Mr Richard A Lund

Preliminary Matters:

Admitting expert evidence

1. Ms O’Connor, on behalf of the HCPC, made an application for the addendum expert report of Mr Brandt, Diagnostic Radiographer, dated 12 September 2024, to be admitted as evidence. Ms O’Connor confirmed that a preliminary hearing panel had agreed to admit as evidence the two reports prepared by Mr Brandt, one on each Registrant. Since that time, the cases have been joined and Mr Brandt has prepared an addendum report to clarify some matters contained in his previous reports. Ms O’Connor submitted that this addendum report will assist the Panel in the determinations it has to make in respect of each Registrant’s conduct. Ms O’Connor confirmed that the addendum report was served on those representing the Registrants on 16 September 2024.

2. Mr Higgs, on behalf of the 1st Registrant (Mr Richard Lund), and Mr Pembridge, on behalf of the 2nd Registrant (Mr Damon Holland), raised no objection to the admission of the report into evidence.

3. The Panel heard and accepted the advice of the Legal Assessor who referred to rule 10 of The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

4. The Panel was satisfied that the addendum report of Mr Brandt was reasonably required and would be of assistance to it in relation to its fact-finding task and possibly the matters of statutory ground and impairment if those stages are reached.

Admissions

5. The Allegation in relation to the 1st Registrant was read out. The 1st Registrant admitted to Particulars 1, 2a, 2b, 2c, 2d, 2e, 3 and 4.

6. The Allegation in relation to the 2nd Registrant was read out. The 2nd Registrant admitted to Particulars 1, 2, and 3.

7. The matters of statutory ground and impairment are matters for the Panel’s own independent judgment and within that context, the Registrants made no comments at this initial stage.

Background:

8. Both matters relate to incidents which occurred at Wythenshaw Hospital (‘the Hospital’) at the Manchester University NHS Foundation Trust (‘the Trust’) between November 2018 and November 2019.

9. The 1st Registrant was the Lead Magnetic Resonance Imaging (MRI) Radiographer (Band 8a) within the MRI department at the Hospital. The 2nd Registrant was one of four Band 7 Radiographers working in the MRI department at the Hospital.

10. In around November 2019, an email trail between the 1st Registrant and another member of staff came to light which indicated that staff in the department were administering Mannitol to patients without a prescription. A full investigation was undertaken into the 1st Registrant and, as part of this investigation, the 2nd Registrant and a number of others were interviewed.

11. Mannitol is a medicine that is mixed with water and used to fill and distend the small bowel as part of the procedure for an MRI small bowel study to achieve better quality images. The use of Mannitol in this way was unlicensed, though such use of Mannitol was common. There was no Patient Group Direction (‘PGD’) in place for Mannitol, although there was a PGD in place for Moviprep which the Hospital was previously using for MR small bowel studies.

12. It is the HCPC’s case that the correct process for administering Mannitol in place at the relevant time at the Hospital was that a request would come into the MR Radiography Team for a small bowel study on the Computer Radiology Information System (‘CRIS’). That request then should be looked at by a Radiologist who would vet the patient on CRIS. That vetting process generated the prescription of Mannitol. When the patient attended the department for their scan, the Radiographer should have reviewed the information on CRIS to confirm that Mannitol had been prescribed, before administering it.

13. Between November 2018 and November 2019, this process of vetting, and thus prescription of Mannitol, was allegedly not followed by multiple Radiographers in the department, including the 1st and 2nd Registrants. It appears that issues arose with the vetting process which resulted in a practice developing, whereby it was not being followed, with the 1st Registrant, as Lead MR Radiographer, sanctioning that move away from vetting.

14. It is alleged that Colleague C, who was a Band 7 Radiographer at the Hospital, raised the issue of lack of vetting with the 1st Registrant but the practice continued, and Mannitol continued to be administered without a valid prescription.

15. All of the patients who were administered Mannitol were reviewed retrospectively by a Gastrointestinal (GI) Radiologist, and it was concluded that no actual harm was caused.

16. However, it is the HCPC’s case that the administration of Mannitol without vetting and prescription carried risks to patient safety and could have caused patients harm, although it acknowledges the expert evidence about the extent of this risk of harm being low.

17. In addition, it is the HCPC’s case that it is important that radiographers do not administer medication without prescription or PGD in place (or suitable prescribing rights), and this applies regardless of any real or perceived lack of risk of such medication.

18. Whilst the HCPC acknowledges the evidence indicating the difficulties with the vetting procedure at the Hospital, it is the HCPC’s case that both Registrants, as senior radiographers, should not have administered Mannitol and should have taken steps to ensure they were not acting outside of their scope of practice in this way. They should have raised concerns or taken action in respect of the administration of Mannitol.

19. In respect of the 1st Registrant, it is further alleged that he failed to ensure that more junior colleagues, including the 2nd Registrant (Colleague B), were only administering Mannitol when it had been so prescribed, and when Colleague C came to him with concerns, he failed to take the appropriate action.

Evidence:

20. Ms O’Connor explained that due to the nature of the allegations, there is a significant degree of overlap in the evidence. Whilst a written witness statement may have been written in respect of either the 1st or 2nd Registrant, and a particular exhibit initially produced for one or the other, as the matters are formally joined, it was submitted this distinction is no longer relevant. Both Registrants had been provided with all of the evidence before the Panel, and a single agreed hearing bundle was prepared. Ms O’Connor indicated that the HCPC would be calling the following witnesses to give live evidence:

a) Colleague G, Clinical Expert GI Radiographer and Deputy Department Manager at the Trust.

b) Colleague H, current Clinical Head of the Division of Imaging at the Trust and previous Clinical Director of Adult’s Radiology at the Trust.

c) Colleague K, current Patient Safety Officer at another Trust, previous Radiology Directorate Manager at the Trust.

d) Colleague J, current Lead Professional Radiographer and Quality and Safety Lead at the Trust.

e) Colleague I, Consultant Radiologist at the Hospital.

f) Colleague C, current Principal Magnetic Resonance Radiographer, previous Band 7 Advanced Practitioner and Reporting Radiographer.

g) Colleague A, current self-employed Locum MRI Radiographer, previous Band 7 MRI Radiographer.

h) Colleague D, Band 7 Radiographer.

i) Colleague F, current Band 6 MRI Radiographer at another Trust, previous Band 6 MRI Radiographer at the Hospital.

j) Mr Chris Brandt, expert Diagnostic Radiographer appointed by the HCPC to provide an independent expert report for the proceedings.

Colleague G’s evidence

21. Colleague G gave evidence on affirmation and relied on her two witness statements. Colleague G was cross examined by both representatives and was asked questions by the Panel.

22. In summary, her witness statement in relation to the 1st Registrant included the following evidence:

• As the Band 8a Lead MR Radiographer, the 1st Registrant was the lead for the hospital's MR service. He was responsible for the safety of the service, for organising the waiting list and for ensuring clinical scanning protocols were correct, so that the best possible technique was used for each scan. He also had line management responsibility for four Band 7 Radiographers and two Band 6 Radiographers.

• Colleague G had no concerns about the 1st Registrant’s conduct prior to the issues arising in relation to the administration of Mannitol.

• At the end of November 2019, Colleague G was asked to look at an email Colleague K had received from the Lead Researcher (the Quality Standards Imaging Manager). The email that was originally sent by the 1st Registrant concerned the administration of a contrast agent called Mannitol.

• The email from the 1st Registrant caused Colleague K and the Lead Researcher concern as it suggested that the 1st Registrant was vetting patients for the use of Mannitol and prescribing it. Colleague G was also concerned because Radiographers could not prescribe Mannitol.

• Colleague K then spoke with Human Resources about the concerns.

• Before being administered to patients, a Radiologist has to vet the patient referral and generate an electronic prescription. There was no written pathway which set out how Mannitol should be vetted and administered. However, the team had been given information verbally about how this was to be done by Colleague I.

• Colleague I is a Consultant Gastrointestinal Radiologist at the Trust and involved the team in establishing the procedure for vetting and administering Mannitol.

• Having spoken to Human resources, Colleague K asked Colleague G and Colleague H, to conduct a clinical review. The purpose of this was to try and establish whether the 1st Registrant had actually been vetting and prescribing Mannitol, as the email suggested. A more formal investigation then took place. As part of this clinical review, various staff members were spoken to about the administration of Mannitol including the 1st Registrant, Colleague I, Colleague A, 2nd Registrant (Colleague B), Colleague C, and Colleague D.

• Colleague H and another Radiologist reviewed how many patients had been affected by the practice of administering Mannitol without a valid prescription. To do this, they reviewed patient clinical records relating to patients who had been given Mannitol over the previous twelve months and checked for any contraindications. Just over four hundred patient clinical records were reviewed. Out of the four hundred patients, approximately one hundred had been vetted for Mannitol by a Radiologist. Approximately three hundred patients had therefore not had Mannitol prescribed by a Radiologist, but Mannitol had still been administered. However, there was no indication that any of the patients had adverse side effects arising from the administration of Mannitol or suffered any harm.

• The 1st Registrant admitted that the MR Radiographers were not getting Mannitol prescribed by a Radiologist before administering it to patients. The 1st Registrant said that he made the decision to administer Mannitol to patients without a prescription because he felt it would ease the workflow within the department. He explained that he found it arduous to go and find a Radiologist to prescribe Mannitol, as Colleague I was not always in the department. He also said that he felt the department was short staffed.

• Radiographers do only have thirty minutes to see a patient. Therefore, if they lose ten minutes trying to find a Radiologist to get the patient vetted for Mannitol, then they would automatically be running behind. However, this is not a sufficient reason to not get Mannitol prescribed and the 1st Registrant could have looked at other ways of getting the prescribing undertaken before the patient arrived for the scan.

• The 1st Registrant said that he did not raise any concerns with the senior team about the vetting and administration of Mannitol. He did not say why he had not done this. If the 1st Registrant did have concerns about the process, Colleague G would have expected him to discuss this with her or Colleague K as soon as the problems were identified. Or to raise the issue in the weekly patient meetings or in the senior management team meetings.

• From Colleague G’s conversations with Colleague A, B, C and D, she got the impression that the 1st Registrant did not explicitly tell them to administer Mannitol without getting it prescribed. She got the impression that at some point after trying to get an examination vetted and Mannitol prescribed, there was an informal chat about not continuing to chase for the prescription. Colleagues A, B, C and D suggested that this was a practice that had crept in, rather than something they were instructed to do by the 1st Registrant. Colleague A, B, C and D, all started by getting Mannitol prescribed, but as time passed they found it time consuming to do so, and gradually more and more patients were administered Mannitol without a prescription until a point came when no patient got Mannitol prescribed.

• During the staff interviews as part of the investigation, Colleague C explained that she had tried to raise concerns with the 1st Registrant about the vetting and administration of Mannitol. Upon hearing these concerns from Colleague C, Colleague G would have expected the 1st Registrant to have taken steps to ascertain whether the concerns were correct and well founded. If so, he should then have acted upon the concerns, either by himself or by escalating it to Colleague I or one of the other Radiologists.

• Colleagues A, B, and D could not recall raising any concerns about the process for vetting and administering Mannitol. They also did not indicate that the 1st Registrant had given them any specific instructions to administer Mannitol without a prescription.

• As the Band 8a Lead MR Radiographer, the 1st Registrant was responsible for ensuring that the process for administering Mannitol was safe. This included ensuring that other staff in his team were administering Mannitol safely and in accordance with the correct procedure.

• The department also conducted a lot of training with the team around PGDs, which allow Radiographers to administer certain medicines in certain circumstances. The 1st Registrant would have been aware that as there was no PGD in place for Mannitol, then it could not be administered by himself or the other Radiographers without a valid prescription.

23. In summary, Colleague G’s witness statement in relation to the 2nd Registrant included the following evidence:

• The 2nd Registrant was a Band 7 Magnetic Resonance Advanced Practitioner ('MR Advanced Practitioner') working in the Radiology department at the Trust and based at the Hospital.

• The concerns regarding the 2nd Registrant’s practice came about at the same time and as part of the investigation into the 1st Registrant. There was not a separate investigation commissioned into the actions of the 2nd Registrant. Colleague G was not asked to investigate the actions of the Band 7 practitioners working under the 1st Registrant and her only involvement with them was the interviews she conducted as part of the investigation into the 1st Registrant.

• The purpose of Colleague G’s interview with the 2nd Registrant was to find out whether he was involved in the decision to administer Mannitol to patients without a prescription. At this stage of the investigation the 1st Registrant had taken full responsibility for this. Colleague G also wanted to find out exactly what had happened and whether there had been a directive or instruction from the 1st Registrant to administer Mannitol without a prescription. Colleague G also wanted to find out about the 2nd Registrant’s understanding of what should have happened.

• From the interview it appeared that the 2nd Registrant had thought a decision had been made to start administering Mannitol without a prescription. From the interview it did not appear that the 2nd Registrant was aware of who had made this decision, and he was not aware of any documentation to support this decision. Colleague G did not recall the 2nd Registrant stating that he raised concerns about the administration of Mannitol without a prescription. The 2nd Registrant stated that when he worked in another hospital, they were administering Mannitol without a prescription.

• Colleague G said that as there was no PGD at the Trust for Mannitol, there was no framework or checklist for Mannitol being administered to patients without a prescription.

• After her investigation, Colleague G was also asked to review all of the patients who had been administered Mannitol between November 2018 and November 2019 to try and establish whether a prescription had been obtained and which radiographer had completed the paperwork for administration. The aim was to find out how many patients each radiographer had been in contact with. To do this she compiled a list of all the patients who had undergone an MRI small bowel study in the time period and went through each patient individually on the Trust's CRIS system to confirm whether there was a prescription or not. She looked at whether a prescription had been obtained and looked at who was responsible for the administration and if this was clear on the paperwork for each patient.

• Colleague G reviewed 420 patients in total across the time period and found that around three quarters of these patients did not have a prescription for Mannitol. The process is that two members of staff are supposed to sign off the checklist for administering Mannitol. From her review she found that the 2nd Registrant was a signatory on the contrast checklist along with another member of staff for 93 patients, and that none of these patients had Mannitol prescribed by a radiologist. She also found that for 6 of the patients the 2nd Registrant was the sole signatory on the checklist and none of the 6 patients had Mannitol prescribed by a radiologist. She did not identify any patient harm as part of her review.

24. In oral evidence Colleague G acknowledged that whilst the job description for the 1st Registrant states his duties should be 50 % management and 50 % clinical, in reality the split was more clinical than managerial.

25. Colleague G said that there should have been a written pathway for the use of Mannitol. She thought the pathway had been passed on orally in which case not everyone might have received the information, and errors can occur when information is cascaded orally.

26. Colleague G said that neither the 1st nor 2nd Registrant were able to independently prescribe Mannitol.

27. Colleague G said that at the relevant time, patients were booked for scans before the vetting was done, which was not ideal but otherwise it was causing delay to the patient pathway. Some vetting took three to four weeks to happen.

28. Colleague G said that there should always have been a GI Radiologist on site during the week in normal working hours. She acknowledged that lots of the scans occurred outside of these hours and at weekends when there would not necessarily have been a GI Radiologist on site.

29. Colleague G said that if a patient attended for a scan and the prescription had not been issued then they should have been sent home without the scan. She acknowledged that this would have created problems for the patients.

30. Colleague G recalled that the vetting only appeared to be done by Colleague I, and very few were vetted by the other GI Radiologists.

31. Colleague G acknowledged that the 2nd Registrant’s actions and responsibilities were no different to his other Band 7 colleagues who were spoken to as part of the investigation.

32. Colleague G acknowledged that the patient waiting list was large and that it was unfair that the impact of the vetting/booking fell to the Radiographers.

Colleague H’s evidence

33. Colleague H gave evidence on affirmation and relied on his witness statement. Colleague H was cross examined by the 1st Registrant’s representative and was asked questions by the Panel.

34. In summary, his witness statement included the following evidence:

• Initially, the MR Radiography Team used Moviprep as the contrast agent for small bowel studies, and a PGD was in place for this. However, in May 2018, Mannitol was introduced. At the time, it was an unlicensed substance and needed to be prescribed by a Doctor or Radiologist before it was administered to a patient.

• In practice, a request would come into the MR Radiography Team for a small bowel study on CRIS. This request would then be looked at by a Radiologist or Doctor who would vet the patient on CRIS prior to the scan. Vetting involves determining whether the examination is justified and whether there are any contra-indications based on the clinical information provided. This vetting process also included the prescription of Mannitol.

• When the patient attended the department for their scan, the Radiographer would review the information on CRIS to confirm that Mannitol had been prescribed and would then run through the checklist with the patient. The checklist is a routine safety checklist which the Radiographer goes through with the patient prior to their scan. As long as there were no concerns arising from this discussion, the Radiographer could then administer Mannitol to the patient prior to their scan. This process was set out in policy.

• Colleague H was unable to obtain the standard operating procedure policy from the previous clinical director. However, on 29 May 2018, Colleague I set out in an email that Mannitol needed to be prescribed on CRIS.

• A lot of the vetting was performed by Colleague I as she had an interest in small bowel imaging and had set up the new contrast agent and process. However, it was expected that any of the specialist GI Radiologists would be able to vet the scans.

• Colleague H was appointed as a co-investigator in the internal investigation into the concerns raised in respect of the 1st Registrant’s conduct. As a GI Radiologist, the matter fell within Colleague H’s area of clinical expertise.

• As part of the investigation, Colleague H was provided with a list of patients who had been given Mannitol between 1 November 2018 and 28 September 2019. There were four hundred and twenty patients on this list. He reviewed the clinical records available in Radiology for each of those patients to see if there were any adverse events arising from the administration of Mannitol.

• Out of the four hundred and twenty patients reviewed, three hundred and three had not been vetted. This means that a Radiologist or Doctor had not vetted the patient and prescribed Mannitol prior to it being administered. It was evident that these patients had not been vetted as it was not documented in their patient clinical records on CRIS. No adverse events arising from the administration of Mannitol were recorded on the records available to him.

