Smitha Johny

Preliminary Matters

The Registrant’s attendance

1. This was a somewhat unusual case in that the Registrant did attend briefly on the first day of the hearing (Monday 3 March 2025) and spoke with the Legal Assessor and the Presenting Officer, together with an interpreter present. The conversation was very brief as the Registrant indicated she was having connectivity issues due to stormy weather: she was calling from India. It was possible to establish that the Registrant was five and a half hours ahead of UK time. She also indicated that she had a hospital appointment on Tuesday 4 March 2025 and so would be unable to attend between 10:30 and 12:30 UK time. It was decided that the Panel would sit from 08:30 in the morning until 14:30 in the afternoon, to accommodate the time difference. Furthermore, the Panel agreed not to sit between 10:30 and 12:30 to allow the Registrant to attend her hospital appointment on the Tuesday.

2. Further attempts were made during the day to communicate with the Registrant and there was some brief contact, but not long enough to have any meaningful conversations. The last contact with her on the Monday was to say we were going to start at 08:30 on Tuesday 4 March 2025 and she said she would be in attendance.

3. However, on Tuesday morning, the Registrant did not attend and there was various communication with her via email and WhatsApp, detailed in an Attendance Note completed by the Hearings Officer, as follows:

DETAILS OF DISCUSSION:

3 March 2025

13:03 REG – I am not well. Really I am disappointed with my issues

13:06 HO – I am sorry to hear that I hope you feel better soon. The panel have agreed to finish for today and will start again tomorrow. Will you be able to join tomorrow at 8:30 UK time.

13:07 REG – OK.

13:07 HO – Is that ok?

13:07 REG - Sure. Panel will support me.

4 March 2025

8:33 REG – I am not well. I am admitted in the hospital. My family condition is very bad.

8:39 HO – Is it possible for you to join the link quickly to speak with the legal assessor and case presenter.

8:41 REG – sorry I can’t

08:49 HO – Are you happy for the hearing to go ahead without you?

8:50 REG - Yes

Email sent from Presenting Officer to Registrant.

Dear Mrs Johny,

I am sorry to hear you are unwell.

You can obtain well-being support from the Registrant Support Service [details below] and the interpreter is in attendance at the hearing today if you can join for a short time to speak to the Legal Assessor and the interpreter.

The hearing is scheduled for 3 – 12 March 2025. If you are unable to join, the options open to the Panel are :

1. To adjourn the hearing, which means rearranging the hearing for a future date
2. To proceed in your absence

The Panel will need to decide which option is fair.

Unlike your previous hearings, the Panel at this hearing will be making decisions about whether the allegation is proved and if so, whether your fitness to practise is currently impaired and if so, whether there needs to be a final sanction imposed on your HCPC registration. The Panel will therefore be hearing from witnesses and, if you attend, you will have an opportunity to ask them questions and to challenge what they say [you have the assistance of an interpreter].

If you do not attend then I will apply for the hearing to proceed in your absence. If the Panel agree to do that then you will not have an opportunity to ask the witnesses questions. You can still send written submissions, meaning you can put your side of the story in writing for the Panel to read and to take into account.

If you would like to attend on a different date please can you tell me dates that you would like to attend and why you cannot attend between today and 12 March. If you cannot attend because you are unwell please can you give some details about the health condition and any documents to show that you are unwell and cannot participate in a hearing.

Please could I ask you to answer the following questions:

1. if you would like the Panel to rearrange the hearing for a future date, with your reasons as to why
2. if you would like the hearing to proceed in your absence between today and 12 March, along with any written submissions you want to send to the Panel
3. if you agree the contents of the witness statement of Vesna Maglov, the HCPC Registrations Manager, or if you would like her to attend the hearing to answer your questions.
4. If you have any objection to the proposed amendment to Particular 5 – to add the word ‘and’ so that it reads “5. Your conduct at Particular 4(a) and/or (b) above was dishonest.”
5. Whether you admit any part of the allegation.

The Registrant Support Service can be accessed in a number of ways:

· Free phone careline: 0800 587 7396
· Email: assist@cicwellbeing.com
· Text: 18001 0800 085 1276
· Ele Wellbeing self-help website and live chat: https://hcpc.elewellbeing.co.uk
To access Ele Wellbeing use username: hcpc@elewellbeing.co.uk and password: HCPCWellbeing

Many thanks,

Jessica

This Email was translated by the Interpreter into Malayalam and forwarded to the Registrant by the HO via WhatsApp.

10:59 REG – Dear Sir I am not well and I already submitted all my experience w Ramsay. And you can decide what you think is fair. (sic)

6. In light of this correspondence, Ms Bass invited the Panel to use its Case Management powers to adjourn the hearing until 08:30 on Wednesday 5 March 2025. Ms Bass said that, notwithstanding the Registrant’s indication that she was happy for the hearing to proceed in her absence, where the correspondence has been in writing, rather than speaking, it is difficult to determine with any certainty what is being understood by the Registrant. She said that was why the email she had sent to the Registrant was then translated by the interpreter into Malayalam and sent to the Registrant, to give a level of reassurance of the position we are in and the consequences for the Registrant, if it is decided to proceed in her absence. Ms Bass suggested that an adjournment until the following morning would hopefully allow the Registrant time to return from hospital and to reflect on her position.

7. Ms Bass indicated that in the event that the Registrant were not in attendance the following morning, she would then be making an application to proceed in her absence.

8. At no stage did the Panel actually get to meet the Registrant.

9. The Panel considered the request with care and accepted the advice of the Legal Assessor. The Panel was keen for the Registrant to be able to participate, if at all possible. The Panel did not know whether the Registrant’s attendance at the hospital was for the pre-arranged appointment, already referred to by her, or for something else. It noted that the timing of the correspondence with her would have coincided with the time of her appointment and that whatever the reason she was at the hospital, it was not the best time to expect a reasoned response from her to the perfectly reasonable, but detailed, information and questions put by Ms Bass.

10. Accordingly, the Panel decided to use its Case Management powers to adjourn the case until 08:30 on Wednesday 5 March 2025. This would allow a further opportunity for the Registrant to attend her hearing, or to provide the reason for her non-attendance and for her to indicate once again whether she was happy for the hearing to proceed in her absence. The Panel, therefore, directed the Hearings Officer and Ms Bass to communicate further with the Registrant during Tuesday 4 March 2025, in an attempt to obtain better clarification of her position.

11. At 12:07 on 4 March 2025, the Hearings Officer sent a message to the Registrant with the assistance of the interpreter, as drafted by Ms Bass, as follows:

“Please could you ask the translator to translate the below, and then could you send it to the Registrant.

“The Panel have decided to adjourn until tomorrow at 08:30 UK time.

Before 08:30 UK time could you please let me know whether :

1. you want to attend the hearing on a different date, with details of why, or

2. you want the hearing to proceed in your absence and you understand the consequences of that [as explained in my previous message]
If you choose option 2, or if I do not hear from you, then the presenting officer will ask the Panel to consider her application for the hearing to go ahead in your absence at 08:30uk time tomorrow. The Panel will decide whether to proceed.”

12. Nothing was heard from the Registrant and accordingly, on 5 March 2025, Ms Bass said she would be making an application to proceed in the absence of the Registrant.

13. However, on 5 March 2025, the Hearings Officer was able to see that the Registrant was active on WhatsApp, so she sent her a message at 10:56 asking her to respond to the previous message as a matter of urgency. At 10:58 the same day, the Registrant responded, saying:

“without my presentens you can forward my issues. I believe that you people give justice” (sic)

14. Nothing further was heard from the Registrant.

Service

15. As the Registrant was not in attendance the Panel had to be satisfied that service of the Notice of Hearing had been sent to her, in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003 (as amended) (“the Rules”), before moving on to consider whether it would be appropriate to proceed in her absence.

16. The Panel heard and accepted the advice of the Legal Assessor. The Panel had sight of an email dated 16 January 2025, sent to the Registrant at her registered email address, giving the requisite notice of today’s hearing. The Panel was provided with notification that the email had been delivered. The Notice of Hearing informed the Registrant of the hearing time, the date and that the hearing would be conducted remotely by video conference. Information was included about how the Registrant could apply for a postponement, should she have wished to do so, and the Panel’s power to proceed in her absence, in the event that she did not attend.

