David Muchena

Preliminary Matters

Service

1. On the first day of the hearing, the Registrant was not in attendance. The Hearings Officer referred the Panel to the HCPC Service Bundle. She advised the Panel that Notice of this hearing had been sent to the Registrant’s registered email address on 11 September 2023 and that notice of delivery had been confirmed on the same date. She also referred the Panel to an email from the Registrant to the HCPC dated 25 September 2023 which indicated he had received the Notice of Hearing.

2. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Note on “Service of Documents” and the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules).

3. The Panel determined that service had been properly effected in terms of the Practice Note and the Rules.

Proceeding in Absence

4. Mr Foxsmith thereafter applied for the hearing to proceed in the absence of the Registrant.

5. He referred the Panel to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. He took the Panel through the Practice Note and submitted that whilst a registrant had the right to attend a hearing and be represented, no registrant could be compelled to do so.

6. Mr Foxsmith submitted that notwithstanding the most recent communication from the Registrant, he had failed to provide a reason for his non-attendance and that he had not sought to have the hearing adjourned. Mr Foxsmith further submitted that there was no indication that the Registrant was likely to attend on a further occasion should this hearing not proceed.

7. Mr Foxsmith told the Panel that there were three witness scheduled to give evidence and delay in proceeding could potentially adversely affect their recall of relevant events.

8. Mr Foxsmith submitted that the Registrant had voluntarily absented himself, that an adjournment was unlikely to result in his attendance on another occasion, and that the public interest outweighed any disadvantage to the Registrant in the hearing proceeding in his absence.

9. In reply to Panel questions regarding the email from the Registrant to the HCPC dated 25 September 2023, in which he stated, “I am available on Tuesday 07 Nov 23 if that works” and whether this might suggest that he had misunderstood the Notice of Hearing, Mr Foxsmith cautioned the Panel against speculating about what was in the Registrant’s mind. He submitted that the Panel should take into account the clear terms of the Notice that this hearing would commence on 31 October 2023.

10. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and the case of GMC v Adeogba [2016] EWCA Civ 162. He referred the Panel to the terms of the Notice of Hearing contained in the HCPC’s Service Bundle.

11. Following initial consideration of Mr Foxsmith’s application, the Panel reconvened and was advised that the Hearings Officer had made further attempts on a number of occasions today to contact the Registrant by telephone and had sent one email. The Hearings Officer told the Panel that these attempts had been unsuccessful. The Panel thereafter retired to further consider its decision.

12. The Panel determined that the hearing should proceed in the Registrant’s absence.

13. For the reasons set out above, the Panel was satisfied about service. It initially had concerns that, given the terms of the Registrant’s email to the HCPC of 25 September 2023 and that he was unrepresented, there had been no further attempt by the HCPC to contact the Registrant to clarify whether he was attending the hearing. However, when provided with an update on steps taken by the Hearings Officer today, the Panel was satisfied that all reasonable attempts had been made by the Hearings Officer to contact the Registrant.

14. The Panel also considered that there had been no application by the Registrant to adjourn this hearing. Further, the Panel considered there was nothing before it to show that the Registrant was likely to attend any future hearing if the hearing was adjourned.

15. The Panel took into account that any delay could adversely affect witnesses’ recollections. It also took into account that it was in the public interest that hearings should take place as expeditiously as possible. The Panel considered that any disadvantage to the Registrant in proceeding in his absence was outweighed by the public interest.

16. In all these circumstances, the Panel decided to grant Mr Foxsmith’s application and proceed in the absence of the Registrant.

17. At the close of the first day of this hearing, the Hearings Officer told the Panel that the Registrant had been attempting to call her during the hearing. The Hearings Officer explained that she had not been able to answer her phone when the hearing was taking place and that she had tried to call the Registrant during the Panel’s adjournment when it considered what questions it might have for one of the witnesses, MH, but that he had not answered. The Hearings Officer explained that she had also emailed the Registrant, but he had yet to reply to that either. It was agreed between parties that once the Panel adjourned for the day, further attempts would be made to contact the Registrant and the Panel would be updated at the start of the hearing on day two.

18. When the Panel convened on day two of the hearing, the Registrant was in attendance virtually. He confirmed that he was not in the UK at that time and would not be in the UK for the remainder of the days initially set down for the hearing. The Registrant did, however, confirm that he wished to participate in the hearing.

19. Mr Foxsmith explained in detail that a conversation had taken place amongst himself, the Legal Assessor, and the Registrant prior to the Panel reconvening. He detailed what had been discussed within that conversation. The Panel Chair then asked Mr Foxsmith how the HCPC proposed to proceed with the case given that the Registrant had now engaged. Mr Foxsmith proposed that initially the Allegation should be read into the record and the Registrant invited to respond to it. Having taken legal advice, the Panel agreed to this proposal.

20. The Allegation was therefore formally read into the record and the Registrant stated that he admitted to particulars 1, 2, 3, and 4, these being the particulars relating to facts.

21. The Allegation having been read into the record and the Registrant having responded to it, Mr Foxsmith raised the concern that due to the Registrant being overseas, he would be unable to give evidence on his own behalf unless permission was provided from the country in which he currently was. Mr Foxsmith confirmed permission would have to be requested through a formal application to the Taking of Evidence Unit (ToE) in the Department of the Foreign and Commonwealth Office. Mr Foxsmith further confirmed that he had already made such a request, but that in his experience it might take some time for this to be processed. He accepted that this might result in the hearing not being concluded within the five days set down for it. However, Mr Foxsmith submitted that this jurisdictional issue would only arise should the Registrant choose to give evidence himself or to make oral submissions. He submitted that this did not preclude the remaining HCPC witnesses being heard, as the most that the Registrant would be doing would be to ask questions of these witnesses in cross-examination. It was confirmed that if the Panel agreed to proceed, the Hearings Officer would ensure that the Registrant was able to access and read all of the documentation before the Panel.

22. The Registrant did not object to Mr Foxsmith’s proposals on how the hearing should proceed.

23. The Panel accepted the advice of the Legal Assessor in relation to Mr Foxsmith’s proposals. He referred the Panel to the HCPTS Practice Note on “Unrepresented Registrants” and advised that it was important the Registrant be given all reasonable opportunity to set out his case. He confirmed that he agreed with Mr Foxsmith; the issue of jurisdiction would not arise until after the HCPC had closed its case. He further advised that the Panel should consider all the information before it holistically, and consider whether it was satisfied that to progress the case as suggested by Mr Foxsmith would not cause unfairness to the Registrant.

24. The Panel carefully considered Mr Foxsmith’s submissions. It noted that the Registrant also wished matters to progress and determined that it could hear from the remaining HCPC witnesses without any jurisdiction concerns arising or any injustice or unfairness being caused to the Registrant. The Panel therefore determined to proceed to hear the remaining HCPC witnesses.

Background

25. The Registrant was employed as a Radiographer by Calderdale and Huddersfield NHS Foundation Trust (the Trust) at the time of the Allegation. The Registrant was contracted to the Trust via an agency, Diagnostic Healthcare Limited (DHC). In December 2019, the Registrant was introduced to DHC through an agency, Jennie Reeves Radiographers Agency (JRRA).

26. On 14 August 2020, a complaint was submitted to the HCPC by an NHS Counter Fraud Specialist. The nature of the complaint was that the Registrant had secured on-site Trust accommodation that he was not entitled to on 9 occasions between 15 April 2020 and 29 May 2020. It was alleged that the Registrant was aware he was not entitled to on-site accommodation and had deliberately used Person A’s name and General Medical Council (GMC) number to secure the accommodation.

27. The matter was subsequently referred to the HCPC on 7 April 2021.

Decision on Facts

Evidence

28. The Panel heard evidence from MH, DM, Person A, and LA.

MH

29. MH took the Affirmation and adopted her written witness statement. She then answered supplementary questions from Mr Foxsmith.

30. MH explained to the Panel that since she had given her statement, she had married and her married name was MD.

31. MH told the Panel that she was employed as an Assistant Anti-Crime Manager for Audit for Yorkshire, York and Scarborough Teaching Hospitals NHS Foundation Trust and had been in this role since October 2019. MH also set out her prior employment details for the Panel.