• When the concerns regarding the administration of Mannitol came to light, the Trust was not particularly worried about patient safety. This is because the risk of harm arising from administering Mannitol without a prescription is very low, as it is generally a very safe substance. The three likely adverse effects that could occur are an allergic reaction, acute kidney injury or dehydration. However, the Trust was concerned about the principle of administering a drug outside of the agreed process.

• Colleague H would have expected the 1st Registrant to read the records of each patient to ensure Mannitol had been prescribed and if it had not been, he should have found a Radiologist or Doctor to complete the prescription before administering it.

• Colleague I produced a document proposing the procedure protocol for Mannitol. Colleague H is unsure whether this was circulated to the 1st Registrant.

• Colleague H was not aware of any other issues in relation to the 1st Registrant’s practice and believes his work was always good. As the principal MR Radiographer, it was expected that the 1st Registrant followed departmental procedure and ensured his team did the same.

• In the interview as part of the investigation, the 1st Registrant said that there was an issue with getting the vetting done by Radiologists. He said that there were delays in getting timely vetting from Radiologists, especially when Colleague I was away. Concerns could have been raised with the Directorate Manager, the Quality and Safety Team, the GI Lead Radiologist or the Clinical Director. The 1st Registrant said that he did not feel he could escalate issues easily as there was push back. He did not specify who the push back was from; he simply stated that matters were often pushed back to him to deal with.

• Colleague H still works with the 1st Registrant and is not aware of any further concerns arising in relation to his conduct.

35. In oral evidence, Colleague H said that if Colleague I was off work, then there would be a collective responsibility on the other GI Radiologists to check and vet the patients in advance.

36. Colleague H acknowledged that when the Hospital and Trust merged, there was harmonisation work taking place and that the culture at the Hospital was very different. At the Trust most things were vetted by the Radiologists, whereas at the Hospital it was Radiographer led. He thought it was 80 percent Radiologist led at the Trust and only 20 percent at the Hospital.

37. Colleague H explained that the Mannitol was in a sealed bottle pre-mixed to the correct standard dose. He considered that any side effects of the medicine presented only a small risk, and that the screening questionnaire should pick up any patients who might have issues with hydration levels. Colleague H said that Mannitol was more palatable for patients and also had better technical effectiveness.

Colleague K

38. Colleague K gave evidence on affirmation and relied on her witness statements. Colleague K was cross examined by both representatives and was asked questions by the Panel.

39. In summary, her witness statement in relation to the 2nd Registrant included the following evidence:

• As a Band 7 practitioner, the 2nd Registrant was responsible for ensuring that patients were scanned safely, addressing any magnetic resonance safety issues, ensuring that good quality diagnostic magnetic resonance scans were obtained, and ensuring that patients were administered relevant drugs correctly. He also had some day-to-day team leadership and coordination responsibilities, such as communication with other wards and departments, supporting his line manager, and managing equipment downtime.

• In relation to the events that occurred, it was decided that a course of action regarding the 2nd Registrant and the other Band 7s would not be decided until an outcome had been reached regarding the 1st Registrant, which proceeded to a disciplinary hearing. By the time an outcome was reached in respect of the 1st Registrant, a significant amount of time had passed, and there were no further concerns regarding the 2nd Registrant’s practice during this period. Consequently, the decision reached was that it was not appropriate to proceed down the disciplinary investigation route. Instead, it was decided that the 2nd Registrant and the other Band 7s would go through a learning review process with the Trust to ensure that there would be minimal risk in respect of their practice going forward.

• The learning review process for the 2nd Registrant was undertaken by Colleague K and Colleague J (Quality and Safety Manager for the Division of Imaging). On 15 March 2021, Colleague K and Colleague J, held a meeting with the 2nd Registrant as part of the learning review process to go through the reflective statement which he had submitted. The meeting acted as the final step in the learning review process. Colleague K wanted to use the meeting to make sure that there had been sufficient learning and understanding and that this was evidenced in some form.

• Overall, the 2nd Registrant engaged very well with the process during the meeting. Colleague K’s main concern was not over a lack of knowledge but rather his evidencing of learning and understanding that was needed to be seen to be assured of his practice going forward. The 2nd Registrant completed and submitted the learning review reflective statement in advance of the meeting. Upon review, Colleague K found the reflective statement to be quite brief and lacking in parts. Colleague K expected the 2nd Registrant to talk about PGDs and Patient Specific Directions (“PSDs”) and discuss how Radiographers cannot give a medicine as non-prescribers. The one-line response meant that she could not take assurances on his practice and so Colleague K went through these topics as part of the review meeting with the 2nd Registrant. As far as she could recall Colleague K believed that the 2nd Registrant’s explanation for this was that he had not had sufficient time to complete the reflective statement.

• During the meeting, Colleague K was assured of the 2nd Registrant’s knowledge and practice via the discussions and the responses he gave. Colleague K wanted the 2nd Registrant to be able to evidence in a tangible way that he had taken something away from the incident and that he understood and would apply what he had learnt going forward. Colleague K found the 2nd Registrant to be very honest and open in his communications, as well as helpful and committed to his role.

• From the learning review process and meeting, Colleague K identified four actions which she wanted the 2nd Registrant to undertake going forward. One of the actions he was asked to undertake was to pick two HCPC standards and prepare a reflective piece of Continuing Professional Development on this to evidence his understanding and application of the standards. The reflective piece was sent to Colleague J to review as she acted as the lead in this area.

• The 2nd Registrant was also asked to complete a written piece of Continuing Professional Development work on PGDs and PSDs, and on medical and non-medical prescribers and the legalities of medicines administration. This was submitted by the 2nd Registrant.

40. In oral evidence, Colleague K said that she was the 1st Registrant’s line manager and that she met with him frequently in the senior leadership team meetings, which were generally held weekly. She did not have 1:1 meetings with him but did have “an open-door policy”.

41. Colleague K said that she was not aware of the issues with the prescribing of Mannitol until it was brought to her attention as part of the investigation. She had not been made aware of any concerns prior to that.

Colleague J

42. Colleague J gave evidence on affirmation and relied on her witness statement. Colleague J was cross examined by the 2nd Registrant’s representative. In summary, her witness statement included the following evidence:

• From reviewing the learning review documentation, Colleague J’s understanding is that there was no vetting protocol in place and no PGD in place. A Standard Operating Procedure (SOP) and a PGD should have been produced, but this did not happen at the time of the overarching incident.

• The Hospital became part of the Trust in October 2017 and following this a number of processes were reviewed and it came to light that there was disparity between how Mannitol was being administered across the different hospital sites. From this, it was identified that processes were not being followed at the Hospital in respect of Mannitol.

• In relation to the learning review conducted with Colleague K, Colleague J also found that the 2nd Registrant had a good understanding of the benefits of oral Mannitol. Regarding the overall incident, Colleague J felt the 2nd Registrant lacked some insight into how the incident had occurred. On reflection at the time of the incident, she felt the 2nd Registrant was a Band 6 Radiographer and he was relatively experienced however, it seemed he was being led by the other staff and was not questioning the decisions made. This was her opinion at the time, and it was based on the length of time she had known him as a Radiographer. This is why the 2nd Registrant was set an objective to complete some assertiveness training.

• Colleague J confirmed that the reflective pieces of work were completed by the 2nd Registrant, and they were sent on to Colleague K. The PGD training was complete, and the medicines management training was up to date at the time of the learning reflection. Colleague J was unable to comment on whether the 2nd Registrant had completed the assertiveness training or the medicines administration training.

• Colleague J was satisfied with the 2nd Registrant’s learning and knowledge in respect of Mannitol and its administration at the conclusion of the learning review. If she had not been then she would have raised this at the time.

43. In oral evidence, Colleague J said she assumed the 2nd Registrant was a Band 6, she was not sure though, as she did not line manage him.

44. Colleague J said that the concerns with the 2nd Registrant were very similar to the concerns with the other Radiographers who were involved but it was the standard of reflection compared with the other staff that was different.

Colleague I

45. Colleague I gave evidence on affirmation and relied on her witness statement. Colleague I was cross examined by the 1st Registrant’s representative and was asked questions by the Panel.

46. In summary, her witness statement included the following evidence:

• In 2016, she undertook a clinical audit which looked at the distension of small bowel examination. The audit indicated that only one in five examinations have good distension. This was concerning because the worse the distension, the more likely that harmful pathologies will be missed, and this increases the risk to patients.

• When she reviewed the relevant literature, it suggested that small bowel distension was superior when using Mannitol as a contrast agent. As a result of this, she proposed that Mannitol be introduced at the Trust to improve the quality of the small bowel studies.

• In November 2016, she met with the MOC Chair, the Chief Pharmacist and Medicines Optimisation Committee (MOC) Vice-Chair and the Associate director of Pharmacy to present the case for using Mannitol. Its use was agreed during the meeting, and it was agreed that a second audit should be conducted once Mannitol had been introduced into the department.

• After the MOC approved the use of Mannitol, Colleague I met with the Trust Pharmacist and Colleague C to discuss how Mannitol would be prescribed, and the process was agreed. When a Radiologist agreed that a patient required a small bowel examination, they would click the protocol tab on the radiology information system (CRIS), which would automatically generate a prescription for Mannitol. Mannitol needs to be prescribed by a medical practitioner before it can be administered to patients because there was no PGD in place. The process by which a medical practitioner agrees that a scan is required and generates the prescription is also referred to as ‘vetting’.

• When Colleague I first suggested the use of Mannitol at the Trust, she wrote a proposal which was agreed by the Clinical Director at the time. Colleague I did not know whether this proposal was disseminated by higher management to other members of the team, but her fellow GI radiology colleagues were aware of the process.

• Apart from the proposal, the process for administering Mannitol was not set out in any other written policy document or SOP. It was incorporated into the CRIS system. However, the Radiographers were actively involved in developing the process for the administration of Mannitol, as shown by Colleague C attending the meeting with Trust Pharmacist and Colleague I to discuss the introduction of Mannitol into the department. Colleague D also initially attended the meeting with the MOC to propose the use of Mannitol.

• The Radiographers were also copied into email correspondence regarding the process for administering Mannitol, and colleague I was active in inviting their input throughout the process developing the procedure for vetting and prescribing Mannitol. For example, on 30 April 2018, she emailed the 1st Registrant and asked for his assistance in developing the patient information leaflet which was to be given to each patient before their small bowel examination.

• Once Mannitol was introduced in May 2018, Colleague I was confident that the Radiographers understood the process, as a result of her communication with them. For example, on 26 October 2018, Colleague C asked Colleague I to vet a number of patients for Mannitol and said that if the patients were not vetted, then Mannitol could not be used as there was no PGD in place. The 1st Registrant, Colleague A, the 2nd Registrant, and Colleague D were also copied into the email and as such, would have been aware that this was the correct procedure. Further, the Radiographers would have known that this process had to be followed for every patient as Mannitol was the only contrast agent being used by the Trust at that time.

• On 29 May 2018, when Mannitol was first introduced to the department, the 1st Registrant informed Colleague I that Mannitol had been delivered to the department and asked what procedure should be followed for using it. Colleague I responded to him by forwarding his email to IT support, copying him and the other Radiographers in the department into her email. Colleague I’s email to IT support clearly stated that Mannitol needed to be prescribed: ‘This needs to be prescribed on CRIS’. She asked IT support to add Mannitol to the CRIS system so that when Mannitol was prescribed, the line ‘With 1L Mannitol 2.5% w/v and Carob bean gum 0.2% w/v oral solution for bowel prep’ would automatically appear under the MR small bowel protocol. This line meant that Mannitol could be electronically prescribed.

• Colleague I conducted the re-audit in December 2018, to see if Mannitol was making a difference. The Radiographers were very helpful during this audit by helping the patients fill out the paperwork and questionnaires.

• In November 2019, Colleague I received a letter from Colleague G informing her that there were concerns that Mannitol was being administered without a prescription. Colleague I was asked to attend an interview regarding the matter. Colleague I was upset and shocked by the concerns. This is because there was always a Radiologist available to vet patients for Mannitol. For example, the Duty Radiologist was available even on weekends. Although there was no agreement as to whether Radiologists were going to look routinely for small bowel examinations that needed to be vetted for Mannitol, the Radiographers knew Mannitol needed to be vetted. As such, Colleague I would have expected them to ask a Radiologist if they needed this to be done. Colleague I was not concerned that she had only been contacted the once with a request to vet patients for Mannitol (this was by Colleague C on 26 October 2018) because she had presumed that her Radiologist colleagues were vetting Mannitol for the Radiographers.

• Colleague I was not aware that the team was experiencing any issues with having Mannitol vetted by the Radiologists beyond the email of October 2018. At the time of the concerns, she was one of five GI Radiologists in the department.

• The Radiographers did not come to her regularly to ask for Mannitol to be vetted, but when they did come to her, she would vet it quickly. When she heard through the investigation that the Radiographers were having issues with the speed of the vetting process, she was frustrated that they had not come to her sooner with their concerns. She felt if they had raised the issue with her sooner, a solution could have been found, or she could have sat down and vetted the patients that were waiting so that any backlog was cleared.

47. In oral evidence, Colleague I confirmed her view that Mannitol was better tolerated by patients than Moviprep and that there were no reports of any significant side effects.

48. Colleague I said that because the prescription was embedded in the CRIS system, a verbal agreement from a Radiologist would not count.

49. Colleague I said that once she had received the email from Colleague C, she went into the system to vet the backlog so that the study could continue.

50. Colleague I acknowledged that patients should be vetted before they are booked and that is what happens in the department now and is optimal practice.

51. Colleague I thought about 5 or 6 of the small bowel scans were taking place per week.

52. Colleague I said the hospital had returned to using Moviprep and that she is cautious to reintroduce Mannitol. She would do so if she was satisfied that the correct procedures were in place, and she had spoken to Colleague C about this yesterday.

Colleague C

53. Colleague C gave evidence on affirmation and relied on her two witness statements. Colleague C was cross examined by both representatives and was asked questions by the Panel.

54. In summary, her witness statements included the following evidence:

• When Mannitol was introduced, the Team were not provided with a SOP or any written policies.

• The vetting acted as a prescription for Mannitol and was to be completed by a Radiologist. A prescription was then recorded under the ‘Protocol’ tab of CRIS. The Radiographer conducting the patient’s scan was then expected to go into CRIS to check the Protocol tab to ensure a prescription had been completed before administering Mannitol to the patient.

• There was no written process to follow, and nothing was explicitly discussed. However, as a prescription was required, Colleague C tried to find a Radiologist to vet the examination once a patient arrived in the department. However, in practice, this process was not being followed and Colleague C became concerned that very few patients were being vetted prior to their scan, and that Mannitol was being administered without a valid prescription.

• At the time it was commonplace that MR scan requests were not vetted by anyone.

• Colleague C believes there were a number of reasons as to why Mannitol was being administered without a prescription. Firstly, Radiographers did not check the CRIS system for prescriptions as they received a printout of the patient details, and it was more common than not that there was no vetting included. This meant that they did not check whether a prescription had or had not been issued prior to administering Mannitol. The printout did not state whether a prescription had been made. The only information included was the patient demographics, the referral details, clinical details, and any exam comments that had been written. There was no information about vetting protocols or contrasts requirements. This was the culture at the time.

• Secondly, at the time, there was a lot of demand on the MR scanner and the department was getting busier by the day. She felt that there was a lot of pressure on the department and because of this the team just wanted to get patients seen.

• Finally, the process for the use of Mannitol was not sufficiently clear as there was no SOP or written guidance setting out the process. For example, she was never informed that Mannitol had to be prescribed by a specific Radiologist; she thought it could be done by any Doctor within the Trust. At the time, she was trying to find any Radiologist to vet the prescription from any specialty background. She was later informed that this was incorrect. This was not something that she was made aware of at the time, however. This knowledge came from research after the incident during her extensive reflection, and it was something she discussed further during her reflection discussions with management and the quality and safety officer.

• Colleague C did raise concerns about the administration of Mannitol with the 1st Registrant. She raised her concerns with him verbally but cannot recall exactly when this was. She only raised her concerns to him once. She also emailed colleague I to remind her that a prescription was required to try and boost the number of examinations which were vetted prior to appointment.

• Colleague C told the 1st Registrant that Mannitol needed to be prescribed. He never told her that Mannitol had been prescribed; instead, he told her to just give it.

• Having raised concerns in relation to the administration of Mannitol, she expected the 1st Registrant to act on these issues. She believed the team should have stopped using Mannitol, so an assessment could be done as to what would make the process safer. She would also have expected the 1st Registrant to escalate the issue to his line manager, Colleague K.

• Colleague C could not recall if she discussed this issue or her conversation with the 1st Registrant with the 2nd Registrant.

• Upon reflection she believes that she was not assertive enough in raising her concerns at the time. It then became the culture at the department to administer Mannitol without vetting it first. The culture in the department at the time was vastly different to how it is now and there have been a lot of changes since the incident.

55. In oral evidence, Colleague C said that it was difficult to find a Radiologist to vet as some Radiologist’s did not know enough about Mannitol to be confident in vetting. Sometimes they would say “go and find Colleague I to do it.”

56. Colleague C said that she felt able to speak to the 1st Registrant but that she did not feel able to speak up to the higher management. There was very much a culture of “don’t come to us unless you have a plan”. Colleague C said she felt the higher management culture was unsupportive and they did not help.

57. Colleague C felt that the pressure in the department was tangible every time she walked into the department. The vetting process impacted on the team and caused complexity and stress and delays for the patients. Colleague C felt that it was a “hard day’s work” in the department at the time.

58. Colleague C said that “yes” she thought she had administered Mannitol without a prescription, despite being aware that she should not do so.
Self-Incrimination and Privacy issues

59. It became apparent during the questioning of Colleague C that one aspect of the 2nd Registrant’s case was that he had engaged in the same conduct as that of his Band 7 colleagues.

60. The hearing was paused for a short time to allow the Panel to receive an ‘Agreed statement of facts’. Given that the Agreed statement of facts related to the personal interests of the witnesses, Ms O’Connor asked for the Panel to hold the hearing partially in private.

