Paul Ar Mginah

Preliminary Matters

Adjournment application made by the Registrant

1. At the start of the hearing the Registrant made an application to adjourn the hearing. His application was made on the basis that he was unable to proceed his defence without information that is held by the Whittington Trust. The documents identified by the Registrant as being relevant were: Health and Safety related documents, Quality Control logs, and Procurement Orders.

2. The Registrant also stated the steps he had taken in an attempt to obtain representation. He did not state when he had taken those steps to obtain legal support and there was no supporting documentation.

3. The HCPC provided the Panel with a copy of a previous determination by a panel of the Conduct and Competence Committee sitting as a final hearing panel on 25 July 2023.

4. The HCPC objected to this application on a variety of bases:

• The Panel’s attention was drawn to the terms of the previous final hearing determination on 25 July 2023 at which the Registrant had been granted an adjournment. The terms of the Directions which had been issued at that hearing were read out. Those Directions had set out a strict timetable for production of documentation by the Registrant, and a timeline for both parties to adhere to, leading to a final hearing that was to take place no later than a date in November 2023. None of those deadlines had been met by the Registrant.

• The Panel’s attention was also taken to the measures which the HCPC and the various exchanges of communication between the parties. Those had been set out at length within the July 2023 determination in paragraphs 4 to 41.

• The HCPC maintained that the Registrant had been given many opportunities to identify and request copies of documentations. The HCPC had written to the Registrant on several occasions requesting details of documentation on which the Registrant wished to rely and which he was seeking from his former employer. The most recent communication to the Registrant on 14 February 2024, stated, amongst other things:

‘If you can please keep us updated regarding any representation you secure.
Regarding your second point about documentation, you have mentioned that you have been trying to get documentation from the Whittington. Can you please let us know who you have contacted, what you have requested and what the response has been. It would also be helpful to know why you want this documentation and how it is relevant to your case.
Further we have previously sent you the HCPC hearing bundle both by post and electronically. Can you confirm that you have accessed or received this?’

• The Panel’s attention was then taken to the response the Registrant had sent in reply on 15 February 2024 which did not deal with the specific requests for information about which documents the Registrant was seeking to obtain from the Whittington.

• Further, there is no evidence of the steps taken by the Registrant to obtain the documentation on which he seeks to rely or of his steps to obtain legal representation.

• The Panel should note that since July 2023 the Registrant is no further forward in preparing his case and it is likely that a further adjournment will not produce a different situation at a future date.

• The HCPC had two witnesses ready to give evidence in July 2023 and they had to be stood down. Those same two witnesses are ready to attend this hearing. A further adjournment will cause them further inconvenience and will further affect their ability to recall the detail of events which are now over six years old.

• The HCPC took the Panel to the cases of R v Jones 1AC1 HL and CPS v Picton [2006] EWHC 1108 (Admin). The HCPC submitted to the Panel, that having failed to comply with all of the deadlines set out in the previous Directions the basis for an adjournment, as identified in the case of Jones, remained applicable. Further, in relation to the principles identified in Picton, the fact that this is a further request for an adjournment on the same basis as a previous one supported the position that there should not, in the public interest, be any further delay in progressing this matter.

5. The Legal Assessor confirmed the application of the law in the two cases noted within the HCPC’s representations. She drew the Panel’s attention to the steps which the HCPC’s solicitors had taken to ensure that the Registrant was able to obtain the documentation the Registrant’s stated he required in support of his case. In this regard she drew the Panel’s attention to a further case of NMC v Johnson and Maggs [2013] EWHC 2140 (Admin) in which it was established that there was no duty for a regulator to obtain and provide documentation on behalf of a registrant. The Panel however does, should it consider that any additional documentation was relevant to the matters being considered have the ability to issue a Production Order.

6. The Panel took into account the guidance issued by the HCPTS and took into account the advice given and presentations made.

7. The Panel appreciated that it was difficult for an unrepresented registrant to collate information for a hearing, however there were sources available to him such as those within the HCPTS website. Further, it is not uncommon for an unrepresented registrant to appear before this Tribunal. In such instances the Panel had a duty to ensure a fair and balanced hearing and, in such instances, undertook more of an investigatory role.

8. It was unclear to this Panel what more could have been done on behalf of the Registrant in the absence of specific information from him relating to documentation and contacts made. The Panel had no evidence of the progress that had been made by the Registrant in the last six months in readying his case and had nothing to indicate that there would be progress should there be a further adjournment.

9. The Panel noted the impact that further delay would have upon the HCPC and its witnesses. It considered that it was in the public interest that there was no further delay in progressing this matter at this time. In making that decision the Panel accepted that it could at any time during the hearing obtain further documentation if it were clearly demonstrated that those documents were crucial to the issues it was considering. The application for an adjournment was therefore refused.

Admissibility of hearsay evidence

10. The HCPC made an application to admit the statement of CB as hearsay. The HCPC outlined the approach the Panel should take to this issue by referencing the seven principles established in the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin). The HCPC also referenced the case of Mansaray v NMC [2023] EWHC 730 (Admin), where the ‘Thorneycroft’ principles had been considered. The HCPC stated that this witness production statement met all of the seven criteria set out in Thorneycroft case and that accordingly it should be admitted.

11. The Registrant did not oppose this application to admit the statement of CB and adduce the three exhibits numbered 10, 15 and 16.

