Mrs Jane Onoh

SUMMARY

Decision of the Health and Care Professions Tribunal, sitting as the Conduct and Competence Committee of the Health and Care Professions Council.

This is the fourth review of a Conditions of Practice Order originally imposed on 23 January 2019. The Order was varied and extended for 12 months at an early review on 15 April 2019, confirmed for a further 12 months at the second review on 10 July 2020 and varied and extended for a further 2 years at the third review on 16 July 2021.

This Order is due to expire on 20 August 2023.

Allegation

As found proved at the substantive hearing:

Whilst Registered as a Radiographer and while volunteering in the X-Ray department at Fraserburgh Hospital between July and August 2017, you:

1. Did not consistently demonstrate the clinical skills and / or expertise of a registered Radiographer in respect of:

1. appropriate positioning of a patient for a radiograph;

1. correct orientation of the radiographic cassette;

1. the need to appropriately position equipment, including the bucky and x-ray tube; and

1. the use of the light beam

2. [not proved]

3. The matters set out at paragraphs 1 and [2 – not proved] constitute lack of

4. By reason of your lack of competence your fitness to practice is

2

The substantive hearing panel found Particulars 1a, 1b, 1c and 1d proved, that the proved facts established a lack of competence, and that the Registrant’s fitness to practise was impaired.

Background

1. The Registrant is an HCPC-registered Radiographer. She volunteered to work under supervision in the Community Radiology Department of Fraserburgh Hospital (“the Hospital”) from July to August 2017 to assist her to obtain a full-time role as a newly-qualified Radiographer.

2. Concerns were raised about the Registrant’s practice and despite further training and supervision, no improvement was identified. The concerns were then referred to the HCPC in September 2017 and were subsequently the subject of a Conduct and Competence Committee hearing in January During the hearing the Registrant admitted allegations 1(a) to 1(d), and the substantive hearing panel found the allegations proved. She accepted that her practice was impaired and demonstrated insight, as well as a willingness to remediate the concerns.

3. However, the substantive hearing panel found that:

• the Registrant’s errors were not isolated;
• she demonstrated a lack of knowledge throughout her work;
• mistakes were repeated despite guidance given;
• she did not demonstrate the basic skills that would be expected of a qualified Radiographer.

4. The substantive hearing Panel concluded that the Registrant had failed to meet the HCPC Standards of Proficiency for Radiographers: 13, 14.1, 14.18, and 14.24. She had fallen short of the standards of proficiency expected of a newly-qualified Band 5 Radiographer, giving rise to a finding of a lack of competence. The Panel identified a risk of repetition and concluded that the Registrant was impaired on both the personal and public components of current impairment. She had, however, demonstrated insight and the panel considered that her impairment was capable of being remedied. The Registrant recognised the need for supervision, had demonstrated improvement over a short period, and was willing to undertake further training and development.

5. The substantive hearing Panel found that the appropriate sanction was the imposition of conditions upon the Registrant’s practice and that a Suspension Order would be disproportionate and unduly punitive in the circumstances. The Panel encouraged the Registrant to provide a written reflective piece to a future reviewing panel which would demonstrate how her practice had evolved.

6. This matter was referred for early review by the HCPC and was considered by a reviewing Panel in April 2019. Clarification was sought in respect of the practical operation of the conditions and to the review Registrant’s progress generally. A comprehensive review was undertaken and the reviewing Panel noted that although the Registrant was engaging with her regulator, there was little evidence of remediation and the Registrant’s fitness to practise remained The Registrant had not undertaken a period of supervised practice and had not demonstrated that she was able to safely practice without restriction. The reviewing Panel was satisfied that a Conditions of Practice Order remained appropriate and proportionate, and varied and extended the Order to allow the Registrant sufficient time to comply with the Conditions.

7. The second review was conducted in July 2020, when the Conditions of Practice Order was again extended due to the Registrant’s personal circumstances and the impact of the Covid-19 pandemic.

