Rokeya Hossain

Profession: Biomedical scientist

Registration Number: BS55476

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 15/06/2015 End: 16:00 22/06/2015

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Whilst employed as a Biomedical Scientist with University Hospitals Coventry and Warwickshire NHS Trust, between 2 November 2010 and 6 September 2011 you;

 

1. Did not perform to the standard expected of a Band 6 Biomedical Scientist, in that on a number of occasions you;

 

a) Did not perform laboratory tests and procedures accurately and effectively.

b) Did not interpret and/or report the results of laboratory tests correctly.

c) Did not correctly perform quality control tests and/or act upon their results.

d) Did not recognise where you were making mistakes.

 

f) Did not communicate effectively with colleagues.

g) Did not follow oral instructions from your manager senior colleagues.

 

2. The matters set out in paragraph 1 amount to a lack of competence

 

3. By reason of this lack of competence, you fitness to practise is impaired

 

Finding

Preliminary Matters:

1. Mr Walters made an application to amend the allegation. The proposed amendment was set out in a letter to Mrs Hossain dated 10 September 2012. Mr Campion did not object to the amendment and confirmed that Mrs Hossain’s case had been prepared on the basis of the amended allegation.


2. The Panel exercised its discretion to allow the amendment. Mrs Hossain is not prejudiced by the amendment. The Panel was content for particular 1(e) to be deleted because there is no evidence to support it and for several other minor amendments to be made.


3. Mr Campion made an application for the case to be heard in private because there would be extensive references to Mrs Hossain’s health. Mr Walters reminded the Panel of the principle of open justice and submitted that parts of the case which related to Mrs Hossain’s health should be heard in private, but that the remainder of the case should be heard in public.


4. The Panel applied the guidance in the HCPC Practice Note “Conducting Hearings in Private” and the advice of the Legal Assessor. The Panel was aware from the documents and the contents of Mrs Hossain’s statement that there would be extensive references to the Registrant’s health, but that there was also evidence relating to background and competency matters that did not require references to be made to health. The Panel decided that the parts of the case that related to Mrs Hossain’s health should be heard in private to protect her private life, and that the remainder of the case should be heard in public in accordance with the principle of open justice.

5. Mrs Hossain indicated through Mr Campion that she admitted the facts in particular 1 in its entirety, denied that those facts amounted to a lack of competence, and denied that her fitness to practise is impaired.

Background

6. Mrs Hossain commenced work at University Hospitals Coventry and Warwickshire NHS Trust (“the Trust”) in August 2002 as a volunteer in Specimen Reception. Shortly afterwards, on 28 October 2002, she became a Trainee Biomedical Scientist. After completing her training she was appointed a Band 6 Biomedical Scientist in March 2007. She worked as an autonomous practitioner in Haematology and Blood Transfusion on the night shift for the next two years.


7. Mrs Hossain was not happy about aspects of her employment by the Trust and she raised two grievances. The first grievance, which concluded in 2007, raised issues about training and race discrimination, and was not upheld. However, a suggestion was made by the Trust to make changes to training policy that included close liaison between the trainees and the senior staff and trainers, and to ensure that any issues were raised at the earliest opportunity. The second grievance, raised by Mrs Hossain in February 2009, concerned release time to attend university, which was upheld.


8. In April 2009 Mrs Hossain commenced working day shifts. Mrs Hossain was unhappy that her request for a particular shift pattern working 9 a.m. to 3 p.m. was not agreed by the Trust. Mrs Hossain was also uncomfortable working the day shift because she felt that she was not accepted by staff who knew she had raised a grievance.


9. Following an Occupational Health assessment, which confirmed that Mrs Hossain was fit for work, she returned to work on 2 November 2010. In accordance with the recommendation from Occupational Health this was a phased return to work. JN, Haematology Manager, met with Mrs Hossain on 2 November 2010 to welcome her back to the Trust. JN explained that there was a new system for competency assessment and that competency would be documented for all staff in the department. JN also explained that Mrs Hossain would initially work with BR, Senior Biomedical Scientist Band 7, their designated haematology trainer. JH, Blood Transfusion Manager, joined the meeting.


10. Starting on 2 November 2010, Mrs Hossain undertook refresher training with BR. During that first day BR was concerned about some of Mrs Hossain’s actions including difficulties when using a pipette and included these matters in her contemporaneous written notes of the training. She reported these difficulties later that same day to JN. Mrs Hossain’s perception of the training provided by BR was that she was being monitored, observed and criticised rather than receiving refresher training.


11. BR recorded in her notes of the training that Mrs Hossain was failing to perform laboratory investigations accurately and effectively and that there were failings in her interpretation of results. BR reported her overall concerns to JN, who consequently referred Mrs Hossain to Occupational Health. On 8 December 2010 an Occupational Health report stated that Mrs Hossain was fit to work.


12. Shortly after 8 December 2010, JN was appointed Investigating Manager under the Trust’s Capability Procedure. On 21 December 2010, JN met with Mrs Hossain and BR for a capability support meeting. In the meeting the concerns about Mrs Hossain’s abilities were outlined. Mrs Hossain stated that she was nervous when she returned to the workplace. Mrs Hossain was set objectives to achieve within eight weeks under the Trust’s Stage 1 Improvement Target. Mrs Hossain was informed that she would be supervised by senior staff and rotated on a weekly basis within the relevant sections of the Pathology Department.


13. BR continued to supervise Mrs Hossain in the Haematology Department until 13 January 2011. Mrs Hossain was also supervised by other Band 7 Senior Biomedical Scientists: TT in the Blood Transfusion Department; JN in the Haematology Department; AB in the Blood Transfusion Department; JC in the Blood Transfusion Department; PG in the Blood Transfusion and Haematology Departments; JD within the Haematology Department. All the staff supervising Mrs Hossain made contemporaneous observational notes of any issues they considered to be relevant, which included both positive and negative outcomes.


14. JN was absent from work due to sickness following the capability support meeting until 31 January 2011. In her absence the capability procedure was managed by JH and JD who was deputising for JN during her absence. JH and JD met Mrs Hossain on 18 January 2011, 21 January 2011, 25 January 2011 and 1 February 2011. In the meeting on 18 January 2011 JD and JH decided that an urgent referral to Occupational Health was required though this referral was not made until three weeks later, on 7 February 2011.


15. The senior staff supervising Mrs Hossain reported to management that there were concerns about her performance. JD and JH concluded that the objectives set on 21 December 2010 had not been met and recommended that there should be a first stage capability review meeting under the Trust capability procedure.


16. A first stage capability review meeting took place on 3 March 2011, but before concluding this was adjourned because there were concerns about Mrs Hossain’s health. Mrs Hossain was unable to attend an Occupational Health appointment booked for 25 February 2011 because she was on annual leave.


17. The Occupational Health appointment took place on 11 March 2011 and a report was sent to JH dated 14 March 2011. The Occupational Health advisor recommended a report should be requested from Mrs Hossain’s specialist.


18. The first stage capability review meeting reconvened on 17 March 2011. Mrs Hossain was informed that she had failed to meet the objectives set on 21 December 2010 and the second stage work objectives agreed as the framework for capability assessment would begin on 17 March 2011 and continue until 19 May 2011. On 14 March 2011, three days after management were told, by way of a letter from Occupational Health, that a report was required, a decision was made that as the Registrant had failed to meet the objectives at stage 1, and she would be progressed to the second stage capability procedure.


19. During the second stage improvement period Mrs Hossain was observed by BR, JC, AB, JH, JN, PW (Supervisor Band 3 Specimen Reception), AR (Senior Biomedical Scientist Band 7), JS (Supervisor Band 3 Specimen Reception and JA (Senior Biomedical Scientist Band 7). The supervisors kept records of their observations of Mrs Hossain. They observed that Mrs Hossain was not consistently meeting her objectives and she was failing to make significant and sustained improvements in her performance.


20. On 19 May 2011 a second stage capability review was convened. Mrs Hossain was informed that she had failed to meet the objectives set under the Trust capability procedure and therefore a capability hearing would be convened. After this meeting Mrs Hossain was allocated filing duties and she did not carry out any further work as a Biomedical Scientist for the Trust within a laboratory setting.


21. Occupational Health requested a report from Mrs Hossain’s specialist and a report dated 21 April 2011 was provided. Occupational Health provided a summary letter based on this report dated 2 June 2011.


22. The capability hearing took place on 14 June 2011, just twelve days after the date of the letter from Occupational Health. JN presented her investigation report which summarised the observations of the supervisors and the progress of the capability procedure throughout the previous months. Mrs Hossain was dismissed and given twelve weeks’ notice of dismissal. An appeal against the dismissal was not upheld.


23. A short while after her departure from the Trust Mrs Hossain started to look for employment. She worked for about a month in March 2012 as a Biomedical Scientist at the ACM Global Central Laboratory in Yorkshire, and from May 2012 until November 2012 she worked as a Band 6 Biomedical Scientist in the Pathology Laboratory at the Wrightington, Wigan and Leigh NHS Foundation Trust.


24. In November 2012, shortly before the HCPC Final Hearing was due to take place, Mrs Hossain became seriously unwell and remained unwell until June 2014. Mrs Hossain then worked as a locum Biomedical Scientist for two periods of time, five weeks at Leicester Royal Infirmary in July and August 2014, and just under two weeks at Nottingham Kingsmill Hospital in September 2014.


Facts:

25. The Panel carefully considered all the documents in the HCPC exhibits bundle and the Registrant’s bundle. The Panel heard evidence from JN, BR, AR, TT, JH, AB and JC. The Panel also heard evidence from Mrs Hossain. The Panel read the witness statements of ZH, Mrs Hossain’s husband, who was available to give evidence if required, and of JC, who was Mrs Hossain’s manager at the Wrightington, Wigan and Leigh NHS Foundation Trust.


26. The Panel found that all the witnesses called by the HCPC and Mrs Hossain herself, on balance, gave their evidence credibly, given the limits of their recollection, and their interpretation of the relevant events.


27. The Panel noted that all the particulars relate to Mrs Hossain’s work as a Biomedical Scientist up to 19 May 2011 and from that date she was moved to non-scientific work.


28. The Panel found that particular 1(a) is proved by the admission of Mrs Hossain and by the evidence of JH, AR, TT, JC, AB, JN and BR.


29. The Panel found that particular 1(b) is proved by the admission of Mrs Hossain and by the evidence of JH, AR, TT, JC, AB, JN, and BR.


30. The Panel found that particular 1(c) is proved by the admission of Mrs Hossain and by the evidence of AR, TT, AB and BR.


31. The Panel found that particular 1(d) is proved by the admission of Mrs Hossain and by the evidence of AR, TT, JC, AB and BR.


32. The Panel found that particular 1(f) is proved by the admission of Mrs Hossain, and by the evidence of JH, AR, TT, JC, AB, JN, and BR.


33. The Panel found that particular 1(g) is proved by the admission of Mrs Hossain, and by the evidence of JH, TT, AB, JN and BR.


34. The Panel found that particular 1(h) is proved by the admission of Mrs Hossain, by the evidence of AB, JN and BR.


35. The Panel made the following contextual findings of fact. The Panel found, on the balance of probabilities, that prior to her period of absence starting from December 2009 to November 2010, Mrs Hossain was a competent Band 6 Biomedical Scientist. Although some of the HCPC witnesses suggested that there might have been some issues with her work prior to December 2006, this did not form part of the HCPC’s allegation and was not supported by any documents or evidence.


36. Mrs Hossain’s genuine belief was that she was bullied, intimidated and shouted at by supervisors prior to and during the Trust’s capability process. In cross-examination Mrs Hossain stated that that she was “framed”.  All the HCPC witnesses denied that they bullied, intimidated or shouted at Mrs Hossain. Neither did they witness any such behaviour. The Panel found no satisfactory evidence that there was bullying, intimidation or shouting by the supervisors or any other members of staff.


37. Mrs Hossain was a competent Biomedical Scientist in her role at ACL Global Laboratory in 2012, as confirmed by PL, Senior Clinical Laboratory Scientist, who has provided a reference. Later, At the Wrightington, Wigan and Leigh NHS Foundation Trust, Mrs Hossain worked competently as a Band 6 Biomedical Scientist. This is confirmed by the statement of JC and by the training records at that Trust which confirm Mrs Hossain’s competence in specific areas.


Decision on Grounds:  

38. The Legal Assessor advised the Panel that there is no burden of proof and that competence is a matter for the Panel’s judgment. The standard applied is that of the role in which Mrs Hossain was employed, a Band 6 Biomedical Scientist.


39. The Legal Assessor drew the Panel’s attention to the guidance in the case of Holton v GMC on factors that are relevant and irrelevant when considering a lack of competence. That guidance is that factors which are personal to the health professional whose competence is being assessed are irrelevant and that the test is objective in this sense. On the other hand factors external to and independent of the health professional such as pressure of work are relevant factors. The Legal Assessor advised that the reason for an objective test is that the purpose of the statutory ground is not penal, but for the protection of the public. Given this purpose she advised that the Registrant’s health and any failure to make reasonable adjustments by the Trust were personal factors and therefore irrelevant factors at the stage the Panel considered lack of competence. Mr Campion submitted that this aspect of the advice was not correct because disability discrimination issues should be treated as external circumstances and therefore relevant.


40. The Panel noted Mr Campion’s submission, and after due consideration the Panel took a measured view in accord with the advice of the Legal Assessor.


41. The Panel considered whether there were any external circumstances, such as the pressure of work that should be taken into account at this stage. Mrs Hossain attributes her level of competence to bullying, intimidation and being shouted at by supervisors. The Panel found there was no satisfactory evidence of this.


42. The Panel decided that the facts in particular 1 constitute a lack of competence. It is essential for a Biomedical Scientist to perform laboratory tests and procedures accurately and effectively. Considering all the facts in particular 1, the Panel found a breach of Standards of Proficiency, in particular 1a (6), 1a (7), 1b (1), 2a (2), 2a (3), 2a (4), 2b (2) and 2b (4).  The failures were across both haematology and blood transfusion activities. Throughout the refresher training period and capability procedure Mrs Hossain was using surplus test samples and practise examples, but if she had been carrying out tests involving patient samples there was the potential for serious harm to patients. The Panel concluded that Mrs Hossain was not, at that period of time, capable of safe and effective practice.

 Decision on Impairment

 43. The Panel carefully considered the submissions of Mr Walters, for the HCPC, Mr Campion, for the Registrant, and noted the guidance in the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.


44. The Legal Assessor advised the Panel that at this stage it was appropriate and necessary for the Panel to consider carefully issues relating to the Equality Act 2010. The Legal Assessor reminded the Panel that it has a duty in its decision not to discriminate and is also subject to the public sector equality duty under the Equality Act 2010. The Panel’s duties in this respect were in the context of a regulatory process, the primary purpose of which is to protect the public, as set out in the HCPC Practice Note. The Panel accepted this advice.


45. Mrs Hossain is not currently practising because she has not been able to obtain suitable employment. Her work at the Wrightington, Wigan and Leigh Trust ended in November 2012 which is more than two and a half years ago. Mrs Hossain has frankly stated that in her short period of work at Leicester Royal Infirmary in July 2014 she struggled and was slow at carrying out activities. Her period of work at Nottingham Kingsmill Hospital in September was very short.


46. Mrs Hossain has been looking for work, but to date has been largely unsuccessful. She is currently writing to hospitals asking for voluntary work to obtain training and experience. She is also identifying courses she can attend. She has recently applied to rejoin the Institute of Biomedical Science. Mrs Hossain explained that it has been difficult for her to keep her CPD up to date, but she expects she will be attending courses and conferences over the summer.