61. The representatives for the Registrants raised no objections.

62. The Panel heard and accepted the advice of the Legal Assessor in relation to conducting hearings in private.

63. The Panel took into account the Health and Care Professions Tribunal Service (“HCPTS”) practice note ‘Conducting Hearings in Private’ dated March 2017. The Panel acknowledged that there is a strong public interest in ensuring that hearings are conducted in public for transparency. However, the Panel accepted the submissions made by Ms O’Connor and decided that parts of the hearing should be held in private.

64. In reaching this decision the Panel had regard to the protection of the private lives of the witnesses. To protect their interests, the Panel determined that some parts of the hearing should be held in private. The Panel noted that these personal matters could easily be separated from other evidence and therefore decided that it would be fair and proportionate to move in and out of private session rather than conduct the hearing wholly in private.

65. Given that the ‘Agreed statement of facts’ does not expressly state that each witness administered Mannitol, the Legal Assessor advised the Panel that the witnesses may require a self-incrimination warning. The Legal Assessor referred the Panel to the HCPTS practice note ‘securing witness engagement: competence, compellability, and order to attend/produce documents’ updated in August 2023. It states that Fitness to practise proceedings are civil in nature and the Panel rules enable Panels to compel witnesses to attend and give evidence. It also notes that as a general principle, in civil proceedings all persons are competent to give evidence, and all competent persons are also compellable. A witness may claim privilege not to answer certain questions but otherwise, once called, must co-operate fully in the proceedings.

66. The Legal Assessor advised that in order for a witness to claim privilege against self-incrimination, the risk of exposing them to a penalty must be a real and appreciable risk. That is, the risk must be apparent to the court. A “mere possibility” that the facts might disclose an offence with which the party might be charged is insufficient. The relevant question is whether, if a charge were to be brought against them, the answer to a particular question might tend to incriminate the witness.

67. The Panel decided that there was not a real and appreciable risk of the witnesses exposing themselves to a penalty from the HCPC. The Panel therefore concluded that the witnesses did not require a self-incrimination warning.

68. The Panel acknowledged that if the line of questioning from the Registrant’s representatives was to depart from the expected questions, such that other matters outside of the scope of the ‘Agreed statement of facts’ were put to the witnesses, then the case could be paused to allow the Panel to consider any further real and appreciable risk before giving the warning if required.

Colleague A

69. Colleague A gave evidence on affirmation and relied on his three witness statements. Colleague A was cross examined by both representatives and was asked questions by the Panel.

70. In summary, his witness statements included the following evidence:

• Colleague A was employed as a Band 7 MRI Radiographer by the Manchester University Foundation NHS Trust and was based in the Radiology department at the Hospital. He was in this role from 2015 to 2021.

• The team were given instructions from the 1st Registrant that Mannitol was not licensed and that it would need to be prescribed by a GI Radiologist. Colleague A recalled that the team were told that Colleague I was to be the lead on this. He also recalled that the vetting would be added to the protocol section of the radiology CRIS system.

• There were no issues with the vetting process at the start. Initially, vetting was always done but there was a drop off, which caused issues in completing the vetting process. This was due to the times at which small bowel examinations had been booked, such as in the evenings and on weekends. Colleague A did not recall when this drop off in vetting was first noted.

• Colleague A did not recall having any direct conversations with the 1st Registrant regarding the issues with the vetting process. He did recall a concern being raised by Colleague C, but did not recall having any discussions with the 1st Registrant about this.

• Over time the process for vetting patients, obtaining prescriptions for Mannitol, and administering Mannitol to patients prior to scans slowed down. The issue Colleague A came across was that the team had to go and find Radiologists to prescribe Mannitol for patients who were already waiting for a scan and had already been prepared for a scan. Finding Radiologists at the time a patient was ready for a scan to obtain a prescription was problematic, as sometimes there were not many Radiologists available depending on the time of day.

• As a result of this issue, Colleague A believed that the team started to administer Mannitol to patients without obtaining a prescription. He did not recall there being a specific time or crossover point where the team moved to administering Mannitol without prescription; rather he believed this change in process happened gradually as the issue with finding Radiologists occurred more often. He did not believe that this change in process was ever formally made, and he did not recall being officially told by anyone to administer Mannitol without a prescription. The change in process to administering Mannitol without a prescription happened unofficially and there was a period of transition where the team moved to administering it without a prescription for the reasons mentioned.

• He could not recall exactly when the team started administering without a prescription or when the issues identified started, but he believed this happened relatively early on in the department’s use of Mannitol. He believed Mannitol was administered to patients by the department without prescriptions from around November 2018 to November 2019.

• Colleague A believed that the 2nd Registrant and all the staff acted in the same way; and he could not recall the 2nd Registrant taking any different action in response to administering Mannitol without a prescription.

71. In oral evidence, Colleague A said that he found the 1st Registrant to be very approachable as a manager and he could discuss anything with him.

72. Colleague A recalled that a checklist questionnaire always took place with the patients which covered aspects about renal function. If this was an issue, then the contrast would not be given without the authority of a Radiologist.

73. Colleague A said that the evidence would suggest he personally administered Mannitol without a prescription and did not raise the issue as a concern.

Colleague D

74. Colleague D gave evidence on affirmation and relied on his two witness statements. Colleague D was cross examined by both representatives.

75. In summary, his witness statements included the following evidence:

• He is a Band 7 Radiographer at the Hospital.

• He recalled Colleague C told him that she was told by the 1st Registrant that we should just carry on. This was in keeping with the culture within the department which was to administer Mannitol to patients because they did not have another contrast agent available. He did not remember having any concerns at the time.

• He did not recall whether the team received written guidance on the use of Mannitol when it was introduced at the Trust. The team did not receive any formal training in relation to its use. It was the 1st Registrant’s responsibility as the Lead MR Radiographer to ensure the policies and procedures within the department were followed. This includes the policy in relation to the use of Mannitol. The team also had no training on the use of Patient Specific Directions (‘PSDs’).

• At the time the concerns came to light, the environment within the department was very intense and there were lots of patients to get through. Colleague D believed this contributed to the correct procedure for the use of Mannitol not being followed. He did not recall when he became aware that the correct process was not always being followed. He did not recall raising any concerns in relation to this at the time. This was because, from his point of view, the Department Managers (including the 1st Registrant) and GI Radiologists were happy for the team to administer Mannitol, so this is what the team were doing.

76. In oral evidence, Colleague D acknowledged that the team all acted in the same way in administering Mannitol to patients without a prescription. Colleague D acknowledged that he did not do what he should have done.

Colleague F

77. Colleague F gave evidence on affirmation and relied on her witness statement. Colleague F was not cross examined by either representative. She was asked questions by the Panel.

78. In summary, her witness statement included the following evidence:

• Colleague F worked as a Band 6 MRI Radiographer at the Hospital, part of Manchester University NHS Foundation Trust, from August 2019 to May 2020.

• Colleague F had experience of Mannitol before joining the Trust and had used it when she started working in MRI in 2013 at Darent Valley Hospital, which is part of Dartford and Gravesham NHS Trust. She had had no issues previously with this contrast agent.

• On joining the team, she was shown the drugs cupboard, which is where Mannitol was kept, and was shown how to access the key in the safe for the cupboard. As she had used Mannitol before, she knew why it was administered. She did not have many questions about it in terms of how to give it to patients other than whether or not it needed mixing with water, which it didn’t.

• During her induction at the Hospital, she was given a folder with PGDs and told to sign the various PGDs. The folder was very disorganised and jumbled and had signed copies from previous employees in it in sections where the blank copies were supposed to be. She signed all of the PGDs she was given.

• When she joined the Trust, she was told that the Band 8 and 7’s vetted the scans as the Radiologists were “too busy” to vet. This seemed very bizarre to her, especially as the Radiologists at the Hospital were no busier than the Radiologists anywhere else, she had worked before, and it was part of the Radiologists’ job. She questioned this approach many times with everyone she worked with as it did not make any sense to her.

• She felt that she could raise any issues with the 1st Registrant. She could also speak to the Band 7s. Her impression from speaking to members of the team was that they did not feel supported by Colleague K; she believed this to be due to Colleague K’s attitude towards staff in the team. The culture was strange, which is part of the reason Colleague F decided to leave.

Mr Chris Brandt - expert

79. Mr Brandt gave evidence on affirmation and relied on his three expert witness reports. Mr Brandt was asked questions by both representatives and by the Panel.

80. In summary, his witness statement included the following evidence:

• In this department an agreement with pharmacy and the GI specialist Radiologist meant Radiographers could not administer Mannitol without it being vetted and agreed by the Radiologist. Other departments/Trusts may have a different agreement or way of vetting the forms or prescribing Mannitol; however, it would still require some agreed vetting process before the Mannitol could be administered.

• Radiographers are not prescribers unless they have done the specific course to do so.

• The 1st Registrant should have escalated his concerns and made management / a senior person aware of the issues. Patients ideally should not have been booked until the vetting process was completed. It was outside the scope of practice to continue without the vetting process taking place.

• Radiographers are not allowed to administer Mannitol without a prescription from a Radiologist. This was against the Trusts medicines policy, HCPC standards of proficiency for radiographers (2013) and scope of practice. It is also against the Society of Radiographer’s guidance for the supply or administration of medicines to patients.

• A prescription drug (prescription medication or medicine) is a pharmaceutical drug that legally requires a medical prescription to be dispensed. The reason for this is the potential scope of misuse from drug abuse to practicing medicine without a licence and without sufficient education or knowledge. The risk is that the examination may not be appropriate so you may subject a patient to a test they do not need. This is exposing the patient to potential harm without justification. Reported side effects include diarrhoea, abdominal pain and discomfort, nausea and vomiting, which may lead to dehydration.

• The Registrants were fully aware of the protocols and policies and why they were in place and continually acted outside of their scope of practice. This is below expectations and continued for a substantial period of time. There were other options, not to scan those arriving without vetting and re book once vetted; only book vetted patients. The Registrants could have raised a DATIX for each patient (DATIX is a risk management information system to collect and manage data on adverse events). The purpose of collecting such data is to identify learning and implement improvement. But this issue should have been raised as urgently as soon as the issue became apparent.

• It was not appropriate for the 1st Registrant to administer Mannitol without a prescription from a Radiologist. It was not appropriate to allow others in the team to do the same. As a senior Radiographer he should have ensured the correct procedure was being followed and ensured other staff were also following the policy.

• Examinations should have ceased until the correct procedure was in place.

• The 2nd Registrant was not a prescriber and should not have deviated from the Trust protocol.

• The 2nd Registrant did not take the appropriate action by raising concerns or stop the process of administering Mannitol without a prescription.

• The risk to the patient from Mannitol is very small and no harm to any patient was discovered.

• There is no indication that any of the examinations were not warranted or were unnecessary.

• The vetting process in this department did not work as designed and put the Radiographers in a difficult position.

• Presumably the Registrants weighed up the risks benefits and used their experience and knowledge of vetting and the procedure itself to make the decision to continue without the vetting process. This was probably done in the best interests of the patients and to keep waiting lists down.

• Looking at my role, he had asked staff to practice outside of strict guidelines, this is done using his knowledge and experience and weighing up any risks and benefits.

81. In oral evidence, Mr Brandt said the issue with Mannitol is that there is no one standard and from his research into this matter he has identified that it is causing problems in different Trusts as some use a PGD and some Pharmacy departments want it prescribing. He had spoken with one Hospital where the Radiographers are doing the vetting, in similar circumstances, to these Registrants without a PGD or prescription. Mr Brandt said that he has raised this as an issue with the Trust in question.

82. Mr Brandt thought that the conduct of the Registrants fell below the HCPC Standards, but that there were lots of mitigating circumstances.

83. Mr Brandt was referred to an email he sent to the HCPC on 3 July 2024 in which he stated, ‘Although they have fallen below the standards - giving a prescribed drug without a prescription I feel the risks of harm are minimal and if they had had a PGD in place they would not be in this situation in the first place.’ He was asked if he could expand on how serious the conduct was. Mr Brandt did not provide a specific response about the level of seriousness but did say that the bottom line is that the administration of Mannitol without a prescription should not have happened.

84. Ms O’Connor confirmed that the HCPC had no further witnesses to call.

Submissions of No Case to Answer

85. At the close of the HCPC evidence, the representatives for the 1st and 2nd Registrant made submissions of no case to answer.

Mr Lund - 1st Registrant

86. Mr Higgs made a submission of no case to answer on the basis that the statutory ground of misconduct is not met.

87. Mr Higgs referred to the cases of Roylance v. GMC (No.2) [2000] AC 311, R (on the application of Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin), and Cheatle v GMC [2009] EWHC 645 (Admin).

88. Mr Higgs submitted that at all times the 1st Registrant’s focus was to provide a professional service to patients.

89. Mr Higgs submitted that the 1st Registrant and his team were meant to seek a prescription for the Mannitol which was automatically generated by CRIS when the patient was vetted by the Radiologist. However, this was not straightforward given the delay in the vetting and some Radiologist’s declining to vet.

90. Mr Higgs submitted that the Mannitol was pre-prepared and was the same single dose for every patient. He submitted that it would have been at considerable inconvenience to send the patient home if having arrived at the examination fully prepared, they were told it could not be undertaken due to the prescription having not been vetted. Mr Higgs submitted that it was no surprise that the team had slipped into the habit of administering the Mannitol without a prescription.

91. Mr Higgs submitted that the evidence shows that no harm was suffered by any patients nor was it likely that any harm would be cause given the low risk of Mannitol.

92. Mr Higgs submitted that it was the systematic failings of the processes and procedures in place at the Hospital which created this situation.

93. Mr Higgs submitted that at its highest there is insufficient evidence to say that the actions of the 1st Registrant amounted to misconduct.

Mr Holland - 2nd Registrant

94. Mr Pembridge submitted that there was no case to answer in relation to the 2nd Registrant. He submitted that the actions taken by the 2nd Registrant became accepted standard practice within the team as a result of there being no written procedure in place.

95. Mr Pembridge said that the 2nd Registrant’s actions were no different than those of his Band 7 colleagues, three of whom have given evidence where they admitted to the same actions.

96. Mr Pembridge submitted that the 2nd Registrant had the best interests of his patients in mind at all times and that no harm had come to any patients. He submitted that the 2nd Registrant had reflected and learnt from his actions and that there was very little chance of repetition.

97. Mr Pembridge submitted that any decision to continue with the case against the 2nd Registrant would be perverse given the other colleagues who admitted the same conduct but who have not found themselves subject to final hearings with the regulator.

98. Mr Pembridge submitted that the expert did not regard the actions of the 2nd Registrant as deplorable, and that the 2nd Registrant had not fallen far below the Standards.
HCPC

99. Ms O’Connor submitted that the HCPC has discharged the burden of proof in relation to the facts, which are, in any event, admitted by the Registrants. Ms O’Connor submitted that the real issue is whether those facts amount to the statutory ground of misconduct and impairment.

100. Ms O’Connor referred to the HCPTS Practice Note on ‘Submissions of No Case to Answer’ dated May 2023, and to the case of R v Galbraith [1981] 1 WLR 1039.

101. Ms O’Connor acknowledged that the three Band 7 colleagues, had admitted the same conduct as the 2nd Registrant. Ms O’Connor submitted that this Panel needs to make its decision independently based on the evidence before it.

102. Ms O’Connor submitted that the 1st Registrant was a line manager and that he failed to ensure that his colleagues only administered Mannitol when it was prescribed, which has resulted in the 2nd Registrant facing these proceedings. She submitted that the evidence shows that when Colleague C alerted him to the issue, he failed to take appropriate action. Ms O’Connor submitted that in doing so, the 1st Registrant placed not only his own professional reputation at risk but also the reputation of his colleagues who he line managed.

103. Ms O’Connor submitted that the conduct occurred over a one-year period and could not be described as a single isolated incident. She submitted therefore that the 1st Registrant and 2nd Registrant had worked outside their scope of practice for a significant period of time.

104. Ms O’Connor submitted that both Registrant’s had fallen below the HCPC Standards of conduct, performance and ethics (in place at the relevant time). Including:

‘Standard 3.1 – You must keep within your scope of practice by only practicing in the areas you have appropriate knowledge, skills and experience for.

Standard 3.4 – You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.

Standard 6.1 – You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues, as far as possible.

Standard 6.2 – You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
Standard 7.1 – You must report any concerns about the safety or wellbeing of service users promptly and appropriately.

Standard 7.2 – You must support and encourage others to report concerns and not prevent anyone from raising concerns.

Standard 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Standard 10.1 – You must keep full, clear and accurate records for everyone you care for, treat or provide other services to.’

105. Ms O’Connor submitted that in relation to the 1st Registrant he had also breached Standard 7.6 – ‘you must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.’

106. Ms O’Connor submitted that the HCPC acknowledge that the risk of harm was low as per the evidence of the expert Mr Brandt. However, both Registrant’s administered Mannitol for one year without a legal prescription, acting outside of their scope of practice. She submitted that neither Registrant raised any concerns about the lack of vetting or that they were giving prescribed medicine to hundreds of patients without a prescription in place.

107. Ms O’Connor submitted that the evidence which the HCPC has presented is such that, when taken at its highest, no reasonable panel could properly conclude that the statutory ground of the Allegation is not met.

108. Ms O’Connor submitted the Panel should also ask itself whether the evidence which the HCPC has presented is such that, when taken at its highest, no reasonable panel could properly conclude that the Registrants’ fitness to practise is impaired?

109. Ms O’Connor submitted that whilst the Panel had written information from both Registrants, it had yet to hear their oral evidence, and the Panel may consider there are still questions to answer.

110. Ms O’Connor reminded the Panel about the public element of impairment and of the importance of maintaining the HCPC Standards. She acknowledged that the evidence shows that there were clearly issues with the set up and vetting process. However, notwithstanding the issues, the 1st Registrant as a Band 8a and the 2nd Registrant as a Band 7, should have raised concerns and discontinued the administration of the Mannitol until the issues were resolved.

111. Ms O’Connor submitted that the public should be able to rely on a robust regulatory process to ensure safety and confidence in the regulator and the profession. Ms O’Connor submitted that a reasonable panel could properly conclude that public confidence would be undermined if no impairment was found, particularly in light of the length of time this conduct had continued.

