Benart Berisha

Preliminary Matters

15 April 2024

Witness availability

1. On 15 April 2024 Ms Bass, on behalf of the HCPC informed the Panel that certain practical case management issues may have to be resolved prior to the hearing beginning. She confirmed that there had been no contact made by the Registrant to confirm his attendance at the hearing. The Registrant had not activated the link to join the pre-hearing discussions with the Legal Assessor on 15 April 2024.

2. Ms Bass told the Panel that four witnesses have been warned to attend, witnesses A, B, C and SY. Witnesses A and SY are both available on 15 April 2024 and are ready to begin their evidence. Each witness may be available on later dates within the hearing timetable. Witness B however had provided the HCPC with a Fit Note from her general practitioner regarding certain medical treatment that she is receiving for a serious health condition. Witness B would not be available to give evidence on any date within the current hearing timetable. Witness C, who had been warned for 16 April 2024 is also unable to attend at that time for health reasons, although the relevant documentary support for that is not available at present.

3. Ms Bass explained that it may be possible to make a hearsay evidence application for Witness C’s evidence which is unlikely to have been controversial even had the Registrant attended. There are some supplementary questions that Ms Bass would have liked to put in fairness to the Registrant, although the Registrant had not attended to defend the case against him or to put questions to witnesses. Witness C may become available at another date within the current hearing timetable.

4. In relation to Witness B, Ms Bass said that she may be an important supportive witness who was a direct observer of the events in the case. It may become necessary to make a hearsay application but the information which would support the Panel’s reasons in determining that application was not available at present.

5. Ms Bass invited the Panel to consider delaying the start of the hearing from 15 to 16 April in order to allow her to obtain up to date information to support any applications that she may have to make.

6. The Panel accepted the Legal Assessor’s advice. The Panel reminded itself that the Practice Note Case Management, Directions, and Preliminary Hearings last updated in March 2017 (referred to in paragraph 12 below) allowed it a measure of discretion in controlling its own procedure in order to ensure a fair hearing in the public interest. In all of the circumstances, the Panel decided to defer the opening of this case until 16 April 2024.

16 April 2024

Application to hold part of the hearing in private

7. Ms Bass made an application for those parts of her submission in relation to the pre-hearing matters relating to the health of two witnesses to be held in private. Ms Bass submitted that witnesses B and C had a right under Article 6 ECHR such that privacy of their private lives including matters of health would be respected. The conduct of this part of the pre-hearing case management being heard partly in private where those matters arose would secure that right.

8. There were no submissions for or on behalf of the Registrant.

Panel’s Approach

9. The Panel accepted the advice of the Legal Assessor, and the Panel referred to the HCPTS Practice Note Conducting Hearings in Private last updated in March 2017.

10. The Panel had regard to the circumstances and the nature of the case. The Panel noted that the Practice Note states that proceedings shall be heard in public, subject to certain exceptions. The Panel considered that the exceptions which permitted the Panel to depart from the open justice principle included the rights to respect for private life of witnesses. The Panel considered that it was feasible and proper to conduct parts of the hearing in private including the pre-hearing case management discussions. The Panel therefore ordered that the references to the health of witnesses or any other party should be discussed in private.

11. The Panel was told by Ms Bass that witness B was currently undergoing hospital treatment for a serious condition. She would not be fit to return to work, and so would not be available as a witness for the next 42 days (which have now elapsed). After treatment, Ms Bass stated that the witness may be able to return to work in a phased manner over a long period of time. It was unknown at this date what her availability would be or even if she would ever be fit to be called as a witness.

12. The Panel accepted the advice of the Legal Assessor in regard to its powers to regulate its own procedure in a fair way. The Panel reminded itself that the Practice Note Case Management, Directions, and Preliminary Hearings last updated in March 2017. The Practice Note states that:

‘Article 32(3) of the Health Professions Order 2001 imposes a statutory obligation on Panels to conduct proceedings expeditiously. Panels should meet that obligation by making full use of their case management powers, to ensure that cases are heard without undue delay, fairly, justly and in a manner which:
• is proportionate to their importance and complexity;
• encourages engagement and co-operation by the parties;
• avoids inflexibility or unnecessary formality in the proceedings;
• makes effective use of the Panel’s time and expertise; and
• enables the parties to participate fully in the proceedings.’

13. Effective case management eliminates unnecessary complexity. Some cases are simpler than others and Panels should ensure that straightforward cases are dealt with straightforwardly. Panels should use their case management powers in appropriate cases to:

• identify the issues in dispute and seek to ensure that they are subject to no greater factual inquiry than justice requires;

• put arrangements in place to ensure that evidence, whether disputed or not, is prepared and presented clearly, effectively and by the most appropriate means;

• ensure that the needs of any witnesses are taken into account;

• encourage the use of collaborative tools, such as agreed chronologies or statements of agreed facts;

• set an appropriately early hearing date and establish a realistic timetable and programme for the conduct of the proceedings.

14. The Panel took into account that the current timetable of six days for the hearing allowed, in the absence of attendance by anyone on behalf of the Registrant, sufficient flexibility to allow time to identify whether and when witnesses will be able to participate in the hearing, or whether applications for hearsay evidence become necessary.

15. Accordingly, the Panel decided to defer the opening of the case until Tuesday 16 April 2024.

Service

16. The Panel was provided with a copy of the Notice of Hearing which was sent by email to the Registrant's registered email address on 12 October 2023.

17. The Panel accepted the Legal Assessor’s advice.

18. The Panel noted that the email to the Registrant confirmed that the hearing would be taking place remotely via video conference. The date and time of the review hearing was confirmed in the Notice of Hearing.

19. The Panel was satisfied that the Notice of Hearing had been properly served in accordance with the Health and Care Professions Council (Coronavirus) (Amendment) Rules Order of Council 2021 which came into force on 4 March 2021. These rules provide express provision for the HCPC to serve notices via electronic email and hold hearings via audio and video link where necessary.

Proceeding in absence of the Registrant

20. Ms Bass, on behalf of the HCPC invited the Panel to proceed with the hearing in the absence of the Registrant. Rule 11 of The Health and Care Professions (Conduct and Competence Committee)(Procedure) Rules 2003 provides:

‘Where the Registrant is neither present nor represented at a hearing, the Committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under rule 6(1) on the Registrant.’

21. The Practice Note Proceeding in the Absence of the Registrant last updated in June 2022 provides that:

‘If the Panel is satisfied on the issue of notice, it must then decide whether to proceed in the Registrant’s absence, having regard to all the circumstances of which the Panel is aware, and balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.’

22. Ms Bass submitted that the Registrant had made it clear in his email response of 4 October 2023 to an advance warning of the listing from the HCPC on 4 October 2023 that he did not intend to participate in this process.

23. The Panel was taken to the Registrant’s email response which was:

“Dear HCPC Council.

I must say I am flabbergasted at the way this case has been handled by yourselves. The incident occurred in April 2021 and the hearing date will be April 2024?

My darling, as I've said before I have left the profession years ago.
Wowzers. I'm stunned at what exactly you have been doing all this time or think you’re doing?

Honestly, imagine if everything ran as slowly as you've been processing this case.

I've said before and I'll say again. My employers cleared me of any wrong doing. They even emailed yourselves as to why this is still ongoing.

You didn't rely [sic] then and I doubt you will reply now.