32. MH explained that Calderdale Royal Hospital (the Hospital) had the facility for staff to book overnight accommodation. She said that she did not know the rules surrounding it, such as who was entitled to book accommodation and under what circumstances. She said she had been advised that if someone wished to book accommodation, they must firstly contact the Hospital’s General Office. The staff in the General Office would then ask the individual to complete a booking form. They would then check availability of accommodation, take payment, and leave a key at security for the individual to pick up if they were arriving out of office hours. MH said she could not categorically confirm this was the exact process for obtaining accommodation, as she had only been advised of this verbally by staff at the Hospital.

33. MH told the Panel that on 10 June 2020, LA, the Assistant Facilities Manager for Calderdale and Huddersfield Solutions Ltd, advised that another colleague who worked in the General Office had spoken over the telephone to someone whom she believed was Person A. The individual on the telephone was asked if he had stayed at the Hospital before and he confirmed that he had. She said she believed this conversation had taken place at the beginning of April 2020.

34. MH said that LA told her concerns were first raised regarding the Registrant’s conduct on 20 May 2020. These concerns had been raised by a staff member, AT, at the General Office at the Hospital. AT was concerned that Person A always collected the keys out of hours and had never been seen by a staff member. AT had stated it was unclear where Person A had been working and she had been unable to find any department who was aware of, or who had heard of, Person A. AT had subsequently contacted the rota coordinators to see if he had been booked by them and they also confirmed they had no record of any person with the name of Person A. MH explained to the Panel that the accommodation booking sheets for the months of April and May 2020 were then obtained by the Trust. Examination of the sheets showed that the Registrant had booked accommodation on the dates 15, 16, and 17 April 2020 and 6, 9, 12, 13, 16, and 19 May 2020 under the name of Person A. MH referred the Panel to a booking form dated 12 May 2020 and the booking sheets, which had been lodged as exhibits in the HCPC bundle. MH said she had been told that, during this period, the Registrant had been working in the satellite CT scanning unit. She said that the most recent booking form she examined, which was allegedly completed by the Registrant on 19 May 2020, stated that the Registrant was working in trauma and orthopaedics. The trauma and orthopaedics department was contacted and confirmed that they did not know who Person A was.

35. MH explained that the booking form contained a GMC number for Person A. She said the Trust has searched the database for the number and the search indicated that the GMC number belonged to a Trauma and Orthopaedic surgeon based at Worcestershire Acute Hospitals NHS Trust. MH said that a Google search was carried out for Person A and this returned images showing a white male. When the CCTV footage of the Registrant arriving to pick up the key from security was examined, it was noted that the individual was a tall black male. The security team also provided a description of the man who had presented himself as Person A and confirmed that it was a tall black male.

36. MH said that LA told her she had contacted Person A to ask if he had been working at the Hospital during this period and he confirmed that he had not. She also explained that LA subsequently spoke to the Registrant by telephone on 20 May 2020 and he denied any wrongdoing. She further explained that when the Registrant had returned the keys on 19 May 2020, he had accidentally returned the keys for the satellite CT scanning unit instead of the keys for the accommodation, and this allowed the Trust to confirm that the Registrant was working as a Radiographer and was not Person A.

37. MH said that she had been told by LA the Registrant had completed a booking form only once, on 12 May 2020 for 19 May 2020. On the other occasions he had called the General Office and, when asked to complete a booking form, he told the General Office staff that he had already completed one. She said that due to this, the next time the Registrant asked for accommodation the booking form was left with the keys and instructions were given that he was required to complete the form before these had been given to him.

38. MH confirmed that in June 2020, she was appointed to conduct an investigation into an allegation of potential fraud on the part of the Registrant. She said that as she did not work on site, nor was she employed by the Trust, she was put in contact with LA, who provided her with information relating to the allegations.

39. MH explained that she carried out the investigation as per the NHS Counter Fraud Authority Fraud Manual. MH provided the Panel with details of how the investigation was carried out. She referred the Panel to a copy of the interview notes with the Registrant, which she had produced as an exhibit. She also referred the Panel to a copy of her Investigation Report, which she also produced as an exhibit.

40. MH said that she had spoken to DM, who worked for DHC, the agency with whom the Registrant was employed. She said that DM confirmed the Registrant was a genuine Radiographer employed by the agency and had been working at the Hospital.

41. MH explained to the Panel that on 25 June 2020, she spoke to the Registrant by telephone as part of her investigation. She said that the purpose of this conversation was to ensure that he had paid the money he owed for the accommodation he had stayed in. She said the Registrant confirmed he had paid the money due and was extremely remorseful on the phone, saying he was sorry for the problems he had caused. She said the Registrant had explained to her that he was desperate to find somewhere to sleep when working at the Hospital and did not know what else to do. MH said the Registrant told her that he knew Person A from meeting him at a medical event in Worcester. MH said that she decided not to talk to Person A, as he had already been spoken to by Trust staff. MH also said that she informed the Registrant during this telephone conversation that she was going to refer the matter to the HCPC. She stated that the total loss of money equalled £225. MH also referred the Panel to a letter from the Registrant dated 26 May 2020, where he accepted that he had occupied Hospital accommodation using incorrect information and sincerely apologised for his actions and their consequences for others.

42. In response to Panel questions, MH stated that she was confident the Registrant inappropriately used Person A’s name. She also stated that she could not recall if the Registrant had told her he understood he was not entitled to this accommodation. MH was asked if a policy existed for booking accommodation at the Hospital and stated that she did not know whether there was such a policy or not.

43. At the start of day two of the hearing, Mr Foxsmith told the Panel that he had received an email from MH providing clarification on whether or not there was a policy on who was entitled to accommodation. He confirmed this had been shared with the Registrant, who had engaged with the hearing on the second day, and with the Legal Assessor. Mr Foxsmith invited the Panel to consider recalling MH in due course to speak to the email and provide any other evidence she could. MH was recalled to give further evidence on day three of the hearing. She took the Affirmation.

44. MH confirmed that after giving evidence initially, she had received an email sent on behalf of Mr Foxsmith asking her if she could investigate whether there was in existence in 2020 a policy for booking accommodation at the Hospital. She also confirmed that she had replied to the email and that, in the final reply, she had confirmed no such policy existed at the Trust. She explained she had been told that, instead of a policy, there was a Standard Operating Procedure, which had been amended after the incident giving rise to the Allegation so as to ensure that new accommodation keys were not given out until proof of identity had been provided. She also confirmed that a new booking form had been introduced and that the accommodation was for doctors only, and a Radiographer would not be entitled to use this accommodation.

45. The Registrant said he had no questions of MH in cross-examination but that he wished to thank her for her input and how she had conducted the investigation.

46. In reply to questions from the Panel, MH confirmed that she had spoken to the Estate Manager who had been in post at the time of the incident and so was aware of what happened at the time. She told the Panel that this individual was GD. In response to further questions from the Panel, MH explained that the accommodation could be used by a Locum doctor or substantive members of staff who were on call and needed to be nearby in case they were called in to work.

DM

47. DM took the Affirmation, adopted his written witness statement, and answered supplementary questions from Mr Foxsmith. He told the Panel that he was employed as the Head of Operations for Radiography for DHC and had been in this role since 01 July 2011. He said he was directly responsible for staff and had no clinical responsibilities.

48. DM explained that the Registrant was employed as a CT Radiographer and was responsible for scanning patients. He explained what duties the Registrant would carry out in this role. DM said that the Registrant was experienced in setting up clinical protocols on site and carrying out diagnostic CT scans. He said that the Registrant was sent to some difficult sites as he was very good at setting up the protocols and optimising them. He further explained that the Registrant was contracted via an agency to carry out ad-hoc shifts as and when required at the Hospital.

49. DM told the Panel that the Registrant was introduced to DHC through an agency and had worked for it for around 14 months. DM said that during this time he acted as the Registrant’s manager and he had no concerns with his work prior to the issues giving rise to the Allegation. DM explained the induction and compliance process that the Registrant had gone through and that he was required to undertake mandatory training every 12 months. He stated that the annual training mentioned honesty. He referred the Panel to the training certificates produced by him and confirmed that the Registrant had completed such training. DM told the Panel that the Registrant was professional, kept customers happy, was always on time and, if it was necessary, always took on awkward shifts. He said that there were no complaints or problems with the Registrant other than the issues which gave rise to the Allegation.

