Ms Nicola Davison

: Radiographer

: RA35908

: Final Hearing

Date and Time of hearing:10:00 14/09/2017 End: 17:00 15/09/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Conditions of Practice

Allegation

Original:


Whilst registered as a Radiographer and employed by South Tees Hospitals NHS Foundation Trust, you:


1. On 26 October 2015:


a. x-rayed Person A foot in the neuro-radiology department using a mobile xray unit without a formal medical referral for so doing.


2. On 11 November 2015, performed a CT scan on Patient B;


a. without a formal referral,


b. which resulted in the CT dataset being associated with a previous chest x-ray examination which in turn led colleagues to believe that the original CT scan had not been performed; and/or


c. which resulted in Patient B having a second CT scan and receiving a dose of ionising radiation above the level considered ‘much greater than intended’.


3. The matters described at particular 1 constitutes misconduct.


4. The matters described at particular 2 constitute misconduct and/or lack of competence.


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


As amended at the Final Hearing:

Whilst registered as a Radiographer and employed by South Tees Hospitals NHS Foundation Trust, you:


1. On or around 26 October 2015 x-rayed Person A’s foot in the neuro-radiology department using a mobile x-ray unit without formal medical referral for so doing. 


2. On 11 November 2015, performed a CT scan on Patient B;


a. without a formal referral.

3. The matters described at particulars 1 and 2 constitute misconduct.


4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters

Service

1. The Panel was informed that the Notice of Hearing was sent to the Registrant’s address, as it appears on the register, on 6 June 2017.

2. The Panel was satisfied that good service had been effected in accordance with Rules 3 and 5 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”)  and it was satisfied that all reasonable steps had been taken by the HCPC to inform the Registrant of today’s proceedings.

Proceeding in absence of the Registrant

3. Ms Vignoles, on behalf of the HCPC, applied for the hearing to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. She referred the Panel to the correspondence from the Registrant prior to the hearing date.  In an email dated 10 May 2017 and a letter dated 7 June 2017, the Registrant stated she would not attend the hearing, citing financial hardship.  The HCPC subsequently wrote to her on 19 July 2017 explaining the financial support which could be available and options for attending the hearing by teleconference, and explaining that she could apply for a postponement of the hearing.


4. The Registrant did not pursue any of these options. However, it was apparent from the correspondence that the Registrant was aware of the hearing dates. Ms Vignoles submitted that the Registrant had waived her right to attend. She submitted that the matter should proceed in the public interest, in the interests of the Registrant herself and expeditiously given the time from the date of the allegation and the potential impact on witness recall. 


5. The Panel heard and accepted the advice of the Legal Assessor that the decision to proceed in the absence of the Registrant is a decision to be taken with the utmost care and caution with regard for the fairness of the hearing at the forefront of its mind.  The Panel had regard to the relevant HCPTS Practice Note and the criteria set out in R v Jones [2002] UKHL 5 and the recent guidance in General Medical Council v Adeogba / Visvardis [2016] EWCA Civ 162.


6. The Panel noted that the Registrant’s recent communications to the HCPTS confirmed she was aware of the hearing dates.  She had not requested an adjournment.  The Panel concluded that the Registrant had voluntarily absented herself from the proceedings and had waived her right to be present or represented. To grant an adjournment would serve no purpose and there was no indication that she would attend on a future date.


7. Given the nature of the concerns raised, the Panel concluded that the public interest required it to consider the case expeditiously and having considered the Registrant’s correspondence, it concluded it may be in the Registrant’s own interests for the matter to be resolved.  The Panel decided it was therefore fair and appropriate to proceed in the absence of the Registrant.


Application to amend the allegation


8. Ms Vignoles on behalf of the HCPC applied to amend the allegations. 


9. The application was for the deletion of two particulars, 2b and 2c, and the deletion of an allegation of lack of competence, as well as some minor typographical amendments.


10. The Registrant had been notified of the proposed amendments in January 2017. No objections had been received on behalf of the Registrant.


11. The Panel received and accepted the advice of the Legal Assessor. It was satisfied that the amendments were necessary and desirable as they provided greater clarity.


12. The amendments represented a narrowing of the case against the Registrant by the removal of two sub-particulars and an allegation of lack of competence.  The Registrant had not raised any objection and the Panel was satisfied the changes were not unfair or prejudicial to the Registrant.


13. As the amendments overall provided greater clarity in the HCPC’s case the Panel was satisfied that it was appropriate that the amendments should be made.


Application to proceed in private


14. Ms Vignoles made an application for parts of the evidence to be heard in private session, as it would be necessary to refer to the Registrants’ health. 