Just a part of your slow service I guess. Benart.”

24. Ms Bass submitted that all reasonable steps had been taken to notify the Registrant of this hearing. The Registrant was aware of this hearing and had consciously and voluntarily decided not to participate. It was in the public interest to proceed with this case despite the absence of the Registrant.

25. The Panel accepted the Legal Assessor’s advice and observed that the power to proceed in this way is in line with the HCPTS Practice Note on Proceeding in the Absence of the Registrant last updated in June 2022 which provides the outline of issues for the Panel to consider including (as Ms Bass had submitted):

• The nature and circumstances of the Registrant’s absence. In this case there seemed no doubt that the Registrant had intentionally decided to forgo the opportunity to attend this hearing, to be heard and to participate effectively.
• The public interest in advancing the case to a conclusion especially when there is the potential for inconvenience to witnesses.

26. The Panel had in mind the requirements of Article 31(15) of the Health Professions Order 2001 and the general principles of fairness.

27. In accordance with the HCPTS Practice Note, a Panel must first consider whether notice of the proceedings have been served on the Registrant. The Panel must also have consideration of all the circumstances of the case when taking the decision to proceed in absence, balancing fairness to the Registrant with fairness to the HCPC and the interests of the public.

28. The Panel was satisfied that the Registrant was served notice of the substantive hearing by email dated 12 October 2023. The Notice confirmed the date of the hearing, that the hearing would take place remotely, the purpose of the hearing, (to decide on disputed facts, current impairment and if necessary, impose a proportionate sanction); and invited the Registrant to provide written submissions if the Registrant wished.

29. The Panel was satisfied that all reasonable steps had been taken to serve the Registrant with notice of this hearing and that he has implied that he does not wish to participate.

30. The Panel was satisfied that no purpose would be served in delaying these proceedings. Further, this case is now almost four years old, as pointed out by the Registrant. It is both the Registrant's interests and in the public interest for this matter to be considered and resolved as scheduled.

31. Accordingly, the Panel decided to proceed with the hearing in the Registrant’s absence.

Application to amend the allegation

32. Ms Bass, on behalf of the HCPC invited the Panel to exercise its powers to amend the allegation in order to correct some grammatical imperfections in the wording of allegations 1 and 2, as outlined below:

As a registered Biomedical Scientist (BS71769) your fitness to practise is impaired by reason of misconduct. In that:

1. On 11 April 2021, you did not maintain appropriate professional boundaries in relation to Colleague A, in that yYou physically assaulted Colleague A by throwing them to the ground and/or holding their head in a headlock.

2. On 11 April 2021, you did not communicateion professionally during working hours, in that:…

33. Ms Bass said that the Panel had a discretionary power to make minor amendments of this nature under the HCPTS Practice Note Case to Answer Determinations which provided, among other things, that:

‘A Panel may make minor amendments to an allegation without adjourning their consideration of the case. A minor amendment may be to correct a typographical error or to make a stylistic drafting change which does not affect the substance of the case alleged against the Registrant.’

34. Ms Bass invited the Panel to agree that the proposed amendments were minor in nature and did not alter the seriousness of the case against the Registrant.

35. There were no submissions by or on behalf of the Registrant.

36. The Panel accepted the Legal Assessor’s advice. It paid close regard to the importance of ensuring a fair hearing for the Registrant. While minor amendments are permitted under the Practice Note, the Panel was careful to avoid making any amendment that would alter the nature of seriousness of any aspect of the allegation. After careful consideration, the Panel was satisfied that the proposed amendments were truly minor in nature and were helpful to everyone in understanding the allegations. There was no injustice of unfairness to the Registrant that the Panel could identify in permitting the amendments to be made. Accordingly, the Panel decided to amend the allegations as proposed.

Background

37. The Registrant had been employed as a Biomedical scientist at the Department of Pathology at Pinderfields Hospital in Wakefield by the Mid-Yorkshire Hospitals NHS Trust (the Trust).

38. On 7 July 2021 the HCPC received a referral from Colleague C, the Deputy Director of Operations at the Trust on 1 June 2021 regarding an incident between the Registrant and Colleague A. The incident was alleged to have occurred on 11 April 2021 in a Pathology Lab at Pinderfields General Hospital.

39. The Registrant is alleged to have had a physical altercation with Colleague A and also communicated unprofessionally with Colleagues A and B during the same incident.

40. Colleague C was contacted and asked to attend the Hospital in the immediate aftermath of the altercation. Colleague C collected the initial statements from the Registrant, Colleague A and Colleague B.

41. The Registrant was suspended on 14 April 2021 pending a Trust investigation and was subsequently dismissed on 17 June 2021.

42. The Registrant did not report either his suspension or subsequent dismissal to the HCPC, which is required by 9.5 of the Standards of conduct performance and ethics.

43. The Registrant has denied dishonesty in this respect in correspondence with the HCPC.

44. On 19 August 2022 the Registrant emailed the HCPC with the following response to the allegations:

“In relation to allegation 1:

As you are aware, I cleared my name of ALL wrongdoing in front of the Mid-Yorkshire hospitals appeal Panel. Please see attached the evidence I presented to them during my appeal. It should prove to you, as it did them, that I was not the instigator of any violence or unreasonable actions.

In relation to allegation 2:

As above.

In relation to allegations 3 – 7:

I was informed by Mid-Yorkshire hospitals that they have contacted the HCPC regarding the investigation.”

Evidence

45. The HCPC called the following witnesses to give live evidence.
• Colleague A;
• Colleague B;
• Colleague C;
• SY, Registrations Manager at the HCPC.

Colleague A

46. Colleague A said that he had signed as true two statements in relation to this matter:
• the first of five pages on 15 January 2023; and
• the second supplementary statement of two pages on 21 April 2023 (although wrongly dated 2022 in error).

Colleague A adopted the statements (each with a declaration of truth) and the associated exhibits referred to as his evidence in chief.

47. Colleague A was the Senior Biomedical scientist for the Mid-Yorkshire NHS Trust (the Trust), employed in the Blood Transfusion department at Pinderfields Hospital (the Hospital) in Wakefield. Colleague A was the senior scientist within the laboratory and was responsible for the day to day running of and the staffing and analysis/ testing of samples within the laboratory. Colleague A said that Mr Berisha (the Registrant) was employed as a Biomedical scientist within the Biochemistry department at the Hospital, responsible for the patient samples that came from the wards, A&E and GP surgeries for biochemistry testing. The Registrant worked for a different department in an open-plan laboratory. Accordingly, they would exchange business-like conversations but Colleague A did not socialise with Mr Berisha outside of the laboratory.

48. On 11 April 2021, Colleague A, Colleague B, the Registrant, and another Biochemistry colleague were each working on a weekend shift and were the only persons in the laboratory. The Registrant came into work at around 14:00. A plan of the laboratory would show, that viewed from the front entrance to the laboratory, Mr Berisha worked at the biochemistry desk in the top left of the plan. Colleague A worked at the transfusion desk on the bottom right of the room plan and Colleague B at the reception desk opposite the transfusion desk, separated by the entrance doors to the laboratory. The room measured approximately 25m by 25m.

