Kelly L Madden

Profession: Biomedical scientist

Registration Number: BS44595

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 27/06/2024 End: 17:00 27/06/2024

Location: Hybrid via registrant attending in person and panel members attedning remotely

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

As a registered Biomedical Scientist (BS44595) your fitness to practise is impaired by reason of a caution. In that:

1. On or around 16 August 2020 you were given a caution for “Racially / religiously aggravated intentional harassment / alarm / distress – words /writing – On 10/07/2020 at Norwich… with intent to cause Person A harassment, alarm or distress used threatening, abusive or insulting words or behaviour or disorderly behaviour thereby causing that or another person harassment, alarm or distress and the offence was racially aggravated within the terms of Section 28 of the Crime and Disorder Act 1998.”

2. The matter set out in particular 1 constitutes a caution.

3. By reason of your caution your fitness to practise is impaired.

Finding

Preliminary matters
Proceeding partly in private
1. At the start of the hearing, Ms Khorassani applied for the hearing to be conducted partly in private. Ms Khorassani submitted that the hearing would likely hear details concerning the Registrant’s private life and health during the course of the hearing.

2. The Legal Assessor advised the Panel that Rule 10(1)(a) of the HCPC Conduct and Competence Committee (Procedure) Rules 2003 (the Rules) is that the default position for hearings is that they are conducted in public. The Rules also provide that exclusion of the public is allowed where the Panel is satisfied that this is in the interests of justice or for the protection of the private life of the Registrant, a complainant, any person giving evidence, or of any patient or client. It was for the Panel to balance the various interests in deciding whether to sit wholly, or partly, in private.

3. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note, Conducting Hearings in Private. The Panel decided that the Registrant’s interests with regard to details of her health and private life outweighed the public interest in a public hearing, but only in respect of those matters. Therefore, the Panel resolved to sit partly in private, only when hearing details about the Registrant’s health and private life.

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

5. 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.

6. 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 was held in March 2022.

7. At that hearing, with evidence of the Police Caution issued on 16 August 2020 having been provided and accepted by the Registrant, the substantive hearing panel made a finding on the statutory ground.

8. The panel at the substantive hearing found the fact of the Police Caution proved and that the Registrant’s fitness to practise was impaired by reason of the Police Caution. With regard to the risk of repetition, the panel said:

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

- She had not taken any practical steps to address her behaviour, for example by attending a relevant course or meaningfully reflecting on her behaviour;
- She sought to minimise her culpability for her behaviour, focussing instead on Person A’s conduct rather than her own;
- She failed to meaningfully appreciate the impact of her actions on the victim or the profession in general, instead stating that “these things happen”;
- The Registrant has not demonstrated that she has learned from her behaviour and that her future conduct will change as a result. Whilst the Registrant had accepted having received a caution, she had not meaningfully demonstrated the extent of her wrongdoing.

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

9. Regarding the wider public interest issues, the panel said:

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

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

10. 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.”

First review panel – 15 December 2022

11. The panel at the first review hearing conducted its review in the absence of the Registrant. It determined that the Registrant’s fitness to practise remained impaired on both the personal and the public components. It stated:

“27. ...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.”

12. The first review panel imposed a further period of suspension of six months. With regard to sanction, it stated:

“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.”

Second review panel – 28 June 2023
13. The second review panel conducted a review on 28 June 2023. Again, the Registrant did not attend. The Panel was informed that there had been no contact with the Registrant since April 2022.

14. The second review panel set out in its determination that it found the Registrant’s fitness to practise remained impaired and “its reasons are essentially the same as those given by the previous panels and in particular the first review panel”. The panel further stated that “the Registrant has not complied with any of the suggestions made in paragraph (34) of the determination of the first review panel.”

15. That panel considered that any lower sanction than suspension would not meet the nature and gravity of the Registrant’s conduct and that conditions of practice would be impracticable. However, the second review panel decided that it would also be disproportionate to go further and make a Striking Off Order, because:

“• 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.”

16. The second review panel stressed the importance of the Registrant complying with previous panels’ suggestions on the steps required to demonstrate remediation, namely:

“- (1) 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”

17. The second review panel warned the Registrant that her continued failure to comply with suggestions might lead to a Striking Off Order.