50. DM said that on 20 May 2020, he had received a telephone call from LT at the Hospital informing him that the services of DHC had been stopped and the CT service had been suspended due to the action of a Radiographer working for DHC. He said once he had learned of the allegations against the Registrant, he went straight to the site to meet with him. DM said that when he met the Registrant, he asked him to tell him exactly what had happened. DM told the Panel that the Registrant told him he had used Person A’s identity and that Person A was a friend of his. DM said that the Registrant had told him Person A was a doctor at Gloucester Hospital, where they had both worked in the past. DM also said that the Registrant admitted he had gone onto the internet to find Person A’s GMC number to give to the Hospital in order to obtain accommodation. DM said that the Registrant also said he had used his own driving license as he shared a similar name to Person A. DM said that the Registrant had told him he had stayed at the Hospital two or three nights and explained that when he had gone to hand over the keys for the accommodation the final time he had stayed, he had mistakenly handed in the keys of the satellite CT scanner. DM said that the Registrant told him he was questioned on site by security and had admitted what had occurred. DM also told the Panel that the Registrant explained he was under the impression he would not be able to obtain Hospital accommodation as he was working for an outside company.

51. DM said that the Registrant was very teary and remorseful and said that he felt he had let everybody down. DM referred the Panel to an email he had received from the Registrant which expressed remorse. He said that the Registrant had not sought to deny his wrongdoing. DM told the Panel that he personally thought the Registrant had acted in this way through naivety. He said that he did not think the Registrant was acting out of malice and it was a momentary lapse and incorrect judgement.

52. DM said that during his conversation with the Registrant, he had made shorthand notes which were then transferred to a typed document, and he referred the Panel to this document.

53. DM said that different NHS trusts have different processes for booking and using on-site accommodation. He said that the general process was that each hospital would have a department responsible for organising accommodation and, if accommodation was needed, this department should be approached to book it. He also explained to the Panel that the accommodation needed to be sponsored by a manager in the NHS department where the individual was working in order to ensure that there was a bona fide reason for use of the accommodation. DM said that checks were carried out at the discretion of the specific hospital trust.

54. DM said that it would have been down to the Trust to decide upon whether the Registrant was eligible for accommodation or not. He also explained to the Panel that when the Registrant commenced his employment with DHC, he was told that the company would try to support and help staff find accommodation. He confirmed that had the Registrant approached him, DHC would have assisted him to get accommodation if he was having difficulty. He said that he thought the Registrant had tried to deal with the accommodation problem himself and not burden others.

55. DM said that following the allegations, the Registrant was spoken to by the CEO of the company and the company’s Human Resources department, and he continued to work with the company for a few months without further issue.

56. The Registrant stated that he had no questions in cross-examination for DM, but apologised for his actions and thanked DM for the manner in which he had dealt with matters.

Person A

57. Person A took the Affirmation, adopted his written witness statement, and answered supplementary questions from Mr Foxsmith.

58. Person A told the Panel that he was employed at Worcester Acute Hospitals NHS Trust. He said he had been in his post since July 2019.

59. Person A stated that on 20 May 2020, he had received a message from LA, Services Manager, asking if he was the Person A working as a Locum at the Trust. He said that he told LA he was not this person and clarified that he worked at Worcestershire Acute Hospitals NHS Trust and had never worked at Huddersfield Hospital or the Hospital. Person A said that LA asked him to confirm his GMC number, which he did, and she then asked him to call her on the telephone. He said they had a brief conversation where he was informed that somebody was using his name and GMC number to try and book accommodation posing as a Locum doctor. Person A stated that his GMC details were widely available on the internet. He said that he had confirmed with LA that he did not know the Registrant.

60. Person A said that after he was informed of the concerns about the Registrant, he wrote to the Chief Medical Officer at the Trust, making him aware that someone was posing as him. He referred the Panel to a copy of this correspondence. Person A said that he was aware the Trust needed to investigate the concerns to identify if the individual had also been involved in the treating of any patients whilst posing as him.

61. Person A confirmed that he had never worked for the Trust or secured any NHS accommodation whatsoever in 2020.

62. In his written statement, Person A stated that he had never met, spoken to, or heard of the Registrant. However, during supplementary questions he accepted that it was possible he may have met him without realising it, for example in the line of his normal work. He said that he did not have any clear recollection of ever meeting the Registrant.

63. The Registrant said that he had no questions for Person A in cross-examination, but made an unreserved apology personally for what he had gone through. He said that he had not had an opportunity to put this apology in writing to him personally.

64. In response to Panel questions, Person A confirmed that he would not have had entitlement to use accommodation at any of the other hospitals he had worked at. He also confirmed he had never worked at Gloucester Hospital. When asked by the Panel if he could possibly have met the Registrant, he accepted this was quite possible. He explained that there were mandatory Trust training days, probably about nine or 10 per year. He said that he generally did not know the other people in the room where the training was taking place or recognise them, but they were all bundled together so it was quite possible he could have met the Registrant in this scenario. However, he said that he did not recall meeting the Registrant. When specifically asked whether, during a training course, he had met the Registrant and they had recognised the similarity between their surnames and joked about it, Person A said that he did not recall that.

Direction for Further Witness Evidence

65. Following Person A giving evidence, Mr Foxsmith formally asked the Panel to note the witness statement of CB in the bundle and then stated that the HCPC had no further evidence.

66. The Panel then advised Mr Foxsmith that it wished to consider certain matters before he closed his case, and it adjourned for a short time. When the Panel reconvened, it indicated that it considered there remained a lot of uncertainty in respect of MH’s evidence surrounding the issue of the Registrant’s entitlement to accommodation, any payment due, and how such payment might be made. The Panel indicated that it had noted it had been LA who initially spoke to MH and that in her evidence when she was recalled, MH had indicated GD might also potentially provide evidence on these issues. The Panel indicated that it wished to receive legal advice on what steps it was entitled to take in relation to these potential concerns.

67. The Legal Assessor referred the Panel to the case of Ruscillo v Council for Regulation of Health Care Professionals [2005] 1 WLR 717, and in particular the comments in that case that a panel should play a more proactive role than a judge presiding over a criminal trial and make sure that the case has been properly presented and that relevant evidence is placed before it. The Legal Assessor further advised that this discretion was not unfettered and the Panel had to consider if there was a justifiable basis for it seeking to have further evidence obtained. The Legal Assessor also referred the Panel to the HCPTS Practice Note on “Case Management, Directions and Preliminary Hearings” and advised that the Panel did have the discretion to issue case management directions where appropriate. He also referred the Panel to Rule 10 (3) of the Rules, under which the Panel could require any person other than the Registrant to attend the hearing and give evidence or produce documents.

68. Mr Foxsmith advised that he had no issues with this advice.

69. The Panel again retired to consider the issues before it.

70. When the Panel reconvened, it advised parties that it potentially wished to hear further evidence from both GD and LA. The Panel thereafter issued the following written directions:

“The Panel determined it was in the interests of all parties to exercise its case management powers as reflected in the HCPTS Case Management, Directions and Preliminary Hearing Practice Note. In particular the Panel makes a direction under Rule 10 (3) as follows:

‘That the Panel requires (i) [LA] and (ii) [GD], employees of Calderdale Royal Hospital, to attend the hearing and give evidence in relation to the following matters.

(a) What individuals were entitled to secure NHS accommodation at Calderdale Royal Hospital between 19 April 2020 and 19 May 2020 and in particular whether during this period locum and/or agency radiographers attached to Calderdale Royal Hospital were entitled to such accommodation.

(b) Whether any Doctor not employed by, or providing services to Calderdale Royal Hospital during this period would have been entitled to secure such accommodation.

(c) Details of the booking process for securing such accommodation, in particular the process by which an individual’s entitlement to such accommodation was confirmed and how authorisation for booking was given.

(d) The process for billing an individual for such accommodation and how payment for such accommodation was obtained.”

71. The Panel then adjourned to allow Mr Foxsmith to find out if either witness was available to give evidence.

72. When the Panel reconvened on day five of the hearing, Mr Foxsmith advised the Panel that he had contacted both LA and GD. He indicated that there was no divergence between both parties’ evidence in relation to the matters identified in the Panel’s Written Direction. Mr Foxsmith told the Panel that GD’s availability was limited and proposed to lead evidence from LA, and thereafter the Panel could consider whether it needed to hear from GD.

