Mr James Basey

Profession: Biomedical scientist

Registration Number: BS37370

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 06/10/2016 End: 16:00 06/10/2016

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Allegation (As Amended)

Whilst employed as a Band 6 Biomedical Scientist within the Haematology Department at the Royal Cornwall Hospital NHS Trust between 2007 and 2014, you:

1) Intimidated and bullied Colleague A by:

a) Throwing fake punches at him as you walked past;

b) Barging past him;

c) Pushing him; and

d) Shining a laser bar code scanner in his face.

2)  Made inappropriate comments to colleagues in that you:
a) In relation to Colleague B:

i) said, "look what dime bar's done, he's stupid", or words to that effect;

ii) called him a "numpty", or words to that effect;

iii) that he was "pulling a sickie", or words to that effect, when he had a known health issue.

b) In relation to Colleague C:

i) said that she "took so many pills that she rattled", or words to that effect;

ii) said that she "was a mad person, a man hater", or words to that effect.

c) In relation to Colleague D:

i) called him a "fat lazy git", or words to that effect.

3) Behaved in an inappropriate and intimidating manner towards colleagues, in that you:

a) Deliberately knocked into other people's chairs;

b) Invaded people's personal space;

c) Blamed Colleague E for not completing a task and refused to let her speak which caused her to get upset and leave work;

d) Shouted at staff and spoke to them in a belittling way;

e) Ignored work related questions from colleagues;

f) Whilst in the laboratory, told Colleague G that you had "got a gun and had been shooting birds from the kitchen window", or words to that effect.

4) Provided incorrect instructions to colleagues, in that you:

a)  Told Colleague A:

i. to throw away a blood sample;

ii.  to leave the registration of a sample received from a GP surgery until the next morning;

iii. he could take his second break at 5:30 pm and then reported him the next day for doing so.

b) Told Colleague F not to freeze a mast cell tryptase test sample before sending.

5)  Threw printed out results from analysers into the bin without reviewing them.

6)  The matters described in paragraphs 1 - 3 amount to misconduct.

7)  The matters described in paragraphs 4 and 5 amount to misconduct and/or lack of competence.

8)   By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel was informed that an original notice of hearing was sent to the Registrant’s address, as it appears on the HCPC Register, on 8 April 2016. A further notice of hearing was sent by first class post to the Registrant’s address, as it appears on the Register, on 6 June 2016. This notice was also sent, on 6 June 2016, by e-mail to an address previously used by the Registrant, and it notified him again of the dates of the hearing and advised him of its revised location. Accordingly, the Panel was satisfied that good service had been effected in accordance with Rules 3 and 5 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’)  and it was satisfied that all reasonable steps had been taken by the HCPC to inform the Registrant of today’s proceedings.

Proceeding in the Absence of the Registrant

2. Ms Eales, on behalf of the HCPC, applied for the hearing to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules.  She referred the Panel to the fact that there had been no application for an adjournment by the Registrant, who had failed to engage with the HCPC throughout the entirety of the regulatory proceedings. There was evidence that an e-mail from the HCPC to the Registrant had been accessed. Attached to that email was hearing documentation.  Nevertheless, the Registrant had failed to make contact with the HCPC in order to obtain the password which would have given him access to this documentation. There was also evidence from the Royal Mail that hard copies of the hearing documentation, posted to him by special delivery, had been ‘refused’ at his registered address.  Furthermore, an e-mail dated February 2016 from the HCPC, requesting an up-to-date postal address from the Registrant, went unanswered.

3. The Panel accepted the advice of the Legal Assessor, that the decision to proceed in the absence of the Registrant was to be taken with the utmost care and caution. The Panel had regard to the relevant Practice Note including the criteria set out in R v Jones [2002] UKHL 5 and the recent guidance in General Medical Council v Adeogba/ Visvardis [2016] EWCA Civ 162.

4. The Panel noted that the Registrant had not sought an adjournment. The Panel was satisfied that all reasonable efforts had been made to serve the Registrant with the notice of hearing and concluded that the Registrant had voluntarily absented himself from the proceedings. The Panel noted that there had been no engagement at all during the regulatory process and no change of address had been indicated to the HCPC by the Registrant.  Indeed, the HCPC had gone beyond the requirements contained in the Rules, by arranging special delivery of documentation and e-mailing the Registrant, in addition to postal communication.  The Hearings Officer informed the Panel that she had spoken to a member of staff at the original scheduled location of the hearing and had been told that the Registrant had not attended at that location in error.  The member of staff told the Hearings Officer that she would let her know should the Registrant attend.  No such communication was received from that member of staff. 

5. In the absence of his engagement in the regulatory process, there was nothing to indicate that the Registrant was likely to attend a subsequent hearing if the matter was adjourned.

6. The Panel recognised that the Registrant could be disadvantaged if the hearing were to go ahead in his absence, as he would be unable to challenge witnesses and put his own case forward. The Panel determined that the Registrant had voluntarily absented himself from the proceedings and he had also failed to take the opportunity to put forward written representations.  Furthermore, the Panel knew something of his position from the representations he had made during the Trust’s internal investigation and disciplinary hearing. In this respect, the Panel was mindful of its role, in accordance with McDaid v NMC [2013] EWHC 586, to make such points on behalf of an absent Registrant as the evidence permitted, which would go some way to mitigating any disadvantage.

7. The Panel also noted that there were seven witnesses scheduled to attend the hearing over a four day period. The hearing had been fixed in Cornwall in order to accommodate their reasonable needs. Accordingly, it would be in the interests of the witnesses for the hearing to proceed on the date it was scheduled rather than incurring any further delay and the associated effect on their memories. The wider public interest is also best served by dealing expeditiously with cases where a registrant’s fitness to practise is in issue. This is consistent with the HCPC’s role to protect the public.

8. In all of these circumstances, and given the serious nature of the concerns raised, the Panel concluded that the public interest and the interests of the witnesses required it to consider the issues associated with this case expeditiously.  It was therefore appropriate and fair to proceed in the absence of the Registrant today. The Panel would draw no adverse inferences from his non-attendance.

Application to Amend the Allegation as detailed above

9. The Panel next heard an application by Ms Eales, on behalf of the HCPC, to amend the Allegation as particularised above. The Registrant had been notified of the application and the details thereof on 11 June 2015. No objections had been received on behalf of the Registrant. The Panel received and accepted the advice of the Legal Assessor. It was satisfied that the amendments were necessary and desirable as they provided greater clarity, did not substantively change the nature of the Allegation, and were not prejudicial to the Registrant.

