Valerie A Winchester

Preliminary Matters:

Service

1. The Panel was satisfied on the basis of the documents contained in the service bundle that the Registrant was properly served with notice of the hearing in accordance with the Rules by email dated 6 October 2022.

Proceeding in the absence of the Registrant

2. Ms Sheridan made an application for the hearing to proceed in the absence of the Registrant. She referred the Panel to an email from the Registrant to the Hearings Officer, Mr Bryant, dated 2 December 2022 in which she stated that she would not attend the hearing and that she had provided a statement for the purpose of the hearing. Ms Sheridan submitted that it was clear that the Registrant had waived her right to attend the hearing and that it was in the public interest and in the Registrant’s own interests that the hearing should proceed in her absence.

3. The Panel took into account the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and accepted the advice of the Legal Assessor. The Panel was satisfied on the basis of the email dated 2 December 2022 and a previous email dated 18 September 2022 from the Registrant to the HCPC that she had a settled intention not to attend the hearing. The Panel considered that an adjournment would be unlikely to secure her attendance in the future and that no useful purpose would be served by an adjournment. The Registrant had provided a statement which she wished the Panel to take into account in response to the Allegation. It was also clear from her communications with the HCPC that she wished these proceedings to conclude without further delay. In all the circumstances, the Panel decided that it was in the public interest and in the Registrant’s own interests for the hearing to proceed in her absence.

Application for part of the hearing to be heard in private

4. Ms Sheridan made an application for any references to the Registrant’s family life or health to be heard in private. The Panel took into account the HCPTS Practice Note on “Conducting Proceedings in Private” and granted Ms Sheridan’s application.

Background:

5. The Registrant is registered with the HCPC as a Radiographer and was employed in that capacity by The Shrewsbury and Telford Hospital NHS Trust (“the Trust”) until her retirement in 2020. Prior to her retirement, the Registrant was employed as manager of the X-Ray Department at the hospital.

6. On 23 September 2020, following her retirement from the Trust, the Registrant visited the Computer Tomography (“CT”) Department, where she was seen by a former work colleague, Person E, in the CT control room, accessing patient records on a computer. This was reported by Person E to the Superintendent Radiographer, CB.

7. On 12 November 2020 CB telephoned the Registrant about the incident on 23 September 2020. The Registrant admitted having accessed the medical records of a member of her family, Person C, because she was concerned about Person C’s health. She also admitted having used the login details of Person A (a former colleague) to gain access to Person C’s records, knowing that it was wrong to do so.

8. There followed an internal audit by the Trust, in which JN and BJ were involved in providing and verifying information as to occasions on which the medical records of the Registrant and Persons B and C had been accessed. It was ascertained that the Registrant appeared to have accessed her own and the medical records of Persons B and C on three dates in 2016 and on other four dates between November 2019 and September 2020, as particularised in the Allegation above.

The hearing:

9. The Panel was provided by the HCPC with a hearing bundle comprising the witness statements of Person E, JN and BJ together with the documents generated by the audit conducted to investigate the Registrant’s unauthorised access to medical records. Persons E and JN gave oral evidence. BJ was not required to give oral evidence, but his statement was taken into account as hearsay evidence which the Registrant did not challenge. The Panel was also provided with a statement of VO of Kingsley Napley LLP Solicitors exhibiting certain documents which appeared in the hearing bundle but had not been formally identified by the other witnesses.

10. The Registrant submitted a statement dated 2 November 2022 for the purpose of this hearing. In that statement she admitted accessing Person C’s records on 23 September 2020 by using the login details of Person A. She also admitted accessing medical records of herself and members of her family, Persons B and C, on four other occasions, which she did not identify, over the six months before she retired.

11. Person E gave evidence on behalf of the HCPC. She is, and was at the material time, employed by the Trust as a Band 6 Radiographer. She stated that she knew the Registrant as having been a manager of the X-Ray Department before her retirement in 2020. On 23 September 2020, whilst working in the Computer Tomography (“CT”) Department, she saw the Registrant in the CT control room. She was aware that the Registrant was retired. She asked the Registrant what she was doing there and the Registrant replied that she was there because of Person C, a member of the Registrant’s family, who had been unwell and had come to the hospital for an ultrasound. Shortly after this conversation, Person E noticed the Registrant behind a computer screen, using an application known as “Review”, which is an electronic reporting portal on which pathology and radiology results of patients are stored.

12. Person E reported this incident to the Superintendent Radiographer, CB, who asked her to complete a Datix Report, which she duly did.

13. JN gave evidence on behalf of the HCPC. He is, and was at the material time, employed by the trust as the Pathology IT Manager. On 16 November 2020 he was asked to assist with an investigation into the Registrant’s use of the Trust’s clinical records system, “Review”. The portal contains an audit trail which allows management to see who has reviewed test results and when. Dates and time stamps can be searched within patient records. JN was asked to review the pathology results of the Registrant and Patients B and C.

