Mr Dudu J Miah

: Clinical scientist

: CS01544

: Final Hearing

Date and Time of hearing:10:00 13/11/2017 End: 17:00 17/11/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Allegation (As amended at the Final Hearing)

During the course of your employment as a Radiotherapy Medical Physics and Engineering Lead at Hampshire Hospitals NHS Foundation Trust (HHNFT) and in your role as a Clinical Scientist, between 4 November 2013 and 25 June 2014, you:

1. Held responsibility to commission the Linear Accelerator (LINAC) in the Radiotherapy Department at Basingstoke Hospital, and you:

a) did not create and/or record an adequate commissioning plan and/or process.

b) in relation to treatment planning system commissioning did not ensure that independent verification data was measured.

c) did not instigate routine and appropriate treatment planning quality assurance
measurements.

d) did not measure independent beam data for using the Independent Monitor Unit
Calculation software application (RadCalc).

e) did not carry out and/or did not record any Volumetric Modulated Arc Therapy (“VMAT”) specific commissioning.

f) did not create and/or document a clear model for the delivery of treatment dose planning including:

i. failing to adequately define the roles and competencies of the radiographers and/or physicists involved in the treatment planning process.

g) did not ensure that there was a clear process in place for external beam reference
dosimetry.

h) did not ensure that the calibration used the same methodology as that used by the University Hospital Southampton NHS Foundation Trust with whom the NNHFT had a
service level agreement for the transfer and treatment of patients.

i) did not ensure that the initial calibration of the LINAC for electron treatments which was sent for Monaco and (RadCalc) modelling was accurate.

j) did not establish appropriate baselines for external beam quality assurance.

k) did not follow good practice in that you did not ensure that ‘end-to-end’ testing of processes was undertaken.

l) did not ensure that commissioning plans for each piece of equipment was in place.

m) did not arrange appropriate calibration certificates of the dose meters.

2. Allowed Person A and/or Person B to perform baseline data measurements without appropriate supervision.

3. Provided assurances to the Cancer Services Clinical Director and Operations Director
that work had been completed when this was not the case.

4. Prior to 24 April 2014, did not:
a) inform your managers that LINAC was not ready and/or safe for patient use;
b) prevent patients from being booked in for treatment commencing on 09 May 2014 despite LINAC not being safe or ready for use;
c) inform your managers that the proposed clinical start date of 25 April 2014 was not achievable;
d) propose a safe and realistic alternative start date.

5. Did not comply with the requirements of the Ionising Radiation (Medical Exposure)
Regulations 2000, the Ionising Radiation Regulations 1999 and/or did not adhere to ionising radiation guidance, in that you:

a) did not ensure that staff received the required training in the use of the LINAC and other
ancillary equipment, and/or did not record that staff had received the required training;

b) did not implement a suitable quality assurance programme;

c) did not carry out and/or record that you had carried out quality control tests;

d) did not measure baseline data values;

e) did not implement written protocols in relation to the following:
i. the patient treatment process;
ii. the patient imaging process;
iii. the standard operating procedures in the Radiotherapy department

6. The matter described in paragraph 3 is dishonest.

7. The matters set out in paragraphs 1 – 6 constitute misconduct and/or lack of competence.

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


 

Finding

Background

1. The Registrant Clinical Scientist was employed by the Hampshire Hospitals NHS Foundation Trust (“the Trust”) from the beginning of November 2013, as a Radiotherapy Medical Physics and Engineering Lead, including being the senior local Medical Physics Expert (MPE). His responsibility was to commission all equipment to deliver a radiotherapy service, including the linear accelerator (“LINAC”) in the new radiotherapy department of the Trust’s Cancer Services Unit. His duties and responsibilities were to determine, evaluate and establish the optimum medical physics and engineering configuration required to operate the facility, and to recruit staff and develop the team to undertake the required roles of the radiotherapy physics service.

2. It is alleged that the project was due to be completed and ready to commence radiotherapy services on 25 April 2014, but that the Registrant failed to achieve this in terms of the proper calibration of the LINAC, recruiting and developing staff, failing to inform his managers about various matters requiring a delayed start date, and non-compliance with statutory regulations and guidance relating to ionising radiation. It is further alleged that the Registrant acted dishonestly by providing assurances to both the Trust’s Clinical Director and Operations Director that work had been completed when this was not the case. These matters are alleged to constitute misconduct and/or lack of competence which leads to the Registrant’s fitness to practise being impaired.


Application to amend

3. Ms Watts on behalf of the HCPC applied for the Allegation to be amended in accordance with the notice dated 3 January 2017, sent to the Registrant of the intention to apply for the amendment. Ms Sharma on behalf of the Registrant had no objection to the amendments sought.

4. The Panel determined to accede to the application as there was no injustice, with the further addition of the words “Volumetric Modulated Arc Therapy” before “VMAT” in paragraph 1e of the Allegation to explain the abbreviation.

Admissions to the Allegations

5. Ms Sharma informed the Panel that the Registrant admitted the allegations set out in the Allegation at paragraphs 1a, 1b, 1c, 1fi, 1i, 1j, 1k, 1l, 4d, and 5e)i. Other admissions were initially indicated in respect of paragraph 5, but later withdrawn during the hearing.

