Jason Mariah

: Radiographer

: RA69825

: Final Hearing

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

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

On 20 November 2015, at South Essex Magistrates Court you were convicted of:

 

1. Driving a mechanically propelled vehicle, in a public place, on the 10 March 2015, whilst unfit through drugs, contrary to section 4(1) of the Road Traffic act 1998 and schedule 2 of the Road Traffic Offenders act 1988.

 

2. By reason of your conviction as set out at paragraph 1, your fitness to practise as a Radiographer is impaired.

Finding

Preliminary Matters


Application for hearing to be held in private
1. Ms Chaker invited the Panel to consider whether part of the hearing should be heard in private to protect the Registrant’s private life.


2. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to hear part of the hearing in private. This decision was limited to the parts of the hearing which concerned details of the Registrant’s health.


Application to adjourn
3. Mr Davis, on behalf of the Registrant, made an application for an adjournment of the hearing. Mr Davis was instructed to represent the Registrant, at very short notice, following events on the first day of the hearing.


4. Mr Davis informed the Panel that the Registrant was currently well and able to give instructions and participate in the hearing. Mr Davis’ application was to adjourn the hearing to enable the Registrant to attend an appointment with a jointly instructed medical expert and for the case to be listed for a Preliminary Hearing to consider whether the case should be transferred to the Health Committee. The Registrant consented to a medical assessment. If the application for an adjournment was granted Mr Davis invited the Panel to make directions.


5. Mr Davis referred the Panel to extracts from the HCPC witness statements which suggest that the Registrant may have been unwell at the time of the events in the Allegation.


6. Mr Davis informed the Panel that on the first day of this hearing, while the Registrant was in the room next door to the hearing room which is provided for his use, he became unwell.


7. Ms Chaker opposed the application for an adjournment. She submitted that the hearing had commenced and that witnesses were waiting to give their evidence. She submitted that there was no firm evidence that health matters were relevant to the three specific matters in the Allegation. Although the Panel were not being asked to consider a referral to the Health Committee today, she submitted that such a referral would be inappropriate because the possibility of a striking off order should not be ruled out.


8. Mr Davis responded to Ms Chaker’s submissions. He submitted that a striking off order could be ruled out on alleged facts of this case, taking into account that it was not suggested that violence was used.


9. The Panel accepted the advice of the Legal Assessor. The Panel did not accept the application that the hearing should be adjourned. In the Panel’s view, if the facts were found proved, it was unlikely that the case would conclude within the five days that have been allocated. If the facts are found proved, the likely adjournment would enable the Registrant to obtain any appropriate medical evidence. Such evidence would be most relevant in the later stages of the case if the case were to reach that point. If the case proceeded more quickly than the Panel anticipated, the position could be reviewed.


10. The Panel’s view was that a strike off order should not be excluded as a possibility. Although it was not suggested that the Registrant was violent, the Allegation concerns more than one incident of alleged misconduct in a professional context with the potential for harm to members of the public.


11. The Panel recognised the potential relevance of medical evidence as part of the Registrant’s response to the Allegation. However, the Panel did not take the view that an adjournment was required at this stage in order for the hearing to be fair for the Registrant. The Registrant is now represented, and Mr Davis will continue to protect his interests. The Panel’s view was that, given the history outlined by Mr Davis, the Registrant should be able to obtain some medical evidence for the Panel without the need for an adjournment. The medical evidence might be a report from the Registrant’s GP, medical letters or reports sent to the Registrant and/or the discharge summary from the Registrant’s recent hospital admission. The Panel is aware of its ongoing duty to ensure that the hearing is fair, and will take a flexible approach to the admission of any medical evidence from the Registrant.


12. The Panel concluded that the Registrant would not be prejudiced if the hearing was not adjourned at this point and therefore rejected the application for an adjournment.


Application for the Panel to recuse itself
13. Mr Davis made an application for the Panel to recuse itself on the ground that his application for an adjournment included information that was prejudicial to the Registrant and there was therefore the appearance of unfairness. This applied to the information about the Registrant’s ill health while the Panel was not sitting in the afternoon on April 2017. The Panel would not have had the more detailed information about the events yesterday if he had not provided it as part of the application for an adjournment.