15. The Panel determined, with the agreement of the parties and having consulted the Legal Assessor, that where it was necessary during the hearing to discuss any evidence relating to health or sensitive personal issues, the Panel would go into private session.


Background


16. The Registrant was employed by the South Tees NHS Foundation Trust (“the Trust”) between March 2000 and May 2016 by which time she was a Senior Band 6 Neuroradiographer in the Neuroradiology Department.


17. The incidents which are the subject of the allegations came to light in late 2015.  On or about 26 October 2015, a mobile x-ray machine was found in the department’s plain film room, positioned as if an extremity radiograph had been taken.  Subsequent enquiries as to who had used the machine established that on 24 October 2015, the Registrant had come into the department off duty, with Person A, a minor who had a foot injury which the Registrant felt needed to be x-rayed. The Registrant was later overheard admitting to a colleague that she had used the machine.


18. On 12 November 2015, it was discovered that Patient B, a suspected stroke patient, had been scanned twice on 11 November 2015.  A first CT scan was conducted by the Registrant. The Patient had to undergo a second scan the same day following a formal referral. Patient B received a second dose of ionising radiation. The Trust had to report the incident to its regulator, Care Quality Commission (CQC) as a reportable incident.

 
19. The Trust conducted an investigation into the incidents. Dr RF, Consultant Clinical Scientist and Head of the Medical Physics Department at the Trust, was appointed as the investigating officer.  In the course of his investigation he interviewed the Registrant and other members of Trust’s Staff.  The Registrant accepted responsibility for the two incidents on 24 October and 11 November 2015.

Evidence 


20. The Panel received a core bundle of documents submitted by the HCPC (C1), a bundle of exhibits (C2) and written submissions received by the HCPC from the Registrant (R1).


21. Ms Vignoles called one witness on behalf of the HCPC, Dr RF.  He confirmed his witness statement dated 21 July 2017, which appeared in the HCPC’s bundle, C2. Dr RF’s witness statement exhibited his Investigation Report, notes of meetings and written accounts of interviews with Trust Staff. 


22. Dr RF had interviewed the Registrant about the incidents on 11 and 16 February 2016.  In these interviews, she admitted responsibility for the two incidents referred to in the allegations. 


23. Dr RF also conducted interviews with RB, Neuroradiology Lead, PD, a Neuroradiographer and the Registrant’s clinical lead, and two Senior Radiographers, RG and MD.  Records of these interviews appeared in the bundle. 


24. Also exhibited to Dr RF’s statement were relevant policies and statutory regulations, including the Trust’s Radiation Safety Policy G105 v3 December 2011 and the Ionising Radiation (Medical Exposure) Regulations 2000 (IR(ME)R).


Decision on Facts


25. The Panel carefully considered all of the evidence in this case. It noted the submissions of the parties. It accepted the advice of the Legal Assessor.


26. The Panel reminded itself that the burden of proving the facts is on the HCPC which brings the allegations and that the standard of proof is the civil standard, namely the balance of probabilities. The Panel took into account all the evidence it had received and reminded itself of the terms of the specific allegations (in their amended form) which the HCPC had brought against the Registrant. 

27. The Registrant had not made formal admissions to the HCPC allegations in response to the Notice of Hearing of 6 June 2017, and despite making admissions in her earlier written submissions, the Panel proceeded on the basis that they were not formally admitted and required to be proved by the HCPC’s evidence.


28. The Panel found Dr RF to be a credible, clear and knowledgeable witness, who was honest in accepting when he did not know the answer to a question or where his investigation had been inconclusive.  


29. The Panel took into account the hearsay evidence from the Trust witnesses interviewed during Dr RF’s investigation. It felt able to give weight to these, subject to the fact that it had not been able to test this evidence in panel questioning.  The Panel also took careful account of the Registrant’s written submissions to the HCPC.  It noted her acceptance that she had carried out the two radiological investigations in question and that she had done so without the required written patient referrals. 


Allegation 1


30. The Panel noted the Registrant’s admission in her interview with Dr RF that she had acted without a formal medical referral for Person A and also that she had not taken Person A to Accident & Emergency.  This was further confirmed in the Registrant’s own written submissions. 


31. The Panel also took account of the further supporting evidence.  Dr RF’s statement described how the Trust, having found the mobile unit in the X-ray room in a fully discharged state, made enquires to establish the circumstances in which it had been used. They went on  to seek technical assistance to recover the images which had been deleted.  As a result, evidence was found of three images taken on the morning of 24 October 2015, at a time when the Registrant was the only person in the room where the equipment was sited. A screenshot was obtained.   The Registrant subsequently admitted that she was responsible and also admitted deleting the images she had taken.