Evidence

6. Witness 1, Consultant in Palliative Medicine, was the Clinical Director of Cancer Services at the Trust and was the Registrant’s line manager. She confirmed the contents of her witness statement dated 2 February 2016, and explained her shock upon learning that the LINAC was not ready on 24 April 2014, despite the Registrant’s many assurances that it would be. For instance, in an email dated 17 March 2014, the Registrant stated that “Work on Linac is 95% complete. By the end of the week, I am hoping to finish CT commissioning. Next 2-3 weeks we will spend on commissioning TPS and testing dummy patients”. Earlier, on 24 February 2014, the Registrant reported to the Radiotherapy Project Board that “Commissioning and beam data collection is on plan and progressing well”, and the Radiotherapy Project Group Minutes of 28 February 2014, recorded that the Registrant reported that commissioning was “Going well, lost a bit of time but still on track as programme was ahead of plan”.

7. In cross-examination, Witness 1 denied that the Registrant had informed her at any time before 24 April 2014, that the physics side of the LINAC commissioning would not be ready. Whilst certain administrative matters were outstanding by that time, they were not matters which prevented the clinical use of the LINAC to treat patients. Witness 1 also said that the Registrant did not inform her of any insurmountable staffing or training problems that would affect the programme timetable for completion on 24 April 2014, and had no recollection of being requested at any time for more staff by the Registrant.

8. Witness 2 had been the Operations Director in the Surgical Services Division of the Trust between 2013 and 2015. Witness 2 confirmed the contents of her witness statement dated 12 January 2016, which detailed the Registrant’s failure to inform management and assurances given to management at various meetings held from November 2013 to the end of April 2014.

9. In cross-examination, Witness 2 accepted there were some problems in preparing for the “go live” date of 25 April 2014, within the Clinical Oncology and Radiology departments, but mitigating actions were in place. She was satisfied that it was only the physics aspects of the project, which were the Registrant’s responsibility, that led to the “go live” date having to be abandoned. Witness 2 emphasised that the Registrant always assured her that, although it was hard work, the timetable would be met. She explained that a special remuneration package was put in place to encourage the necessary overtime by the physics staff. Specifically, she recalled the assurances given verbally and in writing to the Review of Governance and Safety of Radiotherapy at the Trust held on 14 April 2014, after the Trust had received concerns from the National Physics Laboratory (NPL) in a letter dated 28 March 2014.

10. In answer to Panel questions, Witness 2 confirmed that the first she knew of any concerns about the LINAC not being ready to go live on 25 April 2014, was the Trust’s receipt of a letter from NPL which had raised concerns. No concerns had been raised with her, the Project Group, or the Project Board by the Registrant at any time.

11. Witness 3, Medical Physicist and registered Clinical Scientist, gave evidence about his external review commissioned by the Trust of its radiotherapy services, which he carried out 19-21 May 2014. He confirmed the contents of his witness statement dated 22 December 2015, in which he detailed his evidence in support of the HCPC’s allegations, and identified his review report within the hearing bundle.

12. In cross-examination, Witness 3 denied that the Registrant had provided him with documents or computerised data files requested by him to demonstrate proper calibration of the LINAC machine. Witness 3 stated that, having spoken with the Registrant several times during the review, the Registrant did not realise the importance of a comprehensive commissioning of the radiotherapy equipment and the importance of independent validation of beam data and the beam model in the Monaco treatment planning system and simply considered it “good enough” to commence treatment of patients.

13. Witness 3 subsequently indicated that he had further evidence to give in respect of the Registrant’s exhibits 9, 10, 11, 13 and 14 which had been given to him a short time before he gave his evidence. Although neither Ms Watts nor Ms Sharma sought his recall to give further evidence, the Panel determined that Witness 3 should be recalled as he may have relevant further evidence to give. The Panel directed the HCPC solicitors to prepare a witness statement setting out his further evidence. When that witness statement had been prepared, Witness 3 was recalled via telephone link. He confirmed the contents of that further witness statement. He then answered questions from the Panel about which documents within exhibits 10 and 11 he had seen when he visited on 19-21 May 2014. Witness 3 was also recalled by telephone at the Panel’s request when the hearing resumed on 13 November 2017. He then stated that the certificates produced by the Registrant, since he gave evidence, did not change his conclusion stated earlier – that the Registrant did not arrange appropriate calibration certificates of the dose meters. 

14. Witness 4 has been the Divisional Planning and Development Lead at the Trust since August 2013. Witness 4 confirmed the contents of her witness statement dated 19 January 2016, in which she set out how she conducted her investigation into capability concerns relating to the Registrant. She identified her report in the hearing bundle. She confirmed that the Registrant was twice invited to attend an investigatory interview, in June and July 2014, but the Registrant did not accept either of those invitations.

15. Witness 5 was the Head of Radiotherapy Physics at The Christie NHS Foundation Trust and a member of the NHS England’s Radiotherapy Clinical Reference Group (CRG). On 24 April 2014, he carried out a visit to review the Trust’s Radiotherapy Department on behalf of NHS England. Witness 5’s role was to satisfy himself that the radiotherapy service was ready to commence patient treatments. He confirmed the contents of his witness statement dated 12 January 2016, in which he set out his findings on the deficiencies he identified. Those deficiencies related to not being able to show regulatory compliance with documentation of staff training, the absence of a quality assurance programme, the absence of recorded baseline data values, and the absence of written procedures and protocols. A copy of the report he prepared subsequent to his visit was identified by Witness 5 within the hearing bundle.