49. Colleague A said that at around 16:40 pm, Colleague B complained that Mr Berisha’s phone had been ringing unanswered on a number of occasions over 20 minutes and the noise was distracting for her. Colleague A also noticed that Mr Berisha’s phone had not been answered. Mr Berisha had left the laboratory to take a break and had been absent for at least 45 minutes. Colleague A said that he answered the phone on a few occasions and made some message notes. However, due to the frequency of the incoming calls, he re-routed calls to the Biochemistry department at Dewsbury Hospital.

50. Colleague A said that at around 17:00, 20 minutes after re-routing the calls, Mr Berisha returned to the laboratory. Colleague A asked Mr Berisha if he could have a ‘quick word’ about the disruptive impact on other staff of leaving the phone unanswered over a long period of time. Mr Berisha did not respond as Colleague A had anticipated. Having explained that if Mr Berisha told Colleagues that he was going to be absent on a break, they could answer the calls without undue interruption. Mr Berisha muttered something under his breath as he returned to his own desk. Colleague A said “…please don't mutter anything, you could at least say thank you for sorting out my unattended lab”. Mr Berisha turned back around to face Colleague A and started shouting expletives and swearing at him.

51. Colleague A recalled saying to Mr Berisha that he would tell the Chief Biomedical scientist, and Mr Berisha's manager, about Mr Berisha's behaviour. That appeared to make Mr Berisha angrier and he “…proceeded to shout more and more.”

52. Colleague A said that Mr Berisha then began walking away from him again. By that stage, Colleague A was also angry, feeling that Mr Berisha had been disrespectful to him. Colleague A said that he followed Mr Berisha asking him to explain what had caused this outburst when Mr Berisha turned around, walked towards Colleague A, and grabbed Colleague A’s collar with his hands. Pushing and shoving then ensued. Colleague A believed that Mr Berisha was trying to get him down on the floor.

53. Mr Berisha wrenched Colleague A’s right arm, pulling him and almost threw Colleague A over his hip. Colleague A was unsure how Mr Berisha achieved this, but it had the result that Colleague A was placed on the floor suddenly and forcibly. Mr Berisha then sat on Colleague A’s chest for around a minute, pinning him down. Colleague A gave up trying to defend himself at this point as he was not able to move.

54. Colleague A recalled that this incident concluded when Colleague B ran over and attempted to separate the men. Mr Berisha left the laboratory.

55. Colleague A recalled in his statement that he was informed by a member of the hospital's security staff who had arrived in the laboratory with Colleague C and the Site Manager that Mr Berisha was claiming that he had been assaulted. Colleague A responded that it was, in fact, the other way round and that it was him that had been assaulted.

56. Colleague A and Colleague B proceeded to carry on working, after they had composed themselves, because blood transfusions and other tests still needed to be completed. Mr Berisha was also allowed back into the laboratory and all three colleagues carried on working without speaking to each other.

57. Colleague A said in his statement that later in the evening he experienced a lot of pain in his shoulder which had connected with the floor when Mr Berisha “…had taken me to the ground.” He attended at A&E that same evening, where checks were carried out which established that no bones were broken but he was prescribed some painkillers. The pain took around 6 to 7 weeks to ease.

58. Colleague A said that he in the incident, Mr Berisha had used foul expressions towards him including “…fuck off” repeatedly and that Colleague A was “…a pussy” on a number of occasions, goading Colleague A several times by saying that that he would take Colleague A outside “…to finish it.”

59. Colleague A said that he and Mr Berisha were both suspended from work pending an internal workplace disciplinary investigation. The conclusion of the investigation was that Colleague A was subject to disciplinary action. Colleague A appealed successfully against that outcome. Colleague A understood that Mr Berisha had been dismissed but had also successfully appealed against that outcome. Colleague A recalled that he had not been informed immediately that he would be reported to the HCPC as a result of the incident. He understood that his employer intended to do so. Colleague A did not self-report to the HCPC that he had been suspended.

Colleague B

60. Colleague B had not been able to attend the hearing and her hearsay statement was admitted into evidence.

61. Colleague B became a Band 6 Biomedical scientist within the haematology and blood transfusion ("HBT") team at the Hospital on 1 December 2021. On 11 April Colleague B had the same role there but was Band 5. Colleague B worked in the laboratory on 11 April 2021 when the incident between Colleague A and Mr Berisha took place. Colleague B said that she was ‘…heavily pregnant’ when the incident occurred.

62. Colleague B recalled in her statement that when working out-of-hours no medical laboratory worker is present. Accordingly, as on 11 April 2021, it was the responsibility of both the HBT and chemistry teams to move samples around the lab, and as a result of the fact that these tasks were shared, she would occasionally engage directly with Mr Berisha.

63. Colleague B said that on 11 April 2021 Mr Berisha went for a break without telling anyone. Only a skeleton staff was working. It was regarded as a courtesy to inform other staff that a member is leaving the laboratory to take a break. Other staff will then take responsibility for answering the absent member’s phone.

64. Colleague B recalled that during this break, Mr Berisha’s phone rang every couple of minutes for 40 minutes which was distracting for the other workers including her. Colleague B recalled that Colleague A asked her where Mr Berisha had gone. She was unable to assist. Colleague A then transferred Mr Berisha’s calls to another hospital to deal with. Calls may have been in regard to urgent tests results required by a Hospital Ward.

65. Colleague A said that he was going to have a word with Mr Berisha when he returned. When the Registrant came back into the laboratory ten minutes later as Colleague B was working near the centrifuges, she heard part of what Colleague A said to Mr Berisha which was along the lines of “…just remember next time tell someone you've gone so we can sort it out”. She heard Mr Berisha mumble something in response but could not hear what it was. Colleague A was then heard to say “…don't walk away and mumble something, all you need to do is say thank you”. Colleague A’s voice was stern. It was clear to Colleague B that Colleague A wanted to get his point across.

66. Colleague B then observed Mr Berisha with his arm near Colleague A’s chest and he said something like “…back away from me.” Colleague B then continued with her work expecting that the matter would resolve between the men. However, as Colleague B turned round again, she observed that Colleague A was being swung around by Mr Berisha in a “…martial arts move”. Colleague A was thrown to the floor and Mr Berisha put him in a headlock before sitting on his chest. Colleague A appeared to become paler as the incident continued. Colleague B repeatedly asked Mr Berisha to release Colleague A, saying “what is going on, get off him” which he did eventually.

67. Colleague B placed herself between the men as they faced each other. Mr Berisha repeatedly said to Colleague A that he was “…a pussy” and something along the lines of “…let's take it outside I'll show him.” She told Mr Berisha to “…shut up”.

68. Colleague B recalled that Mr Berisha took off his laboratory coat in preparation to leave the room when he began to shout at her as he was leaving the laboratory, saying that he was disappointed in her, pointing his finger at her.

69. Colleague B said that Colleague C came into the laboratory along with the Chief Biomedical scientist at the hospital. Colleague C asked Colleague B for an account of events which she provided to Colleague C.

Colleague C

70. Colleague C was the Deputy Director of Operations and Pathology for the Trust on 11 April 2021 and had been in this role since 2015. As part of this role she had overall responsibility for the operational management of pathology services within the Trust. This focuses on strategic direction and she works with members of staff to ensure that there are enough resources and staff members to manage the workload within the Pathology Department.

71. Colleague C had professional but not social contact with Mr Berisha whose role included responsible for the analysing and processing of the biochemistry samples, quality control and producing test results.