8. The third review took place on 16 July 2021. The HCPC’s position was that the Registrant had not addressed the concerns in relation to her practice sufficiently. The Registrant had submitted to the Panel an email showing her attempt to secure employment with a local hospital, but provided no other documents to evidence her learning or development since the Conditions of Practice Order had been extended. Further, the document that was provided was dated after the HCPC had contacted the Registrant to ask her to provide updated information. The HCPC was, however, mindful of the context of the pandemic and the Registrant’s personal

9. The Registrant confirmed that she wished to practise as a Radiographer and accepted that her fitness to practise remained impaired. She considered that she needed more time to secure employment and to undertake additional training if necessary.

10. In its decision, the reviewing Panel at the third review stated:

“The Panel was satisfied that the Registrant has continued to demonstrate insight in relation to her practice, but considered that she had not evidenced learning and development. She had not provided evidence of putting her skills into practice and had not secured employment as a Band 5 Radiographer. The substantive hearing panel had identified a risk of repetition and this Panel did not consider that the Registrant had sufficiently addressed the concerns, and therefore this risk remained. The Panel was pleased that the Registrant continues to engage in the regulatory process and was conscious of both her personal circumstances and the exceptional context of the pandemic.

The Panel found that the Registrant’s fitness to practise remains impaired on both the personal and public components of impairment. There had been no significant change in the Registrant’s circumstances, and she acknowledged that her fitness to practise remains impaired.”

11. In considering the appropriate sanctions, the third review Panel noted that both the Registrant and the HCPC submitted that extending the Order for a further period of two years would be appropriate and proportionate. The HCPC raised the prospect of including recommendations for the Registrant in relation to evidencing learning and development.

12. The third review Panel concluded that a Conditions of Practice Order remained the appropriate and proportionate sanction to address the risk to the public and ensure the Registrant could pursue her chosen career. The Panel noted that although there had been no significant or meaningful progress made by the Registrant since the substantive hearing, this appeared to have been largely as a consequence of her personal circumstances and the

13. The third review Panel observed that the concerns about the Registrant were raised in 2017 and that she had not worked in the profession since that volunteering experience. The Panel decided to vary the Conditions of Practice Order to address these issues.

14. The third review Panel also considered the sanction of striking the Registrant from the Register. The Panel stated that it: “….was conscious that this may appear appropriate given the time elapsed since the finding of impairment was made; however, accommodation had to be made for the Registrant’s personal circumstances and the pandemic. The Panel was satisfied that varying and extending the Conditions of Practice Order was the most appropriate way to address the concerns identified.”

15. The third review Panel therefore decided to vary the conditions of practice and add further conditions. The duration of the Order was extended by a further two years.

Submissions at the review hearing on 25 July 2023

16. Ms Bass, on behalf of the HCPC, addressed the Panel on the factors it should consider in reaching its decision and on its powers at this review hearing under Article 30 of the Health Professions Order 2009.

17. Ms Bass said the HCPC’s position was that little progress has been made by the Registrant in addressing the concerns in relation to her competence or in demonstrating that her fitness to practise is no longer impaired. The HCPC acknowledged the difficulties the Registrant has had in obtaining a position as a Radiographer, with the result that the conditions have not come into full effect. However, the position was that she had never worked in a registered Radiographer role in the UK and four years have now elapsed since the substantive hearing in her case in early 2019.

18. The HCPC had a concern that the Registrant’s Personal Development Plan indicated that she had undertaken reading, rather than substantive courses of training or learning. The Registrant had not submitted a reflective piece as required by the current conditions. The HCPC’s submission was that the Registrant had not addressed the concerns in relation to her practice sufficiently and that her fitness to practise remains impaired.

19. Ms Bass reminded the Panel of the orders it could impose at this review. The HCPC’s submission was that, given the lack of meaningful progress and the period of time for which the Registrant has been subject to conditions of practice, it would now be appropriate for the Panel to make a Striking Off Order. Ms Bass acknowledged the wish of the Registrant to remain a registered Radiographer and the efforts she has made, but reminded the Panel that the position could not continue indefinitely. She submitted that in the absence of any realistic likelihood that the situation would improve, it was now appropriate and in the public interest to make a Striking Off Order in this case.