17. The Panel was thus satisfied that service had been complied with in accordance with the Rules.

Proceeding in absence

18. With the Registrant no longer present, Ms Bass made an application to proceed in her absence.

19. The Panel heard and accepted the legal advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of a Registrant. The Panel also referred to the Health and Care Professions Tribunal Service (“HCPTS”) Practice Note ‘Proceeding in the Absence of the Registrant’. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented.

20. In light of the events referred to in paragraph 1 above, Ms Bass sent an email to the Hearings Officer that was then forwarded by way of WhatsApp to the Registrant at 09:11 on Tuesday 4 March 2025, as detailed in paragraph 3 above. The Registrant did not respond to that WhatsApp message (as interpreted into Malayalam by Mr Abraham). Then, at 12:07 on 4 March 2025, the further email (again interpreted into Malayalam by Mr Abraham), as detailed at paragraph 11 above, was sent, via WhatsApp by the Hearings Officer to the Registrant. The Registrant did not respond at the time to that message either.

21. The Panel was conscious of the fact that the Registrant had indicated she was unwell and in hospital and thus concerned that she may not be in a position to respond. However, at 10:56 on 5 March 2025, the Hearings Officer was able to indicate that the Registrant was using WhatsApp, and she therefore sent a message to the Registrant asking her to respond to the message sent at 12:07 on 5 March 2025. The Registrant responded straight away, as detailed in paragraph 13 above.

22. It was thus apparent to the Panel that the Registrant was not incapacitated, and she had not said she was unable to attend due to health reasons.

23. The Panel was of the view that the Registrant faced serious allegations and that there was a clear public interest in the matter being dealt with expeditiously. The Panel noted that there were four witnesses expecting to give evidence and that they had already been inconvenienced by the hearing not starting on Monday 2 March 2025, as planned. There had been multiple attempts to engage the Registrant and for her to say whether or not she would be returning or for her to indicate that she would like the hearing to take place on a different date. These had been translated into Malayalam to further assist the Registrant. The Panel considered an adjournment would serve no useful purpose, because, in light of the most recent response from the Registrant, it seemed most unlikely that she would attend on another occasion and furthermore, she had not requested an adjournment.

24. In light of the Registrant’s sporadic engagement with these proceedings, her indication on 4 March 2025 that she was happy for the hearing to go ahead in her absence and her latest response on 5 March 2025, namely: “without my presentens you can forward my issues. I believe that you people give justice” (sic), the Panel decided that she had voluntarily absented herself and thereby waived her right to be present and her right to be represented at this hearing.

25. The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inference from the Registrant’s non-attendance and would take into account the comments she had made in the material before it.

Application to amend

26. Ms Bass made an application to amend the allegation by adding ‘and/’ to Particular 5, so that it would read:

5. Your conduct at Particular 4(a) and/or (b) above was dishonest.

27. Ms Bass submitted that this was a minor typographical error, and no injustice would be caused by allowing the amendment.

28. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel noted that the requested amendment would make the allegation more serious because it would allow the Panel to find both 4(a) and 4(b) to be dishonest, whereas the current wording allowed it to find one or the other. However, the Panel accepted that it was clearly a typographical error and that to leave it uncorrected would be nonsensical and could result in the case being under-prosecuted. Furthermore, the Registrant had been notified of this proposed amendment, in a letter sent by email dated 3 February 2025, and had not raised any objection. The Panel could foresee no injustice or undue prejudice being caused and decided to allow the requested amendment.

Application to admit the hearsay evidence of Vesna Maglov

29. Ms Bass made an application that the Panel exercise its case management powers to accept the written evidence of HCPC Registrations Manager, Vesna Maglov without the need for her to attend the hearing to answer questions.

30. Ms Bass said that Ms Maglov produces the registration documentation which the HCPC rely on to support the allegation at particular 4(a). She said Ms Maglov has no direct knowledge of the Registrant or her command of the English language. For this reason, she submitted, there would be no injustice to the Registrant in accepting Ms Maglov’s statement and exhibit in this way.

31. Ms Bass added that on 28 November 2024 and again on 21 January 2025, the Registrant was written to and put on notice that the HCPC intended to make this application. The Registrant did not respond or raise any objections.

32. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel took into account the fact that the Registrant had been notified of this application and given an opportunity to object, should she have wished to do so. No objection has been forthcoming. The Panel also took into account the nature of Ms Maglov’s evidence, namely, to produce the registration documentation relied on by the HCPC in support of Particular 4. Her evidence went no further than that, as she does not know the Registrant and cannot comment on her command of the English language one way or the other.

33. However, in her comments provided to the Panel on 5 March 2025, the Registrant said that she had taken the IELTS (International English Language Testing System) language tests and scored 5.5 in speaking, writing and listening. She said she had given the certificates to the HCPC. Furthermore, there was reference within the main bundle of an email sent on 7 March 2023 by the Head of Clinical Services at Ramsay Healthcare to HR and copied to Mr Pinto, the Registrant’s Line Manager, stating, “We have had clarification that the candidate did pass her IELTS test, however we have concerns & would appreciate some direction?”

34. In such circumstances the Panel considered it important and fair to the Registrant that Ms Maglov be asked to clarify the position with regards to the IELTS certificates that the Registrant said she had provided to the HCPC.

35. In such circumstances, the Panel was not satisfied that it was appropriate to allow Ms Maglov’s statement to be admitted as hearsay, and that Ms Maglov would need to attend and give oral evidence.

Background

36. The Registrant is a Radiographer registered with the HCPC.

37. The Registrant entered the HCPC Register via the international application route, having trained in India. The Registrant’s application, dated 5 July 2021, included a declaration that English was her first language.

38. The Registrant was employed by Ramsay Healthcare as a Radiographer at the North Downs Hospital, Caterham (“the Hospital”) from January 2023 until her resignation on 24 April 2023. She was actually interviewed and offered the role in April 2022, but for various reasons was unable to start her employment until January 2023.

39. On arriving at the Hospital, the Registrant was assigned a ‘buddy’, who was another Radiographer in the department, Mr Ritchel Ahorro. It was normal practice for a new starter to be allocated a buddy for the first four to eight weeks of their employment as they settle in, however it would vary from person to person as to how long the support was required. Mr Pinto, the Registrant’s manager, said he planned for the buddy to be allocated to the Registrant for at least four weeks, however it soon became clear that more time was required. The buddy was assigned to support the Registrant at all times and was assigned to all of her shifts. When Mr Ahorro was not available to be with the Registrant, another Radiographer in the Hospital, Ms Eve Ireton, would supervise the Registrant.

40. Mr Pinto said that the buddy he assigned had also been recruited from abroad (some 15 years earlier) and so was able to understand the Registrant’s situation and, said Mr Pinto, the buddy tried really hard to help Ms Johny.

41. Mr Pinto said in his statement:

“Ms Johny would be expected to work alone at some point in her employment; generally I would expect a Radiographer who had been employed for three months to be working alone for at least part of their shift. The timeframe for when I would expect a Radiographer to work independently depends on the progress of the individual. At the point of her three month review it was clear that Ms Johny was not capable of working unsupervised. As the Registrant claimed to have 23 years of experience on her CV, I would have expected her to have been a more competent Radiographer.”

42. On commencing employment at the Hospital, the Registrant was issued with competency documents, and she started rating herself over the first few weeks of her employment. Mr Pinto said that he would usually go through these documents with an employee at the three-month review and then again at the end of their probation period. He said the documents are used to determine whether the person is at the level they should be. Mr Pinto added that he did not in fact review this as the Registrant resigned before he had a chance to do so. According to the feedback received from Mr Ahorro the Registrant was not competent to use the x-ray machine or perform the patient safety checks on her own. Mr Ahorro’s feedback was that the Registrant was not competent to work on her own.

43. Mr Pinto said that he is a very present manager and always around the department. He said that from his observations he noticed the way the Registrant was interacting with patients, and it was clear that she was not aware of the relevant hospital policies and that she was not following the correct procedures.

44. On being spoken to about the concerns, Mr Pinto said the Registrant claimed the gaps were due to the fact that she was working as a CT Radiographer in India and not in x-ray. Mr Pinto informed the Registrant that the Hospital did not have a CT scanner, and she had been recruited for the purposes of carrying out x-rays.

45. At the end of the three-month review, on 20 April 2023, Mr Pinto explained to the Registrant that in light of her mistakes and lack of knowledge she would no longer be allowed to practise as a Radiographer, not even under supervision. She would be put on authorised leave that would be followed by an investigation and/or termination of her contract. However, the Registrant said she would give in her notice.