72. Colleague C was at home at 6:30 pm on 11 April 2021 when she received a call regarding a fight that had occurred in the laboratory between Colleague A and Mr Berisha. She attended the laboratory immediately, accompanied by the Chief Biomedical scientist. Colleague C knew that Colleague B was pregnant and her first task was directed at her safety. Colleague C then spoke to Mr Berisha to obtain his account of the events which is recorded in an exhibit annexed to Colleague C’s statement and is reproduced below under ‘The Registrant’.

73. Colleague C observed that Mr Berisha had a red mark under his left eye and blood on one of his hands. Mr Berisha appeared to be upset. He seemed not to realise that he had an injury. On the marks being drawn to Mr Berisha’s attention by Colleague C he looked at them and said only “…oh, yes”. When asked to explain what had happened, Mr Berisha said that he “…had had an altercation”. Mr Berisha was asked to record his version of events, which he did. Colleague C then took up other enquiries in attempting to understand the events.

74. Colleague C did not recall the details of the events given the passage of time since they occurred. She relied upon her signed written statement which contained a statement of truth and the attached 22 exhibits which reflected the work that she did in the workplace investigation.

75. Colleague C recalled that Mr Berisha was informed that he had been suspended when he attended the hospital to begin his shift on 13 April 2021. Colleague C said that both men were subject to a workplace suspension and an internal disciplinary process.

76. At the conclusion of the process, Colleague A was given a final written warning and Mr Berisha was dismissed. Colleague C was informed by the hospital HR department that referrals should be made to the HCPC.

77. Colleague C could not recall if she informed Mr Berisha of this. The referral was made in July 2021. The referral was begun by Colleague C and was paused while she obtained more information before finally submitting the referral in respect of Mr Berisha.

SY

78. SY provided a formal signed statement dated 23 March 2023 containing a statement of truth in the following terms:

“I, [SY], WILL SAY AS FOLLOWS:

I make this statement in connection with proceedings being brought before the Health and Care Professions Tribunal Service ("HCPTS") sitting as a Panel of the Health and Care Professions Council ("HCPC") Conduct and Competence Committee ("CCC") in relation to Mr Benart Berisha (Reg. No. BS71769).

I am a Registration Manager within the Registrations Department at the HCPC. I have been in this role since 2017.

Reporting requirements pursuant to the HCPC's Standards of Conduct, Performance and Ethics

I can confirm that, pursuant to Standard 9.5 of the HCPC's Standards of Conduct, Performance and Ethics, which I exhibit as Exhibit "SY1", a Registrant is required to notify the HCPC as soon as possible in the event that they are suspended or dismissed from a role which requires their registration with the HCPC, or are disciplined by their employer, police, or courts. Whilst the Standards do not define an exact timeframe by which they should inform the HCPC, they make it clear at Standards 9.5 that notification should be provided to the HCPC "as soon as possible".

When informing the HCPC of matters of the kind that I refer to above, a Registrant should also provide details of why they have been suspended, dismissed, or disciplined so that the HCPC is fully sighted on the context of what has occurred.

Whilst the guidance exhibited is the current guidance, I can confirm that this was also the expectation in 2021.

I can confirm, having reviewed Mr Berisha's HCPC record, that there is no evidence of him having reported any suspension or disciplinary action in 2021. Had he been subject to any such action, he would have been required to notify the HCPC in accordance with the policy requirements I have detailed above.”

The Registrant

79. The Registrant did not provide the Panel with an account of the events of 11 April 2021 and subsequently for the purposes of this hearing. The Panel had full regard to all of the documentary material supplied by the Registrant to the HCPC. The undernoted document Exhibit C1 is reproduced here as being the most contemporaneous account of events written personally by the Registrant.

Exhibit C1 exhibited by Colleague C above.

“An account of the incident between myself (Benart Berisha) and Colleague A on the 11/04/2021

I go for my lunch just before 18.00 and, I return from my lunch around 18.30.

I do a quick tour of the laboratory; this is to ensure there are no A&E samples waiting to be processed.

Colleague A is by the manual centrifuges, towards the transfusion side of the laboratory.

He calls me over and politely requests that, “next time you go on lunch inform one of us so we can answer telephone calls”. He was polite.

I ask, “how many miscalls were there”. He relies with “over ten”.

I say “Ok”, nod my head and go about my daily tasks. As I am walking away, he calls me back.

I walk back over, and he says to me, “don't just walk away, say thank you” or "don't just walk away, show some respect". Variations of that.

I honestly did not know how to react to such an awkward encounter. I cannot remember exactly what I said in return, but it was something general like “ok”.

I again walk away towards my desk.

He must not have been happy with my reply, he walks behind me grabs my attention by saying something general. “Oy” or maybe he called my name. I cannot remember exactly.

I turn around, he is very up and close. He is making physical contact with my body. He is ‘up in my face’.

He said something like, “no not ok” and “show some respect” and/or “I am your senior” and/or “be polite”. Variations of this. He believed I was disrespectful to him.

I stretch my left arm out to create some space between me and him.

I VERY clearly asked him to “stay back” and “stay away” and “keep your distance”. He slaps my arm out of the way and closes the distance again.

He replies with “no”

Again, I stretch my left arm out and demand that he “stays away”. Again, he slaps my arm out of the way and closes the distance.

All the while he is saying things like, “no”, “who do you think you are”, “who do you think you are talking to”.

I must have stretched my arm out and requested that he keeps his distance AT LEAST 10 times. It was a ridiculous number of times to ask someone to keep their distance.

All the while, I was walking backwards. And as he was slapping my arm out of the way, he was walking forward closing the distance to me.

Finally, I stretch my arm out for the last time and say, “just fuck off” or “fuck off”. He immediately, within the second, responds by punching me in the face.

I believe it was two strikes to the face. For sure not three. He then grabs my hoodie; I was not wearing a lab coat.

He grabs my hoodie by the sleeves and begins to wrestle with me. Pushing me around, I guess trying to get me to the ground.

I actively try my best to wrestle back. At this point I am fully aware of what is going on; and make the conscious decision that I need to defend myself.

We end up on the ground with me on top of him.

Whilst on the ground I DID NOT strike him. I did not hit him. I held his arms down in an attempt to restrain him.

As soon as we go to the ground, Colleague B makes her way over to us. She should be a witness to the fact that I did NOT strike him.

I believe this is important! If I was the aggressor, if I instigated the violence, then this would be the opportune time to strike Colleague A but, I did not.

My intention was to simply restrain him!

Immediately, when I see Colleague B I urgently ask her to “call security”. She replies with “no" and "get off him”.

I shout, “Colleague B, call security now!”

Again, she replies with “No” and “get off him”.

I have absolutely no idea why someone would not call security at a time like this, but she was adamant that she will not call security.

at this time is very calm.

He is quietly asking me to “get off of him”. He says this numerous times. I did not know what to do. Should I get off of him? I did not know.

This I believe is another key point. Colleague A was very calm. Colleague B should be able to confirm this. Colleague A was not swearing or shouting at all! This is evidence of the fact that he most definitely Colleague A attacked me!

If I attacked him and ended up on top of him, any reasonable person would be shouting for help or to call security. But he was not! He was very calm.

It was me that was shouting at Colleague B to call security, but she simply refused to. I demanded that she called security at least 3 times.

After being on top of him and restraining him for around 20 or 30 seconds. I decide to get off of him and take a step back, I step away by a few meters.

