Nicholas Bond

: Radiographer

: RA28737

: Final Hearing

Date and Time of hearing:10:00 03/07/2017 End: 17:00 07/07/2017

: Manchester Conference Centre, Weston Building, Sackville Street, Manchester, Lancashire, M1 3BB

: Conduct and Competence Committee
: Caution

Allegation

(as amended at the Substantive hearing):

During the course of your employment as a Radiographer at University Hospital of South Manchester:

1. On 05 July 2013 you:

(a) Did not satisfactorily screen Patient A prior to undertaking an MR (Magnetic Resonance) examination in that you did not re-check Patient A’s MR safety status with Patient A.

(b) Did not complete adequate records in that you did not sign the MR safety screen form.

(c) Breached MR Safety by allowing Patient A to enter the MR Scanner room with a metal catheter stand.

(d) Breached MR Safety by removing the metal catheter stand from the scanner without removing Patient A to a place of safety.

(e) Informed Patient A that the catheter had been pulled out due to someone standing on it.

(f) Did not ensure patient care in that you did not inform ward staff caring for Patient A of the circumstances of Patient A’s catheter coming out.

(g) Did not report that Patient A’s catheter came out to:

(i) Your line manager

(ii) Through the Hospital Incident Reporting System (HIRS).

2. By reason of your actions at paragraph 1(a) – 1(c) Patient A’s catheter was pulled out thereby:

(a) causing him pain; and/or

(b) exposing him to risk.

3. The matter set out in paragraph 1(e) is dishonest.

4. The matters set out in paragraphs 1 and 2 constitute misconduct and/or lack of competence.

5. The matter set out in paragraph 3 constitutes misconduct.

6. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Amendment of Allegation

1. Ms Turner, on behalf of the HCPC, applied to amend the Allegation.  She submitted that the amendments sought were very minor and involved correcting typographical errors which do not change the substance of the Allegation.

2. Mr Bond did not object to the amendments.

3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided no injustice would be caused by the amendment. The Panel considered that the amendments sought were minor and did not change the substance of the Allegation. They consisted of deleting a single character from two words. The amendments would not cause injustice. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.

Background

4. The Registrant is a Radiographer. At the time of the incident, University Hospital South Manchester (UHSM) employed the Registrant as a full time Band 6 Radiographer in the Magnetic Resonance (MR) department.

5. On 5 July 2013, Patient A attended the Radiology Department to undergo a MR examination. Patient A had a catheter in situ with a drainage bag. The drainage bag was attached to a portable metal stand.

6. The magnetic attraction of the MR scanner pulled the portable catheter stand, which in turn pulled out Patient A’s catheter.

7. The Registrant pulled the catheter stand off the MR scanner and returned Patient A to the ward without informing the ward staff of the full details of the incident.

8. The Registrant also failed to report the incident on the Hospital Incident Reporting System (HIRS).

Decision on Facts

9. At the outset, in response to the reading of the allegation, the Registrant admitted all the factual particulars except for Particular 3.

10. The Panel considered all the evidence in this case together with the submissions made by Ms Turner on behalf of the HCPC, and by the Registrant.

11. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

12. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

• Witness 1, Consultant Gastrointestinal (GI) Radiographer at UHSM. At the time of the incident she provided management support to the Registrant’s department.

• Witness 2, Radiographer at UHSM and who was working together with the Registrant in the department on 05 July 2013.

• Witness 3, Radiology Directorate Manager and Professional Lead for Radiography at UHSM. She conducted the UHSM investigation into these matters.

13. The Panel also heard evidence from the Registrant.

14. The Panel found the witnesses for the HCPC to be open and honest. The Panel also found the Registrant to open and honest. They all gave evidence to the best of their abilities and acknowledged that they could not recall the minutiae of the course of events due to the passage of time.

15. The Panel received documentary evidence from the HCPC which included:

• The notes of the investigation carried out by UHSM,

• Statements from four witnesses who had given evidence to the UHSM investigation.

• Notes of the interviews of members of staff who were connected to these matters, some of whom gave oral evidence to the UHSM.