Legal Advice

112. The Panel heard and accepted the advice of the Legal Assessor. Reference was made to the HCPTS Practice Notes on ‘Submission of No Case to Answer’, ‘Fitness to Practise Impairment’ dated November 2023 and ‘Opinion Evidence, Experts and Assessors’ dated February 2022.

113. The Legal Assessor advised the Panel on expert evidence, misconduct, impairment and no case to answer. The Legal Assessor referred to the misconduct case law (outlined earlier in this decision) and to the case of Schodlok v GMC. In reference to ‘no case to answer’, the Legal Assessor referred the Panel to the case of The Queen on the application of David Husband v General Dental Council [2019] EWHC 2210 (Admin).

Decision

1st Registrant

114. The Panel considered that the HCPC has presented evidence upon which a panel could find particulars 1 – 4 proved. The Panel has heard from ten witnesses in relation to facts and heard from the expert, Mr Brandt. The evidence includes documentary evidence, initially collated as part of the Hospital investigation, which is relied on by the HCPC to prove that both Registrants and other team members were administering Mannitol to patients. Further, in relation to the 1st Registrant that this issue was brought to him as a concern by Colleague C, but that he did not take appropriate action, and he continued to act outside the scope of his practice.

115. The Panel took into account that whilst some of the witness evidence about the wider context of working within the Hospital varied, the evidence relating to the narrow drafting and interpretation of the particulars of the Allegation, was consistent across the witness testimony. It also accords with the admissions made by the 1st Registrant at the outset of the hearing.

116. The Panel therefore considered that the evidence was not so unsatisfactory in nature that a panel could not find the particulars of the Allegation proved.
117. The Panel took into account that if the case proceeded to its conclusion, the decision of whether it is ‘well founded’ would require it to determine whether, in its judgement, the facts alleged: a. amount to the statutory ground of the allegation; and b. in turn, establish that the Registrant’s fitness to practise is impaired.

118. The Panel therefore moved on to address those issues.

119. It asked itself whether the evidence which the HCPC has presented is such that, when taken at its highest, no reasonable panel could properly conclude that: a. the statutory ground of the allegation is met; or b. the Registrant’s fitness to practise is impaired?

120. In reaching its decision, the Panel took into account that at the time of the events giving rise to this hearing, the 1st Registrant was in a senior position, for which he had line management responsibility for a number of Radiographers. There is evidence before the Panel that the 1st Registrant was not a qualified prescriber, and that Mannitol was not subject to a Patient Group Directive (“PGD”). Therefore, it had to be prescribed. Administering it to multiple patients without a prescription, over the course of one year, which was not permitted, is likely to amount to a breach of the HCPC Standards, including acting outside of scope of practice.

121. As the Lead MR Radiographer, the 1st Registrant had a responsibility to ensure he was not sanctioning incorrect practice and that those he line managed were not acting outside their scope of practice. If this was breached, then he would have fallen below the HCPC Standards. He also had a duty to take appropriate action if concerns were raised with him to ensure the safety and wellbeing of service users and also of his and his teams’ professional reputation. A failure to do that is likely to suggest a breach of the HCPC Standards.

122. The number of potential breaches, combined with the duration of the conduct and number of patients involved, could lead a panel to consider the conduct as significantly serious. This level of seriousness could be compounded by the lack of action taken once the issues were allegedly brought to the Registrant’s attention, albeit that it was later discovered that no patients were harmed.

123. The Panel took into account that impairment relates to both the public and private components. If the 1st Registrant did fail to follow correct prescribing procedure, and fail to take action or raise concerns, this could have placed patients at risk and could bring the Radiography profession into disrepute. As a regulator, one of the HCPC’s objectives is to ensure professional Standards are maintained and that public confidence in the profession is met. The professional Standards expected of registrants are what the public and the HCPC expects of them.

124. The Panel considered that a reasonable panel could have regard to the need for the public to have confidence in the registrants who treat them and to be assure that registrants are acting within the correct procedures. A reasonable panel may consider that the public is entitled to expect registrants to act within their scope of practice and also to be able to rely on the regulatory process to be robust, fair and transparent.

125. The Panel considered the evidence as a whole, including the written evidence it had from the Registrant at this stage. It decided that taken at its highest a reasonable panel could properly conclude that there is sufficient evidence to establish the statutory ground of misconduct and, in turn, impairment.

2nd Registrant

126. The Panel considered that the HCPC has presented evidence upon which a panel could find particulars 1 – 3 proved. The Panel has heard from ten witnesses in relation to facts and heard from the expert, Mr Brandt. The evidence includes documentary evidence, initially collated as part of the Hospital investigation, which is relied on by the HCPC to prove that the 2nd Registrant was administering Mannitol to patients, that he did not raise concerns, and that he acted beyond his scope of practice.

127. The Panel took into account that whilst some of the witness evidence about the wider context of working within the Hospital varied, the evidence relating to the narrow drafting and interpretation of the particulars of the Allegation, was consistent across the witness testimony. It also accords with the admissions made by the 2nd Registrant at the outset of the hearing.

128. The Panel therefore considered that the evidence was not so unsatisfactory in nature that a panel could not find the particulars of the Allegation proved.

129. The Panel took into account that if the case proceeded to its conclusion, the decision of whether it is ‘well founded’ would require it to determine whether, in its judgement, the facts alleged: a. amount to the statutory ground of the allegation; and b. in turn, establish that the Registrant’s fitness to practise is impaired.

130. The Panel therefore moved on to address those issues.

131. It asked itself whether the evidence which the HCPC has presented is such that, when taken at its highest, no reasonable panel could properly conclude that: a. the statutory ground of the allegation is met; or b. the Registrant’s fitness to practise is impaired?

132. In reaching its decision, the Panel took into account that at the time of the events giving rise to this hearing, the 2nd Registrant was a senior and experienced Radiographer. There is evidence before the Panel that the 2nd Registrant was not a qualified prescriber, and that Mannitol was not subject to a Patient Group Directive (“PGD”). Therefore, it had to be prescribed. Administering it to multiple patients without a prescription, over the course of one year, which was not permitted, is likely to amount to a breach of the HCPC Standards, including acting outside of scope of practice.

133. As an experienced and senior Radiographer, the 2nd Registrant had a responsibility to ensure he was not acting outside his scope of practice. If he was, then he would have fallen below the HCPC Standards. As an autonomous registered professional, he also had a duty to take appropriate action if he was concerned about administering the Mannitol without a prescription in place. A failure to do that is likely to suggest a breach of the HCPC Standards. The number of potential breaches of the HCPC Standards, combined with the duration of the conduct and number of patients involved, could lead a panel to consider the conduct as significantly serious, albeit that no patients were harmed.

134. The Panel took into account that impairment relates to both the public and private components. If the 2nd Registrant did fail to follow correct prescribing procedure, and fail to raise concerns, this could have placed patients at risk and could bring the Radiography profession into disrepute. As a regulator, one of the HCPC’s objectives is to ensure professional Standards are maintained and that public confidence in the profession is met. The professional Standards expected of registrants are what the public and the HCPC expects of them.

135. The Panel considered that a reasonable panel could have regard to the need for the public to have confidence in the registrants who treat them and to be assure that registrants are acting within the correct procedures. A reasonable panel may consider that the public is entitled to expect registrants to act within their scope of practice and also to be able to rely on the regulatory process to be robust, fair and transparent.
136. The Panel considered the evidence as a whole, including the written evidence it had from the Registrant at this stage. It took into account that other Band 7’s had admitted to carrying out the same conduct. As matters of misconduct and impairment are matters for a panel’s judgement, a perceived inconsistency, should not be assumed.
137. This Panel decided that taken at its highest, a reasonable panel could properly conclude that there is sufficient evidence to establish the statutory ground of misconduct and, in turn, impairment.

Evidence of the 1st Registrant

138. The 1st Registrant gave evidence on affirmation. He said that he has been working in MR Radiography for nearly 25 years and had wide experience of examinations.

139. He considered that there had been push back from the GI Radiologists and they were not a supportive team.

140. The 1st Registrant provided evidence about the patients targets and waiting lists, and that vetting was taking too long.

141. The 1st Registrant said that when he had heard that Mannitol would be issued by prescription he was surprised as Mannitol is not a risky medicine. The process immediately raised concerns as he wondered whether it would be achievable. However, it was presented as a fait accompli.

142. The 1st Registrant described the practical difficulties in having to find a Radiologist to vet when the patient had already arrived and the impact this had on the efficiency of the service.

143. The 1st Registrant said that in retrospect he should have raised concerns or done a DATIX, but that he knew it would have come back to him to sort out. He said that with hindsight he should have refused to use the Mannitol and fallen back on using the Moviprep under the PGD.

144. The 1st Registrant described his behaviour at the time as foolish. He had in mind that the Mannitol was safe to administer and was necessary to ensure a successful examination.

145. The 1st Registrant said that he wished to apologise to his patients and colleagues for what had happened.

146. In cross examination, the 1st Registrant made full admissions to particulars 1-4 of the Allegation. He said that he was conscious of the fact that this process (of administering without prescription) was happening and needed to be sorted but he failed to sort it or stop it or find a solution. At the time he had many other tasks demanding his attention and he fell into a heuristic trap of allowing it to happen once and it became easier to accept the longer it went on. He had pushed it down to the bottom of his things to sort, which was bad judgement and his failing.

147. The 1st Registrant said that he had learnt from this experience and was clear of what steps he would take should he find himself in a similar situation.
Evidence of the 2nd Registrant

148. The 2nd Registrant gave evidence on affirmation.

149. The 2nd Registrant read out his statement which was included in the bundle which he had provided in advance of the hearing.

150. In summary his evidence was as follows:

‘I understand my fitness to practice has been called into question, due to my involvement with an incident at my previous role involving the prescription and administration of Mannitol.

As this incident happened a few years ago, it has given me plenty of opportunity to reflect and learn about what went wrong and how I should perform my duties better in the future.

During my employment at Wythenshawe hospital I was part of an MR team performing small bowel MR studies. A change in practice was suggested by one of the consultant GI Radiologist from the use of Movi-prep to that of Mannitol. I understood the rationale behind this was due to Mannitol providing better bowel distention, being better tolerated and a safer preparation to use. I had heard that this was the case from colleagues using it at different hospitals and from a current member of the MR team who had used it almost exclusively at their previous NHS institute.

During this time the department paperwork was not as it should be. Prior the introduction of mannitol, radiographers in the team were expected to vet all incoming MR referrals with some backup from Radiologist if we had any queries. There was no lead radiologist with an interest in MR at the time period. Additionally at the time of the allegations the departmental protocols were found to be inadequate with no expectation or PGD specific paperwork to complete when administering bowel prep.

Recognising my failures in regards to the incident I have undertaken specific PGD training (which did not exist at the time either at the trust or my previous employers). This has given me a much better understanding of what PGDs are and what needs to be complete to be fully compliant with them (Ie. Specific dose, site, referral etc.... My understanding of PGDs at the time was naive and I thought they were a means for radiographers to give contrast/bowel prep for a specific examination, but were not necessarily linked to a specific make.

The fact that we were asked to give mannitol by a consultant GI Radiologist meant that I naively did not question my ability to give it without a specific prescription (via) CRIS. I recall on several occasions asking radiologist if they were happy for mannitol to be given to patients. They were always happy to oblige, however I cannot recall habitually recording this on CRIS and/or getting them to sign the screening form. My practice now is to absolutely ensure it happens now and I have even refused to give contrast/bowel prep if no Doctors are able to prescribe patients that fall out of a PGD. At the time of these events, I did not think to question that the processes were wrong and that I needed to ensure that recording of bowel prep given was available on CRIS. On reflection,

I acknowledge that I failed in my scope to challenge the processes in place, and have Subsequently learnt a great deal around PGD’s and prescriptions and my scope in them. I realise that I cannot work or administer contrast without proper documentation and advice from a Dr/Radiologist and that their involvement need to be well documented and countersigned wherever possible.

Indeed whilst this investigation was underway I was part of a team compiling and working towards a QSI accreditation, of which the department was successful in achieving. An integral part of this involved the tightening and ensuring PGD, processes and paperwork were well adhered to. I truly regret my actions and feel that I was naïve and ill equip at the time to realise the importance of following and challenging the process/status quo.

5 years later, my personal practice has positively changed due to this process, and I wish share my experience with colleagues, as I feel the importance of medicine management and PGD compliance is not fully understood by injection radiographers.’

151. In cross-examination, the 2nd Registrant admitted the factual particulars of the Allegation. He described trying to remember back as to what his mindset was. He thought he was confused at the time, perhaps thinking a PGD had been put in place. He acknowledged that he was copied into the email from Colleague C relating to the issues with vetting but he did not recall reading this at the time.

152. The 2nd Registrant gave evidence about what he would do differently now if faced with a similar situation.

153. The 2nd Registrant said that another professional would say that what he and the team did was wrong, that they did the wrong thing.
Parties Submissions and Legal Advice

154. The parties made submissions on facts and statutory grounds.

155. Ms O’Connor submitted that the HCPC had discharged the burden of proof in respect of each allegation for each Registrant. She drew the Panel’s attention to the witnesses’ evidence in relation to facts as well as the expert evidence from Mr Brandt. Ms O’Connor submitted that the evidence includes the documentary evidence, initially gathered as part of the Hospital investigation.

156. Ms O’Connor submitted that both Registrants administered Mannitol medication without prescription, and they failed to raise concerns about the practices in place at the time. In doing so, they worked outside their scope of practice, and the 1st Registrant also failed to ensure those he line managed were not working outside their scope of practice.

157. Ms O’Connor drew the Panel’s attention to the oral evidence from both Registrants, as well as the documentary evidence from them in the form of each Registrant’s bundle. Ms O’Connor reminded the Panel that both Registrants admit the factual particulars of the Allegations.

158. Ms O’Connor submitted that throughout the course of the HCPC case, the Panel had heard evidence which, depending on the factual conclusions the Panel reach about that evidence, could amount to mitigation for the acts and omissions undertaken by each Registrant.

159. Ms O’Connor submitted that these are all relevant features which the Panel should take into account when considering the issue of misconduct as they are relevant to the degree of culpability of each Registrant and therefore relevant to the Panel’s assessment of the seriousness of each Registrant’s conduct.

160. Ms O’Connor submitted that whilst the Panel may find a number of mitigating features to be present, and may have sympathy for the circumstances within which the Registrants were practising at the Hospital, those features do not excuse the conduct of each Registrant, and they do not change the fundamental features of each case against the Registrant.

161. Ms O’Connor submitted that both Registrants administered Mannitol, a prescription only medication, to patients without prescription. Given the absence of a PGD, that was not a legal administration of the medication. Ms O’Connor submitted that regardless of the risks, or lack thereof, medication which is prescription only medication should not be administered without prescription.

162. Ms O’Connor submitted that this conduct constitutes a breach of multiple HCPC standards. Ms O’Connor referred the Panel to her written case summary for the list of HCPC Standards advanced on behalf of the HCPC. Ms O’Connor submitted that whilst breach of one or more Standards does not mean that the conduct amounts to misconduct, it is submitted that the conduct of each Registrant in respect of each factual particular of the Allegation does amount to a falling short of the Standards and that they fell far short of the applicable Standards.

163. Mr Higgs submitted that the administering of Mannitol without a prescription was a practice that had developed over time, within a difficult working environment.

164. Mr Higgs submitted that whilst it is not in dispute that in this Hospital Mannitol required a prescription, it was the best technical contrast and was tolerated better [than Moviprep] by patients, with a very low risk. It was also pre-mixed and was a single standard dose.

165. Mr Higgs submitted that the alternative to not giving Mannitol was declining to image the patient and sending them away, thus delaying any potential diagnosis or treatment they awaited. This in itself would have caused harm to the patient.

166. Mr Higgs submitted that in this situation, the 1st Registrant and the team did the best they could for patients. He submitted that the 1st Registrant does not condone what happened and has admitted and accepted his role in it.

167. Mr Higgs drew the Panel’s attention to the unused material, which contained an email from Mr Brandt to the HCPC. This stated that Mr Brandt was not able to answer whether the conduct fell far short of what was expected but offered his reflections on the situation and context of the events.

168. Mr Higgs asked the Panel to carefully consider whether the conduct by the 1st Registrant was deplorable, or whether it was an error in difficult circumstances where he was trying to do his best for the patients, in which case it would not amount to misconduct.

169. Mr Pembridge reminded the Panel that the 2nd Registrant had admitted to the factual particulars of the Allegation with the exception that his fitness to practice is currently impaired.

170. Mr Pembridge submitted that it was the view of the expert witness, that the actions were deemed not to have fallen far below the standards expected of a registrant. He submitted that an example of what might be serious in this context would include a falling short that a fellow registrant would regard as being deplorable. Mr Pembridge submitted that he did not believe that the expert witness believed this to be true of the 2nd Registrant.

171. Mr Pembridge submitted that the 2nd Registrant had not had any concerns raised about his practice, prior or following, the allegations subject to these proceedings and no disciplinary action was taken by the Hospital in regard to the actions subject to these proceedings.

172. Mr Pembridge submitted that the HCPC did not deem the allegations so serious, that they believed if the Registrant was allowed to practice without restriction, that public safety would be put at risk, or there would be a risk to the public interest.

173. Mr Pembridge submitted that the 2nd Registrant has undertaken a considerable amount of reflection and attended several courses to enhance his knowledge and understanding and feels he is a better radiographer as a result. This is documented in the 2nd Registrant’s bundle submitted to the Panel prior to the hearing. This included a character reference.

174. The Panel heard and accepted the advice of the Legal Assessor in respect of the approach to take in determining findings of facts and the burden and standard of proof. The burden of proof rests on the HCPC and it is for the HCPC to prove the Allegation irrespective of any admissions made by the Registrants. The Legal Assessor provided advice on the issues of credibility and reliability, as per the guidance in R (Dutta) v GMC [2020] EWHC 1974 (Admin). The Legal Assessor provided guidance on expert witness evidence and the definition of scope of practice as defined in the HCPC guidance.

175. The Panel heard and accepted the advice of the Legal Assessor in relation to Misconduct, this having been previously set out in relation to the submissions of no case to answer.