12. The Legal Assessor drew attention to the fact that these exhibited documents and the production statement had been produced in January 2023. That statement and documentation had been included within this Panel’s final hearing bundle and indeed within the documentation that had been before two previous Conduct and Competence panels. At both of those pervious hearings the issue of admissibility of hearsay could have been addressed.

13. The issue of inclusion of hearsay within a bundle presented to a panel had been considered in the case of Mansara. There was a judicial observation that inclusion within the information placed before a fitness to practise committee before consideration of its status was a ‘procedural irregularity’. For the HCPC to make an application now, when the documentation has already been read, made the Panel’s consideration of this application an administrative one.

14. The Panel noted the Legal Assessor’s observations. It took into account the fact that this Panel did have the power to admit hearsay evidence and in so doing would give it appropriate weight. The Panel therefore approved the application.

Further amendment of the Allegation made by the Panel

15. During the Panel’s deliberations of the issue of whether the statutory grounds have been made out, the Panel gave further consideration to the wording of the Allegation. It noted that within the stem of the Allegation the wording referenced ‘…your fitness to practise is impaired by reason of misconduct and/or lack of competence.’ That wording was not reflected within the terms of Particular 10, which had been restricted to the lack of competence.

16. The Panel sought legal advice as to whether it had the power to make an alteration to the wording of Particular 10 to read at the end ‘…misconduct and/or lack of competence’.

17. The Legal Assessor advised the Panel and repeated in open session in from of the parties her advice. Her advice was that there is no statutory power to amend, however the Panel was able to rely upon the case of PSA v HCPC and Doree [2017] EWCA Civ 319. In that decision the Court recognised that a regulatory panel is entitled to make necessary amendments to the allegations before it, to avoid undercharging, and there may be circumstances where a late amendment of the allegations faced by a registrant will be justified, even after the evidence has been heard and findings of fact have been made.

18. The Legal Assessor advised that the Panel should take into account and balance the interests of the public, as well as those of the parties, when making its decision, for as stated in the Doree case, a panel should be aware of the public interest in there being no undercharging.

19. The Parties were invited to provide their views on this proposed amendment. The HCPC had no objections to the proposal. The Panel appreciated that the Registrant was at a disadvantage in making a decision on this technical point being unrepresented. The Legal Assessor, in the presence of the Hearings and Presenting Officers, explained the process which the Panel was seeking to take by amending Particular 10. In open session the Registrant said that he has always been competent and whilst he didn’t want anything that would be ‘negative’ to his interests he was prepared for the Panel to make a decision on this issue.

20. The Panel gave this matter serious consideration. It took into account all the evidence it had before it and came to the decision that this amendment better reflected the evidence before it. The Panel concluded that the public interest in ensuring that there is no under prosecution outweighed any unfairness to the Registrant in this instance.

Background

21. The Registrant is a Biomedical Scientist who was employed by Whittington Trust since 24 May 2004, some seventeen years before the events and subject of the Allegation. He has been a Band 7, and at the time of the events set out in the Allegation working in a Band 5 capacity.

22. Concerns relating to the Registrant’s abilities had been identified previous to the events which led to the referral to the HCPC in March 2019. The first incident that had been noted and referred to the HCPC took place in December 2017 with further incidents occurring in the period up to July 2018. The concerns set out in the Allegation relate to clinical duties that are said to have been incorrectly performed by the Registrant during this period.

23. The Registrant had been made the subject of a ‘Performance Objectives for re-introduction to routine duties’ programme from September 2017. During the period of this programme clinical failings occurred. When those performance objectives had not been met and signed off the Registrant was placed into an Informal Capability Management programme from approximately 22 February 2018 until 03 April 2018 when he became the subject of a Formal Capability Management review.

24. Those clinical failings identified include sending incorrect tissue from different patients externally and mislabelling samples for lung cores and liver cores. Immuno requests were sent to the wrong laboratory and the Registrant had twice requested the same immuno test to be carried out. The Registrant is also alleged to have cut an incorrect block; provided incorrect advice as to freezing fresh tissue; and failed to run a control test on a machine after replacing reagents within it.

Evidence and submissions at the fact finding stage

25. Evidence before the Panel consisted of an HCPC hearing bundle, and a correspondence bundle. The documentation included copies of the Registrant’s Performance appraisal and development plan, notes of Informal and Formal Performance Reviews and the Trust Capability Management Report.

26. The two HCPC live witnesses were the Registrant’s immediate line manager and that manager’s senior neither of whom now worked for the Trust. Both gave evidence consistent with their sworn statements. The Registrant’s line manager had produced the Trust’s Capability Management Report.

27. The HCPC submitted that it had successfully discharged the burden of proof at this stage and drew the Panel’s attention to the relevant documentation that supported the factual particulars. It maintained that the two witnesses had been credible, reliable and consistent witnesses who had been open about their limited recall at this distance from the events.

28. The HCPC drew the Panel’s attention to the Registrant confirming his admission to particular 8, which he had made during his cross examination of a HCPC witness.

Decision on Facts

29. The Panel received advice from the Legal Assessor on the approach to be adopted at this fact-finding stage. She confirmed that the burden of proof lay with the HCPC to prove each and every particular of the Allegation and the Registrant does not have to prove or disprove anything. The burden of proof was to the civil standard of balance of probabilities.

