Kelly L Madden

The hearing on 1 March 2022

Preliminary Matters

Application to hear part of the hearing in private

1. The Panel heard that matters relating to the Registrant’s health may be referred to during the course of the hearing. Ms Manning-Rees submitted that it was appropriate that those parts of the hearing be held in private. The Registrant did not oppose the application.

2. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Rules whereby matters relating to the private life of the Registrant, the complainant, any person giving evidence or of any patient or client should be heard in private. The Panel therefore agreed that those parts of the hearing where reference was to be made to the Registrant’s health should be heard in private.

Application to adjourn the hearing

The Registrant’s submissions

3. The Registrant applied to adjourn the hearing on 1 March 2022. In support of her application, the Panel has had sight of two telephone attendance notes, dated 22 February 2022 and 28 February 2022 of conversations between the Registrant and the HCPC.

4. In the note dated 22 February 2022, the Registrant outlined a number of health conditions. She stated that she was looking to change her accommodation with the hope of accessing a GP. She also said that when she had looked at the case documents, she had had to do so in the library, noting privacy issues.

5. In the note dated 28 February 2022, she stated that she had just got off the phone from the Samaritans, and that she was feeling overwhelmed by her housing situation, the lack of family support and that she was not used to the video conferencing arrangements. The note stated that the Registrant had been experiencing verbal abuse at her current accommodation, and that she felt “demonised”.

6. The Registrant submitted to the Panel that she was unable to read the bundle available to her on the HCPC’s electronic system, although she had previously seen the papers when she downloaded them when she was in the library. She reminded the Panel that she had a number of accommodation issues and that she was looking to move as she was not happy living in her current accommodation but stated that the accommodation she was looking at did not have internet access.

7. She stated that she did not mind going ahead with the hearing but that she had not read the papers and that she had “a lot on my plate at the moment”.

8. She stated that she was worried about having a roof over her head and that she was also concerned about her current health and that investigations were ongoing.

The HCPC’s submissions

9. Ms Manning-Rees, having brought the Panel’s attention to the HCPC’s Practice Note on Postponement and Adjournment of Proceedings, confirmed that the HCPC was neutral on the application.

The Panel’s decision on the adjournment application

10. The Panel accepted the advice of the Legal Assessor. In doing so, the Panel was mindful of the need to strike a proper balance between fairness to the Registrant and the public interest in the fair, economical, expeditious and efficient disposal of proceedings, having regard to the whole history of the proceedings: Nabili v General Medical Council [2018] EWHC 3331 (Admin). An adjournment is “not simply there for the asking” - Hussain v General Pharmaceutical Council [2018] EWCA Civ 22. Furthermore, it was mindful that applications for an adjournment, and any supporting evidence should be subject to proper scrutiny: Awan v Law Society [2002] EWCA Civ 1969. In reaching its decision, the Panel was mindful that the onus is on the applicant for an adjournment to prove the need for an adjournment: Teinaz v Wandsworth London Borough Council [2002] ICR 1471 CA. The Panel has also taken into account any relevant factors identified in the case of CPS v Picton [2006] EWHC 1108.

11. The Panel has borne in mind the case of Norton v. Bar Standards Board [2014] EWHC 2681 (Admin), that in considering the application for an adjournment, the Tribunal should consider and apply the criteria as set out in the case of R v Hayward, Jones & Purvis in the Court of Appeal [2001] EWCA Crim 168.

12. To the extent that the Registrant’s application is based on her health, the Panel has taken into account the case of General Medical Council v Ijaz Hayat [2018] EQCA Civ 2796.

13. Having carefully considered the Registrant’s application and the HCPC’s submissions and having had regard to the HCPC’s Practice Note on Postponement and Adjournment of Proceedings, the Panel has decided to refuse the application to adjourn for the following reasons:

⦁ The Registrant was served with the hearing papers in June 2021, some eight months prior to this hearing. In addition, the Registrant was sent the Notice of this hearing on 24 January 2022, approximately five weeks before this hearing. The Panel therefore concluded that, despite her difficult current personal circumstances, including accommodation issues, she has had ample time in which to prepare her case and request a further copy of the case papers if needed. However, the Panel concluded that the Registrant has chosen not to prioritise preparation for this case, even though she has received the case papers;

⦁ She is not seeking an adjournment to secure legal representation;