Decision on Facts:

1st Registrant

As a registered Radiographer (RA32009) your fitness to practise is impaired by reason of misconduct.

In that: 1. Between November 2018 and November 2019, you administered Mannitol to patients without a prescription from a Radiologist.

176. The Panel first considered whether a prescription for Mannitol, from a Radiologist, was required in order to administer the Mannitol to patients. The Panel took into account that the witnesses who spoke to this point were all consistent in their evidence that Mannitol required a prescription before it could be administered. The MRI department was using Mannitol as a contrast agent and administering it to patients in preparation for small bowel scans. Mannitol was a prescription-only medicine and there was no PGD in place at the Hospital for the administration of Mannitol at the time. Prescription-only medicines are a specific class of medicine. A prescription-only medicine has to be prescribed by a doctor or other authorised health professional, and it has to be dispensed from a pharmacy or from another specifically licensed place.

177. The Panel next considered whether the 1st Registrant had administered Mannitol to patients without a prescription. The Panel placed weight on the evidence of Colleague G and Colleague H who had jointly undertaken the Hospital investigation into the concerns. Their evidence was corroborative and was supported by documentary evidence including interview notes, and an audit of patient records, which had been undertaken as part of the internal investigation.

178. The evidence shows that Colleague H reviewed a list of patients who had been given Mannitol between 1 November 2018 and 28 September 2019. There were four hundred and twenty patients on this list. Colleague H also reviewed the clinical records available in Radiology for each of those patients. Out of the four hundred and twenty patients reviewed, three hundred and three had not been vetted. Colleague H’s evidence was that the results indicated that a Radiologist or Doctor had not vetted the patient and prescribed Mannitol prior to it being administered. He also stated that it was evident that these patients had not been vetted as it was not documented in their patient clinical records on CRIS.

179. There is evidence that Colleague G also undertook an audit covering the dates November 2018 to November 2019. In completing this audit, Colleague G looked at whether the examination was vetted and if it was who did the vetting. Overall, the audit showed that there were 420 patients attending for magnetic resonance small bowel enteroclysis over the period. 98 patients were vetted, and had the Mannitol prescribed by a Radiologist. 21 patients had the examination vetted and justified by a Radiographer working in magnetic resonance scanning. 11 of the 21 patients vetted and justified by a radiographer were done by the 1st Registrant who also protocolled the examination and electronically prescribed the Mannitol. Of the remaining patients in the audit, 295 had no vetting, or justification, or protocols set but Mannitol was given to the patient. 5 patients were vetted, justified and protocoled to receive a different preparation, Moviprep, for which a PGD was in place and for 1 patient the examination was not performed.

180. The Panel took into account that the evidence of Colleague G and Colleague H about the 1st Registrant administering Mannitol without a prescription is supported by the 1st Registrant’s own evidence. The Panel had before it evidence in the form of a written statement of the 1st Registrant which he provided to the Hospital investigation on 3 December 2019. This states that, ‘it became routine to administer the Mannitol without a prescription in place. This was to maintain service delivery and reduce staff pressures.’

181. The Panel concluded that the 1st Registrant’s admission to this particular of the Allegation at the outset of the hearing is supported by the evidence before it. It therefore decided that, on the balance of probabilities, between November 2018 and November 2019, the 1st Registrant administered Mannitol to patients without a prescription from a Radiologist. The Panel found this particular proved.

2. Between November 2018 and November 2019, you did not ensure that any or all of the following colleagues only administered Mannitol to patients when it had been prescribed by a Radiologist: a) Colleague A b) Colleague B c) Colleague C d) Colleague D e) Colleague F.

182. The Panel took into account that the relevant dates November 2018 and November 2019 had arisen as that was the period covered by the Hospital investigation conducted by Colleagues G and H. The Panel had before it evidence of an email exchange between the Hospital Research Lead and the 1st Registrant dated 19 November 2019. The Research Lead asks whether there is a protocol for the prescription of Mannitol for small bowels. The 1st Registrant replies to say that it is ‘prescribed by the GI radiologists or me in their absence/lack of compliance.’ It is this email exchange that triggered the initial clinical review and thereafter the Hospital investigation.

183. The Panel first considered whether each of the individual colleagues specified in the particular of the Allegation had administered Mannitol to patients when it had not been prescribed by a Radiologist. It took into account and placed weight on the written and oral evidence it had received from each of the colleagues listed. Colleagues A, B [2nd Registrant], C and D were all asked during the course of their evidence whether they had administered Mannitol without prescription. They all confirmed that they had.

184. In relation to Colleague F, whilst she did not specifically admit to administering Mannitol to patients when it had not been prescribed by a Radiologist, the Panel inferred this to be the case. In making that inference, it relied on Colleague F’s statement in which she sets out details of being shown where the Mannitol was kept and how to access it. Her written statement states that as she has used Mannitol before she ‘did not have many questions about it in terms of how to give it to patients other than whether or not it needed mixing with water.’ Her statement also states that when she joined the Trust, she was told that the Band 8 and 7’s vetted the scans as the Radiologists were too busy to vet. Colleague F’s statement continues by stating that she ‘assumed that they [Radiographers] had been signed off to vet.’ The Panel considered that the inference that Colleague F was administering Mannitol without prescription is further supported by the Hospital investigation interview notes with the 1st Registrant in which he states that the two band 6 Radiographers were, ‘Informed that we give Mannitol. Picked up prescription. I had prescribed on CRIS.’ When asked whether the band 6 Radiographers question this, the 1st Registrant replied ‘no’.

185. Having established that each of the listed colleagues did administer Mannitol to patients when it had not been prescribed by a Radiologist, the panel next considered what the 1st Registrant’s duty to his colleagues was. The Panel considered whether it was the duty of the 1st Registrant to ensure that his colleagues (A, B, C, D, F) only administered Mannitol to patients when it had been prescribed by a Radiologist.

186. The Panel relied on the evidence of Colleague G who it considered to be a reliable witness, who was consistent with other witnesses and measured in her oral evidence. Colleague G conducted the Hospital investigation into the alleged actions of the 1st Registrant. Her witness statement states that, ‘as the Band 8a Lead MR Radiographer, [the 1st Registrant] was responsible for ensuring that the process for administering Mannitol was safe. This included ensuring that other staff in his team were administering Mannitol safely and in accordance with the correct procedure.’ Further, it states that, ‘it would be contrary to the clinical requirements in [the 1st Registrant’s] Job Description [as exhibited] for him to instruct his colleagues to administer Mannitol without a prescription issued by a Radiologist. Further, it is also contrary to Section 8, Prescribing of Medicines of the Trust's Medicine Policy. [The 1st Registrant] would have been aware of this policy as it was available on the Trust intranet… [The 1st Registrant] would have been aware that as there was no PGD in place for Mannitol, then it could not be administered by himself or the other Radiographers without a valid prescription.’

187. The evidence before the Panel supports the admission made by the 1st Registrant at the start of the hearing.

188. The Panel therefore concluded that, on the balance of probabilities, between November 2018 and November 2019, the 1st Registrant did not ensure that any or all of the following colleagues only administered Mannitol to patients when it had been prescribed by a Radiologist: a) Colleague A b) Colleague B c) Colleague C d) Colleague D e) Colleague F. The Panel found this particular proved.

3. Between November 2018 and November 2019, you did not take the appropriate action on concerns brought to you by Colleague C in respect of administering Mannitol without a prescription.

189. The Panel first considered whether Colleague C had brought concerns to the 1st Registrant’s attention. The Panel relied on the evidence of Colleague C that she had brought concerns to the 1st Registrant’s attention in relation to the administration of Mannitol without a prescription. Colleague C recalls that she verbally raised her concerns with the 1st Registrant, although she could not recall when this was. This evidence was corroborated by the 1st Registrant in his evidence, albeit he believed this verbal discussion had taken place just prior to Colleague C emailing Colleague I.

190. The Panel placed significant weight on the email sent by Colleague C to Colleague I on 26 October 2018. This document was created within the course of business and was created prior to any knowledge of the later Hospital and HCPC investigations. The email is sent to Colleague I but the 1st Registrant, and the 2nd Registrant, as well as other colleagues, are copied into the email. The email states ‘We have noticed that the vetting of small bowel studies for mannitol has not been completed. Do you still want us to continue with mannitol? If you want us to continue, please can they be vetted as such, otherwise we are not able to use the mannitol as we do not have a PGD.’

191. The Panel next considered whether the 1st Registrant took the appropriate action, having had the concerns brought to him by Colleague C in respect of administering Mannitol without a prescription. The Panel took into account that Colleague G, H, K and I all provide consistent evidence that the 1st Registrant did not raise the concerns. The Registrant admits this to be the case, indicating that he did not do so as he knew it would be pushed back down to him to deal with.

192. In terms of what the appropriate action he should have taken was, the Panel relied on the evidence of Colleague G, whose witness statement states that, ‘upon hearing these concerns from Colleague C, I would have expected [the 1st Registrant] to have taken steps to ascertain whether the concerns were correct and well-founded. If [the 1st Registrant] had decided these concerns were correct and well-founded, he should then have acted upon the concerns, either by himself or by escalating it to Colleague I or one of the other Radiologists. He could also have escalated it to Colleague K or me.’ The Panel noted that by his own admission, the 1st Registrant had not taken any of these actions.

193. The Panel therefore concluded, on the balance of probabilities, that between November 2018 and November 2019, the 1st Registrant did not take the appropriate action on concerns brought to him by Colleague C in respect of administering Mannitol without a prescription. The Panel found this particular proved.

4. In respect of particular 1, you have worked beyond your scope of practice.

194. Having found particular 1 proved, the Panel considered whether administering Mannitol to patients without a prescription from a Radiologist was beyond the 1st Registrant’s scope of practice.

195. The Panel took into account the evidence it had read and heard that Mannitol was a prescription-only medicine and there was no PGD in place at the Hospital for the administration of Mannitol at the time. A prescription-only medicine has to be prescribed by a doctor or other authorised health professional.

196. The evidence of Mr Brandt, is that ‘Radiographers are not prescribers unless they have done the specific course to do so.’ It is not disputed by the 1st Registrant that he was not a qualified prescriber and therefore he should not have been vetting (and thus prescribing) the Mannitol.

197. The evidence of Mr Brandt is that ‘It was outside the scope of practice to continue without the vetting process taking place.’ In his written report he states that, ‘Radiographers are not allowed to administer Mannitol without a prescription from a Radiologist. This is against the Trusts medicines policy, HCPC standards of proficiency for radiographers (2013) and scope of practice. It is also against the society of radiographer’s guidance for the supply or administration of medicines to patients. Radiographers are not prescribers unless they have done the specific course to do so. There is no mention that the registrant has completed a recognised prescribers course.’

198. The 1st Registrant accepted in evidence that because he is not a prescriber, administering Mannitol to patients without a prescription from a Radiologist was beyond his scope of practice.

199. The Panel concluded, on the balance of probabilities, that in respect of particular 1, the 1st Registrant had worked beyond his scope of practice. The Panel found this particular proved.

2nd Registrant

As a registered (Radiographer) (RA39749) your fitness to practise is impaired by reason of misconduct.

In that: 1. Between November 2018 and November 2019, you administered Mannitol to patients without a prescription from a gastrointestinal (GI) Radiologist, which could have caused harm to patients.

200. The Panel noted that November 2018 to November 2019 was the period covered by the Hospital investigation, following concerns coming to light as a result of an email exchange dated 19 November 2019, between the Hospital Research Lead and the 1st Registrant. As a result of the email the Hospital investigated the practices of the MRI team, which included the 2nd Registrant. The Panel was therefore satisfied with the timeframe as drafted.

201. The Panel next considered whether the 2nd Registrant had administered Mannitol to patients without a prescription from a gastrointestinal (GI) Radiologist.

202. The Panel placed weight on the evidence of Colleague G and Colleague H who had jointly undertaken the Hospital investigation into the concerns. Their evidence was corroborative and was supported by documentary evidence including interview notes, and an audit of patient records, which had been undertaken as part of the internal investigation.

203. The evidence shows that Colleague H reviewed a list of patients who had been given Mannitol between 1 November 2018 and 28 September 2019. There were four hundred and twenty patients on this list. Colleague H also reviewed the clinical records available in Radiology for each of those patients. Out of the four hundred and twenty patients reviewed, three hundred and three had not been vetted. Colleague H’s evidence was that the results indicated that a Radiologist or Doctor had not vetted the patient and prescribed Mannitol prior to it being administered. He also stated that it was evident that these patients had not been vetted as it was not documented in their patient clinical records on CRIS.

204. There is evidence that Colleague G also undertook an audit covering the dates November 2018 to November 2019. In completing this audit, Colleague G looked at whether the examination was vetted and if it was who did the vetting. Overall, the audit showed that there were 420 patients attending for magnetic resonance small bowel enteroclysis over the period. 98 patients were vetted, and had the Mannitol prescribed by a Radiologist. 21 patients had the examination vetted and justified by a Radiographer working in magnetic resonance scanning. 2 of the 21 were vetted and justified by the 2nd Registrant who did not protocol the examination, and by association did not prescribe the Mannitol but it was given to the patient anyway. Of the remaining patients in the audit, 295 had no vetting, or justification, or protocols set but Mannitol was given to the patient. 5 patients were vetted, justified and protocoled to receive a different preparation, Moviprep, for which a PGD was in place and for 1 patient the examination was not performed.

205. The Panel took into account that the evidence of Colleague G and Colleague H about the 2nd Registrant administering Mannitol without a prescription is supported by the 2nd Registrant’s own evidence. The 2nd Registrant admitted to the particular of the Allegation at the outset of the hearing and accepted under cross examination that he had administered Mannitol without a prescription.

206. Having found that the 2nd Registrant had administered Mannitol to patients without a prescription from a gastrointestinal (GI) Radiologist, the Panel next considered whether this could have caused harm to patients.

207. The Panel heard consistent evidence from multiple witnesses about Mannitol being a very low risk of harm and that the patient audits undertaken by Colleague G and Colleague H did not identify any adverse events arising. However, the Panel took into account that the wording of the Allegation was ‘could’ not ‘did’ cause harm. The Panel relied on the written evidence of Colleague H, who states that, ‘the three likely adverse effects that could occur are an allergic reaction, acute kidney injury or dehydration.’ In oral evidence, Colleague H reiterated the possible side effects of Mannitol including diarrhoea, abdominal cramps and/or spasms which could lead to dehydration.

208. Colleague H’s evidence was supported by the expert evidence from Mr Brandt. He states that, ‘reported side effects include diarrhoea, abdominal pain and discomfort, nausea and vomiting, which may lead to dehydration.’

209. The Panel acknowledged that the risk of harm to patients was very low and that no patients had been harmed. Nonetheless on the evidence before it, on the balance of probabilities, it found that there could have been harm caused as the administration of Mannitol could have cause the patient to experience diarrhoea, abdominal pain, and/or nausea, which may lead to dehydration.

210. In conclusion, the Panel found that, on the balance of probabilities, that between November 2018 and November 2019, the 2nd Registrant administered Mannitol to patients without a prescription from a gastrointestinal (GI) Radiologist, which could have caused harm to patients. The Panel found this particular proved.

2. Between November 2018 and November 2019, you did not take the appropriate action and/or raise concerns and/or object to the administration of Mannitol without a prescription.

211. The Panel first considered whether the 2nd Registrant took appropriate action in relation to the administration of Mannitol without a prescription. It relied on the evidence of Mr Brandt who states in his report that, ‘There were other options, not to scan those arriving without vetting and re book once vetted; only book vetted patients.’

212. The 2nd Registrant admits he did not take appropriate action. The evidence before the Panel from the Hospital investigation supports the conclusion that patients were administered Mannitol despite having no prescription in place rather than being sent home and re-booked.

213. The Panel next considered whether the 2nd Registrant raised concerns. The Hospital investigation identified that the concerns about the administration of Mannitol were not raised by anyone during the relevant period, save for Colleague C who had verbally spoken to the 1st Registrant and who had emailed Colleague I highlighting issues with vetting.

214. The Panel heard evidence that the 1st Registrant was the line manager for the 2nd Registrant. In oral evidence the 2nd Registrant described the 1st Registrant as “very approachable.”. In the 2nd Registrant’s written reflection to the Hospital, in response to a question about what support he could have sought, the 2nd Registrant states, ‘clarification on processes from my managers.’ The Panel therefore considered that the 2nd Registrant could have raised concerns with the 1st Registrant, but he did not do so.

215. The Panel also considered that there were other options open to the 2nd Registrant to raise concerns. The Panel relied on Mr Brandt’s report which states that, ‘the registrant could have raised a DATIX for each patient (DATIX is a risk management information system to collect and manage data on adverse events). The purpose of collecting such data is to identify learning and implement improvement. But this issue should have been raised urgently as soon as the issue became apparent.’

216. The Panel next considered whether the 2nd Registrant objected to the administration of Mannitol without a prescription. The Panel has already detailed in its findings, the evidence which shows that the practice of administering Mannitol without a prescription continued in the MRI department for one year and only ceased when concerns came to light as a result of an email exchange in November 2019, between the Hospital Research Lead and the 1st Registrant.

217. The Panel concluded that the evidence before it supports the admission of the 2nd Registrant that between November 2018 and November 2019, he did not take the appropriate action and/or raise concerns and/or object to the administration of Mannitol without a prescription.

218. The Panel therefore found that, on the balance of probabilities, between November 2018 and November 2019, the 2nd Registrant did not take the appropriate action, nor did he raise concerns, nor did he object to, the administration of Mannitol without a prescription. The Panel found this particular proved.

3. In respect of particular 1, you have worked beyond your scope of practice.

219. Having found particular 1 proved, the Panel considered whether administering Mannitol to patients without a prescription from a Radiologist was beyond the 2nd Registrants scope of practice.

220. The Panel took into account the evidence it had read and heard that Mannitol was a prescription-only medicine and there was no PGD in place at the Hospital for the administration of Mannitol at the time. A prescription-only medicine has to be prescribed by a doctor or other authorised health professional.