32. An email in the hearing bundle from the Trust’s Information Governance department confirmed that there was no record of Person A having been admitted through Accident & Emergency on the day in question. The investigation found no evidence of a referral for Person A being made. 

33. This was confirmed both in the admissions the Registrant made in her interviews with Dr RF on 11 and 16 February 2016, and in her letters to the HCPC during its investigation. The Panel also noted that a formal record of the Trust interviews had been prepared and sent to the Registrant for her amendment and review.


34. Based upon the admissions of the Registrant and the further supporting evidence from the Trust’s investigation, the Panel was satisfied that the facts of allegation 1 were proved on the balance of probabilities.


Allegation 2


35. The Registrant accepted in interview with Dr RF and in her submissions to the HCPC that there was no formal referral for Patient B and stated that she acted upon a verbal referral from one of the wards. She was not able to recall the name of the nurse she said had made the verbal referral.
36. In his statement to the investigation, Richard Bore confirmed there was no request for the scan for Patient B on the Radiology Information System (RIS). In his interview, Peter Dawson stated he saw no referral on RIS. 


37. The Panel accepted the evidence of Dr RF that there had been two different processes for making referrals for a radiological investigation. Previously, referrals were made using a paper based system this was superseded by the introduction of an electronic system. However the principles for referral for a radiological investigation remained the same, ie. there needed to be a formal referral before the examination could be justified. 


38. Based upon the admissions of the Registrant and the further supporting evidence from the Trust’s investigation, the Panel was satisfied that the facts of allegation 2 were proved on the balance of probabilities.


Decision on Grounds

Submissions on grounds


39. Ms Vignoles submitted that the facts, if proved, constituted serious breaches of the required standards and would amount to misconduct. By her admitted actions the Registrant had acted contrary to the statutory regime for the regulation of ionising radiation, a regime which Ms Vignoles submitted was of significant importance.  The Registrant had also failed to meet basic standards in her professional field by proceeding without the required formal referrals of patients for radiological investigations.


Panel’s Decision


40. The Panel accepted the advice of the Legal Assessor.  The Panel was mindful that the decision on whether the facts found proved in allegations 1 and 2 amounted to misconduct was an issue for its own judgment, rather than the legal standard of proof.  The Panel accepted that for an act or omission on the part of the Registrant to warrant a finding of misconduct, there must have been not only a falling short of the standards expected, but a serious falling short.


41. The Registrant had not admitted misconduct and the Panel proceeded on the basis that misconduct was denied.


42. In respect of allegation 1, by her actions in taking an X-ray of Person A’s foot without a formal referral the Registrant bypassed the Trust’s protocols and the statutory requirements of IR(ME)R. The Registrant came into the unit outside her own working hours and did not take Person A to the Accident & Emergency Department. She made the sole decision to conduct an X-ray of Person A’s foot.  She deleted the X-ray films afterwards.   The Panel took the view that these were deliberate actions and the Registrant had acknowledged in her interviews with Dr RF that she understood she should not have take the x-rays. In her written submissions to the HCPC the Registrant stated that she knew what she did was wrong.  


43. By her actions in taking the X-ray without a formal referral, the Registrant put Person A at risk of exposure to radiation “greater than intended” contrary to the requirements of IR(ME)R. The Panel took account of Dr RF’s evidence that had Person A been taken to A&E for an examination, a clinical assessment may have determined that an X-ray was not required.  He stated that any exposure to radiation is potentially detrimental to health and must be justified.  If the Registrant’s actions had not subsequently come to light, there would have been no record that Person A was exposed to this X-ray.


44. In respect of allegation 2, by taking the CT Scan of Patient B without a formal referral and entering her details on the system manually, the Registrant had again bypassed the legal requirements. The absence of a formal referral meant that she had not verified the identity of Patient B and because the CT scan did not link to Patient B on the electronic system, Patient B had to undergo a second CT scan later in the day, exposing her to a further dose of radiation.  This, as Dr RF explained, in the case of a CT scan may be a high dose.  As further described by Dr RF, the Registrant’s actions also risked the patient not being treated in a timely manner and potentially delayed her diagnosis. The delay meant that Patient B was put at serious risk of harm.


45. Although the Registrant said in her submissions that she was attempting to act in the patient’s best interests as an emergency, the Panel was of the view that by acting outside the proper processes, her actions risked having the opposite effect.  


