Mr Wilson Huelgas

: Radiographer

: RA67965

: Final Hearing

Date and Time of hearing:10:00 06/11/2017 End: 17:00 09/11/2017

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

: Conduct and Competence Committee
: Suspended

Allegation

Whilst registered as a Radiographer, on 10 July 2013 you attended an interview with Worcestershire Acute Hospitals Trust, at which you:

1. Were unable to demonstrate adequate knowledge of radiography procedures when answering questions in relation to:
a) Ionising radiation
b) MRI contra-indications
c) IV contrasts
d) Creatinine levels
e) Data protection procedures
f) Quality Assurance procedures

2. The matters set out in paragraph 1 constitute a lack of competence.

3. By reason of your lack of competence your fitness to practise is impaired.

Finding

Preliminary matters:
Service of Notice of Hearing

1. Notice of these proceedings was posted by first class post to the Registrant at his registered address on 4 August 2017. Notice was also served by email on the same date. The Panel was shown documents which established that proper service had taken place and confirmed the identity of the Registrant’s registered address. In these circumstances, the Panel was satisfied that proper service of the Notice had been effected.


Proceeding in the absence of the Registrant

2. Ms Ryan, on behalf of the HCPC, submitted that this hearing should proceed in the absence of the Registrant.

3. Ms Ryan outlined the history of the matter and the Registrant’s engagement with the HCPC. There had been two previous listings of the case, in January 2016 and June 2017, both of which had been adjourned.  The Registrant did not attend on either occasion.  There had also been interim order hearings, most recently in May 2017, which the Registrant had not attended. 

4. Ms Ryan further informed the Panel that the Registrant had engaged with the proceedings initially, but had ceased communication with the HCPC in about March 2016.  There had been no communication from the Registrant with regard to the present hearing. A bundle sent to the Registrant in May 2017 by the HCPC had been returned marked “not called for”. A tracing agent, instructed by the HCPC, confirmed that the Registrant was apparently still at the address shown on the HCPC Register.

5. The Panel heard and accepted the advice of the Legal Assessor. The Panel’s attention was drawn to the guidance on proceeding in the absence of the Registrant in the cases of R v Jones (Anthony) [2003] 1 AC 1HL and General Medical Council v Adeogba and Visvardis [2016] EWCA Civ 162.

6. The Panel was aware of the need to consider the application to proceed in the absence of the Registrant with the utmost care and caution and with the overall fairness of the proceedings at the forefront of its mind. However, after giving the application careful consideration, the Panel determined to exercise its discretion to proceed. The reasons were as follows:

• Notice of this hearing had been properly served on the Registrant by special delivery post;

• The Registrant had not engaged with the HCPC since around March 2016;

• The Registrant had not contacted the HCPC to say that he is unable to attend this hearing for any reason and no application for an adjournment had been made;

• Given the history of non-engagement with the HCPC for over 18 months, including not attending at previous substantive and interim order hearings, there was no reason to suppose that the Registrant would attend on a future occasion if the matter were adjourned today;

• The Panel was mindful of the general public interest in regulatory cases being dealt with within a reasonable timeframe.  The Panel was aware that the events leading to the allegation in this case dated back to 2013 and the matter had already been adjourned on two previous occasions;

• The Panel was aware that fairness to the HCPC must also be considered and was mindful of the impact of the passage of time on the recollection of witnesses who were in attendance and ready to proceed today.

• In all the circumstances, the Panel was satisfied that the Registrant had waived his right to attend the hearing and that it was in the public interest to proceed today. 

Background:
7. The Registrant, Wilson Huelgas, obtained a Bachelor of Science in Radiologic Technology in 1994 and worked as a Band 5 Diagnostic Radiographer for Chest Diseases Hospital in Kuwait from March 1996 until March 2001.
8. In June 2013 he applied for a role as a Band 6 Radiographer in the X-Ray department at Alexandra Hospital in Redditch.  He attended an interview for the position on 10 July 2013.  The interviewers, DT, Site Superintendent Radiographer for Worcestershire Acute Hospitals Trust, and CW, Acting Deputy Site Superintendent, found that the Registrant was unable to answer questions on a number of basic and essential topics which they would expect a qualified Radiographer to be able to answer.  The Registrant’s answers were unsatisfactory and caused DT to have concerns about his competence as a Radiographer.  She referred her concerns to the HCPC on 15 July 2013. 
9. On his application for the position, the Registrant had referred to having been working as a Band 5 Diagnostic Radiographer at the Royal Orthopaedic Hospital in Birmingham between December 2012 and December 2013.  KJ, Superintendent Radiographer at the Royal Orthopaedic Hospital NHS Trust, confirmed that he was employed as a Healthcare Assistant on the wards at the Hospital.  He had only undertaken two days as a bank Band 5 Radiographer in November 2012 and had appeared to lack experience and needed supervision.  He had not been asked to work any further bank shifts.
Documents:
10. The Panel received from the HCPC a bundle comprising 33 pages and a bundles of exhibits of 37 pages. No submissions or documents had been received from the Registrant.