14. Ms Chaker opposed the application for the Panel to recuse itself. She submitted that the fact that the Panel has information which is potentially prejudicial should not be equated with actual or apparent bias taking into account the nature of regulatory proceedings and the Panel’s access to advice from the Legal Assessor on relevant matters that they should take into account. She further submitted that the information provided as part of Mr Davis’ adjournment application was that the police were called on 3 April 2017 because of a welfare concern, and not because of a criminal complaint.


15. The Panel accepted the advice of the Legal Assessor. The Panel decided that the information provided by Mr Davis as part of his application for an adjournment was not so highly prejudicial that a fair- minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. In particular, while the Panel does not have the full picture, the Panel was informed that the Registrant was agitated and that the police were called on 3 April 2017 because of a welfare concern. A fair minded and informed observer would take the view that the professional Panel would remove any prejudicial information from their minds. The Panel therefore decided that it should not recuse itself.


Application for evidence by video link
16. Ms Chaker made an application for a witness, GM, to give evidence by video-link. The reasons for the application were set out in a skeleton argument. Mr Davis did not object to the application.


17. The Panel agreed to the application. The Panel was satisfied from the evidence presented that GM is a reluctant witness, in terms of attending the hearing in person, and that he may not attend the hearing if the application is not granted. Permitting GM to give his evidence by video-link would not prejudice the Registrant and would enable the Panel to ask any questions they might have.


Background


18. The Registrant worked as a Band 5 Radiographer at Wycombe Hospital, Buckinghamshire Healthcare NHS Trust (the “Hospital”) between 29 December 2014 and 21 April 2015.


19. On 16 February 2015 JD, who was at that time the manager responsible for imaging across the Trust including Radiology, Pathology, Cancer and Haematology, was asked to conduct an investigation into concerns regarding the Registrant’s behaviour.


20. One of the concerns was that on 23 January 2015 the Registrant was reported to have arrived late in theatre where he was due to shadow another radiographer AK. It was also reported that he was later missing for approximately an hour before he returned to the main department.


21. The other concerns related to incidents on 16 February 2015. The first incident involved the Registrant and a member of the public who was a vagrant and was known to some of the Hospital staff. JD received brief written accounts of the incident and the surrounding circumstances from MF, Senior Radiographer, who was making a physiotherapy appointment for herself at reception, and GM, Head Porter. At the time of this incident the Registrant was wearing a non-uniform hooded jacket. GM intervened in the incident and the Registrant attempted to identify himself as a member of hospital staff to GM. MF confirmed that the Registrant was a member of staff.


22. Approximately ten minutes after the incident MF met the Registrant on the stairway and asked if he was OK. In her report MF included a reference to this meeting and that the Registrant said that if the vagrant started on him again he would “knock him out”.


23. The Registrant also spoke about the incident to ZB, Senior Radiographer. ZB made a report to JD that the Registrant told her that the vagrant had started a fight with him and that he stated that he should have “knocked the man out”.


24. There were also reports of two further incidents in the afternoon on 16 February 2015 involving ZM, Senior Radiographer. There was an issue between the Registrant and ZM relating to a difficult X-ray. The Registrant admits making a cheeky comment to ZM which was inappropriate and intended to rile her. The Registrant asked ZM for a concessionary break and ZM refused because of the high workload and because the Registrant had started work late that day. The Registrant said that he was taking a break anyway. ZM, who was frustrated with the Registrant, told him that she wanted to “put his head to the wall”. ZM reported to JD that the Registrant reacted to this comment verbally and physically.


25. Shortly afterwards a further incident involving the Registrant occurred when ZM returned to the department to pick up her bag.


26. ZB and GF, who held a number of posts including Senior Lecturer in Diagnostic Radiotherapy, witnessed part of both incidents involving ZM.


27. JD carried out an investigation into the reports of the events on 23 January 2014 and 21 April 2015. As part of her investigation she interviewed the Registrant on 25 February 2015.