⦁ So far as her health were concerned, the Panel noted that the Registrant has not provided any supporting medical evidence to suggest that she is unfit to participate in the hearing. There is no independent medical evidence which particularises her health and which explains why that health condition(s) would prevent her participation in this hearing. Given the absence of supporting medical evidence, the Panel did not consider it was incumbent on it to make further enquiries regarding the Registrant’s medical condition. It was mindful that the onus was on the Registrant to provide supporting medical evidence to support her application;

⦁ The Registrant is not unfairly disadvantaged if the case were to proceed today as the bundle of case papers is not unduly lengthy and the Registrant has previously provided an explanation for the incident that has brought her before this Panel. The Panel was therefore not satisfied that her ability to present her case to the Panel would be compromised if the hearing proceeded today;

⦁ If the hearing were adjourned, the Panel was not satisfied that her personal circumstances would be materially improved such that she would be able to more effectively engage in this hearing;

⦁ there is a public interest that this matter proceeds expeditiously.

14. In all the circumstances, the Panel was satisfied that the Registrant would still be entitled to a fair hearing if it proceeded today. It therefore refused the Registrant’s application to adjourn the hearing.

Background

15. The Registrant is registered with the HCPC as a Biomedical Scientist.

16. Following a verbal disagreement on 10 July 2020, between the Registrant and a neighbour (Person A), the Registrant received a police caution from Norfolk and Suffolk Police for racial/religious hatred. The Registrant accepted the police caution on 16 August 2020.

17. The Registrant self-referred this matter to the HCPC on 17 September 2020.

Decision on Facts

18. The Panel has been shown a copy of the record of administration of a simple adult caution form in relation to the Registrant. The caution form, signed by the Registrant on 16 August 2020, confirms that the Registrant admitted the offence of “Racially / religiously aggravated intentional harassment/ alarm / distress – words / writing – On 10/07/2020 at Norwich in the county of Norfolk with intent to cause [Person A] harassment, alarm or distress used threatening, abusive or insulting words or behaviour or disorderly behaviour thereby causing that or another person harassment, alarm or distress and the offence was racially aggravated within the terms of section 28 of the Crime and Disorder Act 1998”.

19. The Panel has also had regard to the fact the Registrant self-referred to the HCPC, in which she accepted having received a police caution. In her self-referral form, the Registrant stated that:

On 9th July 2020 there was a verbal disagree with myself and a neighbour whilst i was at my art studio in Norwich. I was drunk and breathalysed and found to be 38 and the limit to drive is 35. I hadn’t eaten because i had activated a fire alarm preparing soup. The fire alarm activated the other fire alarms and my neighbour became extremely agitated and was shouting in the hall and on the landing. I told her there wasn’t a fire and apologised which i always do when the alarm activates accidentally. She was hysterical and i was drunk on a bottle of wine so we had an argument at the top of the landing outside my door and i called her “a spanish slag” and told her to go away if she didn’t like it. She had started covering the property with notes complaining about mess. I rent it on an ad hoc basis as a place to do art so the mess doesn’t bother me. I also stuck my fingers up at her because i just wanted her to stop screaming outside my door. She then called the local Police and accused me of hate crime. I haven’t been working much due to a medical condition...Following the incident – on the advice of a police officer i wrote a card apologised to the alleged victim and a box of chocolates. I believe she was already in a state of distress and anxiety perhaps completely unrelated to the property and the fire alarm.

20. In light of the Registrant’s admission of having received a police caution, which the Registrant also admitted in response to the allegation being put to her, and in light of the documentation produced to the Panel, the Panel finds the facts of Particular 1 proved.

Decision on Statutory Ground

21. The Panel next considered the statutory ground. Because this is a caution case and the Panel has been provided with a copy of a signed record of the caution, and finds the fact of the caution proved, the Panel found the statutory ground is therefore also made out.

Decision on Impairment

22. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of the caution.

Submissions on behalf of the HCPC on impairment

23. Ms Manning-Rees outlined the background facts of the caution and submitted that the Registrant’s fitness to practise is currently impaired in that that the caution was a serious matter, and the public interest requires that a finding of impairment be found so as not to undermine the public confidence in the profession and the regulatory process. She submitted that the relevant consideration in this case is the seriousness of the matter for which the Registrant was given a caution.

24. She reminded the Panel that it should have regard to the need to protect the public and to uphold standards, and that the questions of insight and remediation were central to the Panel’s consideration. She invited the Panel to conclude that the Registrant had breached Standard 9.1 of the HCPC’s Standards of Conduct, Performance and Ethics (2016) which states:

9 – Be honest and trustworthy.

