Miss Kelly L Madden

Preliminary Matters

Service and Proceeding in Absence

1. The Panel has seen the Notice of today’s hearing dated 31 May 2023 which the HCPC sent by email to the Registrant at her registered email address. The Notice of Hearing made clear that this hearing would take place today as a virtual hearing. The Notice informed the Registrant of the time and date of this hearing. The Panel has seen an electronic communication dated 31 May 2023 which states that “the recipients mail box is full and can’t accept messages now”.

2. Ms Khorassani on behalf of the HCPC submitted that good notice of today’s hearing has been effected in accordance with the rules. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied that good service of the Notice of Hearing has taken place.

Proceeding in the absence of the Registrant

3. Ms Khorassani reminded the Panel that the determination of the first review hearing conducted on 15 December 2022 shows that the Registrant did not attend and was not represented at that hearing. She further reminded the Panel that the determination of that hearing stated that there had been no contact with the Registrant since April 2022. She told the Panel that in addition to the Notice sent by email on 31 May 2023, other steps had been taken to inform the Registrant of this hearing. These steps include an email from the case manager to the Registrant dated 05 June 2023 and an email dated 07 June 2023 from Ms Khorassani to the Registrant. Both emails were sent to the Registrant’s registered email address. Ms Khorassani submitted that the Panel should consider the case in the absence of the Registrant.

4. Mr Bridge informed the Panel that he had sent to the Registrant a link to this hearing but the Registrant’s email box was stated to be full.

5. The Panel was aware that Notice of today’s hearing had not been sent by post to the Registrant’s postal address. However the Panel was also aware that a previous written communication to the Registrant’s postal address, sent on 15 December 2022 had been returned as undelivered, on 18 January 2023.

6. The Panel was aware that the substantive parts of the determination made at the first review hearing were available on the HCPC website, to which the Registrant could have had access.

7. The Panel heard and accepted the advice of the Legal Assessor.

8. The Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great care and caution. However the Panel has decided to proceed in the absence of the Registrant. The reasons are as follows:

• Service of the appropriate notice of this hearing has been properly effected.

• The Registrant has not applied for an adjournment.

• The Registrant has not engaged with the HCPC since April 2022 and did not attend the first review hearing on 15 December 2022.

• It is the duty of the Registrant to inform the HCPC of any change in her contact details. The Panel notes that at the hearing on 15 December 2022 it was stated that the email addressed to the Registrant had failed to be delivered, due to the mailbox being full.

• The Panel has kept in mind the guidance contained in the Practice Note issued by the HCPTS as regards proceeding in the absence of a Registrant.

• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant.

• This is a mandatory review and it is in the public interest that it should proceed.

• In these circumstances it is reasonable to conclude that the Registrant has voluntarily absented herself.

Proceeding partly in private

9. Ms Khorassani submitted that in order to ensure that matters relating to the health of the Registrant remained private, such matters should be received in private; but that otherwise this should be a public hearing. Having heard and accepted the advice of the Legal Assessor, the Panel determined that those matters that relate to the health of the Registrant should be received in private, but that otherwise this was a public hearing. The written determination will reflect this ruling.

Background as set out in the determination of the first review hearing conducted on 15 December 2022

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

11. 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.

12. The Registrant self-referred this matter to the HCPC on 17 September 2020 and the matter was then referred to a Panel of the Conduct and Competence Committee for a determination of whether the Registrant’s fitness to practise was impaired.

The Substantive hearing held in March 2022.

13. At that hearing, the evidence of the fact of a Police Caution on 16 August 2020 having been issued and accepted by the Registrant supported the Substantive Hearing Panel making a finding on the statutory ground.

The panel at the substantive hearing found that by reason of the Police Caution the Registrant’s fitness to practise was at the time of the Substantive Hearing impaired. That panel imposed a Suspension Order for a period of nine months “a period it considered would allow the Registrant to remedy her conduct”.

The first review hearing held on 15 December 2022

14. The panel at the first review hearing (the first review panel) determined that the Registrant’s fitness to practise remained impaired on both the personal and the public components. The first review panel imposed a further period of suspension of six months. The reasons for these decisions as recorded in its written determination, are set out below. For ease of reference the paragraph numbers of the written determination have been retained and are shown in brackets

(26) The Panel noted and accepted the Legal Advice and took into account the representations made by Mr D’Alton on behalf of the HCPC. The Panel had recourse to the Sanctions Policy issued by the HCPC. The Panel noted that on a review there is a persuasive onus on a registrant to demonstrate that they have taken steps to address and remedy their former inappropriate conduct.