14. JN found that the records of the Registrant and Patients B and C had been accessed by someone using the login details of Person A as follows:

• the Registrant’s thyroid-stimulating hormone (TSH) blood test records had been accessed on 23 January 2020;

• Person B’s blood test results had been accessed on 21 May 2020;

• Person C’s Full Blood Count (FBC) results had been accessed on 23 September 2020; and

• other test results of Patient C had been accessed on 27 November 2019.

15. As part of the investigation, the audit included a search of the records contained in the Trust’s Radiology Information System (IRS), Wellbeing Software CRIS system (CRIS) to ascertain the occasions on which the medical records of the Registrant, Person B and Person C had been accessed during the Registrant’s employment with the Trust. The CRIS system stores radiology, pathology and histology reports and blood test and biopsy results. JN found that their records had been accessed with Person A’s login details as follows:

• Person B’s records were accessed on 21 May 2020;

• Person C’s records were accessed on 27 November 2019;

• the Registrant’s records were accessed on 23 January 2020; and

• Person C’s records were accessed on 23 September 2020.

Burden and standard of proof

16. The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so the particulars of the allegation must be proved on the balance of probabilities. The Panel took into account the submissions of Ms Sheridan on behalf of the HCPC and the statement by the Registrant dated 2 November 2022. The Panel accepted the advice of the Legal Assessor.

Decision on Facts:

Particulars 1a) – d) found proved

1) Between 24 October 2016 and 08 November 2016, you inappropriately used the Clinical Record Interactive System, in that;
a) On 24 October 2016, you accessed Person B’s records;
b) On 07 November 2016, you accessed Person B’s records;
c) On 08 November 2016 you accessed Person C’s records;
d) On 08 November 2016 you accessed your record.

17. The Panel found each of the above particulars proved on the basis of the audit carried out by BJ. It was apparent from the screenshot of the records that on each of these four occasions, the records had been accessed by using the Registrant’s login details for the CRIS System. The Panel accepted the evidence of JN that it was not permitted for a Radiographer to access their own records or the records of any other patient other than in the course of their professional duties. It was not suggested by the Registrant that she had any authorisation to access these records. Accordingly, the Panel found that she had done so inappropriately.

Particulars 2a) – d) found proved

2) Between 27 November 2019 and 23 September 2020, you inappropriately used Review to access confidential test results. In that;
a) On 27 November 2019 you accessed the following test results for Person C;
i. Full blood count;
ii. C-Reactive Protein;
iii. Urea and Electrolyte;
iv. Erythrocyte sedimentation rate;
b) On 23 January 2020 you accessed your;
i. Thyroid-Stimulating Hormone test result on more than one occasion;
ii. Lipid test result on more than one occasion;
iii. Urea and Electrolyte test result on more than one occasion;
c) On 21 May 2020 you accessed the following test results for Person B;
i. Urea and Electrolyte;
ii. Liver;
iii. C-Reactive Protein;
iv. Bone;
v. Chest X-Ray;
vi. Full blood count;
d) On 23 September 2020 you accessed person C’s Full Blood Count test results.

18. The Panel found that the patient records had been accessed on each of the above occasions as alleged in particulars 2(a), (b), (c) and (d) on the basis of the results of the audit. The audit recorded that the login details of Person A had been used to access these records on the Review System. However, the Panel was satisfied on the basis of the following evidence that on each occasion it was in fact the Registrant who had accessed the patient records by using Person A’s login details:

• on 23 September 2020 the Registrant was seen by Person E accessing patient details soon after 5:00 pm;

• the audit for that date showed that at the relevant time, Person C’s records had been accessed using Person A’s login details;

• Person A was on leave at the time and could not therefore have accessed Person C’s records;

• on 12 November 2020 the Registrant admitted to CB in a telephone conversation, and confirmed in a handwritten statement, that she had accessed Person C’s records on the relevant date by using Person A’s login details;

• Person A subsequently confirmed that she had not at any time accessed the medical records of the Registrant or Persons B and C; and

• in her statement dated 2 November 2022 the Registrant confirmed that she had on other occasions accessed her own records and those0 of Persons B and C by using the login details of Person A.

Particular 3 found proved

3) You used Person A’s Review login credentials to access the test results detailed in particular 2.

19. The Panel found particular 3 proved having regard to the evidence referred to in paragraph 18 above.

Particular 4 found proved

4) Your actions in particulars 1 – 3 were dishonest.

