Mr Gary R Buswell

Profession: Biomedical scientist

Registration Number: BS28635

Hearing Type: Review Hearing

Date and Time of hearing: 09:30 05/02/2016 End: 12:30 05/02/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As found proved at the Final Hearing on 05 February 2015.

Whilst registered as a Biomedical Scientist:

1. On 7 May 2013 at Birmingham Magistrates’ Court you were convicted of:
Driving a motor vehicle, after consuming so much alcohol that the proportion of it in your blood, namely 260 milligrammes of alcohol in 100 millilitres of blood, exceeded the prescribed limit.

2. Between the 1 October 2013 and 28 November 2013 you did not declare the above conviction during your renewal process.


3. The matter set out in paragraph 2 constitutes misconduct.

4. By reason of your misconduct and conviction your fitness to practise is impaired.

Finding

Preliminary Matters

The Panel was satisfied, on the basis of the available documents, that proper notification of this hearing had been given to the Registrant, in accordance with Rule 3 of The Health Professions Council (Conduct and Competence Committee) (Procedure) Rules Order of Council 2003 (“the Rules”).

The Registrant was neither present nor represented. Ms Viriri, on behalf of the HCPC made an application to proceed in the absence of the Registrant. She submitted that the Registrant had failed to engage in this process. The last contact from the Registrant had been on the 09 February 2015 by a telephone call from Mr Allan Coppell, the then employer of the Registrant. He said the Registrant had sent in documents, however these had not been received by the HCPC. The Registrant was afforded an opportunity to provide the documents by 12 March 2015. No documents have been received and there has been no contact with the Registrant. Ms Viriri submitted that an adjournment would serve no useful purpose as there was no indication that the Registrant would attend any future date. She further submitted there is a public interest in the expeditious disposal of the case.

The Panel heard and accepted the advice of the Legal Assessor. It noted that proceeding in the absence of the Registrant was a discretion which must be exercised with the utmost care and caution.

The Panel concluded that there would be no benefit in adjourning the case as there was no indication that the Registrant would attend at any future hearing. The Panel found that the Registrant had voluntarily absented himself and that it was in the public interest to proceed to hear the case in the Registrant’s absence. The Panel noted that the Suspension Order must be reviewed before it expires.

Background

The Registrant was a Biomedical Scientist at the Heart of England NHS Foundation Trust (the Trust).

On 29 July 2013, the HCPC received a letter from an anonymous “concerned colleague” stating that the Registrant had received a conviction for driving a motor vehicle with excess alcohol. The HCPC contacted the Trust, which confirmed the information. Subsequently, the HCPC obtained a certificate of conviction from Birmingham Magistrates’ Court which stated that the Registrant pleaded guilty on 7 May 2013 to:

 “On 11 March 2013 at Belwell Lane, Sutton Coldfield in the county of West Midlands drove a motor vehicle, namely a BMW 320 SE Touring...after consuming so much alcohol that the proportion of it in your blood, namely 260mg in 100ml of blood, exceeded the prescribed limit.”

The Court sentenced the Registrant to a fine of £600 and disqualified him from driving for 24 months. The option of reducing the disqualification period by 24 weeks was afforded to the Registrant if he successfully completed an approved driving awareness course. In addition, the Registrant was ordered to pay the victim surcharge and a contribution to the Crown’s costs of £135.

The Registrant was under a duty to notify the HCPC that he had been convicted of a criminal offence. He did not do so. Furthermore, the Registrant was required to declare his conviction when renewing his HCPC registration between October and November 2013. He did not do so.

At the Final Hearing of the 05 February 2015 Mr Buswell failed to attend and the hearing proceeded in his absence. The panel on that day heard the evidence and found all of the matters proved. That panel concluded on the basis of the evidence before it that the Registrant deliberately did not declare his conviction to the HCPC when renewed his registration in 2013. The panel found that all of the matters found proved were serious and amounted to misconduct. It found that his fitness to practise was impaired and imposed a sanction of 12 months suspension.

The panel ordered that there should be a review before the end of the suspension and said that the Reviewing Panel may be assisted by the Registrant’s attendance at the hearing and by having before it (submitted by the Registrant) the following:

- Evidence that the Registrant has understood the gravity of his conviction and misconduct;
- Written evidence from the Registrant addressing how he has reflected upon this Panel’s findings, upon the HCPC standards which he breached, how he intends to ensure that the offence and his misconduct will not be repeated and his intentions regarding returning to work;
- Evidence that the Registrant has addressed any personal issues which might have existed at the time he committed the offence.

Decision

This Panel is reviewing that order of suspension. The Registrant has failed to attend and failed to provide any information to the Panel. The Panel first considered whether his fitness to practise remains impaired. In the absence of any information that the Registrant understands the gravity of his conviction and misconduct, and the absence of any information regarding his present position, and the fact that he has not worked as a Biomedical Scientist for at least a year, the Panel considers that his fitness to practise remains impaired.

