The Panel found that there had been good service of the proceedings, by notice dated 3 October 2013 sent to the registered address of Mr Odu (the Registrant), and took note of an email from the registrant, dated 14 November 2013, which confirmed his registered his address, and an email dated 9 December 2013 in which he made mention of receiving the hearing bundle by both mail and email.
Miss Lister made an application to proceed in the Registrant’s absence and the Panel took advice from the Legal Assessor. The Panel determined whether to hear this matter in the Registrant’s absence.
Miss Lister then made an application to amend the allegation by adding a paragraph (4) alleging dishonesty to it. The Registrant had been made aware of the proposed amendment and asked if he wished to respond to it. Although he had acknowledged receiving papers which contained the proposed amendment, he has not responded to the additional particular.
The Panel bore in mind that any application to amend the allegation must be fair to both sides and not lead to injustice. No further evidence was put forward to support the amendment and it was said that the amendment related purely to matters that were already contained within the papers. The Panel accepted that. It considered that the question of dishonesty was wholly contained within all the evidence which was to be put before the Panel and as such added nothing to the serious nature of the allegation. The Panel therefore considered that no injustice would be caused to the Registrant by allowing the application to amend and granted the amendment request.
Leonard Odu commenced employment with the Barking, Havering and Redbridge Hospitals NHS Trust (The Trust) on 1 November 2004. He was employed as a Band 6 Radiographer within the Radiology Department, working within the Computerised Tomography (CT) Imaging Modality. As part of his role, Leonard Odu was responsible for the provision of 24-hour radiology imaging services. Patient A was referred for a CT abdominal scan and Patient B was referred for a CT head and sinus scan.
On 19th January 2012, it is alleged that Leonard Odu did not follow the Patient Identification Checks procedure on Patient A, before undertaking a CT scan. He mistook Patient A for Patient B and carried out an unnecessary CT headscan on Patient A.
In accordance with the Radiation Safety Policy, where an incident in which a person undergoing medical exposure has been exposed to ionising radiation to an extent much greater than intended, a preliminary investigation was carried out by a member so assigned by the Radiation Protection Committee. In the course of the Radiation Safety Policy investigation and subsequent Trust investigation into the incident, it transpired that Leonard Odu deleted images from the CT scanner hard drive and requested that Sreenivas Vangaveti, then Administrative and Clerical Officer, delete images from the Picture Archiving and Communication (PAC) System, the system used for storing and viewing CT scans.
In concentrating on its task of finding the facts, the Panel focussed on the evidence which had been put before it in this hearing. It carefully applied that evidence to each paragraph it was considering and came to a separate decision on each paragraph, applying the appropriate burden and standard of proof.
The Panel first considered the credibility of the live evidence put before it. The first witness called for the HCPC was Mr Seeni Naidu, the Head of Radiotherapy and Medical Physics at The Trust. The Panel found him to be a good, credible and truthful witness. The HCPC also called Mr Sreenivas Vangaveti who at the time of the incident was an Administrative & Clerical Officer who was also used to provide on-call support for the PAC System. The Panel found him to be a little hesitant in giving his oral evidence but also had the advantage of being able to compare contemporary statements made by him at the time of the incident to Mr Naidu and on all the information before it the Panel found him to be a truthful witness. The Panel considered all the documentary evidence and the written responses made by the Registrant to the Investigation Committee. Although those responses were not always consistent, the Panel gave full credit where possible to the Registrant in weighing up whether matters had been found proved or not. The Panel went on to consider the individual paragraphs of the allegation.
1. The Panel found this paragraph proved. In making this decision the Panel noted the clear evidence given by Mr Naidu. The Panel also noted that in his submissions the Registrant admitted this matter providing mitigating factors such as he was suffering from toothache and pressure of work.
2. The Panel found this paragraph proved. Again, it considered the evidence given by Mr Naidu and noted that the Registrant admitted this paragraph in full.
3. The Panel found this paragraph proved. The Panel noted the evidence of Mr Vangaveti about this incident. He was hesitant but was adamant that he had only been asked to deal with records relating to one patient name alone. This factor combined with his contemporaneous statement made about this incident confirmed that he had been asked to delete the record and not to move it as claimed by Mr Odu. If Mr Vangaveti had been asked to move a record, he would have had to have been told where to move it and there would have been more than one patient name involved.
4. The Panel found this paragraph proved. In making this decision the Panel applied itself to the two questions relating to dishonesty. The Panel first asked whether what Mr Odu did was dishonest by the standards of ordinary people and then whether Mr Odu himself must have realised that what he was doing would be regarded as dishonest by those standards? The Panel considered that asking his colleague to delete patient imaging data relating to Patient A from the PAC System was consistent with a wish by Mr Odu to cover up the mistaken and unnecessary headscan on Patient A. This showed that he wished to cover up his mistake. This was an attempt to delete a record which showed potential harm having been caused to Patient A. It was a deliberate attempt by Mr Odu to cover up his mistake. The Panel is satisfied that a member of the public would consider such an attempt in these circumstances to be dishonest. Mr Vangaveti was led to believe by Mr Odu that the images were to be deleted merely because they were unwanted so he was given a deliberate false impression by Mr Odu. The Panel is satisfied that in giving that false impression, Mr Odu must have realised that what he was doing would be regarded as dishonest.