Background

10.  At the time of the allegation the Registrant was employed as a Biomedical Scientist by the Royal Cornwall NHS Trust (“the Trust”).  He worked within the Clinical Chemistry Service with effect from February 2001 and later in the Haematology Department from November 2007, and was responsible for all patients receiving biochemical or haematological analysis of blood or body fluid.  He held responsibilities which included, on occasions, leading the sections in which he worked and the day-to-day management of staff. On 5 December 2014 a referral was received by the HCPC from the Trust regarding the conduct and/or competence of the Registrant in relation to his behaviour towards colleagues and his professional conduct. 

Admissibility of Appendix 27

11. The Panel next raised an issue in relation to the relevance of Appendix 27 in the HCPC bundle.  This was a letter dated 13 April 2014 from an unidentified member of staff at the Trust to a manager at the Trust which appeared, amongst other things, to make reference to an historic Health Professions Council (HPC) case against the Registrant. Ms Eales, on behalf of the HCPC, confirmed that she would not be relying on this evidence in the present case. Accordingly, she invited the Panel to remove this document from the bundle and to disregard its contents.

12. The Panel received and accepted advice from the Legal Assessor.  It noted the guidance in Mahfouz v GMC [2004] EWCA Civ 233. The Panel recognised the potential prejudice to the Registrant in this information being contained within the HCPC bundle. The Panel was not provided with, and did not ask for, any further information. The Panel felt professionally able, within the hearing process, to disregard this information and confirmed that it placed no reliance whatsoever on that information. 

Hearsay Application

13. At the conclusion of day three of the hearing, the Panel was invited by Ms Eales to consider an application to admit the written statements of Witnesses 1 and 3 as hearsay evidence. Both witnesses were unable to attend the hearing due to medical reasons.

14. Ms Eales explained that Witness 1 had been admitted to hospital very recently.  The Hearings Officer confirmed that Witness 1 had been discharged from hospital after the hearing had commenced. The witness had indicated that, if required, he was willing to try to give evidence by telephone on day four of the hearing. Ms Eales submitted that the evidence of Witness 1 was neither contentious nor prejudicial to the Registrant as he had no direct involvement in the incidents which formed the basis of the Allegation. Rather, he simply exhibited the documents gathered during the internal investigation and disciplinary hearing. All of his evidence could be tested and potentially corroborated by the other witnesses in the case.

15. With regard to Witness 3, Ms Eales explained that he had a known health condition. Efforts by the HCPC to secure his evidence by video link or telephone had failed as the witness felt unable to give any evidence. It was submitted that no prejudice would be suffered by the Registrant in admitting this evidence as the majority of it could be tested and potentially corroborated by other witnesses in the case. It was a matter for the Panel to assess later in the hearing, having heard all of the evidence in the case, what weight, if any, to attach to this witness’s hearsay evidence.

16. The Panel accepted the advice of the Legal Assessor.  It noted the guidance in the cases of Ogbonna -v- NMC [2013] EWHC 1595 and Bonhoeffer -v- GMC [2011] EWHC 1585. In particular, the Panel noted that it was entitled to admit hearsay evidence as a matter of principle subject to the requirements of relevance and fairness. It also considered the comments of the Registrant, which he had made during the internal investigation and disciplinary hearing, to assess whether there were any representations contained therein which were relevant to this application.

17. In relation to Witness 1, the Panel considered there were good and cogent reasons for his non-attendance at the hearing. It considered it neither necessary nor appropriate to have this witness attempt to give telephone evidence in the current circumstances and in view of the fact that neither the HCPC nor the Panel had any questions of substance to put to him. He could provide no direct evidence of fact. The witness exhibited documentation of relevance to this case.  There was evidence available from the other witnesses in the case by which the hearsay evidence could be tested and assessed. Furthermore, this witness exhibited the only documentation, currently available to the Panel, which could indicate the Registrant’s position in relation to the factual particulars.  Accordingly, the potential prejudice to the Registrant if this evidence were to be excluded would far outweigh any prejudice in admitting it. The application to admit the written statement of Witness 1 is therefore granted in the interests of justice.

18. In relation to Witness 3, the Panel focussed on the quality of his evidence, the availability of supportive evidence and the circumstances of his non-attendance in applying the relevant criteria to the question of this application. The Panel determined that there were good and cogent reasons for his non-attendance at the hearing.  It was neither appropriate nor reasonable to expect him to give evidence by video-link or telephone in the circumstances.

19. Witness 3’s evidence concerned particulars 2) (a) (iii), 3) (b), 3) (d), 3) (e) and 4) (b) of the Allegation.  In respect of all but the first of these particulars, evidence was also available from other witnesses in the case. Therefore, any prejudice to the Registrant could be addressed within the Panel’s assessment of Witness 3’s evidence, in light of any corroboration by other witnesses.

20. However, the Panel noted that Witness 3 gave sole or critical evidence in relation to particular 2) (a) (iii) which could not, on the face of it, be tested during the hearing process.  Accordingly, the Panel was careful to balance the prejudice to the Registrant of being unable to test this evidence with the public interest in allowing the HCPC to present its case as fully as possible.

21. The Panel noted that Witness 3 had made reference to this factual particular, earlier, during the Trust’s internal investigation.  Whilst the evidence still derived exclusively from Witness 3, the consistency and contemporaneous nature of these earlier comments does provide the Panel with a basis upon which to assess the cogency of this part of the evidence.  Furthermore, whilst no weight is attached to the absence of the Registrant, in absenting himself from these proceedings he has voluntarily foregone his right to cross-examine the witness. In addition to this, the Panel noted that the Registrant has, at no time, objected to this evidence.   In all of these circumstances, the Panel was satisfied that the interests of justice fall in favour of admitting this evidence. Despite the inherent prejudice to the Registrant in considering hearsay evidence, the Panel was satisfied that any prejudice could be cured when the Panel assesses the weight to be given, if any, to this evidence and after applying an appropriate level of caution.

22. The Panel further noted that the Registrant was not asked specifically during the internal investigation or disciplinary hearing about the subject matter of particular 2) (a) (iii).  This meant that the Panel had no knowledge of the Registrant’s position.  However, the Panel recognised that it is the Registrant’s non-engagement in the HCPC process that has resulted a lack of information about his position. 

23. Accordingly, the Panel granted the application.  It was satisfied that the public interest in admitting the evidence outweighed any prejudicial effect on the Registrant in these circumstances.

Decision on Facts

24. The Panel has carefully considered all of the evidence in this case. It has noted the submissions of Ms Eales, on behalf of the HCPC, and it has accepted the advice of the Legal Assessor.

25.  On behalf of the HCPC, the Panel heard oral evidence from Witnesses 2, 4, 5, 6, 7 and 8, and received written evidence from Witnesses 1 and 3. The Panel has disregarded any reference, by the witnesses, to incidents which do not form part of the Allegation.

