Peter J Armstrong
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Allegation ( Amended at Final Hearing )
During the course of your employment between 3 August 2007 and 31 December 2014 as a Biomedical Scientist at North Cumbria University Hospitals NHS Trust, you:
1. used the Telepath computer login of a colleague in order to issue blood products; and
2. on 4 August 2014, in the Coagulation Section of Blood Sciences in Cumberland Infirmary:
(a) you did not correctly perform the Quality Control processes.
(b) as a result a total of 43 results were found to be incorrect and the tests had to be repeated.
3. The matters set out in particulars 1 and 2 constitute misconduct and / or a lack of competence.
4. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Service of Notice
1. The Panel had before it a letter of notice dated 12 July 2016 setting out the correct and full information relevant to today’s hearing, which had been sent by the appropriate postal means to the Registrant at his registered address, and in sufficient time in advance of the hearing. The Panel received and accepted legal advice and is satisfied that there has been good service.
Proceeding in the absence of the Registrant
2. The HCPC made an application to proceed in the Registrant’s absence. In addition to the fact that there had been no application for an adjournment the Registrant had, in writing and by his actions, indicated that he did not wish to attend or participate in today’s hearing. The Panel was informed of the Registrant’s letter dated 14 September 2015 in which he stated to the HCPC that he did not wish to receive any further communications relating to this matter and that he would return any such communication. The Panel was informed that the Registrant had returned the hearing bundle to the HCPC. Further, by way of letter dated 8 September 2016, a copy of which was before the Panel, the Registrant had confirmed that he would not be attending the hearing and did not want to be “contacted in any circumstance in any manner”. The Panel received and accepted Legal Advice and referred to the HCPC Practice Note on ‘Proceeding in the Absence of the Registrant’.
3. The Panel considered that the evidence before it supported the view that the Registrant had taken an informed decision to voluntarily absent himself from today’s hearing. There was no evidence to support the view that the Registrant would attend if an adjournment was granted. The HCPC had three witnesses present and ready to give their evidence. There was a public interest in this matter proceeding without delay. The Panel therefore concluded that it would exercise its discretion to proceed in the Registrant’s absence.
Amendment of the Allegation
4. After receiving representations from the HCPC, and taking legal advice, the Panel amended the Allegation by the inclusion of a reference within Particular 3 to the particulars referred to as constituting misconduct and/or lack of competence, namely paragraphs 1 and 2. The amended Allegation is as set out above.
5. At the time of the events set out in the Allegation the Registrant was employed by North Cumbria University Hospitals NHS Trust (the Trust) as a Biomedical Scientist. The Registrant had first started work for the Trust’s predecessor in title in October 1967. On 31 July 2007 he took retirement from his then post as Head of Team (Haematology) and when he returned on 2 August 2007 his role and responsibilities were as a shift worker within the Haematology Team (the Team), initially as a Band 6 Biomedical Scientist, but after a restructuring he worked at a Band 5 level.
6. The events set out in the particulars of the Allegation were investigated by the Trust. However, before a disciplinary hearing was held on 27 January 2015, the Registrant had retired from his post. Notwithstanding this the Disciplinary Hearing proceeded in the Registrant’s absence. The Trust’s concerns and the outcome of the Disciplinary Hearing were reported to the HCPC.
Decision on facts
7. The HCPC case was supported by the live evidence of three witnesses, their sworn statements and the supporting redacted documentation that had been relied on in the Trust’s investigation and at the Disciplinary Hearing. These witnesses were, AS, Biomedical Scientist, who gave evidence in relation to Particular 1; SH, Haematology Team Manager, who undertook the initial investigation; and, SL, Operations Manager of Blood Sciences, who had been one of the two managers that had undertaken a subsequent joint investigation of the two complaints. SL had presented the Management case at the Disciplinary Hearing. All three witnesses gave evidence which was consistent with their sworn statements and the supporting documentary evidence. The Panel considered their testimony to be consistent, reliable and credible. The Panel took into account all documentation before it at this stage which had been received from the Registrant and took legal advice.
8. In relation to the stem of the Allegation, the Panel had unchallenged evidence of the Registrant’s terms and dates of employment.
Particular 1 – found proved
9. AS testified that this event took place on 3 July 2014. The Panel had evidence that the Registrant was also on duty that day. AS confirmed that the screen shot of the Telepath computer blood issue record before the Panel showed that she had issued the bloods in question. She denied doing this and maintained the bloods had been issued by the Registrant whilst she was still logged onto the system under her unique login. AS had reported this matter immediately to a manager, AP. In her evidence, AS stated that she was angry and concerned about this entry being made by the Registrant using her log in because “if anything happened to that patient I would be accountable for it”. The Panel had before it the email dated 9 July 2014 in which AS put this matter in writing to AP.
10. All three witnesses gave evidence that the Registrant should not have used the Telepath computer to record these bloods being issued whilst AS was logged in because it was against the requirements of the Medicines and Healthcare Products Regulatory Agency (MHRA). It was further against Trust policy in particular one of the Laboratory’s Standard Operating Procedures and had broken the audit trail for the bloods. The evidence from all three witnesses was that good practice dictated that the Registrant should have logged AS out of the system and then logged himself in before making a note of the issuing of the bloods on the system.