LA

73. LA took the Affirmation.

74. LA told the Panel that she currently worked at the Trust as a Medical Examiner’s Office Team Leader. LA said that in 2020 her position was Assistant Facilities Manager for support services covering general accommodation, car parking, and switchboard. She confirmed that she had been Assistant Manager to GD, who was the Service Manager. LA further explained that between 19 April 2020 and 19 May 2020, GD had been on leave for all or part of that time and so LA was the most senior person responsible during this period.

75. LA confirmed that the only individuals entitled to secure NHS accommodation at the Hospital between 19 April 2020 and 19 May 2020 were doctors. She further explained that it was on-call doctors who would been entitled to such accommodation. She stated specifically that no Locum or agency Radiographer attached to the Hospital would have been entitled to such accommodation. LA also told the Panel that if a doctor was not employed by or providing services to the Hospital, that doctor would not have been entitled to secure such accommodation during this period.

76. LA explained that the process for booking accommodation involved a doctor contacting the General Office, either by email or telephone, to request accommodation and they would then be asked to fill in a booking form. Once this was done, the doctor would be allocated a room if there was one available and be asked for payment. LA confirmed that there was no specific written policy for the booking of accommodation, but there was a Standard Operating Procedure that was followed.

77. LA further explained that when a doctor booked accommodation, they were usually asked for their ID or the rota coordinator would be contacted to confirm that the doctor was booked to work a shift on the date the accommodation was being requested.

78. LA was asked what checks and balances existed at that time to deal with an individual giving the identification or name of a different person in order to secure accommodation. She said that in relation to the Registrant, when the booking form he had filled in was reviewed the next day, the name and the GMC number on it were noted. The rota coordinator was then contacted and confirmed that there had been no booking made by a doctor of that name, nor was there any doctor with that name working within the Trust at that time.

79. LA told the Panel that when accommodation was requested, payment upfront would be asked for and taken over the phone. She confirmed this would be via credit or debit card and the charge was £25 per night.

80. LA also confirmed that she had contacted the Registrant and asked him if he was Person A, and he had replied “yes”. She also told the Panel that she had asked him about staying in the accommodation and that the Registrant had said he was friends with Person A and that Person A had let him stay there, or something along those lines. When asked further about the conversation, LA stated that the Registrant first said that he was Person A, and then said that Person A was a friend who had let him stay in the accommodation.

81. LA confirmed that the Registrant had settled the outstanding bill due for the accommodation.

82. The Registrant advised the Panel that he had no questions for LA in cross-examination.

83. In response to questions from the Panel, LA explained that the normal ID provided was a Trust ID badge. She confirmed that this was not provided by the Registrant. LA explained that the ID was usually provided when the booking was made, but that security who handed the keys out should also have checked it. She explained that this had not occurred as the room used by the Registrant on all occasions when he booked accommodation was an ‘emergency room’. LA also confirmed to the Panel that the Registrant did not pay for the accommodation at the time it was booked, and that she believed there was no official accommodation booking and the ‘emergency room’ and key was just provided. She also confirmed that Person A’s GMC registration number was on the booking form.

84. Following LA’s evidence, Mr Foxsmith closed the case for the HCPC.

85. As a result of the issues arising from the Registrant’s physical location during the first week of the hearing, the Panel adjourned the hearing to allow for these issues to be addressed and to enable the Registrant to give evidence before the Panel.

Reconvened hearing

86. When the Panel reconvened on 02 April 2024, the Registrant gave evidence to it.

87. The Registrant took the Affirmation.

88. The Registrant told the Panel that he was grateful for all the help and assistance he had received at the first part of the hearing in October 2023. He said that he had taken further time to consider what had occurred and he wanted to give evidence. He said that in particular he wanted to elaborate on what had happened and “where he was” in relation to these events.

89. The Registrant explained that at the time of the Allegation, he had been practising at the Hospital and had been travelling to and from this location from Birmingham each day. He told the Panel that this involved a round-trip car journey of approximately five hours. The Registrant said that during this period he had received a speeding ticket and he also realised that the driving had been making him tired. He said that he therefore decided to get accommodation, but discovered that it was very difficult to get any accommodation in the area of the Hospital.

90. The Registrant told the Panel that he had therefore gone to the Hospital, given it his personal details, and had been given accommodation under his own name. He said it was only on the third occasion that he was told it was only doctors who were entitled to use this accommodation. He said that when he was told this on the ninth day, he had used Person A’s details to obtain accommodation. He said that after the Hospital established he had given false information, he went home and the return trip to Birmingham took him around eight hours. The Registrant said that he had been very ashamed and distraught about what he had done and that he felt he had ruined his career.

91. The Registrant told the Panel that he had always wanted to be a Radiographer and thought that he had destroyed his career. He said that he had been open and admitted what had occurred during the Hospital’s investigation.

92. The Registrant explained to the Panel that since the date of the Allegation he had been given the opportunity to work in the area of Forensics and had done work for the Home Office. The Registrant also told the Panel that he had undertaken a postgraduate course in Forensics at Teesside University and qualified in 2023. He said that he had also undertaken a course in leadership. The Registrant also outlined presentations that he had already given in Vienna and told the Panel that he had presented a number of papers to a Royal College. He said that he was also going back to university to undertake advanced forensic study.

93. The Registrant explained that he had joined the Humanitarian Defence Force and undertaken work with it, including forensic and defence work. He said that he had told all his employers about the HCPC investigation and this hearing. He said that his employers had carried out a risk assessment exercise and given him the opportunity to continue working.

94. The Registrant said that his behaviour in 2020 had been out of character. He said that he continued to question why he had acted in that way, that he regretted it and was ashamed, and that this would never go away.

95. The Registrant also said that the CEO of his current employer was willing to give character evidence on his behalf if needed.

96. In cross-examination, Mr Bridges took the Registrant through particulars 1, 2, 3, and 4 and asked if he continued to admit them.

97. In relation to Particular 1, the Registrant stated that he admitted this particular and that he had acted dishonestly. In relation to Particular 2, the Registrant again accepted the particular in the context that he had not “checked in” correctly. He also accepted that he had acted dishonestly in relation to Particular 2. In relation to Particular 3, the Registrant stated that he accepted Particular 3 but also asserted that he had met Person A. He said that he had known him through training even though Person A had stated he did not recall meeting the Registrant. The Registrant also stated that he knew the individual whose details he had used to gain accommodation, i.e. Person A. When pressed by Mr Bridges, the Registrant accepted that he did not know Person A personally and only knew him professionally.

98. In response to Panel questions, the Registrant maintained his position that he had used his own name when he booked the first three days of the accommodation. When asked why he had not explored getting accommodation by another route, for example with the help of his employer, the Registrant replied that he had made a silly decision and acted impulsively. He explained that there was great difficulty in getting accommodation. When asked by the Panel if he had intended to pay for the accommodation himself, the Registrant stated that it had always been his intention to pay for the accommodation and that normally the bill was sent after the stay.

99. When asked by the Panel Chair what details he had given when booking the first three days of the accommodation, the Registrant stated that he had just given his first name and last name. When pressed on this point he then said that on 15, 16, and 17 April 2020 he had used Person A’s name. The Registrant then stated again that he used his own name when booking the first three days of the accommodation. The Registrant was taken to the booking sheet for April and May 2020 and it was pointed out to him that it appeared that Person A’s name had been entered for all of the days that he had booked. He told the Panel that whoever had taken down the booking must have entered Person A’s name despite the Registrant giving his own name.

100. When asked how he intended to pay for the accommodation, the Registrant said that he intended to do so by credit card. He said that there had been no paper bill and that he could have paid on the last day he stayed at the accommodation with his credit card.

101. In answer to Panel questions, the Registrant stated that he was not a friend of Person A; however, he could not recall if he had stated during the Hospital investigation if he was a friend of Person A. He continued to assert that he knew him through attending training courses.

Submissions

102. Mr Bridges provided the Panel with written submissions, which he adopted and commended to the Panel.

103. In his written submissions, Mr Bridges submitted that the burden of proof was on the HCPC and that the standard of proof was that of the balance of probabilities. He further submitted that the Registrant had made several admissions and whilst these were not determinative of facts, the Panel should attach significant weight to these admissions.