47. The Panel’s view is that the lack of competence is remediable. Mrs Hossain’s ability to take remedial steps has been limited by the unfortunate circumstances of her ill health and more recently her inability to obtain employment. Despite these limitations Mrs Hossain has shown her determination to return to practice. She has taken opportunities available to her and has travelled a considerable distance away from home to obtain employment.


48. On the one hand Mrs Hossain has very positive evidence from her employment at Wrightington, Wigan and Leigh NHS Foundation Trust confirming her competence over a period of seven months. On the other hand the competency assessment at Wrightington, Wigan and Leigh NHS Foundation Trust is now more than two and a half years out of date and more recently she has not been working as a Biomedical Scientist. It is a changing profession and the Panel are not satisfied that Mrs Hossain’s skills and knowledge are up to date. Mrs Hossain recognises that she would need refresher training. To a very large extent these matters are outside Mrs Hossain’s control and the Panel emphasises that this finding is not a criticism of her, but it is a consequence of the adverse circumstances she has faced.


49. The Panel’s view is that the steps Mrs Hossain has taken recently to seek a voluntary position and to rejoin the Institute of Biomedical Science are positive. However, the Panel had concerns that that Mrs Hossain has been unable to keep her knowledge and skills up to date. Considering the position at today’s date, the Panel’s view was that there are further steps Mrs Hossain needs to take so that she is fit to practise.


50. The Panel’s view is that there remains risk of repetition of a similar lack of competence because Mrs Hossain’s skills and knowledge are not up to date and because, for reasons that are outside her control, she has not been able to consistently practise as a Biomedical Scientist since November 2012. There is a finding of lack of competence in the past and insufficient evidence of her recent competency to persuade the Panel that there is no risk of repetition.


51. The Panel’s view is that Mrs Hossain has demonstrated some insight. She has consistently admitted the facts of the allegation as outlined in particular 1(a) to 1(g). Mrs Hossain’s forceful criticisms of her supervisors, including the allegation that she was “framed” are not justified. The Panel does not criticise Mrs Hossain for this, and recognises that she has taken the steps, as far as she is able to do so, to reflect on the past.


52. In considering the personal component, which is Mrs Hossain’s current competence the Panel decided that her fitness to practise is currently impaired.


53. The Panel next considered the public component which include the protection of the public and the reputation of the profession, upholding standards, and maintaining confidence in the regulatory process. The Panel’s view was that members of the public would be sympathetic to the very unfortunate circumstances for Mrs Hossain since her dismissal from the Trust and would recognise that she has faced considerable adversity. At the same time, the concern for a member of the public would be whether Mrs Hossain is presently fit to return to practise without a restriction on her practice, when her knowledge and skills may not be up to date. She herself recognises that she needs refresher training. The public would expect that if there is a doubt about Mrs Hossain’s current level of competence, that doubt should be recorded by a finding that her fitness to practise is impaired. That finding would reassure the public that the regulator has appropriately acknowledged and marked that concern.


54. The Panel’s view is that there is doubt about Mrs Hossain’s current level of competence, because her skills and knowledge are not up to date and because she has practised only for short periods of time as a Biomedical Scientist since November 2012. Considering the public component the Panel decided that Mrs Hossain’s fitness to practise is currently impaired.


Decision on Sanction:


55. The Panel considered carefully the submissions of Mr Walters and Mr Campion and applied the guidance in the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor. In particular the Panel had in mind that the primary function of any sanction is to protect the safety of the public. The Panel also considered the wider public interest which includes the protection of the reputation of the profession and the regulatory process and the deterrent effect to other registrants.


56. The Panel identified the following aggravating circumstances.


• The breadth of the lack of competence concerns
• The support and training provided on the return to work
• The potential risk to public safety if Mrs Hossain had been working with patient samples


57. The Panel identified the following mitigating circumstances.


• Mrs Hossain’s competency prior to November 2009
• Mrs Hossain’s ill health


58. The sanction should be the least restrictive which is sufficient to protect the public and take account of the wider public interest issues. The Panel therefore considered the sanctions in ascending order of severity.

