Kelly L Madden

Preliminary Matters:

Service of Notice of Hearing

1. The Panel has seen information which established:

• That on 15 November 2022 a Notice of Hearing had been sent by email to the Registrant’s email address, an address provided by her to the HCPC.

• There is within the service bundle a certificate of registration dated 15 November 2022 verifying the Registrant’s email address as it appears on HCPC Register.

• That the HCPC had received a notice from the email domain server postmaster informed the HCPC that delivery of the Notice of Hearing Letter had failed due to the mailbox being full.

• Upon receipt of this information an email was sent by the case manager to the administration team with instructions to send the Notice of Hearing by postal mean to the registered postal address held by the HCPC for the Registrant.

• An email from the administration team confirmed that the Notice of Hearing had been duly posted.

• The certificate of registration confirmed the Registrant’s postal address as it appeared on the HCPC Register.

• There was also documentary evidence that further attempts had been made to contact the Registrant by post and telephone. The postal communications had been returned and calls to the two telephone numbers provided by the Registrant were no longer in service.

2. The Legal Assessor advised the Panel that a registrant has responsibility for ensuring that the information retained by the HCPC relating to their postal and email contact was up to date. The HCPC must show that it has used its best endeavours to ensure that the Registrant has notice of the hearing, and it is a matter for the Panel to decide whether that has been the case in this instance.

3. The Legal Assessor drew the Panel’s attention to the COVID-19 Pandemic procedures adopted by the HCPC which had permitted the Notice of Hearing to be sent by email and those service procedures had been subsequently adopted post pandemic. The adoption of email communication was effective in providing evidence that Notice had been successfully received which is not the case using a postal service. Service based on postal notification relied upon the legal principle that the act of posting was evidence of good service and there was no requirement to provide proof that there had been actual receipt by the Registrant.

4. The Panel decided that there had been good service and that on the information before it the HCPC had used its best endeavours to ensure that the Registrant was aware of the date, time and method of hearing of today’s review.

Proceeding in the Registrant’s absence

5. The Panel having made the decision that there had been good service the HCPC invited the Panel to exercise its discretion to proceed in the Registrant’s absence. The HCPC relied upon the nature and circumstances of the Registrant’s absence. There had been no steps taken by the Registrant to inform the HCPC of fresh contact details and nothing would, in view of the information set out above, be gained by granting an adjournment.

6. In reaching its decision to exercise its discretion and proceed in the Registrant’s absence the Panel noted that there had been:

• No application for an adjournment.

• The Registrant was aware that there would be a review of the Order.

• There had been no contact from the Registrant since 12 April 2022.

• That the email addressed to the Registrant had failed to be delivered due to the mailbox being full.

• There was nothing before the Panel to indicate that there had not been successful receipt of the postal Notice of Hearing and indeed there was evidence that other postal communications with the Registrant had been returned.

• There was no information before the Panel that would inform it as to whether the Registrant would be more likely to attend should there be an adjournment, particularly in light of the difficulties encountered by the HCPC in contacting her.

• The Panel noted that at the Substantive Hearing, that despite her attendance, the Registrant had raised issues of her health and anxiety. Whilst there may be medical issues involved, this Panel has no information before it that would assist it to determine whether the Registrant had failed to attend due to health issues.

• There was public interest in this hearing going forward, in that the current Suspension Order would expire on 25 January 2023.

• This being the case, there was limited time in which to send a fresh Notice of Hearing, should an adjournment be granted. In any event, given the difficulties of communicating with the Registrant it is unlikely that such measures would be any more successful in bringing a fresh hearing date to her attention or result in her attendance.

• In all the circumstances it is to be concluded that the Registrant has voluntarily absented herself from these proceedings.

Background:

7. The Registrant is registered with the HCPC as a Biomedical Scientist.

8. Following a verbal disagreement on 10 July 2020, between the Registrant and a neighbour (Person A), the Registrant received a Police Caution from Norfolk and Suffolk Police for racial/religious hatred. The Registrant accepted the Police Caution on 16 August 2020.

9. The Registrant self-referred this matter to the HCPC on 17 September 2020 and the matter was then referred to a Panel of the Conduct and Competence Committee for a determination of whether the Registrant’s fitness to practise was impaired.

10. At that hearing, the evidence of the fact of a Police Caution on 16 August 2020 having been issued and accepted by the Registrant supported the Substantive Hearing Panel making a finding on the statutory ground.

11. Having made that decision, the Panel moved on to consider whether, by virtue of that Police Caution, the Registrant’s fitness to practise was, at the time of the Substantive Hearing, impaired.