46. In relation to both incidents, the Panel took into account that the Registrant was an experienced radiographer who would have worked regularly under the protocols and statutory requirements relevant to her role. The change in the Trust’s system from a manual referral to electronic referral system did not alter the well established requirement for the formal referral of a patient for radiological investigations, which was a requirement of IR(ME)R.


47. The Panel acknowledged the submissions made by the Registrant in relation to her personal circumstances. However, the Panel considered these submissions would be relevant at a later stage in the process, if reached, since purely personal mitigation is not relevant to the Panel’s consideration of misconduct.   


48. The Panel found that the Registrant’s actions in respect of both allegations 1 and 2 constituted misconduct. 


Decision on Impairment 


Submissions on current impairment


49. Ms Vignoles on behalf of the HCPC submitted that, in respect of both the personal and the public components, the Panel should find that the Registrant’s fitness to practise is currently impaired.
50. In the Registrant’s absence from the hearing, Ms Vignoles drew the attention of the Panel to the Registrant’s written submissions.  She acknowledged that there may well be some sympathy for the Registrant, but that nevertheless there remained concerns that such insight as the Registrant had shown was still developing. There was a lack of up to date information about the Registrant’s current practice from any current or recent employer. As such, there remained a risk of repetition. 


51. Ms Vignoles submitted that the wider public interest also required a finding of current impairment in the circumstances of this case.  The Registrant’s non-compliance with statutory requirements were deliberate and public confidence required these safety requirements be reinforced.   Ms Vignoles submitted that public confidence would be undermined if a finding of impairment was not made.   

Panel’s Decision


52. The Panel considered the submissions of Ms Vignoles on behalf of the HCPC.  It also took careful account of the written submissions of the Registrant. The Panel heard and accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice note “Finding that fitness to practise is impaired”, dated 22 March 2017.

 
53. The Panel considered all the information presented and exercised its own judgement. It was mindful that not every finding of misconduct will result in a finding of current impairment of fitness to practise. 


54. The Panel bore in mind that the matters proved were two single incidents over a limited period in the Registrant’s long career as a Radiographer.  They also took place almost two years ago as at the date of this hearing. 


55. The Panel accepted that the Registrant acknowledged her past conduct and has apologised and expressed remorse. It does accept that this matter has had a considerable impact upon the Registrant personally and professionally and that she has learned from her mistakes.  Consequently, the likelihood of her repeating such conduct is low. However, the Panel had residual concerns that in her responses to the allegations, the Registrant has stated she acted as she did in the best interests of the two patients, whereas in fact the Panel has concluded that her actions put the patients at potential risk of harm.  The Panel also observed that the Registrant continued to excuse her actions by referring to common practice of other staff at the Trust and did not appear to take full personal responsibility for her own actions.

56. Coupled with these factors, the Registrant had provided limited information to the Panel about her practice since these events, or about any efforts she has made to keep her clinical skills up to date since her leaving employment at the Trust in mid-2016.  The Panel noted that the Registrant’s letter of May 2017 states that after leaving the Trust, she worked as a locum Band 6 Radiographer at a different Trust. She said there were opportunities for permanent positions, but she felt she should not undertake these pending the outcome of the HCPC proceedings.  The Registrant has said she undertakes a “small part-time job” but it was also unclear what this entailed.  It was not clear for how long the Registrant worked in the locum role or whether she is now working as a Radiographer  She has not provided any information from anyone who employed her as a Radiographer and who could comment on her more recent professional practice. 

 
57. The Panel noted the information in the Registrant’s written submissions as to the her difficult personal circumstances at the time of these incidents.  This information about her personal circumstances will be taken into account by the Panel at the sanction stage of the process, if reached.


58.  In relation to the public component of fitness to practise, the Panel also considered the wider public interest and the guidance in the case of CHRE v Nursing & Midwifery Council and Paula Grant of 2011. The Panel was mindful that the Registrant’s actions consciously breached statutory requirements and procedures relating to the safe use of ionising radiation.  It was concerned that, despite the Registrant’s acceptance of her past behaviour, she had not fully understood or acknowledged the impact of her actions upon patient care.  The Panel was of the view that in these circumstances, public confidence in the profession of radiography would be undermined if a finding of current impairment were not made in this case. 


59. The absence of up to date information from the Registrant meant that the Panel could not be satisfied that the Registrant understood the importance of policies and procedures, why they were needed and why she needed to adhere to them. In addition, the Panel did not have the benefit of hearing how the Registrant would respond if presented with a similar situation in the future.


60. Overall therefore, although the Registrant has shown limited insight, the Panel has concluded that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction


61. The Panel took account of the submissions made by Ms Vignoles on behalf of the HCPC. She drew attention to the Registrant’s written submissions and identified aggravating and mitigating factors in the case. She confirmed the Registrant had no previous HCPC fitness to practise history.