I tell Colleague B to “stay away from him” and to “come outside” with me.

She only saw me on top of him, I believe she assumed I was the aggressor. She was asking Colleague A is he is “ok”, variation of that.

At this time, I was very emotional, I was in a safe position but very emotional. I was swearing at him! I used general swear words.

Whilst still in the laboratory, at the other end, by reception at the doors I use my mobile to call my manager, CM.

Colleague A sees me and says something like “oh he's making a call, I bet he's calling CM”.
That is exactly what I was doing.

I believe this is another evidence to the fact that Colleague A assaulted me and was the aggressor. If I assaulted him, if I punched him or if I was the aggressive one, why did he not call security?

And normal person would call security after being assaulted, which is exactly what I did after trying to call my manager. CM did not initially answer my call.

I am outside the laboratory at this point and on a call with security.

I explain the situation, they inform me they are in the middle of a shift handover and will be on their way asap.

CM, my manager, calls me back and I explain the situation. He tells me to “call security” and “not to go back into the lab”, “he is on his way”.

I wait outside until security and the site manager make their way to the laboratory. I explain the situation to them.

I let them know that Colleague B is pregnant, and Colleague A is in the laboratory.

They take control of the situation until CM and Colleague C make their way.”

Decision on Facts

80. The Panel paid close regard to the closing written submissions by Ms Bass on behalf of the HCPC. Ms Bass invited the Panel to find that Colleague A’s account was clear, consistent and was supported by contemporary accounts made by him and others immediately following the events of 11 April 2021. Further, his account of the incident itself is strongly supported by the hearsay but still valuable account of Colleague B. Colleague C gave a clear and unembellished account of her investigation and the subsequent disciplinary outcomes and appeals. Ms Bass submitted that the witnesses were all credible and reliable. The Registrant had not attended to provide any challenge to the case against him. His responses to the workplace investigation are the nearest that the Panel has to his account, which in any event lacks credibility. His account of having been the victim does not accord with the evidence available in Colleague B’s statement. She had no reason to exaggerate her evidence or to conceal anything done by Colleague A.

81. Ms Bass submitted that allegation 1 is proved by the testimony of Colleagues A, B, and C, taken together. Ms Bass referred the Panel to passages in their written statements in support of her submission.

82. Ms Bass submitted that allegation 2 is proved partly by the contemporary records obtained by Colleague C in Exhibit C1 where the Registrant admits that he used the words in each of the limbs, a., b., c., and d, of Particular 2. Further, the testimony of Colleagues A and B are in accord with each other. The Registrant had largely admitted using the expressions in his account in Exhibit C1. Ms Bass referred to passages in the statements and documents which supported her submissions.

83. Ms Bass submitted that allegations 3 and 4 are both proved by the uncontested factual sworn statement of SY. The Registrant had not said that he had made the necessary referrals to the HCPC. He considered that it was unnecessary to do so because he believed that he had been told by his employer that it would make the referrals.

84. Ms Bass submitted that allegation 5 is proved by the evidence provided by SY that all registrants are under an obligation to report any suspension or dismissal to the HCPC at the earliest opportunity. The obligation is personal and cannot be delegated to another. The honest and decent member of the public would conclude that the Registrant’s failures to make necessary referrals was dishonest.

85. The Panel accepted the Legal Assessor’s advice. It recognised that the HCPC had the burden of proving disputed facts to the civil law standard of balance of probabilities. The Registrant had no burden of proof.

86. The Panel began by carefully considering the contemporary records which existed and recorded the events is some detail, including that provided by the Registrant. The Panel considered that the written statements and contemporary documents were all in accord with each other rather than with elements of the Registrant’s accounts. There was no evidence of any deliberate correlation of accounts taken in conjunction with each other. The incongruities in Colleague B’s statement suggested a spontaneous and genuine attempt to record the facts. Colleagues A and C provided their evidence in an unexaggerated and natural way, accepting gaps in their respective memories appropriately.

87. There was nothing to support the view that the events spoken to in oral evidence had been inflated or distorted in an attempt to disguise the inconsistencies or to conceal active participation on Colleague A’s part in the situation. He had accepted in testimony that a wiser course for him in retrospect would have been to have ignored the muttered responses made by the Registrant and to refer the matter to the Registrant’s line manager. There was no evidence to support the view that Colleague A had been the physical aggressor. However unwise or angry his approach towards the Registrant, there was no evidence of anything done by him that could be regarded as causative or provocative of physical violence.

88. The Panel recognised that the words relied on in allegation 2 had not appeared in Colleague A’s contemporary account although they did in Colleague B’s. However, when asked about it by the Panel, he did acknowledge that those expressions had been used towards him repeatedly. He might have been expected to disengage from the Registrant at that point and adopt a more conventional workplace dispute process. However, the fact that he acknowledged not doing so added to, rather than detracted from, Colleague A’s credibility and reliability.

89. The Registrant provided documentary records that suggested that he had been the victim of a violent assault and had defended himself within reasonable limits. However, the Panel observed that Colleague C’s testimony had been that the injuries later relied on by the Registrant were not known about by him at the point that she first spoke to him. He seemed surprised to have injuries. Decisively for the Panel, this first approach was the natural and immediate opportunity for the Registrant to explain that he had himself been assaulted and was defending himself. Instead he only said that he had been in an altercation with Colleague A. Once the injuries had been drawn to his attention, the Registrant would have been expected to immediately draw the connection with an assault on him when responding to Colleague C’s open questions. The fact that he later made the written account of having been injured in an assault was unconvincing.

90. Further, there was no other testimony from Colleague B to suggest that the Registrant had said anything during the incident to say that he had been assaulted and was defending himself. In the Registrant’s first written account, there are incongruities with a picture of him being an assault victim. Colleague A had been polite with him at first. He strode towards the Registrant annoyed by the seeming discourtesy and disrespect shown by the Registrant but nothing recorded by the Registrant supported any need to resort to a violent martial arts-like throw in which Colleague A was pinned to the ground and sat on (in Colleague B’s account). Colleague A’s account opened him to obvious criticisms of his somewhat intemperate behaviour which would not ordinarily be expected of someone in a senior and line management position. He accepted this to be the case. But the Registrant’s forcefully expressed accounts of being a victim were made only after the witnesses who could challenge him were not present and after he was aware that he had injuries. His accounts lacked the details that would have accompanied a perceived assault on him including calls to Colleague B to speak to Colleague A or even a retreat by the Registrant to a safe ancillary room.

91. The Panel was satisfied that the HCPC witnesses were credible and reliable, having close regard to the contemporary records. Although the Registrant accepted in his written accounts using the words relied on in allegation 2 (which was to his credit) the Panel considered that there was no basis in truth for his assertions of having been the victim of an assault on him by Colleague A.

92. The Panel considered that Colleagues A and C had been restrained in their respective evidence and were each careful to avoid conjecture or exaggeration. They were, in the Panel’s view, not the kind of witnesses warned against by the High Court in the case of R (Dutta) v GMC [2020] EWHC 1974 (Admin). There was no hint of the witnesses’ imaginations becoming more active as their memory of events faded with time. Neither witness appeared to supply invented detail in support of the allegations.