221. The evidence of Mr Brandt, is that ‘Radiographers are not prescribers unless they have done the specific course to do so.’ It is not disputed by the 2nd Registrant that he was not a qualified prescriber and therefore he should not have been vetting (and thus prescribing) the Mannitol.

222. The evidence of Mr Brandt as set out in his report is that ‘It was not appropriate to administer Mannitol without a prescription from a Radiologist. This is against the trust medicines policy and outside of the scope of a radiographer. Mannitol should not have been given to patients until the vetting process had been completed.’

223. His report also states that, ‘This is not within a Radiographer’s scope of practice… Some radiographers train to become a supplementary prescriber; however there is no mention that the registrant had completed such a course or was a named prescriber.’

224. The 2nd Registrant accepted in evidence that because he is not a prescriber, administering Mannitol to patients without a prescription from a Radiologist was not something he was legally able to do, and was beyond his scope of practice.

225. The Panel concluded, on the balance of probabilities, that in respect of particular 1, the 2nd Registrant had worked beyond his scope of practice. The Panel found this particular proved.

Decision on Grounds:

226. The Panel at all times kept in mind the HCPC’s overarching objective of protecting the public which includes protecting service users, protecting public confidence in the profession and the regulatory process, and declaring and upholding proper standards of conduct and behaviour.

227. The Panel took into account the HCPC Standards of Conduct Performance and Ethics. The panel bore in mind that a departure from the Standards alone does not necessarily constitute misconduct.

1st Registrant

228. The Panel concluded that the behaviours of the 1st Registrant in relation to facts: 1, 2 (a-e), 3, and 4 do individually and collectively amount to serious professional misconduct.

229. The Panel concluded that the Registrant’s conduct and behaviour fell far below the standards expected of a registered Radiographer. The Panel determined that the Registrant’s conduct was in breach of the HCPC Standards of Conduct, Performance and Ethics, in particular standards:

Standard 3.1 – You must keep within your scope of practice by only practicing in the areas you have appropriate knowledge, skills and experience for.

Standard 3.4 – You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.

Standard 6.1 – You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues, as far as possible.

Standard 6.2 – You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

Standard 7.1 – You must report any concerns about the safety or wellbeing of service users promptly and appropriately.

Standard 7.2 – You must support and encourage others to report concerns and not prevent anyone from raising concerns.

Standard 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Standard 10.1 – You must keep full, clear and accurate records for everyone you care for, treat or provide other services to.

Standard 7.6 – You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.

230. Based on the findings, the Panel considered that the serious professional misconduct falls into three interlinked areas relating to one set of circumstances:

(i) Administering Mannitol to patients without a prescription from a Radiologist, which was beyond scope of practice.

(ii) Allowing other colleagues to administer Mannitol when it had not been prescribed by a Radiologist.

(iii) Failing to take appropriate action in relation to concerns raised by a colleague in respect of administering Mannitol without a prescription.

231. In relation to (i), the Panel took into account its finding that the 1st Registrant had administered Mannitol, a prescription only medication, to patients without prescription. The Panel took into account that a PGD was not in place. The 1st Registrant was aware from the outset that Mannitol required a prescription, nevertheless he administered Mannitol on multiple occasions to numerous patients over a long period of time. As this administration was without a prescription he knew that this was not a legal administration of the medication.

232. The HCPC Standards require registered Radiographers to keep up to date with and follow the law, and other requirements relevant to their practice.

233. Whilst the evidence is that Mannitol was a very low-risk medicine, and did not cause harm to any patients identified in the Hospital audit, it could, as the Panel has found at facts stage, cause harm to patients. This potential harm includes diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

234. The 1st Registrant, who at the time of the events was a Band 8a, was a senior and experienced Radiographer and he administered Mannitol without a prescription over the course of a year to multiple patients. Despite the extensive experience of the Radiographer, and the very low risk relating to small bowel scans and the use of Mannitol, it fell far below the HCPC Standards for the Registrant to administer Mannitol without a prescription, outside of the legal framework for the administration of that medication, so that patients could continue to be scanned.

235. The low risk of Mannitol, which was a pre-mixed single standard dose, and the 1st Registrant’s genuinely held belief that on balance it was more important for patient safety to undertake scans without delay, does not diminish the importance of ensuring medication is being administered within the correct policy and legally. The need to ensure that registered Radiographers work within their scope of practice is directly relevant to patient safety.

236. In relation to (ii), the Panel found at the facts stage that the 1st Registrant, who was the Lead MR Radiographer, allowed other colleagues for whom he had line management responsibility to administer Mannitol when it had not been prescribed by a Radiologist. The 1st Registrant was aware from the outset that Mannitol required a prescription, nevertheless he allowed others to administer Mannitol on multiple occasions to numerous patients over a long period of time. In doing so, he placed their own professional reputations as registered Radiographers at risk, as they too were administering Mannitol without a valid prescription or a PGD being in place, thus outside of the legal framework.

237. In relation to (iii), despite Colleague C raising concerns with him, the 1st Registrant failed to take any action in relation to the concerns in respect of administering Mannitol without a prescription. Whilst all the Radiographers were autonomous registered professionals, the 1st Registrant, as the Lead Radiographer, should have taken urgent action to prevent him and his colleagues from working outside of regulated practice in administration of the Mannitol. Instead of ceasing the practice and highlighting the concerns to management, the 1st Registrant told Colleague C to just carry on and give the Mannitol without prescription. At no point during the year did he raise the concerns, and the matter only came to light when he was asked for further information by the Research Lead about the Mannitol and how it was administered.

238. In reaching its decision on misconduct, the Panel took into account and relied on the range of evidence it had heard about the pressures within the MR Radiology department and the wider context at the time of the events. It was common ground among the witnesses that there was no SOP for the administration of Mannitol, and there should have been. The Hospital had a practice of patients being booked for scan appointments despite no vetting having occurred, which was not appropriate, and which created difficulties for the Radiographers on the ground carrying out the scans. The practical difficulties of this were that the Radiographers would then have to try and secure a prescription for Mannitol from a Radiologist, whilst keeping the patient waiting. It was not always easy to find a Radiologist who was willing and able to approve the prescription in a timely way, particularly at evenings and weekends. If a prescription was not obtained and the scan refused this would have meant sending fully prepared patients in need of a scan away, with a request to return at a later date.

239. The Panel also accepted the evidence of the 1st Registrant that he was not well supported by his management. It accepted that he was likely to get “push back”, if he had raised the issue. The 1st Registrant’s evidence about the push back from the higher management team is corroborated by the evidence of his colleagues. In particular Colleague F who describing the higher management culture as “horrible” and giving her a “sickening feeling”.

240. However, despite the presence of these factors, the Panel concluded that there was no justification for the breaching of multiple HCPC Standards. The factors do not excuse the conduct of the 1st Registrant, and they do not change the fundamental basis of what he did, which was to administer Mannitol without a prescription and outside his scope of practice, fail to prevent his junior colleagues from administering Mannitol without a prescription, and fail to raise concerns about the practice so as to ensure the safety of patients and colleagues.

2nd Registrant

241. The Panel concluded that the behaviours of the 2nd Registrant in relation to facts: 1, 2 and 3 do individually and collectively amount to serious professional misconduct.

242. The Panel concluded that the Registrant’s conduct and behaviour fell far below the standards expected of a registered Radiographer. The Panel determined that the Registrant’s conduct was in breach of the HCPC Standards of Conduct, Performance and Ethics, in particular standards:

Standard 3.1 – You must keep within your scope of practice by only practicing in the areas you have appropriate knowledge, skills and experience for.

Standard 3.4 – You must keep up to date with and follow the law, our guidance and other requirements relevant to your practice.

Standard 6.1 – You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues, as far as possible.

Standard 6.2 – You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

Standard 7.1 – You must report any concerns about the safety or wellbeing of service users promptly and appropriately.

Standard 7.2 – You must support and encourage others to report concerns and not prevent anyone from raising concerns.

Standard 9.1 – You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

Standard 10.1 – You must keep full, clear and accurate records for everyone you care for, treat or provide other services to.
243. Based on the findings, the Panel considered that the serious professional misconduct falls into two interlinked areas relating to one set of circumstances:

(i) Administering Mannitol to patients without a prescription from a Radiologist, which was beyond scope of practice, and which could have caused harm.

(ii) Failing to take appropriate action or raise concerns or object to, the administering Mannitol without a prescription.

244. In relation to (i), the Panel took into account its finding that the 2nd Registrant had administered Mannitol, a prescription only medication, to patients without prescription, which could have caused them harm. The Panel took into account that a PGD was not in place and therefore giving Mannitol to patients without a prescription was not a legal administration of the medication.

245. The HCPC Standards require Registered Radiographers to keep up to date with and follow the law, and other requirements relevant to their practice.

246. Whilst the evidence is that Mannitol was a low-risk drug, and did not cause harm to any patients identified in the Hospital audit, it could, as the Panel has found at facts stage, cause harm to patients. This potential harm includes diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

247. The 2nd Registrant, who at the time of the events was a Band 7, was a senior and experienced Radiographer and he administered Mannitol without a prescription over the course of a year to multiple patients. Despite his experience in carrying out small bowel scans, and the very low risk relating to the use of Mannitol, it fell far below the HCPC Standards for the Registrant to administer Mannitol without a prescription, outside of the legal framework for the administration of that medication, so that patients could continue to be scanned.

248. The low risk of Mannitol, which was a pre-mixed single standard dose, and the confusion which the 2nd Registrant describes about the administration policy, does not diminish the importance of ensuring medication is being administered within the correct policy and legally. The need to ensure that registered Radiographers work within their scope of practice is directly relevant to patient safety. It was inherent that as an autonomous registered professional, the 2nd Registrant should have been clear about the scope of his practice and not acted outside of that.

249. In relation to (ii), the Registrant acknowledged that he was aware of the need for vetting and a prescription and that on some occasions he did seek approval from a Radiologist albeit he did this orally, and not in accordance with the CRIS process. His evidence was that he was confused, but nonetheless, despite that confusion, the Panel noted that he did not question the status quo, he just continued with his actions. He was copied into the email from Colleague C so he should have been aware of the concerns which were raised in relation to the vetting. As an experienced and senior Radiographer, he had a responsibility to ensure that he took all reasonable steps to reduce the risk to service users and colleagues and to not do anything which could put the health and safety of patients at risk. He also had a duty to report any concerns and to encourage others to report concerns. The 2nd Registrant gave evidence that the 1st Registrant was approachable, however despite that, the 2nd Registrant did not take appropriate action or raise concerns and failed to do so over a prolonged period of time.

250. In reaching its decision on misconduct, the Panel took into account and relied on the range of evidence it had heard about the pressures within the MR Radiology department and the wider context at the time of the events. It was common ground among the witnesses that there was no Standard Operating Procedure for the administration of Mannitol, and there should have been. The Hospital had a practice of patients being booked for scan appointments despite no vetting having occurred, which was not appropriate, and which created difficulties for the Radiographers on the ground carrying out the clinics. The practical difficulties of this were that the Radiographers would then have to try and secure a prescription for Mannitol from a Radiologist, whilst keeping the patient waiting. It was not always easy to find a Radiologist who was willing and able to approve the prescription in a timely way, particularly at evenings and weekends. If a prescription was not obtained and the scan refused this would have meant Radiographers sending fully prepared patients in need of a scan away with a request to return at a later date.

251. However, despite the presence of these factors, the Panel concluded that there was no justification for the breaching of multiple HCPC Standards. The factors do not excuse the conduct of the 2nd Registrant, and they do not change the fundamental basis of what he did, which was to administer Mannitol without a prescription and outside his scope of practice, and fail to take action or raise concerns about the practice so as to ensure the safety of patients and his fellow colleagues.

252. The Panel concluded that individually and cumulatively the facts found proved do amount to serious professional misconduct.

Submissions and Legal Advice on impairment

253. Ms O’Connor made submissions on impairment reminding the Panel that the decision on impairment is a matter for its judgement.

254. Ms O’Connor referred to her Case Summary and the relevant case law outlined within it.

255. Ms O’Connor indicated that the HCPC makes no positive submissions that either Registrant currently poses a risk or that their ability to practise safely is compromised. However, the HCPC does positively submit that public confidence in the profession would be undermined in the absence of a finding of impairment.

256. Ms O’Connor referred the Panel to the evidence provided by each Registrant. She acknowledged that in respect of the 1st Registrant, he has reflected on the incidents in question, as well as reflecting on the introduction of better Radiology Information Systems and that all MR scan requests now need to be vetted and prescribed appropriate medicines prior to them being booked. He has stated he is no longer a manager and is able to focus on providing quality MR scanning in a safe environment. His employer’s reference talks about him regularly reviewing appointed lists in advance to ensure scans are booked correctly and with the relevant resources available.

257. In respect of the 2nd Registrant, he has also reflected on the incidents in question, has undertaken specific PGD training and an assertiveness course, was part of the team working towards QSI accreditation, and has described how his practice now is to absolutely ensure that prescriptions are issued.

258. Ms O’Connor acknowledged that both Registrants have admitted their conduct and have acknowledged that they did not act as a registered professional should have done. Ms O’Connor submitted that they have both shown understanding into how, and why, the events occurred. Ms O’Connor submitted that fortunately, there were no adverse consequences for patients, but it has been acknowledged by the Registrants that Mannitol does have side effects. She submitted that the Registrants have also acknowledged that they placed their own professional reputations at risk by acting outside their scope of practice and that, in the 1st Registrant’s case, he placed the professional reputations of those he line managed at risk by allowing them to act outside their scope of practice.

259. Ms O’Connor submitted that each Registrant has taken remedial action and there is no real risk that either Registrant would repeat the conduct found proved.

260. In relation to the public component, Ms O’Connor submitted that both Registrants had in the past acted in way to put patients at risk of harm, albeit that risk of harm was very low.

261. Ms O’Connor submitted that the Registrants had in the past brought the profession into disrepute through their conduct which resulted in multiple HCPC Standards being breached. Further, that the Registrants had in the past breached one or more of the fundamental tenets of the profession. She submitted that registered professionals must ensure they are following relevant guidance, policy and the law and they must also ensure that they raise any concerns about practice. Ms O’Connor submitted that need to work within scope of practice is directly relevant to patient safety and it is a fundamental tenet of the profession that Radiographers do not do anything that could undermine patient safety.

262. Ms O’Connor submitted that taking these factors into consideration, along with the length of time over which the conduct occurred and the seniority and experience of both Radiographers, that public confidence in the profession and the regulatory process would be undermined if there were to be no finding of impairment.

263. Mr Higgs concurred with the submissions of Ms O’Connor in relation to the personal component of impairment relating to the 1st Registrant. He asked the Panel to make no finding of impairment on the personal grounds.

264. In relation to the public interest element of impairment, Mr Higgs submitted that no finding of impairment was required. Mr Higgs submitted that the public would take into account that these events happened five years ago and that the passage of time had enabled the 1st Registrant to develop and evidence his remorse. He submitted that the public would also take into account that Mannitol has very low risk with similar side effects to Moviprep which was given under a PGD, and that patients would have been impacted negatively if they had been turned away from their pre-booked scans.

265. Mr Higgs submitted that the public would take into account the difficult working environment as set out by the Panel in its misconduct finding.

266. Mr Higgs submitted that the public would acknowledge that what had happened was wrong, but they would also understand why it happened, the lessons that have been learnt, and the steps that had since been taken to rectify the wrongs, taking into account that no patient harm occurred and nor was it likely to have. Mr Higgs submitted that the public would think that in difficult circumstances the 1st Registrant made the wrong decision in his quest to give optimum treatment to his patients. Therefore, the public interest element has been met by a finding of impairment which is sufficient to send a signal of the pitfalls which registrants face when they breach the HCPC Standards.

267. Mr Higgs submitted that the public has more to fear from losing the 1st Registrant from registered practice than it does in allowing him to continue to practise.

268. Mr Pembridge referred the 2nd Registrant’s qualifications and experience working for a variety of employers.

269. Mr Pembridge reminded the Panel if its findings that there had been a number of contributing factors that led to the events such as a lack of SOP, inconsistency of vetting and the impact that delaying a scan could have for patients.

270. Mr Pembridge drew the Panel’s attention to the expert witness evidence, submitting that Mr Brandt did not believe the actions were deemed to have fallen far below the standards expected of a registrant nor were the acts viewed as deplorable.

271. Mr Pembridge submitted that the HCPC did not deem the Allegation so serious, that they believed if the Registrant was allowed to practice without restriction for the past 4 years that public safety would be put at risk, or there would be a risk to the public interest or confidence in the profession.

272. Mr Pembridge referred to the 2nd Registrants good character, both prior to and since, these events. He reminded the Panel that the 2nd Registrant had not faced any disciplinary action from the Hospital.

273. Mr Pembridge drew the Panel’s attention to the considerable amount of reflection and courses completed by the 2nd Registrant and included in his evidence bundle. Mr Pembridge also referred to the positive character testimonial proved by the Clinical Lead/ Owner and Director of RMS, who has known and worked with the 2nd Registrant both before and after these events.

274. Mr Pembridge submitted that the evidence provided demonstrates how sorry the 2nd Registrant is, and how he has reflected upon and learnt from his actions that led to this case.

275. The Panel heard and accepted the advice of the Legal Assessor in relation to impairment. The Legal Assessor reminded the Panel to take into account that it should have regard to both the personal and public components and keep in mind the wider public interest. The Panel referred the Panel to the HCPTS Practice Note ‘Fitness to Practise Impairment’ dated November 2023. The Panel was referred to the cases of, CHRE v (1) NMC & (2) Grant [2011] EWHC 927 (Admin), Cohen v GMC [2008] EWHC 581 [Admin], Cheatle v GMC (2009) EWHC 645 (Admin), Bolton v Law Society 1993, and PSA v HCPC + Doree [2017] EWCA Civ 319.

Decision on Impairment:

1st Registrant

276. The Panel considered the 1st Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective. In relation to the personal component, in accordance with the Practice Note, the Panel had regard to whether the conduct in this case is easily remediable, whether it has been remedied and whether it was highly unlikely to be repeated.

277. The Panel considered the extent to which the misconduct in this case can be and has been remediated by the 1st Registrant and whether it is likely to be repeated.