Legal Advice
11. The Panel accepted the advice of the Legal Assessor and was mindful that the burden of proof of the allegation is upon the HCPC throughout and the standard of proof in these proceedings is the civil standard, the balance of probabilities. 
Decision on Facts:
12. The Panel heard evidence from three witnesses on behalf of the HCPC and received their witness statements.
Witnesses:
DT
13. DT was, at the relevant time, the Site Superintendent Radiographer for Worcestershire Acute Hospitals Trust. The Panel found her evidence to be credible, consistent and compelling.  When she was unable to recall any matter, she readily accepted this. 
14. DT’s evidence was that on 10 July 2013, she and her colleague, CW, had interviewed the Registrant. Both were Radiographers of many years’ experience and had conducted many interviews. 
15. DT produced copies of her own and CW’s interview records setting out the interview questions.  The records each showed their handwritten notes and the scores given.  DT confirmed she and her colleague had completed their records contemporaneously during the interview and independently. For questions relating to key skills and knowledge they gave the Registrant scores between ‘0’ and ‘2’ out of a possible ‘10’ marks.
16. DT said the areas of questions, as identified at (a) to (f) in the allegation, dealt with basic and essential areas of radiography practice which any radiographer should be able to answer. The Registrant was unable to give adequate answers, even when prompted.  The Registrant had seemed confident and unaware that his answers were inadequate.  DT’s view was that he presented a potential danger due to his lack of knowledge and lack of awareness.  DT had conducted many interviews and had never had such concerns following an interview before, nor had she ever referred anyone to the HCPC. 
KJ
17. KJ is Superintendent Radiographer at the Royal Orthopaedic Hospital NHS Trust in Birmingham. At the relevant time, in 2012, she had temporarily taken on the role of Radiography Coordinator. The Panel found her to be a confident and credible witness, though she had limited direct contact with the Registrant.  
18. KJ confirmed that the Registrant had worked at the Royal Orthopaedic Hospital in Birmingham as a Bank Radiographer on two days in November 2012.  The first day had been mainly induction.  On the second day, he had worked under supervision and with the support of other staff. She checked on him on a few occasions.  KJ explained that the Registrant was not called upon to work further bank shifts as a Radiographer because it was a busy unit and, given the level of support and supervision he required, it would not be in the interests of the efficiency of the unit to use his services again.   
19. KJ confirmed that the Registrant was also working at the Trust as an unqualified Healthcare Assistant and that she believed he is currently working for the Trust in the same capacity in theatres, but is not involved in any radiography work.  
Dr CW
20. The Panel received an expert report, dated 14 July 2016, from Dr CW, EdD, MSc, DCR, SFHEA. At the time of preparing her report Dr CW was Associate Professor in the Faculty of Health, Social Care and Education, Kingston and St Georges University, London but had now left that employment and was running her own training consultancy.
21. The Panel found the evidence of Dr CW to be considered and credible.  She had been asked to review the documents in the HCPC’s case and in particular to assess the answers of the Registrant in interview on 10 July 2013, as recorded by DT and CW.  She had not been present at that interview. Dr CW had also had sight of the job description which she considered appropriate for the role of a Band 6 Radiographer and she considered would indicate to the Registrant the skills he would be expected to display in the interview. 
22. Dr CW confirmed that she had considered the questions asked at the interview and concluded that they were reasonable and appropriate questions in the context of a Band 6 position and would reflect the relevant skills required for that role.
23. Dr CW expressed the opinion that, in each of the specific areas of questioning, she did not consider the answers to be adequate and they did not evidence the competencies she would expect for a person applying for this role.  In her view the answers recorded were at the level appropriate to a student. She expressed the view that this lack of knowledge had the potential to cause significant risk of harm.
Panel Decision on facts:
24. The Panel considered the oral evidence of the witnesses called by the HCPC, as set out above.  The Panel had not received any submissions from the Registrant. 
25. The Panel considered each of the sub-particulars of the allegation, at (a) to (f) individually.  The Panel accepted the evidence of DT about her findings and those of CW at the interview. It noted the consistency between their records, and that they had been completed during the interview and independently.  The Panel found the expert opinion of Dr CW of assistance. 
26. The Panel noted that all the witnesses had formed the view that the Registrant demonstrated the level of knowledge more appropriate to a student.  The Panel considered that most of the interview questions related to basic and essential areas of radiography practice. The Registrant had been unable to demonstrate the required knowledge. The Panel noted that he had undergone induction for his Health Care Assistant position which would have given him some knowledge in respect, for example, of basic data protection issues, which he was nevertheless unable to answer adequately at the interview. 
27. The Panel noted the evidence of DT that the Registrant did not appear anxious at the interview, but seemed confident and showed a concerning lack of appreciation of his unacceptably low standard of answers. 
28. The Panel considered each individual particular of the allegation. The Panel was satisfied overall that the Registrant was unable to demonstrate adequate knowledge of radiography procedures in the areas (a) to (f) as alleged and found the facts proved. 
Decision on Lack of Competence:
29. The Panel had been referred to the leading case on lack of competence/deficient professional performance, R on the application of Calhaem v General Medical Council [2007] EWHC 2060 (Admin).
30. The Panel was mindful that the interview in this case was a single occasion but considered that the issues demonstrated a lack of knowledge across a range of the basic and essential skills and knowledge required for competent and safe radiography practice. 
31. The Panel found the circumstances were exceptional, in that the serious inadequacies observed by the witnesses DT and Dr CW led them to express concern that there was a potential for risk of harm to patients of which the Registrant appeared to be unaware.  The Panel found this evidence particularly compelling.  
32. The Panel considered the following HCPC standards, being those in force at the relevant time, were applicable:
HCPC Standards of Conduct, Performance and Ethics:
• 5 – You must keep your professional knowledge up to date
HCPC Standard of Proficiency for Radiographers:
• 1 – be able to practice safely and effectively within their scope of practice
• 3.3 – understand both the need to keep skills and knowledge up to date and the importance of life-long learning
• 12.3 – understand the principles of quality control and quality assurance as they apply to the practice of diagnostic or therapeutic radiography
• 12.4 - be aware of the role of audit and review in quality management, including quality control, quality assurance and the use of appropriate outcome measures
• 12.6 - be aware of, and be able to participate in, quality assurance programmes, where appropriate
• 13.6 - understand the radiobiological principles on which the practice of radiography is based
• 13.7 - understand the risk-benefit philosophy and principles involved in the practice of diagnostic or therapeutic radiography
• 13.9 - understand and be able to apply the physical principles of ionising radiation production, interaction with matter, beam modification and radiation protection for diagnostic imaging or radiotherapy treatment
