Mrs Catherine M Birnie

: Radiographer

: RA27601

: Final Hearing

Date and Time of hearing:10:00 23/10/2017 End: 17:00 25/10/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

(as amended at the Final Hearing)

During the course of your employment as a Radiographer at Princess Elizabeth Hospital between January 2013 and 11 November 2014:

1. In or around June 2013, you submitted at least one image which you did not take, to the Foetal Medicine Foundation, when applying for accreditation to undertake Nuchal Translucency measurements for screening Down’s Syndrome.

2. You prepared around 8/10 foetal images that were of a poor quality.

3. You prepared 9 paired images that were scanned poorly.

4. In relation to Person A, a baby born with Down’s Syndrome:

a) your antenatal scans were inadequate in that:

i) you did not detect that the baby had two holes in their heart

ii) you did not detect that the baby had abnormal heart vasculature

iii) you did not detect renal abnormalities until the 32 week scan

b) you did not report renal abnormalities to the obstetrician.

5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and:

a) incorrectly reported:

i) that the pregnancy had failed;

ii) that the uterus was empty;

iii) that the gestation sac was empty.

iv) that the measurements of the gestational sac measured 1.4mm

b) you only saved one image

6. In relation to Service User C, you performed a scan and told the Service User that the baby was alive when it had demised.

7. On or around 15th January 2014, in relation to Service User D, your scan and accompanying report did not provide a sufficiently detailed conclusion relating to the abnormalities shown in the Service User’s liver.

8. In relation to Service User E, your report of the image scans taken on 20th February 2014 was inaccurate, in that:

a) you indicated that the service user had an enlarged ovary in-keeping with polycystic ovaries when this was not the case;

b) you inadvertently measured the service user’s uterus instead of her ovaries.

9. The matters set out in paragraphs 1-8 constitute misconduct and/or lack of competence.

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

Finding

Preliminary Matters

Application to Amend

1. Ms Sharpe applied to amend the Allegation. The Registrant had been given notice of most, but not all, of the proposed amendments in advance of the hearing date. The Registrant did not object to any of the proposed amendments. The Panel accepted the advice of the Legal Assessor. The Panel decided to allow the application in its entirety on the basis that to do so was in the interests of justice; the amendments did not change the substance of the Allegation but were designed to create further clarity and could be granted without causing prejudice to the Registrant.

Admissions

2. The Registrant entered formal Admissions to the following Particulars: 1, 2, 3, 4(a)(ii), 4(a)(iii), 5(a)(i), 5(a)(iii), 5(b) and 8(a).

Background

3. At the relevant time, the Registrant was employed as a Superintendent Ultrasound Sonographer at the Princess Elizabeth Hospital, Guernsey (“the Hospital”). She had qualified as a sonographer in 1990.

4. In June 2014, an internal investigation was carried out into an allegation that when applying for accreditation with the Foetal Medicine Foundation (“FMF”) to undertake nuchal translucency scans, the Registrant had submitted images that were not her own.

5. The Hospital adopted the practice of submitting all sonographers’ scan results to the Down’s Syndrome Quality Assurance Support Service (“DQASS”) for audit in October 2013. The first such audit covered the period October 2013-April 2014. In respect of the Registrant, the results indicated that improvement would be required to achieve a green standard, as she had been rated as amber.

6. On 27 June 2014, the Registrant self-referred to the HCPC with regard to Particular 1. A disciplinary hearing was held by the Hospital with respect to this matter. During the investigation, other alleged matters came to light and a further disciplinary hearing was arranged. This matter did not progress to that hearing because the Registrant left the employment of the Hospital.

7. The Panel heard from four witnesses called on behalf of the HCPC:

• TM – Investigating Officer and Assistant Director/Head of Institute employed by the Hospital;

• AR – Radiology Services Manager employed by the Hospital;

• MR – Acting Superintendent Sonographer employed by the Hospital;

• AB – Acting Superintendent of Ultrasound employed by Rotherham NHS Foundation Trust.

The Registrant gave evidence on her own behalf.