278. The Panel concluded that the misconduct in the circumstances of this case is remediable. It considered that in order to remediate the 1st Registrant would need to show fully developed insight, an acceptance that what he did fell far below professional Standards, show an understanding of how and why it occurred, and its consequences for those affected. It considered it would need to see evidence to demonstrate that the 1st Registrant has taken action to address his misconduct in a manner which remedies any past harm and avoids any future repetition.

279. The Panel placed weight on the written evidence and written reflection provided by the 1st Registrant in advance, and his oral evidence, which was tested by cross examination in the hearing. The Panel accepted that he has developed full insight and recognised the gravity of his actions. The Panel considered that his insight started with his acceptance of wrongdoing when challenged by the Hospital in November 2019. Subsequent to that he has fully engaged with the HCPC, he has not sought to apportion blame to others and has accepted full responsibility for the failings. He offered apologies to all of those who his conduct had impacted, showing remorse for his actions. Further, he made admissions to al the factual particulars at the outset of this hearing.

280. The Panel found that the 1st Registrant had been able to articulate an understanding of how and why the misconduct occurred, candidly saying it was a result of his “foolish” actions and allowing himself to fall into a heuristic trap. The Panel considered that he had been genuinely trying to do his best for the patients in the context of a difficult working environment. The Panel was satisfied that the 1st Registrant now recognised that however difficult the situation with senior management was, he should have escalated his concerns and stopped the administration of Mannitol without a prescription until those concerns were resolved.

281. The Panel found that in the significant period of time that has passed since the events (almost 5 years), the 1st Registrant has been able to reflect on the consequences of his actions. He recognises that his actions not only impacted on the patients but also his colleagues and the wider public.

282. In relation to actions taken by the 1st Registrant to demonstrate remediation, the Panel took into account that he had stepped down from a managerial role to focus on providing quality MR scanning in a safe environment. It noted that he is using his experience to guide other staff members to minimise risk to others. The Panel took into account the testimonial provided by the Lead Radiographer at the 1st Registrant’s current employment. In summary this states, ‘It is a pleasure to work with [the 1st Registrant], it is reassuring to know that his experience and knowledge will ensure that scans are performed to the highest quality even in the most challenging circumstances. He is organised, methodical and regularly reviews appointed lists in advance to ensure scans are booked correctly and with the relevant resources available so patients do not have wasted journeys or a poor experience… [the 1st Registrant] would be an asset to any MR department and should be commended on his commitment and years of service to the NHS.’

283. The Panel placed weight on the fact that the 1st Registrant has had a long career as a registered Radiographer and has not been subject to any fitness to practise concerns before or since. He has continued to work as a registered Radiographer since 2019 to present and no further concerns have been raised about his willingness or capacity to observe his professional duties and abide by the HCPC Standards.

284. Based on all the information before it, the Panel concluded that the 1st Registrant’s actions taken in relation to the facts found, was behaviour that would not be repeated. The Panel concluded that the 1st Registrant has fully developed insight and has fully remediated, and that in all the circumstances the risk of repetition is very low. Therefore, the Panel did not find personal impairment.

285. The Panel next considered whether a finding of current impairment was necessary in the public interest. The Panel was mindful that the public interest encompassed not only public protection but also the declaring and upholding of proper standards of behaviour as well as the maintenance of public confidence in the profession. It took into account the guidance in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) at paragraph 74:- ‘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 made in the particular circumstances.’

286. The Panel had regard to the factors identified by Dame Janet Smith in her 5th Shipman Report and cited in CHRE v (1) NMC and (2) Grant. The Panel considered whether:

a) The Registrant has in the past and/or is liable in the future to place service users at unwarranted risk of harm.

b) The Registrant has in the past brought and/or is liable in the future to bring the profession into disrepute.

c) The Registrant has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

287. In relation to a), the Panel determined that the 1st Registrant had placed service users at unwarranted risk of harm. Whilst the evidence is that Mannitol is a very low-risk medicine, and did not cause harm to any patients identified in the Hospital audit, it could, as the Panel has found at facts stage, cause harm to patients. This potential harm includes diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

288. In relation to b), that is the question of whether the 1st Registrant has in the past brought the profession into disrepute, the Panel determined he had. A significant aspect of public interest is upholding proper standards of conduct and behaviour so as not to bring the profession into disrepute. The role of the Standards is to set out in general terms how Registrants are expected to behave and outline what the public should expect from their health and care professional. In breaching nine of the HCPC Standards of conduct, performance and ethics, the 1st Registrant has brought the profession into disrepute.

289. The Panel then considered c), being whether the 1st Registrant had breached fundamental tenets of the profession. The Panel noted that the 1st Registrant had administered Mannitol outside of the legal framework to multiple patients, for approximately one year, and allowed his junior colleagues to do the same, and then failed to take action when concerns were raised to him. The Panel took into account that it is essential to the effective delivery of an Imaging service that the public can trust Radiographers to act not only within their scope of practice but also within the legal and regulatory guidance of their role which is fundamentally in place to ensure patient safety.

290. Whilst the 1st Registrant’s conduct did not cause any harm to service users, nor is he likely to present a future risk to service users, he did engage in a course of misconduct which spanned twelve months and impacted not only on patients but also his junior colleagues. Whilst the Panel did not find any deliberate or malicious intent, nonetheless, the 1st Registrant knew that Mannitol should not be administered without a prescription and yet he continued to administer it, and allowed his colleagues to do so, and he did not raise concerns despite his more junior colleague flagging those concerns to him as Lead MR Radiographer.

291. The Panel considered that the conduct described above demonstrated a breach of the fundamental tenets of the profession. The public rely on registered professionals to work within the legal framework and guidance relevant to their practice. Further, the public expect Radiographers to work within their scope of practice, and to raise any concerns which could impact the safe delivery of the service, as failure to do so can directly impact on patient safety.

292. The Panel considered that members of the public, even if they knew that the 1st Registrant has remained in competent and positive practice, would be concerned if the Regulator were not to mark the seriousness of the 1st Registrant’s misconduct with a finding of current impairment on public interest grounds. Given the seniority and experience of the 1st Registrant, and the passage of time over which the conduct occurred, the Panel considered that not to make a finding of current impairment of fitness to practise in relation to the misconduct would seriously undermine public trust and confidence in the profession and would fail to uphold and declare proper standards.

293. The Panel therefore decided on the public interest element of impairment that the 1st Registrant’s fitness to practise is currently impaired.

2nd Registrant

294. The Panel considered the 2nd Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective. In relation to the personal component, in accordance with the Practice Note, the Panel had regard to whether the conduct in this case is easily remediable, whether it has been remedied and whether it was highly unlikely to be repeated.

295. The Panel considered the extent to which the misconduct in this case can be and has been remediated by the 2nd Registrant and whether it is likely to be repeated.

296. The Panel concluded that the misconduct in the circumstances of this case is remediable. It considered that in order to remediate the 2nd Registrant would need to show fully developed insight, an acceptance that what he did fell far below professional Standards, show an understanding of how and why it occurred, and its consequences for those affected. It considered it would need to see evidence to demonstrate that the 2nd Registrant has taken action to address his misconduct in a manner which remedies any past harm and avoids any future repetition.

297. The Panel placed weight on the written evidence and written reflection provided by the 2nd Registrant in advance, and his oral evidence, which was tested by cross examination in the hearing. The Panel accepted that he has developed insight and recognised the gravity of his actions. The Panel considered that his insight started with the learning review process which had been conducted by the Hospital in 2021. The Panel noted that whilst initially the 2nd Registrant’s reflections were considered to be “quite brief”, he had evidenced further insight to the Hospital by completing reflective pieces on his understanding and application of the HCPC Standards and undertaking various training. Subsequent to that he has fully engaged with the HCPC, he has not sought to apportion blame to others and has accepted full responsibility for the failings. He has shown remorse for his actions. Further, he admitted the factual particulars at the outset of this hearing.

298. The Panel found that the 2nd Registrant had been able to articulate an understanding of how and why the misconduct occurred, admitting that he had not fully understood some of the processes such as PGD’s at the time. The Panel considered that he had been genuinely trying to do his best for the patients in the context of a difficult working environment. The Panel was satisfied that the 2nd Registrant now recognised that even if his manager, and other colleagues, were not taking steps to escalate concerns and stop the administration of Mannitol without a prescription, as an autonomous registered professional, he should have raised concerns of his own accord.

299. The Panel found that in the significant period of time that has passed since the events (almost 5 years), the 2nd Registrant has been able to reflect on the consequences of his actions. He recognises that his actions not only impacted on the patients but also his colleagues and the wider public.

300. In relation to actions taken by the 2nd Registrant to demonstrate remediation, the Panel took into account that since the events took place, he has completed a considerable amount of reflection and attended several courses. These courses include Medicine Administration course HSG (2024), which was self-funded; Assertiveness course (2022), which was self-funded and a PGD training Standalone unit (2021) as part of the Trust training. The Panel accepted that these courses had enhanced the 2nd Registrant’s knowledge and understanding.

301. The Panel took into account the testimonial provided by the Clinical Lead at RMS for whom the 2nd Registrant undertakes Radiographer work. In summary this states, ‘I have always found [the 2nd Registrant] a ‘down to earth’ conscientious person who always puts the patients and fellow colleagues first. He is very well liked by his work colleagues and I have found his standard of work and conduct exemplary.’

302. The Panel placed weight on the fact that the 2nd Registrant’s Radiography career has spanned over twenty years and prior to these events he had performed MR small bowel studies for ten years without criticism or restriction. The Panel placed weight on that fact that the 2nd Registrant has not been subject to any fitness to practise concerns before or since these events. He has continued to work as a registered Radiographer since 2019 to present and no further concerns have been raised about his willingness or capacity to observe his professional duties and abide by the HCPC Standards.

303. Based on all the information before it, the Panel concluded that the 2nd Registrant’s actions taken in relation to the facts found, was behaviour that would not be repeated. The Panel concluded that the 2nd Registrant has fully developed insight and has fully remediated, and that in all the circumstances the risk of repetition is very low. Therefore, the Panel did not find personal impairment.

304. The Panel next considered whether a finding of current impairment was necessary in the public interest. The Panel was mindful that the public interest encompassed not only public protection but also the declaring and upholding of proper standards of behaviour as well as the maintenance of public confidence in the profession. It took into account the guidance in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) at paragraph 74:- ‘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 made in the particular circumstances.’

305. In deciding current impairment, the Panel had regard to the factors identified by Dame Janet Smith in her 5th Shipman Report and cited in CHRE v (1) NMC and (2) Grant. The Panel considered whether:

a) The Registrant has in the past and/or is liable in the future to place service users at unwarranted risk of harm.

b) The Registrant has in the past brought and/or is liable in the future to bring the profession into disrepute.

c) The Registrant has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession.

306. In relation to a), the Panel determined that the 2nd Registrant had placed service users at unwarranted risk of harm. Whilst the evidence is that Mannitol is a very low-risk medicine, and did not cause harm to any patients identified in the Hospital audit, it could, as the Panel has found at facts stage, cause harm to patients. This potential harm includes diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

307. In relation to b), and the question of whether the 2nd Registrant has in the past brought the profession into disrepute, the Panel determined he had. A significant aspect of public interest is upholding proper standards of conduct and behaviour so as not to bring the profession into disrepute. The role of the Standards is to set out in general terms how Registrants are expected to behave and outline what the public should expect from their health and care professional. In breaching eight of the HCPC Standards of conduct, performance and ethics, the 2nd Registrant has brought the profession into disrepute.

308. The Panel then considered c), being whether the 2nd Registrant had breached fundamental tenets of the profession. The Panel noted that the Registrant was administering Mannitol outside of the legal framework to patients, for approximately one year, and allowing this status quo to continue without taking appropriate action to raise concerns or object to the administering of Mannitol. The Panel took into account that it is essential to the effective delivery of an Imaging service that the public can trust Radiographers to act not only within their scope of practice but also within the legal and regulatory guidance of their role which is fundamentally in place to ensure patient safety.

309. Whilst the 2nd Registrant’s conduct did not cause any harm to service users, nor is he likely to present a future risk to service users, he was a senior and experienced Radiographer who engaged in a course of misconduct which spanned twelve months and impacted on multiple patients. Whilst the Panel did not find any deliberate or malicious intent, nonetheless, the 2nd Registrant should not have administered Mannitol without a prescription and he should have raised concerns about the situation he found himself in, whereby he was acting outside his scope of practice.

310. The Panel considered that the conduct described above demonstrated a breach of the fundamental tenets of the profession. The public rely on registered professionals to work within the legal framework and guidance relevant to their practice. Further, the public expect Radiographers to work within their scope of practice, and to raise any concerns which could impact on the safe delivery of the service, as failure to do so can directly impact on patient safety.

311. The Panel considered that members of the public, even if they knew the difficult working environment at the time and that the 2nd Registrant has remained in competent and positive practice, would be concerned if the Regulator were not to mark the seriousness of the 2nd Registrant’s misconduct with a finding of current impairment on public interest grounds. Given that the 2nd Registrant was a Band 7 senior and experienced Radiographer, and given the long duration of time over which the conduct occurred, with the potential to impact on patients, the Panel considered that not to make a finding of current impairment of fitness to practise in relation to the misconduct would seriously undermine public trust and confidence in the profession and would fail to uphold and declare proper standards.

312. The Panel therefore decided on the public interest element of impairment that the 2nd Registrant’s fitness to practise is currently impaired.

Submissions and Legal Advice on Sanction:

313. Ms O’Connor drew the Panel’s attention to the HCPC Sanctions Policy (March 2019) and informed it that all sanctions are available.

314. Ms O’Connor stated that the HCPC are neutral in respect of sanction.

315. Ms O’Connor submitted that the primary function of any sanction is to protect the public. The considerations in this regard include:

• Any risks the registrant might pose to those who use or need their services.
• The deterrent effect on other registrants.
• Public confidence in the profession concerned.
• Public confidence in the regulatory process

316. Ms O’Connor reminded the Panel that as it had not found personal impairment for either Registrant, a sanction is not required to protect service users from risk.

317. Ms O’Connor submitted that the Panel might consider the following factors as mitigating features:

• Both Registrants have fully developed insight, have shown remorse and have fully remediated.

• Both Registrants have no previous findings made against them prior to these events.

• Both Registrants were working in a difficult working environment at the Hospital, as set out by the Panel in its findings on misconduct.

318. Ms O’Connor submitted that the Panel might consider the following factors as aggravating features:

• The Registrants placed service users at risk of harm, albeit that Mannitol has a very low risk, and no actual harm was caused to patients.

• The misconduct took place over a prolonged period.

319. Ms O’Connor drew the Panel’s attention to paragraphs 59 and 60 of the Sanctions Policy which identifies serious cases, specifically a ‘failure to raise concerns.’ Ms O’Connor submitted that the Panel may consider that the Registrants had repeatedly failed to raise concerns, given that the conduct took place over a prolonged period.

320. Mr Higgs submitted that the Panel should have regard to paragraph 11 of the Sanctions Policy and reminded it that sanctions are not intended to punish registrants. Mr Higgs drew the Panel’s attention to paragraph 21, reminding the Panel to take only the minimum action necessary to ensure the public is protected.

321. Mr Higgs reminded the Panel of its earlier decision at the impairment stage that it considered that the 1st Registrant had been genuinely trying to do his best for the patients in the context of a difficult working environment. He submitted that the Panel should bear this in mind when considering the wider public interest.

322. Mr Higgs submitted that the Panel should look at the lower end of sanctions including considering the option of ‘no further action’, given the unusual nature of this case. Mr Higgs submitted that the public interest should take into account that the public would be aware that this was a registrant who was genuinely trying to do his best for patients.

323. Mr Pembridge submitted that the witnesses from the Hospital had found the 2nd Registrant to be honest and open and committed to his role.

324. Mr Pembridge reminded the Panel of the 2nd Registrant’s demonstration of insight, remorse and remediation.

325. Mr Pembridge drew the Panel’s attention to the character reference from the 2nd Registrant’s current employer, which states that there are no practice issues present.

326. Mr Pembridge submitted that the 2nd Registrant wants to be able to continue in Radiography practice.

327. The Panel heard and accepted the advice of the Legal Assessor, who referred it to the HCPC Sanctions Policy, which states that any sanction must be proportionate, is not intended to be punitive and should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public, to protect the reputation of the profession, maintain confidence in the regulatory system, and declare and uphold proper professional standards.

328. The Legal Assessor reminded the Panel that its primary function at this stage is to protect the public, while deciding what, if any, sanction is proportionate, taking into account the wider public interest and the interests of the Registrant.

329. In respect of the Panel’s findings of breach of Standard 7, the Legal Assessor drew the Panel’s attention to paragraphs 59 and 60 of the Sanctions Policy.

Decision on Sanction:

1st Registrant

330. The Panel applied the principle of proportionality by weighing the 1st Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity. The Panel considered the mitigating and aggravating factors in determining what sanction, if any, to impose.

331. The Panel identified the following mitigating factors:

• The 1st Registrant has developed full insight, has reflected at length over the last five years, and he has demonstrated remediation and remorse. He accepted full responsibility at the outset of the Hospital investigation and admitted the factual particulars at the outset of the hearing.

• There have been no previous regulatory matters raised against the 1st Registrant during his long career as a Radiographer, during which he has worked in various roles and in pressured environments. No further concerns have been raised since the concerns in 2019, during which time the 1st Registrant has remained in unrestricted practice. In accordance with the witness evidence and the character references, the misconduct found against the 1st Registrant appears to be a departure from his usual standard of professional behaviour.

• The 1st Registrant was working in a difficult working environment at the Hospital and was trying to do his best for the patients concerned.
332. The Panel identified the following aggravating factors:

• The 1st Registrant had placed service users at unwarranted risk of harm. Whilst Mannitol is a very low-risk medicine, and no actual harm was caused to the Hospital patients, there was the potential to cause harm to patients, which included diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

• The misconduct took place over a twelve-month period and involved multiple patients.

• The 1st Registrant was a senior and experienced Radiographer and the MRI Lead, and he failed to raise concerns about the issues with the administration of Mannitol.

