Whilst registered as a Radiographer and during the course of your
employment as a Radiographer for The Christie NHS Foundation Trust:
1. prior to performing a CT scan and or x-ray of Patient A on or around 21 October 2015 you did not confirm Patient A's:
c. date of birth
2. prior to performing a CT scan of Patient B on or around 11 May 2016 you did not confirm Patient B's:
c. date of birth
3. The matters set out in paragraphs 1-2 constitute misconduct and/or lack of competence.
4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Hearing in Private:
1. Ms Vignoles for the HCPC applied for part of the hearing to be held in private on the basis that part of the evidence was likely to concern the health of the Registrant. The application was not opposed.
2. The Panel accepted the advice of the Legal Assessor that Rule 10(1) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 permitted evidence relating to the Registrant’s health to be heard in private for the protection of her private life. The Panel had in mind the principle that all hearings should be held in public whenever possible, subject to exceptional cases where the interests of justice or the protection of the private life of the Registrant or a witness was of greater importance. The Panel concluded that part of the evidence should be heard in private in order to protect the private life of the Registrant.
Response to the Allegation
3. Mr Walker on behalf of the Registrant admitted the facts of particulars 1 and 2 of the Allegation at the start of the hearing. Particulars 3 (misconduct / lack of competence) and 4 (impairment) were not admitted.
4. Ms Vignoles for the HCPC gave the Panel an overview of the allegation in opening the case. The Registrant qualified as a Radiographer in 2010 and commenced employment as a Band 6 Radiographer with the Christie NHS Foundation NHS Trust (the Trust) in Manchester in September 2014. She was responsible for undertaking radiographic imaging in plain film, interventional and CT scanning, maintaining associated records and supporting clinical specialist radiographers in ensuring the efficient delivery of the clinical service to oncology and endocrine patients.
5. In short summary, on or around 21 October 2015, a patient required an urgent chest x-ray when the Registrant was on call, out of usual working hours. The wrong patient, Patient A, was brought to the scanning area and subsequently scanned by the Registrant. The error was noted immediately.
6. On or about 11 May 2016, two patients attended for CT scans. Both patients were called through to sit in the waiting area before their scans. The Registrant called Patient X’s name but Patient B responded. Patient B was then scanned by the Registrant under Patient X’s name. The error was noted when another Radiographer called Patient B’s name and he stood up to be scanned again.
7. A full investigation was undertaken by the Trust and there was a disciplinary hearing on 25 August 2016. The record of the investigation interview shows that Registrant admitted her mistakes and apologised for them. She referred herself to the HCPC on 26 October 2016.
8. The HCPC relied on the written statement dated 20 July 2017 and the oral evidence of the witness, AA, a Senior Radiographer who was employed as Radiology Services Manager by the Trust. She has been employed in that role since October 2007 and she was the Registrant’s line manager.
Decision on Facts
9. A combined summary of the oral and written evidence in relation to each particular of the allegation is set out below, together with the Panel’s findings on the facts.
10. The Panel accepted the advice of the Legal Assessor that they should apply the civil standard of proof and that the burden of proving the case was on the HCPC. The Panel noted that the Registrant had admitted the factual particulars of the allegation, but kept in mind that her admissions were not conclusive. It was for the Panel to make their findings of fact on the evidence as a whole. The Legal Assessor advised the Panel that the Registrant’s admissions could be taken into account as strong evidence in support of the HCPC’s case, but that they were not necessarily conclusive proof of the facts alleged.
11. AA explained in her written statement and in her oral evidence that anyone involved in the use of radiation must follow the Ionising Radiation (Medical Exposure) Regulations 2000 (IRMER). The IRMER procedure for the identification of patients requires that a patient should be asked for their full name, date of birth and address, which should then be checked against the referral form. The procedure is that patients should be asked to expressly confirm their identification details and not merely passively agree to the details that are read to them. This is an essential safeguard to ensure that the correct treatment is delivered to the correct patient.
12. The IRMER procedure is reflected in the Trust’s Identification Policy that was produced in evidence by AA. The terms of this policy document applied in relation to both incidents in this case. The Radiographer who carries out the scan has the responsibility to first carry out the identification checks. AA stated that the scan should not proceed if there were any discrepancy in relation to the patient’s identification details.
