Elisabeth Brealey

Profession: Biomedical scientist

Registration Number: BS63440

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 22/10/2015 End: 16:00 23/10/2015

Location: Park Plaza, Greyfriars Rd, Cardiff, CF10 3AL

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Allegations as amended:
During the course of your employment as a Biomedical Scientist for Betsi
Cadwaladr University Health Board, you:

1. Posted comments on the website Facebook, namely:
a. On 19 May 2011, you stated, 'Is so frustrated with the bloody NHS monkey suits.'
b. On 16 September 2013, you stated:
i. ‘ Lost: my enthusiasm and motivation regarding my job. If found feel free to not give it back’
ii. ‘The place is awful and not likely to get better.’
c. On 17 September 2013, you stated, ‘My motivation is beyond gone for work. I’m sick of giving and getting nothing back’.
d. On 09 October 2013, you stated ‘I’ve decided I really want to work in Chester zoo’s lab. #fedupofthenhs’.
e. On 19 December 2013, you stated, ‘Sick of working my ass off and not being able to afford even the bloody basics while some people sit on their arses and afford holidays and drive brand new cars.’
f. On 20 January 2014, you stated:
i. ‘Am sick of spending all my days off doing bloody work for a job that doesn’t even pay the bills anymore. Sick of being crapped on by Pathology at Betsi cods wallops’.
ii. ‘Tempted to go off sick but need to be in to get stuff signed’.
iii. ‘I just hope they do a better with the newbies’.
iv. ‘Yeah pansies fault but the buck stops with me no so not getting it down will be down to me’.
v. ‘Mr Y he was less that useless I’ve been asking for someone else for 2 years but only got one when Andy retired so have to do the entire thing in 2 years.'
g. On 07 April 2014, you stated:
i. ‘The most evil people are not locked up in prison they work for the NHS Ethics Committee’
ii. ‘they are like lovely grannies compared to NHS. Its not like I wanted babies blood. Oh no wait, I do.’
2. The matters described in paragraph 1 constitute misconduct.
3. By reason of that misconduct your fitness to practise is impaired

Finding

Preliminary Matters:
Amendments to the Allegation:
1. The HCPC applied for leave to permit two dates in the particulars of the allegation to be amended. There is no prejudice to the Registrant from these applications and she has not objected to the application. The Panel granted the amendment application in accordance with the above amended particulars.
Hearing in private:
2. The Panel considered whether to hold the hearing partly in private because the case raised issues concerning the Registrant’s health. The Panel consulted the HCPC’s Practice Note on “Conducting Hearings in Private”. The Panel decided that it was necessary to hold this hearing partly in private, so as to protect the Registrant’s private life.
Background:
3. At the relevant time the Registrant worked as a Band 6 Biomedical Scientist (BMS) in the pathology department in Blood Sciences at the Betsi Cadwaladr University (BCU). A colleague of the Registrant who worked in Blood Sciences, saw some comments made by the Registrant on her “Facebook” page and provided a printout of them to CW, (Interim Blood manager). The messages were posted on 20 January 2014. As a result of this there was a meeting with the Registrant soon after during which she was told not to make any further Facebook posts about BCU. CW asked SJ to review the Registrant’s Facebook page. Over the course of the investigation additional Facebook posts made by the Registrant on 7 April 2014 were identified, plus some older Facebook posts made by the Registrant. She admits that all the posts were made by her.
4. The Panel heard oral evidence from two HCPC witnesses whose current roles are as follows: CB, Pathology Reception Team Leader and SJ, Senior Employment Practice Officer and considered the HCPC documents including witness statements from CW and AW.
5. The Panel also heard evidence from the Registrant and considered her documents. She stated she believed her Facebook privacy status was set at “friends only” but in fact it was set to “friends and friends of friends only”. She had 40 or 50 “friends” on Facebook who were mainly colleagues. Her “friends” would also have had many Facebook friends who could have accessed the posts she made including, particularly, many members of the public. The Registrant had read the BCU code of Conduct in relation to social media around the time of her staff induction. She does not recall specific training on the BCU Code from SJ, including the use of Facebook. This training took place on 15 October 2013 according to SJ with a five minute section on social networking sites, including Facebook. The Panel accepted the evidence of the Registrant that at the time of these particulars she had some health issues and was under considerable pressure to complete her portfolio.