Adjourned review – 19 December 2023

18. A further review was scheduled to take place on 19 December 2023. Unfortunately, due to a mistake over conflicting notices as to whether the review was to be ‘in-person’ or remote, and due to difficulties locating documents submitted, the HCPC applied for and obtained an adjournment of the review.

Third review panel – 24 January 2024
19. At the third effective review hearing, the panel was provided with a bundle of documents from the Registrant, containing her CPD documents and an email to the HCPTS. The Registrant attended the hearing venue before the hearing began and had a brief discussion with the HCPC Presenting Officer, the Hearings Officer and the Legal Assessor. She made available to the HCPC her further reflections document. A copy of the same was provided to the Panel. After a discussion as to the process, the Registrant thereafter left the building and did not remain for the hearing itself.

20. The third review panel considered the Registrant’s reflections to be “relevant and important” but stated that “the reflections still lacked an awareness of how her conduct may have impacted on the wider public and its attitude towards the profession.” The panel took into account that the Registrant had undertaken relevant CPD and courses, in particular online training in respect of anger management and diversity, as had been suggested to her. However, the panel had no reflections from the Registrant as to how undertaking the CPD and courses had changed the Registrant’s attitude and how she might apply her learning in the future.

21. The third review panel found the Registrant’s fitness to practise to be impaired and stated the following:

40. “The Panel concluded that, accepting that the Registrant’s behaviour was capable of remediation and that she had clearly undertaken steps in a journey of remediation, there remained significant gaps for the above reasons. Therefore the Panel concluded that it could not say repetition of past behaviour was ‘highly unlikely’ and there was, though reduced, still a risk of repetition. The Panel therefore found that the Registrant was impaired on the personal component.

41. The Panel noted that the Registrant had now been suspended from practice since the original suspension imposed in March 2022. It considered that any need to mark the seriousness of the Police Caution in the wider public interest had been met by this period of suspension from practice.

42. However, the Panel concluded that if members of the public were aware of the original concerns and the Panel’s assessment of a risk of repetition, they would expect action to be taken. Therefore, a finding of impairment was also necessary in respect of the public component, in order to maintain public confidence in the profession and to maintain professional standards.”

22. The third review panel determined that a further period of suspension for six months was appropriate and proportionate, primarily because “the Registrant was capable of further remediation.” The panel highlighted that the Registrant has been given several opportunities to demonstrate her remediation and that “It therefore expects that the Registrant will take the next opportunity to demonstrate an intention to complete her remediation. The Panel points out that the next reviewing panel will have the full range of sanctions available to it, including up to a Striking Off Order, although this Panel cannot bind the next and does not seek to give any indication.

Review of the Substantive Suspension Order
23. This is the fourth review of the Suspension Order initially imposed on 28 March 2022.

24. Ms Khorassani reminded the Panel that the persuasive burden rested on the Registrant at this review. It was a matter for the Panel’s judgement and assessment of the information supplied by the Registrant as to what her current state of fitness to practise was. This being the case, the HCPC remained neutral at this stage on the issue of impairment, and any appropriate and proportionate restriction in the event of current impairment being established. The HCPC would reserve its position until after it had heard from the Registrant today.

The Registrant’s evidence
25. The Registrant gave sworn evidence to the Panel.

26. On the morning of the hearing, the Registrant provided the Panel with a course certificate called Understanding Medical Terminologies. She reminded the Panel that she has completed 13 courses previously - which include training on anger management, diversity and safeguarding - and stated that she has submitted the course certificates to the HCPC.

27. The Registrant told the Panel that she wishes now that she had written another reflective statement for the Panel’s consideration, but that she didn’t want to “keep generating paperwork.” She said, though, that she has reflected on the incident in 2020 and has concluded that she was experiencing a “perfect storm” of challenging circumstances at that time – she described the COVID-19 pandemic as a “major contributing factor”; a shared-housing arrangement in sub-standard accommodation; and debilitating health conditions.

28. The Registrant spoke in detail to the Panel about her current state of health. She said that her health is still challenging, but that she has learned through the training that she has done in relation to anger management that “self-care is critical.” The Registrant said that she is investigating her other possible health and personal issues.

29. The Registrant said that, in her view, she is no longer impaired and able to return to her profession. She told the Panel that she qualified as a Biomedical Scientist in 2002 and that there has been no repetition of the behaviour that led to her police Caution. She stated that she has reflected on what happened in 2020, accepting that she had “completely mishandled the situation.” She said that she regrets that she “modelled really bad behaviour” to younger neighbours in the shared accommodation and wished to apologise sincerely, both to Person A and as a registrant of the HCPC.