Allegation 1

93. The Panel was satisfied that this allegation was proved on balance of probabilities. The Registrant had left his post without making arrangements for phone cover for around an hour. He may have acknowledged his fault in his muttered responses. The verbal confrontation was initiated and to an extent sustained by Colleague A, but there was nothing to suggest that any physical martial arts throw was called for, much less the violent throwing of Colleague A to the floor and pinning him there after applying a headlock (as spoken to by Colleague A). A discreditable verbal exchange between Colleagues had ended in a violent assault on Colleague A by the Registrant. The facts of throwing Colleague A to the floor and applying a headlock was proved. It was excessive and uncalled for. There was no truth in the Registrant’s ‘victim of assault/self-defence’ account.

Allegation 2

94. The Panel was satisfied that this allegation on all four limbs was proved on balance of probabilities. All of the words used were inappropriate and unprofessional.

95. 2.a.: Colleague C said that the Registrant had admitted using these words.

96. 2.b.: The Registrant admitted using these words repeatedly and in the context spoken to by Colleague A.

97. 2.c.: The Registrant admitted the multiple use of the expressions and this was also spoken to by Colleague A.

98. 2.d.: The Panel accepted as true the uncontested hearsay testimony of Colleague B. She was supported by an inference based on what the Registrant had admitted to doing, including saying that he was disappointed in her. Colleague A confirmed that these words were said.

Allegation 3

99. The clear and uncontested evidence of the HCPC witness SY proved this allegation of not reporting suspension from employment as required. The Registrant admits as much.

Allegation 4

100. The clear and uncontested evidence of the HCPC witness SY proved this allegation of not reporting dismissal from employment as required. The Registrant admits as much.

Allegation 5

101. The Panel was not satisfied that dishonesty was proved in the whole circumstances of this case.

102. The Panel considered carefully what was said in the Supreme Court case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 which held that the test for dishonesty is a two-stage test, as set out by the court set out at paragraph 74:

When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts.

The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the factfinder by applying the (objective) Standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those Standards, dishonest.

103. The HCPC’s case was that the Registrant was obliged to report to his regulator that he had been suspended and subsequently dismissed. Judged by the Standards of ordinary decent people, this was dishonest.

104. The Panel considered that proof of dishonesty required that the Panel had to take into account what had been available to ascertain the state of the Registrant’s thinking at the relevant time. It was accepted by the Panel that the Registrant had an obligation not to delay reporting his suspension and dismissal. He had constructive knowledge of the obligation by reference to the Standards which bound the Registrant as set out in SY’s uncontested statement.

105. However, the Registrant asserted that he had been informed that his employer would report the matters to the regulator. Colleague A held the same belief and had not self-reported the suspension imposed on him by his employer. He too assumed that his employer would make the report. It was not suggested that this was dishonest on Colleague A’s part. Like Colleague A, the Registrant asserted that he believed that a report by his employer was sufficient to meet the reporting requirements necessary for the Regulator.

106. The Panel accepted that the holding of such a belief in the mind of a Biomedical scientist might strain credibility, particularly where the Panel had not regarded the Registrant’s credibility as being the equal of the other witnesses. Despite that, although on one view an unreasonable belief, it appeared to have been as naturally assumed to be the case by Colleague A as by the Registrant. Accordingly, it could not be said to be so unreasonable a belief that no-one could truly have believed it to be the case. The Panel considered that, taking into account all of the known facts, the Registrant had in fact believed that he was not required to personally make a report when his employer intended to do so.

107. In all of the circumstances, although a discreditable thing for a Biomedical scientist to have neglected to do, the Panel could not be satisfied that the ordinary and decent member of the public would conclude that the neglect to report had been a dishonest thing to do.

108. In these circumstances, allegation 5 was not proved.

Decision on Grounds

109. In reaching its decision on the statutory ground of misconduct, the Panel has taken account of the submissions of Ms Bass for the HCPC, the Registrant’s documents and the Legal Assessor’s advice. The Panel recognised that a finding of misconduct is a matter of judgement rather than evaluating evidence as such. The Standards expected of a Biomedical scientist are established in the HCPC Standards of conduct, performance and ethics (2016) which were in force in 2021, and the HCPC Standards of proficiency Biomedical scientists effective until 1 September 2023. However, not every falling short of the Standards expected would, of itself amount to misconduct. The falling short must be materially serious and would be likely to reflect badly on the profession, have the potential to reduce public trust and confidence in the profession and call into question patient and public safety. Something that fellow members of the profession would regard as being deplorable is likely to be sufficiently serious as to amount to the statutory ground of misconduct.

110. The Panel had no difficulty in concluding that the Registrant’s assault on Colleague A (Particular 1) was instantly misconduct. Any fellow Biomedical scientist would be likely to be appalled by this conduct, most especially when it occurred during a shift in a working laboratory where tests had yet to be completed and the resulting reports made to the wards and other departments. Although the parties had been able to eventually resume their work while waiting for seniors to arrive and take charge of the situation, work had been interrupted during the exchange and was again interrupted by the necessity of an investigation being begun, under the watchful eye of security. The impact on patient well-being is almost too obvious to require detailed discussion. The Panel considered that at the very least any tests that were worked on during that time must have been impacted by the atmosphere that had been created. It would be impossible for professional colleagues across different disciplines to have a meaningful exchange in relation to any test ambiguities or complexities.

111. In respect of Particular 2.d., the Registrant’s conduct and confronting words had exposed a pregnant colleague to the fear that she would also be assaulted. The Registrant’s intemperate words towards her were inexcusable. Any reasonable member of the profession would deprecate such base and threatening behaviour.

112. In respect of Particulars 2.a., 2.b., and 2.c., the Panel concluded immediately that this was all misconduct. It was unnecessary for the Panel to deal individually with each limb as they were all tainted by reprehensible misconduct individually and taken together.

113. The Panel considered that Particulars 3 and 4 could also be taken together since each case, in the Panel’s judgement, it did not regard the failure to report to the HCPC as misconduct. This was certainly not good practice and was contrary to the Standards. However, the Registrant is not unreasonable in his belief that the reports being made by his employer made a duplicate report by him unnecessary. This was not good practice. It was not, however a deliberate concealment by the Registrant in the Panel’s view. In all the circumstances, the Panel concluded that a fellow Biomedical scientist would not regard the failure to report in themselves as being deplorable. Although required by the Standards binding all Biomedical scientists the Panel concluded that, in its judgement, the public would not regard a misunderstanding of this nature in the whole circumstances as something which called into question patient safety, public trust and confidence in the profession or the declaring and upholding Standards for Biomedical scientists in general.

114. In reaching its decision on misconduct, the Panel referred to the HCPC Standards of conduct, performance and ethics (2016) which were in force on 11 April 2021. The Panel concluded that the following Standards are engaged and have been breached:

Standard 1:

‘Maintain appropriate boundaries

1.7 You must keep your relationships with service users and carers professional.’

Standard 2

‘Communicate appropriately and effectively…

2.1 You must be polite and considerate.

Work with Colleagues

2.5 You must work in partnership with Colleagues, sharing your skills, knowledge, and experience where appropriate, for the benefit of service users and carers.’

Standard 6

‘Identify and minimise risk…

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.’

115. The Panel considered that the Registrant had also breached certain of the Standards set out in the HCPC’s Standards of Proficiency for Biomedical scientists which were in force until 1 September 2023. The Panel considered that the following of the then Standards were engaged:

‘1. be able to practise safely and effectively within their scope of practice…

8.2 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others…

9.1 be able to work, where appropriate, in partnership with service users, other professionals, support staff and others

9.2 understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team…

9.4 be able to contribute effectively to work undertaken as part of a multi-disciplinary team…

15.1 understand the need to establish and maintain a safe practice environment’.