333. In considering the mitigating and aggravating factors, the Panel had regard to the need to assess the seriousness of the issues raised by the case. The Panel had regard to paragraph 59 of the Sanctions Policy. It took into account that it had found, at misconduct stage, that the 1st Registrant had breached the following HCPC Standards which was in breach of his obligation to report concerns about safety:

• Standard 7.1 – You must report any concerns about the safety or wellbeing of service users promptly and appropriately.

• Standard 7.2 – You must support and encourage others to report concerns and not prevent anyone from raising concerns

• Standard 7.6 – You must acknowledge and act on concerns raised to you, investigating, escalating or dealing with those concerns where it is appropriate for you to do so.

334. The Panel considered that whilst the 1st Registrant’s failure to raise concerns did not result in any harm to patients, it did place them at unwarranted risk of harm. The Panel considered that the failure to raise concerns was not malicious or deliberately done with the intention to conceal, finding that the 1st Registrant was genuinely trying to do his best for the patients in the context of a difficult working environment. However, the Panel concluded that the failure to raise concerns was an aggravating feature of the case. The failure to raise concerns spanned a prolonged period of twelve months and persisted despite Colleague C directly raising her concerns with the 1st Registrant. The failure to raise concerns not only impacted on patients, but also impacted directly on the 1st Registrant’s more junior colleagues as he was allowing them to continue to work outside their scopes of practice. The 1st Registrant should have taken urgent action to prevent him and his colleagues from working outside of regulated practice in administering the Mannitol.

335. The Panel started by considering the least restrictive sanction first, working upwards only where necessary. It noted that the final sanction should be a proportionate approach and will therefore be the minimum action required to protect the public’s trust and confidence in the profession and the regulatory process.

336. Due to the serious nature of the misconduct in this case, which includes a failure to raise concerns, the Panel considered that taking no further action would not be appropriate in this case.

337. The Panel next considered whether a caution order would be appropriate. The Panel considered its earlier decision on misconduct and impairment. It noted that it had found the 1st Registrant to have shown full insight and that he had undertaken appropriate remediation, such that it was satisfied that there was no risk of repetition.

338. However, the Panel considered that a caution order would not be in accordance with the HCPC Sanctions Policy which states: ‘A caution order is likely to be an appropriate sanction for cases in which: the issue is isolated, limited, or relatively minor in nature.’

339. The Panel concluded that the misconduct was not isolated or relatively minor in nature. The misconduct was not isolated as it related to numerous patients, occurred over a prolonged period, and included a failure to ensure that several junior colleagues were acting within their scope of practice during that period. The misconduct was not minor in nature as it involved the senior and experienced 1st Registrant administering Mannitol (a prescription only medicine), outside of the legal framework, despite knowing this was wrong and allowing more junior colleagues to do the same, despite concerns being raised with him.

340. In the circumstances the Panel considered that the 1st Registrant’s misconduct was too serious for a caution.

341. The Panel next considered whether to impose a Conditions of Practice Order. The HCPC Sanctions Policy states: ‘Conditions are also less likely to be appropriate in more serious cases, for example those involving failure to raise concerns.’ The HCPC Sanctions Policy also states that: ‘There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases [failure to raise concerns]. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated’.

342. As set out at paragraph 340 above, the Panel was not satisfied that the 1st Registrant’s conduct was minor. Whilst the Panel had found no risk of repetition of the misconduct in future, the nature of the misconduct was such that the Panel did not consider that a Conditions of Practice order would meet the public interest elements of the overarching objective. Registration with the HCPC is an assurance to the public not only that they will be protected but also that the HCPC Standards will be upheld, and that confidence can be maintained in the HCPC as the regulator. The Panel considered that conditions of practice could not be formulated in this instance to meet these public interest objectives.

343. The Panel next considered a Suspension Order. The HCPC Sanctions Policy states: ‘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.’

344. The Panel’s findings of misconduct and impairment recognise that Radiographers hold privileged positions of trust. The Panel took into account that it is essential to the effective delivery of an Imaging service that the public can trust Radiographers to act not only within their scope of practice but also within the legal and regulatory guidance of their role which is fundamentally in place to ensure patient safety. Whilst the 1st Registrant’s conduct did not cause harm to the patients, nor is he likely to present a future risk to patients, he did engage in a course of misconduct relating to numerous patients across a twelve-month period, which impacted his more junior colleagues, and which represented a breach of nine of the HCPC Standards of conduct, performance and ethics.

345. Having considered that the circumstances of this case do raise serious concerns that cannot be reasonably addressed by a Conditions of Practice Order, the Panel concluded that a Suspension Order would be necessary to meet its objectives. It considered that this would also be a proportionate order recognising the personal and professional interests of the 1st Registrant.

346. The Panel concluded that a Suspension Order would be appropriate as the 1st Registrant has developed full insight into his misconduct, has demonstrated significant remediation and the issues are unlikely to be repeated. The Panel noted paragraph 124 of the HCPC Sanctions Policy that states: “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”. It therefore considered that a short-term suspension would be appropriate in order to maintain public confidence in the profession and uphold standards.

347. The Panel decided that a six-month Suspension Order should be imposed. The Panel decided this would be the appropriate length taking into account the level of insight and remorse shown, whilst balanced against the need to maintain public confidence and send a clear message that misconduct of this nature is not acceptable behaviour. The Panel considered that a six-month suspension would also take into account and balance the public interest in allowing a competent and experienced Radiographer to be allowed to practise.

348. The Panel decided that any duration longer than six months would be punitive and would not be proportionate taking into account all it had read and heard about the 1st Registrant’s professional interests. The Panel considered that a period of six months suspension would not de-skill the 1st Registrant from his evident proficiency as a Radiographer.

349. The Panel did move on to consider whether this was a case that would more properly merit a striking-off order. The Sanctions Policy states: ‘A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.’

350. The Panel considered a Striking-Off Order would be unduly punitive in this case. The Panel considered that the misconduct in this case was such that the requirements of the wider public interest would be adequately served by imposing a six-month Suspension Order. The Panel had regard to proportionality and balanced the public interest against the 1st Registrant’s interests. The Panel took into account the consequential personal, financial and professional impact a Suspension Order may have upon the 1st Registrant but concluded that these considerations are outweighed by the Panel’s duty to give priority to the public interest.

2nd Registrant

351. The Panel applied the principle of proportionality by weighing the 2nd Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity. The Panel considered the mitigating and aggravating factors in determining what sanction, if any, to impose.

352. The Panel identified the following mitigating factors:

• The 2nd Registrant has developed full insight, has reflected at length over the last five years, and he has demonstrated remediation and remorse. He admitted the factual particulars at the outset of the hearing.

• There have been no previous regulatory matters raised against the 2nd Registrant during his twenty (plus) year career as a Radiographer, during which he has worked in various roles and in pressured environments. No further concerns have been raised since the concerns in 2019, during which time the 2nd Registrant has remained in unrestricted practice. In accordance with the witness evidence and the character reference, the misconduct found against the 2nd Registrant appears to be a departure from his usual standard of professional behaviour.

• The 2nd Registrant was working in a difficult working environment at the Hospital and was trying to do his best for the patients concerned.

353. The Panel identified the following aggravating factors:

• The 2nd Registrant had placed service users at unwarranted risk of harm. Whilst Mannitol is a very low-risk medicine, and no actual harm was caused to the Hospital patients, there was the potential to cause harm to patients, which included diarrhoea, abdominal pain, and nausea, which may lead to dehydration.

• The misconduct took place over a twelve-month period and involved numerous patients.

• The 2nd Registrant was a Band 7 senior and experienced Radiographer, and he failed to raise concerns about the issues with the administration of Mannitol instead just accepting the status quo without question.

354. In considering the mitigating and aggravating factors, the Panel had regard to the need to assess the seriousness of the issues raised by the case. The Panel had regard to paragraph 59 of the Sanctions Policy. It took into account that it had found, at misconduct stage, that the 2nd Registrant had breached the following HCPC Standards which was in breach of his obligation to report concerns about safety:

• Standard 7.1 – You must report any concerns about the safety or wellbeing of service users promptly and appropriately.

• Standard 7.2 – You must support and encourage others to report concerns and not prevent anyone from raising concerns.

355. The Panel considered that whilst the 2nd Registrant’s failure to raise concerns did not result in any harm to patients, it did place them at unwarranted risk of harm. The Panel considered that the failure to raise concerns, may have arisen as a result of the 2nd Registrant’s confusion, but nonetheless he should have questioned the status quo, rather than just continue with his actions. He was copied into the email from Colleague C so he should have been aware of the concerns which were raised in relation to the vetting. As an experienced and senior Radiographer, he had a responsibility to ensure that he took all reasonable steps to reduce the risk to service users and colleagues and to not do anything which could put the health and safety of patients at risk. The 2nd Registrant gave evidence that the 1st Registrant was approachable, however despite that, the 2nd Registrant did not take appropriate action or raise concerns and failed to do so over a prolonged period of time. The Panel therefore concluded that the failure to raise concerns was an aggravating feature of the case given the persistent nature of it over the twelve-month period.

356. The Panel started by considering the least restrictive sanction first, working upwards only where necessary. It noted that the final sanction should be a proportionate approach and will therefore be the minimum action required to protect the public.

357. Due to the serious nature of the misconduct in this case, which includes a failure to raise concerns, the Panel considered that taking no further action would not be appropriate in this case.

358. The Panel next considered whether a caution order would be appropriate. The Panel considered its earlier decision on misconduct and impairment. It noted that it had found the 2nd Registrant to have shown full insight and that he had undertaken appropriate remediation, such that it was satisfied that there was no risk of repetition.

359. However, the Panel considered that a caution order would not be in accordance with the HCPC Sanctions Policy which states: ‘A caution order is likely to be an appropriate sanction for cases in which: the issue is isolated, limited, or relatively minor in nature.’

360. The Panel concluded that the misconduct was not isolated or relatively minor in nature. The misconduct was not isolated as it related to numerous patients, occurred over a prolonged period, and included a failure to raise concerns or take appropriate action during that period. The misconduct was not minor in nature as it involved the 2nd Registrant, who was a senior and experienced Radiographer, administering Mannitol (a prescription only medicine), outside of the legal framework, for a twelve-month period.

361. In the circumstances the Panel considered that the 2nd Registrant’s misconduct was too serious for a caution.

362. The Panel next considered whether to impose a Conditions of Practice Order. The HCPC Sanctions Policy states: ‘Conditions are also less likely to be appropriate in more serious cases, for example those involving failure to raise concerns.’ The HCPC Sanctions Policy also states that: ‘There may be circumstances in which a panel considers it appropriate to impose a conditions of practice order in the above cases [failure to raise concerns]. However, it should only do so when it is satisfied that the registrant’s conduct was minor, out of character, capable of remediation and unlikely to be repeated’.

363. As set out at paragraph 361 above, the Panel was not satisfied that the 2nd Registrant’s conduct was minor. Whilst the Panel had found no risk of repetition of the misconduct in future, the nature of the misconduct was such that the Panel did not consider that a Conditions of Practice order would meet the public interest elements of the overarching objective. Registration with the HCPC is an assurance to the public not only that they will be protected but also that the HCPC Standards will be upheld, and that confidence can be maintained in the HCPC as the regulator. The Panel considered that conditions of practice could not be formulated in this instance to meet these public interest objectives.

364. The Panel next considered a Suspension Order. The HCPC Sanctions Policy states: ‘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.’

365. The Panel’s findings of misconduct and impairment recognise that Radiographers hold privileged positions of trust. The Panel took into account that it is essential to the effective delivery of an Imaging service that the public can trust Radiographers to act not only within their scope of practice but also within the legal and regulatory guidance of their role which is fundamentally in place to ensure patient safety. Whilst the 2nd Registrant’s conduct did not cause harm to the patients, nor is he likely to present a future risk to patients, he did engage in a course of misconduct relating to numerous patients across a twelve-month period, which represented a breach of eight of the HCPC Standards of conduct, performance and ethics.

366. Having considered that the circumstances of this case do raise serious concerns that cannot be reasonably addressed by a Conditions of Practice Order, the Panel concluded that a Suspension Order would be necessary to meet its objectives. It considered that this would also be a proportionate order recognising the personal and professional interests of the 2nd Registrant.

367. The Panel concluded that a Suspension Order would be appropriate as the 2nd Registrant has developed full insight into his misconduct, has demonstrated significant remediation and the issues are unlikely to be repeated. The Panel noted paragraph 124 of the HCPC Sanctions Policy that states: “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”. It therefore considered that a short-term suspension would be appropriate in order to maintain public confidence in the profession and uphold standards.

368. The Panel decided that a two-month Suspension Order should be imposed. The Panel decided this would be the appropriate length taking into account the level of insight and remorse shown, whilst balanced against the need to maintain public confidence and send a clear message that misconduct of this nature is not acceptable behaviour. The Panel considered that a two-month suspension would also take into account and balance the public interest in allowing a competent and experienced Radiographer to be allowed to practise.

369. The Panel decided that any duration longer than two months would be punitive and would not be proportionate taking into account all it had read and heard about the 2nd Registrant’s professional interests. The Panel considered that a period of two months suspension would not de-skill the 2nd Registrant from his evident proficiency as a Radiographer.

370. The Panel did move on to consider whether this was a case that would more properly merit a striking-off order. The Sanctions Policy states: ‘A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.’

371. The Panel considered a Striking-Off Order would be unduly punitive in this case. The Panel considered that the misconduct in this case was such that the requirements of public protection and the wider public interest would be adequately served by imposing a two-month Suspension Order. The Panel had regard to proportionality and balanced the public interest against the 2nd Registrant’s interests. The Panel took into account the consequential personal, financial and professional impact a Suspension Order may have upon the 2nd Registrant but concluded that these considerations are outweighed by the Panel’s duty to give priority to the public interest.

The first Registrant: The Registrar is directed to suspend the registration of Mr Richard A Lund for a period of six months from the date this Order comes into effect.

Right of Appeal:

1st and 2nd Registrants:

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 Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

 

Interim Order:

Application for an Interim Order:

1. Ms O’Connor submitted that an Interim Suspension Order is necessary in line with the findings of the Panel in relation to the Allegation. Ms O’Connor submitted that an Interim Order would safeguard the public confidence in the profession which would be seriously harmed if either Registrant was allowed to remain in unrestricted practice, until such time as the substantive order comes into force.

2. Ms O’Connor submitted that the Interim Suspension Order should be made for 18 months to cover the appeal period.

3. Ms O’Connor drew the Panel’s attention to the HCPC Sanctions Policy which has a section on Interim Orders imposed at a Substantive Hearing. Ms O’Connor also drew the Panel’s attention to the HCPTS Practice Note on Interim Orders, including paragraph 16 which states: ‘Interim orders solely on the ground that an order is otherwise in the public interest are relatively rare. The threshold for the imposition of an order solely on this ground is high. In R (Shiekh) v General Dental Council, the court said: “It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest.”’

4. Mr Higgs submitted that an Interim Order is not necessary. He submitted that the 1st Registrant has practised for five years since these events with no concerns arising. He reminded the Panel of its finding that the 1st Registrant had been genuinely trying to do his best for patients.

5. Mr Higgs submitted that there was no harm caused to patients and that imposing an Interim Order was not required either to protect the public or the public interest.

6. Mr Pembridge submitted that an Interim Order is not required as there is no ongoing risk, and the 2nd Registrant has remined in practise with no concerns raised since the events took place five years ago.

7. Mr Pembridge submitted that an Interim Order would not be proportionate and would have financial implications on the 2nd Registrant.

Decision:

8. The Panel heard and accepted the advice of the Legal Assessor to consider whether an Interim Order is necessary under Article 31, to protect the public or in the public interest or the Registrant’s own interest, because of the nature of the findings made in this case. The Legal Assessor drew the Panel’s attention to the HCPC Sanctions Policy, which states: ‘An interim order is likely to be required in cases where: … the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.’ The Legal Assessor also advised the Panel to take into account the HCPTS guidance note entitled ‘Interim orders’ dated September 2024.

1st Registrant:

9. The Panel was not satisfied that it is appropriate to direct that the Registrant’s registration should be subject to an Interim Order.
10. The Panel took into account the wording at paragraph 135 of the HCPC Sanctions Policy. It considered its findings at the earlier stages and noted that it had found no risk of repetition, and thus it considered that an Interim Order is not required for the protection of the public.

11. It next considered whether an Interim Order is otherwise in the public interest. The Panel took into account that the misconduct found was not minor in nature nor was it isolated, and that it had imposed a restrictive sanction of suspension as a final order. However, the Panel concluded that the misconduct was not ‘so serious’ as to justify the imposition of an Interim Order. The Panel kept in mind that it had imposed a short-term suspension, less than the maximum available to it at sanction stage. It also considered that the imposition of a six month Suspension Order was sufficient to uphold public confidence in the profession and the regulator, without the necessity of imposing an Interim Order on public interest grounds alone.

12. The Panel therefore made no Interim Order in relation to the 1st Registrant.

2nd Registrant:

13. The Panel was not satisfied that it is appropriate to direct that the Registrant’s registration should be subject to an Interim Order.

14. The Panel took into account the wording at paragraph 135 of the HCPC Sanctions Policy. It considered its findings at the earlier stages and noted that it had found no risk of repetition, and thus it considered that an Interim Order is not required for the protection of the public.

15. It next considered whether an Interim Order is otherwise in the public interest. The Panel took into account that the misconduct found was not minor in nature nor was it isolated, and that it had imposed a restrictive sanction of suspension as a final order. However, the Panel concluded that the misconduct was not ‘so serious’ as to justify the imposition of an Interim Order. The Panel kept in mind that it had imposed a short-term suspension, less than the maximum available to it at sanction stage. It also considered that the imposition of a two month Suspension Order was sufficient to uphold public confidence in the profession and the regulator, without the necessity of imposing an Interim Order on public interest grounds alone.

16. The Panel therefore made no Interim Order in relation to the 2nd Registrant.

History of Hearings for Mr Richard A Lund

Date	Panel	Hearing type	Outcomes / Status
23/09/2024	Conduct and Competence Committee	Final Hearing	Suspended