46. On 24 April 2023, the Registrant handed in her notice to the Hospital.

47. On 26 April 2023, the HCPC received a referral from Mr Pinto and Ms Margo Williams, Peripatetic Radiology Manager at the Hospital. The Hospital is part of Ramsay Healthcare.

48. The referral raised concerns about the Registrant’s command of English, poor performance and lack of professional knowledge, which persisted despite additional support being provided. The specific concerns are as detailed in the allegation above.

49. In line with their Sponsor License Holder responsibilities, the Hospital contacted the Home Office to advise them that the Registrant’s employment with the Hospital ended on 24 April 2023. Accordingly, the Registrant was required to leave the UK within 60 days from the end of her employment.

50. In observations made by the Registrant at an earlier stage in the proceedings, the Registrant disputed the allegations and said there was racism in the workplace. She said that she had been made to feel very uncomfortable at the Hospital and had been spoken to very rudely. She had found this very upsetting because she had just left India and joined the Hospital. She said she had expected to be dealing with nice people. The Registrant said that she had a problem with her line manager, Mr Pinto, who had not been very nice to her.

51. The Registrant explained that the x-ray machines in India were entirely different to those at the Hospital, and she had just been told on the first day “to use it”. She said that she was lost and that in the first 6 months she had expected to have been under observation. The Registrant said that she had been upset and that this had affected her mentally such that on her return to India, she had been in “quite a bad way”.

52. The Registrant considered that there had been a plan at the Hospital to take on other staff and so she had been compelled to resign. She said she had been made to fail in front of colleagues. The Registrant said that no patient had ever complained about her. She had been very nice and polite to all patients. She said she did not know why this had happened to her.

53. The Registrant said that she had taken the IELTS language tests and scored 5.5 in speaking, writing and listening. She said she had given the certificates to the HCPC. She had taken the tests before coming to the United Kingdom and had not taken any language courses since then.

54. Before considering the facts, the Panel was invited by Ms Bass to amend the allegation further in that Particular 2 referred to 30 June 2023 and it was not known where that date came from, when in fact the Registrant resigned on 24 April 2023.

55. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel was of the view that in fairness to the Registrant the dates should be amended. This was because, although 24 April 2023 was within the time period referred to in Particular 2, leaving the closing date as 30 June 2023 might erroneously give the impression that the allegation of misconduct and/or lack of competence spanned a period of six months, rather than four. Accordingly, the Panel agreed with the invitation by Ms Bass and decided to change the dates to read between 1 January 2023 and 24 April 2023 (as shown above). This would more accurately reflect the evidence, and no injustice would be caused by making the amendment.

Decision on Facts

56. In reaching its decisions on the facts, the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence provided. The Panel also took into account the submissions made by Ms Bass on behalf of the HCPC.

57. The Registrant was not present and had not provided any specific written representations for the Panel to consider. The Panel did, however, note the comments made by the Registrant at an earlier hearing and did put those matters to the witnesses when they gave evidence. In considering those comments, the Panel took into account the fact that they had not been adopted by the Registrant at this hearing and were not given on oath at this hearing. In such circumstances, where her comments were contrary to the evidence given on affirmation by the witnesses at this hearing, the Panel gave more weight to the latter.

58. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case on the balance of probabilities: it was not for the Registrant to disprove the allegations.

59. The HCPC relied on the evidence of the following witnesses:

• Sarah Breen - HR advisor at Ramsay Healthcare
• Eve Ireton - Colleague and Radiographer
• Vesna Maglov - HCPC Registrations Manager
• Margo Williams - Imaging Manager prior to Mr Pinto taking over the role
• Fernando Pinto - Radiographer and the Registrant’s Line Manager

Particulars 1(a) & (b)

1. On or around one or more of the following dates, were unable to answer basic questions about radiography process and procedure and/or were unable to successfully complete a scenario procedure:

a. 10 March 2023;
b. 20 April 2023.

60. The HCPC relied on the evidence of Mr Pinto, the Registrant’s Line Manager. With regards to 1(a), he carried out an eight-week review on 10 March 2023. During that review, he presented the Registrant with a number of clinical scenarios. Because he had concerns about the Registrant’s knowledge, he presented himself as a patient and asked her to do a full patient pathway. The purpose of this was to identify areas where the Registrant was going wrong and to understand what they needed to work on in order to help her.

61. Mr Pinto said that the Registrant performed very poorly in the scenarios. He picked a scenario where he said "My name is X and I am coming down to have a hip x-ray.” Mr Pinto said that the Registrant failed to apply Pause and Check, in accordance with the relevant guidance. The guidance states that an operator must confirm patient details, select the correct anatomical area, confirm the examination is being completed at the right date and time and confirm there is no clinical reason this exposure should not proceed.

62. Mr Pinto said that the Registrant’s failure to follow the Pause and Check guidance could potentially have led to the wrong patient being x-rayed. He said the Registrant only asked him for his first name and date of birth, she did not check his surname, address, the reason he was there, where he was being x-rayed and the problem that he was being treated for. Mr Pinto said that fortunately there were no actual consequences for patients because the Registrant was always shadowed by her buddy or another mentor.

63. In addition, Mr Pinto said that the Registrant failed to x-ray the correct anatomical area and positioned the patient (him) towards the knee instead of the hip. He said this was concerning because it could lead to a radiation breach and that it would be an unnecessary exposure. He said this was a potential risk to patient safety. Mr Pinto said that if these actions had been carried out on a real patient he would have had to report the matter to a Radiation Protection Advisor and that this would potentially have led to an investigation by the Radiation Registration Committee. Mr Pinto said that radiation can cause cancer, so it's use has to be justified and clinically relevant: exposing a patient to radiation on a non-justified study is, he said, a radiation breach.

64. Mr Pinto said that the Registrant showed no knowledge about the x-ray machine. The x-ray machine has a special bulb inside it and it must be pointed to the correct site on the patient. He said that the Registrant could not even move the machine to position it in the correct place. The machine has eight buttons, but the Registrant could not use the buttons and when questioned did not know what they were for. Mr Pinto said that after working in the department for eight weeks the Registrant would be expected to know this. Mr Pinto went on to say that he would have expected the Registrant to be able to perform the procedures in the scenarios because even a Radiographer “straight out of training would be able to do so.”

65. Mr Pinto said that he then asked the Registrant to show him how to carry out a foot x-ray, which is one of the most basic procedures. He said the Registrant failed to show him how it was performed. She did not know how to position the foot and the machine to perform the study, and she could not follow the correct protocol.

66. Mr Pinto said that because he was aware from his observations that the Registrant did not have a good understanding of hospital policies, he asked her some questions at the end of the meeting. This included questions about pregnancy. Mr Pinto said this is an important area because different procedures might be followed in Asian countries. He said the guidance is part of IR(ME)R (Ionising Radiation (Medical Exposure) Regulations), but there is a pregnancy status flowchart to make it simpler. Mr Pinto said that this states that the Radiographer must ask every person aged between 12 and 55 if they might be pregnant, regardless of what gender they might appear to be. He said in India such an approach is not followed. Due to the response to the questions on pregnancy, Mr Pinto was concerned that the Registrant was not aware of gender transition and transgenderism. Mr Pinto said that at the beginning of her first week of employment the Registrant was given a folder of hospital procedures to review which included the guidance that he had referred to namely the Pause and Check, the pregnancy flowchart and the IR(ME)R policies.

67. The buddy/mentor assigned to the Registrant was a Radiographer called Ritchel Ahorro. Mr Pinto said that he thought Mr Ahorro would be able to understand the Registrant’s position of being recruited from abroad because he had come to England from the Philippines. Regrettably, Mr Ahorro was not called as a witness at the hearing, but Mr Pinto did exhibit a Personal Record of Radiography Competencies, completed by Mr Ahorro as part of the Registrant’s training. It was dated 20 February 2023 and demonstrated that roughly seven weeks into her training, the Registrant was not competent in most aspects of her role as a Radiographer.