13. The Registrant read and signed the Identification Policy during her induction in 2014 and again on 18 April 2016, having attended a refresher training session. AA stated that there had been no reason to question the Registrant’s adherence to the policy before the first incident in October 2015.
14. AA explained the potential consequences of the wrong patient being scanned. First, a patient could be exposed to radiation that they do not need, with a remote risk of inducing cancer. Whilst, in these cases, it was very unlikely that there would be any serious long-term consequences for the patient, there was also a risk of significant reputational and financial damage to the Trust if IRMER regulations were to be breached. The Trust must also report some incidents of this kind to the Care Quality Commission (CQC), which might lead to further investigations. The second incident was referred to the CQC, because the additional radiation dose exceeded the threshold that triggered referral, but no further action was taken by the CQC. AA accepted there was no likelihood lasting harm to either patient in this case, but there remained a significant risk of harming other patients by over exposure to radiation if this kind of error were to be repeated.
15. The evidence of AA and the Registrant in relation to the two incidents is summarised below. The Panel was able to assess AA and the reliability of her evidence and found her to be knowledgeable, objective and credible. She demonstrated good knowledge of the policies and practices that should be applied.
16. The Panel was satisfied that the Registrant attempted to give her honest recollection. The Panel also took account of her written reflective statement dated 10 July 2017 in respect of both incidents in which she described her distress and annoyance with herself at having made such errors on two occasions. In relation to the first incident, she had been working all day and was tired after being called in at night. In relation to the second incident, she stated that she had been feeling unwell and should have called in sick on that day.
17. The Panel also accepted the written testimonial evidence of SB dated 6 July 2017, LR dated 6 July, KB dated 7 July 2017 and MG dated 10 July 2017, as to the Registrant’s good character and professional abilities.
Prior to performing a CT scan and/or x-ray of Patient A on or around 21 October 2015 you did not confirm Patient A’s:
c. date of birth
18. The incident in October 2015 occurred when the Registrant was on call during the night. A patient needed an urgent chest x-ray and the Registrant was called from her home. She entered the patient details into the electronic teletracking system for the patient to be brought down from the ward for x-ray. However, the wrong patient, Patient A, who did not require an x-ray, was brought down from the ward and x-rayed. The radiology information system (CRIS) showed that the box was ticked to confirm that the patient’s identification had been confirmed in accordance with the IRMER policy. However, the procedure cannot have been correctly applied in this case otherwise the mistake would not have been made.
19. The Trust undertook an investigation of this incident. The root cause analysis (which the Panel has seen) confirmed that two other members of staff were involved in bringing the wrong patient for the scan, but that it was the Radiographer’s ultimate responsibility under the IRMER regulations to ensure that the identification checks were performed correctly.
20. AA accepted that this first incident was graded as a minor incident and that the Registrant responded to the incident appropriately once she became aware of her error. AA also accepted that the Registrant’s work had been competent up to this stage and that no disciplinary proceedings or HCPC referral was initiated as a result of this incident.
21. Following the first incident in October 2015, the Registrant was required to undertake reflective learning. She confirmed by email on 20 November 2015 that she had re-read and updated her knowledge of IRMER and the Trust’s Identification Policy. The Registrant also submitted a reflective report dated 24 November 2015 in which she said that she was tired but she also accepted that she was at fault. The Trust held a CPD learning session with the Registrant and other staff following the incident. AA did not believe that any more could have been done to address the mistake that the Registrant had made. There was a further refresher session in April 2016. It was therefore all the more surprising to AA that a second incident occurred in May 2016.
22. When giving evidence in relation to the first incident, the Registrant said that she was tired when called into the hospital, but that she felt obliged to go to work to assist the patient who was waiting for her. Whilst it was not her fault that the wrong patient was brought down by the nurse, she accepted that she was the responsible operator and that she should have applied the identification procedure correctly. She accepted the need to reflect on her practice as a result of this incident and said that she made a point of checking the identification of every patient twice, or sometimes three times, after October 2015.