26.  It also received two bundles of documentation from the HCPC: the first comprised the witness statements of those who gave evidence; and the second, 269 pages of exhibits.

27.  The Panel reminded itself that the burden of proving the facts is on the HCPC alone and that the standard of proof is the ordinary civil standard, namely the balance of probabilities.

28.  The Panel noted the case of Enemuwe v Nursing and Midwifery Council [2015] EWHC 2081 and disregarded the findings of the internal investigation and the disciplinary hearing conducted by the Trust. Furthermore, the Panel ensured that it was not influenced in its deliberations by its knowledge of those internal processes.

Credibility of the Witnesses and Assessment of the Evidence

29.  The Panel first made an assessment of the credibility of the witnesses and the reliability of all of the evidence presented to it:
Witness 2 (Colleague A), Witness 4 (Colleague D), Witness 5 (Colleague E), Witness 6 (Colleague G), Witness 7 (Colleague H) and Witness 8 (Colleague F)

30.  The Panel found all of the witnesses reliable and credible.  They were consistent both with each other and with their own earlier accounts of events which they gave within the internal investigation.  They each had different experiences in relation to the behaviour of the Registrant depending upon their seniority and the frequency with which they worked with him.

31.  In many respects there was evidence of mutual corroboration in the accounts they gave. For example: Colleague E saw the Registrant brush past Colleague A; Colleague G saw that Colleague E was upset following an incident which might have been that detailed at particular 3) (c); Colleague G saw that Colleague A was upset following an incident detailed at particular 1) (b).  There was no evidence of collusion between the witnesses.

32.  The witnesses gave balanced and fair evidence. Some spoke of the positive aspects of working with the Registrant.  For example: Colleague D said the Registrant’s work was good when the Department was short-staffed; Colleague H said there were some good working days with the Registrant (although she could only quantify this as being 20% of the time).

Witnesses 1 (Internal Investigating Officer) and 3 (Colleague B) - Hearsay Evidence

33.  Witness 1 exhibited certain documents and records produced during the internal investigation and disciplinary hearing.  His evidence was uncontentious and he had no direct involvement in the incidents upon which the factual particulars of this case were based.

34.   The Panel exercised caution in considering the hearsay evidence of Witness 3.  It attached weight to the hearsay evidence, only to the extent that it was appropriate, where this evidence was corroborated or consistent with other evidence received.

The Registrant

35.     The Panel did not hear from the Registrant.  Accordingly, it was unable to assess his credibility or reliability. Where the Registrant’s account of his conduct during the internal disciplinary process differed from the account of a witness, this was put to the relevant witness and the Panel took into account their responses and demeanour when forming a view about the weight to be attached to their evidence. However, the Panel recognised that, in relation to some of the particulars, the Registrant’s position was unknown because the relevant issues had not been discussed during the internal process.

Findings in Relation to the Factual Particulars of the Allegation

Whilst employed as a Band 6 Biomedical Scientist within the Haematology Department at the Royal Cornwall Hospital NHS Trust between 2007 and 2014, you:

Particular 1(a-d) – Proved

1) Intimidated and bullied Colleague A by:

36.    The Panel first considered whether the factual assertions in any of the sub-particulars 1)(a) - 1)(d) were established and then considered whether those facts amounted to intimidation and bullying in accordance with the stem.

37.  Convincing evidence of the detail relating to each of the following sub-particulars was provided by Colleague A. He described the impact the Registrant’s behaviour had had upon him.  He had felt worried, intimidated and bullied.  He was frank in his evidence when challenged as to why he had not reported all of the incidents at the time.  He stated that he had felt afraid to do so given his comparatively junior position and was embarrassed, in hindsight, at the fact that he had not challenged the Registrant more proactively.

38.  The Panel determined that none of the actions found proved in sub-particulars 1)(a) - 1)(d), would be a normal part of professional interaction between colleagues. The Panel considered the Trust’s Dignity at Work Policy dated June 2013, which cites the following examples of unacceptable behaviour which could be considered to constitute bullying and harassment:

• intimidating behaviour, e.g. unwanted physical contact, physical threats or abusive gestures;

• humiliation or ridicule.

39. Individually, each of the behaviours described is capable of amounting to intimidation and bullying. Collectively, the Registrant’s actions demonstrate a clear pattern of wholly unacceptable behaviour which, in the Panel’s view, does amount to intimidation and bullying.  Accordingly, Particular 1 is found proved.

a) Throwing fake punches at him as you walked past;

40.     Colleague A gave evidence that the Registrant threw fake punches at him as he walked past him on approximately ten occasions.  Whilst the account he gave during the internal investigation was less detailed, Colleague A confirmed in his oral evidence that this was a regular and unwelcome activity. In the internal investigation the Registrant said that, historically, he had behaved in this manner with another member of staff. The Panel accepted the evidence of Colleague A. Accordingly, this factual sub-particular is found proved.
b) Barging past him;

41. Colleague A confirmed that the Registrant ‘barged past him’ several times and that this was a deliberate and repeated activity.  This evidence was consistent with both his internal interview and the statement he gave to the HCPC.  He confirmed no other colleague has ever done this.  Colleague E was able to corroborate this behaviour in relation to one occasion, when she described how the Registrant ‘brushed past’ Colleague A and, when she enquired about it, Colleague A told her the Registrant did this often. Colleague A appeared to Colleague E to be embarrassed about his failure to confront the Registrant’s behaviour. In the internal interview, the Registrant said he had bumped into Colleague A on one occasion and that he had apologised for it. The Panel preferred Colleague A’s evidence in this respect, namely that this occurred deliberately and repeatedly, rather than it being a one-off incident.  Accordingly, this factual sub-particular is found proved.
c) Pushing him; and

42.  The evidence of Colleague A was that the Registrant pushed him from behind with his hand on approximately five occasions and that he spoke to a manager to complain about it in October 2013.  The manager took this up with the Registrant and the pushing stopped.  However, afterwards Colleague A described how the Registrant “walked past me in a deliberately condescending manner in that he put his hands up in a ‘surrender pose’ and took a step back”. The Panel accepted the evidence of Colleague A.  The fact that this occurred, on at least one occasion, in a public place whilst Colleague A was queuing for a cash dispenser, is an aggravating factor, suggesting a deliberate demonstration of hostility towards Colleague A.  Accordingly, this factual sub-particular is found proved.

d) Shining a laser bar code scanner in his face.

