Mr Simeon E Agbonkhina
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Allegations (As amended at Final Hearing):
While registered as a Biomedical Scientist, you were subject to a conditions of practice order that required you to “inform any prospective employer (at the time of application)” that you were subject to conditions of practice, and you:
1. On or around 28 November 2015, applied for the position of Biomedical Scientist Band 5 and/or Band 6 in the Microbiology Department of St. Helier Hospital, and on the application form did not:
a) Inform that you had been the subject of a fitness to practise investigation and proceedings by a regulatory body in the UK
b) Provide details of the proceedings that you were subject to at the time
c) Inform that you were at the time subject to conditions of practice made on your registration by a fitness to practise committee in the UK
2. Your actions at paragraph 1 were dishonest.
3. The matters described in paragraphs 1 - 2 amount to misconduct.
4. By reason of that misconduct, your fitness to practise is impaired.
Application to Amend
1. At the outset of the hearing Mr Ross, on behalf of the HCPC, made an application for the stem of Particular 1 and Particular 1(a) of the Allegation to be amended. The Registrant had been put on notice of the proposed amendments in a letter, dated 10 August 2016, and no objection had been raised at that time or since.
2. The Panel determined that the stem should be amended by adding ‘and/or Band 6’ and that Particular 1(a) should be amended by replacing the words ‘were at the time’ with ‘had been’. The Panel was satisfied that the proposed changes were minor in nature and did not materially alter the substance or meaning of the Allegation as originally drafted.
3. The Panel was also satisfied that no injustice would be caused by making these amendments as they accurately reflected the HCPC case. In forming this view the Panel took into account the fact that the Registrant had been put on notice of the HCPC’s application in advance.
4. The Registrant submitted an application for the position of a Biomedical Scientist at St. Helier Hospital on 28 November 2015. The Registrant did not state on the application form that he was subject to a fitness to practise investigation at the HCPC and had Conditions of Practice on his registration. The case was referred to the HCPC by Witness 1, who reviewed the Registrant’s application form and became aware that the Conditions of Practice had been omitted.
Decision on facts
5. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything. Although the Registrant made admissions at the outset of the hearing, the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.
6. The Panel accepted the advice of the Legal Assessor.
Assessment of Live Witnesses
7. The Panel assessed the evidence of each witness as follows:
Witness 1 – Biomedical Scientist (St Helier Hospital)
Witness 1 provided the Panel with evidence regarding the application process for biomedical scientists and her recollection of her first review of the Registrant’s application. The Panel found Witness 1 to be a credible and reliable witness. She did her best to assist the Panel and made it clear if something was outside of her knowledge.
8. The Registrant gave a clear and consistent account of his conduct and behaviour regarding the completion of the applications to St Helier. When questioned about how his character witness statements came to be produced he initially lied by informing the Panel that he had no involvement. After being released from his oath and after the luncheon adjournment the Registrant was recalled. He admitted on this occasion that his previous response had been a lie. He stated that he had provided the character witnesses with a template and took the Panel through the sections of each statement that were part of the original template.
9. The Panel formed the view that the Registrant’s evidence demonstrated a deliberate attempt to mislead and this had the effect of undermining his evidence as a whole.
Character Witnesses – AH and PH
10. The Panel had no reason to doubt that Witness AH and PH were anything other than honest and reliable witnesses. However, as they were unaware of the full extent of the Allegations and the Registrant’s admitted conduct their evidence was of limited assistance.
Stem - Found Proved
Whilst registered as a Biomedical Scientist, you were subject to a conditions of practice order that required you to ‘inform any prospective employer (at the time of application’ that you were subject to conditions of practice, and you:
11. The Panel was provided with copies of the Notice of Decision and Order following the substantive reviews that took place on 7 November 2014 and 20 November 2015. Based on the documentary evidence the Panel was satisfied that during the relevant period the Registrant was registered as a Biomedical Scientist and was made subject to a condition that required any prospective employer to be notified of the Conditions of Practice Order at the time of application.
12. In these circumstances the stem was found proved.
Particular 1(a) – Found Proved
On or around 28 November 2015, applied for the position of Biomedical Scientist Band 5 and/or Band 6 in the Microbiology Department of St Helier Hospital, and on the application form did not:
(a) Inform that you had been the subject of a fitness to practise investigation and proceedings by a regulatory body;
13. The Panel accepted the oral evidence of Witness 1, the documentary evidence and the Registrant’s own evidence that he submitted an application to St Helier Hospital for the Band 5 and Band 6 post. On page 2 of the form there is a section which refers to ‘Any other information relevant to your registration such as sections of register or restrictions on practice’. The Registrant accepted that this is where he should have made reference to his Conditions of Practice, which were due to be replaced with a 2 year Caution Order on 20 December 2015. Instead the Registrant chose to leave this section blank.