23. The Panel found the facts of Particular 1 proved on the written and oral evidence of AA as summarised above, the documentary evidence of the internal investigation, and on the admission of the Registrant.
Prior to performing a CT scan of Patient B on or around 11 May 2016 you did not confirm Patient B’s:
c. date of birth
24. The incident in May 2016 took place early in the morning when three scanners were operating with two Radiographers allocated to each scanner. It was standard practice for Radiographers to work in pairs to ensure the patients get through the service in a timely and efficient manner. One Radiographer would complete the post-scan documentation for the previous patient before assisting the second Radiographer with scanning the next patient on the list.
25. It was put to AA on behalf of the Registrant that the usual procedures often broke down because of the pressure of work and understaffing. She accepted that staff could be rotated when under pressure, but she did not accept the suggestion that patient identification was a dual responsibility or that it should be affected by other work pressures.
26. The Care Quality Commission (CQC) was also on site on that day so all staff were aware that inspectors may visit their department and ask questions. AA stated that the CQC inspectors had not yet visited the department but this was not a fact that should have affected the Registrant’s concentration. AA did not accept that the department was understaffed on 11 May 2016 because there were two radiographers allocated to each scanner.
27. When asked about an entry in the post-incident RCA (root cause analysis) document to the effect that it was a busy morning, AA replied that that was not unusual because it was a busy department. She accepted that the RCA document noted that the CQC was in the department at the time. AA did not accept the suggestion that the presence of the CQC, or the fact that the CQC monitored patient waiting times, would or should have adversely affected staff concentration on identification procedures.
28. The Registrant had called the patient’s name in the sub-waiting area. The wrong patient, Patient B, stood up in response to the call and was taken to the scanning room. AA explained that patients are often under pressure and uncertain as to what to do and it is the Radiographer’s responsibility to ensure that they have the correct patient. The Registrant asked Patient B to confirm his name but could not recall his answer. She then became distracted by the patient starting to undress and she did not complete the necessary identification checks. The Registrant then scanned his chest, abdomen twice and his pelvis. Patient B then returned to the waiting room. The second Radiographer then went into the waiting room to call the next patient and Patient B stood up again. It was at that stage that the identification error was discovered. There was no evidence about the completion of the CRIS electronic record in relation to this incident. The Registrant went home shortly after this incident because she was feeling unwell.
29. AA accepted that this second incident was also graded as a minor incident. She did not accept the suggestion on behalf of the Registrant that there were valid explanations such as staff pressures or the Registrant’s state of health as to why the incident occurred. AA accepted that the Registrant continued to work normally, including on call and with lone working, and accepted that this required her managers to have a level of trust in her competence.
30. The Registrant produced a reflective statement dated 10 July 2017 in relation to both incidents. She also produced a certificate of her attendance at a College of Radiographers course on compliance with IRMER procedures on 23 May 2017 and documentary evidence of her learning on the effect of ionising radiation. This included a note dated August 2017 that she had written on the practical application of the regulations.
31. When giving evidence, the Registrant said that the department was particularly busy on the morning of 11 May 2016 with the consequence that patients were waiting for longer periods. She felt that the presence of the CQC inspectors exerted additional pressure upon her and her colleagues. She was feeling unwell but she felt that she would have been letting others down if she called in sick on a day when the CQC were attending.
32. In relation to Patient B, she was partially distracted by having to deal with the fact that he started undressing in preparation for the scan. She maintained that in practice both Radiographers deal with the identification procedure between them on a busy day, and that her colleague was unexpectedly absent from the room for part of the time. She accepted, however, that she was ultimately responsible for the procedure because she pressed the button to commence the scan. She understood that the patient had then been exposed to an unnecessary dose of radiation.
33. The Registrant accepted that she had attended a learning session in April 2016 in relation to identification procedures. She did not accept that her omissions amounted to serious misconduct because there were mitigating circumstances. She last worked in June 2016 and subsequently registered with an agency but she has been unable to find work since then.
34. The Panel found the facts of Particular 2 proved on the written and oral evidence of AA, as summarised above, the documentary evidence of the internal investigation, and on the admission of the Registrant.