43.  Colleague A had a clear recollection of this incident, although he was unable to say when it happened other than that it was in 2013. The Panel noted that matter was not put to the Registrant in the internal interview and appeared to be a one-off incident.  Nevertheless, the Panel is satisfied that this incident occurred as described by Colleague A. A scanner is ordinarily used by directing it downwards towards documentation or barcode-labelled specimens. At the time of the incident the Registrant was standing and using the scanner. If he was using the scanner as it should have been used, the incident could not have occurred. In all of these circumstances, the Panel is satisfied that his actions were, more likely than not, deliberately aimed at Colleague A. Accordingly, this factual sub-particular is found proved.

2)  Made inappropriate comments to colleagues in that you:

Particulars 2(a) (i) & (ii) - Proved

a) In relation to Colleague B:

i) said, "look what dime bar's done, he's stupid", or words to that effect;

ii) called him a "numpty", or words to that effect;

44. In neither sub-particular 2)(a)(i) nor 2)(a)(ii) were the comments said to have been made in the presence of Colleague B. Although the Panel considered these two parts of the Allegation separately, the evidence comes from the same source, namely Colleague H.  Colleague H confirmed that the Registrant would frequently refer to Colleague B as ‘Dime Bar’ and that the Registrant had explained this by reference to a television advert.  Colleague H also confirmed that the Registrant would refer to Colleague B as a ‘Numpty,’ for example, asking if ‘Numpty had gone to lunch’.

45.  The oral evidence of Colleague H was consistent with the interview she gave during the internal investigation (although she did not give detail as to the possible origin of the ‘Dime Bar’ term), and consistent with her HCPC statement.  The Registrant, during the internal investigation, suggested that it was another colleague who had used the expression ‘Dime Bar’. He was not asked about his use of the word ‘Numpty’. The Panel found Colleague H to be a credible and reliable witness.  Her evidence was preferred to that which the Registrant gave during the internal investigation.

46.  The repeated use of derogatory terms demonstrates a high level of disrespect for a professional colleague. If the Registrant had genuine concerns about Colleague B’s performance, there were ways in which these could have been raised with Colleague B or with his line manager.  In these circumstances, the Panel determined that the Registrant’s comments were inappropriate.  Accordingly, sub-particulars 2)(a)(i) and 2)(a)(ii) are found proved.

Particular 2)(a)(iii) - Not Proved

iii) that he was "pulling a sickie", or words to that effect, when he had a known health issue.

47.  The sole source of evidence in relation to this part of the Allegation was Colleague B himself. Whilst Colleague B was consistent, in his HCPC statement, with his comments recorded in the internal interview, Colleague B did not give oral evidence at the hearing.  The Panel therefore exercised an appropriate degree of caution when considering this evidence.

48.  The Panel was unable to form a view as to Colleague B’s credibility and reliability and it heard no direct evidence from any other witness in respect of this sub-particular.  In his internal disciplinary interview, the Registrant is recorded as saying that, ‘there is a lot of criticism of staff taking sick leave, but I don’t get involved in this.  I try not to get involved in the rumour mill’. 

49.  In these circumstances, and in the absence of any corroborative evidence, the Panel was not satisfied to the requisite standard that the incident had taken place as alleged.  Accordingly, sub-particular 2)(a)(iii) is found not proved.
Particulars 2)(b) (i) and (ii) - Proved

b) In relation to Colleague C:
i) said that she "took so many pills that she rattled", or words to that effect;
ii) said that she “was a mad person, a man hater”, or words to that effect.

50. These comments were not alleged to have been made in the presence of Colleague C. The comments are said to have been made during a training session attended by the Registrant and Colleague F during June 2014. The source of this evidence is Colleague F, there was no other corroborative evidence. Nevertheless, the oral evidence was consistent with the evidence given by Colleague F in her internal interview and the HCPC statement. This incident was not explicitly addressed with the Registrant in his internal interview or disciplinary hearing. The Panel accepted the evidence of Colleague F.  It found her to be a credible and reliable witness.

51. The Panel was satisfied that the comments made were inappropriate because:

• they were made during a professional training session at work;
• they were made by an established and senior member of staff to a junior colleague;
• they disclosed sensitive and personal information about a colleague’s heath;
• they were derogatory;
• it is not unreasonable to expect professional colleagues to be supportive of one another especially where health concerns are known.  Such information should not be used flippantly as a source of mockery. 

52. Accordingly, sub-particulars 2)(b)(i) and 2)(b)(ii) are found proved.

Particular 2)(c)(i) - Proved
c) In relation to Colleague D:

i) called him a "fat lazy git", or words to that effect.

53.  This comment is not said to have been made in the presence of Colleague D. The source of the evidence is Colleague H who confirmed that the Registrant made this comment about Colleague D a couple of times a month.  Colleague H’s oral evidence was consistent with her evidence in the internal investigation and her statement to the HCPC. The Panel accepted her evidence.

54.  The Panel determined that this comment was inappropriate, although, on occasions, it seems to have been prompted by the Registrant discovering that staff had been moved in a manner with which he disagreed.  Nevertheless it was inappropriate because:

• the comments were made about a senior member of staff;

• the comments were derogatory and abusive;

• if the Registrant had legitimate concerns about staffing levels or about Colleague D’s working practices, he should have either raised these directly with Colleague D or his line manager.

55.  Accordingly, sub-particular 2)(c)(i) is found proved.

3) Behaved in an inappropriate and intimidating manner towards colleagues, in that you:

Particular 3(a) - Not Proved

a) Deliberately knocked into other people's chairs;

56. There were three sources of evidence in respect of this part of the Allegation, cited in the internal management report as follows:

• Colleague A who stated in his oral evidence that this happened.  However, the Panel noted that there was no reference, in the internal interview or in the HCPC witness statement, to the Registrant specifically knocking into chairs;

• TV stated, in the internal investigation, “[The Registrant] frequently knocks or nudges the back of my chair but no-one else has ever done it…I’m not sure if he does it on purpose”;

• Colleague D was noted as having said in the internal interview, “he sometimes seems to… slightly bump my chair…he appears to do it on purpose…”. However, in his oral evidence, Colleague D confirmed this behaviour may have been accidental.

57.  In addition to this, Colleague H said in her oral evidence,that she had knocked into colleague’s chairs and could not say whether the Registrant had done so deliberately on the three or four occasions when she had seen him doing it. In the internal investigation the Registrant confirmed that he may have bumped into colleagues’ chairs due to the cramped space within which they worked.

58. In all of these circumstances, the Panel determined there was insufficient evidence to prove that this behaviour was deliberate.  Accordingly, particular 3)(a) is found not proved.

Particular 3(b) - Proved

b) invaded people’s personal space;

59. Colleagues E, D and H gave oral evidence of the Registrant standing very close to them or other colleagues. Although Colleague D did not find this intimidating, he said that the Registrant, “comes across as intimidating and rude to other members of staff”. Colleague E confirmed that she felt uncomfortable when the Registrant stood close to her, particularly as she did not get along with the him. The Panel found these witnesses to be credible and reliable, and accepted their evidence.