Particulars 1 and 2 - not proven to the requisite standard

30. The evidence presented to support these two particulars derive from documentation produced with the fourth Performance Objectives review undertaken on 22 December 2018. As stated by the line manager in her sworn statement, as this review was before the fuller notation undertaken as part of the Informal Capability Management reviews there is less recorded detail of her discussions with the Registrant. She was reliant upon her recollection of events for these two allegations.

31. The Panel had before it one page upon which are photographs of three slides and two illegibly small screenshots attached to an email. This email was one of the two received from two different external organisations that had identified anomalies within samples sent to them.

32. The three slides featured on the independent sheet relate to the same incident. This is supported by the references set out at the top of the slides which correlate with an email received from one of the external organisations.

33. Within the line manager’s sworn statement, she states her assumption as to how this error may have occurred. The Panel determined there is no direct evidence to support this assumption.

34. Within her witness statement the Registrant’s line manager references the source of the information for these two incidents as a colleague. In her sworn statement, and also in her oral evidence, she was unable to recall who this colleague was. In her statement she states that she spoke to the Registrant about these incidents but cannot remember in what terms.

35. The evidence for the fact of how these errors occurred, and who was responsible is not clear. There is no evidence before this Panel to connect these erroneous slides with the Registrant. None of the questioning of his line manager by the Panel at the hearing elicited this evidence of the Registrant being the person responsible for the errors. The reference to these two incidents within the Trust’s Capability Management Report gives no further helpful detail of these two incidents.

36. For these reasons the Panel considers that the HCPC evidence has not reached the requisite threshold and so finds these two particulars not proven.

Particular 3 - proven

37. The Panel had evidence of this incident from three sources. The Trust’s Capability Management Report and the Registrant’s line manager’s sworn statement reference this incident and how it occurred. In her live evidence the line manager confirmed that she had personally observed the Registrant’s failure to carry out a control run after reversing the positioning of the two reagents. This control run was required to ensure that the machine was working properly.

38. The Panel accepts this first-hand evidence of the Registrant’s oversight in not carrying out a test run and find this particular proven.

Particular 4 – not proven to the requisite standard

39. The Panel has a copy of an email from the Royal Free Hospital London in which it states:

‘Hi, we’ve received an H&E plus four unstained sections and a UCL AD form – I assume this should have gone over to the UCL AD rather than here with the other HER2s?’

40. This email was forwarded to the Registrant’s line manager for information after arrangements had been put in place for the Royal Free to forward the samples and attached form to UCL.

41. The Panel noted that the documentation provided as part of the evidence for this allegation is of a very poor quality and in places faint and indistinct. Those pages are those taken from the IHC book where it is alleged that the Registrant has recorded a ‘squiggle’. The Panel has not been able to identify this ‘squiggle’ on this page.

42. Further the confirmation that this ‘squiggle’ had been made or could have been made by the Registrant comes from a further unidentified source. The evidence of the witness is that she did speak with the Registrant over this issue, but she cannot recall how he responded.

43. There is therefore no direct evidence as to whether this ‘squiggle’ had been made by the Registrant or another individual. This being the case, the Panel has concluded that the evidence has not reached the requisite standard and so is not proven.

Particular 5 – Not proven to the requisite standard

44. The Panel notes that a Mortician/Mortuary Manager, who was named by the witness, reportedly told her that he had been directed by the Registrant to freeze the sample. There is, however, no direct evidence from this individual. Additionally, there is no evidence of this matter having been directly raised with the Registrant. 

45. The evidence for this incident is dependent upon the recollection of the Registrant’s line manager. In her sworn statement she states that she had been informed by the mortician/mortuary Manager however in her oral evidence the line manager confirmed that at this distance from events she was now not sure where, when and from whom she had learnt of the detail of this incident speculating at one point that she may have overheard someone in the corridor discussing it.

46. The Trusts Capability Management Report does not refer to any other source of corroborating evidence.

47. Based on this evidence the Panel has concluded that the HCPC has not discharged the burden of evidence and so find this particular not proven.

Particular 6 - proven

48. The Trust’s Capability Management Report provides clear detail of this incident where communication had contributed to the series of events that involved the Trust in extra expense and a one-day delay in staining samples.

49. The Registrant’s line manager had been personally involved in this incident and was able to provide the Panel in her live evidence with details of verbal exchanges with the Registrant and his subsequent actions.

50. The series of events that followed, including the calling of an engineer, could have been avoided if the Registrant had checked the readings, something which is required to be done regularly to ensure a safe working environment within the laboratory. The witness explained that this should form part of their initial troubleshooting.

51. Given this clear evidence of events the Panel find this particular proven.

Particular 7 – proven

52. The Registrant’s line manager had produced to the Panel an email sent to her dated 4 July 2018 from a doctor who had been requested by the Registrant to sign two forms for the same test. This did not have patient safety implications, but these specialised tests are expensive and there are financial implications from this duplication.

53. In the Trust’s Capability Management Report the line manager records that the Registrant’s account differed from that of the doctor and another member of staff who was also present at the time of one of the requests for a signature. The Registrant had at that time denied that he was responsible for the error.

54. In relation to the reference book the Panel noted the following from the line manager’s sworn statement:

‘the Trust is unable to locate the IHC request book from that period the only documentation they can provide is a copy of the entry in said book which we have attempted to make clearer evidenced at Exhibit 4.’