20. In determining whether the HCPC had proved particular 4, the Panel applied the test of dishonesty in accordance with the decision of the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67. The Panel noted that the Registrant had admitted that when she was accessing Person C’s records on 23 September 2020 she knew that what she was doing was wrong. The Panel was provided with a copy of the General Data Protection Regulations (GDPR) and Confidentiality Policy. According to JN that policy had been available to all Trust employees for last 5-6 years on the Intranet and the Registrant would have undergone training each year in relation to data protection and the need to observe the confidentiality of patient records. By accessing her own and her family’s medical records the Registrant was on each occasion in breach of that policy.

21. The Panel considered that the Registrant, in accessing of her own medical records and those of Persons B and C, was not only in breach of data protection and confidentiality policies but also abused her role as a Radiographer which gave her privileged access to patient records. This abuse of trust was compounded in relation to particulars 2 and 3 by her misuse of Person A's login details to gain access to those records. The Panel considered that by the standards of ordinary, honest people the Registrant’s conduct in respect of particulars 1,2 and 3 was dishonest. Accordingly, particular 4 was found proved.

Decision on Misconduct:

22. The Panel went on to consider whether the facts found proved in allegations 1, 2. 3 and/or 4 amounted to misconduct as alleged in particular 5.

23. The Panel was mindful that this is a matter for the Panel’s professional judgment, there being no standard or burden of proof.

24. The Panel took into that misconduct was defined in Roylance v General Medical Council (no 2) [2001] 1 AC 311 as:

“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 medical practitioner in the particular circumstances”.

25. It is clear from case law that misconduct must be serious.

26. Misconduct can be of two principal kinds:

a) misconduct in the exercise of professional practice which is so serious that it can be properly described as misconduct going to fitness to practise;

b) conduct of a morally culpable or otherwise disgraceful kind which may occur outside the course of professional practice but which brings disgrace upon the practitioner and thereby prejudices the reputation of the profession.

27. In the Panel’s judgment, particulars 1, 2, 3 and 4 constituted misconduct both individually and collectively as characterised in paragraph 26 (a) and (b) above.

28. As an experienced Radiographer the Registrant should have been, and was, well aware that she was not permitted to access patient records, whether of herself or members of her family, on the Trust’s database. In so doing, she breached Trust policies in relation to data protection and confidentiality and abused her privileged professional status which gave her access to those records. The Registrant admitted that she knew that what she was doing was wrong at the time of doing it.

29. The Panel considered the Registrant’s conduct to have been a breach of the following standard of the HCPC’s Standards of Conduct, Performance and Ethics (2016) (“the Code”), namely:

• Standard 1.1: You must treat service users and carers as individuals, respecting their privacy and dignity

• Standard 5.1: You must treat information about service users as confidential

• Standard 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession

30. In the Panel’s view, the facts found proved constitute serious misconduct.

Decision on impairment:

31. The Panel carefully considered the submissions on behalf of the HCPC and the statement of the Registrant. The Panel had regard to the HCPTS Practice Note on “Fitness to Practise Impairment” and accepted the advice of the Legal Assessor.

32. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the “personal” and “public” components of impairment of fitness to practise. The “personal” component relates to the Registrant’s own practice as a Radiographer, including any evidence of insight and remorse and efforts towards remediation. The “public” component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the Regulator.

33. The Panel found that the Registrant’s fitness to practise was and remains impaired having regard to the “personal” component. The particulars of the allegation, which the Panel found proved, cover a number of incidents on seven separate dates when she accessed medical records of herself and members of her family between 2016 and 2020. Whilst the Registrant expressed remorse for what she had done, she appeared to lack insight as to the negative consequences for the reputation of the profession and the resulting loss of trust should the public become aware that a member of the profession abused her privileged position to access confidential patient records without authority and for her own purposes. The Registrant admitted in her statement that, having already retired from practice, she had not been in a position to remediate her misconduct. Given the number of times that the Registrant accessed records in this way, the Panel could have no confidence that she would not do so again if she were permitted to return to unrestricted practice.

34. With regard to the “public” component the Panel was mindful of the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. In considering whether the Registrant’s fitness to practise is currently impaired having regard to the “public” component, the Panel applied the test formulated by Dame Janet Smith in her Fifth Shipman Report and referred to by the High Court in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), 76):

“Do our findings of fact in respect of …. misconduct …… show that her fitness to practise is impaired in the sense that she:

a) has in the past acted and/or is liable to act in the future so as to put a patient or patients at unwarranted risk of harm; and/or

b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d) has in the past acted dishonestly and/or is liable to act dishonestly in the future?”

35. There is no suggestion that the Registrant has ever put patients at risk of harm or that she is likely to do so. However, the Panel considered that paragraphs (b), (c) and (d) of the above formulation are engaged in the sense that the Registrant’s misconduct involved dishonesty, which involved a breach of a fundamental tenet and thereby brought her profession into disrepute. In the Panel’s judgement, the public interest - the need to uphold proper professional standards and public confidence in the profession - would be undermined if a finding of impairment was not made. Accordingly, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of her misconduct on public interest grounds.