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

25. She submitted that the Registrant’s email dated 23 September 2020 in which she referred to Person A as an “alleged victim” demonstrated that the Registrant lacked insight, sought to justify her behaviour and would undermine confidence in the profession. Whilst she accepted that she should not have shouted at Person A, she stated that she “didn’t realise it was illegal to call someone a spanish whore”.

The Registrant’s submissions

26. The Panel had regard to an email dated 23 September 2020 sent to the HCPC, the Registrant stated:

The caution was racial/religious hatred, i didn’t want to sign it but i can't afford to go to court through not working The alleged victim is a young portugese girl called [Person A] and we had an argument over a fire alarm

She initiated the argument i was really scared alone in a small extremely hot room and id drunk an entire bottle of cheap rose by accident while i was cooking soup and baking bread. I was travelling that weekend and cooking more than usual.

Even though there was no fire and i was apologising through the door she was hysterical and i went out onto the landing and all i did was shout back at her, she was outside my art studio with a phone after she had been screaming.

I called her a spanish whore said she should leave if she didn't like it (the house not the country) she called the police because she wanted attention and got attention. I did’nt approach her or follow her or threaten her i was scared of her. I just wanted her to go away. The fire alarms are very sensitive and activate the other fire alarms.
This happened on a friday in July when it was very very hot and we both lost our temper. On sunday before i left i bought her a card and chocolates and apologised for shouting but said i understood we are all in the same situation together the bad state of the property, no fan extractors, messy bathroom, people not working, covid pandemic. I live there on an ad hoc basis. I sympathised with her as a niece, a young vulnerable person i should not have shouted at her but ultimately I’m not her mother and i didn't realise it was illegal to call someone a "spanish whore"

I'm a middle aged woman who was raised by a British military man and if i tried to bully my mother or aunt they would shout back more at me.

The young police officers were not interested in this because i had hurt the alleged victims feelings.

27. The Registrant made oral submissions to the Panel. She accepted that she may have been a bit heavy-handed and that she had overreacted. She stated that “these things happen” and that “people have arguments”.

28. She stated that she has not behaved in a similar way at work and that she would try and avoid a similar situation occurring by staying away from people. She stated that she had been on CPD courses, but not recently in relation to Equality and Diversity issues. She stated that she has no problem with diversity and that she has a very diverse group of friends.

Panel’s consideration and decision on impairment

29. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions of Ms Manning-Rees on behalf of the HCPC and those of the Registrant.The Panel accepted the advice of the Legal Assessor.

30. The Panel is mindful that its role was not to go behind the caution nor was it to seek to reassess the criminal case. Rather, its task was to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the criminal behaviour concerned. The Panel considered whether the Registrant’s actions had brought the Biomedical Scientist profession into disrepute or had undermined public confidence in that profession.

31. The Legal Assessor also advised the Panel that it should bear in mind the principle of public protection in its broadest sense. The Panel was advised that it could take into consideration whether the Registrant admitted the offence and if she did, at what stage in the criminal process. An admission entered at the first reasonable opportunity is indicative of greater insight on the part of a Registrant than one entered at the last moment.

32. The Panel has had regard to the outcome of the criminal investigation, but has also borne in mind, to the extent that it is applicable to a caution rather than a conviction, that the outcome is not necessarily a good indicator of the seriousness of the offence when considered in a regulatory context in terms of maintaining public confidence in the profession: R (Low) v General Osteopathic Council [2007] EWGC 2839 (Admin). This is because the prime consideration of regulatory tribunals is the protection of the public and of the wider public interest. As Dame Janet Smith noted in the Fifth Shipman Inquiry Report,

“The fact that the court has imposed a very low penalty or even none at all should not lead the [regulator] to the conclusion that the case is not serious in the context of [its own] proceedings The role of the [regulator] in protecting [service users] involves different considerations from those taken into account by the criminal courts when passing sentence. What may well appear relatively trivial in the context of general criminal law may be quite serious in the context of [professional] practice.”

33. In considering whether the Registrant’s fitness to practise is currently impaired by reason of her caution, the Panel adopted the approach formulated by Dame Janet Smith in her Fifth Report of the Shipman Inquiry by asking itself the following questions:

Does the Registrant’s caution, and the facts relating to the caution show that her fitness to practise is impaired in the sense that she:

a) has in the past acted and/or is liable in the future to act 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 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 profession…

34. In relation to limb a), the Panel was mindful that it is not the Council’s case, and there is no evidence to suggest, that the Registrant has caused harm to service users. The Panel therefore concluded that limb a) did not apply to the facts of this case.

