During the course of your employment as a Band 6 Radiographer at Colchester Hospital University Trust between 10 May 2012 and 12 July 2012 you:
1. Failed to meet the required level of competence of a newly qualified Radiographer (band 5), in particular that you failed to:
a) Carry out linear accelerator procedures in a safe, competent and knowledgeable manner
b) Demonstrate sound patient set-up skills
c) Demonstrate adequate positioning and technique ability
d) Demonstrate the ability to practice autonomously and required supervision and prompting from other staff.
2. The matters set out in paragraph 1 constitute lack of competence.
3. By reason of your lack of competence your fitness to practise is impaired.
The registrant, Manik Sharma, did not attend the hearing and was not represented. The Health and Care Professions Council was represented by Mary Page of Kingsley Napley, solicitors.
The Panel first considered whether to proceed with the hearing in the absence of the registrant. The Panel was satisfied that notice of the hearing dated 2 April 2013 had been properly served on him at his registered address in terms of rule 6(1) of The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the “Rules”). It was noted by the Panel that the registrant had sent emails to the HCPC dated 3 and 10 June 2013 confirming that he was in India and would not be attending the hearing today. The Panel has accepted his emails as confirmation of his receipt of the notice of hearing and also as confirmation of his intention not to attend. He also notified the Panel that he was now employed in India and did not have the funds to return to the UK for this hearing. The Panel has concluded that Mr Sharma has voluntarily absented himself from the hearing and also that an adjournment would serve no purpose. The Panel has borne in mind that there are witnesses attending and that there is a public interest in proceeding expeditiously with this hearing. In the circumstances, the Panel has determined to proceed in his absence in terms of rule 11 of the Rules.
Decision on Facts:
The Panel reminded itself that it was for the HCPC to prove its case against Mr Sharma and has accepted the advice of the legal assessor that it should ensure that the hearing is conducted fairly in his absence and that it should bring out matters which are favourable to him as well as expose weaknesses in the case against him.
The Panel heard that the registrant had been employed as a Band 6 Therapeutic Radiographer by Colchester Hospital University NHS Foundation Trust (the “Trust”) between 10 May 2012 and 12 July 2012 when his contract was terminated. During this period, it was asserted that he had undertaken a preceptorship role during which his colleagues and senior managers expressed concerns about his apparent inability to understand explanations which were being given to him or to be able to carry out basic techniques and procedures expected of his role. As a result he had not been allowed to work unsupervised. It was also asserted that although he had been employed as a Band 6 Radiographer, he had not been able to achieve the standard of a newly-qualified Band 5 Radiographer.
The Panel heard oral evidence from Josephine Allen, Radiography Treatment Superintendent for the Trust, Sharon Pearse, a Band 7 Radiographer in the Clinical Oncology Department of the Trust, and Monica Norris, a Band 6 Radiographer Team Leader at the Trust. The Panel has accepted the evidence of all the witnesses as credible and consistent. The Panel has had regard to the whole of the written evidence contained in the bundle.
The Panel has accepted the evidence of Josephine Allen, Sharon Pearse and Monica Norris that the registrant had not reached a level of competence expected of a newly qualified Band 5 Radiographer. The Panel was told that the registrant had been recruited by means of an interview on Skype although none of the witnesses had been involved in that process. There was no evidence before the Panel that the referees named by him in his application form had been contacted for a reference. In his written application to the Trust, the registrant had provided a very detailed employment history including details of his six years’ experience as a radiation therapy technologist.
It was a general comment of all three witnesses that there had been great anticipation of Mr Sharma’s arrival in the Department because of the very detailed description of his extensive professional knowledge and experience which he had provided. There was, within the Department, a highly-regarded Radiographer who had also been trained in India. The registrant’s description of his own knowledge and experience had led his prospective colleagues to anticipate that he would be a similar asset to the Department. However, it was the evidence of all three witnesses that, from the moment of his arrival, there had been a marked mismatch between the knowledge and skills claimed by Mr Sharma and the knowledge and skills actually demonstrated by him within the Department. It was the clear evidence of all three witnesses that he seemed to lack basic knowledge and skills in the techniques of therapeutic radiography. When challenged about this by them, he had spoken about more advanced techniques used by him in his practice in India.
