Kelly L Madden

Preliminary Matters

Service

1. The Hearings Officer took the Panel through a bundle of service documents giving notice of the date, time, and venue for the hearing, served by email on the Registrant. The Panel, having considered these and taken legal advice, was satisfied that notice of the hearing had been served in accordance with Rule 6 (1) of the HCPC (Conduct and Competence Committee) (Procedure) (Rules) 2003 (“the Rules”). Additionally, the Panel was aware that the Registrant had attended the venue today before the hearing began and therefore she had been aware that the hearing was taking place today.

Proceeding in absence

2. Ms O’Connor applied to the Panel for the hearing to proceed in the absence of the Registrant. She submitted that the Registrant had attended before the hearing began but had decided to leave shortly before the hearing had started. Ms O’Connor submitted that further attempts to contact the Registrant by telephone had been unsuccessful.

3. Ms O’Connor submitted that the Registrant was clearly aware of the hearing today. She had provided substantial documentation to the Panel, including her written reflections and her Continuing Professional Development (“CPD”) documents. Therefore the Panel had before it the information which the Registrant had wished it to consider. Ms O’Connor submitted that the current Order was due to expire on 25 January 2024. There would be insufficient time to re-list the hearing if adjourned and a risk that the public would be left unprotected.

4. The Legal Assessor advised the Panel that it had discretion pursuant to Rule 11 to proceed. He reminded the Panel as to the Rules. He also advised the Panel to consider the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and the relevant factors set out in the cases of R v Jones, Hayward [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 186, CA.

5. The Panel was mindful that its discretion to proceed is to be exercised with the utmost care and caution. It was aware that the review had already been adjourned on one occasion. The Registrant had attended this morning and was clearly aware that the hearing was taking place. The Notice of Hearing had warned that, if the Registrant did not attend the hearing, it might proceed in her absence. The Registrant had not made known any particular difficulty with remaining, apart from anxiety and frustration over the regulatory process and the hearing itself. The Panel considered that, by leaving before the hearing started, the Registrant had decided to absent herself.

6. The Panel took into account that there had been no express request for an adjournment and that the current Suspension Order was due to expire on 25 January 2024. It was aware that, if the review did not proceed today, it was very likely the Order would expire and the public would be left unprotected. In the circumstances, the Panel decided that it was appropriate to proceed with the hearing in the Registrant’s absence.

Proceeding in private

7. At the start of the hearing, Ms O’Connor applied for the hearing to be conducted partly in private. Ms O’Connor submitted that the hearing would likely hear details concerning the Registrant’s private life and health during the course of the hearing.

8. The Legal Assessor advised the Panel that the provision in Rule 10(1)(a) is that the default position for hearings is they are conducted in public. The Rules also provide that exclusion of the public is allowed where the Panel is satisfied that this is in the interests of justice or for the protection of the private life of the Registrant, a complainant, any person giving evidence, or of any patient or client. It was for the Panel to balance the various interests in deciding whether to sit wholly, or partly, in private.

9. The Panel decided that the Registrant’s interests with regard to details of her health and private life outweighed the public interest in a public hearing, but only in respect of those matters. Therefore the Panel resolved to sit partly in private, only when hearing details about the Registrant’s health and private life.

10. Whilst the Panel did hear some matters in private during the course of the hearing, it was not necessary for the Panel to refer to these in its written decision. As such, there was no requirement for a private version of the decision to be produced.

Background

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

12. 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.

13. 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. The substantive hearing was held in March 2022.

14. At that hearing, with evidence of the Police Caution issued on 16 August 2020 having been provided and accepted by the Registrant, the substantive hearing panel made a finding on the statutory ground.

15. The panel at the substantive hearing found the fact of the Police Caution proved and that the Registrant’s fitness to practise was impaired by the Police Caution. With regard to the risk of repetition, the panel said:

“36. The Panel first considered the personal component of impairment and considered the issues of insight and remediation. It noted that since the Registrant’s caution, there was no meaningful evidence of demonstrable insight or steps towards remediation for the following reasons:

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

- She sought to minimise her culpability for her behaviour, focussing instead on Person A’s conduct rather than her own;

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

- 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 caution, she had not meaningfully demonstrated the extent of her wrongdoing.

37. As a result, the Panel concluded that there was a high risk of her repeating her behaviour.”

16. Regarding the wider public interest issues, the panel said:

“41. 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.

42. 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.”

17. The panel at the substantive hearing found that by reason of the Police Caution the Registrant’s fitness to practise was, at the time of the substantive hearing, impaired. That panel imposed a Suspension Order for a period of nine months, “a period it considered would allow the Registrant to remedy her conduct.”