35. The Panel did however conclude that limbs b) and c) applied.

36. The Panel first considered the personal component of impairment and considered the issues of insight and remediation. It noted that since the Registrant’s caution, there was no meaningful evidence of demonstrable insight or steps towards remediation for the following reasons:

⦁ She had not taken any practical steps to address her behaviour, for example by attending a relevant course or meaningfully reflecting on her behaviour;

⦁ She sought to minimise her culpability for her behaviour, focussing instead on Person A’s conduct rather than her own;

⦁ She failed to meaningfully appreciate the impact of her actions on the victim or the profession in general, instead stating that “these things happen”;

⦁ The Registrant has not demonstrated that she has learned from her behaviour and that her future conduct will change as a result. Whilst the Registrant had accepted having received a caution, she had not meaningfully demonstrated the extent of her wrongdoing.

37. As a result, the Panel concluded that there was a high risk of her repeating her behaviour.

38. The Panel therefore determined that the Registrant’s fitness to practise is therefore currently impaired by reason of her caution on the personal component of impairment.

39. The Panel then considered the public component of impairment.

40. The Panel determined that by reason of her caution, the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession to abide by the law. The Panel determined that the caution of the Registrant related to a serious criminal activity. The Panel noted the features of the criminal offence in that it was racially aggravated and was deliberate.

41. Given the nature and seriousness of the offence committed by the Registrant, the Panel concluded that the Registrant’s conduct fell significantly below this standard. The Panel considered that a right-minded member of the public, hearing all of the circumstances and evidence of the case, would consider that this case does require a finding of current impairment if public confidence in the profession and in the regulatory process were to be maintained.

42. The Panel determined that the serious nature of the caution was such that the need to uphold professional standards and public confidence in the profession would be seriously undermined if a finding of impairment were not made. Therefore, the Panel determined that the Registrant’s fitness to practise is also currently impaired by reason of her caution on the public component of impairment.

The hearing on 28 March 2022

43. The Panel again agreed that those parts of the hearing where reference was to be made to the Registrant’s health should be heard in private.

Submissions of the HCPC on Sanction

44. Ms Lankester referred the Panel to the submissions previously made and the HCPC Sanctions Policy (SP). The HCPC takes a neutral view today in relation to the need for any particular Sanction.

Submissions of the Registrant

45. The Registrant has supplied a written reflective statement to the Panel today, evidence of her health difficulties, training courses undertaken and her CV. She offered an apology for her conduct in 2020. She states she over-reacted and said things in the heat of the moment. She was guilty of disgraceful behavior and what she said to Person A was highly offensive but this behavior was out of character.

46. At the hearing she provided further submissions in relation to her health and isolation and accommodation problems. She has chosen not to return to work and has reflected upon the incident. She accepts her behaviour was disgraceful and her racial abuse of Person A reflects badly on the profession. She has reflected on the incident with Person A which was due to the Registrant’s loss of temper. She states she is very remorseful and knows that she did wrong.

Legal Assessor’s advice

47. The Legal Assessor advised the Panel that the HCPTS Practice Note on Conviction and Caution Allegations states: Cautions are generally a discretionary, non-statutory, means of disposing of offences without the need for the offender to appear before a court. Typically, they are used for first time, low level offences by adults, where diversion from the courts is appropriate for both the offence and the offender.

48. The HCPC Sanctions Policy (SP) states any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system and declare and uphold proper professional standards.

The SP also states:

63. It is unlawful to discriminate against someone because they have, or are perceived to have, a protected characteristic, or are associated with someone who has a protected characteristic. Those characteristics are:… race;

65. There can be serious consequences for public safety and confidence in the profession where a registrant discriminates against individuals with a protected characteristic…

66. For the reasons set out above, where a panel finds a registrant impaired and this involves unlawful discrimination, it is more likely to impose a serious sanction.

80. A conviction or caution should only lead to further action being taken against a registrant by the HCPTS if, as a consequence of that conviction or caution, the registrant’s fitness to practise is found to be impaired.

81. The panel’s role is not to punish the registrant, but to protect the public, which includes maintaining high standards among registrants and public confidence in the profession concerned…

83. Likewise, if a registrant has a conviction or caution for a less serious offence which nevertheless had an impact on fitness to practise, typically panels should not permit the registrant to resume unrestricted practice.