It was their evidence that it seemed to them that he was repeating information which he had read up on, for example, on the internet and that this was superficial knowledge with no real depth of understanding of the underlying concepts. They said that it was almost as if he was attempting to baffle them with advanced jargon and to make them think that their clinical practice was dated or old-fashioned. However, all three witnesses were quite clear that he seemed to have very little understanding of core radiotherapy concepts and practice. The witnesses said that, despite the efforts made by a number of members of the department to support and mentor him, there was very little improvement during the period of his employment. Although he asked some questions of colleagues, the witnesses all stated that he did not appear to understand the answers given to him and it was notable that he regularly asked the same question of different members of staff. The Panel was told that Mr Sharma’s written and spoken English were of a good standard and there was no suggestion that his lack of understanding was attributable to language issues.
Ms Allen’s evidence was that she had been shocked by the registrant’s performance and that in more than 29 years as Radiographer, she had never seen a radiographer experience the level of difficulty and what she described as a “lack of fundamental understanding of the role” as Mr Sharma. All three witnesses expressed the view that Mr Sharma’s practice was below the standard expected of a newly-qualified Band 5 Radiographer. They said that they had been unable to rely on his ability to work as a team member and that he had remained supernumerary in the Department. For instance, the Panel heard that he had walked out on occasion during procedures to make telephone calls. He had also been given special permission to take an extended lunch break for one and a half hours in order to spend time with his wife who was understood to be experiencing difficulty in settling in Britain. However, Mr Sharma often extended this period by leaving early and returning late. He had been told repeatedly by colleagues that this was unacceptable.
The Panel has had regard to the statement from Ruth Turrell, a Band 7 Radiographer, dated 11 July 2012 which is supportive of aspects of the registrant’s practice. She concluded that he had not performed at the level of a senior radiographer but that he had performed at the level of a Band 5 Radiographer new to the Department. The Panel noted that this was at a stage where he had worked within the Department for around 8 weeks. Her statement was subject to a number of significant qualifications about his clinical practice and attitude. Ms Turrell was not called as a witness in these proceedings and the Panel has not had an opportunity to explore these issues with her. Bearing in mind the very limited periods during which she worked with the registrant, the Panel has accorded only very little weight to her evidence.
The Panel also noted in the letter of dismissal sent to Mr Sharma on 12 July 2012 that the possibility of downgrading to a Band 5 Radiographer was mentioned albeit that the letter stated that no post at that level was then available. However evidence was presented to the Panel that even such a suggested downgrading would have been unlikely given that the registrant was considered to be working well below the level of a Band 5 Radiographer and possibly as low as the level of a first year student.
All three witnesses stated that a number of patients had been unhappy with the impersonal way they had been treated by Mr Sharma. In addition, a number of junior members of staff had complained about his attitude towards them. It was common ground among the witnesses, and a matter of concern to the Panel, that all of them expressed reservations as to whether Mr Sharma was actually qualified as a radiographer and whether he had been honest in his dealings with the Trust when seeking employment.
The Panel has made the following findings of fact from the evidence which it has received:-
1. Failed to meet the required level of competence of a newly qualified Radiographer (Band 5) in particular that you failed to:
a) Carry out linear accelerator procedures in a safe, competent and knowledgeable manner
The Panel has accepted the evidence of all three witnesses that Mr Sharma failed to demonstrate safe and competent practice in relation to linear accelerator procedures. Ms Allen stated that on 29 June 2012, she and another colleague, Jenni Cook, had assessed his level of competence in relation to the Linear Accelerator competency objectives and that he was assessed at level 2 for the majority of areas but that a newly qualified radiographer would be expected to achieve level 4. Accordingly, it had not been possible to sign him off as competent to work with one other staff member. The Panel finds this part of the allegation proved.
b) Demonstrate sound patient set-up skills
All three witnesses gave evidence that Mr Sharma had been unable to demonstrate sound patient set-up skills. For instance, he would say that a particular coordinate was negative and then would not understand the distinction between a positive and a negative coordination and how these related to patient movement. Despite mentoring and support, he did not ever seem to grasp the 3D alignment and the concept of the three planes. Ms Norris gave evidence that despite a high degree of support, Mr Sharma was unable to understand the basic concept of isocentric techniques and could not follow the pre-prepared plans so that he could calculate the alignment of the tumour and the machine. She said that he did not achieve a level of competence to work as part of the team of two radiographers who have to sign the treatment sheets. The Panel finds this part of the allegation proved.