Particular 2 (a) and (b) – found proved
11. As stated within this particular, this event took place on 4 August 2014 when the Registrant was working a late shift.
12. In relation to particular 2(a), the Panel considered the evidence to identify whether and when the Registrant had failed to undertake the relevant quality control procedures. The Panel was able to identify the following examples:
13. First, the Registrant had replaced the reagent on the ACL Top 500 Coagulation Analyser machine but had not performed an internal quality control which should have been undertaken when a new vial of reagent was placed on the analyser.
14. Secondly, when the ACL Top 500 analyser machine had shown results of blood coagulation analysis that were, in the view of SH, ‘highly abnormal’, the Registrant had not, on four occasions, undertaken repeat tests in accordance with the Standard Operating Procedure.
15. Thirdly, when an analysis had been deemed to have ‘failed’, an alert appeared on the result screen to bring to the Registrant’s attention to the fact that there had been a significant deviation in the result. The Panel heard that for further results to be processed the operative, in this case the Registrant, would have had to override and cancel this screen alert. There are examples before the Panel of when the Registrant had failed to follow procedure and had overridden this alert without undertaking investigation as to why the result had ‘failed’.
16. In relation to particular 2(b), the Panel had evidence before it that samples had been reanalysed by fellow Biomedical Scientist SR. Her report of the results of the reanalysis had been produced for and relied upon in the internal investigation. 43 of the reanalysed results had been found to be erroneous. As a result GPs and internal clinicians had to be contacted and informed of the revision of the results. SR’s report was supported by the live evidence of SL and SH.
Decision on grounds
17. The evidence of SH and SL was that the Registrant’s acts and omissions were very serious matters which potentially could have led to patient harm through misdiagnosis of medical conditions and incorrect prescription of relevant medication.
18. It was submitted by the HCPC that the Registrant’s acts and omissions, individually and collectively, constituted misconduct. The HCPC advanced the argument that the matters found proved were in breach of a variety of the provisions of the Standards of Conduct, Performance and Ethics and the Standards of Proficiency for Biomedical Scientists and so should be considered as serious misconduct.
19. In relation to the issue of whether the facts proven constituted a ground of lack of competence or misconduct the Panel received detailed advice from the Legal Assessor. The Panel took into account the Registrant’s long career and the lack of evidence that there had been a consistent failure over a period of time to achieve acceptable standards of performance. There was however evidence that the Registrant had sufficient training, knowledge and experience to have taken steps to avoid committing these errors. This being the case, the Panel came to the conclusion that the Registrant’s acts and omissions, as identified in particulars 1 and 2, did not emanate from a lack of competence but may constitute misconduct.
20. At this stage in the proceedings the Panel appreciated that there was no onus on the HCPC and the issue was a matter for the professional judgment of the Panel. The Panel took into account the HCPC’s representations and the terms of the relevant Practice Note.
21. In relation to the standards expected of a registered Biomedical Scientist the Panel considered whether, and which, standards had been breached.
22. In relation to particular 1, the Panel considered that the Registrant’s action had been in breach of:
• Standards 1, 5 and 10 of the Standards of Conduct Performance and Ethics, which relate to acting in the best interests of service users; being able to meet relevant standards of proficiency; and, accurate record keeping.
• Standards of Proficiency for Biomedical Scientists - the Registrant had not complied with the provisions of 7.2, 10.1, 10.2, 10.3 and 12.4 which relate to information governance; maintaining records appropriately; and the ability to assure the quality of his practice.
23. In relation to particular 2, in the Panel’s judgment the Registrant’s acts and omissions were in breach of the following:
• Standard 1 of the Standards of Conduct, Performance and Ethics which relates to acting in the best interests of service users.
• Standards of Proficiency for Biomedical Scientists - the Registrant had breached provisions 12.9, 14.2 and 14.3 which relate to quality of practice; and drawing on appropriate knowledge and skills to inform practice.
24. The Panel appreciated that a breach of these Standards did not automatically constitute a finding of misconduct. In this instance however the Registrant’s practice had fallen below that expected of an experienced autonomous practitioner. The Panel therefore concluded that the matters found proved, individually and collectively, amounted to serious professional misconduct.
Decision on Impairment
25. At this stage in the proceedings the Panel had placed before it information which showed that, at the time of the events and subsequently, the Registrant’s health has suffered. The Registrant’s assessment is that he is not able to return to his profession. In addition, he has stated that he has no intention of returning to work at his age, 70.
26. The documentation from the Registrant showed that whilst the Registrant’s misconduct is capable of remedy the Panel had no evidence before it that he had taken any steps to address it and there was no indication of an intention to undertake any such remedial measures in the future.
27. The Panel noted that within this further documentation the Registrant stated that he was no longer a member of the HCPC. Notwithstanding that the Registrant had not renewed his membership, the Registrant’s membership continues whilst there is a fitness to practise issue raised against his professional practise.