Decision on Facts


28. The Panel heard evidence from the HCPC witnesses JD, AK (by video- link), GM (by video-link), MF, ZM, ZB and GF. The Panel found that the witnesses were fair, consistent and credible.


29. The Panel heard evidence from the Registrant. The Panel found that not all the Registrant’s evidence was reliable because of inconsistencies, contradictions, limited recall in some areas and some confusion. For example the Registrant denied that he had received any induction, but he agreed that a number of points highlighted by JD as part of the induction had been covered.


Particular 1
30. The HCPC case in relation to the Registrant leaving the department during working hours is that the Registrant was late to arrive in theatre where he was due to work alongside AK and that he was also not present working in the X-ray department later in the afternoon at a time when he might have been expected to have returned from the theatre.

31. The nature of the HCPC case was clear from the content of the HCPC witness statements served on the Registrant. The Panel decided that “department” in particular 1 should be interpreted to include all the physical locations the Registrant worked, including the theatres.

32. There is no evidence on the time the Registrant was instructed to attend the theatre or the time that he arrived at the theatre. AK’s evidence was that she had been told by the department that the Registrant had already been sent to the theatre to turn on the machines while she was taking a short lunch. The Panel found that he was sent to the theatre shortly before AK was sent to the theatre. It takes approximately five to ten minutes to walk to the theatre.

33. The Panel accepted the evidence of AK that the Registrant arrived at the theatre approximately one hour late. When AK asked the Registrant where he had been the Registrant said that he could not find his way to the theatre

34. In his evidence the Registrant gave a number of reasons for the delay in his arrival. He said that there was a conversation involving himself, the Senior Radiographer who had instructed him to attend the theatre and a more senior manager relating to whether he was permitted to attend the theatre on his own. The conversation ended and the Registrant remained under instruction to attend the theatre. The Registrant also explained that there were two routes to reach the theatres and that he took the longer route “to cool off”, which involved going outside. He was also delayed because he was lost and he had to get changed.

35. The Registrant said that he was “annoyed” that he was not permitted to attend the theatre on his own. His evidence to the Panel on this point was consistent with the notes of his interview with JD where he stated “I felt overruled”.

36. The Panel did not accept that the conversation or the fact that the Registrant may have taken a little longer to make his way to the theatre because of his lack of familiarity with the building explained a delay of approximately one hour. Although the Registrant was a relatively new member of staff, he had attended the theatre before when he worked alongside other colleagues. The Panel found that the explanation for the majority of the delay in the Registrant’s arrival at theatre was that the Registrant took a break because of his annoyance. In his written comments on the notes of the investigatory interview (e-mail dated 16 March 2015) the Registrant justified taking a break when he was upset, because he would “rather be composed” for the well-being of the patients.

37. Ms Chaker’s submission was that the Registrant was also absent for a further period after the conclusion of the theatre case. There was hearsay evidence from a nurse that the Registrant had thrown his lead apron on the floor. The Registrant’s evidence was that it had slipped off the hanger onto the floor and that he did not think it was necessary to pick it up. He just walked away. He said he took a further cigarette break after theatre before returning to the department. AK’s evidence was that a colleague saw him at the department, although she did not.

38. The Panel concluded that, while his behaviour with the lead apron was surprising, there was insufficient evidence to confirm the length of any break taken by the Registrant when he left the theatre.

39. The Registrant admits that he left the theatre before either the Surgeon or AK had indicated that his participation was no longer required. It is standard procedure for the radiographer to remain in the theatre after the procedure has been completed to carry out any further work that may be required and to complete tasks such as moving the X-ray machines.

40. The Panel found that particular 1 is proved in relation to the Registrant’s late arrival at the theatre and by his leaving the theatre while the radiography work required on the case had not been completed.

Particular 2a

41. The vagrant was a regular visitor to the hospital and had previously caused a nuisance through begging activities. However, there had been no previous incidents of violence or aggression from the vagrant. The Registrant’s evidence was that he had seen the vagrant on or near hospital premises on a number of occasions. On some of those occasions the Registrant spoke to the vagrant about his identity and reasons for being on the premises. There had been an incident shortly before 16 February 2015 where the Registrant said he had been attempting to take a photograph of the vagrant to show hospital security.