c) Demonstrate adequate positioning and technique ability
The Panel heard from all of the witnesses that the registrant found it difficult to move and position patients. It was his view that the patient should be kept in one position and that was the procedure he was used to. He also had difficulty working out the calculations on his own and that all his work had to be checked and usually corrected. A number of criticisms were made of his handling of patients. Both Mrs Pearse and Ms Norris said that he did not appear to understand the concept of moving a patient and gave a graphic account of inappropriate handling. On another occasion, his failure to follow safe moving and handling procedures led directly to a member of staff being injured. The Panel finds this part of the allegation proved.
d) Demonstrate the ability to practise autonomously and required supervision and prompting from other staff
It was clear from what was said by all of the witnesses that Mr Sharma never reached a level of competence where he could practise autonomously. He never reached a stage when he could work without constant supervision. He required to be supported and prompted throughout his brief period of employment with the Trust. It was Ms Norris’s evidence that it was not just his lack of ability to comply with the Department’s techniques and protocols which caused concern but also the fact that he appeared to lack a basic level of knowledge and understanding of radiotherapy. This too was a matter of concern to the Panel. The Panel finds this part of the allegation proved.
Decision on Grounds:
The Panel gave careful consideration to the question as to whether the facts which it has found demonstrated a lack of competence on the registrant’s part as alleged in the allegation. The Panel has approached this question by considering the Standards of Proficiency for Radiographers as well as the Standards of Conduct, Performance and Ethics of the HCPC. The Panel has carefully considered the evidence and has concluded that Mr Sharma’s competence at the Trust between May and July 2012 fell short of what would have been expected of a registered Radiographer. In particular, Mr Sharma’s competence fell well short of the standards set out in paragraphs 1a.6 (be able to practise as an autonomous professional exercising their own professional judgement); 1b.1 (be able to work, where appropriate, in partnership with other professionals, support staff, service users and their relatives and carers); 2a.4 (be able to analyse and critically evaluate the information collected); 2b.4 (be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and skilfully); and 3a.1 (know and understand the key concepts of the bodies of knowledge which are relevant to their profession – specific practice) of the Standards of Proficiency. Accordingly the Panel has determined that the deficiencies which it has identified in Mr Sharma’s knowledge and practice amount to a lack of competence.
Decision on Impairment:
The task of the Panel at this stage is to consider whether the lack of competence which it has found has crossed the threshold and amounts to impairment of his fitness to practise. The Panel has taken account of the guidance contained in the HCPC’s document entitled “Finding that Fitness to Practise is Impaired” and has applied the personal public interest tests considerations outlined by Mr Justice Silber in the case of Cohen v GMC  EWHC 581 (Admin). The Panel has carefully reflected on the submissions which it has heard from Ms Page on behalf of the HCPC and also on the advice received from the legal assessor.
The Panel has carefully considered all that has been said by Mr Sharma about his practice as it was in India and about his experience at the Trust. The Panel was conscious that Mr Sharma, in denying the allegation in its entirety, has not had an opportunity to respond to the Panel’s finding of a lack of competence. Nevertheless, he does not appear to have demonstrated any insight into the perceived deficiencies in his practice as a therapeutic radiographer or that his practice fell in any way short of the standards expected of him. The Panel has no knowledge of the standard of work which he is said to be carrying out in India and indeed of the standards which govern that work. Furthermore, the Panel cannot be satisfied from all the evidence which it has heard that this was an isolated incident arising from a stressful period in his life, working in an unfamiliar setting. Rather, the deficiencies in the registrant’s practice were extensive and occurred throughout his employment with the Trust. The risk of repetition of such deficiencies was therefore significant in the Panel’s view.
Having regard to the duties imposed on it in terms of the Cohen case, the Panel considers that both the personal component, including his professional competence, as well as public interest considerations including in particular, the need to protect patients and to maintain confidence in the HCPC and the radiography profession generally as well as declaring and upholding proper standards of conduct and behaviour, means that the Panel can only conclude that the registrant’s fitness to practise was impaired at the time of the events set out in the allegations by reason of his lack of competence and, in the absence of any steps taken to address the deficiencies in his practice, can only conclude that his fitness to practise is currently impaired.
Decision on Sanction:
Having found that the registrant’s fitness to practise is impaired, the Panel next considered whether to impose a sanction in this case. The principal function of any sanction is to address public safety from the perspective of the risk which a health professional may pose to those who use or need his or her services and thus what degree of public protection is required. The Panel was conscious that in reaching its decision, appropriate weight must be given to wider public interest considerations, including the deterrent effect to other health professionals, the reputation of the radiography profession as well as maintaining public confidence in the regulatory process.