First review – 15 December 2022

18. The panel at the first review hearing conducted its review in the absence of the Registrant. It determined that the Registrant’s fitness to practise remained impaired on both the personal and the public components. It stated:

“27. …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 [than] 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.”

19. The first review panel imposed a further period of suspension of six months. With regard to sanction, it stated:

“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.”

Second review panel – 28 June 2023

20. The second review panel conducted a review on 28 June 2023. Again, the Registrant did not attend. The Panel was informed that there had been no contact with the Registrant since April 2022.

21. The second review panel set out in its determination that it found the Registrant’s fitness to practice remained impaired and “its reasons are essentially the same as those given by the previous panels and in particular the first review panel”. The panel further stated that “the Registrant has not complied with any of the suggestions made in paragraph (34) of the determination of the first review panel.”

22. That panel considered that any lower sanction than suspension would not meet the nature and gravity of the Registrant’s conduct and that conditions of practice would be impracticable. However, the second review panel decided that it would also be disproportionate to go further and make a Striking Off Order, because:

“• The Panel was uncertain as to whether the Registrant fully appreciates the gravity of her present position.

• The Panel noted that the Registrant had participated in the substantive hearing in March 2022. She had provided a reflective statement for that panel. She also made oral submissions. She expressed her deep remorse at her behaviour for which she apologised. She had acknowledged that her conduct had been disgraceful and was out of character. She accepted that it had reflected badly on her profession. She identified a number of personal issues which are recorded in the determination of the substantive panel.”

23. The second review panel stressed the importance of the Registrant complying with previous panels’ suggestions on the steps required to demonstrate remediation, namely:

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

- (2) Undertaking and satisfactorily completing an anger management 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 anger management 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) Disclosing evidence from a medical or health professional of the support received and management”

24. The second review panel warned the Registrant that continued failure to comply with suggestions might lead to a Striking Off Order.

Adjourned review – 19 December 2023

25. A further review was scheduled to occur on 19 December 2023. Unfortunately, due to a mistake over conflicting notices as to whether the review was to be ‘in-person’ or remote, and due to difficulties locating documents submitted, the HCPC applied for and obtained an adjournment of the review.

Third review – 24 January 2024

26. At the review hearing today, the Panel was provided with the HCPC’s bundle of documents, containing the notices of hearing and previous determinations. The Panel was also provided with the Registrant’s bundle of documents containing her CPD documents and an email to the HCPTS.

27. The Registrant attended the venue before the hearing began and had a brief discussion with the HCPC Presenting Officer, the Hearings Officer, and the Legal Assessor. She made available to the HCPC her further reflections document. A copy of the same was provided to the Panel. After a discussion as to the process, the Registrant thereafter left the building and did not remain for the hearing itself.

28. Ms O’Connor, on behalf of the HCPC, outlined the background to the original impairment finding and sanction. She took the Panel through the history of the subsequent reviews of the Order.

29. Ms O’Connor submitted that, at the last review, the Registrant had provided no evidence of remediation and the panel had found continuing impairment. She submitted that the previous reviewing panel had stated the importance of providing the suggested information.

30. Ms O’Connor took the Panel through the documentation submitted by the Registrant. Ms O’Connor submitted that the reflections covered some of the required areas but did not fully comply with what had been suggested by the previous panels. She accepted that the CPD documentation was acceptable evidence of having completed relevant CPD. Ms O’Connor said that there was an absence of any of the suggested testimonials from relevant individuals.

31. Ms O’Connor submitted that the Registrant continued to display a lack of insight concerning the effects of her behaviour on Person A, the reputation of the profession, and the wider public interest. She submitted that there was a risk of repetition.

32. Ms O’Connor submitted that the Registrant had now complied with some of the suggestions made by the previous panels and as such there was not a complete failure in this regard. Ms O’Connor submitted that in the circumstances, notwithstanding previous comments in the last review, it might be disproportionate to now make a Striking Off Order in view of the Registrant’s engagement.

33. The Legal Assessor advised the Panel of its powers pursuant to Article 30(1) of the Health Professions Order 2001 (“the Order”). He referred the Panel to the HCPTS Practice Note on “Review of Article 30 Sanction Orders”. The Legal Assessor advised the Panel that first it must consider whether the Registrant’s fitness to practise remains currently impaired. There was a ‘persuasive burden’ on the Registrant at a review to demonstrate having remediated all the concerns.

34. The Legal Assessor advised the Panel that, if it found current impairment, the Panel should consider its powers under Article 30(1) and also follow the Sanctions Policy issued by the HCPC. It should impose a sanction which met the level of impairment and should consider the sanctions in ascending order of severity in order to be proportionate.