8. The Registrant informed the Panel she moved to Guernsey in 2003 to undertake a post involving Radiography and Ultrasound. In 2009 she became a full time Senior 1 Radiographer in Ultrasound. In 2012, obstetric ultrasound scanning conducted in Guernsey was moved from the Consultant Obstetricians to the Radiology department. As none of the sonographers had recent experience of obstetric scanning, this new service required them to undertake additional training. As there was no sonographer within the organisation to lead the service or oversee the relevant training, a locum sonographer was brought over from Australia to assist. The Registrant undertook formal university training in obstetric ultrasound, which she successfully completed in 2013. Following the training, the Registrant said that she conducted scans independently with no supervision, tuition or peer review. She received no adverse feedback on her work until the Allegation was brought against her.

9. It was accepted that the Registrant had no adverse findings against her name.

Decision on Facts

10. The Panel considered TM to be consistent, fair, honest and reliable in relation to the key elements of her evidence, although the passage of time had impacted on her recollection in certain areas.

11. The Panel considered that AR gave compelling, clear, honest and balanced evidence. In the main his recollection of events was good. He was open-minded, as illustrated by his willingness to reflect on his evidence where appropriate.

12. The Panel considered that MR gave full answers to the questions put to him. On occasion, he appeared to be defensive. His frustration at what he saw as systemic failures in the Hospital was clear.

13. The Panel considered that AB was consistent, thoughtful, fair and balanced, and had a good recollection of events.

14. The Panel considered the Registrant to be an honest and reliable witness. She gave full and considered answers to all questions and remained well-balanced in her evidence.

15. Throughout its decisions of fact, the Panel accepted the advice of the Legal Assessor and adopted the burden and standard of proof.

Particular 1 – Proved

1. In or around June 2013, you submitted at least one image which you did not take, to the Foetal Medicine Foundation, when applying for accreditation to undertake Nuchal Translucency measurements for screening Down’s Syndrome.

16. The Panel heard that a Nuchal Translucency (“NT”) scan, which measures the layer of fluid at the back of a foetus’s neck, is used in conjunction with a Crown Rump Length (“CRL”) scan, which measures the length of the foetus, to calculate the risk factor of a baby being born with Down’s Syndrome.

17. The Panel heard that the Foetal Medical Foundation (“FMF”) is an obstetric organisation which offered a globally accepted certificate of competence in NT scanning. The NHS later developed its own accreditation process, the Foetal Anomaly Screening Programme (“FASP”). The Panel was informed that the Hospital focussed primarily on accreditation via the FMF.

18. In or around June 2013, the Registrant applied for accreditation to undertake NT scans with the FMF. She was required to complete an online exam and provide two images—the CRL image and the NT image—for three babies. Those images of the same baby were then paired and considered by the FMF for technical quality and user skill.

19. The Panel heard that in September 2013, the Registrant informed both AR and MR that she had submitted another radiographer’s scans to the FMF to gain her NT scan accreditation.

Registrant’s position

20. The Registrant admitted this Particular.

21. The Registrant accepted that she had submitted at least one image to the FMF that had not been taken by her. She claimed that her trainer, a locum sonographer who had recently worked in Australia, had informed her that it was acceptable to submit images that were not her own and that this was common practice in Australia.

22. The Registrant had brought this matter to the attention of the HCPC in her self- referral letter. She also admitted the matter in the course of the internal investigation; she recalled that she had been away on leave on the date when one of the images that had been submitted on her behalf had been taken.

Decision

23. The Panel accepted the Registrant’s formal Admission, which was consistent with her evidence that she was on leave on the date when one of the images was taken, and was also consistent with the evidence of AR and MR.

24. Accordingly, the Panel found this particular proved.

Particular 2 – Proved

2. You prepared around 8/10 foetal images that were of a poor quality.

25. Between October 2013 and April 2014, AR was asked to undertake an audit of all the foetal images taken by the Registrant by means of NT scans during the preceding six months. He informed the Panel that he reviewed a total of 79 sets of scans, using the DQASS and FASP criteria. He concluded that 17/19 were of “poor” quality.