Decision on Impairment

116. In reaching its decision on impairment, the Panel has considered the submissions of Ms Bass for the HCPC and has had regard to the Registrant’s defence document, and to the HCPC practice note Finding that Fitness to Practise is Impaired. The Panel recognised that a decision on impairment is one of judgement and impression which is guided by its evaluation of the evidence but does not require additional evidence. The Panel accepted the Legal Assessor’s advice. The Panel understood that the focus of its decision was on the Registrant’s fitness to practise as at today’s date.

Personal Component

117. In relation to the personal component, the Panel has considered whether the Registrant’s misconduct has put patients at unwarranted risk of harm and whether, looking forward, the Registrant is liable to put patients at unwarranted risk of harm. In reaching its conclusion on these matters, the Panel has considered the available evidence of insight, remorse, reflection, and the likelihood of any repetition of the misconduct involved in this case. Assaulting a colleague in a laboratory is conduct that would not easily be remediated. However, in the Panel’s judgement, it was possible to do so by demonstrating that it had been remedied by sincere and insightful reflection coupled with appropriate training. In this way it might be shown to be highly unlikely to reoccur. The Panel considered the three questions posed in the case of Cohen v General Medical Council [2008] EWHC 581 (Admin), namely:

i. is the conduct easily remediable;

ii. had it in fact been remedied; and

iii. finally is it highly unlikely to be repeated in the future.

118. The Panel noted that the Registrant expressed remorse for the language that he used in the incidents of 11 April 2021. He did not however express any remorse for being responsible for throwing Colleague A to the ground and pinning him there having gripped his head in a headlock. The Registrant had denied being the aggressor but still could have acknowledged the seriousness of participating in a violent incident in the laboratory. The Registrant did not provide any reflection in which he explained his understanding of the impact that his actions had on patient and colleague safety, on the risks of diminishment of the reputation of the profession in the eyes of the public, nor on the need to declare and uphold proper standards of conduct for the profession.

119. The Panel was not supplied with any material which supported any specialist training or anger management courses which would serve to reassure the Panel and the public that the Registrant had learned from, and would never repeat, his past failings. On one view, the trivial way that the Registrant had responded to the email giving advance warning of the hearing listing suggested a hardening of his inability to appreciate the impact and consequences of his misconduct. It was possible for the Registrant to have demonstrated that he had learned from his past misconduct and had taken the necessary steps to demonstrate remediation and a reduction in the risks of any repetition. The Registrant had not informed the Panel whether he remained in practice and whether he had gained the trust and confidence of his professional peers in a different setting by furnishing testimonials.

120. In all of these circumstances, the Panel concluded that there was a real risk of a repetition by the Registrant of his misconduct. Were that to occur, the already serious harm to the safety of colleagues and patients impacted by the delays and disruption in service would be further harmed. There was a risk that the reputation of the profession would be further diminished. The Panel is satisfied that the Registrant has shown no insight into his misconduct. Neither has he accepted responsibility for his misconduct in any meaningful and material way, despite his simple and unamplified acceptance of using ill-chosen words.

121. In these circumstances, the Panel has concluded that the Registrant’s fitness to practise is impaired on the personal component.

Public Component

122. In relation to the public component, the Panel considered the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74 of the case, the High Court reiterated what was said by Mrs Justice Cox in the 5th Shipman Report:

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.

123. In paragraph 76 of the judgement the court quoted with approval Dame Janet Smith’s formulation of the test for impairment:

‘Do our findings of fact in respect of the [registered person’s] misconduct, … show that his/her/their fitness to practise is impaired in the sense that s/he/they:

a) …

b) has in the past brought and/or is liable in the future to bring the [relevant] profession into disrepute; and/or

c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession…’

124. The Panel considered that limbs b) and c) of the test are engaged. The Registrant’s conduct had clearly breached the fundamental tenets of the Biomedical scientist profession and also brought its reputation into disrepute. In the Panel’s view, the public would be appalled to learn that any panel had not made a finding of current impairment on the public component element and would demand that such a finding be made.

125. The fact that the misconduct had occurred in a laboratory where serious and important work was being undertaken on behalf of patients reinforced the impression that such a finding was unavoidable in this case.

126. The Panel accepted the submissions of the HCPC and agreed the conduct amounted to serious breaches of the HCPC Standards.

127. The Panel is satisfied that, given the Registrant’s complete absence of insight that he is responsible for violent and potentially seriously harmful conduct, public confidence in the Biomedical scientist profession would be undermined if there was no finding of impairment in this case. The Panel is also satisfied that it would be failing in its duty to declare and uphold proper Standards of conduct and behaviour in that profession if it did not find impairment in this case.

128. The Panel therefore finds, on the public component, that the Registrant’s fitness to practise is impaired.

129. Accordingly, the Panel finds, on both the personal and public component grounds, that the Registrant’s fitness to practise is impaired and that the allegation is well founded.

Decision on Sanction

130. In considering the appropriate and proportionate sanction in this case, the Panel considered the guidance set out in the HCPC Sanctions Policy last updated in March 2019. The Panel took into account the submissions by Ms Bass on behalf of the HCPC.

131. Ms Bass did not ask for a particular sanction to be imposed. However, she invited the Panel to consider the prominence that the Policy gives to violence as a serious matter.

132. The Panel accepted the Legal Assessor’s advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the registrant, although it may have that effect, but it is to protect the public including colleagues and patients, to maintain confidence in the Biomedical scientist profession, and to uphold its standards of conduct and behaviour. The Panel also held in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the misconduct involved. Any sanction must command the respect and confidence of the public in the Panel’s willingness to uphold the statutory objective of the HCPC. Any sanction however must always be the least restrictive but equally effective alternative to fully protect the public.

133. The Panel considered mitigating and aggravating factors. The Panel first looked at the mitigating factors under the headings of:
• Insight;
• Remorse;
• Apology; and
• Remediation.

134. The Panel considered that the Registrant had shown some insight and expressed remorse although that was limited to the language used by him. He did not, as might have been expected of a Biomedical scientist, show any degree of insight into the appalling and deplorable violence displayed by him and the potential consequences for Colleague A had things ended differently following his abrupt contact with the floor. The situation was fraught with hazard for Colleague A who could have been catastrophically injured. The Registrant says nothing about this at all. If the Registrant had ever contemplated the situation of fear that he placed Colleague B in, and wished to express his remorse and commitment to never do anything like it again, he did not share it with the Panel.

135. In these circumstances, the Panel was able to find only very limited insight and apology. There was no material before the Panel that could be described as remediation by the Registrant. The Registrant’s most recent off-hand communication in dismissing the HCPC’s invitation to participate in the hearing is the nearest that the Panel has to any measure of understanding that the Registrant has in regard to the importance of this matter. That communication did not reflect well on the Registrant in considering what positive response he had made towards ensuring no repeat of this matter.

136. The Panel then looked at the aggravating factors under the headings:
• Repetition of concerns/pattern of unacceptable behaviour;
• Lack of insight, remorse, or apology;
• Lack of remediation;
• Service user harm/potential service user harm.