Decision on Grounds
35. Ms Vignoles on behalf of the HCPC submitted that, whilst the Registrant was otherwise clinically competent, she had made two errors that both amounted to serious misconduct. This was particularly so in the second incident in which the same error was repeated, despite that error being addressed in retraining and reflective learning after the first occasion.
36. Mr Walker for the Registrant submitted that the misconduct was not sufficiently serious for a finding of misconduct in relation to either particular 1 or 2. In relation to the first incident, he emphasised that the Trust regarded it as a relatively minor incident and that no disciplinary action was taken. In relation to the second incident, he relied on mitigating factors, namely that the department was unusually busy and that the Registrant was subject to the pressures of the CQC inspection as well as feeling unwell.
37. The Panel accepted the advice of the Legal Assessor and was assisted by the submissions of both parties. The Panel therefore had in mind the definition of misconduct in Roylance v GMC  1 AC 311: Misconduct is “some act or omission which falls short of what is proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.” The Panel was advised that misconduct must be serious misconduct of a kind that would be regarded as deplorable by fellow practitioners, that mere negligence was insufficient, and that isolated incidents were less likely to amount to misconduct. The Panel considered each incident separately and the context in which the Registrant said she was working.
38. The Panel also considered the definition of lack of competence or professional deficiency as set out in Holton v GMC  EWHC 2960 that the standard to be applied was that applicable to the post to which the Registrant has been appointed and the work she was carrying out, and that competence should be measured in the context of a reasonable sample of her work.
39. The Panel then applied these principles in considering whether the findings of fact were such as to amount to either misconduct or a lack of competence in relation to each of the particulars on which the facts were found proved.
40. In considering the first incident (particular 1), the Panel considered that this was an incident of incompetence in the broad sense of that term. The Registrant should have applied the identification procedures properly but she had failed to do so. The Panel then considered whether this omission amounted to the ground of either misconduct or lack of competence. The Panel had particular regard to the evidence that the Trust treated the first incident in a relatively informal manner, regarded it as a minor incident and took no formal disciplinary action against the Registrant. The Panel agreed that that was a proportionate response by the Trust to what was a single incident at that time and determined that the incident did not amount to misconduct that was sufficiently serious or which would be regarded as deplorable by fellow practitioners.
41. Whilst the Panel has described the first incident to be an example of incompetence in the broad sense of the term, there was no evidence of a sufficiently broad sample of the Registrant’s work to allow the Panel to conclude that it could constitute lack of professional competence. However, the first incident has continuing relevance to the Panel’s consideration of particular 2 because it formed the background to the second incident in which the same mistake was repeated within a relatively short period of time.
42. In relation to particular 2, this was a repetition of exactly the same fault, despite the fact that the Registrant had undertaken CPD and reflection on her error in the first incident. On this second occasion, the patient was exposed to a much larger amount of radiation that exceeded the threshold for referral to the CQC. The Panel therefore concluded that this incident was sufficiently serious as to amount to misconduct. It was a more significant and serious error in and of itself, and it was also now compounded by being a repetition of a previous error which the registrant had purportedly learned from and rectified. The Registrant should have been more vigilant in view of her error in the first incident and the learning and the reflection that she had undertaken. She was clearly at fault, notwithstanding any work pressures upon her. The Panel having found misconduct, there was no need to consider the alternative ground of lack of competence.
43. By reason of the findings on the facts and on misconduct as set out above, the Panel found the Registrant to have breached standard 1 of the HCPC Standards of Conduct, Performance and Ethics that were applicable at the relevant time: “You must act in the best interest of service users”.
Decision on Impairment
44. The Panel considered the submissions of the parties and the HCPTS Practice Note on impairment and accepted the advice of the Legal Assessor. The Panel reminded itself of the critically important public policy issues in Cohen v GMC  EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”
45. In relation to the personal component, the Panel noted that the Registrant accepted that she had made mistakes and that she would act differently in future. She had also accepted that her omissions placed patients at risk. The Panel acknowledged that the Registrant had shown remorse and admitted her failings. However, the Panel also noted that the Registrant’s frequent response to questions about the second incident was to rely on what she described as the mitigating circumstances of the work pressures of the day and her feeling unwell.