16. In cross-examination, after considering the documents that the Registrant contended existed at the time of Witness 5’s visit, Witness 5 said that many of the documents were not dated and/or signed as authorised to demonstrate that they existed on 24 April 2014. With regard to baseline measurements, the fundamental matter of concern was that only one set of measurements appeared to have been taken, which is insufficient to meet the requirement of multiple measurements on multiple days, by multiple staff using different equipment. In answer to Panel questions, Witness 5 said that he remembered that the Registrant told him that he had not warned management that the LINAC was not ready to treat patients.

17. The Registrant gave oral evidence and confirmed the contents of his witness statement dated 6 July 2017. He gave a detailed explanation in his oral evidence of why he disputed the non-admitted particulars. The Registrant maintained that he had told Witness 1, his line manager, many times in informal meetings which were undocumented, that there were problems with the progress of the commissioning of the LINAC, including staff difficulties and technical difficulties.  He denied that he had assured her that the ‘go live’ date of 25 April 2014, was not in jeopardy or that it was not going to be achieved. He had all the equipment he needed, but it had not all been commissioned so that it was all operational for treatment of patients. The Registrant said that he had been told, many times, by Witness 1 that there were financial implications for the Trust if the ‘go live’ date was not met, in terms of NHS patient treatment, private patient treatment, and charitable partners’ support. He denied that he had been dishonest or would be dishonest in any way.

18. The Registrant said that he did take commissioning measurements for the LINAC and had the appropriate calibration certificates. Persons A and B were both very experienced and fully capable to perform baseline data measurements without supervision, although he accepted that neither was HCPC registered. He also explained why he considered he had complied with the Ionising Radiation Regulations 1999 (IRR99) and the Ionising Radiation (Medical Exposure) Regulations 2000 (IRME Regulations 2000) and associated ionising guidance referred to in paragraph 5 of the allegation except the admitted particular 5e)i. He was cross-examined by Ms Watts on all matters and answered Panel questions at the end of that cross-examination.

19. The hearing was then adjourned part-heard on the last day of the seven days allocated to reconvene on 13 November 2017, listed for five days. The Panel directed Ms Watts to serve written closing submissions on the HCPTS and Ms Sharma by 25 July 2017, and Ms Sharma to serve her written closing submissions on the HCPTS and Ms Watts by 1 August 2017. Oral closing submissions could also be made when the hearing reconvened.

20. When the hearing reconvened, Mr Foxsmith, on behalf of the HCPC, adopted and slightly modified the written submissions provided during the adjournment by Ms Watts. He submitted that the Panel could find all particulars of the Allegation proved on the evidence and to consider a suitable amendment to allegation 1(h) at this late stage.

21. Ms Sharma had also provided written submissions during the adjournment and provided slightly modified submissions at the resumed hearing.  She submitted that the Panel should not find proved the particulars that the Registrant had not admitted.

Decision on Facts

22. The Panel accepted the Legal Assessor’s advice that at all times the burden of proof was upon the HCPC to prove the alleged facts, and that the standard of proof was that the alleged fact more probably occurred than not. With regard to the allegation of dishonesty, the Panel applied the two-stage test in Ivey v Genting Casinos. The Panel also accepted the Legal Assessors advice to carefully consider whether it would be unjust to amend particular 1(h) at this late stage of the proceedings, and to evaluate what weight, if any, should be given to the hearsay statements at exhibits 8, 9, 10, 12, 13, 14, 15, 45 and 46 of the HCPC exhibits bundle.

23. The Panel carefully assessed all the oral and documentary evidence presented. With regard to the witnesses who gave oral evidence to the Panel, the Panel made the following conclusions.

24. Witness 1. The Panel found this witness’s oral evidence to be consistent with her witness statement and related exhibits. She had been a member of the panel that had appointed the Registrant to his ”expert” post at the Trust. She had been his manager from his starting full-time at the Trust in November 2013 until 25 April 2014.  She was candid in her evidence that aspects of the normal induction process were not followed with regard to the Registrant. She told the Panel that she felt that this was compensated for by the fact that she had regular contact with the Registrant through informal and formal meetings. Overall, her evidence was clear, credible and reliable.

25. Witness 2. The Panel found this witness’s oral evidence to be consistent with her witness statement and related exhibits. She had been the Registrant’s Director of Division and the manager above Witness 1. Witness 2 had become the Registrant’s direct line manager on 25 April 2014, following the cancellation of the “go live” date. She told the Panel that prior to that date she had interaction with the Registrant at formal progress meetings. Overall, her evidence was clear, credible and reliable.

26. Witness 3. The Panel found this witness’s oral evidence to be consistent with his witness statement and related exhibits. His evidence related to his investigation carried out after the cancellation of the Trust’s “go live” date of 25 April 2014, and which he undertook in May 2014. Witness 3 further assisted the Panel with providing, as far as is possible in this highly specialist and technical area, an understanding of the workings of and commissioning of a LINAC, none of which specific evidence was challenged by the Registrant. Overall, his evidence was clear, credible and reliable.