The copy of that page before this Panel is illegible. The Panel however has copies of the IHC form and the Patient Request form which support the information supplied by the doctor in her email to the line manager.

55. Based on the evidence before this Panel, the Panel has concluded that it is able to find this Particular proven to the requisite standard.

Particular 8 - proven

56. The Panel was informed by both HCPC witnesses that the Registrant was responsible for Health and Safety issues. Undertaking the reading of formalin levels is a legal requirement.

57. The Registrant during his cross examination of the two HCPC witnesses accepted that this was part of his remit as Health and Safety officer and acknowledged and accepted that he had not undertaken these readings.

58. The Panel had copies of the formalin monitoring log which showed that from 26 March 2018 to the 15 June 2018 no readings had been recorded.

59. Upon the evidence of the line manager, the supporting documentation, and the Registrant’s admission, the Panel find this Particular proven.

Submissions on the Statutory Grounds

60. The HCPC submitted that the incidents found proven supported a finding of lack of competence in relation to Particulars 3, 6 and 7. In relation to Particular 8, the ground of misconduct had been made out. The HCPC directed the Panel to the relevant case law applicable to the two issues of lack of competence and misconduct.

61. The HCPC referred the Panel to the Standards of Proficiency for Biomedical Scientists, and Standards of Conduct, Performance and Ethics. In relation to the Standards of Proficiency, the 2014 edition was the relevant set for these proceedings. The HCPC directed the Panel to those sections of the two sets of HCPC Standards which it considered were engaged in this case.

62. The HCPC highlighted that safety was at the heart of all the issues before the Panel. Further, in relation to Particular 8 it was a statutory duty to ensure that the level of formalin remained within a safe range. The Registrant had failed to check and record this over a considerable period of time thereby exposing colleagues to an unnecessary risk to their health.

63. The Panel was reminded that there was a history of poor performance and the matters found proven in relation to particulars 3, 6 and 7 demonstrated that lack of competency.

64. The Registrant addressed the Panel and stated that he was not lacking in any aspect of his knowledge or performance. He maintained his knowledge through CPD and had obtained the highest score in the country for Hepatitis NEQAS. He stated that he was known for his expertise in staining and was a good troubleshooter. He had developed his practice over the years and had a structured approach to developing standards and procedures. He told the Panel that he used as a starting point regulations issues by Brussels and thereafter developed those into standards of performance for practitioners.

65. The Registrant stated that anyone can make mistakes, and that the errors before this Panel were not sufficient for him to have been hounded out of his job. He had been a ‘victim’ and could not understand what it was that he had done to warrant this treatment and be here before his regulator. The Registrant stated that he had worked within a hostile environment and had been subjected to extraordinary pressures.

66. The Registrant maintained that the matters raised against him were ‘all lies’. The Panel noted however that during his submissions the Registrant had made admissions and had stated that his actions were ‘mistakes’.

67. In relation to Particular 3, the Registrant told the Panel that he understood how this machine worked and he was able to ‘troubleshoot’ the problem. He stated that having found the problem, one that had not immediately been obvious, he had switched the reagents and was confident this was the resolution of the problem. The Registrant had ‘assumed’ that this was the matter sorted and so had not undertaken a third control run.

68. In relation to Particular 7, the Registrant had stated that the whole situation was ‘100% the fault of the doctor’. He maintained that the consultants at the hospital did not want to work with him and wanted to get rid of him.

69. In relation to Particular 8 the Registrant submitted that the lack of recording of the formalin had not been ‘a risk’, he did not have a ‘probe’ which was required for the task and that ‘he knew how to handle the situation’ and he could, for instance, ‘open the windows’.

Decision on Grounds

70. The Panel was advised that it should refer to the guidance issued by the HCPTS, and consider each matter against the standards which are expected of a registered autonomous Biomedical Scientist. At this stage it is a matter for the judgment of the Panel as to whether the Registrant’s actions fall below that expected of such an autonomous practitioner. The Legal Assessor also advised that the misconduct must be serious to be considered sufficient to warrant a mark of censure.

71. The Panel was also advised that there is a distinction to be drawn between an allegation of lack of competence and that of misconduct. Lack of competence required a sufficiently large sample of a practitioner’s work to support such a finding, and competence generally arose from a lack of knowledge or understanding of what is required to be done. A registrant’s acts and omissions are considered to be misconduct where a practitioner knows what should be done, but through negligence, intent or recklessness, fails to do so.

72. The Panel noted that within the Allegation there had been seven incidents of lack of competence recorded over a period of seven months. The Panel also noted that the Registrant had many years of experience and that he had been recorded as working well within a more senior role at some point in the past. The Registrant had, according to the Trust’s Capability Management Report, been on reduced duties for a period three years and in that capacity had not been undertaking tasks which a qualified registered Biomedical Scientist would have been expected to carry out on a daily basis. At the time of being reintroduced to a wider range of tasks and duties there were concerns about his forgetfulness, his lack of focus, his ability to transpose numbers and sequence tasks. [Redacted]. It appears to this Panel that the issues before it do not derive from a lack of knowledge but may arise from lack of capacity, at that time, to identify and carry out the right processes.