• 13.10 - know the physical and scientific principles on which image formation using ionising and non-ionising radiation is based
• 13.19 - understand the quality assurance processes in place within diagnostic imaging or radiotherapy
• 14 - be able to draw on appropriate knowledge and skills to inform practice
33. The Panel found that based on the facts proved, the Registrant had demonstrated a lack of competence. 
Decision on Impairment:
34. Ms Ryan called further witness evidence in relation to the question of current impairment. 
35. She made an application to hear the evidence of one witness, Dr VG, by telephone. Dr VG had been scheduled to attend the hearing to give evidence in person on the following day.  However, the stage had been reached in the process where the hearing was ready to receive the evidence of Dr VG a day early and Ms Ryan therefore applied to allow her to give her evidence via a telephone link. 
36. The Panel noted and agreed with Ms Ryan’s submission that Dr VG was a professional witness whose evidence related to an assessment she had undertaken and the results thereof.  Issues of credibility and demeanour when giving evidence were less significant in these circumstances.  The Panel and Ms Ryan would still be able to question the witness.  Further, as the Registrant was not present at the hearing, there was no issue as to his ability to cross-examine the witness.  It was also the Panel’s responsibility to ensure that the hearing progressed as efficiently as possible in the interests of all parties and in the public interest, provided this was consistent with the primary concern of fairness.   The Panel considered that to interrupt the flow of the current hearing to await the attendance of Dr VG on a later date would not advance those interests. The Panel was of the view that no unfairness would be caused by hearing this witness by telephone and it accepted Ms Ryan’s application.
37. Dr VG gave evidence by means of a telephone link. She is employed at The Faculty of Health and Applied Sciences at the University of the West of England.  She confirmed that she was instructed by the HCPC to conduct a Test of Competence (“ToC”) in respect of the Registrant.  The ToC took place on 24 September 2014 and involved a written and practical assessment. Her report of the ToC was dated 26 September 2016.
38. Dr VG’s conclusion was that the Registrant appeared to possess a basic level of radiography.  She noted his language skills were “fairly rudimentary”. In her report, Dr VG states “it was noted that his understanding of the English language was not good and some sentences had to be repeated to him in order for him to understand. Likewise, it was sometimes difficult to understand his responses, and clarification had to be sought from him on several occasions to ensure appropriate understanding”.
39. Dr VG described the Registrant’s level of diagnostic radiography as rated at just below the level of a graduating radiography student.  She concluded that the assessment findings and results indicated that the Registrant would benefit from a period of supervised practice in order to ensure that his knowledge and skills were of the required standard to practise as a Radiographer in the UK. 
40. Dr CW was recalled to give further evidence.  She confirmed that she had been instructed by the HCPC to consider the report of Dr VG.  Dr CW produced a report dated 14 July 2016.   Dr CW had been asked to give her opinion, having reviewed the relevant documents from Dr VG’s report, as to whether the responses given by the Registrant were those she would expect to see from a competent radiographer; if they fell below the standard expected, how they did so; and to indicate whether, in the light of the Registant’s responses and conduct, she would expect him to be able to act as an autonomous practitioner without supervision. 
41. Dr CW was of the opinion, having reviewed the evidence, that the Registrant demonstrated sufficient knowledge in terms of general imaging.  However, she described it as a “snapshot”, in that it focussed on a relatively narrow area, but did not give a picture of the wider areas of the Registrant’s competence.  Dr CW therefore did not consider she was in a position to say that the Registrant was fit to practise autonomously and without supervision. 
42. Ms Ryan's submission was that in the light of the evidence of Dr VG and Dr CW, and given the lack of any more up to date evidence about the Registrant’s current competence, the Panel should find that his fitness to practise is currently impaired.  
Panel decision
43. The Panel considered whether the Registrant’s fitness to practise is currently impaired by reason of lack of competence.
44. The Panel accepted the advice of the Legal Assessor and had regard to the HCPC Practice Note “Finding that Fitness to Practise is Impaired”, dated March 2017. It kept in mind that not every finding of misconduct will result in a conclusion that fitness to practise is impaired and noted that impairment is ‘forward looking’, but also takes account of past actions. The Panel was also mindful that it must keep in mind the wider public interest, as referred to in the case of CHRE v NMC & Paula Grant.  
45. The Panel found the evidence of Dr VG and Dr CW of assistance.  It noted there were slight differences in their conclusions.  The Panel noted that Dr VG had met with the Registrant in person at the ToC in September 2014 and had been able to assess him and speak with him. Dr CW had not met the Registrant or assessed him in person. Her opinion was based on other reports.  Her evidence was helpful, but the Panel found the evidence of Dr VG compelling.  In her assessment, which was itself now over three years ago, the Registrant’s competence was below the level of a graduating radiography student. 
46. There was no evidence before the Panel of any improvement since that time; indeed there was no evidence at all in relation to the Registrant’s current competence.  Whilst the Panel gave the Registrant credit for having engaged in the early stages of the process, and for undergoing the ToC in September 2014, there was no substantive information since then. The Panel noted from the case papers that the HCPC had sought to engage with the Registrant more recently, in late 2016/early 2017, by asking him to attend a further ToC.  The Registrant had not responded. 
47. In summary, there was therefore no evidence available to the Panel of insight or remediation, nor any reassurance to the Panel about the ongoing risk presented if the Registrant were able to continue in radiography practice.
48. The Panel considered that both the personal and public components were relevant. There was no evidence as to any steps the Registrant may have taken to improve his knowledge and practice in the past three years. It is understood he may be working as a healthcare assistant.
49. In relation to the public component, the Panel was mindful of the evidence it had heard about the Registrant’s lack of knowledge, his lack of awareness about his lack of knowledge, and the serious risk this presented to the public.  This remained a very concerning issue for the Panel and it had no evidence to satisfy it that the risk did not remain current. 
50. The Panel had also noted the concerns expressed by witnesses about the Registrant’s weak English language skills and the evidence of Dr CW about the impact of this in the context of radiography practice.  This was a further area of concern. 
51. The Panel concluded that the confidence of a well-informed member of the public would be undermined if a finding of current impairment were not made in this case. 
52. The Panel found the Registrant’s fitness to practise to be currently impaired by reason of his lack of competence.
Decision on Sanction:
53. Having found that the Registrant’s fitness to practise is currently impaired, the Panel went on to consider the question of sanction. The Panel referred to the HCPTS Indicative Sanctions Policy of March 2017.  The Panel received and accepted the advice of the Legal Assessor.
Submissions
54. Ms Ryan, on behalf of the HCPC reminded the Panel of its powers in relation to sanction and referred it to the HCPTS Indicative Sanctions Policy.