30. In response to questions from the Panel, the Registrant gave the following evidence:

• In relation to her future career intentions, the Registrant said that she would like to have the ability to return to registered practice, although she was exploring other avenues such as working as a Clinical Trial Co-ordinator (an unregistered role), or even as a librarian. The Registrant stated that, in terms of vocational support in the workplace, she is cautious about returning to work under intense pressure in a laboratory dealing with respiratory pathogens. The Registrant said that the possible impact on her health and the likely instability in terms of laboratory redundancies concerned her, although she recognises that the instability of locum working has caused her significant challenge in the past.

• In relation to the racist slur directed towards Person A, the Registrant stated that, at the time, she had not realised that it was a racist term; but she accepted that she ought to have known. When asked by the Panel why she has used that term, the Registrant said that somebody at her workplace had “dared” her to use the term towards Person A. She said that she feels deeply ashamed of her conduct and said, “I know that I’m not a racist.”

• In relation to her ongoing failure to follow the guidance provided by previous panels, the Registrant stated that she had already provided a reflective piece for the last review hearing and had not realised that another written piece would be required. In relation to the absence of testimonials provided to the Panel today, the Registrant accepted that she was “badly prepared” and she should have sought a character reference from a former colleague with whom she worked in 2016.

HCPC submissions
31. Ms Khorassani submitted that this case has not moved forward in any meaningful way since the last review hearing. There has been limited engagement from the Registrant and no evidence of her compliance with the suggestions made to her by the previous panels. Ms Khorassani submitted that the Registrant’s fitness to practise continues to be impaired on both public protection and public interest grounds.

32. Although acknowledging that a decision on sanction was a matter for this Panel’s judgement, Ms Khorassani invited the Panel to consider whether a further suspension order would serve any useful purpose, in light of the lack of meaningful engagement from the Registrant throughout her regulatory proceedings, and that a Striking-Off order might be appropriate in this case.

Panel’s Decision
33. This Panel considered the advice of the Legal Assessor and had regard to the HCPTS Practice Note entitled “Review of Article 30 Sanction Orders”. It is carrying out a comprehensive reconsideration of the Suspension Order in light of the current circumstances. The Legal Assessor reminded the Panel that, in practical terms, there was a persuasive burden on the Registrant to show that her fitness to practise is no longer impaired and that all the shortcomings which led to the original finding of impairment have now been overcome.

34. The Panel bore in mind that it must first decide if a finding of current impairment is necessary to protect the public from any risk of harm (assessing the extent of that current or future risk), maintain public confidence in the profession, or to declare and uphold the proper standards of conduct or behaviour. This is a matter for the Panel’s independent judgment and is essentially a risk assessment in light of all the information before the Panel today. In considering the issue of impairment, the Legal Assessor emphasised that the Panel should take into account the principles set out in the case of Cohen v GMC [2008] EWHC 581 (Admin): is the conduct capable of remedy; is there now evidence of appropriate and sufficient remediation; and is it reassured that the risk of similar conduct being repeated is “highly unlikely”?

35. In the Panel’s view, the Registrant’s police Caution was serious and the conduct which led to it involved serious breaches of her professional standards. The Panel noted that the Registrant has not worked as a Biomedical Scientist since the incident. There has been no evidence of real change since the final hearing in March 2022, or any evidence that the concerns underpinning the Registrant’s impaired fitness to practise have been overcome. It was not clear from her oral evidence today that there has been any material change of position, or a proper appreciation and understanding of the gravity of her actions. Although the Registrant has expressed her remorse for, and accepted, her wrongdoing, the Panel was concerned about the reason given today as to why she had made the racial slur – that it was a “dare” from colleagues at work. The Panel considered that the Registrant’s evidence today that she had discussed Person A with colleagues and, as such, the racial slur was thought about and, in effect, pre-mediated, did not provide the requisite reassurance to the Panel that it was highly unlikely that there would be a repetition of such behaviour on the Registrant’s part. The Panel considered that there was still insufficient evidence of insight from the Registrant into her failings and in relation to the damage that this has had or might have on the reputation of her profession. It therefore concluded that the Registrant has not, on the personal component, discharged the burden of persuasion and has not demonstrated that she is fit to return to unrestricted practice.