42. The previous contact between the Registrant and the vagrant would explain why the Registrant might have concerns when he saw the vagrant on hospital premises on 16 February 2015, but it could not justify verbal abuse towards the vagrant.

43. The incident took place in public areas of the hospital; a reception area near a restaurant, and in the physiotherapy corridor. Members of the public were present, and were in a position where they could see and hear part of the incident.

44. The Registrant said that the incident began when he challenged the vagrant. The Registrant was not satisfied with the response he received and he began shouting at the vagrant. The Registrant admits that he was aggressive. The Registrant was also swearing. MF’s evidence was that he was shouting things like “what the fuck are you doing”. The Registrant does not recall swearing, but he admits that he uses “colourful” language and that he may do so when he is aggressive. The incident attracted the attention of members of the public. The receptionist for physiotherapy booking was considering calling the police if GM had not intervened.

45. MF agreed in cross-examination that when she witnessed the incident it was “two way” in that the vagrant was responding to the Registrant’s shouting and swearing. MF was a witness to the later stages of the incident after it had moved to the physiotherapy corridor where she was waiting to make an appointment. GM’s said that the incident was initially one way from the Registrant, and that it developed into a two way argument. The Panel found that the Registrant initiated the incident and was the initial aggressor.

46. The Registrant’s behaviour of shouting and swearing at the vagrant was verbally abusive.

47. During the incident the Registrant did not make a threat of violence towards the vagrant. Ms Chaker relied on the two conversations between the Registrant and MF, and the Registrant and ZB after the incident. In the conversation with MF the Registrant was indicating that he “would” act violently if he saw the man again and in the conversation with ZB that he “should” have acted violently.

48. Mr Davis submitted that this evidence was not relevant because the threats were not made “towards” the vagrant, because the comments relied on were not made in the vagrant’s presence. The Panel considered carefully the wording of particular 2a. One meaning of the word “towards” is “with regard to”. The Panel decided that a threat can be made “towards” someone, without that individual being present.

49. The statement made by the Registrant to ZB was not a threat of violence. The statement that he “should” have knocked the vagrant out was a comment about the past event, not a threat of future action. The statement made by the Registrant to MF was a threat of violence because it was a statement of future intentions.

50. The Panel therefore found that particular 2a is proved in respect of verbal abuse, and proved in respect of a threat of violence.

Particular 2b
51. In both incidents with ZM the Registrant admits that he was agitated and aggressive. He does not admit that he was shouting and does not recall swearing, but the Panel accepted the evidence of ZB and GF that he was both shouting and swearing. In the first incident he said that ZM was a “patronising bitch” and in the second incident he said that she was a “patronising cow”. There were no members of the public in the room during either of the two incidents, but the shouting was loud enough that it could be heard in nearby rooms, where members of the public might have been present.


52. The Registrant’s behaviour of shouting, swearing and insulting ZM was verbally abusive.


53. There were no verbal threats of violence toward ZM in either incident. Ms Chaker relied on the Registrant’s physical behaviour as amounting to a threat of violence.


54. ZM’s written account of the incident on 16 February 2016 was that “At that point J (a member of staff) had asked [the Registrant] to step back as he had his fist up”. The Registrant denies raising his fists. He demonstrated that he was lifting and moving his arms wide, with open palms. ZB and GF did not witness the Registrant with clenched fists, but they did not see the beginning of the incident. The Panel accepted ZM’s evidence that the Registrant raised a fist at her. ZB and GF saw the latter part of the incident. GF described the Registrant coming very close to ZM as if he was “squaring up” to her, whereas ZM was withdrawing. ZM accepted that she did not feel unsafe. Despite this, her response to the situation was to try to leave the room. The perception of the witness ZB was that the Registrant might be about to assault ZM.


55. In the second incident the Registrant attempted to follow ZM after she walked away and was stopped by ZB. There is no other physical behaviour described by any of the witnesses.