Panel decision
55. The Panel considered the issue of sanction in the light of its findings of current impairment.  It took account of all the evidence received during the hearing. The Panel had not received any evidence from the Registrant which it could take into account in mitigation.
56. In deciding what sanction, if any, to impose, the Panel was aware that the purpose of any sanction is not to be punitive, though a sanction 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 balancing this with the interests of the Registrant. Proportionality required that the Panel considers the available powers in ascending order of seriousness.
57. The Panel concluded that, in the light of the seriousness of this matter, a sanction is required. The Panel considered that neither mediation, nor a decision to take no action, were appropriate given the serious nature of the findings and the risk the Panel has identified.
58. The Panel then considered a Caution Order. This is not a minor issue. Furthermore, this is not isolated in nature as it reflects a lack of competence in respect of a range of key skills. No insight had been demonstrated and there was no evidence of remedial action. The factors in the Guidance indicating a Caution were therefore not present.  The Panel considered that a Caution would not protect the public in relation to the Panel’s concerns about the ongoing risk to the public posed by the Registrant’s lack of competence. 
59. The Panel considered whether a Conditions of Practice Order would be sufficient to address its concerns.  The Panel was mindful of the Registrant’s failure to engage with the HCPC since March 2016, including in relation to this hearing.  For a Conditions of Practice Order to be a viable sanction, the Panel must be confident of the Registrant’s willingness to engage and comply with conditions. The Panel has concluded that it cannot have the necessary confidence in this case.  Further, the Registrant has not demonstrated any insight into his failings. The Panel considered it could not formulate appropriate, realistic or verifiable conditions which would protect the public and address the public interest in this case.
60. The Panel considered that a Suspension Order for a period of 12 months was the appropriate and proportionate sanction. A period of 12 months is required in order for the Registrant to address the serious failings identified by the Panel. The Panel was aware that since this case concerns an allegation of lack of competence, it was not able to consider a Striking Off order at this time. 