62. The Panel referred to the HCPTS Indicative Sanctions Policy.  It heard and accepted the advice of the Legal Assessor.

63. The Panel gave careful consideration, in the Registrant’s absence, to her written submissions in relation to her mitigating circumstances.   The Registrant had not submitted any character references or testimonials.


64. The Panel was aware that the purpose of any sanction is not to be punitive, though it may have a punitive effect. The Panel bore in mind that its primary function at this stage is to protect the public and that it must act proportionately, taking into account the wider public interest and the interests of the Registrant.


Aggravating factors


65. The Panel identified the following aggravating factors in this case:


• The Registrant’s action as found proved in allegation 1 was deliberate;


• Her actions in allegation 2 as found proved, caused delay and the risk of harm to Patient B;

• Her actions in allegation 2 put the Trust at risk of reputational harm in having to inform the Patient and her family that Patient B received an additional CT scan and in having to report the issue to CQC;


• The two incidents were a repetition of breaching the same policy which required a referral to justify the examination.

Mitigating factors


66. The Panel identified the following mitigating factors:


• The Registrant stated she had practised as a Radiographer for 20 years.  She had no previous HCPC disciplinary findings;


• No previous issues in relation to her professional practice had been raised;


• Richard Bore and Peter Dawson, the Registrant’s former line managers at the Trust, had made positive comments about the her past professional practice and competence during their interviews in Dr RF’s investigation on behalf of the Trust;


• In allegation 2, the Registrant acted with good intentions towards Patient B, albeit her judgment was in error.


67. In the light of the mitigating and aggravating circumstances, the Panel considered what sanction, if any, should be applied, in ascending order of seriousness.


68. The Panel did not consider that mediation was an appropriate course of action to address the current impairment in this case. 


No Further Action


69. The safety of the public and the wider public interest would not be protected if the Panel were to take no further action in a case of this seriousness.

Caution


70. A Caution Order would be insufficient to mark the seriousness of the Panel’s findings and to protect the wider public interest.


Conditions of Practice Order


71. The Panel concluded that a Conditions of Practice Order would be an appropriate and proportionate means by which to protect the public in this case.  It determined that the risk of repetition was low and therefore the public could be protected by the imposition of conditions which addressed the deficiencies found. 


72. The Panel considered that although the Registrant had not been present at the hearing, she had engaged with the HCPC process prior to the hearing.  It concluded from her written submissions that she accepted her past failings, albeit she had not yet gained full insight into them.  The Panel was satisfied that she would be willing to engage and comply with suitable conditions and was keen to return to practice as a Radiographer.


Suspension


73. The Panel went on to consider whether a Suspension Order would be the appropriate sanction but concluded this would be disproportionate as a Conditions of Practice Order would sufficiently address the public protection concerns. 

Order

Order: The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Ms Nicola Davison, must comply with the following conditions of practice:


1. Reflecting on the allegations and misconduct found proved, you must write a reflective piece demonstrating your understanding of the impact of your actions on others e.g. patients, colleagues etc., and how you would deal with similar situations in the future. You must provide your reflective piece to the HCPC within 28 days prior to the date when this Order is reviewed.


2. You must find a suitable mentor who is registered with the HCPC as a Radiographer who you can work with to re-establish your competencies regarding IR(ME)R. These must be signed off by your mentor and yourself and forwarded to the HCPC 28 days prior to the date when this Order is reviewed.  


3. You must write a case study, signed off by your mentor to show how you are applying your understanding of IR(ME)R in a clinical setting. This case study must be forwarded to the HCPC 28 days prior to the date when this Order is reviewed. 


4. When employed and working as a Radiographer, you must place yourself and remain under the supervision of a workplace supervisor registered with the HCPC and supply details of your supervisor to the HCPC within 6 weeks of commencing employment. You must attend upon that supervisor as required and follow their advice and recommendations.


5. You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.


6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.


7. You must inform the following parties that your registration is subject to these conditions:


A. any organisation or person employing or contracting with you to undertake professional work;


B. any agency you are registered with or apply to be registered with (at the time of application); and


C. any prospective employer (at the time of your application).

Notes

The order imposed today will apply from 13 October 2017 (the operative date) and will be reviewed again before its expiry on 13 October 2018.

Hearing history

History of Hearings for Ms Nicola Davison

Date Panel Hearing type Outcomes / Status
14/09/2017 Conduct and Competence Committee Final Hearing Conditions of Practice