Having decided that the Registrant’s fitness to practise is impaired the Panel went on to consider the question of sanction. In making that decision, the Panel took account of the aggravating factors. It considered that the original conviction was serious, the level of alcohol recorded was over three times the legal limit, the Registrant was driving at midday, he collided with a lamppost in a place where the public were present, and was clearly a potential risk to those members of the public. He failed to report the conviction to his regulator although he had at least two opportunities to do so. The previous panel concluded that his failure to declare the conviction was deliberate. Finally, there is no evidence of contrition or insight by the Registrant into his behaviour. In relation to mitigating factors, the Panel accepted that the Registrant expressed remorse to the police when he was arrested, the Registrant had no previous cautions or convictions recorded against him, he had had no other findings made against him by his regulator, and there was no evidence of any lack of competence or concerns about his performance at work.

In view of the seriousness of the case, to take no further action, to order mediation or to impose a Caution Order would not be sufficient to protect the public, maintain confidence in the profession or maintain confidence in the regulatory process.

The Panel considered whether it would be appropriate to impose a Conditions of Practice Order. The Panel has no recent information from the Registrant as to his current status or intentions regarding work. Furthermore, the Panel concluded that, as the impairment related to matters which had nothing to do with the Registrant’s clinical skills or competence, it would not be possible to formulate conditions to reflect the areas of concern in this case. In addition, due to the lack of engagement by the Registrant, the Panel has no confidence that the Registrant would comply with any conditions imposed upon him.

The Panel took into account the Registrant’s misconduct and conviction, which had the potential to cause harm to the public, and to undermine the reputation of the profession because of his failure to declare the conviction. The Panel also noted the Registrant’s failure to acknowledge the seriousness of his failings. The Panel is of the view that an extension of the present Suspension Order for 12 months is appropriate. The Panel considers that the Registrant still may have the capacity to resolve the prevailing issues and a further period of suspension will enable him to seek to address those issues.

There have been no allegations concerning the Registrant’s competence and the Panel considers that in these circumstances, it is proper to afford the Registrant a last chance. The Panel is also of the view that a Suspension Order will adequately protect the public as, given the risk of recurrence, it will restrict the Registrant from practising. There is also a particular need in the circumstances of this case to deter others, who may find themselves in similar situations, from failing to declare criminal convictions to their regulator.

The Panel is aware that suspending the Registrant’s right to practise may well impact upon him financially and may have an adverse effect upon his professional reputation. However, the Panel considers that the Registrant’s interests are outweighed by the public interest in this regard as it is necessary to impose such an order to protect service users, to maintain and uphold proper standards of conduct and to maintain confidence in the profession and the regulatory process.

The Panel considered whether to impose a Striking Off Order but it determined that the Registrant’s failures, whilst serious, were not fundamentally incompatible with his remaining on the Register. The Panel noted that the evidence stated that there had been no concerns about the Registrant’s competence. It noted that the Registrant has been working as a Biomedical Scientist for a considerable length of time (since 1984) and that there are no previous findings against him. For these reasons the Panel concluded that to permanently deprive the public of the services of the Registrant would, at this stage, be disproportionate. The Panel concluded that the Registrant should be given an opportunity to address the findings of this Panel and the reasons which led to the referral, and on that basis, a Suspension Order would be appropriate.

This Order will be reviewed before its expiry. The reviewing panel may be assisted by the Registrant’s attendance at the hearing and by having before it (submitted by the Registrant) the following:
- Evidence that the Registrant has understood the gravity of his conviction and misconduct;
- Written evidence from the Registrant addressing how he has reflected upon this Panel’s findings, upon the HCPC standards which he breached, how he intends to ensure that the offence and his misconduct will not be repeated and his intentions regarding returning to work;
- Evidence that the Registrant has addressed any personal issues which might have existed at the time he committed the offence.

In view of the absence of any information from the Registrant as to his current status with regards to his employment, and the serious departure from the standards expected of the Registrant, the Panel concluded that imposing a Suspension Order for the maximum period of 12 months was appropriate. Such time will give the Registrant the opportunity to address and reflect upon the findings of the Panel. Should, however, the Registrant continue to fail to engage with the process, and fail to provide any information, a future reviewing panel may take a different view.

Order

The Panel confirms the Suspension Order imposed on 05 February 2015 and extends it for a further 12 months.

Notes

The order imposed today will apply from 05 March 2016.

This order will be reviewed again before its expiry on 05 March 2017.

Hearing History

History of Hearings for Mr Gary R Buswell

Date Panel Hearing type Outcomes / Status
09/02/2017 Conduct and Competence Committee Review Hearing Struck off
05/02/2016 Conduct and Competence Committee Review Hearing Suspended