27. Witness 4. The Panel found this witness’s oral evidence to be consistent with her witness statement and related exhibits. Her evidence was, in the main, restricted to the fact that she had undertaken an internal investigation at the Trust following cancellation of the “go live” date of 25 April 2014. Her evidence was, therefore, limited. Overall, the Panel found her to be a credible witness and her evidence was reliable.

28. Witness 5. The Panel found this witness’s oral evidence to be consistent with his witness statement and related exhibits. His evidence assisted the Panel with matters relating to his visit to the Trust on 24 April 2014, when he represented NHS England’s CRG who normally inspect all new facilities before treatment is commenced. The outcome of his visit and interaction with the Registrant was that he advised senior management at the Trust that it would, in his opinion, not be safe to proceed with the “go live” date of 25 April 2014 – the day following his visit. Overall, his evidence was clear, credible and reliable.

29. The Registrant. The Registrant gave oral evidence and provided a written statement at the start of the hearing. He assisted the Panel with understanding his role at the Trust, the timetable for planning and recruitment of staff and the commissioning process. The Panel considered that the Registrant struggled at times with questions posed to him in examination in chief, in cross-examination and in response to Panel questions.

30. Documents. The HCPC provided a comprehensive set of documents in good time for the hearing. The Registrant provided on the first day of the hearing his updated documents in support to his case. This included a number of documents he said he had used. The Panel observed that they were not contemporaneous, were drawn from other hospitals and had not entirely been updated and reduced to a template for him and his team to use. They also contained information and measurements not relating to the relevant facility. However, they did appear with the Trust’s headers. The Registrant indicated that he no longer had access to relevant versions of the documents he produced which are, or were, stored on the Trust’s IT systems.

Allegation as amended

During the course of your employment as a Radiotherapy Medical Physics and Engineering Lead at Hampshire Hospitals NHS Foundation Trust (HHNFT) and in your role as a Clinical Scientist, between 4 November 2013 and 25 June 2014, you:

1. Held responsibility to commission the Linear Accelerator (LINAC) in the Radiotherapy Department at Basingstoke Hospital, and you:

a) did not create and/or record an adequate commissioning plan and/or process.
   Proved

31. The Registrant admitted that the commissioning plan was not as comprehensive as it should have been. Witness 3’s evidence was that the radiotherapy project plan was too high level. The Panel heard from Witness 1 that this was not the Registrant’s own plan. The Registrant had presented various pieces of evidence of how he had approached this task, taking templates from other centres and inserting comments. The Panel accepted Witness 3’s evidence that the Registrant’s commissioning plan only had elements of what was required.

b) in relation to treatment planning system commissioning did not ensure that independent verification data was measured.
Proved

32. This was admitted by the Registrant. The Registrant showed examples of some point dose verification measurements in progress. Witness 3’s evidence related what the Registrant and members of the Registrant’s team told Witness 3 they had not conducted.

c) did not instigate routine and appropriate treatment planning quality assurance measurements.
Proved

33.This was admitted by the Registrant. The panel considered that the Registrant was still in the process of collating a full and complete set of initial base line measurements and checks and had indeed not progressed to the phase of regular quality assurance. Witness 3, in his evidence, set out comprehensively what he expected to find, which was to include sufficient plans and was unequivocal that no such plans appeared to exist.


d) did not measure independent beam data for using the Independent
 Monitor Unit Calculation software application (RadCalc).
Not proved

34. Witness 3’s evidence was that the Registrant told him during his visit in May 2014 that the same data had been used. In his oral evidence, the Registrant said that he misunderstood the question and submitted some emails and screenshots together with a narrative. Those documents, in the Panel’s view, made it plausible that the Registrant had in fact performed the measurements. This was not challenged by the presenting officer in cross-examination.

35. The Panel noted that it is not for the Registrant to prove any fact or to disprove the allegation and that the burden of proof rested with the HCPC. The Panel considered that the HCPC was solely relying on what Witness 3 said he was told. The Panel considers this to be insufficient to discharge the burden of proof and therefore concluded that this particular was not proved.

e) did not carry out and/or did not record any Volumetric Modulated Arc Therapy (“VMAT”) specific commissioning.
Proved

36. The evidence of the Registrant was that he had carried out some of the commissioning work, referring to exhibit 10 in his bundle. That exhibit gives dates for the limited measurements that have been carried out, but, upon closer inspection, the Panel took the view that dose linearity with dose rate and dose linearity with Monitor Units (MUs), are more generic tests relating to the overall performance of a LINAC, and were not specific enough to VMAT comissioning. Therefore, the recorded measurements did not demonstrate that VMAT measurements were done.

37. Witness 3 in his evidence stated that he had requested sight of measurements and measured data during his visit in May 2014, and was not shown any. The Panel has seen the report of an independent audit on VMAT, performed 22 April 2014, with the recommendation that commissioning documents should be produced and highlighted a significant number of shortcomings.