12. At that stage the Substantive Hearing Panel made the following observations in relation to the personal component of its decision, it noted the following:

• That since the Registrant’s caution, there was no meaningful evidence of demonstrable insight or steps towards remediation for the following reasons:

o The Registrant had not taken any practical steps to address her behaviour, for example by attending a relevant course or meaningfully reflecting on her behaviour;

o The Registrant had not sought to minimise her culpability for her behaviour, focussing instead on Person A’s conduct rather than her own;

o The Registrant had failed to meaningfully appreciate the impact of her actions on the victim or the profession in general, instead stating that “these things happen”;

o The Registrant has not demonstrated that she has learned from her behaviour and that her future conduct will change as a result. Whilst the Registrant had accepted having received a Police Caution, she had not meaningfully demonstrated the extent of her wrongdoing.

13. As a result, the Substantive Hearing Panel had concluded that there was a high risk of the Registrant repeating her behaviour.

14. In relation to the public component of the Substantive Hearing Panel’s consideration they had made the following observations:

By reason of her caution, the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession to abide by the law. The Panel determined that the caution of the Registrant related to a serious criminal activity. The Panel noted the features of the criminal offence in that it was racially aggravated and was deliberate.

Given the nature and seriousness of the offence committed by the Registrant, the Panel concluded that the Registrant’s conduct fell significantly below this standard. The Panel considered that a right-minded member of the public, hearing all of the circumstances and evidence of the case, would consider that this case does require a finding of current impairment if public confidence in the profession and in the regulatory process were to be maintained.

The Panel determined that the serious nature of the caution was such that the need to uphold professional standards and public confidence in the profession would be seriously undermined if a finding of impairment were not made. Therefore, the Panel determined that the Registrant’s fitness to practise is also currently impaired by reason of her caution on the public component of impairment.

15. The Substantive Hearing Panel had then gone on to consider what was the proportionate and appropriate restriction on the Registrant’s practice, such that it upheld the public confidence in the profession and supported the maintenance of standards within that profession.

16. The Registrant had submitted a reflective piece of writing to the Panel. The Substantive Hearing Panel had noted the Registrant’s submissions that she was guilty of disgraceful behaviour and what she had said to Person A was highly offensive, but this was behaviour out of character. The Substantive Hearing Panel had also noted the information that the Registrant had submitted relating to her health and circumstances. The Registrant had stated that she was very remorseful and knew that her behaviour was wrong.

17. After careful consideration of the aggravating and mitigating issues the Substantive Hearing Panel identified and had stated that:

The Registrant appears to have unresolved issues [redacted], her trigger points and understanding the meaning of racism. Her submissions show she has insight as to the impact of her behaviour on the profession but not the full impact on Person A.

18. The Substantive Hearing Panel concluded that the matters which had led to the Police Caution were too serious for a Caution Order and that a Conditions of Practise Order would not address the behaviour, or a repetition of that behaviour and imposed a Suspension Order for a period of nine months, a period it considered would allow the Registrant to remedy her conduct. This is a review of that Order.

19. At the Substantive Hearing, the Substantive Hearing Panel had identified information which on review would assist a future Panel. Those were:

(1) Continuing to be engaged with the HCPC and attending the next hearing.

(2) Undertaking and satisfactorily completing an [redacted] training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(3) Undertaking and satisfactorily completing a diversity training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(4) Providing a full written reflective piece demonstrating:

(i) the Registrant’s assessment of the impact of her behaviour on Person A, on the reputation of the profession and on the wider public interest, and

(ii) what she has learnt from the [redacted] and diversity training courses.

(5) Providing evidence of her further CPD and testimonials from individuals who can speak to her previous good conduct, good character and adherence to the values of the profession.

(6) [redacted].

Submissions

20. The HCPC submitted that in the absence of any information from the Registrant there is nothing that this Panel could consider in relation to her gaining insight into the nature and extent of her conduct and its impact on Person A or any steps she has taken to correct her previous conduct. It was accepted that the matters found were remediable and could have been addressed by the Registrant in the way that the Substantive Hearing Panel had indicated. The lack of any information from the Registrant however made, in the HCPC’s view, a finding of current impairment on the personal component supportable.

21. The Panel should take into account the serious nature of the Police Caution relating as it did to racial harassment. This is something which would, in the HCPC’s view, be of concern to the public and would bring the profession into disrepute.

22. Should the Panel conclude that there was current impairment on both the personal and the public components then, in the HCPC’s view, the Panel should consider a further term of suspension. Whilst the HCPC appreciated that the issue of what proportionate and appropriate sanction was a matter for the Panel’s judgment, the HCPC considered that given the nature of the matters that led to the Police Caution, a Striking Off Order would be disproportionate. Conversely, any lesser order would neither be proportionate nor appropriate. A Caution Order and Conditions of Practice Order would not address the nature of the conduct. A period of further reflection of her previous conduct would be the most appropriate in allowing the Registrant to demonstrate that she had remediated her previous behaviour. In the HCPC’s view, a short period of 6 months would be sufficient for the Registrant to do this.