104. Mr Bridges further submitted that the known or probable facts were that:

• At the end of December 2019, the Registrant was introduced to DHC through an agency.
• The Registrant was contracted via the agency to carry out ad hoc shifts at the Hospital.
• LA first raised concerns regarding the Registrant on 20 May 2020.
• LA confirmed in evidence that overnight accommodation at the Hospital was only available for doctors, ordinarily on call doctors.
• The Registrant booked accommodation which he was not entitled to on 15, 16, and 17 April 2020 and 6, 9, 12, 13, and 19 May 2020, and the Registrant accepted that his conduct was dishonest.
• On 20 May 2020, the Registrant told DM that he had obtained this accommodation by using Person A’s name and GMC number and that Person A did not know this. The Registrant also told DM he knew Person A.
• When LA spoke to the Registrant on 20 May 2020, he initially denied any wrongdoing.
• On 26 May 2020, the Registrant wrote to DHC expressing remorse for his actions.
• On 25 June 2020, the Registrant told MH that he knew Person A.
• Person A had accepted it was quite possible that he had met the Registrant.
• During the period of the Allegation, the UK had gone into Covid lockdown starting on 23 March 2020.

105. In relation to dishonesty, Mr Bridges referred the Panel to the case of Ivey v Gentings Casinos (UK) Ltd [2017] UHSC 67.

106. Following the Panel receiving legal advice, Mr Bridges made a further oral submission that if the Panel did not find that the Registrant had used Person A’s name to secure any accommodation when he was not entitled to on nine occasions, but concluded that he had done so on a different number of occasions, it was open to the Panel to amend the particular to reflect this.

107. The Registrant told the Panel that he did not wish to say anything further by way of closing submissions.

Decision

108. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases of Suddock v NMC [2015] EWHC 3612 (Admin), Dutta v GMC [2020] EWHC 1974 (Admin), Khan v GMC [2021]EWHC 374 (Admin) and Byrne v GMC [2021] EWHC 2237 (Admin) in relation to its approach to the assessment of witness evidence, and to the case of Ivey v Gentings Casinos (UK) Ltd [2017] UKSC 67 in relation to the test for dishonesty. In relation to potential amendment of the particular, he referred the Panel to the case of PSA v HCPC & Doree [2017] EWCA Civ 319.

109. The Panel considered each particular of the Allegation in turn. In reaching its decision, the Panel considered how the relevant witness evidence fitted with the non-contentious or agreed facts, contemporaneous documents, the inherent probability or improbability of any account of events, and any consistencies and inconsistencies.

110. In considering each particular, the Panel took into account the submissions of Mr Bridges and the Registrant’s evidence/submissions, the evidence of relevant witnesses, and relevant documentation.

111. The Panel considered that MH had tried to assist the Panel when giving evidence on both occasions that she did so. Her oral evidence was consistent with her witness statement and relevant contemporaneous documents before the Panel. Her evidence was not inherently improbable.

112. The Panel considered that DM had also tried to assist the Panel when giving evidence. His oral evidence was consistent with his witness statement and relevant contemporaneous documents before the Panel. His evidence was not inherently improbable.

113. The Panel considered that Person A had also tried to assist the Panel when giving evidence. His oral evidence was consistent with his witness statement and relevant contemporaneous documents before the Panel. His evidence was not inherently improbable.

114. The Panel considered that LA had tried to assist the Panel when giving evidence. Her oral evidence was consistent with her witness statement and relevant contemporaneous documents before the Panel. Her evidence was not inherently improbable.

115. The Panel considered that whilst the Registrant had sought to assist the Panel, particularly in reply to Panel questions, his answers were inconsistent and at times contradictory to his evidence-in-chief. This was particularly regarding whether or not he had used his own name when booking accommodation on the first three occasions, how he intended to pay for the accommodation, and how he ‘knew’ Person A. The Panel considered that some of the answers that the Registrant had given to it on these issues were inherently implausible.

Particular 1 – Proved

1. On 9 occasions between 15 April 2020 and 19 May 2020, you used Person A’s name to secure NHS accommodation you were not entitled to.

116. In reaching its conclusions in relation to Particular 1, the Panel took into account the evidence of MH, LA, DM, and the Registrant. It also took into account the submissions of Mr Bridges and the Registrant and all of the relevant documentation. The Panel took into account that the Registrant had accepted this particular of the Allegation.

117. The Panel noted the evidence of MH and the documentation exhibited by her. The Panel considered that MH’s oral evidence was consistent with her witness statement. The Panel further determined that her evidence about the bookings being made on all nine occasions in the name of Person A was consistent with the booking form produced.

118. The Panel also noted that MH had undertaken the internal investigation and, as part of this, had spoken to the Registrant. It took into account her evidence about the conversation and that the Registrant had expressed remorse for what he had done.

119. The Panel noted that some of the evidence given by MH was based on what she had been told by LA, but there was nothing before the Panel to suggest that what MH had been told was incorrect. The Panel noted that again, the evidence which MH gave about what she had been told by LA was consistent with the documentary evidence before the Panel.

120. The Panel also took into account the oral evidence given by LA in relation to who was entitled to accommodation and noted that this was not subject to challenge from the Registrant. There was nothing before the Panel to suggest that what it had been told by LA was incorrect.

121. The Panel also took into account the evidence on DM. Again, the Panel considered that his evidence was consistent with his written statement and the documentary evidence before it. It noted that DM told the Panel the Registrant had stated to him he had used Person A’s name and GMC number to obtain accommodation. DM also told the Panel that the Registrant had told him that when he did this, he thought that he would not be entitled to accommodation as he was working for an outside company. DM also told the Panel that the Registrant was very teary and remorseful. The Panel also noted that DM had made notes of his conversation with the Registrant, which he had transposed into a typed document that was exhibited before it. The Panel considered that DM’s oral evidence was also consistent with this document.

122. The Panel took into account the Registrant’s evidence to it that on the first three occasions he had used his own name and personal details to obtain accommodation. As noted above, the Panel considered that when the Registrant was asked by it how this had happened, he was unable to provide a detailed or plausible explanation. Further, prior to giving evidence to the Panel, the Registrant had not apparently suggested to anyone else that this had occurred. The Panel considered that the Registrant’s oral evidence before it was inconsistent with the evidence of MH, LA, and DM. The Panel further considered that the Registrant’s evidence on this matter was inherently implausible. The Panel did not accept the Registrant’s evidence that on the first three occasions he had obtained accommodation using his own name and details.

123. The Panel therefore concluded that, on the balance of probabilities, on 9 occasions between 15 April 2020 and 20 May 2020 the Registrant had used Person A’s name to secure NHS accommodation. The Panel further determined, on the balance of probabilities, that only doctors were entitled to book such accommodation and therefore the Registrant, as an agency Radiographer, was not entitled to such accommodation.

124. The Panel therefore determined that on 9 occasions between 15 April 2020 and 19 May 2020, the Registrant used Person A’s name to secure NHS accommodation that he was not entitled to.

125. Particular 1 was therefore found proved.

Particular 2 – Proved

2. On or around 20 May 2020 you denied any wrongdoing.

126. In reaching its conclusions in relation to Particular 2, the Panel took into account the evidence of MH, LA, and the Registrant. It also took into account the submissions of Mr Bridges and the Registrant and all the relevant documentation. The Panel took into account that the Registrant had accepted this particular of the Allegation.

127. The Panel noted that MH, in her witness statement which she adopted, had stated that when she spoke to the Registrant by telephone on 20 May 2020, he denied any wrongdoing. MH’s oral evidence was consistent with her written witness statement. The Panel further took into account that in her oral evidence to the Panel, LA confirmed that the Registrant had denied any wrongdoing to her.

128. The Panel considered that it was unclear from the Registrant’s oral evidence exactly what his position on this issue currently was. However, after further questions from the Panel, the Registrant admitted that when he first spoke to LA on the telephone, he had denied any wrongdoing.

129. The Panel considered that the evidence of MH was consistent with her written witness statement and, further, was confirmed by LA when she gave oral evidence. There was nothing before the Panel to suggest that this evidence was incorrect or to undermine it. The Panel did not consider it was inherently implausible.

130. The Panel considered that the Registrant’s position before it was now unclear. However, it again noted that he had not sought to deny this particular prior to giving his evidence.