68. With regards to 1(b), Mr Pinto gave evidence that he held a three-month review with the Registrant on 20 April 2023. Mr Pinto said that the questions posed to the Registrant, and the scenarios he discussed, overlapped greatly with those discussed at the eight-week review. A scenario was used whereby a consultant wanted an x-ray of the fourth and fifth metacarpal joints, which can only be visualised with the medial oblique view (this demonstrates the location and extent of fractures in the foot and joint space abnormalities). Mr Pinto said that the Registrant failed to take the correct image and took a lateral view instead of a medial view.

69. In a second scenario, at the three-month review, the Registrant was provided with a patient form and Mr Pinto purposefully used an incorrect date of birth. On this occasion the Registrant asked for his name address and date of birth. Mr Pinto gave a different date of birth to the one on the form, but the Registrant failed to notice this. Mr Pinto was concerned because this meant that the Registrant had not verified that he was the correct patient. Mr Pinto said that it was clearly stated on the patient form that a medial oblique was being requested, however once again the Registrant failed to do this and instead followed the standard lateral procedure. Mr Pinto said that the Registrant failed to properly review the paperwork as she should have done.

70. When the Registrant had finished the x-ray she said the procedure was completed and that Mr Pinto could return upstairs. Mr Pinto asked whether she was sure that everything was completed and asked her to check the paperwork properly. Only then did the Registrant say “Ah yes it's oblique.” However, the Registrant was then unable to take an x-ray in the oblique view. Mr Pinto said that he asked the Registrant whether she knew the clinical information relevant to this and if she had any idea why the patient (he) was there. The Registrant did not know. Mr Pinto said that an operator should review the clinical information and compare it against the requested scan - for example a patient may have reported pain in the wrist but the scan requested a foot x-ray. He said that in this case there was also information about the exact study the consultant was requesting, which the Registrant failed to see. Mr Pinto added that the Registrant was also unable to confidently answer questions on the Pause and Check policy and the IR(ME)R 17 Duty Holders Responsibilities.

71. Mr Pinto said that the week before the review on 20 April 2023, the Registrant said that x-rays at the hospital were easy. He then asked her “how do you perform a scaphoid x-ray?” This is an x-ray of the bones in the wrist. Mr Pinto said the Registrant did not know, so he said he would be asking her this in the meeting on 20 April 2023.

72. As forewarned, at the review meeting on 20 April 2023, Mr Pinto presented the Registrant with an x-ray and asked her to identify which bone was the scaphoid. However, the Registrant could not do this and instead pointed to the incorrect side of her wrist. Mr Pinto said this was concerning as the Registrant was unable to recognise basic anatomy. He said he would have expected someone at her level to have better anatomical knowledge, particularly because she had been advised to review this a week before the meeting.

73. Mr Pinto said that he presented the Registrant with another x-ray, which clearly showed a fracture at the neck of the femur bone and he asked her if she could identify the problem on the x-ray. The Registrant said that she could not. Mr Pinto told her that there was a fracture of the femur. He said that the Registrant did not know what a femur bone was and when he asked her to point to it she first pointed at the iliac crest (the highest part of the pelvis close to the ribs) and when Mr Pinto said that was wrong the Registrant then pointed at the pubic area. Mr Pinto said that these x-rays are very common and make up a high percentage of x-rays that a Radiographer carries out. Furthermore, the femur bone is one of the biggest bones in the body and in the image, it was very obvious that the femur was fractured and yet the Registrant was unable to identity the femur or the fracture.

74. The Panel had been made aware that the Registrant had said in her comments at a previous hearing that she had a problem with her manager (Mr Pinto), who had not been very nice to her. This was put to Mr Pinto when he gave evidence. He said he did not know why she felt like that. He said that he did try to help her and put a lot of training and support in place to assist the Registrant. He said he recognised that she was nervous working around him, perhaps because he was a male, younger than her and her manager.

75. The Registrant had also referred, in a non-specific way, to there being racism in the workplace. When asked to comment on this, Mr Pinto highlighted the very multicultural nature of the team and said he did not know where the suggested racism came from.

76. In addition, the Registrant considered there to have been a plan at the hospital to take on other staff and that she had been made to fail. Mr Pinto rejected this suggestion. He said that after the Registrant resigned it had taken over eight months to fill her position.

77. The Panel found Mr Pinto to be a compelling and credible witness. His answers were thoughtful, clear, consistent and straight-forward. He is clearly passionate about his job and the importance of following policies and procedures in such an important working environment. He also showed a sensitivity in how to settle someone into a new environment, having come from another country. He recognised the potential discomfort the Registrant felt in his presence and made allowances for it. He spoke positively about the Registrant in some respects and referred to her as cheerful and fearless and, on occasion, over eager.
78. After the issues highlighted in the review on 10 March 2023, Mr Pinto provided the Registrant the same day with materials to assist her with her learning in the lead up to the three-month review on 20 April 2023. He even pre-warned her of the content of the various scenarios he would be setting her to give her the opportunity to prepare herself in advance.

79. Mr Pinto’s oral evidence was supported by contemporaneous documents, some prepared by him and some by others. The notes he made of the 10 March 2023 review meeting had been signed by the Registrant. Those for the 20 April 2023 had not been signed because the Registrant left the Hospital before having the opportunity to do so. However, at that meeting an HR employee had also been present and made notes and those notes were consistent with the ones prepared by Mr Pinto.

80. The Panel concluded that Mr Pinto was a reliable, balanced and fair witness and there was no reason to doubt his evidence.

81. In relation to Particulars 1(a) and 1(b), Mr Pinto’s unchallenged evidence, as supported by the contemporaneous documentary evidence, satisfied the Panel that on both dates referred to, the Registrant was unable to answer basic questions about radiography process and procedure and was unable to successfully complete a scenario procedure.

82. Accordingly, the Panel found Particulars 1(a) and (b) proved.

Particulars 2(a) - (f)

2. Between 01 January 2023 and 30 June 2023, were unable to demonstrate the required level of competency in the following areas:

a. basic radiology studies such as X-rays of the hand or foot;
b. identification of basic anatomy;
c. following required guidelines and/or protocols, including the Clinical Imaging Checklist, Paused and Checked checklist and IR(ME)R 17 Duty Holders Responsibilities
d. setting up X-ray machines;
e. use of contrast;
f. communication with patients.

83. The HCPC again relied on the evidence of Mr Pinto, the Registrant’s manager, together with the evidence of Ms Ireton, one of the Registrant’s buddies. From Mr Pinto’s observations of the Registrant he identified a number of concerns. He provided evidence as follows:

(a) Feet and hand studies are the first x-rays you learn as a Radiology student, but Ms Johny did not know how to do these.
(b) Ms Johny was unable to identify basic anatomy, she failed to identify a femur on a pelvic x-ray and could not tell me where the scaphoid bone was located.
(c) Ms Johny was unable to adhere to safety policies, including the Clinical Imaging Checklist/ Pause and Check - she failed to confirm patient identity and confirm pregnancy status.
(d) Ms Johny was also unable to prepare the room for specific studies and set up x-ray machines.
(e) I challenged her about the use of contrast and she could not explain what contrast was and how it was used. There is only one type of CT contrast - Iodinated contrast - and this has been the same forever. All patients having CT with contrast must answer several questions about allergies and previous scans to ensure that they are not allergic or likely to be allergic to contrast as it poses a loss of life risk. Therefore, it is not possible for a CT radiographer to not know what contrast is used in CT.
(f) Patients and consultants (and colleagues) struggled to communicate with Ms Johny. In one example, Ms Johny was trying to tell a patient to step on the x-ray panel and I had to intervene as the patient was not able to understand her.

84. Mr Pinto said the Clinical Imaging checklist (also known as Pause and Check) is part of broader legislation, namely IR(ME)R 17 Duty Holders Responsibilities. Mr Pinto said the Clinical Imaging checklist works as a quick breakdown of the legislation. An IR(ME)R operator is entitled to expose patients to radiation, but that makes them responsible for ensuring patient and public safety and adhering to safety policies.

85. According to Mr Pinto, the Registrant’s failure to follow the Pause and Check guidance could potentially have led to the wrong patient being x-rayed. In carrying out a scenario with the Registrant, Mr Pinto said he was only asked for his first name and date of birth. She did not check his surname, address or the reason why he was there, where he was being x-rayed or the problem he was being treated for.

86. The Panel also heard from Ms Ireton, a Radiographer at the Hospital, who provided training on an informal basis by providing the Registrant with day-to-day assistance and shadowing opportunities. She described having a good working relationship with the Registrant. Ms Ireton said that the Registrant had not worked before on the specific equipment they had at the hospital and that the Registrant found it “very difficult to adjust to using the equipment.”