46. The Panel therefore concluded that the Registrant’s level of insight into her deficiencies was developing but not yet sufficient, and that there remained a risk of recurrence of her error until she has demonstrated that she has fully recognised and remedied her shortcomings. Whilst there was some evidence of remediation in her reflective statements and in the evidence of the courses that she had taken, she has not worked as a Radiographer since leaving her employment in 2016. The Panel therefore found that her fitness to practise is currently impaired.
47. The Panel’s finding of impairment is also made on the basis of the need to protect the public and in the wider public interest in order to maintain public confidence in the profession and the regulatory process. A reasonable and informed member of the public would expect a finding of current impairment on the facts of this case.
48. In making its findings on misconduct and impairment, the Panel acknowledged that there was evidence that the Registrant was well regarded in her dealings with others and that she had not previously been the subject of any referral to the HCPC during the course of her career. These are relevant factors when it comes to the issue of sanction.
49. Ms Vignoles for the HCPC reminded the Panel of the need to ensure that the sanction protected the public and maintained public confidence in the profession. Mr Walker for the Registrant submitted that a Caution Order was the appropriate sanction in this case because such an order would mark the gravity of the misconduct whilst also providing a powerful incentive to the Registrant not to repeat her previous errors.
50. The Panel considered the Indicative Sanctions Policy of the HCPTS and accepted the advice of the Legal Assessor concerning the principle of proportionality and bore in mind that the sanction must be no more restrictive than is necessary to protect the public and maintain public confidence in the profession.
51. The Panel first identified the aggravating and mitigating features in this case. The principal aggravating factor was that the Registrant had repeated an earlier error in failing to apply a relatively simple but essential identification procedure on a second occasion. She made this error despite the training by her employer and her own reflection after the first incident, all of which was intended to ensure that the mistake was not repeated. The Panel also noted that the incident concerned a relatively high dose of radiation.
52. In relation to mitigation, the Registrant had admitted her errors and had expressed sincere remorse. The Panel also noted that she alerted her employer regarding her errors in a way that was described as good practice in the RCA. She had initially been trusted by her employer to continue working as a Radiographer and she had complied with the internal investigation that had resulted in her dismissal. The Registrant had then referred herself to the HCPC and engaged positively and constructively with the regulatory process. There were positive testimonials as to her competence and good character. The Panel agreed that the misconduct was out of character and was satisfied that the extensive process of internal investigation by her employer and then by the HCPC over the past 20 months had reinforced the importance of not repeating her previous error.
53. The Panel considered whether to take no action but concluded that the misconduct was too serious to take that course.
54. The Panel therefore considered the submission made on behalf of the Registrant that a Caution Order was the appropriate sanction in this case with some care. The Panel was satisfied that the Registrant had shown sufficient insight to merit consideration of this sanction and concluded that a Caution against her entry on the register for a significant period of time would ensure that the Registrant maintained an unremitting focus on applying the identification procedures correctly.
55. In making that decision, the Panel gave significant weight to the mitigating factors, namely that the Registrant had engaged positively with her employer and the HCPC and had made significant efforts to develop greater insight and remedy her misconduct by further learning and reflection.
56. Before determining that a Caution Order was the appropriate and proportionate sanction, the Panel also considered whether there were conditions of practice that could be imposed. Whilst there were, conditions that could be workable or verifiable, the Panel reminded itself that it should impose the least restrictive sanction that was consistent with public protection and maintenance of public confidence in the profession.
57. The Panel concluded that a Caution Order of three years’ duration would have a significant deterrent effect on this Registrant and other practitioners and that it would therefore minimise the risk of repetition and maintain public confidence in the profession.
58. The Panel considered that the sanctions of Suspension or Striking-Off were neither necessary nor proportionate in this case in view of the evidence of developing insight and the other mitigating factors that are summarised above. The Registrant’s errors were capable of remedy and were not fundamentally incompatible with her continued registration or a return to the profession.
History of Hearings for Shakirah Kaliisa
|Date||Panel||Hearing type||Outcomes / Status|
|09/01/2018||Conduct and Competence Committee||Final Hearing||Caution|