16. The Panel also received documentary evidence from the Registrant which included:

a) Reference from the Compliance Manager for a radiographer agency, who was familiar with these proceedings and also with the work that the Registrant has carried out between 31 January 2014 and 16 June 2017.

b) Certificates of competency and completion of induction training from three hospitals where the Registrant has worked since 2014.

c) Training certificates for various relevant training undertaken by the Registrant between 8 July 2014 and 31 March 2017.

d) Evidence of CPD undertaken by the Registrant.

17. The Panel considered each factual particular of the Allegation in turn.

Particular 1(a)
On 05 July 2013 you:
(a) Did not satisfactorily screen Patient A prior to undertaking an MR (Magnetic Resonance) examination in that you did not re-check Patient A’s MR safety status with Patient A.

18. The Panel determined that this Particular is proved. It is clear that the Registrant did not satisfactorily screen Patient A in the circumstances because the Registrant, even on his own account, did not fully appreciate that Patient A was carrying a ferrous catheter stand into the MR room.

Particular 1(b)
On 05 July 2013 you:
(b)  Did not complete adequate records in that you did not sign the MR safety screen form.

19. This Particular is proved. The form was produced to the Panel and the Registrant had not signed the MR safety screen form. The Panel noted that the Registrant stated that he did not sign it because he did not carry out the safety screening process. However, the evidence before the Panel demonstrated that the purpose of a qualified Radiographer being required to sign the form, was not only to certify that they had personally carried out the screening, but also to certify that, where they had not personally carried out the screening process, they had checked that the process had been carried out properly by the MR assistant.  The Registrant told the Panel that he had checked to a degree the screening carried out by CG. He had not completed the section of the form reserved for the Radiographer. As such, he failed to complete adequate records by not signing the form or filling in parts of it.

Particular 1(c)
On 05 July 2013 you:
(c)  Breached MR Safety by allowing Patient A to enter the MR Scanner room with a metal catheter stand.

20. The Panel determined that this Particular is proved. The Panel had before it the Magnetic Resonance Imaging rules in force at the time at UHSM. It clearly sets out the hazards of allowing ferromagnetic items to enter the magnetic field within MR Scanner room.

Particular 1(d)
On 05 July 2013 you:
(d)  Breached MR Safety by removing the metal catheter stand from the scanner without removing Patient A to a place of safety.

21. The Panel determined that this matter is not proved. The only safety risk identified comes from the evidence of Witness 3 who told that Panel that “it was likely that the magnetic field would pull the object back and it could have caused damaged to property, to Nicholas Bond or to the Patient in the process.”

22. The Registrant told the Panel that once he realised that Patient A had been carrying a catheter stand, and that stand was now stuck to the scanner, he moved Patient A to the end of the scanner’s couch (patient table) away from the scanner.  The Registrant then sat with Patient A and spoke to him as Patient A was in discomfort that lasted several minutes. Then the Registrant removed the catheter stand from the scanner. The Registrant’s evidence is not disputed.

23. The Registrant drew a diagram of the layout of the room and also indicated the relative position of Patient A where he had placed him. The Patient was in a position of safety in that he was behind the Registrant when he removed the stand from the scanner. At no time was Patient A placed between the scanner and the catheter stand whilst the Registrant removed it from the scanner. Hence Patient A was not at risk.

Particular 1(e)
On 05 July 2013 you:
(e)  Informed Patient A that the catheter had been pulled out due to someone standing on it.

24. This Particular is proved. The documentary evidence indicated that Patient A told a nurse on his ward that the Registrant had said that the catheter had been pulled out due to someone standing on it. The Registrant in his evidence also confirmed that he had stated that to Patient A.

Particular 1(f)
On 05 July 2013 you:
(f)  Did not ensure Patient care in that you did not inform ward staff caring for Patient A of the circumstances of Patient A’s catheter coming out.

25. This Particular is proved. There is no evidence that the Registrant, at any time, informed the ward staff caring for Patient A of the full circumstances in question. The Registrant accepts that he did not inform them of the circumstances.

Particular 1(g)
On 05 July 2013 you:
(g)  Did not report that Patient A’s catheter came out to:
(i) Your line manager
(ii) Through the HIRS System.