56. The Panel found that the Registrant’s physical behaviour, as described by ZM, ZB and GF during the first incident with ZM was a threat of violence. There was no threat of violence during the second incident with ZM.


57. The Panel found that particular 2b is proved in that the Registrant was verbally abusive on two occasions and made a threat of violence on one occasion.


Decision on Grounds


58. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of the Panel and there is no burden or standard of proof.


59. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the required standards.


60. The Registrant’s evidence was that he was dissatisfied with the lack of induction and support he received, particularly on the first day of employment. The Panel found that the Registrant’s induction covered a number of matters including the provision of an induction folder including a check list of topics, the provision of uniform and ID badge, an introduction to image processes and the radiology information system, and the provision of uniform. The Registrant had a mentor, ZB, and received support from a number of colleagues. The Registrant did not engage fully with all aspects of the induction process. He failed to attend manual handling training on time and failed to attend the Trust induction day.


61. The Panel found that there were no significant deficiencies in the Registrant’s induction and that any deficiencies there may have been had no relevance to the events in the Allegation.


62. The Panel considered the seriousness of the Registrant’s conduct in particular 1. The Registrant took an unauthorised break because he was annoyed when he was told that he could not attend the theatre on his own. This is entirely unacceptable conduct, and resulted in his very late arrival at theatre. When AK arrived at the theatre the Registrant was not present and she had to carry out all the equipment set up work that the Registrant had been sent in advance to complete. The preparatory work for the procedure was therefore delayed. This did not result in a delay or cancellation of the procedure itself, but it caused inconvenience and additional work for AK. The Registrant was in his first job as a Radiographer after qualification. He was in a period of training and shadowing colleagues. It was important that he completed all aspects of the training and shadowing in full so that he could be confirmed as competent for each procedure. During the Registrant’s unauthorised break the Registrant’s managers and colleagues did not know where he was and he was unavailable to carry out any duties.


63. The Registrant was aware that he should not leave the theatre until all the post operative work had been completed. The Registrant  shadowed theatre cases as a student and he agreed that the work of the Radiographer included tasks such as moving the machines after the procedure had been completed. The Panel accepted JD’s evidence that this is basic and is known to Radiography students. The Registrant left AK to complete the necessary work. This was entirely inappropriate, particularly because the Registrant was a new member of staff who was in theatre to learn the procedure. The Registrant’s early departure meant that AK could not speak to him.


64. The Registrant’s conduct in particular 1 was a breach of the HCPC Standards of Conduct, Performance and Ethics standard 1: “you must act in the best interests of service users” and standard 3: “you must keep high standards of personal conduct”.


65. The Panel decided that the Registrant’s conduct in particular 1 was sufficiently serious to constitute misconduct in that it fell well below the standards expected of a Radiographer.


66. The Registrant’s conduct in particular 2 fell below the standards that are expected of anyone, but it is particularly serious for a health professional. The incident in particular 2a involved a member of the public and it caused alarm to other members of the public who were witnesses. Although his uniform was not visible the Registrant identified himself as a member of hospital staff when GM intervened. The incidents in particular 2b were also serious. They involved a member of staff senior to the Registrant who was providing him with support. The comment made by ZM, which was inappropriate, does not excuse the Registrant’s behaviour. ZM’s comment was provoked by the Registrant’s action in deliberately riling her.

67. The Registrant’s conduct in particular 2 was a breach of the HCPC Standards of Conduct, Performance and Ethics standard 3, standard 7: “you must communicate properly and effectively with service users and other practitioners” and standard 13: “You must…make sure that your behaviour does not damage the public’s confidence in you or your profession”.

68. The Panel decided that the Registrant’s conduct in particular 2 was sufficiently serious to constitute misconduct in that it fell well below the standards that are expected of a Radiographer.
Application to adjourn

69. Mr Davis made an application to adjourn the hearing on two grounds. The first ground was to give the Registrant time to obtain medical evidence which might be material. The second ground was on the basis that it was unlikely that there would be sufficient time for the Panel to complete its determination on current impairment. Ms Chaker indicated that the HCPC was neutral on the application to adjourn.