60.  By seeking to be dominant, and by using his physical presence and seniority in this manner, the Registrant risked making, and in the case of Colleague E, did make, colleagues feel uncomfortable.

61. Colleagues are entitled to expect that other members of staff will abide by social and professional norms of behaviour.  The Panel therefore determined that the Registrant’s actions in this respect were inappropriate and intimidating.  Accordingly, particular 3)(b) is found proved.
Particular 3)(c) - Proved
c) Blamed Colleague E for not completing a task and refused to let her speak which caused her to get upset and leave work;

62. The evidence in respect of this incident is primarily from Colleague E. Colleague G witnessed that Colleague E was upset following an incident with the Registrant, although it was unclear, on the evidence, whether this was the incident described in the particular. Colleague E stated she spoke with Colleague C in the locker room after this incident, but the Panel did not receive evidence from Colleague C.  Colleague E also confirmed that she spoke to a manager before leaving, but none of this is independently verified.

63. Having analysed the evidence, the Panel concluded that:
• the Registrant did blame Colleague E for not completing a task, i.e. booking-in a bone-marrow sample which Dr K had sent for analysis;
• the evidence does not support the assertion that the Registrant refused to let Colleague E speak. Rather, the evidence suggests that Colleague E did explain that it was a miscommunication and that, at times during their conversation, the Registrant spoke over her and at the same time as her.  However, there is insufficient evidence to establish that the Registrant had actually refused to let Colleague E speak;
• it is factually correct that Colleague E became upset and that she did leave work as a result.  She confirmed that she sought approval from a manager prior to leaving.  In the circumstances, it is more likely than not that there was a direct causal link between the Registrant’s actions in blaming Colleague E for the booking-in error and her becoming upset and leaving work.

64. The Registrant’s behaviour in this respect was inappropriate because it was incorrect to blame Colleague E as this was not her error. He was also intimidating in the manner in which he acted towards her, which amounted to humiliation and unfair criticism. Accordingly, particular 3)(c) is found proved on a limited basis.
Particular 3)(d) - Proved
d) Shouted at staff and spoke to them in a belittling way;

65.  A number of colleagues gave examples of this type of behaviour. Colleague A stated that the Registrant would raise his voice or speak to him in a belittling manner when Colleague A approached him legitimately on work-related matters.  Colleague A also witnessed the Registrant raising his voice towards Colleague D. Colleague B described the Registrant’s belittling attitude towards the Medical Laboratory Assistants (MLAs) and how he seemed to view them as beneath him. Colleague F said that the Registrant often raised his voice at staff and gave an example of him speaking loudly to her when he accused her (wrongly) of breaking a piece of equipment. Colleague G described how the Registrant had shouted at her for asking a question about where to put samples.

66.  Ms Eales also referred the Panel to Colleague D, who gave evidence regarding an incident in which the Registrant shouted during a telephone conversation with a General Practitioner surgery. The Panel disregarded this incident as it did not consider that a person from the surgery could be described as a “member of staff” for the purposes of this particular.

67.  The Panel accepted the evidence of the witnesses.  Although Colleague B did not give live evidence, the Panel considered that his evidence was consistent with that of others in this respect.

68.  The Panel concluded that the Registrant’s actions were inappropriate and intimidating because:
• the Registrant acted in a disparaging manner towards a number of colleagues who were doing no more than carrying out day-to-day activities;
• the manner in which he spoke with his professional colleagues would not give them, or any observers, the impression that he afforded any respect to those with whom he worked;
• the Registrant’s colleagues found his behaviour towards them to be intimidating.

69.  Accordingly, particular 3)(d) is found proved.
Particular 3)(e) - Proved
e) Ignored work related questions from colleagues;

70.   A number of colleagues, including Colleague A, Colleague E and Colleague G, described how they asked work-related questions of the Registrant but he would deliberately ignore them and fail to engage in any discussion.  Colleague G explained how, on one occasion, she had to ask a question three times of the Registrant before receiving a rude response to the effect that he did not care. The Panel considered each of these witnesses to be credible and reliable and accepted their evidence.

71.  The Panel determined that the Registrant’s actions were inappropriate and intimidating because:

• as an experienced practitioner, the Registrant should be willing to share his knowledge with colleagues. Indeed, in a number of the examples cited by the witnesses, the Registrant was overseeing the running of the department and could reasonably be expected to assist  more junior colleagues in a supervisory capacity;
• by acting in this manner, the Registrant demonstrated feelings of disdain towards his junior colleagues, who described him as patronising and intimidating.

72.  Accordingly, particular 3)(e) is found proved.

Particular 3)(f) - Proved

f) Whilst in the laboratory, told Colleague G that you had "got a gun and had been shooting birds from the kitchen window", or words to that effect.

73.  The evidence for this particular comes from Colleague G. She described these comments as being made on a late shift during the summer of 2014.  In her oral evidence, Colleague G was very clear that the events occurred in the manner alleged.  She refuted the Registrant’s version of events given during the internal investigation, namely that they had engaged in a two-way conversation about vermin control. The Panel accepted Colleague G’s evidence that the words alleged to have been said by the Registrant had indeed been said by him.

74.  In the Panel’s view, it was both inappropriate and intimidating for a senior member of staff to foist their views, on delicate matters such as this, upon junior colleagues in an unsolicited manner in an isolated workplace. 

75.   Accordingly, particular 3)(f) is found proved.
4) Provided incorrect instructions to colleagues, in that you:
a) Told Colleague A:

Particular 4)(a)(i) - Proved
i. to throw away a blood sample;

76.  Colleague A explained how he discovered a blood sample that had not been properly booked into the system.  He was alone with the Registrant on a late shift.  When he asked the Registrant what he should do, he was told to throw the sample away.  In fact, by checking through laboratory records, Colleague A was able to rectify the problem.

77.  In the internal investigation interview, the Registrant disputed Colleague A’s version of events.  He said that he did not tell Colleague A to throw the sample away, simply that he should not process it as it was meant for another section of the laboratory.

78. Colleague A gave a consistent account in his oral evidence.  The Panel preferred his account to that of the Registrant as advanced during the internal process.  On the balance of probabilities, the Panel found that the Registrant did tell Colleague A to throw the sample away.