26. The HCPC had only included 8/10 of these in this Particular, to avoid duplicity with Particular 3.

Registrant’s position

27. The Registrant admitted this Particular.

28. The Registrant did not dispute the evidence of AR that the 8/10 images were found to be of poor quality when assessed in line with the DQASS and the FASP criteria. She wished the Panel to bear in mind that the images had been taken over a period of approximately six months, in which time she had not received any feedback on image quality. She also pointed out that the percentage of images rated as “poor” had decreased with time.

Decision

29. The Panel accepted the Registrant’s formal Admission which was consistent with the findings of the audit conducted by AR, who had assessed the images against the FASP and DQASS criteria in existence at that time, finding them to be of poor quality.

30. Accordingly, the Panel found this Particular proved.

Particular 3 – Proved

3. You prepared 9 paired images that were scanned poorly.

31. The Panel heard that “paired images” are two obstetric images that are taken of the same woman, on the same day, during the same scanning appointment. The first image is the CRL image; the second is the NT scan.

32. As part of his investigation, AR suggested to the Hospital authorities that AB would be a suitable person to review the accuracy of some nine paired images that formed part of the set of 79 scans that AR had himself reviewed.

33. AB qualified as a Radiographer in 2000. At the time of making her witness statement, she was the Acting Superintendent of Ultrasound in the Clinical Radiology Department at the Rotherham NHS Foundation Trust, where she was responsible for managing the ultrasound staff and department across radiology, early pregnancy and obstetrics. Prior to this, she was the lead sonographer in obstetrics and gynaecology. She had previously worked with AR. AB had previously held responsibility for the audit of sonographers’ work across her region.

34. The Panel heard that the nine ‘paired’ images had been selected by AR on the basis that they were of the lowest quality.

35. Each set of paired images were reviewed by AR and AB in accordance with the NHS FASP recommendations.

36. All nine paired images were ranked by AB as ‘poor’ overall.

Registrant’s position

37. On viewing the scans, the Registrant agreed that whilst she could not be sure, she probably took the nine paired images which were of poor quality according to the criteria.

Decision

38. The Panel accepted the Registrant’s formal Admission, which was consistent with the findings of the audit of the images conducted by AR and with AB’s subsequent review. The Panel noted that AB was external to the Hospital; she worked at the Rotherham NHS Foundation Trust.

39. Accordingly, the Panel found this Particular proved

Particular 4(a)(i) – Not Proved

4. In relation to Person A, a baby born with Down’s Syndrome:

a) your antenatal scans were inadequate in that:

i) you did not detect that the baby had two holes in their heart

40. The Panel heard that the Registrant performed obstetric scans on Person A on 3 December 2013 (the dating CRL and NT scan), 20 January 2014 (the 20 week anomaly scan) and 16 April 2014 (the 32 week growth scan).

41. Person A was born with Down’s Syndrome, two holes in the heart, abnormal heart vasculature and renal abnormalities.

42. The HCPC presented its case in relation to this Particular on the basis that the word “scan” referred to the overall procedure when conducting a scan, and in particular what was done after taking and producing the image.

43. It was accepted by the HCPC that holes in the heart can be difficult to diagnose from antenatal scans. However, AR gave evidence that the scans taken by the Registrant were of such poor quality that it would have been impossible for the Registrant to detect the two holes even if they had the potential to be visible.

Registrant’s position

44. The Registrant argued that it is accepted that 50 percent of serious cardiac abnormalities are not picked up through antenatal scans. She therefore did not accept that by virtue of the fact that she did not detect the two holes, it followed that her scan must have been inadequate.

Decision

45. In considering Particular 4(a)(i), the Panel accepted and adopted the way in which the HCPC had presented its case, namely that the word “scan” was intended to incorporate both the taking and production of the image as well as the reporting of the results.