70. The Panel accepted the advice of the Legal Assessor. The Panel agreed that it was unlikely that the decision on current impairment could be concluded in the time remaining. An adjournment would also give the Registrant the opportunity to obtain medical evidence. The Panel therefore decided to adjourn the hearing.

71. The Panel asked about the position regarding the Registrant’s representation. Mr Davis informed the Panel that his understanding was that this was at the discretion of the HCPC and there was no guarantee. The Panel has no information about the reasons or criteria applied in respect of the HCPC’s decision to appoint solicitors for the Registrant. In these circumstances decided that it was inappropriate for the Panel to make a recommendation to the HCPC.

Decision on Impairment


72. The Panel applied the guidance in the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor. The Panel took account of the guidance in General Medical Council v Meadow [2006] EWCA 1390; Cohen v General Medical Council [2008] EWHC 381 (Admin); and CHRE v NMC and Grant [2011] EWHC 927 (Admin). The Panel considered the Registrant’s fitness to practise at today’s date.

73. The Practice Note refers to two components which should be taken into account when determining whether fitness to practise is impaired. The “personal” component is concerned with the “current competence, behaviour etc of the individual registrant” and the “public” component with “the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

74. The Panel was provided with medical evidence.


75. The Panel was provided with a copy of the Notice of Decision of the Conduct and Competence Committee dated 23 February 2017. This decision related to the driving incident in March 2017. The Registrant had obtained legal drugs over the internet and had taken them in the days before he drove. The Registrant had received a conviction in relation to driving when unfit to do so through drugs. The Panel of the Conduct and Competence Committee found that there was no longer a risk of repetition and that the appropriate sanction was a Caution Order for a period of 2 years.

76. The Panel bore in mind that this incident occurred on a date after the Registrant’s misconduct and is therefore not an aggravating feature.

77. The Registrant gave evidence to the Panel. He gave an account of his health difficulties. The Registrant now takes the view that his health was a factor which contributed to his behaviour. However, he also stated his behaviour was due to the circumstances in which he was placed. He said that the situation with the vagrant was unique, and he described his colleague ZM as a “horrible person”.

78. The Registrant told the Panel that he has been working since July 2017 in a reception role at Loughborough University in which he provides assistance to students. The Registrant stated that he is doing well in his current position, but he did not provide any evidence to support this statement. He did not provide any references from present or previous employers or any testimonials.

79. The Panel decided that the Registrant’s health concerns were a contributory factor in the Registrant’s misconduct. However, the Panel considered that there were other contributory factors. The Panel considered that there was and continues to be a lack of maturity in the Registrant’s attitude. The Panel reached its conclusions about the Registrant’s attitude from the content of his answers, not from his accent or the way in which he expressed himself. His attitude was indicated when he expressed his surprise about the way in which colleagues had perceived his behaviour. This was despite the fact that the Registrant has had a lengthy period to reflect on his past behaviour and the decision of the Panel. The Registrant did not appear to have the understanding the Panel would expect of the requirements of basic courtesy and respect for colleagues and members of the public.

80. The Panel was encouraged by the positive evidence in relation to the improvement in the Registrant’s health since July 2015.

81. The Panel considered the level of the Registrant’s insight. The Registrant has acknowledged that in relation to the incidents in particular 2 that he overreacted on both occasions. However, the Panel found that the Registrant continued to blame others and does not take full responsibility for his actions.

82. In the Panel’s view the Registrant continued to view the incidents in terms of his own concerns or justification. He has not yet reflected deeply to understand the way in which his behaviour had a serious impact on his colleagues, or the impact and potential impact of his behaviour on patients. He is not sufficiently self-critical. An example of this is that the Registrant was asked about his answers at the April 2017 hearing where he described his reactions to ZM as “natural” and “normal” and states “If someone puts their hand on you, you’re going to react”. When the Registrant was asked about these answers, he continued to partly justify his actions, for example he said it was not too bad what I did with [ZM] “as it was away from the public”.