Decision on Facts:
6. The Panel accepted the advice of the Legal Assessor that the burden of proof is upon the HCPC on the civil ‘balance of probabilities’ in relation to findings of fact. Whether the proved facts amount to the statutory ground of misconduct and the issue of current impairment are not matters which need to be ‘proved’ but are matters of judgement for the Panel.
Particulars 1a to 1e:
On 19 May 2011, you stated, 'Is so frustrated with the bloody NHS monkey suits.'
On 16 September 2013, you stated:
i. ‘Lost: my enthusiasm and motivation regarding my job. If found feel free to not give it back’
ii. ‘The place is awful and not likely to get better.’
On 17 September 2013, you stated, ‘My motivation is beyond gone for work. I’m sick of giving and getting nothing back’.
On 09 October 2013, you stated ‘I’ve decided I really want to work in Chester zoo’s lab. #fedupofthenhs’.
On 19 December 2013, you stated, ‘Sick of working my ass off and not being able to afford even the bloody basics while some people sit on their arses and afford holidays and drive brand new cars.’
7. The Registrant admitted these particulars. The Panel was satisfied that the screenshots of the Registrant’s Facebook postings were good evidence of the facts. For these reasons the Panel found these particulars proved.
 Particular 1fi to 1fv:
On 20 January 2014, you stated:
i. ‘Am sick of spending all my days off doing bloody work for a job that doesn’t even pay the bills anymore. Sick of being crapped on by Pathology at Betsi cods wallops’.
ii. ‘Tempted to go off sick but need to be in to get stuff signed’.
iii. ‘I just hope they do a better with the newbies’.
iv. ‘Yeah pansies fault but the buck stops with me no so not getting it down will be down to me’.
v. ‘Mr Y he was less that useless I’ve been asking for someone else for 2 years but only got one when Andy retired so have to do the entire thing in 2 years.'
8. The Registrant admitted these particulars. The Panel relied on the notes of a meeting with the Health Board on 8 May 2014 where she admitted all the alleged Facebook comments. The Panel also relied on the Investigation Report of 28 may 2014 where the postings are admitted by the Registrant. For these reasons the Panel found these particulars proved.
Particular 1g:
On 07 April 2014, you stated:
i. ‘The most evil people are not locked up in prison they work for the NHS Ethics Committee’
ii. ‘they are like lovely grannies compared to NHS. Its not like I wanted babies blood. Oh no wait, I do.’
9. The Registrant admitted these particulars. The Panel was satisfied that the screenshots of the Registrant’s Facebook postings were good evidence of the facts. For these reasons the Panel found these particulars proved.
Decision on Grounds:
10. Misconduct is a matter for the Panel’s judgment and has been defined as 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 by a medical practitioner in the particular circumstances” and the conduct complained of must be serious. Misconduct may be conduct of a morally culpable or otherwise disgraceful kind which may bring the practitioner or the profession into disrepute.
11. The HCPC submits that the Claimant’s conduct should be judged taking into account:
(a) The BCU’s Code of Conduct, in particular:
3.17 Conduct Away from Work which states:
“Whilst off duty you are expected to conduct yourself in such a way as to not undermine the confidence and trust of the public in the services which the Organisation provides or otherwise bring your profession or the BCUHB into serious disrepute.  This includes inappropriate statements/images made on social networking sites (e.g. Facebook/Twitter/Bebo) which may bring the organisation into disrepute”.
4.2 Serious Misconduct which states:
“Personal behaviour conducted either inside or outside of work or working hours that results in bringing the Health Board or any of its employees into disrepute.”
(b) The Registrant attended training which included guidance on the use of Facebook in relation to work on 15 October 2013.
(c) The Registrant was told not to make any further posts soon after 20 January 2014 but went onto make further posts on 7 April 2014.
12. Under the HCPC Standards of Conduct, Performance and Ethics, Registrants are required to comply the following standards:
3. “You must keep high standards of personal conduct”.
13. “You must… make sure that your behaviour does not damage the public’s confidence in you or your profession”.
13. The Panel had regard to the above standards and concluded as follows:
• As regards particular 1a the Panel is not satisfied that this particular is sufficiently serious to amount to misconduct. The relevant posting was made prior to the introduction of the BCU code and was at an early stage of her Facebook usage when the ramifications of postings were not as clear to her as they subsequently became.
• As regards to particular 1bi, 1bii, 1c, 1e the Panel is not satisfied that these particulars are sufficiently serious to amount to misconduct. The Panel is in no doubt that the postings were inappropriate, but they were rather generic and non-specific. The postings do not reflect high standards of personal conduct. However, the Panel does not consider that they are in breach of BCU code 3.17 and 4.2 or HCPC standards 3 and 13. 
• As regards to particular 1d the Panel is satisfied that this particular is sufficiently serious to amount to misconduct. The posting specifically mentions the NHS. The Panel considers that this is in breach of BCU code 3.17 and 4.2 and HCPC standards 3 and 13.
• As regards to particulars 1fi, 1fiii and 1fv the Panel is satisfied that these particulars are sufficiently serious to amount to misconduct. The postings are specific to the place of work and an individual. The Panel considers that these are in breach of BCU code 3.17 and 4.2 and HCPC standards 3 and 13.
• As regards to particulars 1fii and 1iv the Panel is not satisfied that these particulars are sufficiently serious to amount to misconduct. The Panel has not seen a screen shot of these postings and cannot identify the context in which the postings were written, so as to be satisfied that this does amount to misconduct.
• As regards to particulars 1gi and 1gii the Panel is satisfied that these particulars are sufficiently serious to amount to misconduct. The Panel considers that the postings are offensive and highly emotive. They are clearly in the breach of BCU code 3.17 and 4.2 and HCPC standards 3 and 13.
14. The Panel concludes that the allegation of misconduct is well founded in respect of particulars 1d, 1fi, 1fiii, 1fv, 1gi and 1gii because the Registrant has fallen significantly short of the standards expected in her chosen profession over a significant period, in respect of a large number of Facebook posts made by the Registrant which related to her work or colleagues.  These posts were inappropriate and contrary to workplace policy and the HCPC Standards of Conduct Performance and Ethics. In coming to this conclusion the Panel has put limited weight on the evidence pertaining to the investigation by the BCU because the subsequent appeal demonstrated issues in relation to the process which had been adopted.
15. The Panel finds that the Registrant’s behaviour in respect of particulars 1d, 1fi, 1fiii, 1fv, 1gi and 1gii could be described as conduct which would be regarded as disgraceful by fellow practitioners and amounts to misconduct.
Decision on Impairment:
16. The Panel started by considering the case of Cohen in which it was stated:
 