131. In all these circumstances, the Panel determined, on the balance of probabilities, that on or around 20 May 2020 the Registrant denied any wrongdoing.

132. Particular 2 was therefore found proved.

Particular 3 – Proved

3. On or around 20 May 2020 and 25 June 2020 you asserted that you knew Person A whose details you used when this was not the case.

133. In reaching its conclusions in relation to Particular 3, the Panel took into account the evidence of MH, DM, and the Registrant. It also took into account the submissions of Mr Bridges and the Registrant and all the relevant documentation. The Panel took into account that the Registrant had accepted this particular of the Allegation.

134. The Panel took into account the oral evidence of DM, who adopted his written witness statement. DM stated that he had a conversation with the Registrant on 20 May 2020. He explained that during this conversation, the Registrant told him that he had used Person A’s name to obtain the accommodation and that Person A was a friend of his. DM further stated that the Registrant had told him that Person A was a doctor at Gloucester Hospital and he had worked with him there in the past. The Panel took into account that this was consistent with DM’s typewritten note of this conversation.

135. The Panel noted that in MH’s witness statement which she adopted, MH stated that during a telephone conversation with the Registrant on 25 June 2020 the Registrant had informed her he knew Person A from meeting him at a training event at Worcestershire Royal Hospital.

136. The Panel further took into account that in LA’s oral evidence, she had told it that the Registrant said to her that Person A was a friend of his and that he had allowed him to stay at the accommodation.

137. The Panel took into account the evidence of Person A. He adopted his written witness statement, in which he stated that prior to being contacted by LA he had never met, spoken to, or heard of the Registrant. In his oral evidence, Person A accepted that they might have attended training together, but he had no recollection of this. Specifically, Person A denied that he had any recollection of meeting at a training event and joking with the Registrant about the similarity of their names.

138. The Panel also took into account the evidence of the Registrant. Again, his evidence was somewhat unclear, but whilst he maintained that he had met Person A at a training event, he clearly accepted that he did not know him personally.

139. The Panel determined that the evidence of MH, DM, and LA was consistent and that the Registrant had asserted to them that he knew Person A. The Panel noted that on 20 May 2020, the Registrant had asserted to DM that Person A was a friend, and MH had stated that the Registrant told her on 25 June 2020 that he knew Person A. The Panel further noted that LA told it that the Registrant had told her Person A was a friend and had allowed him to stay at the accommodation. There was nothing before the Panel to undermine this evidence or suggest that it was inherently implausible.

140. In these circumstances, the Panel determined that on or around 20 May 2020 and 25 June 2020, the Registrant asserted that he knew Person A, whose details he used, when this was not the case.

141. Particular 3 was therefore found proved.

Particular 4 – Proved

4. Your conduct in relation to allegations 1 and/or 2 and/or 3 above was dishonest.

142. In considering Particular 4, the Panel applied the test for dishonesty as set out in the case of Ivey.

143. In relation to Particular 1, for the reasons set out above the Panel already concluded that when the Registrant secured the accommodation using Person A’s name he was aware that he was not entitled to this accommodation. The Panel considered that this being so, on the balance of probabilities the Registrant deliberately used Person A’s name to obtain accommodation.

144. The Panel concluded that this would be considered dishonest by the standards of ordinary decent people.

145. Particular 4 was therefore found proved in relation to Particular 1.

146. In relation to Particular 2, again for the reasons set out above the Panel already concluded that when the Registrant secured the accommodation using Person A’s name, he was aware that he was not entitled to this accommodation. The Panel therefore concluded that, when he denied wrongdoing on 20 May 2020, on the balance of probabilities the Registrant was fully aware that this was not the case.

147. The Panel concluded that this would be considered dishonest by the standards of ordinary decent people.

148. Particular 4 was therefore found proved in relation to Particular 2.

149. In relation to Particular 3, again for the reasons set out above the Panel concluded that the Registrant was fully aware that he did not know Person A as he had asserted on the occasions found proved in Particular 3.

150. The Panel concluded that this would be considered dishonest by the standards of ordinary decent people.

151. Particular 4 was therefore found proved in relation to Particular 3.

Decision on Grounds

152. Having found Particulars 1, 2, 3, and 4 of the Allegation proved, the Panel moved on to consider grounds.

153. The Panel heard submissions on grounds from Mr Bridges. The Registrant stated that he had no submissions to make on misconduct.

154. Mr Bridges provided the Panel, the Registrant, and the Legal Assessor with written submissions on grounds, which he adopted and commended to the Panel.

155. In his written submissions, Mr Bridges referred to the cases of Remedy (UK) v GMC [2010] EWHC 1245 (Admin), Roylance v GMC [2000] 1AC 311, and Nandi v GMC [2004] EWHC 2317 (Admin). He further referred the Panel to the HCPC’s Standards of Conduct, Performance and Ethics and the HCPC’s Standards of Proficiency for Radiographers.

156. Mr Bridges submitted that the question of whether the particulars found proved amounted to misconduct was a matter for the Panel exercising its own professional judgement. He drew the Panel’s attention to Standards 8 and 9 of the HCPC’s Standards of Conduct, Performance and Ethics and invited the Panel to consider if these had been engaged and breached and, if so, whether the Registrant’s actions amounted to misconduct.

157. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the cases set out in Mr Bridges’ written submissions and the further case of Calheam v GMC [2007] EWHC 2606. He advised that it was a matter for the Panel, exercising its own professional judgement, as to whether the facts found proved amounted to misconduct.

158. In considering the issue of misconduct, the Panel took into account the submissions of Mr Bridges and noted that the Registrant had made no submission contesting that his actions as found proved in Particulars 1, 2, 3, and 4 amounted to misconduct. The Panel also took into account the terms of its decision on facts and all the relevant evidence. The Panel exercised its own professional judgement.

159. The Panel found that the Registrant’s actions as set out in Particulars 1, 2, and 3 were dishonest. The Panel considered that the Registrant’s actions were premeditated and that he gained benefit from his action.

160. The Panel determined that the Registrant’s dishonest conduct was serious.

161. The Panel further took into account Standards 8 and 9 of the HCPC’s Standards of Conduct, Performance and Ethics, which state:

8 Be open when things go wrong.

9 Be honest and trustworthy.

162. The Panel determined that both these Standards were engaged. The Registrant had not been honest and trustworthy when obtaining NHS accommodation, had denied any wrongdoing, and asserted that he knew Person A. The Panel further determined that in denying wrongdoing and asserting that he knew Person A, the Registrant had not been open about things going wrong.

163. The Panel determined that the Registrant’s conduct fell far short of the standards to be expected of a registered Radiographer, was serious, and would be considered deplorable by his fellow practitioners.

164. The Panel therefore determined that the Registrant’s conduct as found proved in Particulars 1, 2, 3, and 4 amounted to misconduct.

Decision on Impairment

165. At the stage of fitness to practise impairment, the Registrant told the Panel that he wished to give further evidence and also call a further witness. He also exhibited various training and course certificates.

166. The Panel therefore heard further evidence from the Registrant and from SJD.

The Registrant

167. The Registrant again took the Affirmation.

168. He thanked the Panel for the way in which it had dealt with his hearing.

169. The Registrant again stated that he took full responsibility for what had occurred and that he still had “flashbacks” about what had happened. He explained that following the incidents he had decided to “pick himself up”. He told the Panel that he had retrained, advanced his career, and educated others. The Registrant said that he had told those he worked for about the HCPC investigation and this hearing and that a ‘risk assessment’ had been done and he had been allowed to continue to work.

170. The Registrant again stated that he had “let down” the Radiography profession, and he was ashamed of and regretted what he had done. He said he had “almost” destroyed his career with an act “perhaps, of dishonesty”.

171. The Registrant stated that he was honest with everyone he worked with and was very professional. He told the Panel that he had had the privilege of working in the humanitarian environment.

172. The Registrant explained to the Panel what further training and education he had undertaken, particularly in 2022 and 2023. These included advanced Radiography courses.

173. The Registrant told the Panel that he realised honesty was paramount to being a human being. He also said that honesty was necessary to gain the trust of others in the profession.

174. The Registrant said that the HCPC process had given him the opportunity to appreciate the job that he did. He said he “dreamed and slept” Radiography.