20. The Registrant made submissions to the Panel and referred to her written submissions for this review hearing in which she stated:

“I applied to various Band 5 Radiography posts online. Unfortunately, I never got called for even an interview and I think the reason is because I have been out of practice for more than 5 years now.

I wrote to some Radiography departments in Scotland for an opportunity to come in for at least 3 months placement voluntarily to work under supervision. I got no single positive response.

I walked into Radiography department in Aberdeen Infirmary hospital, explained to the superintendent Radiographer my situation and requested for an opportunity to work as a volunteer Radiographer in order to refresh my practice skills and meet my condition of practice by HCPC. I had to walk into the department because all mails I sent were not responded to. They said that they do not have provision for that but I can drop my contact and they will contact me if things changes. Up till now, I have not heard from them.

I have kept myself engaged in continuous studies to improve my skills. Some of the areas I have covered include IRMER modules boardering on Radiation protection of patients, correct patient positioning, appropriate tube collimation and the importance of centring in Radiography…….

…..It’s been years since this condition of practice was imposed and it is a general knowledge that securing a job with a condition of practice is EXTREMELY difficult and even though I am doing my best and I’m optimistic.

I really feel sad, unfairly treated and helpless in situation because I feel the condition of practice was imposed wrongly since going to Fraserburgh Hospital in 2017 was only to boost my skills as I have just graduated from the university and relocated to the UK at that time and had kids so I was away from practice for about two years. I was not given the opportunity to achieve this and was rashly and unfairly Judged as incompetent when I have only spent seven (7) days at the hospital.”

21. The Registrant included references and links for resources she had reviewed and also included her personal development plan (PDP) which dated from 2021 to the present.

22. The Registrant told the Panel that she had provided reflections set out within her PDP. The Registrant told the Panel that she had applied for a number of employment positions, but had been unsuccessful. She had been trying for three years to obtain a place on an NHS return to practice course but had been refused because she is the subject of fitness to practise concerns.

23. The Registrant felt she had done her best to meet the requirements of the conditions. She asked the Panel to remove the conditions so that she can undertake the course and she assured the Panel that she would not take on a role as a Radiographer without informing the HCPC as she had no intention of putting patients in danger.

24. In answer to questions from the Panel, the Registrant said that she had, several years ago, sought advice from the Society of Radiographers and from other qualified Radiographers. She confirmed that she had sought roles in Radiography at lower than Band 5 roles, but again without success.

Decision

25. The Panel noted and accepted the advice of the Legal Assessor and had careful regard to the documentation, evidence, and submissions it had received. The Panel referred to the Practice Notes issued by the HCPTS in respect of Article 30 reviews and fitness to practise impairment.
26. The Panel was mindful that the purpose of this review under Article 30 of the Health Professions Order was not to go behind the findings of the original hearing panel in January 2019, or those of previous review panels, but to undertake a review of the current Order before its expiry.
27. The first issue for the Panel was to determine whether the Registrant’s fitness to practise remains impaired. If impairment were found, then the Panel would determine what sanction order would be appropriate to address the impairment. The Legal Assessor advised the Panel if this stage was reached, to refer to the HCPC’s Sanctions Guidance. The Panel was reminded of the available orders under Article 30 of the Health Professions Order 2009.

28. The Panel was mindful that its decision must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the HCPC’s overarching objective of public protection.

29. The Panel was reminded by the Legal Assessor that at review hearings, as per the decision in Abrahaem v GMC [2008] EWHC 183 (Admin), in practical terms there is a “persuasive burden” on the Registrant to demonstrate at a review hearing that she has fully acknowledged the issues which led to the original findings and has addressed them sufficiently, “through insight, application, education, supervision or other achievement...”.

30. In considering its decision, the Panel reminded itself of the original findings of the substantive hearing Panel in January 2019. These indicated serious deficiencies in the Registrant’s competence at a basic level. The Panel noted that the Registrant has now not practised as a Radiographer for five years and she has never held a position as a qualified Radiographer in the UK. 