38. The panel considered this particular proved on the basis of the identified significant shortcomings in recording.

f) did not create and/or document a clear model for the delivery of treatment  dose planning including:
i) failing to adequately define the roles and competencies of the radiographers and/or physicists involved in the treatment planning process.
Proved

39. This was admitted by the Registrant. Witness 3 gave detailed evidence referring to the competency matrix provided to him on his visit and seen by the Panel. He explained to the Panel why it provided insufficient evidence of the independent production and subsequent independent checking of a plan within the department.
 
g) did not ensure that there was a clear process in place for external beam reference dosimetry.
Proved

40. The letter from the NPL dated 28 March 2014, stated that NPL had been commissioned to perform a calibration, and then set out various concerns NPL had. The letter concluded: “We have some concerns over the apparent lack of clear traceability in the commissioning and calibration of their machine.” The Registrant arranged for the calibration to be independently checked on 2 April 2014. The report of that independent audit also raised concerns about the lack of clarity and recording in the LINAC commissioning documentation. Further, Witness 3, during his audit carried out in 19 - 21 May 2014, was not presented with a comprehensive and complete record of the LINAC calibration.


 h) did not ensure that the calibration used the same methodology as that used by the University Hospital Southampton NHS Foundation Trust with whom the HHNFT had a service level agreement for the transfer and treatment of patients.

Not proved

41. The clear and uncontradicted evidence was that the Trust had not yet concluded a service level agreement (SLA) for the transfer and treatment of patients with the University Hospital Southampton NHS Foundation Trust (Southampton) as alleged. There could therefore be no obligation on the Registrant to ensure consistent calibration methodology. The Registrant had always maintained this and the HCPC had not sought to amend the allegation at any stage. The Panel considered that it would be unjust to amend the allegation at this late stage to fit the evidence that it was the Trust’s intention to enter into such an SLA, rather than, as alleged, having already entered into the SLA. Given the Allegation as a whole, this was not an especially grave particular that might materially alter the final outcome of this hearing.
 
i) did not ensure that the initial calibration of the LINAC for electron treatments which was sent for Monaco and (RadCalc) modelling was accurate.
Proved

42. This was admitted by the Registrant.  The Panel accepted Witness 3’s evidence that the accepted practice in the UK to calibrate a LINAC for electron energies is that as set out in the Institute of Physics and Engineering in Medicine (IPEM) Code of Practice (2003).  This is based on an absorbed dose to water calibration, calibrating the LINAC to 1.00 cGy per MU at dmax depth, but using a measurement at zref.  Witness 3 on 19 - 21 May 2014 found the LINAC calibrated to zref. This despite the issue having been discussed with the Registrant on 2 April 2014, during an audit by independent colleagues. 

j) did not establish appropriate baselines for external beam quality assurance.
Proved

43. The Registrant in his oral evidence admitted this and Witness 3 in his report agreed that some, but insufficient, baselines for external beam quality assurance had been taken. Witness 3 further highlighted that the baselines had not been validated by registered competent staff.

 k) did not follow good practice in that you did not ensure that ‘end-to-end’ testing of processes was undertaken.
Proved

44. Although the Registrant contended that he did not realise that the “go live” date was for the commencement of treatment of patients, and thought it was for Computer Tomography (CT) scanning only, the Registrant admitted that “end-to-end” testing should have been undertaken prior to commencing clinical activities. Witness 3 also stated that it is normal practice for this to be done, but no evidence was provided to him that it had been done, and none has been produced to the Panel.
     
l) did not ensure that commissioning plans for each piece of equipment was in place.
Proved

45. This was admitted by the Registrant. The view of the panel is that particular 1a and 1l are de facto the same allegation. Both ask for commissioning plans, but where 1l specifies this to be for each piece of equipment.

 m) did not arrange appropriate calibration certificates of the dose meters.
Proved

46.The  Panel noted that the allegation itself could have been more precisely worded, because the calibration certificates produced by the Registrant do prove that the secondary standard dose meter with chambers were calibrated by NPL. However, a subsequent cross-calibration of the field dose meter and chambers was required to enable two independent calibrations to be performed on a LINAC. The Panel therefore interpreted this particular to refer to calibration certificates for both secondary standard and field instrument dose meters and chambers.

47. Witness 3 explained his expectation to mean readily accessible documented and signed calibration factors for those field dose meters and chambers so that they are in a useable state. Although Witness 3 was not challenged on this, the Registrant later, during his oral evidence, and only after extensive questioning, produced calibration certificates for the secondary standard dose meter and chambers. Whereas the Panel recognised that the Registrant did not have to prove or disprove anything, it raised concerns about the Registrant’s understanding and ability to absorb points raised by his peers relating to an issue that should be readily understood by MPEs working in the field.

2. Allowed Person A and/or Person B to perform baseline data measurements without appropriate supervision.
Not proved

48. There was no dispute that persons A and B were not registered with the HCPC, but the HCPC case was based on what Witness 3 was told on 19 - 21 May 2014, by person A, that persons A and B had been working unsupervised. The Registrant’s evidence was that there would have been times when persons A and B were working on their own, but they were still being supervised as they were working under direction and instruction. This evidence was not challenged by the HCPC and, therefore, the Panel considered this particular not proved.


3. Provided assurances to the Cancer Services Clinical Director and Operations Director that work had been completed when this was not the case.
Proved

49. The parties are agreed that at the date of the visit by CRG on 24 April 2014, the radiotherapy service was not ready for treating patients. Therefore, by inference, there were delays in starting up the service against the Trust’s over-arching Radiotherapy Project Plan submitted in evidence. However, there is evidence from the various witnesses and the Registrant that, on 24 April 2014, they had their own different genuinely held views and beliefs about the extent of service that was intended to commence the following day.