Order

That the Registrar is directed to suspend the registration of Wilson Huelgas for a period of 12 months from the date this order comes into effect.

Notes

Application to proceed in the Registrant’s absence with an Interim Order:
1) Following the announcement of the sanction, the Presenting Officer, Ms Ryan, made an application for the hearing to proceed in the Registrant’s absence in order for the Panel to consider an application by the HCPC for an interim order. The Presenting Officer submitted that the Registrant had been given the appropriate notice that the HCPC may make such an application in the Notice of Hearing dated 4 August 2017.
2) The Panel accepted the advice of the Legal Assessor and was mindful that it must exercise its decision to proceed in absence with utmost caution and with the fairness of the proceedings at the forefront of its mind.  The Panel was satisfied that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed, by the Notice of Hearing sent to him on 4 August 2017, that such an application might be made, and he had not responded with regard to that warning. The Panel had made serious findings which identified clear public protection and public interest concerns.
3) The Panel’s view was that it was unlikely, given the history of non-engagement by the Registrant since March 2016, that an adjournment would secure the Registrant’s attendance on a future date. It took the view that the Registrant had waived his right to attend.
Application for an Interim Order:
4) Ms Ryan made an application for an Interim Suspension Order for a period of 18 months to cover the appeal period on the ground that it was in the interest of public protection and in the public interest.
Panel Decision:
5) The Panel accepted the advice of the Legal Assessor, who reminded the Panel of the high threshold test in Article 31(2) of the Health and Social Work Professions Order 2001.
6) The Panel considered the application in the light of the fact that the default position established by the Health and Social Work Professions Order 2001 is that when a substantive sanction is imposed, a registrant’s entitlement to practise is unrestricted pending the resolution of any appeal against the Panel’s substantive decision. 
7) In this case, the Panel had made serious findings about the Registrant’s lack of competence and had identified an ongoing risk to the public.    Accordingly, the Panel was satisfied that it was necessary, rather than only desirable, in the interest of protection of the public and in the public interest to direct that the Registrant’s registration should be suspended on an interim basis.  The Panel was satisfied that the findings were sufficiently serious  to result in a member of the public being concerned if the Registrant were permitted to practise unrestricted during the appeal period. 
8) The Panel concluded that the appropriate length of the interim suspension order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal, if one is issued.

Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing history

History of Hearings for Mr Wilson Huelgas

Date Panel Hearing type Outcomes / Status
06/11/2017 Conduct and Competence Committee Final Hearing Suspended