Decision on Sanction

49. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on Sanction, the Panel has given careful consideration to the circumstances of this case. The Panel has considered the submissions made on behalf of the HCPC and the Registrant and accepted the advice of the Legal Assessor.

50. The Panel first identified the aggravating and mitigating factors that it should take into account.

The aggravating factors are:

⦁ The Registrant used inexcusable racist language.
⦁ She has demonstrated limited insight and sought to minimise her actions.
⦁ There is a risk of repetition due to the lack of genuine remorse.
⦁ The Registrant has not undertaken appropriate remediation.

The mitigating factors are:

⦁ The Registrant had a previously unblemished reputation.
⦁ The incident did not occur in the workplace.
⦁ The Registrant was under pressure due to her health and living in isolation and difficult conditions.
⦁ She made admissions and has engaged with the HCPC process.

51. The Panel has considered the Sanctions in ascending order of gravity. All Sanctions are available in this case. Taking no action and mediation would not be appropriate. The Registrant’s behaviour was outrageous in racially abusing Person A in her living accommodation. The Registrant appears to have unresolved issues of her trigger points and understanding the meaning of racism. Her submissions show she has insight as to the impact of her behaviour on the profession but not the full impact on Person A. The Caution was for a racially aggravated offence, but the Registrant has not reflected on the racism issue or addressed this undercurrent in her own comments, in her police statement and during the hearings.

52. The Panel has decided that a Caution Order is not an appropriate sanction in this case. The Registrant has not shown full insight or taken remedial action. This case is too serious to be dealt with by a Caution Order and the Registrant’s conduct has not yet been remediated, therefore a Caution would not safeguard the public interest or the reputation of the profession.

The SP states:

105. A conditions of practice order allows a registrant to remain in practice subject to restrictions which reflect the panel’s finding as to their fitness to practise. It requires the registrant to undertake certain actions or restrict their practice in certain ways. In some cases it may be appropriate to impose a single condition for a short period, for example to undertake specific training. However, in most cases, a combination of conditions will be necessary…

108. Conditions are also less likely to be appropriate in more serious cases, for example those involving:… discrimination…

109. There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated. The panel should take care to provide robust reasoning in these cases...

53. The Panel concludes that Conditions of Practice are not an appropriate Sanction in this case because the Registrant’s conduct was too serious, she has not taken sufficient steps since August 2020 to develop her insight and there is a risk of repetition. The Panel is not able to draft workable conditions in view of the Registrant’s overt discrimination and highly inappropriate behaviour.

The SP also states:

121. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order…

54. A Suspension Order is necessary in this case because the Registrant has not demonstrated sufficient insight and remediation. Suspension is proportionate in view of the serious nature of her conduct.

55. A Striking-Off Order is not necessary in this case and is disproportionate in view of the isolated nature of the conduct. The Registrant has demonstrated developing insight and remorse, there are mitigating circumstances, she has engaged with the HCPC process and her failings are capable of being remedied.

56. The Panel concludes that a Suspension Order for 9 months is appropriate because this will afford the Registrant sufficient time to reflect upon the Panel’s findings and demonstrate she has remediated the conduct giving rise to the Caution. This Order will be reviewed before it expires.

The reviewing panel is likely to be assisted by the Registrant:

(1) Continuing to be engaged with the HCPC and attending the next hearing.

(2) Undertaking and satisfactorily completing an [redacted] training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(3) Undertaking and satisfactorily completing a diversity training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(4) Providing a full written reflective piece demonstrating:

(i) the Registrant’s assessment of the impact of her behaviour on Person A, on the reputation of the profession and on the wider public interest, and
(ii) what she has learnt from the [redacted] and diversity training courses.

(5) Providing evidence of her further CPD and testimonials from individuals who can speak to her previous good conduct, good character and adherence to the values of the profession.

(6) [redacted].

Order: The Registrar is directed to suspend the registration of Miss Kelly L Madden for a period of 9 months from the date that this Order comes into effect.

Reasons for the making of an Interim Order:

The Panel accepted the advice of the Legal Assessor to consider whether an interim order was necessary to protect the public and in the public interest because of the nature and seriousness of the findings made. The Panel is satisfied that it is appropriate to direct that the Registrant’s registration should be subject to suspension on an interim basis. This is required for the protection of the public, and a fair-minded member of the public would be dismayed by the absence of such a restriction. The Panel has concluded that the appropriate length of the interim order is 18 months, as an interim order would continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal with the 28-day period. 

History of Hearings for Kelly L Madden