79. The Panel heard evidence that all samples must be retained for a specified period of time.  This particular sample should have been retained for seven days.  The instruction given by the Registrant was incorrect and did not comply with the laboratory protocol. If Colleague A had followed the instruction given by the Registrant it would have required another sample to be taken from the patient.  The potential detriment to the patient was therefore avoided by the actions of Colleague A in dealing with this problem independently of the instruction given by the Registrant.  Accordingly, particular 4)(a)(i) is found proved.
Particular 4)(a)(ii) - Proved
ii.  to leave the registration of a sample received from a GP surgery until the next morning;

80.  On an occasion in the summer of 2013, Colleague A was again working a late shift with the Registrant.  A blood test was received for a patient, but the sample had not yet been registered on the laboratory system.  It would usually be the case that an MLA would carry out this task, however Colleague A did not know how to register the sample.  He was told by the Registrant to ‘leave it’ until the following morning.  This instruction was incorrect.  The Registrant should have taken Colleague A through the sample registration process.  Accordingly, particular 4)(a)(ii) is found proved.
Particular 4)(a)(iii) - Not Proved
iii. he could take his second break at 5:30 pm and then reported him the next day for doing so. 

81.  During the spring of 2013, Colleague A was working his first week of late shifts.  The MLA on a late shift should usually take their second and final break before 17.30 hrs to ensure sufficient staff cover for the department. Colleague A had been unable to comply with this requirement and asked the Registrant for permission to take his break late.  This permission was granted by the Registrant. The next morning a senior manager told Colleague A that he should not have taken his break after 17.30 hrs.

82. There is no direct evidence that it was the Registrant who informed the senior manager of the timing of the break, although it might be a reasonable assumption to make in these circumstances where it appears that the Registrant was the most senior member of staff on duty.

83. However, the Registrant had not provided an incorrect instruction to Colleague A that he should take his break at this time. Colleague A was fully aware that he should take his break before 17.30 hrs.  All the Registrant did, at its highest, was to permit Colleague A to take his break and then, if the assumption is correct, to inform a senior manager of the fact.  Accordingly, particular 4)(a)(iii) is found not proved.
Particular 4)(b) - Proved
b) Told Colleague F not to freeze a mast cell tryptase test sample before sending.

84.  The Panel heard evidence that the analysis of mast cell tryptase assists in distinguishing between a true anaphylactic reaction and an anaphylactoid reaction.  The sample must be frozen in order to preserve the enzyme for analysis.  At the relevant time, such samples from the laboratory were sent to Derriford for analysis.

85.  Colleague F gave oral evidence that, during her training, she was instructed by the Registrant not to freeze a sample which had been received late in the day but to send it in an unfrozen state. She followed this instruction and continued to adopt this practice for several months. Although at the time this is likely to have only affected one patient per month, the consequences for those patients could have been serious. This is because the sample needs to be taken as soon as possible after an acute event.  As an unfrozen sample would be rejected by Derriford, the opportunity to carry out the analysis would be lost.  This could delay proper diagnosis and put patients at risk.

86.  During the internal investigation, the Registrant asserted that the process for sending samples to Derriford was changing by the week.  Whether or not this is true, the basic scientific concept of freezing these samples remained valid and must have been known to the Registrant given his experience and seniority.  In the Panel’s view, this is a very basic failing on his part.

87.  Accordingly, particular 4)(b) is found proved.
Particular 5 - Proved

5)  Threw printed out results from analysers into the bin without reviewing them.

88. Colleague E explained that, when she was a trainee, she would print off certain blood- count analyses to bring to the attention of a Biomedical Scientist. Print-outs were made where the results were urgent or appeared to be abnormal.  She described how, on a number of occasions, she saw the Registrant pick up a collection of print-outs and throw them into the bin.  Whilst this would not delete the results from the system, the Panel considered that it is poor practice because it could delay the interpretation of the results and could represent a missed opportunity to provide feedback to the treating consultant.  Colleague E explained how she uses print-outs in a more constructive manner now that she is a registered Biomedical Scientist herself.

89.  The Registrant did not respond specifically to this allegation, but he did suggest that there was a culture of routinely throwing reports away. The Panel was satisfied, on the basis of Colleague E’s evidence, that the Registrant did, on a number of occasions, throw printed results relating to blood-count analysis into the bin without reviewing them.

90.  Accordingly, particular 5 is found proved.

Decision on Grounds

Misconduct - Proved

91.  The Panel next determined whether the facts found proved amounted to misconduct. The Panel accepted the advice of the Legal Assessor. It bore in mind that there is no standard of proof to be applied at this stage; consideration as to whether the threshold for misconduct has been reached is a matter in its own judgment. In considering the ground, the Panel first considered the individual particulars found proved and then the behaviour in the round.

92.  The Panel had specific regard to the helpful guidance provided in Roylance -v- GMC (No 2) [2000] 1 AC 311, Meadows v GMC [2007] QB 462 and Shaw v GOsC [2015] EWHC 2721.

93. The Panel considered the Trust’s Dignity at Work Policy, Procedure and Guidance Document dated June 2013, by which the Registrant was bound at the time of the relevant events. It noted that examples of unacceptable workplace behaviour cited within this document included:
• “intimidating behaviour…;
• verbal abuse…;
• humiliation or ridicule;
• deliberately undermining… through…. constant criticism;
• overbearing supervision or other misuse of power or position.”

94. The Panel also noted the Trust’s Disciplinary Policy and Procedure Document dated January 2011 which was also relevant. Within this document examples of offences that may be considered to be gross misconduct in the workplace included:

“..Harassment or Bullying -  including….intimidation or other behaviour…   leading to humiliation or embarrassment.”

95.  The Panel then considered whether the proven facts amounted to breaches of the HCPC Standards of Conduct, Performance and Ethics (“the HCPC Standards”) and/or breaches of the HCPC Standards of Proficiency applicable to Biomedical Scientists. It bore in mind that breaches of any of these Standards did not, in themselves, necessarily constitute misconduct.

96. The Panel determined that the following HCPC Standards had been breached:

1. You must act in the best interests of service users;
3. You must keep high standards of personal conduct;
7. You must communicate properly and effectively with service users and other practitioners.

97.  The Panel also determined that the following HCPC Standards of Proficiency applicable to Biomedical Scientists had been breached:

3.1 understand the need to maintain high standards of personal and professional conduct;

4.4 recognise that they are personally responsible for and must be able to justify their decisions;

8.2 be able to maintain effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others;

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

9.2  understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team;

14.10 to be able to work in conformance with standard operating procedures and conditions.

Particular 1

98.  This is indicative of a course of conduct towards a junior colleague which started soon after his arrival and persisted for more than twelve months. It amounts to systematic intimidation and bullying which had a detrimental effect on Colleague A’s enjoyment of, and performance at, work.

Particular 2

99. The Registrant created an atmosphere of mistrust and unease amongst his colleagues, which could have undermined their professional confidence in themselves and in each other.