87. Ms Ireton said that the Registrant told her she had not been in general radiography and had previously been working as a CT Radiographer. Ms Ireton said that Radiographers are all trained to do the same things but they then branch off and work in different areas. She added that if you had not worked in general radiography for a while you would need to shadow someone to recap the process. Ms Ireton said she would expect a CT Radiographer to have experience in general radiography, however if they have not practised in this area for a period of time they may be rusty and need a refresher. Ms Ireton said that she worked with the Registrant and assisted her to complete x-rays.

88. Ms Ireton worked two days a week with the Registrant, whom she described as “a very nice lady, but not able to communicate fully.” Ms Ireton said that the Registrant could not adjust to the equipment they had. She said she could not make a judgment as to whether this was a question of clinical incompetence or a language difficulty. Ms Ireton said she witnessed the Registrant’s communication with patients, and it was “not good.”

89. In her oral evidence, Ms Ireton said that she thought the Registrant’s theoretical knowledge was “alright, she knew the anatomy”, and she also thought the Registrant could do basic studies unsupervised, such as distal extremity x-rays. Ms Ireton wondered whether it was being shadowed that made the Registrant nervous, as she would often turn to her (Ms Ireton) and ask if what she was doing was alright. Ms Ireton again said that she thought it was the language barrier that was holding the Registrant back.

90. In light of the Registrant’s observations that people were not nice to her, Ms Ireton was asked for her view on relationships within the department. She said she thought they were okay and that the Registrant “got on very well with everybody, but there was tension about her workability.” Ms Ireton did not think there was any suggestion of racist conduct towards her. Ms Ireton believed the department tried everything to get the Registrant to stay.

91. Ms Ireton also said that the Registrant was not able to follow the procedures without direct help and prompting. In conclusion, Ms Ireton said that she would not say that the Registrant was competent as a Radiographer but said that it was hard to say whether this was due to clinical incompetence or the language barrier. Ms Ireton said that the Registrant did not understand a lot of the time when she would try to explain things to her. She could also recall in a management training session that the trainer asked the Registrant some basic questions about immediate life support and the Registrant could not understand them at all.

92. The Panel has already indicated that it found Mr Pinto to be a credible and reliable witness. So too was Ms Ireton. She said many positive things about the Registrant, and she was clearly sympathetic towards the Registrant and the difficulties she was experiencing. There were some inconsistencies in her evidence, however. For example, she said that the Registrant was able to take x-rays of extremities, but then went on to say that she could not work without supervision. It certainly sounded as though the Registrant was perhaps more relaxed in her presence than when being asked to enact scenarios with her manager, Mr Pinto.

93. Although the Registrant in a generalised way denied all the allegations, she did not provide any counterargument for the matters alleged.

94. With regards to 2(a), the evidence was mixed, in that Ms Ireton said the Registrant could do basic radiology studies, albeit under supervision. This was in contrast to the clear evidence given by Mr Pinto of the Registrant’s demonstrations at the review meetings, where she was unable to identify the scaphoid bone or take the correct view of the foot. The allegation was that the Registrant was unable to demonstrate the required level of competency in basic radiology. Since the evidence of Ms Ireton was that she could only do this if supervised and the evidence of Mr Pinto was that she was unable to demonstrate basic radiology studies, the Panel was satisfied, on the balance of probabilities, that this Particular was proved.

95. With 2(b), there was again some discrepancy between the evidence of Mr Pinto, who questioned the Registrant’s knowledge of anatomy, and Ms Ireton, who thought the Registrant did have knowledge of the anatomy. However, the Panel noted that Ms Ireton’s evidence was somewhat generalised, whereas Mr Pinto’s evidence was direct and stark. He said the Registrant was unable to identify the scaphoid bone in the wrist, a basic and key part of the bone structure of the wrist. Perhaps even more concerning, was the Registrant’s inability to identify the femur, one of the largest bones in the body. The Panel was thus satisfied, on balance, that the Registrant had failed to demonstrate the required level of competency with regards to the identification of basic anatomy.

96. With regards to 2(c), the Registrant was assessed by Mr Pinto on 10 March 2023 and again on 20 April 2023 and, on both occasions, she failed to follow the guidelines and protocols in the scenarios she was asked to perform (as detailed in Mr Pinto’s unchallenged evidence above). The Panel was satisfied that this meant she had failed to demonstrate the required level of competency as alleged in 2(c) and it therefore found this Particular proved.

97. When it came to setting up x-ray machines, the Panel noted the Personal Record of Radiography Competencies form completed by Mr Ahorro, dated 20 February 2023. This demonstrated that around seven weeks into her training, the Registrant was not competent in most aspects of setting up (and indeed using) an x-ray machine. Furthermore, the evidence from Ms Ireton and Mr Pinto was that the Registrant had extreme difficulty setting up the machine and consistently got it wrong. They both acknowledged the Registrant’s lack of familiarity with the equipment and tried to teach her how to use it. However, she repeatedly failed to set it up and operate it correctly.

98. The Panel was satisfied that this meant the Registrant had failed to demonstrate the required level of competency in the setting up of x-ray machines and it therefore found this Particular proved.

99. Particular 2(e) related to the use of contrast. The evidence before the Panel was that as an x-ray Radiographer, the Registrant was not required by the Hospital to use contrast. Mr Pinto had questioned the Registrant about the use of contrast when trying to establish if she was really a Radiographer at all. Contrast is used by Radiographers who carry out CT scans, as the Registrant had claimed to have been doing in her previous role. It was apparent from her answers to Mr Pinto that her knowledge about contrast was lacking. However, since she was not required to use contrast in her role at the Hospital, the Panel did not consider it necessary for her to be able to demonstrate competency in such use. Accordingly, the Panel found Particular 2(e) not proved.

100. With regards to communication with patients, as referred to in Particular 2(f), there was clear and unchallenged evidence from both Ms Ireton and Mr Pinto that the Registrant struggled to communicate clearly with patients. The only evidence slightly to the contrary, was that of Ms Williams, who said she had no difficulty understanding the Registrant when she interviewed her. However, there is a difference between communicating during an interview and communicating with patients. The allegation is a failure to demonstrate the required level of competency when in communication with patients and this, the Panel was satisfied, was proved on the basis of the compelling evidence of Ms Ireton and Mr Pinto. Ms Ireton had witnessed such issues with patients firsthand saying the Registrant would attempt to communicate with patents about such things as the position they needed to be in, but she was rarely understood and she, Ms Ireton, had to interject. Mr Pinto had also witnessed difficult patient interactions, and, in addition, he identified issues when he was acting as the patient in the scenarios he had set the Registrant.

101. Accordingly, the Panel found Particular 2(f) proved.

102. In summary, the Panel found Particulars 2(a) - (f) proved, save for Particular 2(e), which it found not proved.

Particular 3

3. Failed to successfully complete the mandatory Immediate Life Support (ILS) course.

103. Mr Pinto informed the Panel that the Registrant failed the mandatory Immediate Life Support (ILS) course on 15 February 2023. Mr Pinto said that as she had failed, they then rebooked her on this course for the end of April 2024. Mr Pinto said that the Registrant was the only person from the hospital to fail this course in many years. The course, he said, is a one-day course attended by five to six people at a time and is run by an external provider called the Resuscitation Council UK. Mr Pinto said the morning is spent learning the theory of life support and in the afternoon participants carry out number of scenarios, for instance finding a patient who has collapsed or one who is in cardiac arrest. Participants need to demonstrate what actions would be taken to keep the patient alive and stable until help arrives.

104. Mr Pinto contacted the person who ran the course to find out why the Registrant had failed. The organiser explained that he did not believe the Registrant could understand anything that he was saying to her and as a result she would be completely unable to react in an emergency clinical situation, because she could not understand or follow instructions. Mr Pinto said that in the week before the three-month review had been due the Registrant came to speak with him and said that she did not want to do the rebooked course as she was not comfortable doing it. Mr Pinto said that he told her the training is mandatory, and she must do it.

105. The Registrant was booked in to re-take the ILS course later in April 2023, however she left employment at the Hospital before the date and therefore did not complete it.