83. The Registrant’s position is that the situations which led to the incidents in particular 2 were unique and unusual and that he was therefore unlikely to face similar situations in the future. The Panel did not agree. It was highly likely that the Registrant would in the future come across difficult situations with colleagues and managers. It was also likely that, as a Radiographer, the Registrant would have contact with members of the public who were confronting him with a complaint or a challenge. The Panel would need to be confident that the Registrant would continue to maintain the required standards of conduct in stressful situations in order to conclude that he is currently safe to practise without restriction. The Panel was not sufficiently persuaded by the Registrant’s evidence that he would consistently maintain standards in all these circumstances.

84. The Panel considered that there had been an improvement in the Registrant’s demeanour and the level of his insight since the hearing in April 2017, but the Panel still had concerns that he did not take the Allegation sufficiently seriously.

85. The misconduct in this case includes a behavioural issue which may be more difficult to remedy than clinical concerns. Nevertheless, the Panel considered that the misconduct in this case is remediable, however, the Panel found that the Registrant has not remediated his misconduct. He has not identified the need for any different strategies or steps to address stressful situations. He has not undertaken training to assist him in conflict management, anger management or stress management. Despite stating that he now manages stressful situations well, the Registrant was not able to give any examples of a stressful situation in which he had successfully used strategies he had learned to ensure that his communication remains professional and courteous.

86. Taking into account all these factors, the Panel considered that there was a real risk of repetition of similar misconduct.

87. If the Registrant’s misconduct were to be repeated, it would involve a potential risk to members of the public. The Registrant’s conduct in both particulars 1 and 2 involves direct and indirect risks. The direct risks are that members of the public might be involved in or witness a confrontation with the Registrant. The indirect risks are that the Registrant would not be focussed on his professional duties and this would have an impact on the delivery of patient care. This is illustrated by particular 1 where the Registrant’s conduct delayed the preparatory work for the theatre procedure. In different circumstances delays or failures to carry out required professional duties could have an impact on patients.

88. The Panel therefore considered that it was necessary to find that the Registrant’s fitness to practise is impaired, taking into account the need to protect the public. The Panel had in mind the need to protect patients, members of the public, and the Registrant’s colleagues.

89. The Panel also considered the wider public interest considerations including the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. The Panel considered the perception of a member of the public who was fully informed, including the knowledge that health reasons were a contributory factor to the Registrant’s misconduct. Members of the public would not expect to see a Radiographer behaving as the Registrant did, even if health reasons were a contributory factor, and would expect the Regulator to take appropriate action. Informed members of the public would also expect the Regulator to take steps to mark the seriousness of the Registrant’s conduct and to declare that his conduct was entirely unacceptable.

90. The Panel therefore decided that the Registrant’s fitness to practise is currently impaired on the basis of the personal component and the public component.
Decision on Sanction
98. In considering what, if any sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.

99. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.

100. The Panel decided that the aggravating features include:

• the Registrant’s conviction in March 2015, after the events concerned in the Allegation, which led to the imposition of a Caution Order;

• the Registrant’s misconduct involved the risk of harm to patients and colleagues;

• the Registrant’s misconduct cannot be described as an isolated incident;

• the risk of repetition;

• the Registrant’s limited insight and limited remorse.

101. The Panel decided that the mitigating features include:

• the admissions made by the Registrant

• matters relating to the Registrant’s health.

102. The seriousness of this case meant that taking no action was not an option and a Caution Order, even for the maximum duration, would not provide adequate protection to the public or the required level of public reassurance.

103. Mr James invited the Panel to consider imposing a Conditions of Practice Order. He suggested that the conditions might impose obligations on the Registrant before he undertook any work as a Radiographer and then conditions which would apply if the Registrant worked as a Radiographer. Mr James confirmed that the Registrant was willing to comply with conditions of practice.