36. The Panel also considered the wider public interest in the case. In the absence of remediation, members of the public would be concerned if such a Registrant, who has not practised since the incident and who has demonstrated sufficient insight or evidence of remediation, were able to practise without restriction. In these circumstances, the Panel was of the view that the need to uphold confidence in the profession and the regulator would be undermined if a finding of impairment were not made. The Registrant is not safe to practise unrestricted given her current impairment and the public interest requires that she should not be in a position to practise unrestricted.

37. The Panel next considered the issue of sanction and paid careful to the HCPC’s Sanctions Policy. The Panel was aware that sanction is a matter for its own professional judgement. It has borne in mind that any sanction must be proportionate and that the primary purpose of sanction is protection of the public. Any sanction it imposes must protect the public but must be the least restrictive sanction that achieves that aim.

38. The Panel first considered a Caution Order and decided that this would not be appropriate because it would not place any actual restriction on the Registrant’s practice to address the public protection concerns. Further, the Panel was of the view that the failings were too serious and that the public interest would not be served by such a sanction.

39. The Panel next considered whether a period of conditions of practice would be appropriate to enable the Registrant to proactively seek employment as a Biomedical Scientist and demonstrate to a future panel that she is a safe practitioner. The Panel took into account the Registrant’s evidence that she was “in two minds” whether or not to return to work as a Biomedical Scientist. The Panel balanced this equivocal commitment with what it considered to be a real lack of progress by the Registrant over the last two years to comply with the suggestions made to her by the previous panels, whilst subject to periods of suspension. The Panel was mindful that the imposition of a conditions of practice order requires a registrant to engage fully with the fitness to practise process to protect the public and improve her professional practice, with a view to returning her to safe and unrestricted practice. Furthermore, the Registrant’s evidence today around the reason for using a racial slur towards her neighbour was concerning to the Panel and raised attitudinal concerns which are not conducive towards conditions of practice. The Panel determined that the Registrant’s failings do not fall within any of the categories identified in the Indicative Sanctions Policy as making a conditions of practice order inappropriate.

40. The Panel next considered imposing a further period of suspension. It agreed with the previous panels that the identified failings are remediable; the question was whether the Registrant was genuinely committed to resolving the areas to be addressed and could be trusted to make an effort to do so. The Panel considered that the Registrant’s efforts to comply with the suggestions made to her by four previous panels since 2022 have been woeful and that the progress made by her since the last hearing was negligible. It determined that, in the particular circumstances of the case, affording the Registrant another opportunity to reflect further and assemble the documentary evidence required to demonstrate that she has fully remediated her failings, and would not repeat them, would serve no useful purpose.

41. The Panel therefore determined that the only sanction that would adequately protect the public and serve the public interest was a Striking Off Order.
In reaching its decision, the Panel took into account that it had no meaningful evidence of the Registrant’s intention or ability to remediate her practice. The Panel concluded that the Registrant posed an ongoing risk to the safety of the public, which would continue without remediation in the future. The Panel was mindful of the need for proportionality in deciding what sanction to impose but was of the view that such limited engagement and lack of remediation over a two-year period, together with the new evidence provided to it today around the Registrant acting on a “dare” from her work colleagues, is fundamentally incompatible with being a registered professional. It is for these reasons that the Panel has concluded that a Striking Off Order is the only sanction that would protect the public and serve the public interest. This includes maintaining confidence in the regulatory process.

Order

ORDER: The Registrar is directed to strike the registration of Ms Kelly Madden from the HCPC Register on the expiry of the existing Order.

Notes

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

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

Hearing History

History of Hearings for Kelly L Madden

Date Panel Hearing type Outcomes / Status
27/06/2024 Conduct and Competence Committee Review Hearing Struck off
24/01/2024 Conduct and Competence Committee Review Hearing Suspended
19/12/2023 Conduct and Competence Committee Review Hearing Adjourned
28/06/2023 Conduct and Competence Committee Review Hearing Suspended
15/12/2022 Conduct and Competence Committee Review Hearing Suspended
28/03/2022 Conduct and Competence Committee Final Hearing Suspended
01/03/2022 Conduct and Competence Committee Final Hearing Adjourned part heard
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