14. The Panel was satisfied that the Registrant did not inform St Helier of his fitness to practise restrictions.
15. Accordingly, Particular 1(a) was found proved.
Particular 1(b) – Found Proved
(b) Provide details of the proceedings that you were subject to at the time.
16. The Panel took into account its findings in relation to Particular 1(a). The space on the form where the appropriate declaration should have been made was left blank. As a consequence the Panel concluded that the Registrant did not provide details of the proceedings which he was subject to at the time. In reaching this conclusion the Panel took into account the Registrant’s admissions at the outset of the hearing and during his oral evidence.
17. Accordingly, Particular 1(b) was found proved.
Particular 1(c) – Found Proved
(c) Inform that you were at the time subject to conditions of practice made on your registration by a fitness to practise committee in the UK;
18. The Panel took into account its findings in relation to Particular 1(a) and (b). As a consequence the Panel concluded that the Registrant did not inform St Helier Hospital that at the time of his application he was subject to conditions of practice imposed by a fitness to practise committee. In reaching this conclusion the Panel took into account the Registrant’s admissions at the outset of the hearing and during his oral evidence.
19. Accordingly, Particular 1(c) was found proved.
Particular 2 (Dishonesty) – Found Proved
20. The Registrant admitted that his omissions on the application form to St Helier Hospital were dishonest.
21. The Panel was satisfied that the Registrant’s deliberate concealment of his fitness to practise history and current Conditions of Practice Order was dishonest. The Registrant knew that disclosure of his conditions was a specific requirement of his Conditions of Practice Order. The fact that the Registrant may have gone on to make full disclosure of his fitness to practise history, had he been shortlisted for the post, did not make his actions at the time of the application anything less than dishonest. The Registrant chose to conceal his Conditions of Practice to improve his chances of being shortlisted for the role as his current contract of employment was due to expire at the end of December 2015.
22. The Panel was satisfied that the Registrant’s actions were dishonest by the standard of honest and reasonable people. At the time the Registrant deliberately omitted the relevant disclosures, he chose to set his own standard, although he knew his actions were dishonest by the standards of honest and reasonable people.
Decision on grounds
23. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2)  1 AC 311 where it was stated 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 by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”
24. The Panel was satisfied that the Registrant’s conduct and behaviour amounts to serious misconduct as described in the Roylance case.
25. The Registrant dishonestly completed applications forms with a view to gaining employment. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that the Registrant’s conduct breached the following standards:
· 3 - You must keep high standards of personal conduct.
· 13 – You must behave with honesty and integrity and make sure your behaviour does not damage the public’s confidence in you or your profession.
26. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied that the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner.
Decision on Impairment
27. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.
28. In determining current impairment the Panel had regard to the following aspects of the public interest:
· The ‘personal’ component: the current 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.
29. The Panel found that the Registrant dishonestly provided an incomplete and inaccurate application form in breach of his Conditions of Practice Order, to enhance his prospects of appointment, by denying St Helier Hospital the opportunity to make their own assessment of the relevance of his fitness to practise history. The Registrant knew that full disclosure of his conditions was required. In particular the Panel noted, that at the review hearing that took place on 7 November 2014, it was brought to the attention of the reviewing panel that the Registrant had concealed the existence of his Conditions of Practice Order from an employment agency and his temporary employer. The Registrant informed that panel that he had been ‘foolish’ and his actions would not be repeated.
30. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.
31. The Panel recognised that at the review hearing that took place on 20 November 2015, the Conditions of Practice Order was replaced with a 2 year Caution Order which would not come into effect until 20 December 2015. However, this did not entitle the Registrant to disregard his obligation to disclose the conditions he was subject to at the time of his application. The Panel was satisfied that the Registrant breached a fundamental tenet of the profession by acting dishonestly.
32. The Panel was not satisfied that the Registrant had demonstrated any insight. He did not seem to understand the seriousness of dishonest acts. In particular, the Registrant did not demonstrate that he fully appreciated the consequences of his actions on public trust and confidence and the regulatory process. The Registrant’s approach in relation to disclosure in this particular occasion suggests a failure to understand and take seriously his professional obligation to be trustworthy at all times. There was also no evidence before the Panel that the Registrant had properly reflected on the impact of his behaviour on St Helier Hospital, who received his employment application(s), based on a legitimate expectation of openness and honesty.
