Mr Richard K Hoare

Profession: Biomedical scientist

Registration Number: BS34738

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 28/11/2016 End: 17:00 01/12/2016

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Allegation (as amended at the final hearing)
During the course of your employment as a Biomedical Scientist at Dartford and Gravesham NHS Trust, between 10 and 13 February 2015 you:
1. Slapped Colleague A on the bottom.
2. Made inappropriate comments and/or an inappropriate sound to Colleague A, such as:
a) ‘Hello Wiggles’, or words to that effect;
b) made a growling sound;
c) that you felt ‘lusty’, or words to that effect.
3. Apologised to Colleague A regarding paragraph 1 in front of other colleagues and/or gave a thumbs-up hand gesture.
4. Your actions described in paragraphs 1, 2a, 2b and/or 2c were sexually motivated.
5. Consumed alcohol during your lunch break.
6. Attended work under the influence of alcohol.
7. The matters set out in paragraphs 1 - 6 constitute misconduct.
8. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters
1. At the commencement of the proceedings Ms Mond Wedd, on behalf of the HCPC, made an application to amend the Allegation. She submitted that the amendment related to matters that were minor in nature and served only to clarify issues in the Allegation. The amendment did not alter any of the matters alleged against the Registrant. The Registrant had been notified of the proposed amendment by a letter dated 25 August 2016 and had not made any objection. The Registrant did not object to this course of action today. The Panel accepted the advice of the Legal Assessor that an amendment could be made to the Allegation if there was no injustice. It considered that, as there was no objection to the proposed amendment, there was no injustice and the Allegation was therefore amended.

Background
2. The Registrant started employment with the Dartford and Gravesham NHS Trust (The Trust) as a Band 6 Specialist Biomedical Scientist on 15 September 1997. He was initially based at Joyce Green Hospital Dartford and transferred to Darent Valley Hospital when the laboratory relocated there in 2000. At Darent Valley Hospital he worked in Haematology and Blood Transfusion.

3. It is alleged that on 11 February 2015 Colleague A was in the Pathology Department talking to Colleague B. The Registrant walked by, said ‘Hello Wiggles’ and smacked her on the bottom. They were known to each other and had a good working relationship prior to this incident. The Registrant had called her ‘Wiggles’ previously due to the way in which she walked. She had not taken offence before as she understood the comment as a ‘fun joke’ and ‘not meant in a horrible way’, and other people had not been present. This incident however occurred in a busy environment and was accompanied by the smack to her bottom. The Registrant made a growling noise and walked on. Colleague A was taken aback and shocked. The incident was witnessed by Colleague B.
 
4. Later that day Colleague A was in the staffroom when she saw the Registrant again. He spoke to her and is alleged to have said that he was feeling ‘lusty’. Colleague A subsequently reported the incident to Colleague C who promptly discussed it with Witness 1 and the General Manager. The General Manager then instructed Colleague C to have an informal meeting with the Registrant to gather information about what had happened. At that meeting, which took place shortly afterwards, Colleague C formed the impression from the Registrant’s demeanour that he had been drinking. When asked, the Registrant admitted that he had been to the pub at lunchtime.

5. The following day the Registrant saw Colleague A in the presence of a number of her colleagues. He apologised to her in such a manner that Colleague A thought that the apology was insincere. He accompanied his words with a ‘thumbs up’ gesture.

6. Witness 1 was asked to undertake a formal investigation. Colleagues A, B and D were interviewed as well as the Registrant. A formal hearing was held, following which the Registrant was dismissed. The matter was reported to the HCPC on 17 July 2015.

Decision on facts
7. The Panel carefully considered all of the evidence it had heard. It bore in mind the submissions of both Ms Mond Wedd for the HCPC and the Registrant. It accepted the advice of the Legal Assessor. The Panel looked at each Particular of the Allegation separately and applied the appropriate burden and standard of proof.

8. The Panel first considered the witnesses who had given evidence. The Panel found Colleague A to be a reliable and trustworthy witness. She was credible and consistent and responded openly to all questions. The Panel considered that Colleague C and Witness 1 were also credible witnesses.

9. The Registrant gave his evidence, which was generally consistent with what he had said during the Trust investigation. The Panel considered that he was credible. He was accepting and open in his responses and did not challenge in any substantive way the evidence of others. He was helped by both the Legal Assessor and the Panel Chair when he could not follow the line of questioning. The Panel considered that, although the Registrant was a credible witness, he presented as someone who did not seem to be fully aware of his professional obligations. For example when asked if he had read the policies of relevance to the matters in question at his current place of employment, he replied that he was aware of them but had not read them.

10. The Panel considered each Particular of the Allegation separately:

Particular 1 is found proved
11. Colleague A was credible and the fact of slapping her bottom was not disputed by the Registrant. Therefore the Panel found this Particular proved.

Particular 2 is found proved
12. Colleague A was consistent in her testimony in relating all of the separate events described in this Particular. The Registrant did not deny that the events had taken place. He said that he had no recollection of them and could not recall anything but stated that he had no reason to doubt what Colleague A had reported. The Panel therefore found this entire Particular proved.

Particular 3 is found proved
13. Colleague A was credible and the fact that the apology was made by the Registrant in front of others and could have been accompanied by a ‘thumbs up’ gesture   was not disputed by the Registrant. Therefore the Panel found this Particular proved.

Particular 4 is found proved
14. In considering whether the actions were sexually motivated the Panel considered the criminal case R. v. H (Karl Anthony) ([2005] EWCA Crim 732) which had been referred to by Ms Mond Wedd, and section 78 of the Sexual Offences Act 2003 for the meaning of the word ‘sexual’ in the context of criminal proceedings. The Panel also took note of the common meaning of the words sexually motivated. The Panel considered that all of the matters it had found proved, i.e. the actions of slapping Colleague A’s bottom, growling and saying he was feeling lusty, taken together, led it to conclude that the actions were sexually motivated and that this Particular is found proved.

Particular 5 is found proved
15. The Registrant admitted this, saying that he had consumed 2 pints over lunchtime before returning to work. The Panel therefore found this Particular proved.

Particular 6 is found proved
16. The Registrant returned to work having consumed 2 pints of beer. His subsequent behaviour, and lack of recall of what he had said to Colleague A, indicated some impairment. The Panel consider that it is more likely than not that he was under the influence of alcohol. Therefore this Particular is found proved.

Decision on grounds
17. Having found all of the facts proved the Panel went on to consider whether they amounted to misconduct. It bore in mind the submissions made by Ms Mond Wedd and the advice of the Legal Assessor that the misconduct must be of a serious nature or behaviour that is dishonourable or disgraceful, such that fellow practitioners would have regarded it as deplorable.

18. The Panel considered that the matters found proved breached a number of standards in both the “Standards of proficiency: Biomedical scientists”:
3.1 understand the need to maintain high standards of personal and professional conduct.

9.1 be able to work, where appropriate, in partnership with service users, other professionals, support staff and other.

And the HCPC “Standards of conduct performance and ethics”
3.  you must keep high standards of personal conduct

13. you must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession…You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.

19. The conduct found proved in this case was inappropriate and against the applicable standards. It was a serious falling short of the duty that the Registrant owed to a work colleague. The Registrant’s behaviour in drinking alcohol during working hours had the capability of further undermining public confidence in the profession. The conduct was serious and the Panel considers it amounted to misconduct.

Decision on impairment 
20. The Panel then considered whether the Registrant’s fitness to practise is currently impaired because of his misconduct. The Panel considered both the “personal” component, namely the current competence and behaviour of the Registrant; and the “public” component, namely the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

21. In relation to the personal component, the Panel considers that the inappropriate behaviour of the Registrant towards a work colleague and his consumption of alcohol during working hours in contravention of a clearly laid down policy are serious. The latter carries the possibility that the Registrant could have made mistakes in his work which might have impacted upon patient safety. He said he was aware of policies on consumption of alcohol in his current place of work although he had not read them. He assured the Panel that he no longer consumed alcohol during working hours and had not done so since the incident.

22. With regard to inappropriate behaviour towards colleagues the Registrant now appeared to be aware of the impact that such behaviour might have on the individual to whom it is directed. However he has given little evidence of remediation in terms of reflective learning as to why he behaved in the way he did. His assurance that he was now more guarded and would step back from participating in banter did not appear to reflect full insight.

23. The Panel therefore considers that his misconduct has not been fully remediated and there is some risk of repetition. The Panel finds that the Registrant’s fitness to practise is impaired because of the “personal” component of impairment.

24. The Panel went on to consider whether the Registrant’s fitness to practise was impaired because of the “public” component. The Panel considers that the behaviour of the Registrant in slapping the bottom of a female colleague, making suggestive comments to her and consuming alcohol at lunch before returning to work undermines public confidence in the profession. The Panel therefore finds that the Registrant’s fitness to practise is also impaired because of the “public” component of impairment.

Decision on sanction
25. Having found that the Registrant’s fitness to practise is impaired by reason of his misconduct, the Panel went on to consider the question of sanction. In making this decision the Panel is fully aware that the primary purpose of the sanction is not to be punitive but to determine the degree of public protection which may be required as a result of the Registrant’s impairment of fitness to practise. The Panel considered all of the matters that had been put before it including the evidence given by the Registrant and the reference dated the 17 October 2016 from his current employers.