50. The Registrant was of the view that he had not authorised treatments nor released the machines for this, and the HCPC did not produce any such formal or emailed statement to that effect. Thus, the Registrant’s case was that no patients would be treated at that time, and he contended that Witness 1 and another staff member had decided that a patient would be CT scanned only, after which the CT scans would be sent to Southampton and the patient be treated there. The Registrant said he agreed to that and indicated he made technical arrangements for the transfer of this data with a colleague at Southampton. The Registrant was clear that the overall service was not ready for treating patients.

51. Witness 1 said that one patient had been scheduled to be treated 2 weeks later. Witness 1 also told the Panel that other elements of the service, which were not the responsibility of the Registrant, were not ready, but that this would not have stopped the service from commencing, as they would have been quickly corrected.

52. When asked about a CT scan only being planned, Witness 2 said that she was not able to remember, although she had set out the governance structure and had attended various formal meetings in which progress was being monitored.

53. The Panel noted that there were no formal meeting minutes specifying precisely what was to occur on the “go live” date, for instance of the Radiotherapy Project Group, or recording the decision-making around initiating treatments and what the Registrant’s views had been. The minutes of the final meeting of the Radiotherapy Project Group on 4 April 2014, in regard to physics readiness under “commissioning”, records exactly the same as in the minutes of 28 Feb 2014.

54. The Panel has made the following conclusions from the evidence:
a) There are many references in notes, emails and other documents that referred to the “go live” date of 25 April 2014;
b) The Registrant attended various meetings for which the minutes do not reflect the Registrant raising significant concerns regarding progress. The Panel only found concerns being raised by the Registrant about the location of a printer on 14 March 2014, and on 25 March 2014, in an email to senior colleagues providing a positive update on progress, raising a concern that the SLA was not in place (see particular 1h);
c) On 17 March 2014, the Registrant sent an email to Witness 2 stating that “Work on Linac is 95% complete”;
d) The Registrant pointed to his hand-written preparation note for a meeting on 28 March 2014, between himself and Witness 1, in which he itemised the question of whether the “go live” should be moved as the seventh of eight items, the first being the location of the printer and the 8th being car parking. Witness 1 had no recollection of this meeting and is very emphatic in her denial;
e) The Registrant realised around the end of March 2014 that the LINAC was not ready or safe to use, as he accepted in his oral evidence;
f) On 14 April 2014, Witness 2 chaired a preparation meeting for the 24 April 2014 inspection visit which was attended by the Registrant and he raised no concerns;
g) On 15 April 2014, the Registrant sent an email to a third party, copying in Witness 1, stating that the Trust was still working towards the “go live” date of 25 April 2014;
h) During the inspection on 24 April 2014, Witness 5 explained to the Registrant that it was the responsibility of an MPE to speak up about readiness and safety concerns and it was his impression the Registrant understood this responsibility.  Further, the Registrant told him that he knew they were not ready, but that he had not said this to other people;
i) Witness 1 was astonished when informed by Witness 5 that the service was not ready, but the Registrant was intimating they could proceed and Witness 5 had to explain, in Witness 1’s presence, why he did not feel the LINAC had been commissioned sufficiently well;
j) Witness 2 was consistent in her evidence that she believed the “go live” date was to be achieved and she was not challenged on this;
k) The Registrant accepted in cross-examination that there was nothing in writing where he indicated there were material delays.

55. Accordingly, the Panel find proven particulars 3, 4a and 4c.

 
4. Prior to 24 April 2014, did not:
 a) inform your managers that LINAC was not ready and/or safe for patient use;
Proved

56. As set out above, the Registrant, prior to 24 April 2014, did not inform   his managers that the LINAC was not ready and was not safe to use.
 
b) prevent patients from being booked in for treatment commencing on 09 May 2014 despite LINAC not being safe or ready for use;
 Not proved

57. The Panel accepts that the Registrant prevented a patient from being booked for treatment on 9 May 2014, by taking the unusual step of making arrangements for the patient to be treated elsewhere after CT scanning. The Registrant does not appear to have communicated this clearly to others, but, nonetheless, the Panel considers particular 4b not proved.
 
c) inform your managers that the proposed clinical start date of 25 April 2014 was not achievable;
Proved

58.  As set out above, the Registrant, prior to 24 April 2014, did not inform his managers that the proposed clinical start date of 25 April 2014, was not achievable.
 
d) propose a safe and realistic alternative start date.
Proved

59. This was admitted by the Registrant. An email from the Registrant dated 15 April 2014, to an external third party, copied in to Witness 1, confirms that the Registrant was aware at that time of the “go live” date of 25 April 2014. The Panel accepts that this was to put pressure on the recipient, but takes the view that Witness 1 would reasonably have been under the impression that the Registrant was still working towards the “go live” date at that point. Earlier Radiotherapy Project Board Minutes of a meeting on 24 March 2014, which the Registrant attended, also record that “go live” date.

60. After Witness 5’s visit on 24 April 2014, the Registrant suggested he needed another month. Some weeks later, during Witness 3’s external review on 19 - 21 May 2014, the service was found by him to be very significantly far from being ready to commence clinical treatment. Therefore, the Panel found the month proposed by the Registrant to not have been a safe and realistic alternative start date.