175. The Registrant also thanked his family for its support and apologised to them for what he had done.

176. The Registrant emphasised that he had learned from what he had done and assured the Panel that it would never happen again. He said that if he worked away from home now, he always made sure that he had accommodation booked, either through his employer or directly by him.

177. He said that he was ultimately here to provide health care to the public and for the public interest.

178. The Registrant concluded by again thanking all parties that had been involved in the hearing.

179. Mr Bridges advised the Panel that he had no cross-examination.

180. In response to Panel questions, the Registrant explained that other than mandatory NHS training, he had not undertaken any courses specifically on honesty, integrity, or fraud. He said that as part of a medical leadership course he had undertaken, there was a unit on ‘transformational leadership’ and that this included reference to leaders requiring to uphold standards and honesty.

SJD

181. SJD took the Affirmation.

182. She told the Panel that she was a recruitment consultant at JRRA and that the Registrant was a Locum Radiographer on mobile units. She said that the Registrant had started working for the agency in 2018 and she had known him since she started working there in 2021.

183. SJD said that the Registrant was a man of exceptional character and reputation who was honest, responsible, and helped others.

184. SJD told the Panel that the Registrant had excellent decision-making skills and had been instrumental in setting up and maintaining mobile scanning units on site. She said he always followed correct protocols.

185. SJD told the Panel that she was unaware of any other misconduct issues involving the Registrant and that she considered what had occurred to be very out of character.

186. She said that the Registrant had reflected on what had happened and she considered that he would uphold the high standards of the profession in the future.

187. Mr Bridges advised the Panel that he had no cross-examination.

188. In reply to Panel questions, SJD explained that the booking of any accommodation related to work was the responsibility of the employee and that the agency had no process for this.

Submissions

189. Mr Bridges again provided the Panel with written submissions, which he adopted and commended to the Panel.

190. Mr Bridges referred the Panel to the HCPTS Practice Note on “Fitness to Practise Impairment” and submitted that whether the Registrant’s fitness to practise was impaired was a matter for the Panel’s professional judgement.

191. He also referred the Panel to the approach formulated by Dame Janet Smith in the Fifth Shipman Report in relation to the approach to take in consideration of impairment of fitness to practise. He submitted that the Panel was considering the Registrant’s current fitness to practise, but that the Panel required to take into account the way the Registrant had acted in the past.

192. Mr Bridges referred the Panel to the cases of GMC v Meadow [2006] EWCA Civ 1319, CHRE v NMC & Grant [2011] EWHC 927, and Fopma v GMC [2018] EWHC 714 (Admin). He submitted that the Panel required to consider both the personal and public components as set out in the HCPTS Practice Note on “Fitness to Practise Impairment”.

193. Mr Bridges invited the Panel to find that the Registrant’s fitness to practise was currently impaired.

194. The Registrant told the Panel that he had no submissions and referred to what he had said in evidence.

Decision

195. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the HCPTS Practice Note on “Fitness to Practise Impairment”, the cases referred to by Mr Bridges, and the further cases of Cohen v GMC [2008] EWHC 581 (Admin) and PSA v NMC [2017] CSIH 29.

196. In reaching its decision on current impairment, the Panel took into account the further oral evidence of the Registrant, the further documentary evidence exhibited by him, and the oral evidence of his witness SJD. It also took into account the submissions of Mr Bridges and noted that the Registrant had made no submissions on impairment beyond his further evidence. The Panel also took into account all other relevant evidence before it and its prior decisions on facts and grounds. The Panel also took into account the HCPTS Practice Note on “Fitness to Practice Impairment”. The Panel was aware that the question of impairment was a matter for it exercising its own professional judgement and that it was considering the Registrant’s current fitness to practise.

197. The Panel took into account that in the further oral evidence of the Registrant, he accepted that he expressed regret for what had occurred, took “full responsibility” for his actions, and was ashamed of what he had done. It also noted that Mr Bridges did not cross-examine the Registrant when he gave further evidence or challenge what he said. It also noted that the Registrant had stated he had “let down the profession” and had “almost destroyed his career” with “an act of dishonesty”. The Registrant had also stated that he was honest with everyone he worked with, and had learnt from his mistakes and would not do it again. However, the Panel considered that in his evidence the Registrant concentrated on his actions in booking the NHS accommodation that he was not entitled to. The Panel further considered that the Registrant had failed to address his overall dishonest conduct as set out in Particulars 1, 2, and 3. It concluded that the Registrant had failed to address the issues of denying wrongdoing or dishonestly asserting that he knew Person A. The Panel was also concerned that when giving further evidence, the Registrant had referred to his conduct as an act “perhaps, of dishonesty”.

198. The Panel also took into account the evidence of SJD, who spoke to her knowledge of the Registrant as an employee of JRRA. The Panel again noted that Mr Bridges did not cross-examine SJD when she gave evidence or challenge what she said. There was nothing before the Panel to undermine the evidence of SJD or to cause the Panel to question this evidence. However, whilst SJD spoke of the Registrant as being of good character, being honest and responsible, and having “helping skills”, the Panel did not consider that her evidence addressed its concerns set out in the preceding paragraph.

199. The Panel first addressed the matter of the ‘personal component’ of the Registrant’s current fitness to practise. The Panel considered that the Registrant’s dishonest conduct was premeditated. He acted in a calculated and devious manner, researching Person A to obtain his GMC number to allow the Registrant to secure NHS accommodation that he was not entitled to. This took place on nine occasions over a period of approximately a month, and was only discovered because the Registrant mistakenly handed over the keys for the satellite CT scanning unit rather than the room key. The Panel further determined that when the Registrant’s dishonest conduct was discovered, he compounded it by dishonestly denying wrongdoing and claiming that he knew Person A. The Panel concluded that the Registrant had deliberately obtained the accommodation for his own benefit and there was the potential for him to have made financial gain had his dishonest conduct not been discovered. The Panel concluded that the Registrant’s explanation (that it was only on the third occasion he booked the accommodation that he became aware he was not entitled to it) to be inherently implausible. Even if this had been the case, the Panel determined that the Registrant continued to act dishonestly by securing accommodation on a further six occasions.

200. In these circumstances, the Panel concluded that the Registrant’s dishonesty was serious. As such the Panel determined that the Registrant’s dishonest conduct was remediable albeit with some difficulty.

201. In considering whether the Registrant had taken remedial action, the Panel determined that the Registrant had failed to demonstrate full insight into the nature and extent of his dishonest conduct, including his denial of wrongdoing and assertion that he knew Person A, or the consequences of this conduct on colleagues and public confidence in the profession and the HCPC as a Regulator. In these circumstances, the Panel determined that the Registrant had shown limited insight. Further, whilst the Registrant had undertaken further training in relation to his clinical profession, the Panel determined that the Registrant had not undertaken any remedial activities specifically in respect of honesty and integrity. In these circumstances the Panel concluded that the Registrant had not remediated his dishonest conduct and there remained a likelihood of similar dishonest conduct being repeated in the future. The Panel therefore determined that the Registrant was currently impaired in relation to the personal component.

202. The Panel went on to consider the wider public interest and the personal component of the Registrant’s current fitness to practise. The Panel had determined that the Registrant failed to act with decency, honesty, and integrity. For the reasons set out above, the Panel considered his dishonest actions to be serious. Further, given the Panel’s conclusion in respect of insight, remediation, and risk of repetition also set out above, the Panel determined that public confidence in the profession and the HCPC as a Regulator would be undermined if there was no finding of impairment. The Panel therefore determined that the Registrant was currently impaired in relation to the public component.

203. The Panel therefore determined that the Registrant’s current fitness to practice was impaired both in respect of the personal and public components.

Decision on Sanction

204. At the stage of sanction, the Registrant told the Panel that he wished to give further evidence. He also exhibited emails confirming bookings of hotel rooms and two training course certificates.

205. The Panel therefore heard further evidence from the Registrant.

The Registrant

206. The Registrant took the Affirmation.

207. The Registrant told the Panel that having read its decision on impairment, he had been overwhelmed. He said he had realised that when “going through” the process of the hearing, his choice of words and presentation may not have been reassuring to the Panel. He told the Panel he wanted to reassure it that, since the incidents, he had evolved to be a better person to himself and to society. He stressed that he was an open and honest person.