73. To assist it with its task the Panel referred to the Standards published by the HCPC. Whilst the Panel appreciated that breach of those standards would not automatically establish a finding of lack of competence or misconduct. The sections identified by the Panel as being relevant are as follows:

Standards of proficiency for a Biomedical Scientist (2014 edition)

2 be able to practise within the legal and ethical boundaries of their profession.

3 be able to maintain fitness to practise.

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.

14.4 be able to operate and utilise specialist equipment according to their discipline.

14.5 be able to validate scientific and technical data and observations according to pre-determined quality standards.

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

15.1 understand the need to maintain the safety of both service users and those involved in their care.

Standards of Conduct Performance and Ethics (2016 edition)

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.

2.6 You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.

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

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.

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

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

10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.

74. In relation to Particular 3, the Panel noted that the Registrant had admitted that he knew how to work this machine and was the right person to troubleshoot the problem. The panel noted that the Registrant had run two control tests during the period he was ‘troubleshooting’ the problem. The Registrant had considered it appropriate to undertake this standard practice on those two previous occasions that day.

75. The Registrant in his submissions to this Panel accepted that he should have run another control test. The Panel notes that at the time he had disagreed with his line manager that this process was required.

76. It is good practice to undertake a further control run, however once the Registrant had identified what he considered to be the final resolution of the problem he had consciously and intentionally chosen not to run a third control test. This in the Panel’s view was not lack of competence but fell beyond the threshold and into misconduct.

77. The result of this decision had an impact. As the line manager recorded in her sworn statement:

‘As a consequence of this all the test slides that were stained on the machine that morning had to be de-stained and then re-stained in order for the cases to be reported. This resulted in a whole day in which the locum pathologist had nothing to do as she was unable to report any cases as no work was available. This incident caused an additional one-day delay in getting the cases reported.

I cannot say that the Registrant did not know what to do. By this point he had been in this role for several years. Without a control [run] you cannot be sure if a staining procedure is working. Controls are standard and routine and a fundamental part of histology staining procedure.’

78. This decision not to run a third control test and the impact this had on his colleagues and patients does, in the Panel’s view, make this a matter of serious misconduct.

79. In relation to Particular 6, the Registrant may not have been called upon to identify problems with this machine regularly, but he would be expected to know how it worked and how to identify issues with its proper working. In this instance the fault light was on and there was a beeping sound coming from the system. In such circumstances a check of the airflow readings was appropriate to ensure that staff members were not being overexposed to any harmful chemicals.

80. As a senior Biomedical Scientist, it should have been within the Registrant’s knowledge and skill to identify, and if appropriate fix, the issue and if not to identify the possible areas of concerns for an engineer. As a starting point of that process of diagnostics, the Registrant should have taken an airflow reading to see if the fan was working but failed to do so. There is evidence of a chain of communications which had been misinterpreted and relayed incorrectly. The Registrant was at the heart of this chain of events which all arose from the Registrant’s poor communication ability at that time. It resulted in a day’s delay and the cost of an unnecessary call out by an engineer. This in the Panel’s view was not lack of competence but fell beyond the threshold and into misconduct.

81. In relation to Particular 7, the Panel noted that it is still the Registrant’s view that this incident was the fault of the doctor. The Panel has had the benefit of seeing the email from the doctor in which she sets out the facts. The Panel has also had the benefit of seeing an email from a colleague who witnessed the exchange between the Registrant and the doctor. These support the position that the Registrant had insisted that the doctor was wrong and the samples, the second set, had to be processed.

82. Had the Registrant, at that time, maintained robust and consistent processes this incident would not have occurred. When the doctor pointed out that this sample had already been sent for processing, the Registrant had resisted this suggestion and had insisted that she sign it. The sample was therefore processed twice, and the doctor was interrupted on two separate occasions with the administration of this double processing. The Registrant was incapable of accepting that he was at fault and had already processed this particular request. This in the Panel’s view was not due to a lack of competence but fell beyond the threshold and into misconduct.

83. In relation to Particular 8, recorded in the Trust’s Capability Management Report is the following:

‘….recently PM has not been carrying out formalin readings since March 2018, bearing in mind that this is a weekly requirement as formalin has certain workplace exposure limits that should not be breached. Breach of these puts staff at danger of developing respiratory difficulties and other health issues. When PM was questioned about this, his response was that I had told him he no longer needs to carry out formalin readings as the calibration tube had expired and I will do it. I gave no such information as I understand the importance of ensuring these readings are carried out, as the H&S officer it is his responsibility to question decisions that goes against his knowledge or against routine practices….’

84. The Registrant was the Health and Safety Officer and should have been fully aware of how important it was for weekly recordings to be taken of these formalin levels. The information before the Panel shows that when the Registrant was recording formalin levels he was not doing so, as required, on a regular weekly basis. In this instance there is clear evidence that those readings had not been recorded. This being the case, it follows that they had not been checked.

85. As stated above, the Registrant did not consider this to be a risk and did not appreciate the potential impact of his omission to take readings as being a risk to colleagues. The basic practical steps he said he would take in the event of a build-up of those fumes gave the Panel cause for concern. Having a practical solution in the event of a disaster did not to any degree absolve him from his responsibility to take reading and ensure they were maintained within a prescribed safe range.