106. Ms Ireton gave evidence about attending this course. She said the questions are very difficult and that it was not an easy course. She said, “We all struggle to get through this course, it is very very hard.” She went on to say that this year they had all failed and had to re-take the course. Ms Ireton thought she had failed the course the first time she took it. She remembered the Registrant failing the course.

107. It appeared to the Panel that Mr Pinto’s belief that the Registrant was the only person to have failed this course in many years may not be entirely accurate, in light of Ms Ireton’s evidence to the contrary. However, the Panel accepted the clear and unchallenged evidence provided by Mr Pinto that this was a mandatory course that had to be taken and passed by the Radiography staff on an annual basis, even if that meant attempting it on more that one occasion. The Panel was therefore satisfied that the Registrant had a duty to complete the mandatory training and had failed to do so.

108. Accordingly, the Panel found Particular 3 proved.

Particulars 4(a) & (b)

4. Misrepresented:

a. your English language proficiency when applying to join the HCPC register; and/or
b. your level of experience, training and/or qualification when applying for a General Radiographer role at Ramsay Healthcare.

109. With regards to 4(a), the HCPC relied on the evidence of Ms Maglov, Registrations Manager at the HCPC. Ms Maglov’s evidence was that when applying to join the HCPC Register, the Registrant ticked “yes” in response to the question “Is English your first language?”. Ms Maglov said that the form clarifies that ticking “yes” means that English is the applicant’s main or only language that they use on a day-to-day basis. The form also states that having studied English or undertaken training or education where English is the medium of instruction does not necessarily mean that English is the applicant’s first language.

110. Ms Maglov added that the form further explains that if English is not the applicant’s first language, they must provide evidence of proficiency in the language. However, as the Registrant declared English to be her first language, no such evidence was requested or provided as part of her application since, by indicating that English was her first language, she was exempt from having to provide this.

111. Ms Maglov said, “I can confirm that the HCPC`s Registration department has not received any concerns about the application and no further steps were taken to establish Ms Johny`s proficiency in English.”

112. Mr Pinto said that very early on in her employment the Registrant showed a poor command of English. Mr Pinto said that at first, he thought this was perhaps due to her moving from another country as the Registrant’s first language is a local dialect from Kerala, India. He said her command of English did get better over time and they did try to find or encourage her to take English lessons. At the three-month review, Mr Pinto asked the Registrant if she had found any suitable English lessons: she responded to say that she had not. However, Mr Pinto believed that she had received some help from her son as her communication had improved by the time of the three-month review, but he said it was still not at an acceptable level and he still had concerns about her English.

113. Mr Pinto said the ability to communicate in English is important because when taking care of patients “… they need to understand us and we need to understand them.” He said that good communication is important as they need to ensure that they have the correct patient and that the patient understands why they are doing the procedure. He went on to say that the Radiographer also needs to be able to deal with an emergency situation, for instance if a patient asked for help because they are in danger. Mr Pinto said that as a healthcare professional they need to be able to pick up on this and take action. He said, “We have a duty to care for patients and if your ability to communicate is so poor that you cannot understand patients it can become a serious problem.”

114. Ms Williams also said that very early on in the Registrant’s employment Mr Pinto expressed concerns to her about the Registrant’s command of the English language and her ability to communicate with patients and fellow professionals. Ms Williams said that this was quite surprising to her because “… in the interview that I held with Ms Johny, prior to her being offered the position, she was able to converse quite well in English.”

115. The Panel found this allegation to be far from straightforward. When applying to join the HCPC Register, the Registrant had ticked the box to say that English was her first language and yet Ms Williams, Mr Pinto and Ms Ireton all said they did not believe English was her first language. Furthermore, the Registrant’s indication that she would be assisted by an interpreter at this hearing also supported the contention that English is not her first language. In addition, the fact that, on her account, she scored 5.5 in the IELT, when a score of 7 is required, further supported the assertion that English is not her first language.

116. However, on the form, what amounts to English being one’s first language is qualified as follows, “You should only indicate that English is your first language if it is the main or only language you use on a day-to-day basis.” This meant it was for the HCPC to prove that the Registrant did not use English on a day-to-day basis. Whilst not conclusive (as the form indicates: having studied English or undertaken training or education where English is the medium of instruction does not necessarily mean that English is the applicant’s first language), the Panel did note that all the documentation submitted by the Registrant in her application to join the HCPC Register was in English. In addition, Ms Williams’ evidence was that the Registrant was able to converse in English without difficulty during her interview. The Panel had no reason to doubt Ms Williams’, who provided clear, balanced evidence. Mr Pinto gave evidence that the Registrant’s written English was good.

117. The Panel was in no doubt that, on a strict interpretation, English was not the Registrant’s first language. However, in all the circumstances, the HCPC had not satisfied the Panel, on the balance of probabilities, that the Registrant was not, at the time of completing the form, using English on a day-to-day basis, which would justify her having ticked yes on the form.

118. Accordingly, the Panel found Particular 4(a) not proved.

119. With regards to Particular 4(b), Ms Williams interviewed the Registrant for the Role at the Hospital. She said:

“During the interview, Ms Johny said that she was currently employed in an imaging centre where she was mostly carrying out CT scans. These are different to x-rays as they are different imaging modalities. Both are learned skills of a diagnostic radiographer, but competencies must be maintained in each area to remain proficient. Ms Johny’s CV showed that she had worked consistently throughout her career and that she had general x-ray experience, Ms Johny confirmed this during the interview. We therefore concluded that Ms Johny was appropriately trained and experienced to undertake the role of Radiographer and we offered her the position. I did not see evidence of her experience, qualifications or referrals as this was managed by the on-boarding team …”

120. Ms Williams said that during the interview in April 2022, they discussed the Registrant’s family and the qualifications and experience she held. These, said Ms Williams, were in line with what was required under the job description. The job description required that the person: had a degree or diploma in Radiography; was registered with the HCPC; had sound written and verbal communication skills; could work independently and in a team; was flexible and adaptive; had customer service skills and computer skills; and skills in x-ray and Theatre imaging.

121. However, Ms Williams went on to say:

“Towards the end of Ms Johny’s employment and following the three-month review that Mr Pinto held with her, Mr Pinto and I had began to have concerns about Ms Johny’s qualifications. This was because we had genuine concerns about her ability to carry out basic radiography functions and she had made no improvement since these concerns were first raised with her.

122. Mr Pinto also gave evidence about the requirements of the role taken on by the Registrant. He said the Registrant’s job description as a Radiographer at the Hospital stated that a degree or diploma in Radiography is essential to the role and that the candidate must have sound written and verbal communication skills. The English proficiency requirements are that Radiographers are proficient enough to be able to maintain a conversation, understand colleagues and patients and be able to express concerns and opinion.

123. At the three-month review, and following the Registrant’s inability to answer the most basic of questions, or respond appropriately to basic scenarios, Mr Pinto said that he asked the Registrant "be honest are you really a radiographer?" The Registrant replied yes but said that she was more like a manager in her previous role. She said that she had worked on the receptionist desk at the previous hospital and would check in patients who would then go with the nurses to be scanned. Mr Pinto said “so you were a receptionist?" The Registrant said that she was not.

124. The Panel also heard from Ms Breen, HR Adviser at Ramsay Healthcare. She was open and honest about the extent of her knowledge of the events in that she did not witness the concerns first-hand as she did not work with the Registrant directly. The Panel considered she answered questions to the best of her ability, being honest where there were things she could not remember. Ms Breen said that on 16 March 2023, Mr Pinto had raised significant clinical safety concerns with the HR Department, about the Registrant.

125. Ms Breen said that on 12 April 2023, she emailed the Recruitment Partner who was involved in the recruitment of the Registrant and, as she was an overseas applicant, she was seeking to clarify the process of bringing her in and the documentation that was obtained as part of the Registrant’s on-boarding process to Ramsay Healthcare.

126. Ms Breen said that on 17 April 2023, the Ramsay Healthcare, People Partner emailed to confirm she was not convinced of the quality of the references and certificates obtained from the Registrant. The People Partner was concerned about the validity of these documents, in terms of whether the qualifications had been verified and employment referees checked during the recruitment process.

127. However, because the Registrant resigned on 24 April 2023, Ms Breen said there was no internal investigation, probation warning or further investigation into the veracity/quality of the Registrant’s recruitment documents. Ms Breen said that given the level of the concern relating to the Registrant’s competence and level of knowledge and skills, if she had not resigned, they would have escalated the concerns and carried out an internal investigation. She added that had the Registrant remained in employment, as part of the probation review process they would have followed up the concerns about her qualifications/references.