208. The Registrant also explained to the Panel that the leadership training he had undertaken had involved units on integrity, honesty, and developing bonding. He said that he was honest with the service, agencies, and patients with whom he worked. He reassured the Panel that he accepted he had been dishonest and took responsibility for all his actions, did not deny any of his wrongdoing, and was so sorry to the public for what had occurred. The Registrant reiterated that he was ashamed of what he had done.

209. The Registrant asked the Panel to take into account that he was passionate about his job and how he had evolved since the incidents. He referred the Panel to the emails he had exhibited to show that he had booked hotels when working away from home.

210. The Registrant told the Panel that he had been honest and open about what had occurred, if asked, and his experience had resulted in advising others how to behave.

211. The Registrant referred again to the leadership course he had undertaken and explained further how it had involved talks on honesty, integrity, and truthfulness. He said he accepted that everything he had done was dishonest. He said he tried to be a good citizen and human being and evolve over the four years since the incidents.

212. The Registrant stressed that he was very sorry to the service, the public, and his family for what had happened and that it would never happen again. He said he had panicked and lied and he took responsibility for this.

213. The Registrant also told the Panel that if he could not continue with his career it would cause him financial difficulty.

214. The Registrant asked the Panel to allow him to continue in a career he loved.

215. Mr Bridges stated that he had no cross-examination.

216. The Panel had no questions.

Submissions

217. Mr Bridges again provided written submissions. He adopted these and commended them to the Panel.

218. In his written submissions, Mr Bridges stated that the HCPC did not urge any particular sanction on the Panel. He referred the Panel to the HCPC Sanctions Policy (the Policy) and to a number of cases, including Bolton v Law Society [1994] 1 WLR 512, Abbas v GMC [2017] EWHC 51 (Admin), and Atkinson v GMC 2009 EWHC 3636.

219. Mr Bridges identified the following aggravating and mitigating features:

Aggravating

• Actual/potential harm;
• Breach of trust;
• Vulnerable patient/service user;
• Lack of insight;
• Misconduct repeated;
• Lack of remediation;
• Risk of repetition;

Mitigating

• Admissions;
• Co-operation with the Council;
• Explanation for misconduct;
• Insight;
• Remorse;
• Risk of repetition.

Decision

220. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the Policy and the cases referred to by Mr Bridges. He advised the Panel that any sanction it imposed must be the least restrictive sanction that was sufficient to protect the public and the public interest, and that the Panel should consider the least restrictive sanction first and move up the scale of severity only if the sanction being considered was inappropriate. He also reminded the Panel that it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest.

221. In reaching its decision on current impairment, the Panel took into account the further oral evidence of the Registrant and the further documentary evidence exhibited by him. It also took into account the submissions of Mr Bridges and noted that the Registrant had made no submissions on sanction beyond his further evidence. The Panel also took into account all other relevant evidence before it and its prior decisions on facts and grounds.

222. The Panel had regard to the Policy and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

223. In relation to the further evidence, the Panel considered that the Registrant had expressed a great deal of remorse and had given a wide-ranging apology for his actions. It also considered that he had provided expansion on the nature of the unit he had undertaken during his leadership course. The Registrant also provided the Panel with information about the potential financial consequences he could suffer and the consequent effect on his family. However, the Panel determined that the Registrant had not addressed the concerns the Panel had identified in its decision on impairment and set out in paragraph 203 above.

224. The Panel first identified what it considered to be the aggravating and mitigating factors.

Aggravating

• The Registrant’s conduct was calculated, premeditated, and involved him researching Person A’s GMC number;
• The Registrant’s conduct involved a pattern of behaviour over a period of time;
• The Registrant’s conduct involved him using a doctor’s name and GMC number, requiring Person A to formally refer concerns to the Trust to ensure the Registrant had not sought to treat patients;
• He had not made complete unfettered admissions;
• His conduct was a breach of the trust put in him;
• The Registrant had failed to provide any full explanation for his conduct;
• The Registrant had limited insight;
• The lack of remediation.

Mitigating

• The Registrant had shown remorse and apologised for his actions;
• At the time of the allegation he was undertaking long commutes;
• The allegations occurred during the Covid period, when working arrangements were chaotic;
• There were no clinical concerns;
• His former manager had given positive evidence about his clinical practice and character;
• His current recruitment manager at JRRA had given positive evidence about his clinical practice and character;
• The Registrant had shown limited insight at a late stage of the hearing;
• The Registrant had paid the sums due for the accommodation;
• Prior to this issue, the Registrant had no reported previous fitness to practise concerns during his career, nor had there been any repetition.

225. The Panel noted that there had been no repeat of the Registrant’s dishonest behaviour. However, for the reasons set out in paragraphs 203, 204, 205, and 227 above, the Panel concluded that the Registrant had failed to demonstrate full insight into the nature and extent of his dishonest conduct, including his denial of wrongdoing and assertion that he knew Person A, or the consequences of this conduct on colleagues and public confidence in the profession and the HCPC as a Regulator. The Panel further determined that the Registrant had shown limited insight and, whilst he had undertaken further training in relation to his clinical profession, had not undertaken any remedial activities specifically in respect of honesty and integrity.

226. The Panel considered the sanctions available, beginning with the least restrictive. The Panel did not consider the options of taking no further action, mediation, or the sanction of a Caution Order to be appropriate or proportionate in the circumstances of this case. In view of the limited insight demonstrated by the Registrant, none of these options would address the consequent risk of repetition which the Panel had previously identified, nor would they reflect the seriousness of the case.

227. The Panel next considered the imposition of a Conditions of Practice Order. The Panel was satisfied that this case did not raise any clinical concerns that could be appropriately addressed through conditions. The Panel was of the view that it was not possible to formulate workable or practicable conditions which would address the Registrant’s dishonesty. Further, the Panel considered that the case was too serious for a Conditions of Practice Order.

228. The Panel next considered a Suspension Order. It noted that at paragraph 121, the Policy states:

“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

229. The Panel determined that the concerns identified represented serious breaches of the HCPC’s Standards of Conduct, Performance and Ethics. Whilst the Panel had concluded that the Registrant has currently shown limited insight, it considered he had shown some development of this, albeit at a late stage of the hearing. It further considered that a Suspension Order would provide a further opportunity for the Registrant to reflect on his dishonest conduct, to demonstrate that he has developed an appropriate level of insight, and to undertake remediation. The Panel considered that there was evidence which suggested the Registrant was likely to be able to resolve or remedy his failings.

230. The Panel concluded that the length of the Suspension Order should be 9 months. The Panel considered that this was sufficient time for the Registrant to reflect on his dishonest misconduct and to further develop his insight into it and demonstrate remediation.

231. The Panel went on to consider a Striking Off Order. The Panel noted that the Sanctions Policy states that this “is a sanction of last resort”. Given the Panel’s findings that the Registrant is capable of demonstrating insight and remediation, the Panel considered that at this time, a Striking Off Order would be disproportionate and punitive.

232. The Panel acknowledged that such an Order will have an adverse impact upon the Registrant both personally and professionally. However, the Panel determined that the interests of protecting the public and maintaining public confidence in the profession outweighed the interests of the Registrant.

233. The Panel considered that any future reviewing panel would be assisted by the Registrant providing evidence of the development of insight into his dishonest conduct, and of remediation.

That the Registrar is directed to suspend the registration of Mr David Muchena for a period of 9 months from the date this Order comes into effect.

Interim Order

Submissions

1. Mr Bridges submitted that the substantive Suspension Order would not come into being until the 28-day period during which the Registrant could appeal this decision had expired or, if the Panel’s decision was appealed, until that appeal had been determined. He submitted that the HCPC therefore applied for an Interim Suspension Order for a period of 18 months to cover this period on the basis of the Panel’s findings.

2. The Registrant advised the Panel that such an order would result in his having financial difficulties.

Decision

3. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the Policy and the HCPTS Practice Note on “Interim Orders”, particularly section 3.4.

4. The Panel made 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. The Panel considered that to do otherwise would be inconsistent with its earlier findings and would not protect the public against the risk of repetition identified. The Panel noted the impact of the Interim Order on the Registrant, but considered that it was necessary both to protect the public and in the public interest.

5. 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, subject to a maximum period of 18 months.

History of Hearings for David Muchena

Date	Panel	Hearing type	Outcomes / Status
02/04/2024	Conduct and Competence Committee	Final Hearing	Suspended
31/10/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard