Nkechi O Leeks

Profession: Biomedical scientist

Registration Number: BS43604

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 29/07/2015 End: 16:00 31/07/2015

Location: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During the course of your employment as a Biomedical Scientist at the St

George's Healthcare NHS Trust (the Trust), on or before 25 May 2010,

you:

 

1. Breached confidentiality in that you:

 

a) wrongfully accessed private and confidential information which was

contained in the personal Human Resources (HR) files of Colleague A and

Colleague B; or

 

b) asked someone to access the personal HR files of Colleagues A and B

on your behalf without Colleagues A and B's consent to do so;

 

c) copied and used private and confidential information from the personal

HR files of Colleagues A and B without prior permission and/or Colleagues

A and B's consent to do so;

 

d) passed Colleagues A and B's personal HR files to the Trust's Counter

Fraud Specialist, XX without prior permission and/or Colleagues A and B's

consent to do so.

 

2. The matters set out in paragraphs la to 1d constitute misconduct.

 

3. By reason of that misconduct, your fitness to practise is impaired.


Finding

Preliminary Matters


1. The parties and the Panel agreed that this should be treated as a resumption of the hearing of this case which commenced on 21 July 2014 and was adjourned on 22 July 2014, following the production of medical evidence that the Registrant was unfit to take part in the proceedings. Mr Odogwu confirmed that he had no further cross-examination of the HCPC witness, GJ, who gave evidence on the last occasion.


Background


2. The Registrant was employed by St George’s NHS Trust (the Trust) as a Band 6 Biomedical Scientist between April 2005 and June 2011. She worked in the Clinical Blood Sciences Pathology Care Group. In May 2010 the Registrant anonymously contacted the Trust’s Local Counter Fraud Specialist, PL, by telephone to raise her concerns about the promotion of two of her colleagues, whom she believed to be unqualified for such promotion. The Registrant, without identifying herself, met with PL on 24 May 2010 to discuss her concerns in more detail and handed over to her a number of documents. PL concluded that a fraud had not been committed. However, after further review, she became concerned that the documents produced by the Registrant appeared to originate from the Human Resources (HR) files relating to her colleagues A and B and she referred the matter to the HR Department to consider a potential breach of security. A Serious Untoward Incident (SUI) Panel was convened to investigate the potential breach of security. Following the SUI Panel findings, GJ, General Manager of the Trust, carried out an investigation to identify the person who had handed over the documents to PL on 24 May 2010 and how security had allegedly been breached. The Registrant was identified as the person in question. A Disciplinary Hearing was held in June 2011, which resulted in the Registrant’s dismissal from the Trust. The Registrant’s appeal against that decision was dismissed. The matter was then reported to the HCPC, resulting in these proceedings. A claim by the Registrant for unfair dismissal was subsequently dismissed by the Employment Tribunal.


Decision on Facts


3. The Panel heard evidence from GJ and PL on behalf of the HCPC and gave additional evidence in response to examination.


4. The Registrant also gave evidence.


5. The Panel was provided with a large amount of documentation including transcripts of covert recordings made by the Registrant of various conversations between her and PL and other colleagues over an extended period.


6. The Panel took into account that the burden of proving the allegation was on the HCPC and that the civil standard of proof applied, so that the particulars of the allegation had to be proved on the balance of probabilities.


7. The Panel was assisted by the submissions of Ms Higgins on behalf of the HCPC and Mr Odogwu on behalf of the Registrant.

8. The Panel accepted the advice of the legal assessor.


9. With regard to the witnesses, the Panel accepted the evidence of PL that she had no knowledge of, or personal acquaintance with, the Registrant, or with the Registrant’s Colleagues A or B, before May 2010 when the Registrant contacted her regarding her concerns. In the Panel’s judgment, PL had no reason to fabricate her evidence or to collude with anyone in management or the Human Resources Department against the Registrant.