46. It was common ground that scans at the time would detect only 50 percent of heart defects. The Panel was not satisfied that the HCPC had produced evidence to satisfy it that any scans taken by the Registrant would have fallen into the successful 50 percent. Therefore, there was insufficient evidence to prove on the balance of probabilities that there had been a failure to detect the two holes in the baby’s heart due to the inadequacy of the scans.

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

Particular 4(a)(ii) – Proved

ii) you did not detect that the baby had abnormal heart vasculature

48. AR gave evidence that the Registrant did not detect that Person A had abnormal heart vasculature, in that she confirmed in her report that she had seen all four chambers of the heart and the great vessels, and failed to detect an abnormal heart vasculature.

Registrant’s position

49. The Registrant admitted this sub-Particular. She accepted that the scan was inadequate and that she did not detect that the baby had abnormal heart vasculature, which she should have done.

Decision

50. In considering Particular 4(a)(ii), the Panel continued to apply the definition of “scan” adopted in relation to the previous particular.

51. On reviewing the relevant image in the course of the hearing, the Registrant accepted, when giving evidence, that she “probably could have detected” the heart vasculature. This was consistent with the evidence of AR. The Registrant’s report on the image indicated that she did not do this. The Panel was satisfied, on the balance of probabilities, that the Registrant’s antenatal scans were inadequate in this regard.

52. Accordingly, the Panel accepted the Registrant’s Admission and found Particular 4(a)(ii) proved.

Particular 4(a)(iii) – Proved
Particular 4(b) – Not Proved

4. In relation to Person A, a baby born with Down’s Syndrome:

a) your antenatal scans were inadequate in that

(iii) you did not detect renal abnormalities until the 32 week scan, and

(b) you did not report renal abnormalities to the obstetrician.

53. AR informed the Panel that Person A’s 20-week scan indicated that the kidneys were dilated and it therefore would have been possible for the Registrant to detect renal abnormalities. However, no abnormalities were reported by the Registrant at the 20-week scan.

54. Person A’s renal abnormalities were identified by the Registrant at the 32 week scan.

55. AR gave evidence that there was a protocol in place regarding the reporting of abnormalities to the obstetrician and that the Registrant should have documented them and then made contact by phone or by email.

Registrant’s position

56. The Registrant admitted Sub-Particular 4(a)(iii) but denied Sub-Particular 4(b).

57. She accepted, on reviewing the images, that she should have, but did not, detect renal abnormalities until the 32-week scan, and that her 20-week antenatal scan was inadequate in that regard.

58. In relation to Particular 4(b), the Registrant argued that the note that she had made in the report sent to the obstetrician in relation to the 32 week scan which read “Slight dilation of the upper renal tracts bilaterally, 8mm and 11mm” amounted to a report of renal abnormality.

Decision

59. In considering Particular 4(a)(iii), the Panel continued with its adopted approach to the definition of the word “scan”.

60. The Registrant’s Admission was consistent with her evidence that upon subsequent review of the 20-week scans they do show renal abnormalities, and was inconsistent with the evidence of AR. The Registrant accepted that the issue should have been identified prior to the 32-week scan.

61. Accordingly, the Panel accepted the Registrant’s Admission and found Particular 4(a)(iii) proved.

62. In considering Particular 4(b), the Panel was satisfied that the Registrant’s report of 10 April 2014 identified renal abnormalities. It was further satisfied that a copy of that report was sent to the obstetrician. In those circumstances, the Panel found that the Registrant had reported renal abnormalities to the obstetrician.

63. Accordingly, the Panel found Particular 4(b) not proved.

Particular 5(a)(i) – Proved
Particular 5(a)(ii) – Not Proved
Particular 5(a)(iii) – Proved

5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and

(a) incorrectly reported:

i) that the pregnancy had failed;

ii) that the uterus was empty;

iii) that the gestation sac was empty.

64. AR informed the Panel that on 22 October 2013, the Registrant conducted Service User B’s 12-week scan and reported that the uterus and accompanying gestation sac was empty. As a result of this, Service User B was informed that the pregnancy had failed and was referred to an obstetrician.