86. In the Panel’s view it is not just the Registrant’s omission in taking these readings over a sustained period of time, but it is his attitude to the situation he had created. In the Panel’s view the Registrant’s actions had exposed his colleagues to a real risk of harm and was very serious misconduct.

Submissions on current impairment

87. The HCPC submitted that in the absence of any information relating to steps taken by the Registrant to address his previous failings, the Registrant’s fitness to practise remained impaired by virtue of that misconduct.

88. The HCPC drew the Panel’s attention to the fact that the Registrant had shown at the time of the events, and at this hearing, that he has little or no insight into his actions and the impact that they had or may have had on colleagues and patients. His actions had resulted in a legal requirement to take formalin readings to be breached. His failure to do so could have resulted in serious harm to his colleagues.

89. In the HCPC’s view the Registrant has a deep-seated attitudinal problem, which may not be capable of being remedied. The Registrant has not demonstrated any remorse or regret for his failings and in the absence of any insight there is an ongoing risk of repetition.

90. The Registrant stated that he had been working as a locum Band 6 since leaving the Trust. He has been in post for ‘nearly two years’. He stated that he was very happy in his current post where everything is calm, and he is treated with respect and as a human being, and not a person of colour. In such an environment he feels comfortable and confident. He stated that ‘his mind is back’ and he again ‘feels alive’.

91. The Registrant stated that he kept his knowledge up to date and he informed the Panel that he was part of a discussion group at the British Library in London. He enjoyed being at the forefront of scientific developments and hoped one day to share that knowledge, perhaps though teaching. The Registrant considered that there was a lot he could contribute to the future, one of those being reviewing and revising the structure of how Biomedical Scientists are trained.

Decision on Impairment

92. The Panel took into account the term of the HCPTS Guidance relating to ‘Fitness to practise impairment’; the representations made by the parties; and the Legal Assessor’s advice on the approach to be taken in relation to the two elements of its decision, those of the personal and public components.

93. The Panel noted that although the Registrant had over five years to prepare for this hearing it had nothing before it to assist with establishing the Registrant’s current abilities, such as references from St Vincent’s, the University of Dublin, Ireland, for whom he currently worked and has done so for an undefined period of time.

94. The Panel noted that when addressing it at the fact-finding stage, the Registrant had stated that he retained his knowledge through the University of Manchester and with the American Association of Advancement of Science. The Panel however had no evidence before it of any courses undertaken, any course of study that supported him in retaining his registration with the HCPC, no evidence of mandatory courses, no information about, nor feedback on, his clinical performance.

95. The Panel further noted that during his submissions on impairment and the period during which he worked at the Trust, he described this as being in a ‘very stressful environment’. His account of this stressful time changed from six months, to one year, eighteen months and then to two years. The Panel noted that the Registrant had in fact spent three years on restricted duties, non-clinical duties which would not have been as onerous or stressful as his Band 7 role. During those three years he was off working on the bench and so in effect not working within the remit of a registered Biomedical Scientist. The Panel noted that DB was not his manager when he was initially placed on restricted duties.

96. [Redacted].

97. The Registrant had told the Panel at the fact-finding stage that he was reliable, competent, a good teacher and his diploma students had never failed to complete their qualification. The Panel had no evidence that the Registrant was reliable and competent. There were no professional appraisals nor any references from the Locum Agency he worked through since leaving the Trust. There was no evidence that he had prepared for the previous scheduled hearing of this case in July 2023 nor that things had been gathered in the intervening seven months for this hearing despite being given considerable assistance by the HCPC’s retained solicitors.

98. The Panel noted the submissions made by the HCPC that the Registrant had ‘deep seated attitudinal problems’. In this regard the Panel noted that throughout this hearing the Registrant has stated that he was singled out because of ‘his colour’. This appears to be at odds with the fact that the Registrant’s line manager at the relevant time appeared to be Black, Asian and Minority Ethnicity.

99. The extent to which the Registrant was being racially discriminated against, and how consultants and others were conspiring to get rid of him, had been expressed in this hearing in a way which demonstrated that his view on the past was still subjective, and nothing had occurred to change that view. There was no evidence before this Panel that the Registrant had undertaken professional reflection on those past events. There was no evidence that the Registrant had identified the role he may have had in creating that situation nor his part in the events which led to his being referred to his regulator.

100. At the fact-finding stage the Registrant had stated ‘what ever happened in the past will not happen again: not like that throughout my life’. That was the only statement made by the Registrant that resembled a reflection. The Panel has little confidence that the Registrant would not act the same way again when placed within what he considered a stressful environment. The Panel’s concerns arise first, out of the fact that the Registrant has not taken full responsibility for his role in this matter, and secondly, he has not produced any evidence of having identified, adopted and applied, suitable and effective coping strategies for such an event occurring in the future.

101. There has been no expression of remorse, regret or apology for his role in the incidents which he described as ‘mistakes’. The terms in which the Registrant has addressed the Panel at the start of this hearing demonstrated that he considered himself the victim of others’ actions and that he was the ‘innocent’ who was being ‘blamed’ for others’ failings. That position did not change during the hearing. There is no evidence to support his view on this issue.

102. The Panel has concluded that whilst the Registrant’s failings are capable of being remedied, in the absence of any steps to address those failings there is a real risk of the Registrant repeating that behaviour in the future. The Panel has therefore decided that the Registrant is currently impaired on the personal component.