128. Notwithstanding the concerns the Hospital had with the Registrant’s qualifications, neither they nor the HCPC actually carried out any investigation into the validity of the Registrant’s qualifications or training. There was, therefore, no evidence before the Panel that the Registrant’s qualifications and training were not genuine. They were, the Panel noted, completed some time ago, in the 1990s. In such circumstances, the Panel could not be satisfied, on the balance of probabilities, that the Registrant had misrepresented her training or qualifications when applying for the role of General Radiographer at Ramsay Healthcare.

129. The Panel was, nonetheless, satisfied that the Registrant had misrepresented her experience. On her CV she detailed how, from 2004 to 2015, she performed plain x-ray, fluoroscopy, bedside radiography and C-arm and also handling mobile x-rays at ICUs (Intensive Care Units) and wards when required by doctors. That may not have been a misrepresentation, since it related to a period ending in 2015, some seven years before applying for the role at Ramsay Healthcare. However, further on in her CV, in a section stated to be from 2017 to date, the Registrant again referred to performing “plain X-rays of body parts - all basic and supplementarity views - and bedside radiography” and also the operation of “C-arm in Operation Theatre”.

130. The Panel considered there to be a clear disconnect between what the Registrant told Ms Williams at interview, as supported by her CV, and her poor performance in the role at Ramsay Healthcare. Her apparent inability to achieve the necessary degree of competency in all the areas found proved in Particular 2 above, suggested that she had misrepresented her experience when applying for the role and that it was wrong to have included the references to x-rays in the “to date” section of her CV. Furthermore, her inability to answer Mr Pinto’s basic questions about CT scans, suggested the Registrant had also misrepresented her experience of carrying out CT scans.

131. Accordingly, the Panel was satisfied, on the balance of probabilities, that the Registrant had misrepresented her level of experience when applying for a General Radiography role at Ramsay healthcare. The Panel therefore found Particular 4(b) proved, insofar as it related to the Registrant’s level of experience, but not her training or qualifications.

Particular 5

5. Your conduct at Particular 4(a) and/or (b) above was dishonest.

132. Since the Panel had found Particular 4(a) not proved, it had only to consider whether the conduct as proved at 4(b) was dishonest.

133. Without the Registrant in attendance, and in the absence of any written representations from her on this allegation, the Panel had to examine the surrounding circumstances of the case to try to ascertain, subjectively, her state of knowledge or belief as to the facts (in accordance with the test on dishonesty taken from the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67). The Panel also referred to the HCPTS Practice Note on ‘Making decisions on a registrant’s state of mind’.

134. The Panel took into account the fact that the Registrant, as far as it was aware, had never worked in the UK before and may, therefore, not have understood the expectations in the UK, which may be very different from those where she was working in a remote part of India. From comments she made to Mr Pinto, such as “x-rays are easy”, it maybe she was over-confident in her own ability. She was certainly over-keen, according to Mr Pinto, turning up early to work and getting equipment ready when she should not in fact have been doing so unsupervised.

135. The Panel could not rule out the possibility that she had the necessary experience to have practised in India at some stage, probably a number of years ago, and had somewhat naïvely believed that was sufficient for her to be able to work in the General Radiography role at Ramsay Healthcare. Although she never achieved the necessary level of competency in her three months at the Hospital, there was some evidence of her having made improvements and Ms Ireton was certainly more positive than Mr Pinto about her progress.

136. The Panel also took into account the amount at stake for the Registrant. If she had deliberately set out to deceive the Hospital this was a high-risk strategy. She was moving job and country and relocating in the UK. Her visa requirements meant she had to maintain her job at Ramsay Healthcare as they were her sponsor. If she lost or left the job, as indeed happened, she was then liable for the costs of having been re-located to the UK, which were considerable, and would have to leave the UK within 60 days. This added further support to the possibility that she had been naïve rather than having deliberately set out to mislead.

137. In such circumstances, the Panel did not believe that an ordinary, decent member of the public would conclude that what the Registrant had done was dishonest.

138. The Panel therefore found Particular 5 not proved.

Decision on Grounds

139. The Panel next considered whether the facts found proved, as set out in Particulars 1 to 3, amounted to misconduct and, if not, whether they amounted to a lack of competence. The Panel also considered whether the facts found proved, as set out in Particular 4(b), amounted to misconduct. In so doing, it took into account all the relevant evidence and the submissions made by Ms Bass. The Panel accepted the advice of the Legal Assessor and referred to the HCPTS Practice Note entitled ‘Fitness to Practice Impairment’.

140. The Panel found there to be a breach of the 2016 Standards of Conduct, Performance and Ethics applicable to all HCPC registrants, namely:

2 Communicate appropriately and effectively.

2.3 You must give service users and carers the information they want or need, in a way they can understand.

3 Work within the limits of your knowledge and skills.
Keep within your scope of practice

3.1 You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.
Maintain and develop your knowledge and skills

3.3 You must keep your knowledge and skills up to date and relevant to your scope of practice through continuing professional development.

3.4 You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.

6 Manage risk.

Identify and minimise risk

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

141. The Panel found there to be a breach of the following Standards of Proficiency applicable to Radiographers (effective from May 2013):

1 be able to practise safely and effectively within their scope of practice;

1.1 know the limits of their practice and when to seek advice or refer to another professional;

2.5 know about current legislation applicable to the work of their profession;

2.9 understand the legislative, policy, ethical and research frameworks that underpin, inform and influence the practice of radiography;

8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others;

8.2 be able to communicate in English to the standard equivalent to level 7 of the International English Language Testing System, with no element below 6.5;

13.5 understand the structure and function of the human body, together with knowledge of health, disease, disorder and dysfunction relevant to their profession;

14.4 be able to use independent methods to establish and confirm service user identity prior to undertaking diagnostic imaging procedures or delivering radiotherapy treatments;

14.13 be able to change their practice as needed to take account of new developments, technologies and changing contexts;

14.18 be able to operate radiotherapy or diagnostic imaging equipment safely and accurately;

14.24 be able to position and immobilise service users correctly for safe and accurate diagnostic imaging examinations or radiotherapy treatments.

142. The Panel first considered whether the conduct found proved within Particulars 1 to 3 amounted to misconduct.

143. Particulars 1 and 2 are interlinked. Particular 1 relates to the Registrant’s inability to answer basic questions about radiography process and procedure and to successfully complete scenarios set for her by her manager, Mr Pinto. Particular 2 relates to the Registrant’s inability to demonstrate the required level of competency in essentially all of the areas of radiography required of her, in her role at the Hospital.

144. There was a clear pattern of repeated failures by the Registrant, even after she was shown what to do and provided with a significant amount of support by Mr Pinto, Ms Ireton and Mr Ahorro. There was some progress noted in both the Registrant’s clinical skills and language, but nowhere near that necessary to be able to qualify as competent in her role. However, the evidence suggested she was eager, cheerful and friendly and it was clear to the Panel that these were matters of competency, rather than misconduct. In the Panel’s view the failings were not so serious that they could be said to amount to misconduct. On the other hand, the Panel was in no doubt that the Registrant’s conduct implied a standard of professional performance that was unacceptably low and had been demonstrated by reference to a fair sample of the Registrant’s work. The Registrant had demonstrated a lack of knowledge, skill and judgment of such a nature that she was not fit to practise safely and effectively as a Radiographer.

145. Accordingly, the Panel decided that the conduct as found proved in Particulars 1 and 2 amounted to a lack of competence.

146. With regards to Particular 3, the Panel acknowledged that this was a mandatory course that had to be passed by the Registrant. However, it also took into account the evidence of Ms Ireton that it was a very difficult course and she herself had failed it the first time she took it. Furthermore, the last time she took it Ms Ireton said they “all failed it”. The evidence was clear that if a participant failed the course, it was simply a case of getting booked on to the next one and taking it again. The Registrant had not refused to re-sit the course, but rather had said she felt uncomfortable doing the course and did not want to do it again. However, she was told by Mr Pinto that it was mandatory, and she had to do it. This is what would have happened had the Registrant not resigned, as she was booked on another course later in April 2023.