Particular 3

100.  The Registrant adversely affected the self-esteem of his colleagues and their willingness to engage with him to seek guidance on technical matters.

Particulars 4 and 5

101.  The Registrant was a senior practitioner who had been in post for a number of years.  He had responsibility for training and directing junior members of staff.  His failure to provide proper instructions and give guidance led to colleagues making errors to the potential detriment of patients, their own professional development and the reputation of the laboratory.

102.  The Panel found that each of the particulars 1 to 5 is capable of amounting to misconduct.  What was more serious, however, is that when seen collectively, the Registrant’s actions adversely affected a significant number of colleagues and created a potential risk to patients. The Registrant demonstrated a pattern of inappropriate and unprofessional behaviour which falls far short of that which would be expected of a registered Biomedical Scientist.  The Panel therefore determined that the Registrant’s actions amounted to misconduct.

Lack of Competence- Not Proved

103.   Having determined that the proven facts in particulars 1 to 5 amounted to misconduct, the Panel noted that in relation to particulars 4 and 5, the alternate statutory ground of lack of competence was also pleaded.  In view of its findings on misconduct, the Panel was satisfied that the Registrant knew how to perform his professional duties competently, but failed to do so on the occasions referred to in particulars 4 and 5. The Panel considered that the Registrant’s actions were more appropriately identified as misconduct rather than lack of competence.

Resumed Hearing Thursday 6 October 2016

Service

104. The Panel was informed that an original notice of the adjourned hearing was sent to the Registrant’s registered postal address on 8 August 2016.  A copy was also sent to him by email. Accordingly, the Panel was satisfied that good service had been effected in accordance with Rules 3 and 5 of the Rules and it was satisfied that all reasonable steps had been taken by the HCPC to inform the Registrant of today’s hearing.

Proceeding in Absence

105. Ms Eales, on behalf of the HCPC, applied for the hearing to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules.  She referred the Panel to the fact that there had been contact with the Registrant since the last hearing date of 26 July 2016, as follows:

• An HCPC file note confirmed that a telephone call had been received from the Registrant on 29 September 2016.  The Registrant had explained that he was unaware of the final hearing until a colleague had informed him of the information published on the HCPC website.  The Registrant confirmed that, due to personal circumstances, he was unable to attend the reconvened final hearing and that he did not ‘see any point’ in the hearing, as he had not been practising for two years and had no intention of practising.  Furthermore, he stated that he had not updated his skills and knowledge and that he would like his name removed from the register. It was explained to the Registrant that voluntary removal from the register was not an option while fitness to practise proceedings were ongoing and the Registrant was reminded of his obligation to update his registered address.  The Registrant provided a new e-mail address during this conversation.

• On 30 September 2016, in an e-mail to the Registrant’s updated e-mail address, the HCPC Adjudication Manager explained the fitness to practise process to the Registrant  and forwarded copies of the adjournment notice dated 8 August 2016, the HCPC Practice Note “Finding that Fitness to Practise is Impaired”, and a copy of the HCPC Indicative Sanctions Policy.  The options available to the Registrant were also outlined and included the options to apply for an adjournment, participate in the hearing by telephone, or forward written representations to the Panel.  A further request for the Registrant to update his current postal address was also made.

• An HCPC file note dated 3 October 2016 referred to a telephone conversation on 30 September 2016 between the Adjudication Manager and the Registrant. It explained that, owing to personal matters, the Registrant did not think an adjournment of the hearing would help as he did not know when he would be available.  He explained that he left practice in 2014 and assumed his registration would lapse.  He was unaware of the fitness to practise matters pending against him, and thought that he would automatically be de-registered.  The Registrant also confirmed that he was unlikely to be available to speak at the adjourned hearing by telephone.  He did not respond to the other options designed to facilitate his participation in the hearing as outlined in the e-mail of 30 September 2016.

•  In an e-mail dated 4 October 2016, the Registrant confirmed that he was aware that certain matters had already been considered by the Panel.  He made no application for an adjournment for the reasons already outlined.

106. The Panel accepted the advice of the Legal Assessor, that the decision to proceed in the absence of the Registrant is to be taken with the utmost care and caution.  The Panel carefully considered all of the material before it and had regard to the updated Practice Note on Proceeding in Absence ( September 2016) which includes the criteria set out in R v Jones [2002] UKHL 5 and the recent guidance in General Medical Council v Adeogba/ Visvardis [2016] EWCA Civ 162.

107. The Panel noted that it was clear the Registrant was aware of the adjourned hearing and that it was open to him to request an adjournment, submit written representations and to participate in the hearing by telephone.  The Registrant had not indicated that he wished to take up any of these options available to him. The Panel therefore concluded that the Registrant had voluntarily absented himself from the proceedings. The Panel was conscious that the Registrant had chosen not to disclose to it what the ‘personal circumstances’ were which prevented him from participating in the hearing. It was therefore very difficult for the Panel to assess what the level of prejudice would be to the Registrant should it proceed in his absence.  Nevertheless, the Panel noted that there was nothing before it to indicate that, if the hearing was adjourned, the Registrant’s level of engagement in the fitness to practise process would be greater.  To date, the Registrant has not provided an updated registered postal address and he had also indicated on a number of occasions that he could not say when he was likely to be able to attend or participate in the process.

108. In all of these circumstances, and given the serious nature of the misconduct found, the Panel concluded that the public interest required it to consider the issues associated with this case expeditiously.  It was therefore fair and proportionate to proceed in the absence of the Registrant today.

Decision on Impairment

109. The Panel next determined whether, by reason of his misconduct, the Registrant’s fitness to practise is impaired. The Panel accepted the advice of the Legal Assessor and had regard to the HCPC Practice Note “Finding that Fitness to Practise is Impaired”, dated July 2013. It bore in mind that not every finding of misconduct will automatically result in a conclusion that fitness to practise is impaired and noted that impairment is ‘forward looking’.  The Panel had specific regard to the guidance in the cases of Meadows v GMC [2007]1 All ER 1, and Cohen v GMC [2008] EWHC 581, and Council for Healthcare Regulatory Excellence (CHRE) v NMC and Grant [2011] EWHC 927.

110. The starting point for the Panel was that the misconduct identified was serious.  The Registrant’s actions adversely affected a significant number of colleagues and created a risk of harm to service users. By demonstrating a pattern of inappropriate and unprofessional behaviour which fell far short of that which would be expected of a registered Biomedical Scientist, the Registrant has breached a fundamental tenet of his profession.