10. Further, the Panel believed PL’s evidence that she did not have access to files from the HR Department, that she could only obtain access to such files by seeking prior authority and that at no stage did she seek authority or obtain the HR files of colleagues A or B.

11. Whilst it is fair to say that PL could have been more methodical and meticulous by making a list of the documents handed to her by the Registrant, the Panel accepted her evidence that the documents provided to her by the Registrant were part of the HR files of Colleagues and A and B. The list of 91 documents subsequently drawn up by the HR Department was consistent with the documents given to her by the Registrant.


12. The evidence of PL was supported, in the Panel’s judgment, by various passages in the transcript of her conversations with the Registrant where PL – who was unaware that the conversation was being recorded – referred to documents which the Registrant had provided to her and which could only have originated from the HR files of Colleagues A and B. This evidence contradicted the Registrant’s evidence as to the nature of the documents which she handed to PL.


13. Further, if the documents handed to PL were as described by the Registrant, the subsequent actions of PL in handing the documents to the HR Department and of the HR Department in initiating a Serious Incident Investigation are inexplicable, unless there was a conspiracy against the Registrant: there was no evidence of any such conspiracy.


14. With regard to the evidence of the Registrant, the Panel found that she honestly believed that there were fraudulent practices in the promotion of her Colleagues A and B.


15. It was clear from passages in the transcripts that the Registrant was extremely concerned from the outset that she should not be identified as the source of the documents which she had provided to PL. It is difficult to reconcile this concern with the Registrant’s assertion that none of the documents derived from the HR files of her colleagues.


16. The Panel found that, in her determination to prove that there were fraudulent practices in the promotion of Colleagues, including Colleagues A and B, the Registrant had no compunction about disregarding data protection and confidentiality relating to her colleagues. Her attitude was demonstrated by the fact that she made covert recordings of her meeting and telephone conversations with PL and other professional colleagues from 2008 onwards. Further, by her own admission, she took possession of documents containing personal information relating to colleagues, which she claimed to have found in the laboratory on 10 May 2010, copied them without informing the colleagues concerned, retained the copies and after a period of a fortnight handed them to PL.


17. At various times during the investigative and disciplinary process, the Registrant had claimed that she had handed no documents at all to PL, or only one document, or, finally, 16 documents.


18. On the central issue for the Panel to determine, namely the nature and provenance of the documents provided by the Registrant to PL at their meeting on 24 May 2010, the Panel believed the evidence of PL and disbelieved the evidence of the Registrant.


19. There is no dispute that the documents as described by PL derived from the Human Resources files of Colleagues A and B. They were of a private and confidential nature; the Registrant had no right of access to them; they should not have been in her possession; nor should she have used or copied them.


20. With regard to particular 1(a) of the allegation, the Panel found as a fact that the Registrant breached confidentiality in that she wrongfully accessed private and confidential information which was contained in the personal HR files of Colleague A and Colleague B. It is not necessary for the Panel to reach a conclusion as to how the Registrant accessed the documents and whether she did so directly or indirectly.


21.  The Panel makes no finding as to particular 1(b) which is expressed as an alternative to particular 1(a), although it finds no evidence that the Registrant obtained the documents from a third party.


22. As to particular 1(c), the Panel finds that the Registrant copied and used the confidential information in question by virtue of her having admitted copying documents and then providing them to PL at the meeting on 24 May 2010.


23. The Panel finds that the Registrant passed the personal HR files of Colleagues A and B to the Trust’s Counter Fraud Specialist, PL, without the prior permission of Colleagues A and B as alleged in particular 1(d).