In this case, many of the deficiencies in Mr Sharma’s practice might be characterised as core elements of a therapeutic radiographer’s practice. All the Panel’s findings in relation to the carrying out of procedures in a safe, competent and knowledgeable manner, demonstrating sound patient set-up skills, demonstrating adequate positioning and technique ability and the capacity to practise autonomously are basic to the practice of every radiographer.
The Panel considered that, in view of the risk which the registrant poses to patients, it is necessary to make an order in this case. The Panel considered all the sanctions available to it under article 29 of the Health and Social Work Professions Order 2001 and took into account the guidance contained in the Health and Care Professions Council’s Indicative Sanctions Policy. Following the approach set out in Giele v. General Medical Council, the Panel considered the sanctions in ascending order. The sanctions included taking no action, mediation, a caution order, a conditions of practice order and a suspension order. The Panel concluded that to take no action was not appropriate in this case because of the nature and potentially serious consequences of the unremediated lack of competence and would not adequately protect the public. The Panel also considered that mediation would serve no purpose.
The Panel then considered a caution order. The HCPC’s Indicative Sanctions Guidance states a caution order would be appropriate for slightly more serious cases, where there may be a low risk of recurrence but where the lapse has been corrected and was of a minor nature. A caution order is also appropriate where the registrant has shown insight and taken remedial action. However there is no evidence of either insight or remedial action in this case. The Panel concluded that the deficiencies identified by the Panel have the potential to cause serious harm to patients. If not addressed, the Panel is concerned that there is risk of recurrence. Accordingly, the Panel therefore concluded that a caution order would not adequately protect the public.
The Panel next considered conditions of practice. The Indicative Sanctions Guidance states that conditions of practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm. The Panel is not satisfied from all that it has heard from Josephine Allen, Sharon Pearse and Monica Norris that the deficiencies in the registrant’s practice are readily capable of correction. There was a very strong inference arising from their evidence that Mr Sharma did not have the level of knowledge and experience which he had claimed. He did not appear to have the knowledge and skills expected of a newly qualified radiographer and the Panel noted the evidence of Ms Norris, who had lectured in radiography, that she would place his knowledge and skills at the level of a first year student. Furthermore, Mr Sharma was working at the Trust under a high degree of supervision which closely resembled conditions of practice and it was evident that he was unable to improve his clinical practice in that setting. In the light of all these concerns, the Panel does not consider that there are any conditions which can be formulated in this case which would be sufficient to meet the criteria of being appropriate, realistic and verifiable.
The Panel went on to consider whether to make a suspension order. The Indicative Sanctions Guidance states that a suspension order may be appropriate where lesser sanctions are insufficient or inappropriate to protect the public but where there is a realistic prospect that repetition will not occur. The Guidance emphasises that suspension is punitive in effect and that this must be borne in mind. Since this is a case involving a lack of competence, the sanction of striking off is not available. In view of Mr Sharma’s denials in this case as well as the absence of any expressions of insight or remorse, the Panel has reservations as to whether Mr Sharma will be able to resolve the deficiencies in his practice during a period of suspension. The Panel considers that Mr Sharma may have attitudinal problems as evidenced by the unfounded criticisms which he made about his colleagues at the Trust. The Panel is satisfied that he would pose a serious risk to patients if he were allowed to return to unrestricted practice. In all the circumstances, the Panel has determined that a suspension order for a period of one year is the appropriate and proportionate order to make in this case and that any lesser sanction would not be appropriate.
This order will be reviewed before it expires. This Panel has identified a number of serious deficiencies in Mr Sharma’s practice. It will be open to him to undertake additional education and training in order to demonstrate to the Panel which conducts the review hearing that he has addressed those deficiencies. It would be in his interest if he were to provide documentary evidence of such additional knowledge, skill and competencies to the HCPC in advance of the review hearing, if possible verified by an HCPC registered Radiographer confirming that he fully meets the standards of proficiency for UK registered Radiographers at Band 5 level. It will be for Mr Sharma to arrange such additional education and training and verification.
Finally, the Panel is concerned that the process by which Mr Sharma was recruited may, of itself, have been deficient. Mr Sharma has stated in his response to the allegation that he thought that he was applying for a Band 5 post. Despite that assertion, the Panel is satisfied that Mr Sharma did apply for a Band 6 post. Nevertheless, it appears to the Panel that the recruitment process may not have been sufficiently robust to expose the deficiencies in Mr Sharma’s clinical knowledge and experience which almost immediately became evident to his colleagues when he arrived at the Trust and commenced employment. The Panel directs that a copy of this decision should be sent to the Chief Executive of the Trust.