103. Turning to the public component of its decision, the Panel considered the impression other Biomedical Scientists would form, should there be no finding of impairment in the circumstances of this case. Such colleagues would consider it as deplorable if the Registrant were not found impaired for matters which had put his fellow Biomedical Scientists at risk of harm.

104. The Panel also considered the impact on the public confidence in the profession of Biomedical Scientists if this practitioner were allowed to continue without some form of suitable mark of censure on his practice. The public would expect to be able to rely upon the Registrant doing his job to the requisite standard and not be in fear of mistakes taking place which could result in harm to them. The public would also look to the regulatory process to ensure that those not fit to practise are not allowed to. To make no finding on the public component in this case would undermine the public confidence in the profession and this regulatory process.

Submissions on Sanction

105. The HCPC outlined the principles which underly the role of sanctions in this regulatory process. The HCPC referred to the full range of sanctions available to the Panel in light of it having found four instances of serious misconduct. The HCPC submitted that it was a matter for the Panel to decide which is the most appropriate and proportionate sanction. The HCPC was therefore neutral on the restriction to be imposed. The HCPC suggested that the Panel may however be assisted by noting the aggravating and mitigating elements of the case which the HCPC had identified.

106. The Registrant addressed the Panel and stated that he was not impaired. He stated that he was working without cause for concern. His current role involved undertaking limited tasks within a defined section of the laboratory. He rotated weekly around the laboratory undertaking different repetitive tasks. His work was supervised, and there were the standard controls in place for checking and signing off his work.

107. The Registrant told the Panel that he is a different person now, and enjoys his work. He is working in a risk-free environment away from patients and consultants. He is not a risk and cannot make mistakes because his work is the subject of scrutiny and monitoring. The Registrant stated again that he would never find himself in the same situation as he was at the Trust. He does not have any management responsibilities and would not wish to have them again.

108. The Registrant restated his interest in taking his scientific study further and was confident that he had good clinical knowledge. He referenced again to the existence of proof that he is able to work safely and evidence of his past performance working in more supportive environments. He was sure that his former colleagues would be happy to see him back [Redacted] in this happier and stressless state of health. He referred also to the fact that his stress had been the subject of management intervention prior to him being placed on reduced duties and that there had been a variety of personal matters which had affected him at that time.

109. The Registrant emphasised that he had not appreciated that he needed to provide the information that the Panel has referred to in its determination. At this point the HCPC referred the Panel to the assistance that the Registrant had been given by the HCPC’s instructed solicitors. More specifically the Panel were referred to the Directions made in July 2023 which detailed concisely what the Registrant should be considering presenting at a future final hearing.

Further evidence

110. In the afternoon of day five, the final day of the hearing, the Registrant sought leave to admit a letter from his current place of work.

111. The HCPC objected to the admission of this piece of evidence on the basis that there had been detailed directions given on the 25 July 2023 which provided for all documentation to be provided not less than 28 days before a final hearing. Those directions were not adhered to. The HCPC also stated that the letter did not go to the issue of insight, something which is of significance in these proceedings.

112. The Panel took the advice of the Legal Assessor on this issue, and she referred the Panel to the relevant practice rule and to the wide management powers the panel had particularly in relation to admission of documentation which would ensure that a registrant had a fair hearing.

113. The Panel gave this matter consideration and decided that in fairness to an unrepresented registrant it was incumbent on it to consider all evidence relevant to its final determination and so admitted this letter from St Vincent’s.

Decision on Sanction

114. The Panel took into account those submissions. The Panel referred in detail to the guidance set out in the HCPTS Sanctions Policy. At this stage the Panel took into account the additional document that had been placed before the Panel.

115. The Panel applied the advice given to it by the Legal Assessor that it should start its consideration of the range of sanction available to it from the bottom working up until it found the most appropriate and proportionate in all the circumstances. The Panel should identify the least restrictive level of sanction that would ensure public protection. In so doing, the Panel should balance the interests of the Registrant with those of service users, colleagues and the wider public. Any sanction imposed should reflect the public interest in ensuring and maintaining the reputation of the profession and the regulatory process.

116. In undertaking its task of identifying the appropriate and proportionate restriction to place on the Registrant’s registration the Panel identified the following mitigating and aggravating factors in this case.

117. Mitigating features were:

• The Registrant had engaged, albeit at this the latest stage of the HCPC process, this hearing.

• [Redacted].

• The Panel has not been made aware of any further issues relating to his registration.

• The Registrant has a long career as a Biomedical Scientist.

• The Registrant had provided a supportive reference from his current place of work outlining his satisfactory performance within his role as a Medical Scientist.

118. Aggravating features were:

• The Registrant had failed to engage in the HCPC process until this hearing.

• The Registrant had displayed a lack of insight into the impact his acts and omissions had on service users and colleagues.

• There was a lack of remorse, regret or apology for his acts and omissions.

• There Registrant had failed to appreciate that he had clinical and professional issues with his practice.

• There had been a failure to provide any evidence of him addressing those failings.

• The Registrant maintained that his conduct was not at fault, and that he had been the victim of the organisation and others.

• The Registrant had shown a lack of candour about how two of the incidents had occurred.

119. The Panel took those matters into consideration when working through the range of sanctions, starting first with consideration of whether it was appropriate, in the current circumstances, to take no further action. The Panel decided that the safety issues involving colleagues was too serious for it to adopt such a course of action.