Decision on Grounds


24. The Panel took into account the submissions of Ms Higgins and Mr Odogwu.

25. The Panel is aware that findings as to misconduct and lack of competence are matters for its professional judgement, in respect of which neither the burden nor standard of proof applies. The Panel took into account the guidance of the Privy Council in the case of Roylance v General Medical Council (no.2) 2000 1 AC 31 to the effect that “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed …”

26. The Panel found that the Registrant was in breach of the following:

• Her employer’s Information Security Policy which states that a key property of a secure environment includes confidentiality and that information is not made available or disclosed to unauthorised individuals or entities;

• Standard 1a.3 of the HCPC’s Standards of Proficiency for Biomedical Scientists (2007) which states that a Registrant Biomedical Scientist must understand the importance of and be able to maintain confidentiality;

• Standard 10 of the HCPC’s Standards of conduct, performance and ethics (2003), which provides at Standard 10 that a Registrant must protect information in records against use by anyone who is not authorised.

27. In all the circumstances, the Panel finds that the proven allegations constituted misconduct.


Decision on Impairment


28. The Panel took into account the submissions of Ms Higgins and Mr Odogwu. The Panel applied the guidance contained in the HCPC Practice Note on “Finding that Fitness to Practise is Impaired” and accepted the advice of the legal assessor.


29. Ms Higgins submitted that, whilst the misconduct in question is remediable, the Registrant’s wilful disregard of information security and confidentiality, her lack of remorse and her persistent denial that she did anything wrong raises concerns as to a risk of repetition. She submitted that in her role as a Biomedical Scientist the Registrant would necessarily come into the possession of confidential information and the public would be concerned that such information might be misused by someone in her position and with her cavalier attitude to data security.


30. Mr Odogwu submitted that, in approaching PL with her concerns, the Registrant had acted with the best of intentions. The case concerns a single incident of misconduct in a long and otherwise unblemished career as a Biomedical Scientist. The events in question happened some five years ago. He pointed out that no service users had been adversely affected by the Registrant’s conduct. He submitted that her fitness to practise is not currently impaired.


31. In determining whether the Registrant’s fitness to practise is impaired, the Panel took into account both the ‘personal’ and “public” component. The personal component relates to the Registrant’s own practice as a Biomedical Scientist, including any evidence of insight and remorse and efforts to remediate her practice. The ‘public’ component includes the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession and the regulator.


32. This case does not concern the Registrant’s competence to practise as a Biomedical Scientist, which has never been in issue. It relates purely to breaches of confidentiality and the accessing and misuse of confidential material. The Panel took into account the fact that the Registrant honestly believed that there had been wrongdoing in the promotion of colleagues whom she believed to be unqualified for the positions to which they had been promoted.


33. However, in seeking to support her claims, she showed a complete disregard for confidential information relating to professional colleagues. Throughout these proceedings she has been emphatic in her denial of any wrongdoing and persistent in her claims that others have been have conspired against her. She has shown no remorse and a complete lack of insight. This is further evidenced by the Registrant’s personal statement submitted at this point in the proceedings. Given her attitude, there is a risk of repetition. Accordingly, the Panel finds that her fitness to practise is impaired, having regard to the personal component.


34. With regard to the public component of impairment, the Panel acknowledged that there was no evidence that the Registrant’s misconduct had put service users at risk. However, the handling of confidential information is a core element in the role of a Biomedical Scientist and the Registrant’s blatant disregard of the need for information security in relation to her professional colleagues puts this at issue.


35. Further, when deciding whether the Registrant’s fitness to practise is impaired, the Panel also took into account the responsibility of the HCPC to uphold proper standards of conduct on the part of members of the profession and to maintain public confidence in the profession and in the regulator. The Panel considered that the Registrant’s breach of security and misuse of confidential information were extremely serious matters. It is important to send a message to the profession at large and to the public that such behaviour is unacceptable and will not be tolerated. Public confidence in the profession and in the regulator would be undermined if a finding of current impairment were not made.


36. Accordingly, the Panel finds that the Registrant’s fitness to practise is impaired by reason of her misconduct.


Decision on sanction


37. The Panel considered the submissions of Ms Higgins on behalf of the HCPC and Mr Odogwu on behalf of the Registrant.


38.  The Panel took into account the letter dated 10 April 2015 from an employer who had engaged her for one month and the testimonial contained in an email dated 30 July 2015 from her local councillor which refers to her as honest and caring and that she applies herself to difficult tasks with vigour. Neither reference shows an awareness of these proceedings or the purpose for which the reference has been provided.

