, more restrictive, sanction. The Panel was advised by the Legal Assessor that, when considering sanction, it could take account of the period, since the substantive hearing, during which Miss Butler was suspended from practice. In so doing, the Panel had to bear in mind that regulatory sanctions were not like sentences in the criminal courts. There was no principle that, like time on remand in custody, time during which the practitioner was the subject of an Interim Order must be deducted from a substantive sanction. However, the Panel was advised that common fairness dictated that it must take into account any Interim Order and the effect which it had on Miss Butler when deciding on the proportionate sanction. Provided the Panel properly considered the issue, it was entitled to conclude in a given case that the Interim Order did or did not affect the sanction arrived at by the Panel.

31. In considering the question of what, if any, sanction to impose the Panel carefully considered the parties’ submissions together with all of the available documentary evidence.

32. The Panel considered the following as aggravating factors. Miss Butler had acted dishonestly in the course of her employment. She acted in a deliberate and calculated manner in attempting to dishonestly obtain from her employer overtime payments to which she was not entitled.

33. The Panel considered the following as mitigating factors. Miss Butler had expressed regret and remorse for her actions. The Panel noted that Miss Butler had now developed insight. Miss Butler had admitted her wrongdoing before this Panel, which included an acceptance on her part that she acted dishonestly.

34. The Panel considered that the regulatory proceedings to which Miss Butler had been subject, and particularly the period following her striking off when she had been unable to practise her profession, had taught Miss Butler a salutary lesson and the need to act, at all times, honestly and to the highest professional standards. As such, the Panel considered that there was a low risk of Miss Butler repeating her misconduct.

35. The Panel next turned to consider the appropriate sanction to impose. The Panel commenced its deliberations by deciding whether it was appropriate to conclude the matter by taking no further action. In light of its findings, and in particular the finding that Miss Butler had acted dishonestly, the Panel concluded that such a step would not uphold or protect the public interest.

36. The Panel next considered whether it would be appropriate to impose a Caution Order. The Panel noted, in that regard, that the SP stated as follows:


‘100. Where a panel finds that a registrant’s fitness to practise is impaired, the least restrictive sanction that can be applied is a Caution Order.


‘101. A Caution Order is likely to be an appropriate sanction for cases in which:


• the issue is isolated, limited, or relatively minor in nature;


• there is a low risk of repetition;


• the registrant has shown good insight; and


• the registrant has undertaken appropriate remediation.’

37. The Panel considered the Allegation against the backdrop of Miss Butler's career in her chosen profession. When looked at in this context, the Panel was satisfied that the circumstances giving rise to the Allegation represented an isolated episode in the course of Miss Butler’s otherwise unblemished career. There was also a relevant health background which, although not excusing her actions, nonetheless helped to explain why Miss Butler acted in the manner in which she did.

38. The Panel considered the new material before it which included the report which had not been before the previous panel. The Panel also took account of Miss Butler’s Affidavit. The Panel acknowledged that Miss Butler had developed insight into the seriousness of her actions and how they had the potential to undermine public trust and confidence in the profession, and also into the management of her health.

39. The Panel paid particular attention as required by the case law to the effect on Miss Butler of being suspended for a 14 month period prior to the review hearing taking place. The Panel considered that Miss Butler had taken the opportunity during this period to develop her insight and to reflect on the seriousness of her wrongdoing. The Panel was also satisfied that the period during which she had been suspended, had had a salutary effect on Miss Butler. For all these reasons the Panel considered that Miss Butler would be unlikely to repeat her misconduct.

40. The Panel concluded the public interest would be upheld and protected by the imposition of a Caution Order. Such a sanction would also mark the unacceptable nature of Miss Butler’s conduct and that it must not happen again.

41. The Panel next considered the duration of the Caution Order. The Panel had regard to the seriousness of the original panel’s findings in respect of Miss Butler’s dishonesty. Accordingly, a Caution Order for a period of five years was deemed by the Panel to be appropriate and proportionate.

42. The Panel addressed the question of whether a Conditions of Practice Order was a proportionate response. It noted that no issue arose in relation to Miss Butler's clinical competence that would make the imposition of conditions necessary. In any event, the Panel considered, in light of its findings in respect of Miss Butler’s insight and her low risk of repetition, that such an order would be disproportionate.

Order

Order: The Registrar is directed to annotate the Register entry of Miss Miriam Butler with a caution which is to remain on the Register for a period of 5 years from the date this Order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Miss Miriam Butler

Date Panel Hearing type Outcomes / Status
07/05/2021 Conduct and Competence Committee Other Caution