Having found all the facts found proved the Panel went on to consider whether those facts amounted to misconduct and/or lack of competence. So far as misconduct was concerned the Panel accept the definition given by the Legal Assessor, namely that it involved some act or omission falling short of what would be proper in the circumstances.
The Panel considered that all of the facts found proved were serious. It went through the paragraphs individually and considered that each paragraph on its own was capable of amounting to misconduct. Failing to properly check whether he was carrying out a CT scan on the correct patient was a basic elementary failing which went far beyond mere lack of competence as was the follow-on action of erroneously conducting a full headscan on Patient A. Attempting deliberately to cover up those actions by asking a colleague to delete the patient imaging data relating to Patient A again clearly went far beyond mere lack of competence. That action was dishonest and serious. Having found misconduct in relation to all four paragraphs, the Panel adopted the words of Mr Justice Jackson in the case of ‘Calhaem’ that ‘it is neither necessary nor appropriate to extend the interpretation of ‘deficient professional performance’ in order to encompass matters which constitute misconduct.’
Fitness to Practise Impaired:
Having found that the matters found proved amounted to misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel considered whether the misconduct was easily remediable, that it had been remedied and that it was unlikely to be repeated. The Panel had little information as to what the Registrant had done to remedy any misconduct. The only information before the Panel was the submission made by him to the Investigating Committee. Although it showed limited insight, it was more concerned with repeated attempts to excuse or explain his behaviour. The Panel had no information about the Registrant since that submission. The Panel considered the HCPC Standards of Conduct, Performance & Ethics, in particular standard 1) You must act in the best interest of service users, 3) You must keep high standards of personal conduct, 7) You must communicate properly and effectively with service users and other practitioners 10) You must keep accurate records and 13) You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in your or your profession. The Panel considered that the Registrant’s behaviour had fallen far below all of these identified standards.
In considering the question of impairment the Panel considered the words of Mrs Justice Cox in the case of NMC v Paula Grant ‘in determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not found in the circumstances’.
In all the circumstances, the Panel is satisfied that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction:
In considering the matter of sanction the Panel had regard to the HCPC’s Indicative Sanctions Policy (July 2011) (ISP); Article 29 of the 2001 order and the representations of Ms Lister for the HCPC and those from the Registrant which he provided to the Investigating Panel.
The Panel is mindful that the purpose of sanctions is not punitive. Sanctions are imposed to the extent it is necessary to protect the public. Other relevant considerations include maintaining public confidence in the profession concerned; maintaining confidence in the HCPC regulatory process; and the deterrent effect on other Registrants. In order to ensure that no more severe sanction is imposed than is required by these demands, the Panel considered the available sanctions in ascending order of gravity.
In addition, during its considerations, the Panel has also had regard to the principle of proportionality and the need to strike a balance between the interests of the public and the rights of the Registrant.
The matters found proved amounted to serious lapses of professional standards and misconduct. They had the potential of causing patient harm. The Registrant deliberately sought to conceal his mistakes in a dishonest manner. The Panel found that taking no further action or mediation was not appropriate in this case.
Having decided that, the Panel went on to consider whether a caution order should be imposed. The Panel noted the guidance in relation to caution orders in the ISP. However, the matters found proved were serious. They were compounded and aggravated by deliberate dishonest attempts to conceal the initial errors. They amounted to repeated misconduct. They could not be described as isolated incidents. In all the circumstances a caution order is not proportionate or appropriate.
The Panel went on to consider whether to impose a conditions of practise order. The Panel is not aware whether Mr Leonard Odu has worked as a Radiographer since January 2012. The Panel has not been told how he has kept his knowledge up to date. The matters found of misconduct are serious and repeated. The Panel considers that it would not be possible to draft appropriate conditions to remedy those matters. Furthermore the Panel has not been provided with any information from his present employers, if any, and is in no position to say how they would react to the Panel’s findings. Therefore the Panel considers that a proper and workable conditions of practise order could not be drafted. There is no information on how it could be monitored, neither would it be appropriate or proportionate for the serious matters found proved.
The Panel went on to consider whether to impose an order of suspension, suspending Mr Leonard Odu’s registration for a period of up to 12 months. It carefully considered all of the facts found proved.
The Panel then carefully considered all the matters in the Indicative Sanctions policy relating to a Suspension Order and a Striking Off order. The circumstances of Mr Leonard Odu’s misconduct were very serious. He has shown no remorse and very limited insight into his behaviour. He has taken no effective part in these proceedings. It was therefore clear that a potential sanction in this case was to make a striking off order. The Panel therefore concentrated on whether the behaviour found against Mr Leonard Odu is capable of remedy.
There was a mistake of identification that had apparently been committed by the Registrant some two years before the events in this case. He had received training to deal with that mistake. This training appeared to be ineffective. When the Registrant made his mistake of identification in this case he sought to cover it up and in his submission to the investigation committee he tried to place the blame on colleagues. It is clear that he showed no insight into the serious nature of his mistakes. The Panel cannot be satisfied that there may be no repetition of mistakes of this nature because of the lack of evidence of the Registrant’s understanding of the nature of his errors. This is particularly compounded by his dishonest behaviour in this case. In considering the option of a Suspension Order the Panel came to the conclusion for the reasons given above that it would not be an appropriate and proportionate way of dealing with this matter. The Panel therefore considers that the only appropriate order in this case is a Striking off Order.