33. The Panel recognised that demonstrating remediation following a finding of dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. The Registrant’s dishonest conduct relates to a discrete set of circumstances, which is capable of remediation, however the Panel was not satisfied that there was any insight and therefore it concluded that the risk of repetition is high. In reaching this conclusion the Panel took into account the Registrant’s assurances to the review panel that he would not repeat his previous failure to disclose his Conditions of Practice and then just over a year later went onto repeat the failure. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.
34. In considering the public component the Panel had regard to the critically important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.
35. In the Panel’s view the dishonest omissions in the application forms are serious. Members of the public would be concerned by the prospect of a Biomedical Scientist making a dishonest application for employment in breach of a Conditions of Practice Order. It is critically important that regulatory proceedings and recruitment processes have integrity and accurate application forms are a vital part of that process.
36. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is not acceptable for a registered Biomedical Scientist to dishonestly withhold information on application forms in breach of a specific order. The Panel concluded that public confidence would be undermined if a finding of impairment was not made, given the seriousness of the Registrant’s dishonest conduct and behaviour.
37. The Panel concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.
38. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.
39. The Panel had regard to the Indicative Sanctions Policy (ISP) and took into account the submissions made by Mr Ross, on behalf of the HCPC and the submissions made by Ms Fudakowski, on behalf of the Registrant.
40. The Panel identified the following aggravating factors:
· The Registrant was on notice that failure to disclose his Conditions of Practice Order to prospective employers would be a cause for concern;
· The absence of full insight;
· The Registrant lied under oath during these proceedings;
· The Registrant was subject to a Conditions of Practice Order at the time the dishonest applications were submitted.
41. The mitigating factors identified by the Panel were as follows:
· The Registrant made full admissions;
· The Registrant engaged in the regulatory process;
· There was no risk to service users;
· There was no direct impact on colleagues;
· The Registrant was under considerable financial pressure having made over 100 unsuccessful job applications.
42. The Panel first considered taking no action. The Panel concluded that in view of the nature and seriousness of the Registrant’s dishonest behaviour and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.
43. The Panel then considered a Caution Order. The Panel noted paragraph 22 of the ISP which 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 action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate. A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”
44. In view of the Panel’s findings that the Registrant has demonstrated no insight into his misconduct, the risk of repetition is high and given the serious nature of his conduct and behaviour, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.
45. The Panel went on to consider a Conditions of Practice Order. The Panel noted that the ISP states:
‘Conditions of practice are unlikely to be suitable in situations where problems cannot be overcome, such as serious overall failings, lack of insight, denial or matters involving dishonesty..”.
46. The Panel concluded that the dishonest completion of employment application forms is not amenable to conditions, as the basis for this type of misconduct is an attitudinal failing. The Panel was unable to formulate conditions which would be workable, measurable or proportionate. Furthermore, conditions would not adequately address the serious nature of the misconduct and so would undermine public confidence in the profession and the need to uphold standards of conduct and behaviour.
47. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Biomedical Scientist. However, although the Registrant has fully engaged with these proceedings, he has demonstrated no insight into his wrongdoings and has not remediated his previous misconduct to the extent that the risk of repetition remains high, despite his assurance to the reviewing panel in November 2014 that his failure to disclose his Conditions of Practice Order would not be repeated. The Panel concluded that the Registrant had demonstrated a blatant disregard for the regulatory process and his obligations as a registered professional. Such behaviour is fundamentally incompatible with continued registration.
48. In these circumstances a Suspension Order would not be sufficient to maintain public trust in the profession and the regulatory process and would not have a deterrent effect on other registrants. The Panel balanced the wider public interest against the Registrant’s interests. In doing so, the Panel took into account the fact that the Registrant struggled to find employment when he was subject to restrictions and the consequential personal, financial and professional impact this had upon him.
49. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those category of cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of his misconduct, his persistent lack of insight and the high risk of repetition.
50. The Panel was also satisfied that any lesser sanction would undermine public confidence. The Panel had regard to the impact a Striking Off Order would have on the Registrant, but concluded that his interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.
51. The Panel decided that the appropriate and proportionate order is a Striking Off Order.
ORDER: That the Registrar is directed to strike the name of Simeon Agbonkhina from the Register on the date this order comes into effect.
No notes available
History of Hearings for Mr Simeon E Agbonkhina
|Date||Panel||Hearing type||Outcomes / Status|
|23/11/2016||Conduct and Competence Committee||Final Hearing||Hearing has not yet been held|
|20/11/2015||Conduct and Competence Committee||Review Hearing||Caution|