Decision on Sanction:

36. The Panel carefully considered the submissions by Ms Sheridan on behalf of the HCPC.

37. The Panel took into account the HCPC’s Sanctions Policy (2019) and accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by declaring and upholding proper standards of conduct on the part of registrants and maintaining public confidence in the profession and the Regulator. The Panel applied the principle of proportionality, balancing the interests of the Registrant with those of the public, and considered the available sanctions in ascending order of seriousness.

38. In the Panel’s judgement, the aggravating factors in this case are that:

• the Registrant accessed patient records on seven separate occasions between 2016 and 2020, thereby showing a repeated disregard for data protection and patient confidentiality;

• her statement dated 2 November 2022 shows limited insight in that she has not expressed any understanding of the negative impact on the reputation of the profession and public confidence in the profession resulting from her misuse of her privileged position to access patient records for her own use;

• the Registrant has not so far taken any steps to remediate her misconduct; and

• The Panel has identified that there is a risk of repetition.

39. The mitigating factors are that:

• the Registrant made an early admission to the incident on 23 September 2020 and has since made further admissions to other occasions when she accessed patient records;

• in relation to the incident on 23 September 2020 the Panel accepted the Registrant’s explanation that she accessed Person C’s medical records because she was extremely concerned about the health of Person C;

• her access to patient records was limited to her own medical records and those of family members;

• she has expressed remorse for her misconduct; and

• she had a long and previously unblemished career as a Radiographer prior to these proceedings.

40. The Registrant’s misconduct was too serious for the Panel to take no further action.

41. The Panel carefully considered the indicative features for imposing a caution order which include cases where the misconduct was an isolated incident which is very unlikely to be repeated. In this case, the Panel found that the Registrant’s misconduct occurred on several separate occasions over several years and that there was a risk of repetition. Accordingly, a Caution Order would not reflect the seriousness of the Registrant’s misconduct.

42. The Panel considered whether a Conditions of Practice Order would be appropriate. However, the Panel was unable to formulate conditions of practice which would address the nature of the Registrant’s misconduct relating to repeated breaches of professional boundaries in relation to patient records and an element of dishonesty. In any event, the Registrant had made it clear that she has no intention of returning to practice and therefore conditions of practice would not be relevant or workable.

43. In all the circumstances, the Panel considered that the appropriate and proportionate sanction was a Suspension Order for a period of 12 months. This would address the public interest by sufficiently marking the gravity of the Registrant’s misconduct, while giving her an opportunity to reflect on the Panel’s decision, consider whether she might wish to return to practice and take appropriate steps to remediate her misconduct.

44. For the sake of completeness, the Panel considered that a Striking Off Order would be disproportionate at this stage.

45. The Suspension Order will be reviewed before the expiry of 12 months from the date of its imposition. A reviewing panel is likely to be assisted by the following:

• the Registrant’s attendance at the hearing;

• a reflective statement by the Registrant concerning the implications of her misconduct for the profession and the wider public;

• evidence of remediation, including evidence that the Registrant has undergone training in professional conduct and ethics relating to her profession as a Radiographer and General Data Protection Regulations; and

• references and testimonials in respect of any work, whether paid or unpaid, carried out by the Registrant since the date of this decision.

The Registrar is directed to annotate the Register to show that for a period of 12 months from the date this Order comes into effect you, Ms Valerie A Winchester are subject to a Suspension Order.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order Application:

1. Ms Sheridan made an application for an Interim Suspension Order for a period of 12 months to cover the appeal period or until any appeal lodged has been determined.

Decision:

2. The Panel first decided whether to proceed to determine this application in the Registrant’s absence. The Panel noted that the notice of hearing dated 6 October 2022 advised the Registrant that the Panel could impose an interim order at this stage. The Registrant decided not to attend the hearing in that knowledge. In the circumstances, the Panel decided that it was fair to the Registrant and in the public interest to determine the application for an interim order in her absence.

3. The Panel noted Ms Sheridan’s submissions and accepted the advice of the Legal Assessor.

4. Given the Panel’s findings of fact, misconduct and current impairment, and its decision to impose a Suspension Order, it would be inconsistent with that need for public protection and the wider public interest not to impose some form of interim order. The Panel, for the same reasons it identified above, came to the conclusion that it is impracticable and inappropriate to formulate interim conditions of practice in this instance.

5. The Panel therefore makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being in the public interest and to protect the public, having regard to the Panel’s findings of fact and determination as to impairment and sanction.

Interim Suspension Order:
The Panel makes an Interim Suspension Order 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. This Interim Suspension Order is made for the maximum period of 12 months.

History of Hearings for Valerie A Winchester