26. The Panel first determined the aggravating factors;

Aggravating factors
27. The Registrant contravened two Trust policies concerning appropriate conduct at work with which he had failed to familiarise himself.

28. The Panel then considered the mitigating factors

Mitigating factors
29. The Registrant has either admitted or not contested the particulars of the allegation from the outset thus sparing Colleague A the added distress of lengthy cross-examination.

30. There appeared to be a longstanding culture amongst the pathology staff of regular drinking of alcohol at lunch at a local pub. The Registrant said that the group included staff in more senior, managerial positions. Colleague C had raised her concerns about this clear contravention of Trust policy with the Pathology General Manager in 2012 but nothing had been done. It was not until after the incident giving rise to this allegation that the General Manager circulated an email to staff reminding them of the need to adhere to the policy.

31. This was a one-off occurrence in an otherwise lengthy and unblemished career as far as disciplinary or regulatory investigation was concerned.

32. The finding of misconduct in this case involves an abuse of trust in the working relationship between the Registrant and a colleague, and a careless disregard of the consequences of drinking alcohol during the working day. The Registrant may have convinced himself that his work performance would be unaffected by drinking two pints of beer at lunchtime but there was no objective or measurable basis for him to assert this. The Trust policy made no provision for individual responses to alcohol – it stated clearly that “employees must not consume alcohol …at any time while at work including during rest or meal breaks spent at or away from work premises.” 

33. The misconduct is too serious not to attract a sanction. Mediation may have been an appropriate approach to take in respect of the Registrant’s relationship with Colleague A but would not have been applicable in respect of the particulars concerning alcohol.
 
34. The Panel has taken note of the HCPC’s Indicative Sanctions Policy (ISP). This states that “a caution order is appropriate 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”. The incident with Colleague A was an isolated lapse and limited to two inappropriate actions on one afternoon and a token apology the following day. The Registrant’s habit of going to the pub with a group of work colleagues for lunch and consuming alcohol at the same time was long established and there appeared to be a degree of acceptance of this practice amongst management. The Registrant was firm in his assurances that he had stopped drinking alcohol at lunch after the General Manager’s email on alcohol in the workplace was received on 16 February 2016. He was adamant that he had not done so since and would not do so again. The Registrant was equally firm that he would never again behave towards a colleague as he had with Colleague A. He had not appreciated how upset she had been at the time. It was only when he read her subsequent statement to the Trust investigation that he appreciated the effect his actions that day had had on her. He had then sought her out to apologise again and had understood her to accept that apology.

35. Whilst the Panel would have preferred the Registrant to have demonstrated a more informed basis to remediation, through reflections on the incident and the learning he had gained from it, there was sufficient evidence that he was exercising self-discipline for the Panel to conclude that the risk of repetition was low. The Registrant had worked as a Band 6 Biomedical Scientist with another employer since 8 July 2015 and had submitted a reference from his manager which referred to him as “a very competent member of staff, reliable and (whose)…commitment to the post is unquestioned.” The Registrant confirmed, when asked, that his manager was aware of the HCPC proceedings.

36. The Panel considered whether a Conditions of Practice Order would be an appropriate means of ensuring the necessary level of reflective understanding on the part of the Registrant. A requirement to provide a substantive reflective piece commenting on the relevant policies and further training that he might usefully undertake was an option. However, based on his responses during the hearing, the Panel felt that the Registrant might struggle to articulate such learning and that it would add little to the remorse he had exhibited and the self-restraint he was now resolved to apply.

37. In the circumstances the Panel determined that a Caution Order would serve as the most effective expression of disapproval for the Registrant’s behaviour in terms of the public component. It would also meet the personal component of impairment in that it would ensure that the Registrant would continue to refrain from such behaviour or, indeed, any conduct that might bring him before his regulator again. A Caution Order, together with the experience of attending this hearing, would provide sufficient opportunity for the Registrant to reflect fully on his past misconduct and uphold proper standards of conduct in the workplace. The Panel noted that the ISP identified 3 years as the benchmark period for a Caution Order and considered that this would be the appropriate duration in this instance.

38. The Panel considered imposing a Suspension Order but determined that this would be disproportionate and punitive in the circumstances of this case.

Order

That the Registrar is directed to annotate the register entry of Mr Richard K Hoare with a caution which is to remain on the register for a period of 3 years from the date this order comes into effect.

Notes

The order imposed today will apply from 28 December 2016 (the operative date)

Hearing History

History of Hearings for Mr Richard K Hoare

Date Panel Hearing type Outcomes / Status
28/11/2016 Conduct and Competence Committee Final Hearing Caution