65. On reviewing the image from this scan, AR noted that a ‘yolk-sac’ could clearly be seen with the normal appearance of an enlarged gestational sac, which is a positive early sign of a healthy, normal pregnancy.

Registrant’s position

66. In relation to Particular 5(a)(i), the Registrant admitted that she had noted in the report that there was an empty gestational sac, which amounted to a report that the pregnancy had failed.

67. In relation to Particular 5(a)(ii), the Registrant argued that in reporting the presence of a gestation sac within the uterus, she could not have been reporting that the uterus was empty.

68. In relation to Particular 5(a)(iii), the Registrant accepted that she reported that the gestation sac was empty.

Decision

69. In relation to Particular 5(a)(i), the Panel accepted the Registrant’s admission that the medical terminology used by the Registrant in her report would clearly have been interpreted by any medical professional as meaning that the pregnancy had failed. This was consistent with the evidence of AR. Both the Registrant and AR agreed that this was the incorrect conclusion to draw.

70. Accordingly, the Panel accepted the Registrant’s formal Admission and found Particular 5(a)(i) proved.

71. In relation to Particular 5(a)(ii), the Registrant’s report shows that the gestational sack was present, but empty. The sac was in the uterus. Therefore the Registrant’s report could not be reasonably interpreted to suggest that the uterus was empty.

72. Accordingly, the Panel found Particular 5(a)(ii) not proved.

73. In relation to Particular 5(a)(iii), the Panel accepted the Registrant’s Admission. The Registrant’s report stated that the gestation sac was empty. However, in their evidence, both the Registrant and AR stated that the gestation sac was, in fact, not empty. Therefore, the Registrant’s report was incorrect.

74. Accordingly, the Panel accepted the Registrant’s formal Admission and found Particular 5(a)(iii) proved.

Particular 5(a)(iv) – Proved

5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and

(a) incorrectly reported:

(iv) that the measurements of the gestational sac measured 1.4mm

75. The Registrant reported that the gestation sac had a mean diameter of 1.4mm. The HCPC accepted that this appeared to be a typographical error, as the data on the machine showed a mean diameter of 14mm.

Registrant’s position

76. The Registrant argued that the recording of the measurement of the gestational sac as 1.4mm must have been a typographical error.

Decision

77. The report clearly showed the measurement of the gestational sac to be 1.4mm. The Panel accepted the Registrant’s position that this was a typographical error and that the correct measurement was 14mm.

78. Accordingly, the Panel found Particular 5(a)(iv) proved.

Particular 5(b) – Proved

5. In relation to Service User B, you performed a 12 week scan on 22 October 2013 and

b) you only saved one image

79. AR informed the Panel that the Registrant only saved one image from the scan on 22 October 2013. He told the Panel that Guidance suggests that many more images should have been taken and saved, particularly if the Registrant believed that the gestational sac was empty.

Registrant’s position

80. The Registrant stated that it was not her usual practice to save only one image, but that she could not rebut the evidence provided by the HCPC as she had no recollection of this alleged event.

Decision

81. The Panel accepted the Registrant’s formal Admission, which was consistent with AR’s evidence that only one image had been saved.

82. Accordingly, the Panel found Particular 5(b) proved.

Particular 6 – Not Proved

6. In relation to Service User C, you performed a scan and told the Service User that the baby was alive when it had demised.

83. It was alleged that on an unknown date, the Registrant scanned Service User C and informed AR that she had told Service User C that the baby was alive. AR said that the Registrant later told him that she had told the Service User that the pregnancy had failed, and she subsequently told AR that she had later told the Service User that she was not sure. AR reviewed the scan and confirmed that the baby had demised.

Registrant’s position

84. The Registrant disputed this allegation in its entirety. She stated that she could not recall the incident and that had it occurred, she would have remembered.

Decision

85. The Panel had been provided with the recollection of AR on the one hand and the Registrant on the other. The HCPC was unable to provide supporting evidence of AR’s recollection, such as the date and time of the scan and identity of Service User C. The Panel was unable to determine which version of events was the more accurate and found therefore that the HCPC had failed to discharge its evidential burden.