28. The Panel referred to the HCPC’s Practice Note on Impairment. In reaching its decision on the “personal component” of impairment, the Panel noted that it had no written personal or professional references before it; there was no evidence to contradict the Registrant’s statement that he had ceased to practise; there was no evidence of remediation or an intention to undertake remediation. The Panel had no recent medical information relating to the Registrant’s health; it had only a medical report from the Registrant’s GP dated 19 June 2015. The Panel accepted the Registrant’s statement that he is unable to return to safe practise.
29. In relation to the issue of insight, and the potential for repetition in the future, there was evidence that the Registrant had not understood the gravity or potential consequences of his actions. In particular, he had failed to understand the seriousness of recording and issuing bloods whilst another practitioner was logged into the system. In relation to the wider consideration of the potential for repetition in the future, the Panel considered that there was little likelihood given the Registrant’s apparent withdrawal from practise and his stated intention not to return to practice, although the Panel appreciated that the Registrant may change this view in the future.
30. Taking these matters into consideration, the Panel concluded that there is sufficient evidence of current impairment of the Registrant’s fitness to practise.
31. The Panel then turned to consideration of the public interest in a finding of impairment; in particular the maintenance of standards, the upholding of the profession’s reputation and confidence in the regulatory process. There was no evidence of direct patient harm however the matters found could have resulted in the misdiagnosis of a medical condition and/ or the incorrect prescription of medication, both of which had the potential of causing actual patient harm. The ramifications of the Registrant’s actions had first, resulted in a fellow professional’s standing being potentially compromised and the audit trail being broken. Secondly reanalysis of samples had to be undertaken which had resulted in numerous fellow medical practitioners being required to rectify records and/ or undertake alternative clinical action. This being the case, the Panel has concluded that the Registrant’s misconduct is so serious that it warrants a finding of impairment in the public interest.
Decision on Sanction
32. The Presenting Officer on behalf of the HCPC made no representations in relation to the level of sanction that should be imposed however it was advanced that the aggravating elements indicated a sanction at the higher level.
33. In approaching this matter the Panel took into account the terms of the Indicative Sanctions Policy, the need to be proportionate and to consider the available sanctions in ascending order. The Panel further took into account the advice of the Legal Assessor. The Panel had no further information placed before it at this stage.
34. The Panel appreciated that sanctions should not be punitive and should balance the interests of the Registrant with those of service users and the wider public interest. The Panel also took into account the need for a sanction to act as a deterrent to other practitioners to act in the same way.
35. In assessing the appropriateness and proportionality of the sanction the Panel has identified the following mitigating features:
• There are no other regulatory findings against the Registrant.
• The Registrant has enjoyed a long-standing career that started in the 1960s and worked for the same trust for 47 years.
• The Panel heard live witness evidence that the Registrant had been an ‘affable and nice’ colleague who had been openly very distressed by these events.
36. The Panel has also identified the following aggravating features:
• There had been no understanding by the Registrant of the gravity of his actions and therefore no insight into these actions. These were matters of serious misconduct and had potential adverse consequences for service users.
• There has been no apology and no expression of remorse.
• There has been very limited engagement by the Registrant in the HCPC regulatory process.
• There had been no admissions by the Registrant to the Allegation.
• No remedial action had been undertaken by the Registrant and he has stated he does not intend to return to professional practice.
37. Taking these matters into account the Panel has concluded that the matters are too serious for it to take no further action. This is not an appropriate case for mediation. A Caution Order is not appropriate as the Registrant has not taken any appropriate remedial action or shown insight into his misconduct. Further, the incidents are not minor in nature. A Caution Order would not adequately protect the public.
38. Turning now to the appropriateness of a Conditions of Practice Order, the Panel could not identify any workable conditions which would address the misconduct given the Registrant’s stated position in relation to his health and future professional intentions.
39. In relation to the issue of a Suspension Order, the Panel noted that the misconduct may not be fundamentally at variance with the Registrant remaining on the Register. This being the case, the Panel gave consideration as to whether there were any beneficial effects for the Registrant from being given the opportunity to undertake a period of reflection, undertake further personal training and development, or to fully regain his health before returning to practise. The Panel took into account the fact that the Registrant’s health may have affected his ability to engage and participate in the HCPC regulatory process and also in his ability or willingness to resolve matters. It also noted the strident terms in which the Registrant had repeatedly asked not to be contacted on this matter over a considerable period of time. This being the case, it is extremely unlikely that a sanction which required future interaction would be an appropriate and effective sanction.
40. To ensure the proportionality of its decision the Panel considered whether a Striking Off Order was warranted in this instance. The Panel noted that within the Indicative Sanctions Policy there was guidance that in a case where a Registrant lacked insight then a lower sanction than Striking Off may not be appropriate. Given the seriousness of the misconduct, the Registrant’s poor insight and his lack of willingness to engage the Panel concluded that it is proportionate to make a Striking Off Order. It is in the Registrant’s and the public interest and the protection of service users to make a Striking Off Order in this particular case
History of Hearings for Peter J Armstrong
|Date||Panel||Hearing type||Outcomes / Status|
|17/10/2016||Conduct and Competence Committee||Final Hearing||Struck off|