“the critically important public policy issues which are: the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes amongst other things the protection of service users and the maintenance of public confidence in the profession.”
17. Dame Janet Smith identified the circumstances where impairment might arise as: (a) where a Registrant presents a risk to service users (b) has brought the profession into disrepute (c) has breached one of the fundamental tenets of the profession or (d) has acted in a way that her integrity can no longer be relied upon.
18. The Panel has considered the HCPC Practice Note entitled Finding that Fitness to Practise is “Impaired”. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components: The ‘personal’ component: the current competence, behaviour etc. of the individual Registrant; and the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
19. The personal component in this case relates primarily to the issue of insight into the misconduct, the risk of repetition, whether the misconduct is remediable and whether it has been remedied.
The above Practice Note states: “Mitigating evidence of a general nature such as expressions of regret or remorse are unlikely to be relevant to determining question of impairment…In deciding whether to admit evidence at the impairment rather than the sanction phase, Panels need to consider whether the evidence may assist them to determine whether fitness to practise is impaired. Whilst caution needs to be exercised, an over-strict approach should not be adopted as, it is important that all evidence which is relevant to the question of impairment is considered…”
20. It is a matter for the judgement of the Panel whether, in view of the finding of misconduct, the Registrant’s fitness to practise is impaired.
21. The Registrant states she gained HCPC registration in 2010 as a Band 5 BMS and began working in a Band 6 post in 2013 and became a permanent Band 6 BMS in 2014. However she suffered health problems due to work and academic stress related to her Master of Biomedical Sciences degree studies. She has not obtained any other guidance on the use of social media or re-read the BCU policy. She says she has not had a Facebook account since September 2014 and now realises it can be quite dangerous to use it. She admits her behaviour giving rise to the factual particulars amounts to misconduct and says she has learned a lot since these matters arose.

22. The Registrant says she has not been the subject of any previous complaints concerning her conduct and she has a passion for the BMS profession. She has produced a large volume of evidence of her professional studies at the hearing. The stress of these proceedings has impacted upon her health and she has apologised and expressed her regret for the Facebook postings made by her.

23.  The Panel considers that the Registrant has not put service user’s unwarranted risk of harm in the past and is not liable to do so in the future. There has been no evidence to support risk of harm. The Panel considers that the Registrant has brought the profession into disrepute and breached a fundamental tenet of the profession in the past. The postings found to amount to misconduct were clearly inappropriate and some were offensive. This is in breach of HCPC standard 13 which the Panel regards as a fundamental tenet.

24. The personal components of the case were considered by the Panel. It accepts that the Registrant has demonstrated remorse and some insight. She gave the Panel evidence of her commitment to her profession and there is no evidence of repetition since the particulars of this case arose. The Registrant’s organisation has promoted her which appears to indicate that they have confidence in her.