120. The Panel gave consideration as to whether a Caution Order was appropriate. The Panel considered that this level of sanction provided no protection to colleagues or members of the public and given the risk of repetition of those failings identified by the Panel this restriction was not appropriate.

121. The imposition of a Conditions of Practice Order would require the active participation of the Registrant. Conditions would have to be focused on addressing the failings identified in this hearing. Those failings relate to the Registrant’s behaviour and conduct which led to crucial mistakes that could have adversely affected patients and colleagues. Given the lack of insight into those previous failings and absolute denial of them, it is hard for this Panel to identify conditions which would address those issues.

122. The Panel noted that the Sanctions Policy states that conditions would be appropriate where the Registrant displayed insight. The Registrant has demonstrated that he totally lacks insight into his failings. Conditions are also inappropriate in this instance where the Registrant still, even at this sanction stage, has failed to identify the impact of his actions and the risk he exposed others to.

123. Further, there has been very limited engagement with the HCPC process, and the Panel has no confidence that if it had been able to identify any suitable conditions, that the Registrant would be able and willing to engage with those. For all these reasons conditions of practice would not be appropriate in this case. Further, such an Order would not be proportionate in all the circumstance of this case, where patient and colleague safety had been a core issue.

124. Turning to the issue of a period of suspension, the Panel considered that this would not be appropriate in this case for the reasons mentioned below.

125. The Panel has real concerns about the Registrant’s approach to risk. The Registrant has demonstrated that he has little understanding that risk is not addressed by him being the subject of oversight and checking. The fact that there are controls applied to his work does not address or absolve him from individual accountability for his practice as an autonomous Biomedical Scientist.

126. These are serious matters and given the fact that the Registrant has demonstrated a total lack of insight this Panel has no confidence that he is capable of addressing or resolving his failings. Further, the Registrant has displayed a degree of self-confidence and self-assurance in his knowledge and abilities that is concerning as they have not been apparent from evidence in this hearing. The Registrant has a lack of understanding of the limitations and range of his safe abilities.

127. The Panel having made that decision moved on to consider the imposition of a Strike Off Order, which is a measure of last resort for serious acts involving failure to raise concerns and a failure to work in partnership, issues which are engaged in this case. The Registrant has demonstrated an inability to accept fault and address the underlying issues resulting an unwillingness to resolve matters.

128. The Panel has concluded that the appropriate and proportionate measure in all the circumstances is a strike off order. This level of order will provide service user protection. Such an order will maintain the reputation of the profession and the public confidence in the regulatory process.

 

 

 

ORDER: The Registrar is directed to strike the name of Mr Paul Ar Mginah from the Register on the date this order comes into effect.

 

Interim Order

1. The Panel was satisfied that the Registrant had been informed by the HCPC that at the end of this hearing the Panel would 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. The date of that letter was 17 October 2023.

Submissions made by the parties

2. The HCPC stated that would seek an interim suspension order for the maximum period of eighteen months to cover in the possible length of an appeal.

3. The Registrant stated simply that it is all over.

Decision

4. The Panel’s powers to impose an interim order following the determination of a substantive hearing where it imposes a conditions of practice, suspension, or strike off Order, arise from Article 31 of the Health Professions Order 2001 as amended. This is a stand-alone provision within the Order.

5. The Panel has accepted and applied the advice of the Legal Assessor as to the proper approach it should adopt in undertaking this process of applying an interim order at the conclusion of this hearing.

6. An interim order imposed at this stage in the hearing process is intended to run during the 28-day appeal period which runs between the conclusion of today’s hearing and the date the substantive order will take effect, or, in the event of an appeal being lodged during the appeal period, to run till the conclusion of that appeal or eighteen months, whichever is the longer.

7. In imposing an interim order this Panel has to be satisfied that an Order is required for all or any one of the three statutory grounds namely, necessary for the protection of service-users; otherwise in the wider public interest; or, in the interests of the Registrant concerned.

8. The Panel appreciated that as part of its consideration, the Panel should have regard to the impact of any order on the Registrant. The Panel has to be satisfied that the consequences of any such order upon the Registrant are not disproportionate to the risk from which the public needed to be protected.

9. If the Panel considered that an order is necessary, then it should consider whether interim conditions of practice would offer sufficient protection. Only if they would not, should an Interim Suspension Order be made.

10. The Panel has taken into account the representations of the parties and noted the guidance set out in the relevant Practice Note issued by the HCPTS.

11. The matters raised in this substantive hearing were serious ones involving as they did the risk of harm to colleagues and service users. The issue of insight into his previous failings was a significant factor in the Panel choosing to impose a strike off order.

12. Given that lack of insight, the Panel had considered that there was a real risk of repetition of that behaviour. The Panel has therefore concluded that it is in the public interest for an Interim Order to be made and that the appropriate and proportionate Order is an Interim Suspension Order, there being no terms of a conditions of practice order that could be applied at this time.

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.

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 Registrant has appealed the decision therefore the Interim Suspension Order remains in place.

 

History of Hearings for Paul Ar Mginah

Date	Panel	Hearing type	Outcomes / Status
19/02/2024	Conduct and Competence Committee	Final Hearing	Interim Suspension
24/07/2023	Conduct and Competence Committee	Final Hearing	Adjourned