61. In an email on 7 May 2014, to witnesses 1 and 2, the Registrant set out the additional assistance required for his team to commence the radiotherapy service as soon as possible.  There was no evidence of this email being responded to, but the email suggests a change of view as compared to the Registrant’s previously indicated position of needing just one month.  In the Panel’s view, this is an example of the changing position of the Registrant. 


5. Did not comply with the requirements of the Ionising Radiation (Medical Exposure) Regulations 2000, the Ionising Radiation Regulations 1999 and/or did not adhere to ionising radiation guidance, in that you:

a) did not ensure that staff received the required training in the use of the LINAC and other ancillary equipment, and/or did not record that staff had received the required training;
Not proved

b) did not implement a suitable quality assurance programme;
Not proved

c) did not carry out and/or record that you had carried out quality control tests;
Not proved

d) did not measure baseline data values;
Not proved   

e) did not implement written protocols in relation to the following:
i. the patient treatment process;
Not proved

ii. the patient imaging process;
Not proved

iii. the standard operating procedures in the Radiotherapy department.
Not proved

62. During the course of its deliberations, the Panel was concerned that the HCPC had not identified the particular regulations within the 1999 and 2000 Regulations which are alleged to give rise to the personal duty upon the Registrant to undertake the matters set out in particulars 5a - 5e.  The parties were recalled and the Legal Assessor identified that issue and the parties were given time to consider further submissions. 

63. Having considered the issue, Mr Foxsmith stated that he could not make any submissions to identify specific regulations and accepted that both Regulations imposed duties upon employers, and that the definition of ‘employers’ excluded employees.  There was no dispute that the Registrant occupied the position of employee. 

64. Ms Sharma submitted that the HCPC were unable to identify the alleged duties and they, therefore, could not be found proved. 

65. The Legal Assessor advised, and the Panel accepted his advice, that the HCPC could not support the particulars 5a – 5e because they were unable to identify the alleged statutory duty upon the Registrant. 

66. In these circumstances, the Panel determined that none of the particulars 5a – 5e were proved. 

6. The matter described in paragraph 3 is dishonest.
Proved

67. The Panel applied the requisite test for dishonesty and first considered what the Registrant genuinely thought were the facts at the time that he reported to management.

68. The Panel firstly considered the subjective element of the test. The Registrant’s case was that he warned Witness 1, during an informal meeting with her on 28 March 2014, that there may be a requirement for a delay, and relied on item 7 on his handwritten preparation to demonstrate his intention to raise the matter with Witness 1. Witness 1 had no recollection of such a meeting and no recollection of any suggestion by the Registrant that there was a need for delaying the “go live” date. The Panel considered whether it was likely that the Registrant did convey his concerns to Witness 1, given that nothing arose to suggest a concern about delay had arisen.  This was a high-profile and expensive project for the Trust and the suggested need for delay, on the Registrant’s case, was being brought to Witness 1’s attention only some four weeks before the “go live” date. No convening of a formal meeting with all involved or other action regarding the “go live” date was initiated by Witness 1. Rather, the project continued to progress towards the independent inspection visit, headed by Witness 5, on 24 April 2014.

69. The Registrant did not, subsequent to the suggested meeting on 28 March 2014, produce any formal letter or email to management setting out his concerns, which might reasonably be expected of a professional in his position heading up the commissioning of this new radiotherapy facility.

70. Furthermore, the Registrant was not recorded as raising any concern about achieving the “go live” date at the meeting of the Radiotherapy Project Group, wider forum of colleagues and senior managers, on 4 April 2014, rather, it is recorded under “Timeline” that the project “remains on track”. Nor did the Registrant include any concern over progress in his detailed report of 14 April 2014, in which he prepared answers to numerous technical queries raised by NPL by its audit.

71. Moving forward in time, the Panel noted that the Registrant did not express growing anxiety regarding his concerns on safety and readiness being ignored when having a one to one meeting with Witness 5 during the inspection visit on 24 April 2014. Witness 5’s evidence was that even after he had discussed his belief that the service would not be ready, the Registrant subsequently attempted to convince Witness 1, in the presence of Witness 5, that they could still proceed to imminent “go live”. Witness 5 also described the total shock of Witness 1 when learning that Witness 5, on behalf of the NHS England’s CRG, felt that the radiotherapy service was not ready.

72. The above evidence led the Panel to determine that the Registrant did not genuinely believe that he had drawn attention to concerns about being able to achieve the “go live” date to Witness 1, the Clinical Director, or to Witness 2, the Operations Director. The converse was true, he had provided assurances that work had been completed when it had not.  

73. The Panel considered the next stage of the dishonesty test, the objective one, regarding whether ordinary decent people would consider the giving of those assurances as dishonest. The Panel was in no doubt that, by those standards, the Registrant’s assurances were dishonest.

Grounds

74. The role of MPE was one to which the Registrant aspired and he was appointed because of his career and experience within his chosen profession. It was a challenge to set up a new service from scratch, and he accepted that challenge. The Panel has accepted that the timetable of November 2013, to the “go live” date for clinical treatment of 25 April 2014, was challenging, but that had been understood and accepted by the Registrant since his appointment. The Trust provided the Registrant with adequate internal and external resources.