(27) The Panel noted the comments made by the Substantive Hearing Panel in relation to the Registrant’s state of mind and lack of insight into the behaviour which had led to her accepting a Police Caution. The Panel also noted the recommendations which that panel had made as to the evidence the Registrant could provide any reviewing Panel. This Panel considers that evidence that the Registrant had undertaken reflection, training and reading would have been of assistance at this review. It is unfortunate that there is nothing before this Panel from the Registrant. In the absence of any evidence of steps taken by the Registrant, the Panel has no option other [than] to find that the Registrant’s fitness to practise remains impaired on the personal component.

(28) In relation to the public component of its decision the Panel considers that a member of the public would be rightly concerned if the Registrant were allowed to return to practice without having demonstrated that she is fit to do so, and there is little or no likelihood of a repetition of the behaviour which led to the imposition of a Police Caution. This being the case, this Panel has concluded that to maintain public confidence, and to uphold standards within the profession, it has to make a finding of impairment on the public component.

(29) The Panel has considered whether in the absence of the Registrant it could adopt a lesser level of sanction and has decided that it could not. A Caution Order and a Conditions of Practice Order would not address the behaviour and would be impractical as well as inappropriate given the seriousness of the matter.

(30) The Panel has concluded that a further period of suspension remains appropriate and proportionate in the current circumstances. Whilst this Panel has the power under Article 29 to impose a Striking Off Order it considered that at this time that would be disproportionate given that the behaviour that led to the Police Caution is capable of being remedied.

(31) The Panel further noted that within the Sanctions Policy (at paragraph 124) ‘Short term suspensions can also be appropriate in cases where there is no ongoing risk of harm, but where further action is required in order to maintain public confidence in our professions’. Whilst the Panel noted that it could not discount the issues of risk of harm, the Panel’s consideration of a Suspension Order focused on the public interest, as it is engaged in this case.

(32) In reaching its decision that a further period of suspension would provide the Registrant with the opportunity to review and reflect on her behaviour. It is therefore in the Registrant’s own interest that she appreciates that she must re-engage in the HCPC process and to take immediate steps to address her behaviour. The Registrant should be aware that any further lack of engagement or failure to address her previous failings could result in her removal from the Register at the next or a subsequent review.

(33) A further short period of suspension may focus the Registrant’s thoughts as to whether she intends to remain in her chosen profession. The Panel has therefore concluded that six months is ample time for the Registrant to start and possibly complete the process of remediation.

(34) The Panel has considered the measures which the Substantive Hearing Panel set out in its determination as of assistance to a future reviewing Panel. This Panel considers that those are measures which it too would recommend to the Registrant as appropriate to evidence her remediation of her previous behaviour. Those are:

• Continuing to be engaged with the HCPC and attending the next hearing.

• (2) Undertaking and satisfactorily completing an anger management 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 anger management 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) Disclosing evidence from a medical or health professional of the support received and management of her mental health issues and anxiety since this hearing.

Today’s Hearing 28 June 2023 [the second review hearing]

Submissions on behalf of the HCPC

15. Ms Khorassani submitted that the Registrant’s fitness to practise is still impaired by reason of the caution. She submitted that the appropriate order for the Panel to make was one of Strike Off. Ms Khorassani summarised the chronology which has led to this hearing. She referred to both the previous hearings. She took the Panel through the findings, conclusions and recommendations of both previous panels. In support of her overall submissions, Ms Khorassani said:

• The persuasive burden of establishing that her fitness to practise is no longer impaired rested on the Registrant. She had failed to discharge that burden.

• That the Registrant has not engaged with the HCPC with regard to this hearing or the first review hearing. She has not been in communication with the HCPC since April 2022.

• The Registrant has not complied with any of the suggestions that the first review panel made as to what might assist a subsequent reviewing panel. These are set out in paragraph (34) of the determination of that panel.

• There is no evidence that the Registrant has successfully addressed her failings.

• Appropriate Conditions of Practice could not be formulated. A further period of suspension would serve no purpose. In all the circumstances the only appropriate order for the Panel to make was one of Strike Off.

Submissions by or on behalf of the Registrant

16. The Panel has not received any submissions or representations made by or on behalf of the Registrant. The Panel has however noted what the Registrant stated at the substantive hearing in March 2022.