137. The Panel considered the potential harm to patients to be an aggravating factor in this case. The work of the laboratory was brought to an immediate complete halt as a consequence of the Registrant’s actions. When work resumed, it was not in an atmosphere conducive to careful and methodical testing, reporting, and sharing of concerns between colleagues.

138. The Panel could not be satisfied that this incident, although this appeared to be a one-off in an otherwise unblemished career, would not be repeated or become a pattern of unacceptable conduct.

139. The Panel also observed that the Policy identifies a failure to work in partnership as one of the heads of serious cases. This was also true of violence. The Panel recognised that the current HCPC Policy has adopted the passages regarding violence in response to developing its obligation to protect the public. The passages may not have appeared in an earlier Policy before the updated Standards were written coming into effect in 2023. However, the Panel accepted the Legal Assessor’s advice that this part of the process could not be regarded as similar to a sentencing process in court where the penalties to be applied are unlikely to be retrospectively applied. This process is one wholly confined to matters of public protection and can be expected to be more expansively expressed as time passes and developing decisions from the courts explain the width and scope of public protection. The Registrant is therefore not being unfairly panelised by these more recent references in the Policy being given their proper status in this matter.

140. The Panel considered the available sanctions in ascending order of seriousness. It decided that to take no action or to impose a caution order, in this case, would not be appropriate or proportionate given the seriousness of the misconduct concerned, which involved not only the potential for harm to patients but direct harm caused to two professional colleagues. The misconduct was an isolated incident but in no way could it be described as relatively minor in nature. The opposite is true.

141. The Panel has been unable to find that there is no risk of repetition. This is not because it considers the Registrant to be incapable of remediation. Rather it is because of the troubling disregard for the possibility of remediation shown by the Registrant that he expressed in his decision not to participate in this process. There was no recognition by him of the degree of harm caused. Nor was there an appreciation of the measures necessary to begin to remediate that, including any courses in anger management that would help to protect colleagues in future and to reassure the Panel and the wider public. The Panel had no such information or reassurance.

142. The Panel considered but rejected as not being appropriate, the possibility of a conditions of practice being imposed. These were matters of attitude and disposition, not clinical failures where conditions of practice are more meaningful. In any event, the Registrant has demonstrated an unwillingness to cooperate with conditions of practice, having stated that he had left the profession “…years ago”. The Panel took into account that the Policy provides that a conditions of practice order is likely to be appropriate in cases where:

‘(a) the registrant has insight;

(b) the failure or deficiency is capable of being remedied;

(c) there are no persistent or general failures which would prevent the registrant from remediating;

(d) appropriate, proportionate, realistic, and verifiable conditions can be formulated;

(e) the Panel is confident the registrant will comply with the conditions;

(f) a reviewing Panel will be able to determine whether or not those conditions have or are being met;

(g) the registrant does not pose a risk of harm by being in restricted practice.’

143. For the reasons set out above, the Panel did not consider that a conditions of practice order was appropriate and would protect the public, including professional colleagues at work.

144. The Panel then considered whether a suspension order was appropriate and proportionate. The Panel recognised that there is no evidence of any persistent or general failures which would prevent the Registrant from remedying his misconduct. A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

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

• the registrant has insight;

• the issues are unlikely to be repeated; and

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

145. The Panel concluded that this violent and offensive conduct was a serious breach of the Standards. There is no information before it that would satisfy any of the conditions that would permit a suspension order to be a meaningful and purposeful sanction in this case. In particular, without evidence of insight and a commitment to work with sanctions in order to achieve a restoration of his previous good standing and trust, the Panel could not be satisfied that the issues were unlikely to be repeated.

146. The Panel then considered the sanction of last resort, a striking-off order. A striking-off order would remove the Registrant’s name from the Register and would prohibit the Registrant from practising their profession. Striking-off is a long-term sanction as illustrated by the effects of Article 33(2) of the Health and Care Professions Order which provides that, unless new evidence comes to light, a person may not apply for restoration to the Register within five years of the date of a striking off order being made, and panels do not have the power to vary that restriction.

147. The Policy observes that a striking-off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving failure to work in partnership and violence which is emphasised at paragraph 93 of the Policy.

Registrants have a duty to ensure that their conduct justifies the public’s trust and confidence in them and their profession… Where a registrant has exhibited violent behaviour, this is highly likely to affect the public’s confidence in their profession and pose a risk to the public. In these cases, a more serious sanction may be warranted.

148. After careful consideration, the Panel concluded that a striking off order was appropriate because the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public. This includes not just protecting colleagues at work and patient wellbeing, important though that is. It extends also to maintaining public confidence in the profession, and public confidence in the regulatory process.

149. The Panel understood that a striking-off order has the potential to have a significant impact on a Registrant. The decision was not arrived at lightly. However, for the reasons expanded on above. The Panel considered that it would be failing in its duty not to impose a striking off order in the whole circumstances of this case.

ORDER: That the Registrar is directed to strike the name of Mr Benart Berisha from the Register on the date this order comes into effect.

Interim Order

1. Ms Bass on behalf of the HCPC applied for an interim order. She submitted that an interim order is necessary in line with the findings of the Panel because the Striking-Off Order made today does not take effect for at least 28 days until the end of the appeal period. Ms Bass submitted that an interim order is necessary on the grounds of public protection and the wider public interest, due to the serious nature of the findings made. She submitted that the appropriate order was an interim suspension order and that the interim order would safeguard the public and the wider public interest from the risk of repetition which the Panel has found remains. Ms Bass submitted that the interim suspension order should be made for 18 months to cover the appeal period.

2. The Panel accepted the Legal Assessor’s advice that the Panel should be satisfied that the Registrant had been provided with notice of the application in relation to an interim order. In relation to the Interim Order application, the Panel must decide whether an Interim Order is necessary under Article 31 of the Order to protect the public, is in the public interest or is in the Registrant’s own interest, because of the nature of the findings made in this case.

3. The Panel had regard 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 Panel should take into account the HCPTS guidance note on Interim Orders last updated in June 2022.

Panel Decision

4. The Panel was satisfied that the Registrant had been informed by the HCPC that at the end of this hearing the Panel could give consideration to the issue of imposing an interim order. Such consideration arose in the event of the Panel having determined that a conditions of practice, suspension, or strike-off order was the appropriate and proportionate restriction. That information had been included within the letter of Notice of Hearing sent to the Registrant in advance of this substantive final hearing.

5. After considering the HCPTS Practice Note on Interim Orders, the Panel decided that an interim order was necessary to protect the public. There is a risk that the Registrant may return to practice if an interim order is not immediately in place. The Panel decided that an interim order was necessary taking into account the need to protect the public and the public interest, for the reasons set out in the Panel’s decision above, due to the nature and seriousness of the findings of misconduct made against the Registrant and the unmitigated risk of repetition.

6. Taking into account the Panel’s findings, including that the misconduct was attitudinal in nature, an interim conditions of practice order would not be sufficient to protect the public. The Panel therefore concluded that the appropriate Interim Order was one of Suspension. The Panel concluded that the appropriate length of the Interim Suspension Order would be 18 months, as an interim order would continue to be required pending the resolution of an appeal, in the event of the Registrant giving notice of an appeal within 28 days.

7. The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

8. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Benart Berisha

Date	Panel	Hearing type	Outcomes / Status
15/04/2024	Conduct and Competence Committee	Final Hearing	Struck off