111. The Panel first considered whether the Registrant is currently impaired on a personal basis. It heard evidence that there had been a previous finding against the Registrant by the Health Professions Council [“the HPC”] in 2009.  This previous matter had resulted in a sanction of a three-year caution being imposed. The current matters constitute a significant repetition of very similar conduct by the Registrant in relation to the same Trust, despite the previous intervention by his regulatory body.

112. There has been no acknowledgement by the Registrant of any wrongdoing on his part and no demonstration of remorse for his conduct within the current proceedings.

113. The Panel considered that the misconduct found proved is primarily attitudinal in nature rather than clinical, and that this is more difficult to remedy than clinical errors. Nevertheless, it is not impossible to remedy this type of misconduct.  However, there is a complete absence of evidence of remediation. There is a clear and evidenced risk of repetition in that the Registrant has gone on to repeat behaviour previously marked with a formal sanction by his regulator. While the determination of the HPC in 2009 made reference to the Registrant’s remediation, any remedial action which existed at that time has clearly not endured.  The Registrant has failed to demonstrate any recognition of the impact of his conduct upon his colleagues, service users and the effective operation of the laboratory within which he worked.  There is an absence of any insight into his misconduct.

114. In all of these circumstances, the Panel is satisfied that the risk of repetition is extremely high. Any such repetition of the failings identified would put service users at risk of harm and have an adverse effect on the Registrant’s colleagues, from which they require protection.  Accordingly, the Panel determined that the Registrant is currently impaired on personal level.

115. The Panel then went on to consider whether the wider public interest dictated that a finding of impairment was required in this case. It noted that the majority of the findings made against the Registrant related to behaviour towards colleagues.  This presented an indirect risk of harm to service users due to the impact of the Registrant’s behaviour on the efficiency and morale of his colleagues in the laboratory.   However, there were elements of the Allegation, namely particulars 4 and 5, whereby service users were put at direct risk of harm by a departure from safe and established laboratory practices.

116. The Registrant has already appeared before a regulator for similar behaviour. He continues to present a risk of harm to service users, from which the public requires protection. In addition, the public interest in upholding proper professional standards and public confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made in these circumstances.

117. Accordingly, the Panel finds that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

118. The Panel considered the submissions made by Ms Eales and it accepted the advice of the Legal Assessor.

119. The Panel is aware that the purpose of any sanction is not to be punitive, though it may have a punitive effect. The Panel has borne in mind that its primary function at this stage is to protect the public, while reaching a proportionate sanction, taking into account the wider public interest and the interests of the Registrant. The Panel has taken into account the HCPC Indicative Sanctions Policy [“the ISP”] and applied it to the Registrant’s case on its own facts and circumstances.

120. The starting point for the Panel was that the misconduct was serious. It constituted numerous breaches of the HCPC Standards and was also a breach of a fundamental tenet of the profession. Communicating and working effectively with other professionals in a respectful manner and in the best interests of service users are fundamental obligations upon all Biomedical Scientists.

121. The Panel identified the following aggravating factors in this case:
• the failings identified were persistent and repeated despite previous    regulatory intervention;
• there was an absence of remorse and no acknowledgement of    wrongdoing on the part of the Registrant;
• the Registrant’s behaviour amounted to an abuse of power given that    generally the victims of his behaviour were colleagues who were junior    members of staff whereas the Registrant was a well-established and    experienced  Biomedical Scientist;
•  the ongoing risk to the public.

122. To balance against those issues, the Panel identified the following  mitigating factors:
• the Registrant’s personal and family circumstances;
• there was some evidence of the Registrants capacity to work effectively.

123. Nevertheless, the Panel has found that the Registrant continues to present a risk of harm to the public and has damaged the reputation of the profession. In light of all of these matters, the Panel has considered what sanction, if any, should be applied, in ascending order of seriousness.

No Further Action

124. The safety of the public and the wider public interest would not be protected if the Panel were to take no further action in a case of this seriousness.

Mediation

125. The Panel does not consider mediation to be an appropriate option in this case as the Registrant is not currently working as a Biomedical Scientist.  Furthermore the serious and repetitive nature of the misconduct is such that it could not be adequately addressed by mediation.

Caution

126. A Caution Order would be entirely insufficient to mark the seriousness of the Panel’s findings and to protect the wider public interest. In particular, the Panel noted that the failings identified were not an isolated lapse, they were serious in nature, there was a high risk of reoccurrence and an absence of insight and remediation. Furthermore, the previous caution had not prevented a repetition of the failings identified in 2009.

Conditions of Practice

127. The Panel concluded that it would not be possible to formulate workable or practicable conditions that would adequately address the issues identified or reflect the wider public interest.  Even if the Panel could formulate appropriate conditions, it has no confidence that the Registrant would be willing or able to comply, given his lack of insight and engagement in the regulatory process.

Suspension

128. The ISP suggests that, ‘A Suspension Order should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and thus, striking off is not merited’. However, it goes on to assert that, ‘if the evidence suggests that the registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option’.

129. In applying these principles to the current case, the Panel was satisfied that there had been a serious breach of the standards of expected practice which caused a risk of harm to the service users involved and the reputation of the profession.  It had identified a high risk of repetition. Further, the Registrant has clearly not learned from his previous appearance before his regulatator. He therefore continues to present a risk to the public.

130. In the light of this, a Suspension Order, which recognises that there is potential for a return to unrestricted practice at a future point, would be insufficient to protect the public and uphold the wider public interest in the long-term. 

Striking Off Order

131. The ISP states that, ‘Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial.  A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate’.

132. In this case the Panel was satisfied that it could protect the public in the short-term by way of a Suspension Order.  However, the Registrant’s lack of insight, his continuing problems and denial and his inability or unwillingness to resolve matters indicate that a Striking Off Order is the more appropriate sanction. The nature of the allegation, which amounts to a repetition of previous conduct, is such that a lesser sanction would lack deterrent effect and would undermine public confidence in the regulatory process.

133. The failings, coupled with his attitudinal issues, insufficient insight and lack of remediation are fundamentally incompatible with the Registrant remaining on the Register. The Panel is mindful of the potential impact this order may have upon the Registrant.  However, it is satisfied that this is an appropriate and proportionate sanction in these circumstances. The need to protect the public, and maintain confidence in the profession and the regulatory process, outweighs the impact upon the Registrant of having his name struck from the Register.

Order

The Registrar is directed to strike the name of Mr James Neil Basey from the Register on the date this order comes into effect.

Notes

An Interim Suspension Order was imposed to cover the 28 day appeal period.

Hearing History

History of Hearings for Mr James Basey

Date Panel Hearing type Outcomes / Status
06/10/2016 Conduct and Competence Committee Final Hearing Struck off
18/07/2016 Conduct and Competence Committee Final Hearing Adjourned part heard