104. The Panel considered that any conditions which would be sufficient to protect the public would be so restrictive that they would amount to a Suspension Order. The Panel’s view was that the Registrant must first demonstrate to a Panel that he has addressed the concerns about his behaviour. He should demonstrate to a Panel that he has embedded the changes in his attitude in day to day situations before he could be considered safe to return to practise, even under conditions of practice. A conditions of Practice Order, as suggested by Mr James, would not provide the necessary degree of public protection because there would be insufficient oversight of the required behavioural change. The Panel’s view is that the Registrant does not currently have a sufficient level of insight for conditions of practice to be appropriate. The Panel decided that conditions of practice would not provide adequate protection of the public or maintain confidence in the profession and the regulatory process.

105. The Panel next considered the more serious sanctions of a Suspension Order or a Striking Off Order. In considering the proportionality of a Suspension Order the Panel carefully evaluated the mitigating circumstances. In the Panel’s view the most important mitigating factor in this case is the health matters which were a contributing factor in the Registrant’s misconduct. It was also relevant that the Registrant’s health appears to have stabilised, with the exception to that being the health concern at the hearing in April 2017.

106. The Panel’s assessment, at the present time, is that there is a prospect that the Registrant will be able to remedy his misconduct and demonstrate that he is no longer a risk to the public. In these circumstances the Panel’s view is that a Striking Off Order would be disproportionate at this stage. It would be unnecessarily punitive. A Suspension Order would provide a sufficient degree of public protection.

107. The Panel considered the wider public interest considerations including the need to maintain confidence in the profession and the regulatory process. The Panel decided that an informed member of the public would be reassured that a Suspension Order will prevent the Registrant from practising as a Radiographer. Members of the public would also recognise that there is a public interest in the Registrant returning to practise as a Radiographer if he demonstrates that he has addressed the behavioural issues and that he continues to take responsible action to monitor and maintain his health. The Panel did not consider that the misconduct in this case was so serious that the only appropriate order was a Striking-Off Order.

108. The Panel therefore decided that the appropriate and proportionate Order is a Suspension Order.

109. The Panel considered the length of the Suspension Order and decided that it should be for the maximum period of 12 months. The Panel considered that the Registrant would need time to reflect on the decision of the Panel and prepare the evidence to persuade a reviewing Panel that he has addressed the behavioural concerns. The period of 12 months would also enable a further review of the health matters. A 12 month Suspension Order was also appropriate to mark the seriousness of the Registrant’s conduct. It would send a sufficiently clear message to other Registrants that the Registrant’s misconduct was entirely unacceptable.

110. Mr James invited the Panel to consider specifying any steps that the Registrant might take during a period of Suspension, if the Panel decided that a Suspension Order was the appropriate sanction. The Panel has done so; this is intended to assist the Registrant, it does not impose any requirements on him. A future reviewing Panel may be assisted by the following evidence:

• up to date medical evidence;
• a written reflective piece focussing on the decision of the Panel and the impact of the Registrant’s actions on others;
• evidence of how the Registrant is managing stressful or confrontational situations, this might include evidence of relevant training courses, the Registrant’s reflection on any training courses, descriptions of any coping strategies, and examples of situations in which he has applied his learning and/or coping strategies;
• evidence that the Registrant has kept his skills and knowledge up to date such as any continuing professional development courses undertaken;
• references or testimonials which may be from employment, voluntary work and/or the Registrant’s private life.

111. Ms Chaker made an application for an Interim Suspension Order on the ground that it was necessary for the protection of the public.

112. Mr James did not oppose the application. He made the observation that there may not be a practical need for an interim order in the circumstances of this case where the Registrant is not working as a Radiographer.

113. The Panel decided to impose an Interim Suspension Order for a period of eighteen months on the ground that it was necessary for the protection of the public. The Panel has identified an ongoing risk to members of the public because of the real risk of repetition of misconduct.

Order

ORDER: The Registrar is directed to suspend the registration of Jason Mariah from the Register for a period of 12 months from the date this Order comes into effect.

Notes

The Order imposed today will apply from 7 November 2017 (the Operative Date).

 

This Order will be reviewed before its expiry on 7 November 2018.

Hearing history

History of Hearings for Jason Mariah

Date Panel Hearing type Outcomes / Status
09/10/2017 Conduct and Competence Committee Final Hearing Suspended
23/02/2017 Conduct and Competence Committee Final Hearing Caution