75. The Registrant knew that he was the only person in his organisation with the skills and knowledge relating to his role. He reported to management in the full knowledge of this skills and knowledge gap. It was therefore incumbent upon him to ensure that his communication with and reporting to management took this knowledge gap into account.

76. In looking at the question of the ground of lack of competence, the Panel  determined that the matters addressed in respect of the proven facts in particulars 1 and 4d represented a fair sample of the Registrant’s professional work at this period of time, namely, the setting up and commissioning of this one project of a new radiotherapy facility. This role contained various specific and distinct individual aspects.

77. The Panel therefore addressed the performance of the Registrant in regard to the proven facts in particulars 1 and 4d from the viewpoint of whether the Registrant displayed the skills and competencies required of an MPE.

78. It is clear to the Panel that the Registrant lacked competence and his ambition far exceeded his ability. He breached a number of the HCPC’s published Standards of proficiency for Clinical Scientists (2012):
a) he did not contribute effectively as part of a multidisciplinary team contrary to standard 1b.2;
b) he failed to communicate information adequately contrary to standard 1b.3;
c) he did not analyse and critically evaluate the information he collected contrary to standard 2a.4;
d) he did not use reasoning and problem-solving skills to determine appropriate actions contrary to standard 2b.1;
e) he was unable to formulate specific and appropriate management plans including the setting of timescales as required by standard 2b.3;
f) he did not monitor and review the ongoing effectiveness of planned activity and modify it accordingly as required by standard 2c.1.

79. The Panel next considered whether the matters found proved in particulars 3, 4a, 4c and 6 amounted to the ground of misconduct and concluded that they did.

80. As radiotherapy medical physics and clinical engineering lead on this project, the Registrant had a clear duty to keep his managers informed of his and his team’s progress towards the scheduled “go live” date of 25 April 2014. He had ample opportunities to do so through formal project progress meetings and informal discussions with his immediate line manager, Witness 1. The Registrant clearly failed to take these opportunities and so allowed his managers to continue to believe that the “go live” date was achievable, even when he clearly knew this was not the case.

81. In addition, the Panel has found the Registrant’s actions in respect of particular 3 to be dishonest.


82. The Registrant accordingly acted contrary to the HCPC’s published Standards of conduct, performance and ethics (2012):
a) did not act in the best interests of service users (standard 1);
b) did not keep high standards of personal conduct (standard 3);
c) acted beyond the limits of his knowledge, skills and experience (standard 6)    
d) did not communicate properly and effectively with other practitioners (standard 7); 
e) did not keep accurate records (standard 10); and
f) did not act with honesty and integrity (standard 13).

83. Accordingly, the Panel finds the proven matters in:

Particulars 1 and 4d constitute a lack of competence; and
Particulars 3, 4a, 4c and 6 constitute misconduct. 

Impairment
 
84. The Panel has accepted the Legal Assessor’s advice that it must consider whether the proven past misconduct and/or lack of competence, together with all the other evidence it had in respect of the Registrant, (e.g. insight, any evidence of the remedying of the deficiencies, the risk of repetition, the risk to the public presented by any repetition of the misconduct, the Registrant’s areas of future practice), leads to the Registrant’s fitness to practice being impaired now. The Panel has also taken account of the HCPC Practice Note “Finding that fitness to practise is ‘impaired’”. The Panel has taken account of the submissions of both Mr Foxsmith and Ms Sharma.

85. With regard to the personal component referred to in the HCPC Practice Note, the Panel considered the degree of insight shown by the Registrant. The Panel considered the Registrant’s insight to be extremely limited and shallow. With regard to remediation, the Registrant has not worked in his profession since this incident in 2014 and he has not maintained his professional knowledge and skills through undertaking accredited training. No personal or professional references have been provided by the Registrant and the Panel has no other information about the Registrant’s present circumstances.

86. The proven misconduct and lack of competence demonstrate a systematic and consistent lack of understanding of the role of an MPE, despite the Registrant’s prior history of 25 years’ unblemished career.
 
87. Service users were put at risk by reason of the new radiotherapy service at the Trust having to be delayed at very short notice by reason of the Registrant’s actions, but there is no evidence of actual harm to service users. The provision of the radiotherapy service was delayed by six months at considerable financial and reputational cost to the Trust. The Registrant did not express remorse at these consequences of his actions.

88. The lack of insight and remediation led the Panel to determine that the personal component of the test for impairment was engaged.

89. The Panel next considered the public component of the decision. The Registrant failed to carry out his responsibilities as the lead MPE in the setting up and commissioning of the Trust’s new radiotherapy facility and dishonestly assured his managers that the commissioning tasks were being completed and the agreed timeline would be met to achieve the “go live” date of 25 April 2014. These are serious failures to act professionally and to protect service users and put their interests first.

90. The Panel has determined that there is also a need to make a finding of impairment on public grounds in this case to protect service users, to declare and uphold proper standards of conduct in the profession, and to maintain public confidence in the profession.

Order

ORDER: That the Registrar is directed to strike the name of Mr Dudu J Miah from the Register on the date this order comes into effect

Notes

An Interim Suspension Order for a period of 18 months was imposed to cover the appeal period. 

Hearing history

History of Hearings for Mr Dudu J Miah

Date Panel Hearing type Outcomes / Status
13/11/2017 Conduct and Competence Committee Final Hearing Struck off