Legal Advice

17. The Panel heard and accepted the advice of the Legal Assessor.

18. The Panel is aware that it has all the powers that are set out in Article 30 [1] of the Health Professions Order 2001 [The Order] and which are set out in the email sent to the Registrant giving notice of this hearing.

19. The Panel is aware that the process under Article 30 [1] of the Order is one of review and not one of appeal and that its function is to determine whether the Registrant’s fitness to practise remains impaired and if so whether the Suspension Order under review remains appropriate and proportionate or should be varied or replaced by some other order.

Decision on Impairment

20. Having taking account of the submissions made by Ms Khorassani, the Panel has concluded that the Registrant’s fitness to practise remains impaired. Its reasons are essentially the same as those given by the previous panels and in particular the first review panel. The Registrant has not complied with any of the suggestions made in paragraph (34) of the determination of the first review panel. The Panel also notes and agrees with the comments made by the first review panel in paragraph 33 of its determination, “that six months is ample time for the Registrant to start and possibly complete the process of remediation”. There is no evidence of remediation. She has not engaged with the HCPC since April 2022. The Registrant has not engaged with this review hearing.

21. The Panel has concluded that there is a risk of repetition. It also concludes that public confidence in the profession and in the HCPC as its regulator, would be gravely undermined if the Panel was to determine that the Registrant’s fitness to practise was not now impaired and the Registrant was permitted to return to unrestricted practice. Consequently and for the same reasons that are set out in paragraphs (27) and (28) of the determination of the first review panel, the Panel determines that the Registrant’s fitness to practise remains impaired on both the personal and the public components.

Decision on Sanction

22. In considering the appropriate order the Panel had regard to the HCPC’s Sanctions Policy updated in March 2019, to the submissions of Ms Khorassani and to the advice of the Legal Assessor.

23. The Panel has applied the principle of proportionality. The Panel is aware that the purpose of sanction is not to be punitive and that it must consider the risk of repetition and public confidence in the profession and its regulator.

24. The Panel has considered the sanctions available in ascending order of restriction. The Panel considered that to take no action or to impose a Caution Order would be wholly inappropriate. The Panel further concluded that a Conditions of Practice Order would not address the Registrant’s behaviour and would also be impractical given the nature and gravity of the Registrant’s conduct. Moreover noting the fact that the Registrant has not engaged with the HCPC as regards this hearing, the Panel has no information as to the Registrant’s present circumstances and no confidence that she would comply with conditions.

25. The Panel next considered a continuation of the Suspension Order. It has concluded that a further period of suspension for 6 months would be both appropriate and sufficient to address the concerns set out above and which are reflected in the Panel’s finding of current impairment. The Panel determined that at this stage a Striking Off Order would be disproportionate. The Panel’s reason for coming to this conclusion include the following;

• The Panel was uncertain as to whether the Registrant fully appreciates the gravity of her present position.

• The Panel noted that the Registrant had participated in the substantive hearing in March 2022. She had provided a reflective statement for that panel. She also made oral submissions. She expressed her deep remorse at her behaviour for which she apologised. She had acknowledged that her conduct had been disgraceful and was out of character. She accepted that it had reflected badly on her profession. She identified a number of personal issues which are recorded in the determination of the substantive panel.

• The Panel had regard to the contents of the Sanctions Policy. It concluded that in principle the Registrant’s conduct is capable of being remedied and is not fundamentally incompatible with her remaining on the Register. The Panel concludes that a further short period of suspension would provide the Registrant with sufficient time to address her conduct and establish that it would not be repeated.

• This Order will be reviewed before it expires on 25 January 2024. The Panel stresses the importance of the Registrant complying with the suggestions made by the first review panel on 15 December 2022, which the Panel repeats. These were and are as follows;

- Continuing to be engaged with the HCPC and attending the next hearing.

- (2) Undertaking and satisfactorily completing an anger management 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 anger management 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) Disclosing evidence from a medical or health professional of the support received and management of her mental health issues and anxiety since this hearing.

26. The Registrant should understand that a continued failure to comply with the above suggestions could lead to a Striking Off Order.

27. In the circumstances of this case, the Panel considers that it is important that all important communications with the Registrant should be by post to the Registrant’s registered address, as well as by email.

Order: The Registrar is directed to suspend the registration of Miss Kelly L Madden for a further period of 6 months on the expiry of the existing Order.

This order will be reviewed again before it’s expiry on 25 January 2024.

History of Hearings for Miss Kelly L Madden