147. In such circumstances, the Panel did not consider that failing this course first time around fell far below the standard expected of a registrant and did not amount to misconduct. For the same reason, the Panel did not consider it amounted to a lack of competence either. On the evidence it was clear that it was not uncommon for registrants to fail this course, particularly the first time of taking it. Mr Pinto and Ms Ireton acknowledged that it was a tough course and indeed on one occasion Ms Ireton stated that all those taking it had failed. In such circumstances it would be wrong, in the Panel’s view, to single out the Registrant and characterise such a failure as demonstrating a lack of competence.

148. With reference to Particular 4(b), misrepresenting the content of one’s CV is a serious matter. It did the Registrant no favours since it meant she was able to secure a job that she almost certainly should not have done. However, the Panel had not found that the Registrant had misrepresented her training or qualifications, and it was clear that at some stage she had qualified as a Radiographer and had been trained in the taking of x-rays. She had, though, misrepresented the level of her experience. That said, the Panel had found that she did not deliberately set out to mislead Ramsay Healthcare when applying for the role of Radiographer at the Hospital, but rather had possibly been naïve about what the role would entail and thus how important it was that her x-ray skills were up-to-date and, if they were not (which was patently the case), it was wrong of her to have included her x-ray experience in the part of her CV that said ‘to date’.

149. In these circumstances, the Panel did not consider the Registrant’s conduct fell far below the standard expected and was not sufficiently serious to amount to misconduct. The Registrant should be in no doubt, however, about the importance of ensuring one’s CV is up-to-date and conveys accurate information.

150. In summary, the Panel did not find misconduct in relation to any of the proven facts and it did not find a lack of competence with regards to the failure to complete the ILS course. Accordingly, the statutory ground was not made out in respect of Particulars 3 and 4(b).

151. The Panel did, however, find a lack of competence in respect of Particulars 1 and 2.

Decision on Impairment

152. Having found the statutory ground of lack of competence in respect of Particulars 1 and 2 to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise is impaired as a result of that lack of competence. In doing so, it took into account the submissions made by Ms Bass, the HCPTS Practice Note, ‘Fitness to Practise Impairment; and accepted the advice of the Legal Assessor.

153. The Panel considered the Registrant’s conduct to be eminently remediable, but only if she chose to effectively engage with this process. Having not done so, there was no evidence before the Panel of insight, remorse or remediation. In such circumstances there was inevitably a high risk of the behaviour being repeated.

154. The Panel considered the case of The Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), which referred to the approach in determining the issues of impairment as follows:

(a) has the registrant in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
(b) Has the registrant in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
(c) Has the registrant in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

155. The Panel considered all these limbs of the Grant test to be engaged in this case. By not being able to demonstrate her competency as a Radiographer, patients were put at unwarranted risk of harm, that was only avoided because she was being constantly supervised. Radiographers are permitted to expose patients to radiation. As Mr Pinto highlighted, radiation can cause cancer, so it's use has to be justified and clinically relevant. Exposing a patient to radiation on a non-justified study amounts to a radiation breach and can cause serious harm. In the absence of any evidence of insight, remorse or remediation that risk of harm continues today. Behaving in this way brings the profession into disrepute and, with the risk of repetition, is likely to do so in the future. Furthermore, putting patents at risk of harm is not putting patient welfare first and represents a breach of this fundamental tenet of the profession, which is likely to be repeated.

156. Having found there to be a risk of harm to patients and a risk that the behaviour would be repeated, the Panel concluded that the Registrant’s current fitness to practise is impaired on public protection grounds.

157. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator and in order to uphold proper professional standards. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made, given the wide-ranging nature and seriousness of the Registrant’s lack of competence.

158. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection and public interest grounds and that the allegation of impairment is well founded.

Decision on Sanction

159. In reaching its decision on sanction, the Panel took into account the submissions made by Ms Bass, together with all the relevant evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the HCPC, in its Sanctions Policy (“SP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.

160. The Panel considered the aggravating factors in this case to be:

• concerns continued for some time with little improvement, despite additional support;
• an identifiable risk of harm towards patients;
• a lack of insight by the Registrant into her poor level of knowledge;
• no evidence of remorse;
• no evidence of remediation.

161. In the absence of the Registrant, or any written representations from the Registrant, the Panel had no evidence before it of any mitigating factors.

162. In light of the widespread nature and seriousness of the Registrant’s failings, the Panel did not consider this was an appropriate case to take no further action or consider mediation, since neither would protect the public from the risks identified by the Panel or reflect the seriousness of the lack of competence. The same was true of a Caution Order, which would not restrict the Registrant’s practice and therefore would offer no protection for the public.

163. The Panel next considered whether to place conditions of practice on the Registrant’s registration. The SP states that before imposing conditions a Panel should be satisfied that:

• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.

164. The Panel could not be satisfied of all of the above and also noted from the SP that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases:

• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings.

165. This case is characterised by the Registrant’s persistent overall failings, notwithstanding the support put in place at the Hospital to assist her. Furthermore, although she had engaged with the process to some extent, her attendance at this hearing was sufficiently brief that the Panel never in fact got to meet her. Whilst it is possible that her failings could be remedied, that can only happen when she chooses to fully engage with this process, shows she has insight and demonstrates steps taken to remediate her lack of competence. Without the Registrant present, it cannot be known if she would be committed to resolving the issues any conditions would seek to address or could be trusted to make a determined effort to do so.

166. Accordingly, although it might be thought that conditions of practice might have been the most appropriate sanction in this case, without the Registrant here the Panel had to move on to consider whether to make a Suspension Order. The SP states that, “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.” The Panel reminded itself of its earlier findings of an absence of insight, remorse or remediation and the real risk of repetition. Furthermore, there is at present a lack of evidence to suggest the Registrant is likely to be able to resolve or remedy her failings.

167. The Panel considered a Suspension Order would provide protection to the public for its duration and would be sufficient to maintain public confidence in the profession and the regulatory process. A Suspension Order would also provide the Registrant with an opportunity to re-engage with her Regulator, to demonstrate that she has insight and that steps can be taken to facilitate her return to safe practice as a Radiographer in the UK.

168. Because this is a lack of competence case, the sanction of strike-off is not available to the Panel at this time and in any event would be disproportionate, given the Panel’s findings.

169. The Panel thus decided to impose a Suspension Order for a period of six months. This would mark the seriousness of the failings, whilst allowing the Registrant a period of time to reflect and hopefully re-engage with the process. The Panel took into account the possible impact this would have upon the Registrant but concluded that the need to protect the public outweighed her interests and that no other sanction would adequately protect the public or the public interest, until she chose to fully engage with her Regulator.

170. This Order will be reviewed shortly before its expiry. A reviewing panel will be assisted by:

• the Registrant’s attendance at the review hearing;
• a reflective piece, explaining the Registrant’s behaviour and demonstrating the Registrant’s awareness of the impact of her lack of competence on patients, colleagues, the profession, the HCPC as Regulator and the general public;
• evidence of having passed the IELTS test (or equivalent) in accordance with the HCPC Registration requirements;
• any evidence of Continuing Professional Development and in particular training to update knowledge in x-ray processes, positioning and UK Regulations;
• evidence of training to reflect knowledge of anatomy;
• references and testimonials.

Order: That the Registrar is directed to suspend the registration of Smitha Johny for a period of six months from the date this order comes into effect.

Interim Order

Application

The Panel heard submissions from Ms Bass on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress.

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

Decision

The Panel noted the contents of the Notice of Hearing sent to the Registrant on 16 January 2025, where it is stated: “Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied this meant the Registrant was on notice that this was a possible outcome at this hearing.
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, in accordance with its reasoning above. The Order is in the same terms as the Substantive Order and is necessary in light of the risks to the public identified. The Panel considered 18 months was appropriate and proportionate taking into account the likely length of any appeal in the event that one is made.

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 Smitha Johny

Date	Panel	Hearing type	Outcomes / Status
03/03/2025	Conduct and Competence Committee	Final Hearing	Suspended
14/11/2024	Investigating Committee	Interim Order Review	Interim Suspension
16/08/2024	Investigating Committee	Interim Order Review	Interim Suspension
08/05/2024	Investigating Committee	Interim Order Review	Interim Suspension
18/03/2024	Investigating Committee	Interim Order Review	Adjourned
07/09/2023	Investigating Committee	Interim Order Application	Interim Suspension
02/08/2023	Investigating Committee	Interim Order Application	Adjourned
28/06/2023	Investigating Committee	Interim Order Application	Adjourned