26. This Particular is proved. Witness 1 (the Registrant’s line manager) told the Panel that the Registrant did not inform her that Patient A’s catheter had come out on that day. The documentary evidence demonstrated that the Registrant did not complete a HIRS form reporting the incident. The Registrant also admitted this Particular.

Particular 2
2. By reason of your actions at paragraph 1(a) – 1(c) Patient A’s catheter was pulled out thereby:
(b) causing him pain; and/or
(c) exposing him to risk.

27. The Panel finds this Particular proved. The Registrant’s failure as set out in Particulars 1(a), 1(b) and 1(c) directly contributed to Patient A’s catheter being pulled out. It is clear from the evidence that Patient A shouted out in pain when the catheter was forcibly pulled out. It is also likely that this directly contributed to the Patient A suffering blood in his urine (haematuria) which increases the risk of infection. This evidence was contained within the documentary bundle.

Particular 3
3. The matter set out in paragraph 1(e) is dishonest.

28. The Panel determined that this Particular is not proved. The Registrant denies particular 3.

29. This Particular depends on the circumstances of Particular 1(e). The Registrant has accepted that he told Patient A that the catheter had been pulled out due to someone standing on it. He told the Panel that things happen very quickly and as soon as he heard Patient A shouted out in pain, his immediate reaction was to wonder whether he or the Patient had stepped on the catheter tube which caused the catheter to come out. He told the Panel that at that moment, he truly believed that was what had happened.

30. The Panel was advised that dishonesty was a matter of specific intent. The substance of the dishonesty alleged is the provision of false information to a Patient in the knowledge that information was false. The Panel was advised that dishonesty cannot be committed recklessly nor carelessly.

31. The Registrant told the Panel that he knew the catheter stand used by Patient A was ferrous and that he had seen it. He told the Panel that for reasons he could not explain, he did not register that Patient A was carrying a catheter stand into the MR scanning room.

32. The oral evidence of the HCPC witnesses was that the unit was understaffed and, on that day, over booked. Witness 1 told the Panel that she thought the incident happened because the Registrant, Witness 1 and the MR assistant were under pressure to get though the patients and complete the list. Witness 3 told the Panel that even without accounting for complex patients and/or unexpected circumstances, the bookings for that day had exceeded the available time.

33. Witness 1 told the Panel that the Registrant allowing such an item to be brought into the Scanner was out of character. Witness 3 told the Panel that she believed, in the circumstances, the Registrant allowing the stand to be brought into the scanner was a “simple lapse of concentration.”

34. The Panel accepted that the Registrant, for whatever reason, failed to appreciate that Patient A was carrying a catheter stand that was ferrous. Therefore, he would not have been expecting the catheter to be pulled out because of it being attracted to the scanner. The Panel found that the Registrant’s explanation for initially believing that someone had stood on the catheter to be reasonable and probable.

35. On the balance of probabilities, reasonable and honest members of the Registrant’s profession and/or the public would not consider the statement of the Registrant to Patient A at that moment to be dishonest.

Decision on Grounds

36. The Panel then went on to consider whether the factual particulars found proved amounted to misconduct and/or lack of competence.  The Panel heard submissions from Ms Turner on behalf of the HCPC.

37. Ms Turner submitted that the Registrant actions breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics: 1, 7, 10 and 13.

38. The Panel accepted the advice of the Legal Assessor.

39. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”. It is not just any professional misconduct which will qualify.

40. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:

a) The Registrant was an experienced Band 6 Radiographer with 31 years experience.

b) There were no issues raised regarding the Registrant’s practice prior to these matters. All the witnesses told the Panel that there were no issues with the Registrant’s practice and that he was a competent Radiographer.

c) These matters occurred on one day and therefore the Panel did not have a representative sample of the Registrant’s work.

41. The Panel determined that in the light of the above factors, the competence of the Registrant was not an issue in this case and this was not a case involving lack of competence.

42. The Panel considered each of the factual particulars found proved in turn.

43. The Panel found Particulars 1(a), 1(b) and 1(c) amounted to misconduct for the purpose of these proceedings. They related to the fundamental checks to ensure Patient safety and notwithstanding the momentary lapse of concentration on the part of the Registrant, they each met the ‘seriousness’ threshold for misconduct in these proceedings. Furthermore the effect of the Registrant’s failure is set out in Particular 2, in that Patient A was caused pain and was exposed to risk.