59. Mr Campion submitted that the Panel could rely on an undertaking given by Mrs Hossain that she would undertake training and that no sanction was therefore appropriate. The Panel decided that this was not sufficient because of the seriousness of the risk to the public and the extent of the Panel’s concerns about Mrs Hossain’s current competence. Mediation is not a relevant sanction.

60. The Panel considered a Caution Order which may be the appropriate sanction for slightly more serious cases. The Panel decided that a Caution Order was not sufficient. A Caution Order would not provide any ongoing monitoring or restrict Mrs Hossain’s practice. There could be extremely serious consequences for the safety of the public if Mrs Hossain lacks any of the practical skills or knowledge required.

61. The Panel next considered a Conditions of Practice Order. The Panel was confident that Mrs Hossain will comply with Conditions of Practice and that realistic and verifiable conditions can be drafted. The Panel’s view was that compliance with conditions would assist in enabling Mrs Hossain to complete the remediation process and return to practice.

62. A Conditions of Practice Order is limited to a maximum period of three years. The Panel decided that a period of eighteen months is appropriate for the Conditions of Practice Order. Mr Campion submitted that a shorter period of a maximum of one year was appropriate. The Panel decided that the appropriate period of time to enable full compliance with the Conditions was eighteen months. Mrs Hossain may apply for an early review if appropriate.


63. The Panel was reminded by the Legal Assessor of the guidance that Conditions of Practice should not, in reality, amount to a suspension. The Panel decided that requiring the Registrant to attend a training course would not be sufficient because there would be no ongoing monitoring of her work and that it was necessary and appropriate for there to be a supervision requirement. The Panel’s view is that a supervision condition was realistic and would not amount to a suspension because the level of supervision in the conditions is standard for employers of Biomedical Scientists.

64. The Panel considered the more severe sanction of a Suspension Order, but decided that it would be disproportionate because of the mitigating circumstances and because the lack of competence is remediable.

65. The Order will be reviewed before its expiry. A future reviewing Panel will be assisted by written evidence to support compliance with the conditions of practice. The Panel strongly recommends that the Registrant engages closely with the Institute of Biomedical Science with regard to her immediate and subsequent training needs.

Order

ORDER: The Registrar is directed to annotate the Register to show that for a period of eighteen months from the date that this Order comes into effect you must comply with the following conditions of practice.


1) You must inform the following parties that your registration is subject to these conditions:

a) any organisation or person employing or contracting with you to undertake professional work
b) any agency you are registered with or apply to be registered with (at the time of application)
c) any prospective employer (at the time of application)

2) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

3) You must only work as a Biomedical Scientist in an environment where you have access to advice from Senior Laboratory staff who you must contact when uncertain or when departing from any standard procedure or protocol.

4) You must place yourself and remain under the supervision of a workplace Biomedical Scientist supervisor of band 7 or higher registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of the date you obtain paid employment as a Biomedical Scientist. You must attend upon that supervisor as required and follow their advice and recommendations.


5) When employed as a Biomedical Scientist you must work with your supervisor to formulate a Personal Development Plan designed to ensure that your performance is monitored on an ongoing basis and keep a record. You must:

(a) Note any discussions with your supervisor on any incidents which involve your work
(b) Retain for inspection the results of any ongoing audit or other assessment of the quality of your work
(c) Retain for inspection the results of any monitoring of compliance with Standard Operating Procedures or other similar procedures which govern your work

6) Within three months from the start of paid employment you must forward a copy of your Personal Development Plan to the HCPC.

7) You must meet with your supervisor on a monthly basis to consider the results of the monitoring and any actions required as a result of any incident forms or outcome of the monitoring.

8) You must provide a copy to the HCPC prior to your review of your most recent supervisor’s appraisal commenting on those matters which form part of your Personal Development Plan and performance and a copy of your competency documentation

9) You will be responsible for meeting any or all costs associated with complying with these conditions.

Notes

The Order will be reviewed before it expires.

Hearing History

History of Hearings for Rokeya Hossain

Date Panel Hearing type Outcomes / Status
14/12/2016 Conduct and Competence Committee Review Hearing No further action
15/06/2015 Conduct and Competence Committee Final Hearing Conditions of Practice