Decision

35. The Panel accepted the advice of the Legal Assessor. It carefully considered the documents provided and the submissions. The Panel acknowledged that the documents did not completely cover all the issues suggested by previous panels. However, it was aware that these were not to be treated as binding conditions, but rather suggestions of the way in which the Registrant might demonstrate remediation and insight.

36. The Panel took into account that it had not heard from the Registrant as to her future intentions with regard to her practice and her registration. It considered that it had to make a decision on the issues of impairment and the need for any Order purely on the basis of the information before it.

37. The Panel considered that the Registrant’s reflections were relevant and important. However, the reflections still lacked an awareness of how her conduct may have impacted on the wider public and its attitude towards the profession.

38. The Panel took into account that the Registrant had undertaken relevant CPD and courses, in particular online training in respect of anger management and diversity, as had been suggested. However, the Panel had no reflections from the Registrant as to how undertaking the CPD and courses had changed the Registrant’s attitude and how she might apply her learning in the future.

39. The Panel noted that it had no testimonials before it. It regarded that these would have been of assistance to demonstrate the Registrant’s normal character and behaviour, in contrast with the behaviour set out in the facts underlying the Police Caution.

40. The Panel concluded that, accepting that the Registrant’s behaviour was capable of remediation and that she had clearly undertaken steps in a journey of remediation, there remained significant gaps for the above reasons. Therefore the Panel concluded that it could not say repetition of past behaviour was ‘highly unlikely’ and there was, though reduced, still a risk of repetition. The Panel therefore found that the Registrant was impaired on the personal component.

41. The Panel noted that the Registrant had now been suspended from practice since the original suspension imposed in March 2022. It considered that any need to mark the seriousness of the Police Caution in the wider public interest had been met by this period of suspension from practice.

42. However, the Panel concluded that if members of the public were aware of the original concerns and the Panel’s assessment of a risk of repetition, they would expect action to be taken. Therefore, a finding of impairment was also necessary in respect of the public component, in order to maintain public confidence in the profession and to maintain professional standards.

43. Having determined that the Registrant’s fitness to practise remains impaired, the Panel turned to consider its powers under Article 30(1) and was guided by the HCPC Sanctions Policy.

44. The Panel considered that taking No Action or issuing a Caution Order would not meet the current risk of repetition and would fail to protect the public. It next considered a Conditions of Practice Order. However, the Panel noted that the conduct concerned the Registrant’s actions in her private life and not her professional life. Therefore, conditions of practice aimed at controlling professional activities were not appropriate.

45. The Panel next considered whether it was appropriate to continue suspension of the Registrant’s registration. It noted that the HCPC Sanctions Policy states:

“21. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”

46. The Panel considered that the Registrant had demonstrated some developing insight into her past behaviour and the conduct was remediable. The Panel had assessed that there was a reduced level of risk of repetition, albeit not yet ‘highly unlikely’. The Panel considered that, based on what had been provided, the Registrant was capable of further remediation.

47. The Panel concluded that, in light of this and because a lesser sanction was also available, it would be disproportionate to go further and make a Striking Off Order.

48. The Panel hopes that the Registrant will be able to continue her journey of remediation and, to that end, considered it appropriate to make the extension of the suspension for less than the 1-year maximum available. The Panel decided that a further suspension of six months should be imposed by way of extension of the current suspension from 25 January 2024. In that way, there will be another opportunity for the Registrant to attend the next review hearing and provide details of her further remediation within a few months’ time.

49. The Panel also considered that the Registrant has been given, as a result of the earlier extension of the suspension, several previous opportunities to demonstrate her remediation. It therefore expects that the Registrant will take the next opportunity to demonstrate an intention to complete her remediation. The Panel points out that the next reviewing panel will have the full range of sanctions available to it, including up to a Striking Off Order, although this Panel cannot bind the next and does not seek to give any indication.

50. The following may assist the panel at the next review, although the Registrant is at liberty to present whatever she thinks appropriate:

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

(2) Providing a full written reflective piece demonstrating:

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

(ii) what she has learnt from the anger management and diversity training courses.

(3) Providing testimonials from individuals who can speak to her previous good conduct, good character, and adherence to the values of the profession (not limited to her workplace colleagues).

51. The Panel therefore decided to extend the current Suspension Order for a period of six months from the date it will otherwise expire.

The Registrar is directed to suspend the registration of Miss Kelly L Madden for a further period of 6 months on the expiry of the existing Order.

The Order imposed today will apply from 25 January 2024.

This Order will be reviewed again before its expiry on 25 July 2024.

History of Hearings for Kelly L Madden