44. The Panel did not find Particular 1(e) amounted to misconduct. The Registrant told the Panel what he honestly believed that time. The fact that he was wrong does not make it misconduct.

45. The Panel found Particular 1(f) amounted to Misconduct for the purpose of these proceedings. This related to the passing on of relevant information that would enable other professional colleagues of the Registrant to care for Patient A. The Registrant was the person with first-hand knowledge that the catheter was pulled out by the stand being attracted to the scanner. The Panel took into consideration that any forcible removal of a catheter was a traumatic event, whether by standing on the catheter line or by the incident in question. However, full and accurate information must always be passed on as soon as possible, or when there has been a realisation that the initial information was incorrect. In the circumstances, Particular 1(f) met the ‘seriousness’ threshold for misconduct in these proceedings and was serious misconduct.

46. The Panel did not find Particular 1(g)(i) to amount to misconduct. The Registrant should have told his line manager of the incident but his failure did not meet the ‘seriousness’ threshold for misconduct in these proceedings.

47. The Panel found Particular 1(g)(ii) did amount to serious misconduct. The HIRS system was the system used by UHSM to report serious incident and to notify the relevant parties. The Registrant’s failure to report the incident as soon as practicable was serious misconduct. The fact that there were two other HIRS reports filed by other healthcare personnel did not absolve him from his responsibility for filling in the HIRS report as the only member of staff with first hand knowledge of the incident.

48. The Panel found Particular 2 was the aggravating feature of the Registrant’s actions as set out in 1(a), 1(b) and 1(c) which contributed to the seriousness of those actions. Of its own, Particular 2 is not conduct and cannot amount to misconduct.

49. The Panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics:

1.  You must act in the best interests of service users.

7  You must communicate properly and effectively with service users and other practitioners.

10. You must keep accurate records.

50. Accordingly the Panel determined that, in the circumstances, Particulars 1(a), 1(b), 1(c), 1(f), and 1(g)(ii) amounted to serious misconduct.

Decision on Impairment 

51. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. The Panel heard the submissions of Ms Turner and Mr Bond. It also had regard to the HCPTS’s Practice Note entitled Finding that Fitness to Practice is “Impaired”.

52. The Panel accepted the advice of the Legal Assessor, who drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) and reminded the Panel that there were both personal and public components when considering whether the Registrant’s fitness to practise is currently impaired.

53. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Radiography profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?”

54. In coming to its decision the Panel determined what were the aggravating and mitigating factors of the case, and took them into account. The Panel determined the following to be the aggravating factors:

(a) The incident involved a basic and significant error resulting from a momentary lapse of concentration on the part of the Registrant. However, Mr Bond is unable to explain how it was that he suffered a momentary lapse of concentration. It is a basic requirement that no ferrous material should be brought into an MR scanning room.

(b) Harm was caused to Patient A.

(c) The fact that the Registrant did not subsequently complete the appropriate reporting forms compounded the incident.

(d) There was delay in accurate information being passed on to the ward staff responsible for the care of Patient A and to managers.

55. The Panel determined the following to be the mitigating factors:

(a) This was a single incident in an otherwise unblemished career of 31 years. The HCPC witnesses described this incident as the result of a momentary lapse of concentration and as being out of character.

(b) The Registrant is of good character, and all the witnesses for the HCPC stated that he was a good and competent Radiographer.

(c) At the time when the incident occurred, the MR unit was understaffed and the list was over-booked.

(d) At the time when the incident occurred, because of the unit was under-staffed the Registrant was working on his own, with the MR assistant having gone to collect the next Patient. This was something that Witness 3 stated was not unusual and did not cause her concern. The Panel considered that if the unit had not been under-staffed and/or over-booked, it was probable that the MR assistant would have been present to assist the Registrant and Patient A, and she would have realised that Patient A was carrying a catheter stand that was ferrous before he entered the MR scanning room.

(e) The Registrant made full admissions to the Panel as to the facts and that his actions amounted to misconduct. He has reflected on his actions and has expressed regret and remorse which the Panel believed to be sincere.