86. Accordingly, the Panel found Particular 6 not proved.

Particular 7 – Not Proved

7. On or around 15 January 2014, in relation to Service User D, your scan and accompanying report did not provide a sufficiently detailed conclusion relating to the abnormalities shown in the Service User’s liver.

87. MR informed the Panel that on 21 February 2014, he had been asked to conduct a scan on Service User D, an elderly gentleman who had been referred with abdominal pain and abnormal liver function test results and who had previously been diagnosed with bowel cancer. At this time of conducting his scan, MR had sight of the scan compiled by the Registrant at an earlier appointment of 15 January 2014, when Service User D had been referred by his GP.

88. The Registrant’s report noted that “the liver is inhomogenous with focal areas of increased echogenity”. It was alleged that this was not a sufficiently detailed conclusion, in that it did not indicate the possibility of secondary cancer.

Registrant’s position

89. The Registrant asserted that she did report that the liver was abnormal. She told the Panel that whilst she had been made aware of the abnormal liver function test results, she had not been provided with the information relating to the history of bowel cancer. She said that had she been aware of this, she would have reported that secondary cancers could not be excluded.

Decision

90. The Panel noted that the referral to the Registrant by the GP made no mention of any medical history of cancer. The Registrant’s report identified abnormalities within the liver. The Panel found that the report was full, proper and appropriate in the circumstances. The Panel was unable to identify any meaningful conclusion that the Registrant could have offered.

91. Accordingly, the Panel found Particular 7 not proved.

Particular 8(a) – Proved
Particular 8(b) – Proved

8. In relation to Service User E, your report of the image scans taken on 20 February 2014 was inaccurate, in that:

a) you indicated that the service user had an enlarged ovary in-keeping with polycystic ovaries when this was not the case, and

b) you inadvertently measured the service user’s uterus instead of her ovaries.

92. The Panel was informed that Service User E had been referred to the Hospital for a scan to determine whether she had polycystic ovaries. The Registrant scanned Service User E on 20 February 2014 and reported that the Service User had enlarged ovaries, which were polycystic in appearance.

93. Service User E’s gynaecologist requested a repeat scan. MR reviewed the scan that the Registrant had taken and asserted that instead of scanning and measuring Service User E’s ovaries, the Registrant had measured the Service User’s uterus.

94. MR also asserted that the Service User’s ovaries appeared normal, not enlarged or with visible cysts, as would be expected if they were polycystic. It was therefore alleged that the Registrant’s report that Service User E’s ovaries were “enlarged” and “polycystic in appearance” was inaccurate.

Registrant’s position

95. The Registrant accepted that she indicated that the ovaries were polycystic; she was unable to comment on whether or not this was the case. The Registrant was unable to say whether she had measured the uterus instead of the ovaries.

Decision

96. In considering Particular 8, the Panel found it helpful to consider Particular 8(b) before 8(a).

97. In considering Particular 8(b), the Panel accepted the Registrant’s Admission together with the evidence of MR that on reviewing the Registrant’s scan of Service User E, the Registrant had inadvertently measured the Service User’s uterus instead of her ovary. The Panel found, on the balance of probabilities, that the Registrant had inadvertently measured the uterus instead of the left ovary.

98. Accordingly, the Panel found Particular 8(b) proved.

99. Having first made a finding in respect of Particular 8(b), the Panel moved on to consider Particular 8(a) in the light of that finding. As the Panel was satisfied that, on the balance of probabilities, the Registrant had inadvertently measured Service User E’s uterus instead of her left ovary, it followed that the indication that she made concerning enlargement of the ovary must have been inaccurate.