31. In considering the question of current fitness to practise, a key issue for the Panel to determine was what, if anything, had changed since the current Order was imposed.

32. In relation to steps which the Registrant had taken to address the specific failings identified in the previous decisions, the Panel had heard that the Registrant has not obtained a role, either voluntary or qualified, in radiography. She has undertaken some professional development by reading, but the Panel noted, as submitted by the HCPC that this was not training or learning. The Panel considered the reflections to which the Registrant had drawn its attention in her PDP. The Panel concluded that these did not directly address the identified concerns, nor did they demonstrate insight into the concerns.  Regrettably, the Panel found these reflections insufficient and not persuasive.

33. The Panel considered the personal component of current impairment, component which includes the risk of repetition and to what extent any lack of competence has been remedied.

34. Whilst the Panel considered that the original issues were capable of remediation, it was not able to conclude that any sufficient meaningful progress has been achieved in the four years since the conditions of practice were first imposed. The Panel considered that the Registrant had not evidenced sufficient learning and development or reflection. She had not been able to provide evidence of putting her skills into practice as she had not secured employment as a Band 5 Radiographer.

35. The substantive hearing panel had identified a risk of repetition and this Panel did not consider that the Registrant had sufficiently addressed the concerns, and therefore this risk remained.

36. In respect of the public component of impairment, i.e., the need to protect service users, declare and uphold professional standards, and maintain public confidence in the profession, the Panel has to consider public policy issues, which include the need to maintain confidence in the profession and to declare and uphold the HCPC standards of proficiency. The Panel concluded that given the continuing risk and limited progress over an extended period of time, public confidence in the Radiographers’ profession would be undermined if a finding of current impairment were not made in this case.

37. The Panel was satisfied that the Registrant has throughout this process demonstrated insight in relation to her practice, as acknowledged by previous review panels. However, the Panel was concerned that her submissions at today’s review revealed a continuing lack of acceptance of the concerns found by the original panel regarding her fitness to practise.

38. The Panel concluded that the Registrant’s fitness to practise remains impaired on both the personal and public components of impairment.

39. The Panel therefore considered how to address the Registrant’s impairment, bearing in mind the provisions of the HCPC Sanctions Policy. It determined that taking no further action, mediation, or imposing a Caution Order would not be sufficient to protect the public and would not be in the public interest or the Registrant’s interest.

40. The Panel therefore considered whether to extend and/or vary the current Conditions of Practice Order. The Panel was mindful of the difficulties the Registrant has described. However, it considered that the Registrant has now been subject to conditions for an extended period of time and unfortunately, very little progress in demonstrating fitness to practise has been achieved. In essence, the concerns of the original Panel remain largely unaddressed after four years. The Panel reluctantly concluded that a further extension of the current conditions, or any varied conditions, would be unlikely improve the position.

41. The Panel considered a period of suspension, but concluded that, whilst such an order would protect the public and the public interest, it was unlikely to be effective in achieving a return to fitness to practise in the light of the history of this case.

42. The Panel therefore moved to consider a striking off order. It was mindful that this order was available under Article 29(6) of the Health Professions Order, as the Registrant had been continuously subject to conditions of practice for over two years at the time of today’s hearing.

43. The Panel wished to acknowledge the difficulties the Registrants has faced and also wished to acknowledge that the Registrant has engaged with the HCPC fitness to practise proceedings throughout this process. However, the Panel was mindful that its primary concern is to protect the public. It accepted the submission of the HCPC that it is not appropriate for a registrant to remain indefinitely subject to an order such as in this case. The Panel noted that the previous review panel in July 2021 considered a striking off order but determined to allow a further opportunity for the Registrant to address the concerns. Two years have now elapsed since that decision. Given the passage of time, the substantial period that the Registrant has had to address the concerns and the lack of real progress in doing so, the Panel concluded it is now appropriate to impose a Striking Off Order.

ORDER: The Registrar is directed to make a Striking Off Order in respect of Mrs Jane Onoh.

The Order imposed today will apply from 20 August 2023

History of Hearings for Mrs Jane Onoh