39. The Panel took into account the HCPC’s Indicative Sanctions Policy. The Panel accepted the advice of the legal assessor. The Panel was mindful that the purpose of a sanction is not to punish the Registrant but to protect the public and the wider public interest by upholding proper standards of conduct and behaviour on the part of registrants and maintaining public confidence in the profession and the Regulator.

40. The Panel considered the available sanctions in ascending order of seriousness and applied the principle of proportionality, balancing the respective interests of the Registrant and the public.

41. With regard to mitigating factors, the Panel acknowledges that the Registrant has had an otherwise unblemished career as a Biomedical Scientist and that her competence as a Biomedical Scientist has not been called into question. The Registrant’s disclosures were not disseminated outside the Trust.

42. However, in the Panel’s judgment, this case involves a very serious breach of confidentiality by the Registrant by her unauthorised access to, and misuse of, confidential information contained in HR files in the misguided pursuit of a campaign to expose colleagues, whom she believed to have been over-promoted.

43. The Registrant’s lack of respect for confidentiality and her blatant disregard for security and the privacy of others have been further demonstrated by the fact that over an extended period she made covert recordings of her meetings and telephone conversations with colleagues.

44. Further, the Registrant in her persistent denial of the allegations has shown a disregard for truth and a willingness to accuse others of untruthfulness. It is apparent from her written statement submitted to the Panel today on the issue of impairment of her fitness to practise that she does not accept the Panel’s findings of fact and continues to blame others.

45. In short, the Registrant has shown herself to be untrustworthy and untruthful. She has shown no remorse and a total lack of insight.

46. The Panel considered the various options by way of disposal in ascending order of seriousness.

47. The case is too serious for the Panel to take no action.

48. Mediation could only be considered if the Panel would otherwise consider taking no further action.

49. The Panel considered that a Caution Order is not an appropriate sanction because of the Registrant’s persistent denials, her assertion of a conspiracy against her on the part of colleagues and the complete absence of any insight or remorse. Her blatant disregard of the need to respect confidentiality, and her persistent denials, give rise to a risk of repetition.

50. A Conditions of Practice Order is not appropriate because the case does not relate to the Registrant’s competence as a Biomedical Scientist but rather her suitability to be a member of the profession. The Panel was not satisfied that workable conditions could be formulated to address the concerns.

51. The Panel considered the criteria for imposing a Suspension Order. The Panel noted that even today the Registrant has rejected the Panel’s findings of fact. In the Panel’s judgment both by her original misconduct and by her attitude to these proceedings she has demonstrated that she is not a fit person to be a member of the profession.

52. The Panel was mindful that a Striking Off Order is a sanction of last resort. The Panel’s view is that there are continuing issues and an inability to resolve matters. In the Panel’s judgment, the nature and seriousness of the Registrant’s conduct is incompatible with her remaining on the register. Public confidence in both the profession and the Regulator would be undermined if she were allowed to continue in practice as a Biomedical Scientist. In all the circumstances, the only appropriate and proportionate sanction is a Striking Off Order.

Order

Order: The Registrar is directed to remove the name of Nkechi O Leeks from the Register.

Notes

Following the conclusion of the Conduct and Competence Committee Final Hearing in July 2015, the Registrant Mrs Leeks appealed against the Panel’s decision to the High Court. The appeal was dismissed by the High Court in January 2016. The Registrant applied to the Court of Appeal for permission to appeal against the High Court’s decision, which was dismissed in December 2016 – at which point the Striking Off order made at the July 2015 Final Hearing took effect. Between July 2015 and December 2016 an Interim Suspension Order was in place.

Hearing History

History of Hearings for Nkechi O Leeks

Date Panel Hearing type Outcomes / Status
29/07/2015 Conduct and Competence Committee Final Hearing Struck off