Legal Advice

23. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. She referred the Panel to the approach to be adopted in relation to this review hearing. She reminded the Panel that its role was not to conduct a rehearing of the matters which led to the Police Caution nor was it to go behind the previous findings. She advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

24. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired, then the Panel must go on to consider what sanction, if any, should be imposed. The Panel’s powers under Article 30(1) of the Health Professions Order 2001, are

a) Extend the Suspension Order;

b) Make any order it could have made at the time of the original Order being imposed;

c) Or replace the Suspension with a Conditions of Practice Order, with which the Registrant must comply if she resumes practice.

25. She also advised the Panel that it should bear in mind the principles of fairness and proportionality and have regard to the Sanctions Policy document issued by the HCPC. She reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or would otherwise be in the public interest.

Panel Decision:

26. The Panel noted and accepted the Legal Advice and took into account the representations made by Mr D’Alton on behalf of the HCPC. The Panel had recourse to the Sanctions Policy issued by the HCPC. The Panel noted that on a review there is a persuasive onus on a registrant to demonstrate that they have taken steps to address and remedy their former inappropriate conduct.

27. The Panel noted the comments made by the Substantive Hearing Panel in relation to the Registrant’s state of mind and lack of insight into to the behaviour which had led to her accepting a Police Caution. The Panel also noted the recommendations which that panel had made as to the evidence the Registrant could provide any reviewing Panel. This Panel considers that evidence that the Registrant had undertaken reflection, training and reading would have been of assistance at this review. It is unfortunate that there is nothing before this Panel from the Registrant. In the absence of any evidence of steps taken by the Registrant, the Panel has no option other to find that the Registrant’s fitness to practise remains impaired on the personal component.

28. In relation to the public component of its decision the Panel considers that a member of the public would be rightly concerned if the Registrant were allowed to return to practice without having demonstrated that she is fit to do so, and there is little or no likelihood of a repetition of the behaviour which led to the imposition of a Police Caution. This being the case, this Panel has concluded that to maintain public confidence, and to uphold standards within the profession, it has to make a finding of impairment on the public component.

29. The Panel has considered whether in the absence of the Registrant it could adopt a lesser level of sanction and has decided that it could not. A Caution Order and a Conditions of Practice Order would not address the behaviour and would be impractical as well as inappropriate given the seriousness of the matter.

30. The Panel has concluded that a further period of suspension remains appropriate and proportionate in the current circumstances. Whilst this Panel has the power under Article 29 to impose a Striking Off Order it considered that at this time that would be disproportionate given that the behaviour that led to the Police Caution is capable of being remedied.

31. The Panel further noted that within the Sanctions Policy (at paragraph 124) ‘Short term suspensions can also be appropriate in cases where there is no ongoing risk of harm, but where further action is required in order to maintain public confidence in our professions’. Whilst the Panel noted that it could not discount the issues of risk of harm, the Panel’s consideration of a Suspension Order focused on the public interest, as it is engaged in this case.

32. In reaching its decision that a further period of suspension would provide the Registrant with the opportunity to review and reflect on her behaviour. It is therefore in the Registrant’s own interest that she appreciates that she must re-engage in the HCPC process and to take immediate steps to address her behaviour. The Registrant should be aware that any further lack of engagement or failure to address her previous failings could result in her removal from the Register at the next or a subsequent review.

33. A further short period of suspension may focus the Registrant’s thoughts as to whether she intends to remain in her chosen profession. The Panel has therefore concluded that six months is ample time for the Registrant to start and possibly complete the process of remediation.

34. The Panel has considered the measures which the Substantive Hearing Panel set out in its determination as of assistance to a future reviewing Panel. This Panel considers that those are measures which it too would recommend to the Registrant as appropriate to evidence her remediation of her previous behaviour. Those are:

(1) Continuing to be engaged with the HCPC and attending the next hearing.

(2) Undertaking and satisfactorily completing an [redacted] training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(3) Undertaking and satisfactorily completing a diversity training course and forwarding a copy of the results, including feedback from the course provider, to the HCPC not less than 1 month before the next hearing.

(4) Providing a full written reflective piece demonstrating:

(i) the Registrant’s assessment of the impact of her behaviour on Person A, on the reputation of the profession and on the wider public interest, and

(ii) what she has learnt from the [redacted] and diversity training courses.

(5) Providing evidence of her further CPD and testimonials from individuals who can speak to her previous good conduct, good character and adherence to the values of the profession.

(6) [redacted].

The Registrar is directed to suspend the registration of Miss Kelly L Madden for a further period of 6 months from the expiry of the current order.

The Order imposed today will apply from the expiry of the current order, namely 25 January 2023.

This Order will be reviewed again before its expiry.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Kelly L Madden