25. However, the Panel was concerned to note that the postings of 7 April 2014 came after she had been told to be more considered in her use of Facebook. The Panel was further concerned to hear in her oral evidence that the Registrant had not sought any guidance on the use of social media. It accepted her evidence that she no longer uses Facebook, but she does use other social media. For these reasons the Panel has concluded that the Registrant only has partial insight and that there is a risk of repetition. In these circumstances she is liable to bring the profession into disrepute and breach a fundamental tenet of the profession in the future.

26. The public components of the case include protection of the public, declaring and upholding proper standards of behaviour and maintaining public confidence in the profession. The Panel is satisfied that there are no public protection issues in this case. Having concluded that there is a likelihood of repetition because of only partial insight, and that the Registrant is liable to bring the profession into disrepute and breach a fundamental tenet of the profession in the future, it has determined that there is current impairment. To conclude otherwise would not maintain confidence in the profession nor would it uphold proper standards.
Decision on Sanction:
27. The purpose of fitness to practise proceedings is not to punish Registrants, but to protect the public. The Panel has considered the HCPC Indicative Sanctions Policy dated September 2015 (the Policy) which states: “It is important for Panels to remember that a sanction may only be imposed in relation to the facts which a Panel has found to be true or which are admitted by the registrant. Equally, it is important that any sanction addresses all of the relevant facts which have led to a finding of impairment.”

28. The Registrant has supplied medical evidence from her General Practitioner and character references from GA, JC and GC. GA states that he has known the Registrant for 10 years and worked with her for 7 years. He describes her as “an enthusiastic, reliable and trustworthy colleague”. JC states that she is a BMS and has known the Registrant for 14 years and worked with her until 2014. She describes the Registrant as courteous, supportive and well liked.  GC, Consultant Clinical Biochemist, says she has known the Registrant for 13 years and found her to be: “very enthusiastic, hard working and extremely professional in her work”. GC says she has no concerns about the Registrant’s suitability or capability to perform her Band 6 BMS post.

29. The Panel has had regard to the principle of proportionality and the need to balance the interests of the public with those of the Registrant.
30. The Panel heard submissions from both Counsel in relation to the mitigating and aggravating factors before considering (in ascending order) what, if any, sanction to impose. The aggravating features are:
• The findings of misconduct in respect of 6 particulars;
• The breaches of BCU and HCPC standards;
• The limited insight and some risk of repetition;
• The period of time from (October 2013 to April 2014) over which the six postings were made;
• The failure to heed a warning made before the April 2014 postings were made.
31. The mitigating features are:
• No harm was caused to service users;
• The Registrant’s previous good character;
• The misconduct is at the lower end of spectrum;
• The Registrant has provided good character references;
• The Registrant had suffered from health problems at the relevant time;
• The Registrant was under pressure to complete a portfolio of academic study;
• There has been no repetition since these matters arose and the Registrant returned to permanent employment in 2014;
• The Registrant is no longer using Facebook.
32. The Panel decided that to impose no sanction, mediation or a caution is not appropriate, in view of the the risk of repetition.

33. The Policy states:
A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action…Conditions of practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm.

34. There is a risk of repetition therefore it is not appropriate under the Policy to impose a caution order. A caution would not maintain confidence in the profession and uphold the standards of conduct.

35. The Panel finds that:
• the issues giving rise to the misconduct are capable of correction by a Conditions of Practice Order;
• there is no persistent or general failure;
• appropriate, realistic and verifiable conditions can be formulated;
• the Registrant can be expected to comply with conditions of practice;
• a reviewing Panel will be able to determine whether the conditions set out below have been met.

36. Accordingly the Panel makes a conditions of practice order for six months. The Panel considers that this should be ample time for the Registrant to comply with the order and demonstrate remediation.

Order

Order:

The Registrar is directed to annotate the Register to show that, for a period of 6 months, from the date that this Order comes into effect (“the Operative Date”), you, Mrs Elizabeth Brealey must comply with the following conditions of practice:

1. To take guidance on the safe and appropriate use of social media and to read relevant guidance, including that of the HCPC.

2. To produce at least 14 days in advance of the review hearing a reflective piece based on an accredited model demonstrating how you have assimilated the guidance regarding safe and appropriate use of social media.

3. 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); and
c. any prospective employer (at the time of your application).

Notes

The order imposed  will apply from 20 November 2015 (the operative date). This order will be reviewed again before its expiry on 20 May 2016.

An Interim Conditions of Practice Order is imposed to cover any appeal period.  

Hearing History

History of Hearings for Elisabeth Brealey

Date Panel Hearing type Outcomes / Status
21/04/2016 Conduct and Competence Committee Review Hearing No further action
22/10/2015 Conduct and Competence Committee Final Hearing Conditions of Practice