100. Accordingly, the Panel accepted the Registrant's formal Admission and found Particular 8(a) proved.

Decision on Grounds

101. The Registrant submitted that her general ultrasound and radiography skills are excellent and that she had an unblemished career as a radiographer for over 30 years prior to these events. She explained that obstetrics ultrasound was in its infancy in her department at the time of the Allegation and that she had been given little, if any, support and experience in this area. She said that this had not been helped by the lack of a permanent lead obstetrics sonographer. She repeated the evidence that she had given at the fact-finding stage in relation to Particular 1, namely that she had acted on the advice of her supervisor, who was the locum lead at the time. She argued that Particular 8 amounted to an isolated event. She expressed remorse for what had occurred. She informed the Panel that she had not worked as a sonographer since November 2014, and that for financial reasons she had she been unable to undertake any relevant training. She assured the Panel that if any of these same situations arose in the future, she would ask for help.

102. The Panel accepted the advice of the Legal Assessor regarding the meaning of lack of competence, misconduct and impairment.

103. The Panel concluded that Particulars 2, 3, 4(a)(ii) and 4(a)(iii), 5 (a)(i), 5(a)(iii) and 5(a)(iv) and 8(a) and 8(b) amounted to a lack of competence on the part of the Registrant. The Panel was satisfied that it had been provided with a fair sample of the Registrant’s work over a reasonable period of time, and it was the judgement of the Panel that the Registrant had been unable to meet the standards required of her, and that her proficiency in professional practice had fallen well below the minimum acceptable level of a superintendent ultrasonographer working in the circumstances faced by her at that time.

104. The Panel concluded that Particulars 1 and 5(b) amounted to misconduct. In relation to Particular 1, it was the judgment of the Panel that regardless of any advice that may or may not have been given to the Registrant about the acceptability of submitting an image taken by someone else, the Registrant was aware that that image had been taken by someone else and it should have been obvious to her that it was unacceptable to submit this image when applying for accreditation. The Panel concluded that in submitting that image. the Registrant’s actions fell seriously below the standards to be expected of a superintendent ultrasonographer in the circumstances faced by the Registrant at the time. In relation to Particular 5(b), the Panel concluded that by saving only one image when the Registrant performed a 12-week scan on Service User B, in the knowledge that more than one should be performed, her behaviour again fell seriously short of what was proper in the circumstances.

105. In reaching its conclusions on misconduct, the Panel found that the Registrant had breached the following HCPC Standards of Conduct, Performance and Ethics:

1. You must act in the best interests of service users.
3. You must keep high standards of personal conduct.
5. You must keep your professional knowledge and skills up to date.
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
10. You must keep accurate records.

The Panel also concluded that the Registrant had breached the following HCPC Standards of Proficiency for Radiographers:

Registrant radiographers must:

1.1 know the limits of their practice and when to seek advice or refer to another professional
2.1 understand the need to act in the best interests of service users at all times
4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem
14.1 be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and accurately

Decision on Impairment

106. The Panel accepted the advice of the legal assessor who referred to the case of Grant (Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Paula Grant [2011] EWHC 92). The Panel also took account of the relevant HCPTS Practice Note.

107. The Panel concluded that the Registrant’s lack of competence placed service users at risk of harm. Further, the Panel concluded that the Registrant had brought her profession into disrepute through the delivery of services that did not meet the standard that the public had the right to expect and through her misconduct. In relation to Particulars 1 and 5(b), the Registrant had breached fundamental tenets of her profession.

108. The Panel concluded that the Registrant is showing developing insight in relation to her actions, but that her insight has not yet fully matured. The Panel concluded that whilst her misconduct and lack of competence are, in theory, capable of remediation, there was no evidence before it that they had been remediated. In the Panel’s view there was insufficient evidence with which to reassure it that there would be no repetition of the Registrant’s behaviour in the future if she is permitted to return to practice unrestricted. Therefore, the Panel finds that there remains a risk that the Registrant may in the future represent a risk to service users, bring her profession into disrepute and breach the fundamental tenets of her profession.

109. The Panel found the Registrant’s current fitness to practise to be impaired on the grounds of both public protection and the wider public interest, in maintaining confidence in the profession and declaring and upholding proper standards of conduct and professionalism.