(f) The Registrant gave oral evidence, and his evidence was tested in cross-examination by Ms Turner and the Panel. The Panel was satisfied that the Registrant has reflected on the incident and has demonstrated full insight into his failures.

(g) The Registrant has been working unrestricted as a Radiographer without any further issues since he left UHSM. He has provided a testimony from the agency for which he provides radiography services. The testimony stated that the Registrant has worked for various organisations, for which he has provided repeated services. This is an indication that there were no on-going issues with the Registrant practice.

56. The Panel was satisfied on the personal component that the Registrant is not liable in future to put the public at risk of harm, nor is he liable in future to bring the profession into disrepute, nor is he liable to breach a fundamental tenet of the profession.

57. The Panel also considered whether the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the professions would be undermined if a finding of impairment was not made in these circumstances.  The Panel considered that this question was not a hypothetical question devoid of any reference to reality and in determining this question, the Panel asked itself whether ‘a right minded member of the public, in hearing all of the circumstances and evidence of the case, would consider that this case would require a finding of current impairment in order to maintain his confidence in the profession and to declare and uphold proper standards of conduct.’

58. The Panel determined that such a member of public would consider that a finding of impairment was required in this case in order to maintain public confidence in the profession, to declare and uphold proper standards of conduct and to provide confidence in the regulatory process. This is because the Registrant’s mistake that resulted in harm to a patient involved a crucial, basic, and important element of Radiography.

59. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on public interest considerations alone.

Decision on Sanction

Submissions

60. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It has heard the submissions of both Ms Turner, on behalf of the Council, and the Registrant.

61. Ms Turner  reminded the Panel of the approach that it should take and that it should have regard to the Indicative Sanctions Policy.

Legal Advice

62. The Panel accepted the advice of the Legal Assessor. He reminded the Panel that it has found that the Registrant’s fitness to practise was impaired on the public interest alone.

63. The Legal Assessor advised the Panel of its powers under Articles 29(4) and 29(5) of the 2001 Order.

64. The Legal Assessor also drew the case of Wallace v Sec of State for Education [2017] EWHC 109 (Admin) to the attention of the Panel. He stressed the differences in the proceedings and advised that the case was an indication that the publication of a finding of misconduct was a factor that the Panel should take into consideration when considering whether to impose a sanction.

65. The Legal Assessor further advised that if the Panel determined that a sanction should be imposed, the sanction imposed must be the least restrictive that is sufficient to protect the public interest.

Panel’s consideration and decision

66. The Panel has had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. It reminded itself of the aggravating and mitigating features of this case.

67. The Panel first considered taking no action. The Panel noted the decision in Wallace v Sec of State for Education [2017] EWHC 109 (Admin) but determined that a publication of the Panel’s findings of misconduct and of current impairment of fitness to practise were not sufficient to protect the public interest in this case. This was because harm had been caused to a patient (albeit not serious harm), in the circumstances the public would expect a further sanction.

68. The Panel then considered whether to make a caution order. The Panel took into consideration paragraph 28 of the HCPTS’s Indicative Sanctions Policy which states:

“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate.”

69. The Panel determined that the facts of this case are such that a Caution Order was the most appropriate and proportionate sanction that would suffice to protect the Public Interest. The Panel has determined that the Registrant does not pose a risk to the public.  In these circumstances, the Panel concluded that a caution order would be sufficient to mark standards and to maintain confidence in the profession and in the regulatory process. The Panel determined that two years was the minimum period sufficient to satisfy the Public Interest. Due to the mitigating features of this case, this was not a case that required a Caution Order for a longer period.

70. The Panel did not consider a Conditions of Practice Order to be appropriate because there were no shortcomings in the Registrant’s practice requiring remedial action; and a Suspension Order would clearly be disproportionate in this case.

Order

That the Registrar is directed to annotate the register entry of Mr Nicholas Bond with a caution which is to remain on the register for a period of two years from the date this order comes into effect.

Notes

The order imposed today will apply from 3 August 2017.

This order will expire on 3 August 2019, without a review.

Hearing history

History of Hearings for Nicholas Bond

Date Panel Hearing type Outcomes / Status
03/07/2017 Conduct and Competence Committee Final Hearing Caution