110. Accordingly, the Panel found the Registrant’s current fitness to practice to be impaired.

Decision on Sanction

111. In considering what sanction, if any, to impose, the Panel took into account the submissions made by Ms Sharpe and by the Registrant. The Registrant repeated her submission that she had been new to the area of obstetric sonography at the time and that she had been given little guidance and support. She said that she did not intend to work in the area of obstetric ultrasound ever again. She submitted that the incidents spanned a relatively discrete period of time, stretching over some nine months. She argued that Particular 1 was a one-off incident of professional misjudgement. She expressed her shame and remorse and her determination never to repeat her behaviour if allowed to return to practice. She stated that she would work closely with the HCPC if the Panel was minded to impose Conditions of Practice.

112. The Panel accepted the advice of the Legal Assessor and referred to the HCPC Indicative Sanctions Policy in arriving at its decision.

113. The Panel bore in mind that the purpose of a sanction is not to be punitive, but is to protect the public interest. It understood the need to act proportionately, balancing the interests of the Registrant with those of the public.

114. The Panel identified the following mitigating factors:

• the difficult personal circumstances faced by the Registrant at the time;

• the Registrant’s previously unblemished career of over 30 years;

• the Registrant’s developing insight;

• the Registrant’s evidence that she felt unsupported in the workplace;

• the Registrant’s evidence that she was inexperienced in the provision of obstetric ultrasound scanning services and that this service was new to the department;

• the Registrant’s engagement with the process;

• the Registrant’s partial admissions;

• the Registrant had met with and apologised to some affected service users.

115. The Panel identified the following aggravating factors:

• the senior position of responsibility held by the Registrant;

• the seriousness of the allegation found proved.

116. The Panel considered what, if any, sanction was appropriate in the circumstances, beginning with the least restrictive.

117. The Panel concluded that to take a no further action would fail to reflect the seriousness of the misconduct and would not fulfil the need to protect patients and the public from the Registrant’s lack of competence.

118. The Panel concluded that a Caution Order would be neither appropriate nor proportionate for the same reasons.

119. The Panel considered the imposition of a Conditions of Practice Order. The Panel concluded that whilst this would allow the Registrant to address her lack of competence, it would not, in the judgement of the Panel, be sufficient to maintain public confidence in the profession, or send a sufficiently clear message to the profession about the unacceptability of her misconduct. This was especially so in relation to the Registrant’s misconduct found proved in Particular 1, namely, the Registrant’s submission of one or more images for accreditation purposes which was not her own. In light of the misconduct found proved, the Panel determined that a Conditions of Practice Order would not be sufficient or proportionate in the circumstances.

120. The Panel moved on to consider a Suspension Order. The Panel concluded that this would mark the seriousness of the misconduct and would provide the Registrant with the opportunity to prepare the ground for addressing her lack of competence, should she later be permitted to return to practice.

121. The Panel determined that a Suspension Order for a period of three months was both appropriate and proportionate and was the minimum period necessary to achieve these twin aims.

122. The Panel gave consideration to a Striking Off order, but found that the misconduct and lack of competence found proved were not fundamentally incompatible with remaining on the Register, and that such an Order would prevent the possibility of the Registrant’s eventual return to practice, which would be disproportionate and would not be in the public interest.

123. The Panel concluded that a future review panel would be assisted by:

• the Registrant’s attendance at the hearing

• a reflective piece of writing compiled by the Registrant, detailing her insight into the consequences of her actions on service users and the profession

• evidence of CPD and a plan of action in preparation for a return to practice course, should the review panel see fit to allow the Registrant to resume practice.

Order

That the Registrar is directed to suspend the registration of Mrs Catherine M Birnie for a period of 3 months from the date this order comes into effect.

Notes

This order will be reviewed again before its expiry.

Hearing history

History of Hearings for Mrs Catherine M Birnie

Date Panel Hearing type Outcomes / Status
23/10/2017 Conduct and Competence Committee Final Hearing Suspended
04/01/2017 Conduct and Competence Committee Review Hearing Hearing has not yet been held